Session 05-24, a Special Meeting of the Homer Advisory Planning Commission was called to order by Vice Chair Hess at 5: 35 pm on November 21, 2005 at the City Hall Cowles Council located at 491 E. Pioneer Avenue, Homer, Alaska.

PRESENT: COMMISSIONER HESS, CONNOR, PFEIL, KRANICH, LEHNER

ABSENT: COMMISSIONER FOSTER, CHESLEY

STAFF: CITY PLANNER MCKIBBEN

DEPUTY CITY CLERK JACOBSEN

APPROVAL OF AGENDA AND ADOPTION OF CONSENT AGENDA

All items on the consent agenda are considered routine and non-controversial by the Planning Commission and are approved in one motion. There will be no separate discussion of these items unless requested by a Planning Commissioner or someone from the public, in which case the item will be moved to the regular and considered in normal sequence.

A. Time Extension Requests

B. Approval of City of Homer Projects under HCC 1.76.030(g)

C. KPB Coastal Management Program Reports

D. Commissioner Excused Absences

The agenda was approved by consensus of the Commission.

COMMISSION BUSINESS

The Commission hears a report from staff, testimony from applicants and the public. Commission business includes resolutions, ordinances, zoning issues, requests for consideration and other issues as needed. The Commission may ask question s of staff, applicants, and the public.

A. Staff Report PL 05-120 Proposed Ordinance 05-17 of the City Council of the City of Homer, Alaska Amending Homer City Code Chapter 21.68, Concerning Appeals under the Homer Zoning Code and Enacting Section 21.30.030 to Authorize Setting Zoning Fees by Resolution.

CONNOR/KRANICH MOVED TO RECOMMEND ADOPTION OF ORDINANCE 05-17 OF THE CITY COUNCIL OF THE CITY OF HOMER AMENDING HOMER CITY CODE CONCERNING APPEALS.

Commission Conner thanked Bill Smith for the information he presented the Commission at a past meeting. She said reading through his analysis helped make things clearer for her. She also expressed her appreciation to the members of the public who testified. She feels the proposed changes are too restrictive. She commented that the fourth Whereas clause illustrates the bias by only addressing the negative impacts of appeal. She countered it with the statement that community participation promotes general well being, safety and welfare.

Commissioner Kranich commented that the area of standing has been narrowed and asked about the degree of narrowness of state and federal codes pertaining to standing. City Planner McKibben responded that she feels comfortable that the City Attorney wouldn’t propose something that is not allowable within the existing laws. From her experience with other appeals ordinances, this is very narrow.

Vice Chair Hess pointed out that the staff report states that this draft was prepared in consultation with the City Attorney, City Manager, City Clerk and City Planner. He asked City Planner McKibben if she disagreed with some of the recommended changes. Ms. McKibben commented that an area she feels strongly about, which isn’t encompassed in this ordinance, is that there not be a high fee set to file an appeal. Someone shouldn’t be denied the opportunity to appeal because they cannot pay a high fee. She responded that the substance of this ordinance is a policy question that the policy makers have to decide.

Commissioner Lehner commented that the background materials were helpful. She said that philosophically she is a proponent for allowing community members to raise issue, rather than just owners of the property affected. She does not feel the general good would be properly served with such a narrow definition of who can bring an appeal.

Commissioner Pfeil expressed his agreement that he doesn’t want to see the right to appeal taken from anyone in town who may have a grievance with a problem that doesn’t necessarily have to be next door.

City Planner McKibben pointed out that the ordinance is broken down into sections and suggested, and the Commission agreed, to discuss each one separately.

WHAT IS SUBJECT TO APPEAL:

City Planner McKibben reviewed the list of administrative decisions that may be appealed and what may not be appealed. She explained that a legislative action is not appealable. The quasi-judicial decisions have always been appealable to the Board of Adjustment and thinks it is appropriate that they remain so. There was discussion regarding why issuance of a zoning permit or sign permit is not something a citizen should have the ability to appeal. City Planner McKibben commented that currently, every zoning permit is appealable by anyone. In the revision, the individual who is directly affected by the decision has the right to appeal, which takes away the potential for someone who is disgruntled to cause problems. There was comment that the inconvenience of an occasional superfluous appeal is less serious than if a permit is approved and an appeal brings to light additional information. They discussed that an appeal won’t get far if it doesn’t have a good basis and that they should be open to scrutiny. On the other hand, if someone wants to be nitpicky, someone can take the Code and throw a flag on just about anything that is done, but there doesn’t seem to be a happy medium to deal with it. It was suggested the City needs to make sure they aren’t making wholesale decisions based on one individual within the City with this amendment to code.

There was discussion regarding appeal of violations. City Planner McKibben pointed out that if a person is cited for a violation, they may appeal it. There are processes a citizen can follow, it may not be a formal appeal process, but there are other processes if they do not agree with a decision. City Planner McKibben stated that we work within a political area and there are always ways to deal with issues through Department Heads, the Planning Commission and City Council.

There was discussion, using the sign ordinance as an example, that sometimes ordinance changes occur because a concerned citizen did make a complaint. Ms. McKibben clarified in code that an enforcement order that is served to a violator is immediately appealable to the Planning Commission, and that section is not going away.

There was discussion regarding rezoning. The point was made that if a rezone is requested by a group of property owners and it is denied, then they should be able to appeal. City Planner McKibben reminded them that the City Council has final authority on rezones and their decisions are appealable to the court.

In further discussion of 21.68.015 (c) (1)(2), regarding determinations that may not be appealed, it was pointed out that at the end of those statement it says “or any other provision of the code”, which could be interpreted to mean that it applies to all other sections of the code. The argument was made that the purpose of the chapter states the chapter governs appeals of the Homer City Zoning Code.

WHO MAY APPEAL:

There was discussion about determining who is aggrieved. Reference was made to line 163 and the question was posed, how does a person prove that their enjoyment has suffered. It was noted that there is a definition for aggrieved in code. Comment was made that the definition is restrictive, and it was questioned whether there is a well-established definition of aggrieved. City Planner McKibben commented that the Mat-Su Borough code allows parties of interest to appeal regarding conditional uses and variances. Parties of interest are defined as those people who live within the area that receives public notice or participated by submitted comments in writing or in person. Commissioner Hess made the comment that sometimes people don’t know what has happened until after the proceeding has taken place. Ms. McKibben commented that the City has an obligation to notify people of actions that are occurring in their area. As property owners, they have a responsibility to find out more information if they have questions, they can contact staff, participate in public hearings and so forth. There are many times that people don’t take on any of that responsibility of participating in the process. There was brief discussion regarding getting notice to people who may be away fishing or other situations. It was suggested that perhaps more notice is needed in the newspaper, but it still comes down to the fact that there is a certain amount of responsibility that people need to take as property owners.

The Commission agreed that there needs to be a better definition of aggrieved. They discussed that there could be property owners outside the noticed area who could be impacted by a development, perhaps if they lived down stream or down slope. The revision does take that into account and in many cases it won’t be difficult to prove.

There was discussion regarding a person representing the general public, or an interest broader than an individual property owner’s reason. The Commission agreed there needs to be a broader interpretation. Commission Pfeil commented that the sentence starting on line 164 “An interest that is no different from that of the general public is not sufficient” should be taken out, but the rest of that section C could stay. The general feeling of the Commission is they don’t want to see the standing as tightly defined as it is in the draft ordinance. Commissioner Kranich commented that it shouldn’t be so broad that it allows anyone passing through town to file an appeal.

The Commission agreed that “any government official, agency or unit” under Who May Appeal should be changed. State agencies like the Corp of Engineers very likely have their own mechanisms to appeal because of their jurisdictional standing but there are a lot of government agencies that have nothing to do with land use.

There was discussion regarding the determination of standing. There is not a definition of who has interest. Generally it is considered people within a public notice area. There was discussion about ways to approach determining who has interest. Every situation is different and there are times that it would be appropriate to make a determination.

TIME FOR APPEAL:

The Commission agreed that 14 days is to short and it should remain at 30 days.

NOTICE OF APPEAL:

Commissioner Kranich pointed out that some specifics need to be addressed such as, it should be stated that the appellant has to sign and date their appeal. The Commission agreed that it is appropriate that the City Clerk is responsible for processing appeals of the Planning Director or Planning Commission. It is a better way to keep things accountable. It was pointed out that on line 231-section f, there is no timeframe for parties to declare their representative. There was no disagreement to leaving it as written to allow a person to submit the name of a representative at any point. In support of the need for that section, the situation was brought up in which a person involved in an appeal stated they were representing a property owner within 300 feet of an action, however, the City didn’t receive anything from that property owner stating the person was authorized to represent them.

The Commission agreed that “party” which was changed on line 286 to “person” should remain as it was. Changing it to person precludes groups or organizations, which is limiting, and party could refer to a person or a group.

The Commission agreed that number 21.68.090 (2) Conflicts of Interest on line 452 which states “ Other legal grounds for disqualification are established” should be left in.

Commissioner Lehner asked why this draft ordinance was introduced. Ms. McKibben stated her belief that it something that the City has been wanting to revise for some time.

There was discussion regarding the section on appeal fees. City Planner McKibben explained that currently there is no fee to file an appeal. This ordinance would incorporate appeals into the fee schedule. This would allow the Council to establish appeal fees.

Commissioner Kranich commented that “timely request” on line 535 is too vague and a specific time frame should be established.

City Planner McKibben reviewed her notes based on the general sentiments of the Commission:

ü This amendment is restrictive. Community participation is a good thing and reasonable scrutiny is appropriate.

ü Administrative decisions should not be limited to denials.

ü The scope of who can appeal and who has standing is too narrow.

ü The public interest should represent in some way.

ü Government Agency statements are too broad and should have to prove standing.

ü Standing to be more open, possibly with a determination process, a better definition of aggrieved or some criteria for standing that is more open.

ü 14 days to file an appeal is too short, 30 days is better, more consistent and practical.

ü Signing and dating notice of appeal.

ü Person vs. party

ü 21.68.090 (2) should not be deleted.

ü A timely request on line 535 is too vague.

PFEIL/KRANICH SO MOVED TO AMEND TO INCLUDE COMMENTS AND RECOMMENDATIONS IN A MEMO VIA THE CITY PLANNER.

It was clarified that they are making recommendations to the City Council.

VOTE: YES: UNANIMOUS CONSENT.

Motion carried.

VOTE: (Main motion as amended): YES: UNANIMOUS CONSENT.

Motion carried.

COMMENTS OF THE AUDIENCE

Members of the audience may address the Commission on any subject. The Chair may prescribe time limits.

Bill Smith commented that the state code says a person does not have to be aggrieved to appeal an administrative decision, but they do have to be aggrieved to appeal an appeal board decision. The municipality can choose to say that everyone has to be aggrieved to file an appeal for anything.

Tom Taffe, commented that something helpful to think about is that there used to be two types of courts, courts of law and courts of equity. When he heard Commissioner Connor struggling to say “Where does fairness enter into the process”, back in the history of law, only noblemen had the right to enforce the law, the commoner didn’t have standing. That developed over hundreds of years. Courts of equity and courts of law were merged in the US in the 1940’s. The idea of courts of equity is to address things that are counterintuitive or aren’t specifically covered by ordinances, but that is just as much a part of the law as ordinances and statutes. A fair conclusion should be reached, regardless. Mr. Taffe offered the example that a trust, where someone is holding your money or property, the legal title is “Owned by the Trustee” or “Owned by the Trust” but the equitable title is “Owned by the Beneficiary”. He suggested that the dual nature is what Ms. Connor is struggling with. He continued to explain that if there is a problem, like one of the beneficiaries used undue influence to get better terms from the settler, there is usually a list of criteria, like standing, to establish if there is a problem. In closing, Mr. Taffe said the Commission did a lot of good work tonight.

COMMENTS OF THE COMMISSION

Commissioners my comment on any subject, including staff reports and requests for excused absence.

There were no comments of the Commission.

ADJOURNMENT

Notice of the next regular or special meeting will appear on the agenda following “adjournment”.

There being no further business to come before the Commission the meeting adjourned at 7:19 pm. The next Regular Meeting is scheduled for December 7, 2005 at 7:00 pm, in the City Hall Cowles Council Chambers. There will be a Worksession at 6:00 pm prior to the meeting. A Special Meeting is scheduled for Wednesday November 30, 2005 at 7:00 pm, with a Worksession scheduled at 6:00 pm.

MELISSA JACOBSEN, DEPUTY CITY CLERK

Approved: