Session 07-12, a Special Meeting of the Homer
Advisory Planning Commission was called to order by Chair Kranich at
PRESENT: COMMISSIONERS
CHESLEY, HESS, HOWARD, KRANICH, MINSCH, ZAK
ABSENT: COMMISSIONER
FOSTER (Excused)
STAFF:
DEPUTY
Commissioner Chesley queried the City Attorney
regarding the Conditional Use Permit (CUP) application. Mr. Chesley noted that
the 2nd paragraph of the decisions and findings states the
application seeks approval for the use under
Chair Kranich noted for the record that the City
Planner and City Attorney were present.
AGENDA
APPROVAL
The agenda was approved by Consensus of the
Commission.
PUBLIC
HEARING
Chair Kranich advised the audience that comment on
any items other than the points of appeal are not allowed. He explained that parties to the action are
not considered public.
Chair Kranich opened the public hearing. There were
no public comments. Chair Kranich closed the public hearing.
Chair Kranich explained that the he would now take
evidence from the involved parties. He explained that they will not take oral
arguments as part of the presentation of evidence. Each party is allowed 30
minutes to present evidence. Then they will be allowed time for rebuttal or
oral arguments after all the evidence has been presented by all parties.
Mr. Griswold questioned if preliminary matters such
as conflict of interest, ex parte, and Commissioner participation count against
his 30 minutes. Chair Kranich ruled they did not.
Mr. Griswold asked who the City Attorney is
representing. He explained that City Attorney Tans is currently involved in a
matter very closely related to this and is representing the Board of
Adjustment. City Attorney Tans is also involved in ongoing litigation against
me (Mr. Griswold). He does not believe City Attorney Tans w
Chair Kranich responded that City Attorney Tans is
present at the Chair’s request to assist the Commission in Code interpretations
and will not be party to the deliberations after the hearing.
Mr. Griswold and Chair Kranich discussed the City
Attorney’s role in the meeting. City Attorney Tans stated that he is not here
as council for the Administration or Ms. McKibben. He is here at the request of the Chair to
give advice to the Commission as best he can on the matters that come before
them procedurally and substantively without advocating a position for or
against any of the parties. Mr. Griswold suggested the Commission vote as to
whether or not the City Attorney should represent the Commission when he is
already representing the Board of Adjustment (
Mr. Griswold explained that the City Attorney’s
advice to the Board of Adjustment was not impartial. He noted that when he
alleged a conflict of interest, City Attorney Tans’ advice was to just ask the
person if they think they have a conflict of interest, rather than the
Chair Kranich and Mr. Griswold discussed whether
actions in other venues have bearing on Mr. Griswold’s appeal. Mr. Griswold
expressed the following points:
·
If
City Attorney Tans has shown a prejudice against him in a similar matter, then Mr.
Griswold has reason to bring it up in this matter.
·
City
Attorney Tans also made a statement that, when Matt Shadle made a comment in
support of Refuge Chapel because it was in a similar but not the same CUP that
it was irrelevant, and that’s not supported by case law and Matt Shadle’s
comment went into the staff report for this CUP.
Mr. Griswold didn’t think City Attorney Tans would
have given that advice if the appellant were someone else. Mr. Griswold stated that
he does not feel he w
There was discussion regarding City Attorney Tans’
role and points were noted as follows:
·
City
Attorney Tans is not representing City Planner McKibben, nor would he represent
her in a future action regarding this appeal.
·
The
Commission will have to rule on Mr. Griswold’s objection.
·
In
his role as City Attorney, Mr. Tans does not make rulings, he gives advice.
·
City
Attorney Tans and Mr. Griswold have different views of zoning law and do
disagree on issues, but it does not indicate that City Attorney Tans is bias or
impartial.
·
Mr.
Griswold will have the opportunity to argue against City Attorney Tans’ advice
tonight as is his right.
·
City
Attorney Tans’ client is the City and while the City Planner is an employee,
the City has many constituent parts. He cannot represent multiple heads at the
same time, thus he cannot represent the administration’s decision and give
independent council to the Commission.
·
Mr.
Griswold assumes that if this goes to appeal, the City would have to hire
another attorney for that matter.
Mr. Griswold questioned whether the City Attorney
advised the City Planner in any way on anything involved in this appeal, including
the permit at issue. City Attorney Tans
said not to his recollection.
CHESLEY/HESS I WOULD LIKE TO MAKE A MOTION TO
CLARIFY THE RECORD THAT WE ACKNOWLEDGE MR. GRISWOLD’S OBJECTIONS TO
There was no discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion carried.
Mr. Griswold stated his second preliminary matter.
