Session 07-19 a Special Meeting of the Homer City Council was called to order on September 10, 2007 at 5:42 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, NOVAK, ROBERTS, SHADLE, STARK, WYTHE

STAFF: CITY CLERK JOHNSON

CITY ATTORNEY TANS

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

Agenda was approved by consensus of the City Council.

Board of Adjustment Hearing – Frank Griswold/Robert and Pamela Brant, Regarding Oscar Munson Subdivision Brant Replat Preliminary Plat Lots 90 and 95 (Remand from Superior Court).

An appeal by Frank Griswold of a January 19, 2005, decision by the Planning Commission to approve the preliminary plat for Oscar Munson Subdivision Brant Replat. The matter was previously considered by this Board in 2005, at which time the Board dismissed the matter for lack of jurisdiction. Mr. Griswold appealed to the Superior Court, which reversed the Board’s decision and remanded the matter back to the Board for a decision on the merits.

Parties are Robert and Pamela Brant, property owners, and Frank Griswold, appellant. Only Mr. Griswold entered an appearance in this matter. Mr. Griswold was called and allotted 30 minutes to present preliminary matters and oral argument.

Frank Griswold stated he had no oral argument, only preliminary matters. Mr. Griswold stated any Board of Adjustment member that had a financial conflict of interest or personal interest should disclose them. Any ex-parte communications taking place since the previous hearing in 2005 should be disclosed. No conflict of interest or bias issue should be decided on the basis of whether the potentially conflicted BOA member thinks he can participate impartially, as it is impossible to prove what someone thinks. There is no exclusion under Homer City Code for City officials who think they can put their bias aside and participate impartially. Posing the question of what a City official thinks is meaningless and fosters the appearance of impropriety when the official invariably votes in his own best interest. Conflict of interest rulings should be made by the BOA; not by the Chairman. Mr. Griswold referenced HCC 1.12.070 and HCC 1.12.040.

Mr. Griswold stated if the BOA decides either Planning Commissioners Hess or Connor participated with a disqualifying conflict of interest, remedy should be sought in the laws on the books at the time the illegal participation took place. HCC 21.68.090(b) applies to appeal procedures and should apply to Planning Commission procedures since there is no more applicable provision in City Code. Actions of the Planning Commission should be invalidated re: HCC 21.68.090(b) and the Commission should undertake de novo (re)consideration of the Brant matter beginning where the disqualified members participation began, which would be the vacation of a portion of the alley right-of-way.

Mr. Griswold stated he was disappointed to see unanimous BOA approval of a baseless and cowardly decision. The BOA may have received sound legal advice and ignored it, although this doesn’t seem to be the case. Legal advice should not be blindly accepted if you are not prepared to defend a position in court. It causes unnecessary expense and delay and benefits no one except the City Attorney.

WYTHE/NOVAK – MOVED THAT WE GO INTO EXECUTIVE SESSION FOR THE PURPOSE OF DELIBERATION AND DECIDING THIS APPEAL.

There was no discussion.

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

Motion carried.

Mayor Hornaday called for a motion to adjourn the public portion of the Board of Adjustment meeting so that deliberations can continue in Executive Session.

SHADLE/WYTHE – SO MOVED.

There was no discussion.

VOTE: YES. NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

ADJOURNMENT

There being no further business to come before the Board of Adjustment, Mayor Hornaday adjourned the meeting at 5:50 p.m. The next Regular Meeting is scheduled for Monday, September 24, 2007 at 7 p.m., Committee of the Whole at 4 p.m., Special Meeting at 5 p.m. and Joint Worksession with the Planning Commission at 5:30 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: _____________________