Session
09-25 a Special Meeting of the Homer City Council was called to order on
November 30, 2009 at 5:32 p.m. by Mayor James C. Hornaday 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,
ZAK
STAFF: CITY MANAGER WREDE
CITY CLERK JOHNSON
ATTORNEY LEVESQUE
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)
The agenda was approved by consensus of
the City Council.
PUBLIC
COMMENTS UPON MATTERS ALREADY ON THE AGENDA
There were no public comments.
NEW
BUSINESS
A. Board
of Adjustment – Appeal of Non-Decision of a Rooming House Determination for the Refuge Chapel.
Mayor Hornaday called
for a motion to move into the Board of Adjustment appeal hearing of an appeal of
a non-decision of a Rooming House determination for Refuge Chapel at 397 E.
Pioneer Avenue, Lots 4 and 5, Block 6, and Lot 5, Block 7 Glacier view
Subdivision No. 2.
LEWIS/ZAK – SO MOVED.
There was no
discussion.
VOTE: YES. NON OBJECTION. UNANIMOUS CONSENT.
Motion carried.
The appeal is by Frank
Griswold of a Non-Decision by the Planning Commission of a Rooming House
determination for Refuge Chapel. Written briefs were received from the
Appellant, Frank Griswold, the Appellees Darren
Williams, Refuge Chapel, and Rick Abboud, City Planner. All parties have
standing pursuant to Homer City Code Section 21.93.060. All parties are
present.
PRELIMINARY ISSUES
Appellant
Frank Griswold stated that he raised conflicts of interest on the part of Board
of Adjustment (BOA) members with Attorney Levesque and other parties. He had
hoped his written comments would be before the BOA with an advisory opinion.
Mr.
Griswold questioned if Mayor Hornaday was serving as Mayor or Boardmember. Mr. Griswold asserted the Mayor has a bias, as
he has demonstrated animosity by allowing other parties to speak for longer
periods of times, cutting Mr. Griswold off. A recent APOC ruling resulted in
the Mayor paying a fine of several hundred dollars due to his actions. Mr.
Griswold claimed he would not receive a fair hearing with the Mayor as the BOA
Chair, who has the ability to influence testimony.
Mayor
Hornaday passed the gavel to Mayor Pro Tempore Wythe.
Mr.
Griswold offered a newspaper article, not part of the appeal record, but
relevant to Mayor Hornaday’s conflict of interest.
Attorney
Levesque advised the BOA has the ability to recognize something in public
domain. No new evidence can be presented to the Board, but the BOA could take
judicial notice.
Mayor
Pro Tempore Wythe allowed Mr. Griswold to read the newspaper article.
Appellant
Griswold read from the October 7, 2008 Homer News article in which Mayor
Hornaday commented on the budget. The Mayor commented that the City has wasted
thousands of dollars on Frank Griswold. Mr. Griswold called it an extreme bias
and more than mainstream animosity. At the last council meeting Ray Kranich was
given six minutes for presentation; Mr. Griswold was denied a two-minute
extension. It was only by the good graces of the Council that he was allowed 30
seconds more. The presiding officer has more influence than anyone else, and it
is important it be a fairly conducted hearing.
Attorney
Levesque stated there are two types of conflict. One is financial and the other
is partiality. Homer City Code 1.18.048(c) states after such disclosure the
city official may excuse themselves for partiality without the vote of the
body. Otherwise the body shall by majority vote rule if the member has a
conflict.
Mayor
Pro Tempore Wythe asked Mayor Hornaday if he had a bias.
Mayor
Hornaday stated his feelings would not affect the decision one way or another.
Working as a lawyer and judge, he dealt with lots of people he disagreed with
and who called him names. Mayor Hornaday advised he did receive ex parte
communication from Darren Williams several months ago at Land’s End when Darren
started to talk to him about the case. The Mayor told Mr. Williams that he may
sit on the BOA and it would be a good idea if he did not talk about the case.
Mr. Williams then stopped talking.
Mayor
Pro Tempore Wythe called for a motion from the Council that the Mayor does not
have a conflict of interest.
ZAK/LEWIS
– SO MOVED.
Appellant
Frank Griswold suggested making the motion in a positive format as has been the
attorney’s prior advice.
ZAK/LEWIS
– MOVED TO WITHDRAW THE MOTION.
There
was no objection from the BOA for withdrawal of the motion.
ZAK/LEWIS
– MOVED THAT THE MAYOR DOES HAVE A CONFLICT OF INTEREST.
There
was no discussion.
VOTE:
YES. ROBERTS, HOWARD
VOTE:
NO. WYTHE, ZAK, HOGAN, LEWIS
Motion
failed.
Mayor
Hornaday reviewed his decision. He withdrew as Chair of the meeting due to the
vote of two councilmembers that he does have a bias.
Appellant
Frank Griswold said board members conducting fair and impartial hearings must
be open minded, objective, and free of entangling influences. The role of the
decision maker has been recognized as an essential element of the procedural
due process required by the Constitution.
Mr.