He believes Chairman Kranich has a conflict of bias or situation of personal
interest. Reasons:
·
When
Mr. Griswold testified at a previous hearing he was physically and verbally
interfered with at the podium and the Chairman took no action[1].
While it may be hidden, it shows a bias.
·
Chair
Kranich may be ruling on ex parte. He has made a statement at a previous
meeting when Commissioner Chesley claimed a conflict of interest in a business
association. Chair Kranich responded that he could avoid an appearance of
impropriety by keeping those personal business relationships a secret, because
if the public doesn’t know about it, there won’t be an appearance of
impropriety.
While Mr. Griswold was stating this allegation, Chair
Kranich asked what the date of the meeting was that Mr. Griswold was referring
to and questioned if it was in the minutes of that meeting. Mr. Griswold said
yes and that he stated his objections during that meeting. Mr. Griswold said he
didn’t have the date of the meeting. Chair Kranich said Mr. Griswold’s comments
were unfounded and said if Mr. Griswold provides evidence of his accusations,
they would be weighed. Otherwise it is hearsay and hearsay is not evidence.
Mr. Griswold argued that hearsay is a legal term.
Mr. Griswold said his testifying that he heard Mr. Kranich make those comments
is not hearsay. Mr. Griswold said that Mr. Kranich could deny that he made the
statement. Chair Kranich said he is not denying he said it, he is asking Mr.
Griswold to show him that he said it.
Commissioner Chesley stated that at this point in
the proceeding the Commission is not in the evidentiary portion of the meeting.
He suggested that Mr. Griswold be allowed to complete his preliminary arguments
about the suitability of the Commissioners to sit here tonight. Mr. Chesley
said he didn’t believe it is a fair requirement to ask Mr. Griswold to produce
records of the minutes where he is making these allegations. When Mr. Griswold
is finished the Commission can make a decision based on the allegations,
whether the Commission believes that Chair Kranich has a conflict and should
serve as Chair of the meeting tonight.
Mr. Griswold continued with his reasoning that he
believes Chairman Kranich has a conflict of bias or situation of personal
interest:
·
A
recent incident where Chair Kranich and Commissioner Foster attended a meeting
at the request of the Mayor of Kachemak City. They had ex parte communication
there and made little of it at the Planning Commission meeting.
·
Chair
Kranich’s step daughter-in-law serves on the City Council. If this does go to
appeal the Commission should consider the fact that she may be disqualified if
Mr. Kranich participates.
Mr. Griswold doesn’t believe he is going to get a
fair shake with Mr. Kranich as Chairman and if the Commission thinks he is
making it up they can choose not to give credence to Mr. Griswold’s testimony.
Mr. Griswold noted a comment from the Board of Adjustment meeting minutes “She (Councilmember Wythe) stated Mr. Kranich
and she take great lengths to insure they do not create a potential bias.”
Mr. Griswold asked Chair Kranich what steps they take to not create a potential
bias. Chair Kranich responded that as a norm, they do not discuss City issues.
Mr. Griswold asked how he would know that Mr. Kranich doesn’t just say that to
avoid appearance of impropriety, as he stated at a Planning Commission meeting.
It is something that is unverifiable.
Mr. Griswold asked Chair Kranich to explain why he
allowed Mr. Williams to darn near bump Mr. Griswold out of his chair and over
speak Mr. Griswold and not raise any objection. Mr. Griswold said he was the
one who had to object to it while Chair Kranich sat there and did nothing. He
asked why Chair Kranich would not protect a member of the public while they
speak.
Chair Kranich responded that he did object to it. Chair
Kranich said he about fell out of his chair the same as Mr. Griswold at the
actions of a public member. He said he
was totally flabbergasted himself. Chair Kranich said he called for a point of
order. He said he used the wrong term, but he has never been a chairman and had
something like that happen in a meeting.
Commissioner Chesley called for a point of order
and explained to Chair Kranich that he did not believe that it was appropriate to
continue the dialogue back and forth about what he did and didn’t do. Mr.
Griswold can make his allegations and the Commission can vote on whether Chair
Kranich should pass the gavel, and then continue on if there are other
allegations. Commissioner Chesley stated that the interrogation needs to be
done by the Commission if they need to clarify any allegations that Mr.
Griswold has made.
There was discussion regarding procedure and how to
continue. City Attorney Tans noted that this discussion is not regarding
conflict of interest as there is no financial interest involved. This involves
issues of bias, impartiality, and prejudice. A ruling still needs to be made.
Mr. Griswold’s final point is regarding the permit.
The permit is granted as a result of CUP 07-03 and Mr. Kranich’s participation
in that is an issue. There are a lot of reasons altogether which indicate that
Mr. Kranich’s participation would taint the proceedings. Mr. Griswold noted
HAPC bylaws item g, which references personal interest.
Mr. Griswold added that during the Board of
Adjustment hearing Councilmember Shadle mentioned that his mother attends
services at the Refuge Chapel and it would be important to know if any
Commissioners have any connection with the Refuge Chapel through their
families.
Chair Kranich passed the gavel to Vice Chair
Minsch.
CHESLEY/HESS I WOULD LIKE TO
There was brief discussion for clarification.
CHESLEY/HESS I WOULD LIKE TO MAKE A MOTION TO AMEND
MY ORIGINAL MOTION TO STATE IN THE AFFIRMATIVE THAT MR. KRANICH DOES HAVE A
CONFLICT
City Planner McKibben read item G from the bylaws
regarding conflict of interest to the Commission.
Chair Kranich stated that he has participated in
several actions pertaining to the Refuge Chapel. He has had no contact with members
of the Refuge Chapel and no extension of his step family attends or participates
at the Refuge Chapel. None of his immediate family reside in Homer. He came to
the meeting tonight with his packet and Code book as his basis for being here
and deliberating on this topic. The only outside information he brought in is a
copy of the Advisory Planning Commission policy for review of appeals, which
addresses procedural matters to conduct this appeal. It is very vague and that is
why he requested the City Attorney attend. He stated he has had no
communications with the members of the Refuge Chapel and no communications with
the City Planner regarding this. He did communicate with the City Manager in
carrying on the feelings of the other Commissioners that they would like to
have some type of legal representation here to assist the Commission in Code
interpretation. He did not discuss the matters of appeal with the City Manager.
He has had no other communication with the other Commissioners other than the
request to have legal council here.
VOTE: (Primary amendment): YES: HOWARD, MINSCH,
HESS, CHESLEY, ZAK
Motion carried.
There was no further discussion on the main motion
as amended.
VOTE: (Main motion as amended): YES: CHESLEY,
HOWARD
NO:
MINSCH, ZAK, HESS
Motion failed for lack of majority.
Mr. Kranich resumed the Chair.
Mr. Griswold stated that his final preliminary
matter is an issue with the public notice. He said he provided a letter to the
City Clerk’s office that encapsulated his objections and requested his concerns
be brought to the attention of the Planning Commission, City Manager and all
parties of interest.
The Commission did not recall receiving a copy of
Mr. Griswold’s letter so he read it into the record.
I am in receipt of the
Public Notice dated
Mr. Griswold suggested that if the notice were
correct it is possible that there would have been members of the public in
attendance to testify. He had hoped the notice would have been corrected and
re-sent.
There was discussion on how to proceed on this
preliminary matter.
CHESLEY/HESS I
There was brief discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT
Motion carried.
The meeting recessed at
Copies of the notice dated
Mr. Griswold said it is not his intent to delay
this meeting, but one of the main points of appeal was not included in this
public notice. The notice makes statements that are not true, lists lots that
are not included, and says the use is conditionally approved by permit that is
not final. He doesn’t know who wrote it and it would very interesting to see if
this is a deliberate attempt to change history. When he received the notice he
immediately brought this to the attention of the parties and apparently someone
dropped the ball. There was plenty of time to re-advertise and send out a
corrected notice.
Concerns were expressed regarding the potential for
appeal because of improper notice.
Deputy City Clerk Jacobsen commented that it is
clear that the public notice does not include both of the points of appeal that
Mr. Griswold has referenced in his notice of appeal. She suggested that the
Commission should make a determination whether or not the notice is sufficient.
It is obvious in the notice that an appeal has been scheduled and what it is
regarding, but Ms. Jacobsen said she could not make the determination if it was
sufficient, the Commission needs to do that through a motion.
Commissioner Chesley questioned City Attorney Tans
regarding notice. They reviewed
b. The notice shall contain at least the following
information:
1. A brief description of the proposal on
which the public body is to act;
2. A legal or common description of the
property involved;
3. Date, time and place of the public
hearing;
4. Person and place to contact for more
detailed information.
Discussion points included:
·
The
notice appears to be deficient in that there is no contact information included.
It was noted that it is on planning and zoning letterhead, but does not specify
a person to contact.
·
The
Commission needs to determine if the description of the proposal is deficient.
·
Whether
the appeal is valid, in that it appears to have been filed after the 14 day
deadline.
·
The
City Clerk has determined the appeal is valid.
·
The
person who filed the appeal has raised issue with the validity of the public
notice which should carry a lot of weight in this instance.
·
It
w
HESS/CHESLEY I WOULD LIKE TO MAKE A MOTION THAT WE
POSTPONE THIS PROCEEDING UNTIL SUCH TIME AS THE PUBLIC NOTICE CAN BE REDONE TO
CONTAIN
Point was raised that some of the allegations are
of a personnel nature, versus appeal of City process. Discussion ensued
regarding what information needs to be included. City Attorney Tans suggested
using the text for the notice that is the caption Mr. Griswold used on his May
21 notice of appeal.
