Session 05-29, a Special Meeting of the Homer City Council was called to order 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: HEIMBUCH, McLAY, NOVAK, SHADLE, STARK, WYTHE.

STAFF: CITY CLERK CALHOUN

CITY MANAGER WREDE

CITY ATTORNEY TANS

Department Heads may be called upon from time to time to participate via teleconference.

The Council met as a Committee of the Whole from 4 p.m. to 5:26 p.m.

AGENDA APPROVAL

Approved by consensus of the City Council.

PUBLIC COMMENTS ON EXECUTIVE SESSION ONLY

Public Comments upon Executive Session only.

There were no public comments.

Mayor Hornaday recessed the Special Meeting at 5:32 p.m.

Call the Board of Adjustment to order at 5:33 p.m.

APPEALS - BOARD OF ADJUSTMENT HEARINGS

A. Frank S. Griswold, Appeal to the Board of Adjustment Regarding Conditional Use Permit 05-11, Foster/Harness.

Mayor Hornaday noted that this case is being heard as an appeal of the Planning Commission's actions on Conditional Use Permit 05-11 under the procedures of HCC Chapter 21.68.

There have been no notices of appearance filed. Mr. Griswold filed a written brief. Mr. Griswold's written Notice of Appeal is included in the record.

Mayor Hornaday called the parties forward, asked them to take a seat and to identify yourselves for the record.

Frank Griswold came forward and identified himself, as the appellant, for the record.

There were no other parties present.

The Mayor stated that the record on appeal consists of 74 pages plus notices, Mr. Griswold's written brief and a letter dated September 27, 2005, supplemental pages as prepared by the City Clerk's Office.

Mayor Hornaday asked if there were any Preliminary matters that need to be addressed before considering the substance of this appeal?

Mr. Griswold stated that he had some and commented about his objections to the inclusion of pages 71 through 74, noting that the dates on the documents on these pages were well after the Planning Commission meeting, therefore, constituted new evidence and are a totally different issue.

Mayor Hornaday noted that City Attorney and Staff agree that pages 57, 58, 71 and 73 and 74 should probably be stricken from the record, because those pages were not considered by the Commission prior to its action on the CUP.

WYTHE/NOVAK - MOVED TO STRIKE PAGES 57, 58, 71, 73 AND 74 FROM THE RECORD.

There was no discussion.

VOTE: NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

Oral Arguments. The Mayor stated that Oral arguments may be allowed if helpful and that he is of the opinion that oral argument is helpful. The Board of Adjustment concurred and allowed oral arguments. Ten minutes were allowed.

Frank. S. Griswold clarified that he did not object to pages 57 and 58, stating that the pages do seem to pertain to the issue and seem germane. He commented about writing to the City Clerk inquiring where the documents on these pages came from and that he thought that all of the pages should be included that go with pages 57 and 58. ⁽¹⁾

Mr. Griswold argued against allowing oral argument, noting that he does not see where the Code allows it. He commented that in 1999 the Council had an opportunity to include oral argument in the provisions for Board of Adjustment and declined to do so. He commented that the Code says that parties who don't file briefs have no right to give oral argument, that 21.68.074 says that the taking of testimony or other evidence shall be governed by section 21.68.065 and that 21.68.065(b).

The Mayor interrupted Mr. Griswold and inquired if Mr. Griswold were going to make oral argument.

Mr. Griswold asked for a determination from the Board and that he does not believe.

The Mayor interrupted Mr. Griswold and stated that if Mr. Griswold does not want to make an oral argument, then he should not make an oral argument.

Mr. Griswold asked for it to be clarified if this is a proper procedure, which is his point.

The Mayor ruled that this is a proper procedure and encouraged Mr. Griswold to make an oral argument unless he does not want to.

Mr. Griswold pointed out that the Alaska Supreme Court said that the powers of the Board of Adjustment are strictly limited to those prescribed in the Ordinance, case of City and Borough of Juneau versus Thibodeau. He stated that the current City Code does not provide for oral argument, that the Code implies that the taking of testimony or new evidence are improper and that he, therefore, is going to follow the City Code. He encouraged the Board to make their ruling based on his notice of appeal and the brief memo.

Mayor Hornaday asked the Board if they wanted to make a new ruling to allow pages 57 and 58.

There was no action or comment from the Board.

Mayor Hornaday stated that deliberations will commence as time allows tonight and from time to time as necessary until completed. The board may wish to consider combining deliberations for this item and the following item. If so then that motion may be made under the Blackwell appeal.

A written decision will be prepared and issued to the parties after deliberations are completed.

The second item before the Board follows.

Boardmember Beth Wythe advised of a bias regarding the Blackwell appeal and responded to the Mayor's inquiry that this may affect her ability to be fair and impartial.

The Mayor excused Ms. Wythe from the Blackwell appeal hearing.

Boardmember Wythe left the Council table. Note: She will also not be participating in any deliberations in Executive Sessions on the Blackwell appeal.

Mayor Hornaday, in the light of full disclosure, thought that he might have done some work for mr. Blackwell years ago and, therefore, inquired of Mr. Blackwell if he had done some work for Mr. Blackwell many years ago.

Mr. Blackwell responded in the negative.

B. Don L. Blackwell, Appeal to the Board of Adjustment Regarding PL 05-95, for Acceptance of a Non Conforming Use for a Building Located at 1440 East End Road, Lot 5 of Mutch-Gangle Tract Neptune Addition Subdivision.

Mayor Hornaday stated that this case is being heard as an appeal of the Planning Commission's Actions on a non conforming use under the procedures of HCC Chapter 21.68.

Mr. Blackwell filed a notice of appearance and a written brief. Mr. Blackwell's written Notice of Appeal is included in the record.

Mayor Hornaday asked the parties to please come forward, take a seat and to please identify themselves for the record.

Don Blackwell identified himself as the appellant as he took his seat.

There were no other parities present.

Mayor Hornaday stated that the record on appeal consists of 40 pages plus notices, Mr. Blackwell's notice of appearance and written brief, supplemental pages as prepared by the City Clerk's Office.

There were no Preliminary matters.

The Board of Adjustment allowed ten minutes for oral arguments.

Mr. Blackwell noted that he had submitted a written brief. He expressed his concern that not all of his street address file information had been provided to the Planning Commission.

Councilmember Heimbuch inquired about the Planning Commission meeting that the Commission was disposed to grant the non conforming use and that sometime during the course of the meeting this changed. He also asked if Mr. Blackwell had gone through the minutes or if he has a recollection of the meeting that could shed some light on how that went that night?

Mr. Blackwell stated that he did not attend the meeting, that he was advised by a Planning Department Staff member that his request was a "no brainer rubber stamped". He did confirm that his non conforming use appeared to start out approved and then changed later on.

Mayor Hornaday advised that deliberations will commence as time allows tonight and from time to time as necessary until completed. The board may wish to consider combining deliberations for this item and Mr. Griswold's appeal, as first heard.

There were no objections.

A written decision will be prepared and issued to the parties after deliberations are completed.

NOVAK/McLAY - MOVED TO GO INTO EXECUTIVE SESSION. (On both appeals)

VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

Mayor Hornaday recessed the Board of Adjustment at 5:45 p.m. and called the Special Meeting back to order at 5:46 p.m .

NEW BUSINESS

A. Memorandum 05-170, from City Clerk, Re: Request for Executive Session AS § 44.62.310(C)(1), Matters, the Immediate Knowledge of which would Clearly have an Adverse Effect upon the Finances of the Government Unit and Attorney-Client Privilege. (Griswold VS. City of Homer, Initiative Election - to Limit the Size of Buildings Used Primarily for Retail and Wholesale Business in the CBD, GCI and GC 2 Districts to 66,000 Square Foot of Foot Print Area.)

Recommendation: Approve the above request for Executive Session and conduct after the Board of Adjustment Executive Session Deliberations in the Conference Room without coming back to Council Chambers before the conduct of this Executive Session so that Council may move from the Board of Adjustment Executive Session directly into this Executive Session.

McLAY/NOVAK - MOVED FOR THE APPROVAL OF THE RECOMMENDATION OF MEMORANDUM 05-170 INCLUDING INVITING THE CITY CLERK TO THE EXECUTIVE SESSION REGARDING THIS MATTER.

There was no discussion.

VOTE: YES: NOVAK, HEIMBUCH, McLAY, WYTHE, SHADLE, STARK.

Motion carried.

Mayor Hornaday recessed the Special Meeting to Executive Session at 5:48 p.m. and reconvened the Special Meeting and Board of Adjustment simultaneously at 6:43 p.m.

Mayor Pro Tempore McLay stated that the Board, in relation to these appeals, will continue discussion on this and there will be written information forthcoming to the public.

Mayor Pro Tempore McLay stated that the Council gave direction to the City Attorney, that they are looking for some more information, that they will continue this discussion and that no decision has been made at this time.

COMMENTS OF THE AUDIENCE

Audience may comment on any matter.

There were no audience comments.

COMMENTS OF THE CITY ATTORNEY

City Attorney Tans had no comment.

COMMENTS OF THE CITY CLERK

City Clerk Calhoun had no comment.

COMMENTS OF THE CITY MANAGER

City Manager Wrede had no comment.

COMMENTS OF THE MAYOR

Mayor Hornaday had no comment.

COMMENTS OF THE CITY COUNCIL

Councilmembers had no comments.

ADJOURNMENT

There being no further business to come before the Council, Mayor Hornaday adjourned the meeting at 6:45 p.m.

The Regular Meeting follows at 7 p.m.

The next Regular Meeting is scheduled for Monday, November 14, 2005 at 7 p.m. and the next Committee of the Whole is scheduled for Monday, November 14, 2005 at 4 p.m.

All meetings scheduled to be held in the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

____________________________________________

MARY L. CALHOUN, CMC, CITY CLERK

Approved: ________________________________

1. The document on these pages indicate that it is page 3 of an eight page document.