Griswold asserted Councilmember Hogan has a potential conflict, as his company,
Auction Block, buys halibut from him. He cited HCC 1.18.020(e)(1)(ii)
regarding financial interest and stated Councilmember Hogan did not timely file
a 2009 Public Official Conflict of Interest Disclosure due on November 1, thus
making him ineligible.
Mayor
Pro Tempore Wythe questioned Councilmember Hogan.
Councilmember
Hogan stated he had no idea that he buys halibut from Frank Griswold. If he
says so, then he would have to take his word for it. He has not seen his name
on his customer list.
Mr.
Griswold stated he owns a percentage of a boat that delivers fish in his name
and receives a receipt from the Auction Block. In the last several years he has
received several thousand dollars. He cited a ruling in a 1996 case, Griswold
vs. Homer.
Mayor
Pro Tempore Wythe asked Mr. Griswold if the amount received in a calendar year
exceeded $5,000.
Mr.
Griswold answered it was over $5,000 this year. The boat delivers his halibut
quota and cod; Mr. Griswold is the owner of the boat.
Mayor
Pro Tempore Wythe asked Councilmember Hogan if he purchased $5,000 would he
gain over $5,000.
Appellant
Frank Griswold stated the boat’s name is Still Water. It may go beyond a
financial relationship and be more of a potential bias.
Councilmember
Hogan acknowledged there is a substantial business relationship. In the quota
fisheries for someone to pay someone else’s quota you have to own a share of
the boat. He had no idea Mr. Griswold was involved.
Mr.
Griswold elaborated he has a say in where halibut are delivered, which
sometimes influences where other products are delivered. He derives no
financial interest in anything other than his halibut quota.
Councilmember
Roberts commented she is only hearing money going from Mr. Hogan to Mr.
Griswold. She asked if Mr. Griswold was paying Mr. Hogan for fish.
Mr.
Griswold explained he is only pointing out there is a business relationship.
Potentially if Councilmember Hogan ruled against him he could say no more
halibut quota would be delivered. Conflict of interest rules are for all
parties.
Attorney
Levesque advised a city official who has or may have a substantial financial
interest shall disclose the interest to the body. Any member of the body may
raise the question and the member shall disclose the facts. Councilmember Hogan
was not aware of the relationship and now that he is, he is concerned.
Councilmember
Hogan acknowledged there is a relationship with the boat, but he had no idea
Mr. Griswold was involved.
Mayor
Pro Tempore Wythe asked Councilmember Hogan if the pecuniary interest exceeded
$5,000.
Councilmember
Hogan stated he could be affected if Mr. Griswold gets mad at him and doesn’t bring
business his way. He does not believe it will affect deliberations, but if
Frank Griswold feels he has a conflict he will excuse himself.
Attorney
Levesque stated it does not work that way and advised HCC 1.18.045 states the
Mayor will make the ruling and Council may override.
Appellant
Griswold cited HCC 1.18.040 (8)(c) pertaining to
partiality.
Mayor
Pro Tempore Wythe questioned Councilmember Hogan on the financial interest.
Councilmember
Hogan answered he does not have a substantial financial interest exceeding
$5,000 per year.
Mayor
Pro Tempore Wythe ruled there was no conflict of interest for Councilmember
Hogan.
There
was no objection from the Board.
Appellant
Griswold referenced the previous BOA decision that remanded the matter to the
Planning Commission. The Vice Chair was ruled to have a conflict of interest
and excused from those proceedings. Mayor Hornaday disqualified Councilmember
Wythe due to her relationship with Ray Kranich, Planning Commissioner, who was
involved in the lower decision.
Mayor
Pro Tempore Wythe recalled the discussion of her conflict, but did not remember
being excused from the prior proceeding.
Frank
Griswold noted the appeal of the rooming house determination for the Refuge
Room submitted to the Planning Commission. Mayor Hornaday ruled Councilmember
Wythe disqualified due to her husband’s status of step-son of Planning
Commissioner Ray Kranich. The ruling was sustained by the BOA and Wythe did not
participate. A decision was rendered in that case. In the present case a basis
was given for the non-decision. A written document was voted upon and passed;
the effect of the non-decision was to uphold the City Planner’s
recommendation.
Councilmember
Roberts recollected the dismissal of Councilmember Wythe in the previous BOA
due to Ray Kranich being her step father-in-law. The code has since changed in
regard to relations within a family; you can now be distantly related. The consignuity verbiage has been
deleted.
Attorney
Levesque advised it is important if the language was stricken from what it was
before. Homer is a very small town and you run into this all the time. That is
why people don’t want to serve on boards and commissions. It makes for a small
group of people that want to serve and then they are related. Homer City Code
does not require the family relationship as a type of interest that
disqualifies. Mr. Levesque asked Councilmember Wythe to tell the Board if she
was impartial or biased.
Mayor
Pro Tempore Wythe passed the gavel to Councilmember Roberts.
Councilmember
Roberts questioned Mayor Pro Tempore Wythe.
Mayor
Pro Tempore Wythe stated she can be unbiased for the benefit of the Council.
Her husband works for the City and they have unspoken regulations at their house.
They do not talk about the business of the Council or the commission that his
step-father sits on for the purpose of not to have a conflict. She goes to
other commission meetings, but doesn’t go to Planning Commission meetings for
the purpose of building a space, unless it is something very specific for
Council.
ZAK/
HOWARD – MOVED THAT COUNCILWOMAN WYTHE HAS A CONFLICT OF INTEREST.
VOTE:
NO. LEWIS, ROBERTS, ZAK, HOWARD, HOGAN
Motion
failed.
Mayor
Pro Tempore Wythe resumed the gavel.
Appellant
Griswold called reference to Councilmember Zak’s potential disqualifying bias
as he participated in the Planning Commission consideration and approval of CUP
07-03. It is indirectly under consideration here as well. On February 21, 2007
Mr. Zak publicly stated he was supportive of the shelter, but opposed to
simultaneously allowing a teen center anywhere on the property. On March 7,
2007 Mr. Zak requested that the clerk review the recording regarding the Refuge
Shelter action as to the teen center. He commented the minutes portrayed he
opposed the teen center in any lots with the conditional use of the Refuge
Shelter. Mr. Zak acknowledged the Refuge Chapel is a men’s shelter and would
endanger teens. He would not be able to justify calling it a rooming house
whose clientele includes boys and girls of all ages, unless he is extremely
supportive of the Refuge Chapel, in which case may be inclined to overlook the
previous objections. Someone who participated at the planning commission level
should not participate at the Board of Adjustment level.
Attorney
Levesque advised normally if the matter was at the planning commission and they
approved the initial permit and then elected to Council and it was appealed it
would be clear. The issue before the BOA is whether the characterization of the
Refuge Chapel as a rooming house is a proper determination. The only issue that
should be considered is if the CUP is moot. The determination of the City
Planner moots the CUP. He does not see a real connection.
Appellant
Griswold urged the BOA to ask members if they have partiality and then vote.
The person should not convince the BOA they will set their partiality aside.
There is no way of determining if a person’s partiality can be set aside.
Attorney
Levesque commented he sees it quite the opposite, as an opportunity for the
person being challenged to step down. When sitting on a board or city council
there are contentious issues. Unless there really is a conflict of interest
your job is to be here and take care of this.
Mr.
Griswold commented it does not benefit him to eliminate members. The more members here, the better.
Mayor
Pro Tempore Wythe ruled no conflict for Mr. Zak based on his service on the
Planning Commission.
Councilmember
Zak commented he has no conflict of interest. The Planning Commission made the
code determination, and anything discussed at the Planning Commission would
have been based on code. Both parties would benefit greatly to having him here.
ROBERTS/HOGAN
– MOVED THAT MR. ZAK HAS A CONFLICT OF INTEREST.
VOTE:
NO. HOGAN, LEWIS, ROBERTS, WYTHE, HOWARD
Motion
failed.
Appellant
Griswold questioned the role of Attorney Klinkner. He has now been told that he
represents the City Planner. His entry of appearance is for the City of Homer and
is not specific. Attorney Klinkner wrote a confidential memorandum dated
September 23, 2008 and adopted later by City Planner Abboud as his
determination. Attorney Klinkner was involved early on. Attorney Klinkner was
consulted on City Manager Wrede’s memorandum to the
Planning Commission dated June 11, 2009. Legal questions were asked by
Commissioner Kranich and the City Manager Wrede responded after consultation
with the City Attorney. Then Attorney Klinkner participated in the decision of
the Planning Commission on August 5, 2009. He questioned the 1974 Kirkland
opinion that was cited.
Mayor
Pro Tempore Wythe asked Mr. Griswold to specifically narrow his concern. Mr.
Levesque is sitting with the review board.
Mr.
Griswold stated the entry of appearance needs to be clarified as to who Mr.
Klinkner represents. If representing just the City Planner, it is another
issue. The Planning Commission should have had independent counsel. It is
inappropriate Mr. Klinkner wrote the brief defending his own actions. Advice
from Attorney Levesque could contradict Mr. Klinkner. Mr. Klinkner has multiple
clients and has influenced every aspect of the matter. It taints the
proceeding. He asked for a ruling on the brief and an extension of time and
received no response.
Attorney
Levesque commented there were a lot of questions asked. He tried various times
to get all parties together and talk about how to proceed. There are two
different entities, one is broad and one is specific. Attorney Levesque may
assist the BOA, but the BOA will make the determination. The City Attorney is
doing his job, representing the Planning Department through every phase of this
proceeding. As part of standing appeals to the BOA, the City Manager or City
Planner can participate in appeals. It would not be appropriate for Attorney
Klinkner to represent the City Planner and give the BOA advice.
Mr.
Griswold asked why it was appropriate for Mr. Klinkner to represent the
Planning Commission and if he was involved in advising the City Manager on the
memorandum and the decision by the Planning Commission.
Attorney
Levesque answered it was up to the Board, not his decision. The City Attorney
was not present at the lower boards. There is only evidence that shows that he
was not involved other than representing the City Planner.
Mayor
Pro Tempore Wythe stated the City Attorney or his staff would provide the
Planning Commission recommendations; he does not make decisions. Because he
participated with the Planning Commission is why the BOA has a separate
attorney.
Appellant
Griswold said it is no more appropriate for the City Attorney to represent the
Planning Commission and then the City Planner. If he participated in the
decision making process it was inappropriate. The brief could be stricken. Mr.
Griswold does not believe the Planning Commission would have come out with that
ruling if Attorney Klinkner had not justified his own ruling.
Mayor
Pro Tempore Wythe asked Attorney Levesque how the items relate to the BOA
tonight. Attorney Levesque stated these are preliminary matters having started
out with conflicts of interest and now the question of standing as to the City
Planner having an attorney.
Attorney
Klinkner stated he would be happy to answer questions.
Attorney
Levesque advised the BOA could take the preliminary matters under advisement
and make a decision later.
Mayor
Pro Tempore Wythe ruled to take the preliminary matters under advisement and
defer any topics Frank Griswold has to complete this issue.
There
was no objection from the Board.
Attorney
Levesque questioned Attorney Klinkner.
Attorney
Klinkner stated he was an advocate for the City Planner in his decision of the
Refuge Room as a rooming house. It has not been his intent to represent the
Planning Commission. He did not attend meetings. He was asked by the City
Planner and the City Manager to respond to those questions through them. The
advice was coming from the City Administration and the City Planner. He was not
independently representing the Planning Commission and had not talked with
individual planning commission members. Regarding the commission’s decision, it
was a procedural manner. Given the commission’s vote 2-3 to support the City
Planner’s decision, was the vote sufficient to decide or not decide the case?
He provided advice to the City Planner who relayed that to the commission. Mr.
Klinkner has been a municipal attorney since 1977. He has given advice to
boards and commissions from time to time and acted in this capacity before. He
was doing nothing different in this case than in the past.
Frank
Griswold questioned Attorney Klinkner.
Attorney
Klinkner stated the City Planner acts as staff for the Planning Commission and
assists them in matters such as writing decisions.
Appellant
Griswold commented the City Planner’s decision was overruled by the Planning
Commission and they would not allow him to write the decision. The party whose
determination is being appealed should play no role in writing the decision.
Attorney
Levesque questioned Attorney Klinkner on writing decisions for other planning
and zoning commissions. Attorney Klinkner answered affirmatively that other
boards and commissions use planning staff.
Appellant
Griswold commented there is a difference than using the party whose
determination has been appealed. The City Planner, nor
his attorney should be consulted; the Planning Commission acted properly in
referring their questions to the City Clerk or the City Manager.
Mayor
Pro Tempore Wythe called for a motion to include Mr. Klinkner’s
documents and his participation as the representative for the City Planner.
HOWARD/LEWIS
– MOVED TO INCLUDE THE BRIEF FILED ON NOVEMBER 4TH BY MR. KLINKNER.
HOWARD/LEWIS
– MOVED FOR A FRIENDLY AMENDMENT TO INCLUDE THE BRIEF FILED ON NOVEMBER 4TH
BY MR. KLINKNER AND TO ALLOW MR. KLINKNER TO TESTIFY AND REPRESENT (THE CITY
PLANNER).
There
was no discussion.
VOTE:
YES. HOWARD, HOGAN, LEWIS, ROBERTS, WYTHE, ZAK
Motion
carried.
Appellant
Griswold referenced three insightful questions raised on November 20th
to Attorney Levesque. There are inconsistencies with the code if we were to
follow the arguments of Attorney Klinkner. Less than four affirmative votes
would be in conflict of existing code.
Mr. Griswold would like all three questions addressed, especially the
third one pertaining to HCC 21.93.540(e) adopting findings of less than a
majority. He questioned how findings of fact could be adopted with less than a
majority of the seven-member Planning Commission if four affirmative votes were
required. It is a conflict in the Planning Commission decision and the code
needs to be addressed. Mr. Griswold
requested the questions be part of the record.
Attorney
Levesque confirmed the questions are part of the record. Mr. Levesque commented
in the years he has been practicing municipal law he finds inconsistencies. He
finds the same things in the Alaska Statutes; some have been ruled
unconstitutional by the court, but they are still there. When you give
deference to an administrative body you will not disturb what they say. You
look up to them as they are versed in issues with more knowledge than the
average person. If you don’t give deference you don’t pay much attention to
what they have done. He has not looked into that. He has been told to keep his
fees down. He can’t generate a lot of paper and send massive bills to the City.
Mayor
Pro Tempore Wythe noted those issues will be taken under advisement by the BOA.
Appellant
Griswold stated he has never been clear what authority the BOA has to hear oral
argument. In 1999 an ordinance came before Council with specific procedures for
oral argument. It was voted down. The
only provision in code is a catchall at the end when no other procedures are
prescribed you may do what is not contrary to code. There is a briefing process
and if you allow parties who did not brief issues to present arguments that
were not briefed it is prejudicial. Mr. Griswold wrote 30 pages of brief and if
parties that didn’t give substantial brief make new arguments it is not fair.
He wonders why oral argument is encouraged when there is a briefing process.
There is no procedure if parties file an inappropriate brief or no brief and
are allowed to participate. Refuge Chapel did not file an appropriate brief
with references to legal authority. All the information provided with their
brief is not in the record. The information they put with their brief was
communications with the City Planner. The evidence presented with the Refuge
Chapel brief is new evidence and does not address any points on appeal and is
not identified as a cross appeal. The Refuge Chapel brief should be stricken.
Attorney
Levesque commented that in Homer City Code reference to oral argument indicates
new evidence or changed circumstances are not allowed at this level. You are
having a hearing and can’t allow new evidence for changed circumstances. There
would be no need to have a hearing at all. You are giving parties an
opportunity to present oral argument. HCC 21.93.510 and 21.93.540 reference the
appeal hearing and the taking of testimony or other limited evidence. What is
going to happen if you can’t introduce new evidence or say that your
circumstances have changed? It is simply to present new evidence. Attorney
Levesque agrees with Mr. Griswold that matters that haven’t been briefed
generally are not allowed to be argued. The court is stricter and tends to be
more lenient with pro pers. Darren William’s appeal brief presents his
argument. The City Clerk has put it together in the packet and it is part of
the record.
Councilmember
Hogan asked about changed circumstance.
Attorney
Levesque noted an individual may present changed circumstances, but the BOA
hears only what was on the record before the commission.
Mayor
Pro Tempore Wythe recommended each side be allowed oral argument of 30 minutes
if needed. There was no objection from
the BOA. The case must be based by evidence in the record. Mr. Griswold, the
Refuge Chapel, and City Planner Abboud will have 30 minutes to make argument.
If time remains in Mr. Griswold’s 30 minutes, he may use it to respond to the Appellees.
Mayor
Pro Tempore Wythe called for a recess at 6:59 p.m. and reconvened the meeting
at 7:04 p.m.
ORAL
AGRUMENT
Appellant
Griswold stated the Planning Commission voted 2-3 to support the determination
of the City Planner. Two members sided with the City Planner. The Commission
was persuaded by City Attorney Klinkner that four affirmative votes are
required to pass a motion. Four affirmative votes are not required to fail a
motion. It is a valid vote under any circumstances and is puzzling how the
Planning Commission could not muster four affirmative votes, but came up with
four affirmative votes to adopt a non-decision. Three members who voted against
supporting the City Planner’s determination had to be persuaded by two who
voted against it. It is a wrong decision.
Mr.
Griswold stated there is no basis that the remand given to the Planning
Department would be moot if a determination was made. It is all being dealt
with as enforcement issue, as there is nothing on the property to enforce.
Until you have a CUP it is against city code to have people occupying a
structure. If someone were conducting a legal rooming house on their site,
there is nothing to preclude them from applying for a CUP to do something else.
Information was given to the Planning Commission that is totally unfounded. The
only way a remand would be rendered moot is if the Refuge Chapel withdrew their
application for a CUP.
In
Mr. Griswold’s view, the City Attorney came on board and saw a clever way of
avoiding a lot of paperwork and appeal hearings and said just call it a rooming
house. On the Refuge Chapel sign out front they call it a bunkhouse. Their
first application in late 2005 was for a men’s homeless shelter, which they
withdrew due to opposition. Now it is called a rooming house; they may have
just said it was a five-star hotel. For the City Attorney and City Planner to
say they can ignore code and have 15 people has no basis. If Council upholds
the determination it will set a precedent to manipulate things, undermining the
whole purpose of zoning.
23:23
time reserved for Mr. Griswold.
Darren
Williams, Refuge Chapel, said a prayer for the BOA, asking for peace, clear and
honest communication and guidance in wading through the issues and grace to do
what is right.
Appellee
Williams encouraged the BOA to make a decision on what is the right thing to
do, not what may be the easiest and to not let Frank bully them. Frank has
contested almost every decision on the Refuge Room; he has told Mr. Williams he
will continue to do so. It does not matter if the BOA upholds the City
Planner’s decision or requests a CUP, he will tie it
up with his minutia of the law. He will not head the issue straight on, as he
knows the Refuge Chapel has the right to operate. Whether the BOA decides to define them as a
boarding house or a homeless shelter, they have tried to adjust to what the
City said they needed to do to be legal. They just want to operate in a legal
way. They have a moral obligation to do what they are doing; they would like to
be legal to operate. Their first obligation is from a moral and religious
standpoint. Whether the BOA decides to define them as a boarding house or
homeless shelter each one is in the code of the Central Business District. That
does not matter to Frank. He will continue to tie up the BOA and the City with
minor points.
Frank
Griswold objected.
Appellee
Williams stated that everyone knows they provide a valuable service and relieve
crime. If they cannot figure out how to make it legal, he doubts Homer will get
another chance with the service they provide. They are not a homeless shelter.
They have charged each guest a nightly fee. They have generated income to
support the ministry of refuge from the boarding house and have helped men get
jobs. They pay taxes and support the city of Homer. They do not perpetuate
addictions, homelessness, or laziness. They help people that are having a hard
time getting on their feet by providing low cost housing.
Mr.
Williams stated they started the business six years ago and have found how to
do it more effectively and efficiently. They were a bunkhouse two years before
the City Planner identified them as a homeless shelter. The last CUP was for a
shelter, not a homeless shelter. They did not want to be called a homeless
shelter, but were told they have to. When the neighborhood circulated a
petition that is when they changed it to a men’s dormitory style bunkhouse. At
many meetings they have argued of not being a homeless shelter. He has worked
at different homeless shelters in L.A. and did not want to provide that kind of
service. Hiring a lawyer would put them thousands of
dollars in debt. They do have lawyers from the East coast that are monitoring
this to see the outcome.
Appellee
Williams asserted it is their right to operate as a business and a ministry. He
has asked Frank politely to drop this to let the City and the Refuge do their
job. He is now publicly asking Frank to drop this assault on the City and their
church. Although Frank may win the fight physically, ultimately he will lose.
He asked Frank to drop it for the poor people he is oppressing and for his
spiritual well-being. Valuable city services have been cut due to lack of
funding. These meetings cost thousands of dollars. It is a shame to think we
are spending money on this issue that could be funding important services in
Homer. He again asked Frank to stop the assault. He asked the BOA to rule on
behalf of the people of the city that need the service that the Refuge Room
provides. Psalm 41:1 and 19:17 were cited.
23.13
time reserved for Mr. Williams.
Tom
Klinkner, City Attorney, appeared on behalf of Rick Abboud, City Planner. The
Board is tasked with the same issue City Planner Abboud was, to interpret City
Code. The code defines and describes certain uses; it is the foundation for
determining whether a particular use is permitted in a particular zoning
district. The issue is not what someone as a lay person or a person selecting a
name for a business or activity chooses to name that activity. It is what the
activity is defined as in zoning rules. We are asking if it is a rooming house
as defined in city code. It is purely a question of law. The facts in the
matter are not in dispute. Facts in the original CUP precipitated the exchange
and it was remanded to Mr. Abboud for generation of a new staff report and
presentation to the Planning Commission. It was the springboard for taking
another look at that nature of the use and description.
Undisputed
facts are that the Refuge Room accommodates up to six guests and up to four
staff members, for a total of ten beds. Guests are charged $10 per night. In
addition to beds, the Refuge Room also provides access to kitchen, bathroom and
shower facilities. HCC 21.03.040 rooming house (focusing on the first two
sentences) definition was read: “Rooming house” means a dwelling containing not more than
five guest rooms that are used, rented, or hired out to be occupied for
sleeping purposes by guests. A rooming house shall not accommodate in
excess of 15 guests.” Breaking that down for purposes of the city zoning
ordinance, a dwelling is defined to consist of not more than five guest rooms.
It is used, rented or hired out to be occupied for sleeping purposes by guests.
It shall not accommodate in excess of 15 guests. The Refuge Room clearly meets
the last three of these four criteria. It does not contain more than five guest
rooms. It is used, rented, or hired out to be occupied for sleeping purposes by
guests and does not accommodate more than 15 guests.
Attorney Klinkner stated the last item that causes
contradiction, arising from the reference to the term “dwelling”, is the
definition of rooming house. Dwelling is defined as a building or portion
thereof, designed for residential occupancy by not more than one family and
includes facilities for sleeping, cooking, and sanitation. The first and third
of the elements fit the Refuge Room use. It is a building or portion thereof
and includes facilities for sleeping, cooking, and sanitation. The definition
of family is an individual, or two or more persons related by blood, marriage,
or adoption, or a group not to exceed six unrelated persons living together as
a single housekeeping unit. The first two items do not address the Refuge Room;
it is however, a facility to accommodate a group of unrelated persons living
together as a single housekeeping unit. The contradiction is the six guests as
defined as “family” and the rooming house definition that is not in excess of
15 guests. Which limit governs? Mr. Klinkner advised City Planner Abboud that
the maximum of 15 is the governing unit because that is the number specifically
attached to rooming house. The council presumably constructed the rooming house
definition for the purpose of regulating them. The statutory construction
supports and complements the above scenario. When you have a rule that is more
general in its application and one more specific in its application that
conflict with one another, you select the more specific applicable rule. If you
accept the more specific applicable rule the Refuge Room does fall in the
criteria of a rooming house. This is not a definition or result reached for
convenience. It is how the facility is defined and described in relation to the
zoning ordinance.
Attorney
Klinkner contended that the Board is presented with only a question of law. It
is very important, as ordinances governing the activities as a BOA, HCC 21.93.540(d) says that the BOA exercises its
independent judgment of law. It gives no deference to the decision Mr. Abboud
or the Planning Commission may have made. The Board is taking the
interpretation question as a matter of first impression, not deferring to any
higher decision or ruling relating to the question. It is significant because
of the concerns Mr. Griswold has expressed about the proceedings of the
Planning Commission. The Planning Commission’s action resulted in a decision.
That decision is entitled to deference by the Board of Adjustment. That
decision and its validity expand on importance. If on the other hand the Board
is making an independent and original decision, without reference to the
Planning Commission’s decision, the Planning Commission’s actions and
proceedings shrink significantly. The Planning Commission proceeded correctly.
Attorney
Klinkner acknowledged the defective notice to Mr. Griswold. The Planning
Commission took appropriate steps to cure the defect, by giving Mr. Griswold an
opportunity to review the proceedings online and another meeting for him to
attend and present his own position on the case. It was all he could have done
if he was physically present at the first meeting. Mr. Griswold was not
prejudiced by the defective notice.
Attorney
Klinkner stated the Commission correctly applied its own rules and procedure
and bylaws by determining without an affirmative vote of at least four members,
the Commission could not act as required by the bylaws. The Commission not
being able to act, Mr. Abboud’s decision stood.
REBUTTAL
Frank
Griswold commented he did not know prayer was allowed in oral argument. He is
surprised the Board allowed the personal attacks. It seemed to be prejudicial.
He tried to object and was surprised the Board’s attorney did not object.
Refuge Chapel asked the Board to do the right thing from a religious aspect.
The Board’s duty is to look at it objectively and not emotionally or
religiously; the Board needs to look at the law.
As
to Attorney Klinkner’s comments, Mr. Griswold doesn’t
think the remand was intended as a springboard for another look. The Board gave
specific instructions to the Planning Department to do a new staff report based
on the information in the record and on the application. He finds it
disingenuous that it was not done for convenience. The Planning Department
needed to follow the Board’s prior instructions, rather than taking it as a
carte blanche to do something else. We keep hearing about the inconsistencies
in the code. They only occur if you adopt Attorney Klinkner/Rick Abboud’s reasoning. If you adopt the Frank Griswold
reasoning, the code is consistent. Attorney Klinkner says which limit governs?
If they were not all meant to govern, they would not all be in the code. It is
not a multiple choice. The Board needs to look at the definition of homeless
shelter. If you read the code carefully it doesn’t say the Refuge Chapel must
provide meals; it says onsite meals must be provided. Refuge Chapel is not
required to administer showers, clients can shower themselves,
and use the kitchen facilities. He has not seen anything to say it is not a
men’s homeless shelter. It more clearly meets the definition of men’s homeless
shelter. The key is that secondary services must be provided. If it was
strictly a bunkhouse and no secondary services were provided, it would be a
flop house. There is nothing in city code to define flop house. It has now has
been decided by the City Planner and the City Attorney that it is not a
dormitory. Previously the Planning Commission ruled that it was a dormitory. If
the Planning Commission had ruled properly there would not have been an appeal.
Appellant
Griswold said it is not accurate to say you don’t have to look at some of the
issues. In addition to looking at the definitions, it is looking at the
procedures they followed. If the Planning Commission’s decision was wrong that
their 2-3 vote was not sufficient, if it was sufficient that would prejudice
Mr. Griswold as he would not have had to file the appeal or briefs.
Appellant
Griswold referenced the defective notice and the Planning Department’s failure
to tell him the hearing was going to take place. It is an ex parte
communication as the whole meeting took place without Mr. Griswold being there.
Mr. Griswold disputed the statement that the action was cured by giving him a
tape of the meeting and not letting him raise any of his procedural issues, or
cross examine the City Planner as is his constitutional right. He had the right to confront the City Planner
and ask him questions about the information he gave the Planning Commission.
Mr.
Griswold contended the City Planner has been protected tonight from testifying
before the BOA. He just gave his views for the Planning Commission from the
prepared City Attorney’s views. There are serious ramifications of that ruling.
A use that met with widespread public opposition and a neighborhood petition
opposing it could be granted with no public hearing.
Mr.
Griswold continued, the City Planner could say it is a men’s homeless shelter,
an allowed use. The Planning Commission adopting the definitions did not
foresee or contemplate what is trying to be legalized at 397 E. Pioneer Avenue.
From what he can tell from the minutes, the Planning Commission took one vote,
two upholding the City Planner’s decision and three against it. They had all
the time needed to take more votes. The Planning Commission did not do their
job. Mr. Griswold paid a $250 appeal fee to have his appeal decided. It is pure
tactical to say you need more than a majority of a quorum. Any court or APOC
says you need a majority of a quorum.
Appellant
Griswold told the Board they do not need a motion for something they are
obligated to do. There was no motion required tonight to start the quasi
judicial hearing. The reason for motions is for items not deemed important
enough for the body to consider, so you don’t waste your time.
Mr.
Griswold concluded the Planning Commission knew the job, had the duty to decide
the appeal, and should have stayed and made a decision. It is pertinent that
they wrote a decision. It took four votes to come to a non-decision. If they
can come up with votes to make a non-decision that supports the City Planner
when the majority of them did not support the City Planner, something is
dramatically wrong. Mr. Griswold trusts some of the Board will see through the
legalese; in his view the Board is being conned. He urged the Board to look at
the code and the definitions for homeless shelter and rooming house. If it
meets neither definition, the Board needs to err on the side of less offensive, rather than more offensive. The operations
at the Refuge Room and the Refuge Chapel are more offensive than a rooming
house.
Board
Member Hogan asked City Planner Abboud if a rooming house, homerless shelter,
hospital, group care home or dormitory were a conditional use or a permitted use.
City
Planner Abboud answered a rooming house was a permitted use. A homeless shelter
could be a conditional use. A hospital is a permitted use. Mr. Abboud did not
answer if a group care home or dormitory were permitted or conditional uses,
citing the absence of the code in front of him.
Board
Member Roberts asked City Planner Abboud of the decision on appeal that was
written on April 9, 2009.
Mr.
Abboud affirmed that he eliminated rewriting (CUP)07-02
because he viewed it as a rooming house.
Board
Member Roberts referenced a question from Planning Commissioner Kranich to City
Manager Wrede, “Would the Planning Commission need to take any official action
to confirm that the CUP is moot other than to adopt the Planner’s
recommendation?” The answer says, “The Commission is considering an appeal of
the action taken by the City Planner so the Commission should handle this like
any other appeal. If the Commission ultimately upholds the Planner’s decision
that it would prepare written findings or record of decision.” Ms. Roberts
asked City Planner Abboud where the written findings or record of decision
were.
City
Planner Abboud answered they were on page 27 of the Supplemental Record of
Appeal. The Planning Commission’s decision is on page 3.
Board
Member Lewis asked why Mr. Griswold was not notified of the meeting.
City
Planner Abboud answered that a notification was issued with the wrong date.
There were supposed to be special notices issued to Darren and Frank
independently of the whole neighborhood. The whole neighborhood, everybody
within 300 ft., was noticed and nobody showed up. They received the notice with
the proper date.
Board
Member Roberts asked Mr. Griswold about the remand of the decision back to the
Planning Commission from the Board of Adjustment. Ms. Roberts stated it was
remanded for a new and complete consideration after completion of a new staff report.
It was without the participation of Planning employee
Dotti Harness who had a disqualifying conflict of interest. She asked if
someone with a conflict of interest could misjudge something or make a mistake.
Mr.
Griswold answered those are the Board’s rules and you are asking him to second
guess the Board’s decision. This is new testimony and is not appropriate. He
understands the response of City Planner Abboud, but can guarantee he was not
given any notice of that meeting. They held that meeting without notifying the
parties. It would be moot and does not apply to this.
Mayor
Pro Tempore Wythe thanked the participants and concluded the oral arguments.
Deliberations of the Board will commence and continue from time to time as
necessary until completed.
Board
Member Wythe called for a motion to go into Executive Session for the purpose
of deliberating and deciding this appeal.
ROBERTS/LEWIS
– MOVED.
There
was no discussion.
VOTE:
YES. ZAK, HOWARD, HOGAN, LEWIS, ROBERTS, WYTHE
Motion
carried.
The
Board adjourned at 7:53 p.m. and reconvened at 9:22 p.m.
Board
Member Roberts stated they met with their attorney and after considerable
discussion they provided him with direction. They plan to continue
deliberations in the future and will notify the parties when a determination
has been made.
Board
Member Wythe called for a motion to adjourn the public portion of the Board of
Adjustment.
HOGAN/LEWIS
– SO MOVED.
There
was no discussion.
VOTE:
YES. NON OBJECTION. UNANIMOUS
CONSENT.
Motion
carried.
Adjourned at 9:23 p.m.
Mayor
Hornaday resumed the gavel at 9:23 p.m.
B. Memorandum
09-156, from City Clerk, Re: Request for Executive Session Pursuant to AS §44.62.310(C)(3),
Matters, Which by Law, Municipal Charter, or Ordinances are Required to be Confidential. (Ethics Complaint No. 2009-01.)
Mayor
Hornaday called for a motion for the approval of Memorandum 09-156 for
Executive Session.
WYTHE/LEWIS
– SO MOVED.
There
was no discussion.
VOTE:
YES. WYTHE, ZAK, HOWARD, HOGAN, LEWIS, ROBERTS
Motion
carried.
Council
adjourned to Executive Session at 9:24 p.m. and reconvened at 9:52 p.m.
Mayor
Pro Tempore Wythe stated Council met and discussed the merits of the Ethics
Complaint 2009-01 and is directing the City Clerk to give appropriate notices
to proceed with an investigation.
COMMENTS
OF THE AUDIENCE
There were no public comments.
COMMENTS
OF THE
City
Attorney Klinkner had no comment.
COMMENTS OF THE
City
Clerk Johnson had no comment.
COMMENTS OF THE
City
Manager Wrede had no comment.
COMMENTS OF THE MAYOR
Mayor
Hornaday had no comment.
COMMENTS OF THE
Councilmembers
Hogan, Howard, Lewis, Roberts, Wythe, and Zak had no comment.
ADJOURNMENT
There
being no further business to come before the Council, Mayor Hornaday adjourned
the meeting at 9:53 p.m. The next Regular Meeting is scheduled for Monday,
December 14, 2009 at 7:00 p.m. The next Committee of the Whole is scheduled for
Monday, December 14, 2009 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:
______________________