Mr. Griswold concurred with using that information
for the notice. He commented that he did not believe that the parties whose
actions are being challenged should be preparing documents that could affect
the outcome of the hearing.
It was suggested that it is appropriate to include
the four points of appeal in the public notice as the information is already
available to the public through the appeal record.
CHESLEY I CALL FOR THE QUESTION.
There was no discussion.
VOTE: YES: HESS, CHESLEY, HOWARD
NO:
ZAK, MINSCH, KRANICH
Motion failed for lack of majority.
Further discussion ensued regarding the notice. The
title suggested by the City Attorney includes what the appeal is about and
would be adequate. Deputy City Clerk Jacobsen noted that customarily the public
notice of an appeal states what is being appealed, not the points of appeal.
Point was raised that it would be appropriate to list the tax parcel number and
address included in the notice that appears on the May 21 communication.
HESS/HOWARD I
There was brief discussion regarding what to
include.
CHESLEY/HESS I WOULD
There was no discussion.
VOTE (Secondary Amendment): NON OBJECTION:
UNANIMOUS CONSENT.
Motion carried.
There was no discussion.
VOTE: (Primary amendment as amended): NON
OBJECTION: UNANIMOUS CONSENT.
Motion carried.
There was no further discussion on the main motion
as amended.
VOTE: (Main motion as amended): YES: MINSCH,
KRANICH, HESS, CHESLEY, HOWARD
NO:
ZAK
Motion carried.
Mr. Griswold asked for clarification regarding
whether the new public notice w
Mr. Griswold raised issue that it needs to be
established who prepared the record and the public notice. It needs to be
established whether City Planner McKibben constitutes a Planning Director. It
is Mr. Griswold’s understanding that Homer does not have a Planning Director
and if it does have a Planning Director it’s Max Best[2]
and Mr. Griswold does not believe that Max Best prepared the record.
City Attorney Tans clarified that the Planning
Director’s functions may be performed by staff members. Delegations of
authority are allowed. If there is something Mr. Griswold believes is missing
from the record he should let the Commission know.
There was further discussion regarding the
appropriateness of the City Planner to prepare the record when her actions are
under consideration. Point was raised that the City Manager holds the position
of the highest planning official within the City of
CHESLEY/HESS I WOULD LIKE TO MAKE A MOTION THAT THE
RECORD OF APPEAL BE REVIEWED
It was noted that this would apply an extra level
of scrutiny to the record to remove any bias and would serve them in the long
run.
VOTE: YES: KRANICH, CHESLEY, HOWARD
NO:
ZAK, HESS, MINSCH
Motion failed for lack of majority.
Mr. Griswold commented regarding earlier comments
that that the appeal may be invalid because of timeliness. He noted that it was
deemed valid by the City Clerk’s office and it isn’t up to the Commission to
decide. There was discussion regarding timeliness.
Deputy City Clerk Jacobsen reminded the Commission
that they postponed action on this until it could be properly noticed and
questioned if it is appropriate to continue discussion.
Chair Kranich closed discussion and moved on to
Audience Comments.
COMMENTS OF THE AUDIENCE
Mr. Griswold provided copies of the evidence that
he intended to present tonight so it could be provided as a supplement for the
next meeting.
John W
COMMENTS OF THE COMMISSION
Commissioner Zak commented that there was a request for an extension to file an appeal, but he does not see where the extension was granted. In the future he would appreciate having the information regarding the extension included.
Commissioner Minsch requested clarification for the next meeting how the Planning Commission is to make a determination about the City Planner deliberately withholding information.
Commissioner Chesley thanked the Commissioners for
all the things they struggled with tonight trying to come up with the best
course of action. He requested that the
Commission have counsel the next time this comes together so they can receive
legal advice and not just code interpretation.
Commissioner Hess concurred with Commissioner
Chesley. He wanted to point out regarding the notice from the Clerk’s office,
that this in no way an indictment against the work that the Clerk’s Office
does. It is just an oversight that was not intentional but it is important to
get these details correct.
Deputy City Clerk interjected clarification that
the Clerk’s Office did not prepare the notices.
Commissioner Hess said his comments hold true regarding
the Planning Department.
Commissioner Howard had no comment.
City Attorney Tans commented that it w
Chair Kranich commented that even though they are
stopping tonight, he does feel that the Commission has to do it right. We
aren’t all legal people or professionals at parliamentary procedure. We w
ADJOURNMENT
There being no further business to come before the
Commission, the meeting adjourned at
MELISSA JACOBSEN, DEPUTY
Approved: