Session 10-16 a Special Meeting of the Homer City Council was called to order on May 13, 2010 at 4:08 p.m. by Mayor Pro Tempore Beth Wythe at the Homer City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska, and opened with the Pledge of Allegiance.  

PRESENT:    COUNCILMEMBERS: HOGAN, HOWARD, LEWIS, ROBERTS, WYTHE

ABSENT: ZAK (excused)

STAFF: CITY CLERK JOHNSON

CITY ATTORNEY KLINKNER

CITY PLANNER ABBOUD

AGENDA APPROVAL (Only those matters on the noticed agenda may be considered pursuant to City Council’s Operating Manual, pg. 5)

Mayor Pro Tempore Wythe called for a motion for the adoption of the agenda.

LEWIS/ROBERTS – SO MOVED.

There was no discussion.

VOTE: YES. NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

NEW BUSINESS

A. Board of Adjustment – Appeal of Planning Commission Decision – Enforcement Order at 844 Ocean Drive Loop, Michael Kennedy.

Mayor Pro Tempore Wythe opened the hearing of the appeal by Michael Kennedy of a decision by the Homer Advisory Planning Commission affirming an enforcement order regarding the removal of junk from 844 Ocean Drive Loop, Lot 83 Oscar Munson Subdivision. In addition to the Record on Appeal prepared by the City Clerk, we have received a written opening brief and reply brief from City Planner Rick Abboud and an opening brief from Michael Kennedy.

PARTIES PRESENT: Mike Kennedy, City Planner Rick Abboud, and City Attorney Tom Klinkner (telephonic).

PRELIMINARY ISSUES

Before hearing oral argument Mayor Pro Tempore Wythe addressed the following preliminary issues:

If any Board member had any matter to disclose regarding disqualification to participate in this appeal, including a conflict of interest, partiality or ex parte contacts. There were no matters disclosed by the Board.

If either party wished to raise any issue regarding disqualification of a Board member to participate in this appeal. Disqualifying matters would include conflict of interest, partiality or ex parte contacts.

Brief discussion ensued on absent Board members participation in deliberations. Attorney Klinkner advised they could participate by reviewing the printed material and the recording of the argument. The Board would consist of the entire Council if they should return and review the record in its entirety. It is the absent members’ option.

ORAL ARGUMENT

Mayor Pro Tempore Wythe explained each side was granted a total of 30 minutes, if needed. She reminded the parties that the Board is not authorized to take any additional evidence at this hearing. The Board decides the appeal solely on the evidence in the appeal record that the Clerk has prepared. The purpose of argument is for each party to present that party’s position on the issues in this appeal. The Board will disregard assertions of fact by a party in oral argument unless they are supported by evidence in the appeal record.

Appellant Michael Kennedy commented on the amount of paperwork involved. He received an enforcement order demanding that he discontinue use. There was no specific date mentioned when the violation occurred or if there are fines. He has been to court twice over this matter; it’s been about 50/50. The Planning Department has not proved their case. Prior to this administrative order this was a criminal offense. He was issued a ticket by a police officer and it was a bailable offense liable to fines and/or jail. There was a specific date given. He went directly to court. He could have been arrested and would have had to post bail. He was innocent until proven guilty. The City has to prove its case.

Mr. Kennedy continued, now we have administrative law and apparently he is guilty and has to prove himself innocent. The burden of proof lies on the City. The City has not proven their case. This is new for the Planning and Zoning Department to operate under these administrative laws. The court cases have no bearing on the administrative law; they are two separate cases. Planning and Zoning has not proven their case. Mr. Kennedy stated he is innocent until proven guilty.

Mr. Kennedy reflected at the time when he received the letters he asked for a list of things that were in violation, but never got a list. The matter went before the Planning Commission and he asked to be excused from the meeting. His request was turned down and the meeting was rescheduled. He was not at the Planning meeting when they had their public hearing and made their decisions. He never presented a case to them. Mr. Kennedy sent a letter for the meeting to be moved; they went ahead and had the meeting and made their findings. In the pictures it would have been easy for the Planning and Zoning Department to point out the violations, but they never have. Mr. Kennedy did not have a chance to respond to the City’s reply brief.

In response to the City’s reply brief, Mr. Kennedy defended:

1. There is no date when he was specifically guilty like it was before when he was cited with a particular date. The burden of proof falls upon the City to prove a negative or that there was a violation. He is innocent until proven guilty. He is not sure what the new evidence was other than auto registrations he submitted. He has filed lots of evidence and filed two different briefs.

2 & 3. Mr. Kennedy explained the issue is a junk yard, not commercial vehicles. If he is in violation for commercial vehicles, let that violation be brought forward. It strays from what he has been charged with. Mr. Kennedy asked for public records to say he either had a junk yard or recyclable operation. The answer from the Planning Department was no, there were no written records. He submitted a couple different things that made the information submitted to the Planning Commission false. They cannot produce any records that he said that or it was stated. The information should not have been passed to the Planning Commission.

4. Mr. Kennedy stated when he submitted his proof was when he was asked. He was denied going to the Planning Commission meeting. It is not required to go to the Planning Commission meeting; that is an option. This is the first time he has got to speak on this. Mr. Kennedy asserted that Planning and Zoning is not a police officer and has no authority under law. If he was pulled over and a police officer wanted to see his registration it was because of a moving violation. He is not required under any code to produce documentation of registration. The Planning and Zoning Department is not a police department and are not able to write tickets or do the same thing that an officer does.

Mr. Kennedy claims the junk on the trucks and trailers are legal. If a vehicle is registered and has junk, that is a load. If junk is on the ground it becomes something the City has ordinance for. If it is on a registered or operable vehicle it becomes subject to the laws of the State of Alaska. The same would be true if a garbage truck parked at Cosmic Kitchen. They would not be cited for having garbage in a business zone as that would be a load on a vehicle. When he registered the vehicles they became domain of the State of Alaska and subject to the State’s laws. When something touches the ground it is Planning and Zoning regulations. There is nowhere in Planning and Zoning that says you cannot have what the load is qualified to be on the vehicle.

4 & 5. Mr. Kennedy contended he has never stated that he has grandfather rights. Originally he turned in something that said the homesteader spirit, and it was convoluted to say he had grandfather rights. The only possible grandfather would be under the old ordinance where junk was defined as more than 100 sq. ft. When the original zoning took place he was allowed 100 sq. ft. and should be allowed 100 sq. ft. under grandfathering of previous ordinances. The U.S. Constitution will back him up under the expos facto law. It would be like tonight if he were able to prove the vehicles are registered under the laws of the State of Alaska are legal, next week the Council can’t make a law to limit the kind or number of vehicles that are registered on the property. He never asked for an exemption based on length of residence. The Planning Department has an agenda of getting his place cleaned up rather than following the ordinances.

Mr. Kennedy said he drove past Kachemak Drive and there were four junked vehicles that have been there for months with the roofs torn off and the glass busted out. He wonders why we are here. The City turns a blind eye to the State for junked vehicles. What the City presents as evidence is what needs to be removed, not what is imagined. As to the allegation of Mr. Kennedy’s propensity for collecting junk, Mr. Kennedy refuted he could have a propensity for drug addition and alcohol addition, but it doesn’t mean he is an alcoholic or drug addict. The original enforcement order did not mention a propensity for anything. It is off the point.

Mr. Kennedy stated he turned in the 12 registrations of vehicles that are on his property. He made sure they are all registered or operable. When the City presents a list, or shows him a picture what he needs to remove he can start working on that. City Code does not state registered and operable; it states registered or operable. There is no limitation to how many historic vehicles he can have. The vehicles are historic with permanent registration for parade and display, and the vehicles are currently on display.

Mr. Kennedy would like a list of what would be in violation. He is not going to authorize the Planning and Zoning Department to walk on his property to make a list. They will need a search warrant or make their observations from the road. Under the U.S. Constitution we have the strongest right to privacy law in the whole country. Planning and Zoning needs a search warrant to inspect his property real or imagined. He thought about challenging it in the spirit of Irwin Ravin under the right of privacy, Alaska State Constitution. Surely if you can have ¼ lb. marijuana per person on your property, a few vehicles around could fall under the same privacy and use of your property.

He was handed the photograph taken by Ms. Newby, neighbor across the street. It was submitted October 12, 2009. In October he has never have seen the grass look like that. Without a date and signature it does not mean anything. There has been a contention that he is running some type of business there. A friend was living there and stuck the “THIS AREA CLOSED TODAY” and baby on board (baby doll displayed on board) signs up as a joke. It does not constitute a business.

Mayor Pro Tempore Wythe advised Council they may ask questions of Appellant Michael Kennedy.

Councilmember Roberts questioned Mr. Kennedy on the original letter from the City that came June 15, 2009. She asked if it came certified.

Mr. Kennedy answered he did not think the first one came certified mail, although there might have been letters before that. It does say certified mail and he signs for certified mail.

Councilmember Roberts referenced the vehicle registrations with various dates in mid December. She asked if they were renewals or had they lapsed.

Mr. Kennedy answered when he realized they said registered or operable it would be easier for them to be registered. Most of the vehicles drove in there. He could have put batteries in them to get them running. He elected to make them registered so there was proof; it was easier to make them registered than operable so he did not have to argue if they were operable.

Councilmember Hogan asked when was the first time he saw the picture.

Mr. Kennedy answered it was when he got the record of the Planning and Zoning meeting.

Councilmember Roberts asked Mr. Kennedy how he though he would be grandfathered in with the previous zoning ordinances.

Mr. Kennedy answered the previous zoning ordinances would apply.

Councilmember Roberts stated Mr. Kennedy provided a 1982 ordinance. He purchased property in 1984.

Mr. Kennedy clarified he did not contend there was no zoning when he bought the property. The zoning in 1984 would apply today. You can’t zone something one way and have a use for it and then zone it out of existence. The definition of junk in 1988 was more than 100 sq. ft. Now there is no allowance for any junk. He never claimed any grandfather rights other than that.

Councilmember Lewis asked if there was a copy of the 1982 ordinance.

City Planner Rick Abboud stated he agrees with Mr. Kennedy that some things may be sidetracked, but they are sidetracked as a response to Mr. Kennedy’s appeal claims. In Mr. Abboud’s brief he was not responding to the facts presented in the original enforcement orders or subsequent Planning Commission hearing. There were claims of a faulty staff report, and items considered junk may be considered incidental or customary use under Homer City Code. Incidental use is affiliated with residential use, which is the residence. Stockpiling material constitutes salvage. He doesn’t see how it can be associated with a residential use. What you store in your yard is incidental to the residential use of your house, such as shovels and lawnmowers. We are talking about what violates rural residential code. We have police powers; an attorney can review that. It is not about feelings of a violation; it is about the definition of junk. There is no allowance for this to be stored in a residential district. Worn out, wrecked, scrapped, partially or fully dismantled, discarded or damaged goods or tangible materials. A dismantled vehicle is junk. If they are registered or operable, but not dismantled, it is fine.

Not many points brought up in the appeal are pertinent to the legal ruling of the law. We are not asking for money, we just want it cleaned up. You are not allowed to store these things in open air. If you park a vehicle full of junk that does not move, it is junk in open air. It is the definition of junk on your property. You can’t bring a garbage truck home to a residential neighborhood and park it.

Councilmember Roberts stated the appeal was heard by the Planning Commission on October 21, 2009. Two weeks previous the Planning Commission attempted to hear the appeal. Mr. Kennedy claimed he did not receive notice.

City Planner Abboud answered the hearing was scheduled two weeks earlier and Mr. Kennedy claimed he did not receive a notice. We rescheduled it for the next meeting. Mr. Kennedy was noticed of the October 21^st hearing and Mr. Abboud encouraged him to appear.

Councilmember Hogan asked if Mr. Kennedy requested postponement or that the hearing be held at a different date.

Mr. Abboud answered he had a request in the Clerk’s office and it was denied.

Councilmember Roberts asked if the request for continuance was in the record.

City Planner Abboud said there was a reason stated and the Planning Commission thought the reason was not valid enough to postpone any further.

Mayor Pro Tempore Wythe asked if the request for postponement was not included in the record, could it be added now.

Attorney Klinkner advised that would be an appropriate addition to the record. It would be a part of the proceeding of the appeal to the Planning Commission. It would be a matter to take up when oral argument is complete and before deliberations.

City Clerk Johnson asked if the request for continuance is not located in the main file, how the document would be included.

Councilmember Roberts noted the Planning Commission minutes of October 21, 2009 referencing the request for continuance.

Councilmember Lewis asked what affect the 1990 court case against Mr. Kennedy would have on the 2008 case. In the 1990 court case Mr. Kennedy pled no contest and failed to comply with the sentence.

Attorney Klinkner answered in the criminal case the judge gave some time to remove the junk and a suspended imposition of fine. Mr. Kennedy did not remove the junk so the judge imposed the fine. The case was concluded. It has no effect of going into the future. Whether or not he paid the fine, it was the end of the case.

Mr. Kennedy stated that he elected to pay the fine.

Councilmember Lewis asked if that meant the stuff that was there after he paid the fine was no longer classified as junk.

Attorney Klinkner answered Mr. Kennedy paid the fine and took care of the citation. It did not render the junk on the property as legal.

Mayor Pro Tempore Wythe reminded Council it was time for questions of Mr. Abboud.

Councilmember Roberts asked Mr. Abboud if it was correct that Mr. Kennedy said he wanted the City to say what was junk, yet he does not want anyone to come on his property.

Mr. Abboud answered they chose not to go on the property, and they felt it was not necessary.

REBUTTAL

Mr. Kennedy reiterated he is innocent until proven guilty. Whether he chooses to let Planning and Zoning on his property to inspect it for junk is his right to privacy per the U.S. Constitution. They have no more right than the Fuller Brush man, unless they have a search warrant. He served a notice to that effect. The pictures were taken from the road. He is not being unreasonable by not letting them on his property. Whatever they need to do, they need to do on their own. They can go to court to get a search warrant. They can’t put the onerous on him for not allowing them on the property. It is a non bailable offense, less offense than jay walking, with no jail time, only fines. The City has not proven the case by the pictures. He has two lawnmowers, two wheelbarrows, a hot tub, and a rototiller. It is the business that he is in. Stuff comes to him. If there is one of anything he is going to get it. If it is incidental to his house he will get it.

For the record Mr. Kennedy asked that the document from the October 21, 2009 Planning Commission meeting be entered. Mr. Kennedy stated that he requested that the Planning and Zoning meeting be discontinued. In his written request he stated there was a member that had a bias. It was the attorney’s opinion that it didn’t matter. He was denied the request to reschedule. Mr. Kennedy stated he has a lot of community support and the neighborhood in general likes him. He told the supporters not to come to the Planning Commission meeting since he would not be there.

Mayor Pro Tempore Wythe added the email from Mr. Kennedy to the Planning Commission and Rick Abboud dated October 21, 2009 at 3:01 p.m. to delay or reschedule the hearing. There was no opposition from the Council.

Mayor Pro Tempore Wythe thanked Mr. Kennedy and Mr. Abboud for presenting their case.

ROBERTS/LEWIS - MOVED FOR EXECUTIVE SESSION.

Discussion occurred on the executive session for a preliminary meeting. Attorney Klinkner advised Council can continue executive session to another date. He advised Council to announce their next deliberation date on the record.

VOTE: YES. ROBERTS, WYTHE, HOWARD, HOGAN, LEWIS

Motion carried.

Mr. Kennedy asked for a point of order, as earlier in the meeting it was stated that Mayor Hornaday and Councilmember Zak could rule on the matter. He asked about going into executive session to make a decision and then being able to decide later.

Mayor Pro Tempore Wythe answered we are not obligated to wait their return to make a decision. If no decision is rendered today the Mayor and Councilmember Zak can review the record and participate. Attorney Klinkner confirmed that was correct.

Council adjourned to Executive Session at 5:16 p.m. and reconvened the meeting at 5:33 p.m.

Councilmember Roberts stated they spoke with the attorney, made a plan, and arranged a time to meet in the future. They will meet May 25^th at 5:00 p.m. in Executive Session.

ADJOURNMENT

There being no further business to come before the Council the meeting was adjourned at 5:34 p.m. by Mayor Pro Tempore Wythe. The next Regular Meeting is scheduled for Monday, May 24, 2010 at 6:00 p.m. The next Committee of the Whole is scheduled for Monday, May 24, 2010 at 5:00 p.m. A Worksession is scheduled for Monday, May 24, 2010 at 4:00 p.m. All meetings scheduled to be held in the Homer City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

_______________________________

JO JOHNSON, CMC, CITY CLERK

Approved: ______________________