search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Griswold v. City of Homer (10/25/96), 925 P 2d 1015
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, telephone (907) 264-0607, fax (907) 264-
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK S. GRISWOLD, )
) Supreme Court No. S-6532
) Superior Court No.
v. ) 3HO-92-290 CI
CITY OF HOMER, ) O P I N I O N
Appellee. ) [No. 4419 - October 25, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Homer,
Jonathan H. Link, Judge.
Appearances: Frank S. Griswold, pro se,
Homer. Gordon J. Tans, Perkins Coie,
Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton, and Eastaugh, Justices.
RABINOWITZ, Justice, dissenting in part.
In 1992 the Homer City Council adopted Ordinance 92-18
amending Homer's zoning and planning code to allow motor vehicle
sales and services on thirteen lots in Homer's Central Business
District. Frank Griswold claims Ordinance 92-18 is invalid because
it constitutes spot zoning. We affirm the superior court's
rejection of that claim. Griswold also claims the Ordinance is
invalid because a council member with a personal interest
improperly participated in its adoption. We hold that the council
member should not have participated. We consequently remand so the
superior court can determine whether that participation invalidates
the Ordinance. Finally, we hold that Griswold is a public interest
litigant who cannot be assessed the City's attorney's fees and
II. FACTS AND PROCEEDINGS
Alaska Statute 29.40.020 requires that each first class
borough establish a planning commission which will prepare, submit,
and implement a comprehensive plan. (EN1) This plan must be
adopted before the local government can adopt a zoning ordinance.
AS 29.40.020-.040. A borough assembly "[i]n accordance with a
comprehensive plan adopted under AS 29.40.030 and in order to
implement the plan . . . shall adopt or amend provisions governing
the use and occupancy of land." AS 29.40.040. That statute
requires the borough to implement the comprehensive plan by
adopting provisions governing land use, including zoning
regulations. Id. A borough may delegate this responsibility and
the planning power to a city within the borough, if the city
consents. AS 29.40.010(b). The Kenai Peninsula Borough delegated
to the City of Homer the zoning authority for areas within the
The City adopted a comprehensive land use plan in 1983
and revised it in 1989. The City Council enacted zoning ordinances
to implement the plans. Motor vehicle sales and services were not
a permissible use within the Central Business District (CBD).
Several businesses provided automobile services in the CBD before
the City adopted the zoning ordinances. Those businesses were
"grandfathered"into the zoning district and allowed to continue to
provide those services as nonconforming uses, so long as those uses
did not extend beyond the original lot boundaries and the property
owners did not discontinue their nonconforming uses for more than
Guy Rosi Sr. owns a parcel (Lot 13) in the CBD. (EN2)
Rosi Sr. has continuously operated an automobile repair service on
Lot 13. His repair business remains a valid nonconforming use in
the CBD. Rosi Sr. also operated an automobile dealership on Lot 13
until sometime prior to 1990, but lost the right to continue that
nonconforming use on that lot by discontinuing the vehicle sales
business for more than one year.
Guy Rosi Jr. owns Lot 12, which is adjacent to his
father's lot. Lot 12 is also in the CBD; because it had never been
used for automobile sales or services, these uses were not
grandfathered for Lot 12.
In 1986 the City received complaints that Lot 12 was
being used for vehicle sales in violation of the zoning ordinance.
In May 1986 Rosi Jr. applied to the Homer Advisory Planning
Commission for a conditional use permit for Lot 12. The commission
denied the application. It found that public services and
facilities were adequate to serve the proposed use. The commission
also found that automobile sales were not consistent with the
purpose of the CBD; were not in harmony with the Comprehensive
Plan; would negatively impact neighborhood character; but might not
negatively impact the value of adjoining property more than
Rosi Jr. then applied for a contract rezone under Homer
City Code (HCC) 21.63.020(c). The City granted the application in
1986, rezoning Rosi Jr.'s lot to General Commercial 1 (GC1) and
restricting its use to vehicle sales. Griswold does not challenge
the Lot 12 contract rezone in this litigation.
Rosi Sr.'s Lot 13 was not affected by the Lot 12 contract
rezone. In September 1990 Rosi Sr. requested that the CBD be
rezoned to allow vehicle sales and related services. In August
1991 Rosi Sr., stating that he had not received any response to his
earlier request, asked that Lot 13 be rezoned to allow vehicle
sales and related services. During this period, there were
numerous zoning proposals and public hearings regarding automobile-
related services in the CBD, but some people spoke in favor of
rezoning the area.
In January 1992 a commission memorandum informed the City
Manager that the commission had been wrestling with several
possible amendments to the zoning code since 1990, and that
"[c]entral to the issue is the Commission's desire to rezone the
Guy Rosi property to allow for vehicle sales." The commission
noted that a proposed ordinance would allow automobile-related
services in the CBD only on Main Street from Pioneer Avenue to the
Homer Bypass, excluding corner lots with frontage on Pioneer Avenue
and the Homer Bypass Road. However, the commission staff
recommended that the council pass an ordinance which would allow
automobile-related services "everywhere in the Central Business
District or nowhere." The memo stated that the City Attorney felt
the proposed ordinance would be difficult to enforce and defend.
In April the City Council adopted Ordinance 92-18, which
amended HCC 21.48.020 by adding the following section:
hh. Automobile and vehicle repair, vehicle
maintenance, public garage, and motor vehicle
sales, showrooms and sales lots, but only on
Main Street from Pioneer Avenue to the Homer
Bypass Road, excluding corner lots with
frontage on Pioneer Avenue or the Homer Bypass
Road, be allowed as a permitted use.
The Ordinance passed five-to-zero. One council member
was absent. Brian Sweiven was one of the council members voting
for the amendment. He owned one of the thirteen lots on which
automobile sales and services were to be allowed under Ordinance
92-18. Sweiven both lived on his lot and operated an appliance
repair business there. In 1994, stating he had a potential
conflict of interest, he refrained from voting on Ordinance 94-13,
which would have repealed subsection (hh). A week later he
reversed that position and voted not to repeal subsection (hh).
Frank Griswold, the plaintiff in this case, owns an
automobile repair shop in the CBD. Its operation was grandfathered
in under the zoning code. He also lives in the CBD. Griswold's
lot was not one of the thirteen lots directly affected by Ordinance
92-18. Griswold brought suit against the City, alleging under
several theories that Ordinance 92-18 is an invalid exercise of the
City's zoning power and that Sweiven's participation in the
adoption of Ordinance 92-18 invalidates the Ordinance. Following
a bench trial, the superior court found against Griswold on all
issues. It later ordered him to pay a portion of the City's court
costs and attorney's fees. Griswold appeals.
We have repeatedly held that it is the role of elected
representatives rather than the courts to decide whether a
particular statute or ordinance is a wise one. (EN3) Norene v.
Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985); Seward
Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299 (Alaska 1982).
In Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974), we stated:
A court's inquiry into arbitrariness begins
with the presumption that the action of the
legislature is proper. The party claiming a
denial of substantive due process has the
burden of demonstrating that no rational basis
for the challenged legislation exists. This
burden is a heavy one, for if any conceivable
legitimate public policy for the enactment is
apparent on its face or is offered by those
defending the enactment, the opponents of the
measure must disprove the factual basis for
such a justification.
(Footnote omitted.) See also 6 Eugene McQuillan, Municipal
Corporations sec. 20.05, at 12 (3d ed. 1988) ("The validity of an
ordinance will be upheld where there is room for a difference of
opinion 'even though the correctness of the legislative judgment is
doubtful.'") (quoting Western Springs v. Bernhagen, 156 N.E. 753,
754 (Ill. 1927)).
However, we will invalidate zoning decisions which are
the result of prejudice, arbitrary decision-making, or improper
motives. See South Anchorage Coalition v. Coffey, 862 P.2d 168,
174 (Alaska 1993) ("In reviewing zoning decisions, courts generally
try to guard against prejudice, arbitrary decision-making, and
improper motives.") (citing 3 Edward H. Ziegler Jr., Rathkoph's The
Law of Zoning and Planning sec. 41.06, at 41-29, sec. 41.14(3)(b),
at 41-93 (1992)). Similarly, a legislative body's zoning decision
violates substantive due process if it has no reasonable
relationship to a legitimate government purpose. Concerned
Citizens of S. Kenai Peninsula, 527 P.2d at 452. Moreover, another
court has noted, "The dividing line between . . . mere difference
in opinion and what is arbitrary is the line between zoning based
on objective factual evidence and zoning without a rational basis."
Smith v. County of Washington, 406 P.2d 545, 548 (Or. 1965)
(citations omitted). (EN4) In this case, Griswold argues that the
City's Ordinance does not have a legitimate basis but rather is
arbitrary spot zoning. (EN5)
We have not previously had the opportunity to consider
whether a municipality's planning and zoning enactment is invalid
because it constitutes "spot zoning." The City states that "this
is not a case of 'spot zoning' at all"because the area in question
remains zoned CBD. However, treatise discussions of spot zoning
appear to make no distinction between cases where a zoning district
has been reclassified and those where a new use without district
reclassification is at issue. See, e.g., 1 Robert M. Anderson
American Law of Zoning 3d sec. 5.12, at 358 (1986) ("The common
[spot zoning] situation is one in which an amendment is initiated
at the request of an owner or owners who seek to establish a use
prohibited by the existing regulations."). See also, Ballenger v.
Door County, 388 N.W.2d 624, 627 (Wis. App. 1986) (applying spot
zoning analysis in a case where the zoning district remained the
same but the permitted uses within the district were expanded);
Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (whether
zoning decision violates substantive due process depends on whether
it has a reasonable relationship to a legitimate public purpose).
A. Claim of Spot Zoning
The "classic"definition of spot zoning is "the process
of singling out a small parcel of land for a use classification
totally different from that of the surrounding area, for the
benefit of the owner of such property and to the detriment of other
owners . . . ." Anderson, supra, sec. 5.12, at 359 (quoting Jones
v. Zoning Bd. of Adjustment of Long Beach, 108 A.2d 498 (N.J.
Super. 1954)). Spot zoning "is the very antithesis of planned
zoning." Id. (EN6) Courts have developed numerous variations of
this definition. Id. These variations have but minor differences
and describe any zoning amendment which "reclassifies a small
parcel in a manner inconsistent with existing zoning patterns, for
the benefit of the owner and to the detriment of the community, or
without any substantial public purpose." Anderson, supra, sec.
5.12, at 362. Professor Ziegler states:
Faced with an allegation of spot zoning,
courts determine first whether the rezoning is
compatible with the comprehensive plan or,
where no plan exists, with surrounding uses.
Courts then examine the degree of public
benefit gained and the characteristics of
land, including parcel size and other factors
indicating that any reclassification should
have embraced a larger area containing the
subject parcel rather than that parcel alone.
No one particular characteristic associated
with spot zoning, except a failure to comply
with at least the spirit of a comprehensive
plan, is necessarily fatal to the amendment.
Spot zoning analysis depends primarily on the
facts and circumstances of the particular
case. Therefore the criteria are flexible and
provide guidelines for judicial balancing of
3 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning
sec. 28.01, at 28-3 (4th ed. 1995).
In accord with the guidance offered by Professor Ziegler,
in determining whether Ordinance 92-18 constitutes spot zoning, we
will consider (1) the consistency of the amendment with the
comprehensive plan; (2) the benefits and detriments of the
amendment to the owners, adjacent landowners, and community; and
(3) the size of the area "rezoned."
1. Consistency with the comprehensive plan
Just as an ordinance which complies with a comprehensive
plan may still constitute an arbitrary exercise of a city's zoning
power, Watson v. Town Council of Bernalillo, 805 P.2d 641, 645
(N.M. App. 1991), nonconformance with a comprehensive plan does not
necessarily render a zoning action illegal. Anderson, supra, sec.
5.06, at 339-40. However, consistency with a comprehensive plan is
one indication that the zoning action in question has a rational
basis and is not an arbitrary exercise of the City's zoning power.
Homer's comprehensive plan divides the city into several
zoning areas. By its own terms, Homer's comprehensive plan is not
intended to set specific land use standards and boundaries;
specific standards and boundaries are instead implemented through
the City's zoning ordinance. The plan states, "The City shall
encourage a mix of business/commercial and public/governmental
activities in areas zoned or planned as central business district."
The plan states that the CBD is "intended primarily for retail
sales and services occurring within enclosed structures." The
plan's objectives for the CBD are (1) to guide growth and
development to provide a centrally located business and commercial
area and focal point for the community; (2) to encourage infilling
of the area already designated CBD before expanding the area; (3)
to promote a safe, attractive, and easily accessible business and
commercial core for pedestrian and vehicular visitors and
residents; (4) to attract and accommodate a variety of uses to fill
the business and commercial needs of downtown Homer; and (5) to tie
into state and federal programs that beautify the business and
Griswold does not dispute that the CBD is intended to
allow commercial uses. He notes however, that although auto-
related services are explicitly permitted in the General Commercial
1 District under HCC 21.49.020(d), the planning commission
previously denied a conditional use permit for auto-related
services on Main Street, specifically finding, inter alia, that
automobile sales were not consistent with the purpose of the CBD
and were not in harmony with the comprehensive plan. He also notes
that the comprehensive plan provides that the CBD was meant
primarily for retail sales and services occurring within enclosed
structures. Further, the fact that the City began phasing out
auto-related services in the CBD when it adopted the comprehensive
plan, while simultaneously specifically permitting these services
in the General Commercial I District, indicates to Griswold that
auto-related sales and services were, at least at one time,
considered incompatible with the CBD.
The superior court concluded that the Ordinance was
consistent with the comprehensive plan. In so concluding, it
considered the policy statement implementing the Ordinance, and
found that the Ordinance "encourages private investment and
infilling"and "enhances convenient access to other parts of the
CBD which are designated for other uses." It noted that Policy 4.1
provided: "The City shall research the nature of land uses and CBD
land use needs and evaluate the need for subzones in the CBD."
Griswold points to trial evidence that the expansion of
auto-related services in the CBD does not further all the goals of
the comprehensive plan, but he fails to demonstrate that the
superior court's finding -- that the Ordinance is consistent with
the plan -- is clearly erroneous. Although the evidence presented
by Griswold would permit a finding that the City Council had
believed in 1986 that auto-related uses were incompatible with the
CBD and the zoning ordinance as it then read, that evidence does
not compel a finding that auto-related uses are in fact
incompatible with the CBD or comprehensive plan, or that the City
Council's 1992 change of opinion is unsupportable and arbitrary.
The superior court did not clearly err in making the
findings discussed above. The court permissibly relied on Policy
4.1, which anticipates the type of action at issue here. The
comprehensive plan does not expressly prohibit automobile sales or
service establishments in the CBD. As the City notes, motor
vehicle sales are most appropriately classified as a business and
commercial use, for which the CBD was intended under the plan.
Homer's city planner testified at trial that the Ordinance is in
accordance with Homer's comprehensive plan. We conclude that the
superior court did not err in holding that Ordinance 92-18 is
consistent with the City's comprehensive plan.
2. Effect of small-parcel zoning on owner and
Perhaps the most important factor in determining whether
a small-parcel zoning amendment will be upheld is whether the
amendment provides a benefit to the public, rather than primarily
a benefit to a private owner. See Anderson, supra, sec.sec. 5.13-
5.14; Ziegler, supra, sec. 28.03, sec. 28.04, at 28-19 (calling an
amendment intended only to benefit the owner of the rezoned tract
the "classic case"of spot zoning). Courts generally do not assume
that a zoning amendment is primarily for the benefit of a landowner
merely because the amendment was adopted at the request of the
landowner. Anderson, supra, sec. 5.13, at 368. If the owner's
benefit is merely incidental to the general community's benefit,
the amendment will be upheld. Ziegler, supra, sec. 28.04, at 28-19
to 28-20. The City argues that Ordinance 92-18 serves the
interests of the general community rather than primarily the
interests of the Rosis. We agree.
a. Benefits and detriments to the community
Griswold argues that there are many negative aspects of
the City's decision to allow auto-related uses in the CBD.
Griswold presented evidence that the neighborhood character would
be harmed by the zoning amendment. He presented evidence that a
newspaper article quoted Planning Commissioner Cushing as saying
that public opinion was overwhelmingly against allowing auto-
related services in the CBD and that many Homer citizens expressed
the opinion that their homes and businesses would be harmed by
introducing auto-related services into the area. A real estate
agent testified that property in the CBD has a higher value than
property in the GC1 District.
Many jurisdictions, including this one, have held that
interests such as the preservation of neighborhood character,
traffic safety, and aesthetics are legitimate concerns. Barber v.
Municipality of Anchorage, 776 P.2d 1035, 1037 (Alaska) (holding
the government's interest in aesthetics is substantial and should
be accorded respect), cert. denied, 493 U.S. 922 (1989); Cadoux v.
Planning and Zoning Comm'n of Weston, 294 A.2d 582, 584 (Conn.)
(holding increased traffic a valid reason to deny application for
rezone), cert. denied, 408 U.S. 924 (1972). Contrary to the
implication of the City's argument, (EN7) these are tangible harms.
Moreover, the City itself appears to be concerned about the effects
of auto-related services on property values and aesthetics, as
evidenced by the council's findings supporting its confinement of
the zoning change to Main Street, (EN8) and the commission's
earlier finding that use for automobile sales would negatively
impact neighborhood character.
However, despite this negative aspect of Ordinance 92-18,
it appears that the Ordinance will result in genuine benefits for
the City of Homer. The City notes that before adopting Ordinance
92-18, for a year and a half it deliberated proposals which would
allow auto-related uses in the CBD and delineated the many benefits
which it believed the Ordinance will confer upon the community.
These benefits include encouraging filling in vacant places in the
CBD; increasing the tax base and employment in the CBD; increasing
convenience and accessibility for local and regional customers for
vehicle repairs or purchases; and promoting orderly growth and
development in the CBD. (EN9) Homer's city planner testified that
the Ordinance provides a convenience to the public and guides
growth and development to a centrally located area, while
restricting such uses to areas away from tourists or to areas for
visitors and pedestrians.
The superior court stated that Ordinance 92-18 advances
legitimate legislative goals articulated in HCC 21.28.020 including
but not limited to regulating and limiting the density of
populations; conserving and stabilizing the value of properties;
providing adequate open spaces for light and air; preventing undue
concentration of population; lessening congestion on streets and
highways; and promoting health, safety and general welfare. The
court found "as a matter of fact and law that Ordinance No. 92-18
bears a substantial relationship between legitimate legislative
goals and the means chosen to achieve those goals."
Griswold has demonstrated that there are some negative
aspects of allowing auto-related uses in the CBD. Nonetheless,
giving proper deference to the City Council as legislative
policymaker and to the superior court as finder of fact, we cannot
conclude that these detriments so outweigh the benefits of
Ordinance 92-18 that we must hold the Ordinance was arbitrarily and
b. Benefit to the landowner
It appears that initially the City was primarily
concerned with Rosi Sr.'s interests. (EN10) Rosi Sr. initiated the
inquiry into rezoning the CBD. Before the City amended the zoning
code, the planning commission chair stated that "[c]entral to the
issue is the Commission's desire to rezone the Guy Rosi property to
allow for vehicle sales." In 1991 commissioners "voiced their
dislike for spot zoning but felt it important to right a wrong
[done to Mr. Rosi]." The City planning staff stated that "'spot
zoning' is not good planning; however there are extenuating
circumstances that support the proposed change in zone." The
commission supported these conclusions with the following findings
of fact: (1) the property owner had owned and operated a business
on the property since the early 1950's; (2) public testimony and
response to staff were positive; (3) the City Attorney's response
was positive; and (4) the business was an expensive business to
establish and maintain. This desire to accommodate the needs of a
businessman who had been in the community for decades is
understandable. Nevertheless, small-parcel zoning designed merely
to benefit one owner constitutes unwarranted discrimination and
arbitrary decision-making, unless the ordinance amendment is
designed to achieve the statutory objectives of the City's own
zoning scheme, even where the purpose of the change is to bring a
nonconforming use into conformance or allow it to expand. See
Speakman v. Mayor of N. Plainfield, 84 A.2d 715, 718-19 (N.J.
1951). Otherwise, the City would be forced either to discriminate
arbitrarily among landowners seeking relaxed restrictions or to
abandon the concept of planned zoning altogether. Thus, if
assisting Guy Rosi Sr. was the primary purpose of the Ordinance, we
would invalidate it even if it was not the product of
However, it appears that the City Council was ultimately
motivated to pass the Ordinance because of the community benefits
the council perceived rather than because of the benefit the
Ordinance would confer upon Rosi Sr. The Ordinance restricted
auto-related uses to one street not because its real intent was to
benefit Rosi Sr.'s property, but, as Homer's city planner
testified, because the City desired to minimize the negative impact
of auto-related uses, especially the impact of such uses on more
pedestrian and tourist-oriented areas such as Pioneer Avenue. See
also supra note 7. Similarly, it appears that vacant lots located
farther from Pioneer Avenue were excluded not because Rosi did not
own these lots, but in an attempt to prevent urban sprawl by
filling in vacant places in developed areas before expanding
development. These reasons are legitimate, nondiscriminatory
justifications for enacting the Ordinance.
3. Size of "rezoned"area
Ordinance 92-18 directly affects 7.29 acres. (EN11) The
size of the area reclassified has been called "more significant
[than all other factors] in determining the presence of spot
zoning." Anderson, supra, sec. 5.15, at 378. The rationale for
that statement is that "[i]t is inherently difficult to relate a
reclassification of a single lot to the comprehensive plan; it is
less troublesome to demonstrate that a change which affects a
larger area is in accordance with a plan to control development for
the benefit of all." Id. at 379.
We believe that the relationship between the size of
reclassification and a finding of spot zoning is properly seen as
symptomatic rather than causal, and thus that the size of the area
rezoned should not be considered more significant than other
factors in determining whether spot zoning has occurred. A parcel
cannot be too large per se to preclude a finding of spot zoning,
nor can it be so small that it mandates a finding of spot zoning.
Although Anderson notes that reclassifications of parcels under
three acres are nearly always found invalid, while
reclassifications of parcels over thirteen acres are nearly always
found valid, id., as Ziegler notes, the relative size of the parcel
is invariably considered by courts. Ziegler, supra, sec. 28.04, at
28-14. One court found spot zoning where the reclassified parcel
was 635 acres in an affected area of 7,680 acres. Chrobuck v.
Snohomish County, 480 P.2d 489, 497 (Wash. 1971).
Nor does the reclassification of more than one parcel
negate the possibility of finding spot zoning. Ziegler, supra,
sec. 28.04, at 28-15. In this case, there was some evidence that
the reclassified area may have been expanded to avoid a charge of
spot zoning. Other courts have invalidated zoning amendments after
finding that a multiple-parcel reclassification was a subterfuge to
obscure the actual purpose of special treatment for a particular
landowner. Id. See Atherton v. Selectmen of Bourne, 149 N.E.2d
232, 235 (Mass. 1958) (holding that the amendment is "no less 'spot
zoning' by the inclusion of the additional six lots than it would
be without them"where proponents of a zoning change apparently
anticipated a charge of spot zoning and enlarged the area to
include the three lots on either side of the lot in question).
Homer's CBD is over 400 acres; the reclassified area is
7.29 acres. The CBD appears to contain approximately 500 lots; the
reclassified area contains 13 lots. A comparison of the size of
the area rezoned and the size of the entire CBD is not in itself
sufficient to persuade us that the City's decision was the product
of prejudice, arbitrary decision-making, or improper motives.
South Anchorage Coalition v. Coffey, 862 P.2d 168, 174 (Alaska
Further, it is not necessarily appropriate to compare the
area of the affected lots with that of the entire CBD. The
comprehensive plan recognized the possibility of subzones. The
City considered significant portions of the CBD to be inappropriate
for automobile sales and services, particularly Pioneer Avenue and
the Bypass. Subtracting those areas from the entire CBD, the
reclassified area on Main Street is a relatively larger part of the
Thus, having considered the relative size of the rezoned
area in determining whether Ordinance 92-18 constituted spot
zoning, we hold that the size of the area rezoned does not require
a finding of spot zoning given other factors supporting a contrary
conclusion. We conclude that the superior court did not err in
finding that Ordinance 92-18 does not constitute spot zoning.
B. Claim of Conflict of Interest
Homer City Council member Brian Sweiven owned one of the
thirteen lots in the reclassified area. He was one of nine owners
directly affected by Ordinance 92-18. It appears that it was
Sweiven who first recommended to the commission that the rezone
apply only to Main Street. An article in the Homer News was titled
"Sweiven proposes commercial zoning for downtown Homer." The
article refers to the idea of rezoning Main Street as "Sweiven's
proposal." Griswold alleges that Sweiven had a disqualifying
conflict of interest under Homer municipal law and that his
participation in the adoption of Ordinance 92-18 therefore
invalidates the Ordinance, even though Sweiven's vote was not
necessary for passage. The superior court found that Sweiven did
not have a disqualifying conflict of interest and that even if he
had, his participation in the deliberations and vote would not
invalidate Ordinance 92-18.
1. Was there a conflict of interest?
Homer City Code 1.24.040(g) states:
A member of the Council shall declare a
substantial financial interest the member has
in an official action and ask to be excused
from a vote on the matter. The Mayor or other
presiding officer shall rule on the request;
however, the decision may be overridden by the
majority vote of the Council. Should a
Council member fail to declare a substantial
financial interest, the Council may move to
disqualify that member from voting by a
majority vote of the body. A Council member
with a conflict of interest regardless of
whether excused from voting, shall not be
allowed to participate in discussion about the
The code defines "substantial financial interest"as
1. An interest that will result in immediate
financial gain; or
2. An interest that will result in financial
gain which will occur in the reasonably
HCC 1.12.010(a). Under common law, "the focus . . . [is] on the
relationship between the public official's financial interest and
the possible result of the official's action, regardless of the
official's intent." Carney v. State, Bd. of Fisheries, 785 P.2d
544, 548 (Alaska 1990) (citing Marsh v. Town of Hanover, 313 A.2d
411, 414-15 (N.H. 1973)). (EN13) The plain language of HCC
1.24.040(g) appears to coincide with this principle.
The City Council did not address Sweiven's alleged
conflict of interest until after the Ordinance had been passed.
After the council passed the Ordinance, the City Attorney advised
the council to address the matter at its next meeting by having
Sweiven declare the facts concerning his ownership of the land and
ask the council to determine whether his participation in the
matter constituted a conflict of interest under the City Code, and
to have the Mayor then rule on this question. The City Attorney
stated that if the City were to determine that Sweiven had a
disqualifying conflict of interest, it should declare the Ordinance
void. The City Attorney also stated that, in his opinion,
Sweiven's ownership did not constitute a disqualifying conflict of
The superior court found that
[t]here has been no showing that passage of
the ordinance will result in a financial gain
to Council member Sweiven, now or in the
future. In fact, it may act as a detriment.
Council member Sweiven's interest in Ordinance
No. 92-18 is simply too remote and/or
speculative to require his disqualification as
a legislative official.
This finding is clearly erroneous. The court further stated,
Plaintiff correctly surmises that Council
Member Sweiven's purpose and intent at the
time he promoted and voted for the ordinance
are of crucial importance in determining
whether or not he had a conflict of interest.
This holding incorrectly states the law, because the proper focus
is on the relationship between the official's financial interest
and the result of the official's action, "regardless of the
official's intent." Carney, 785 P.2d at 548.
Sweiven had a "substantial financial interest"within the
meaning of HCC 1.12.010(a)(2) in a reclassification which would
increase the permissible uses of his property. Indeed, it seems
inconsistent for the City to argue both that the Ordinance will
benefit the City by increasing the tax base and property values,
and that it will not benefit Sweiven's lot in a similar fashion.
The City nevertheless asserts that Sweiven's interest in
the passage of Ordinance 92-18 is too remote and speculative to
constitute a disqualifying interest, and argues that Sweiven's
property is affected the same way as other citizens' property. The
City attempts to distinguish Carney in which we held that fishermen
who sat on the Board of Fisheries could vote on matters affecting
the fishing industry as a whole but were disqualified from voting
on regulations which affected the area in which they actively
fished. We reasoned in Carney that the members should have
abstained from decision-making in areas in which they had a narrow
and specific interest. Id. at 548. The City argues that Sweiven
did not have a narrow and specific interest because "Mr. Sweiven's
operations (his home and appliance repair business) are not
affected at all by Ordinance 92-18 (automobile sales and
Ordinance 92-18 does not directly affect all of Homer, or
even a large part of the City or an entire class of its citizens.
Sweiven voted on an amendment which directly affects only thirteen
lots, including his own, out of the 500-some lots in the CBD.
According to the Alaska Department of Law, the common law requires
that a legislator refrain from voting on a bill which will inure to
the legislator's financial benefit if the legislator's interest "is
peculiarly personal, such as when a bill benefits only a tiny class
of which the legislator is a member." 1982 Formal Op. Att'y Gen.
Furthermore, it is said in the context of zoning:
Most of the cases [of disqualifying conflict
of interest] have involved a charge of a more-
or-less direct financial interest, and it is
clear that such an interest is a proper ground
of disqualification, as where the officer
himself holds property which is directly
involved in or affected by the proceeding.
. . . .
The clearest situation in which disqualifying
bias or prejudice is shown is that where the
zoning officer himself owns property the value
of which will be directly promoted or reduced
by the decision to be made and it is not
surprising that upon a showing of such
interest the courts have usually held the
W.E. Shipley, Annotation, Disqualification for Bias or Interest of
Administrative Officer Sitting in Zoning Proceeding, 10 A.L.R.3d
694, 697 (1966). Sweiven himself apparently believed that the
Ordinance would increase the value of his property. In
recommending the limited rezone to the planning commission, he
stated that "it would increase the tax base and property values"of
the area. The record reflects that when Sweiven was advocating
rezoning the entire CBD, he was quoted in the Homer News as
stating: "Even my own business. I can't sell my business, but I
can sell my building, and someone who wants to put a VW repair shop
there -- he can't. . . . It's not just me. This gives everybody in
town a lot more options as far as selling their business."
Finally, Sweiven initially refrained from voting on Ordinance 94-
13, which would have repealed Ordinance 92-18, on the ground that
he had a potential conflict of interest. It consequently appears
that Sweiven had a "substantial financial interest"as that term is
defined in HCC 1.12.010(a).
The superior court's finding that Sweiven did not have a
disqualifying conflict of interest is clearly erroneous.
2. What was the effect of the conflict of interest?
There are six voting members on the Homer City Council. Five
voted for Ordinance 92-18 on its first reading. One was absent.
Four weeks later, it passed its second and final reading, again by
a vote of five in favor and one absent. Thus, without counting
Sweiven's vote, Ordinance 92-18 would have passed. The superior
court held that even if Sweiven had a disqualifying conflict of
interest, his participation and voting would not invalidate the
result. In support it cited Waikiki Resort Hotel v. City of
Honolulu, 624 P.2d 1353, 1370-71 (Hawaii 1981).
Waikiki followed the rule, also articulated in several
other jurisdictions, that where the required majority exists
without the vote of the disqualified member, the member's
participation in deliberation and voting will not invalidate the
result. 624 P.2d at 1371 (citing Singewald v. Minneapolis Gas Co.,
142 N.W.2d 739 (Minn. 1966); Anderson v. City of Parsons, 496 P.2d
1333 (Kan. 1972); Eways v. Reading Parking Auth., 124 A.2d 92 (Pa.
1956)). The Waikiki court also cited Marshall v. Ellwood City
Borough, 41 A. 994 (Pa. 1899), where the court reasoned that
because the other four members voted in favor of the disputed
ordinance, the invalid vote of one city councilman had no legal
efficacy; thus, the court would not invalidate the ordinance.
Waikiki, 624 P.2d at 1371.
Waikiki cited decisions from three other jurisdictions
holding that a vote cast by a disqualified member vitiates the
decision in which the member participated, even if the vote does
not change the outcome of the decision. 624 P.2d at 1370 (citing
Piggott v. Borough of Hopewell, 91 A.2d 667 (N.J. Super. 1952);
Baker v. Marley, 170 N.E.2d 900 (N.Y. 1960); Buell v. City of
Bremerton, 495 P.2d 1358 (Wash. 1972)). In Buell, the court
The self-interest of one member of the
planning commission infects the action of the
other members of the commission regardless of
their disinterestedness. The recommendation
of the planning commission to the city council
could not be assumed to be without impact on
the council. More importantly, it would not
appear to the affected public that it was
without impact, and [the disqualified
member's] actual financial gain is sufficient
to invalidate the entire proceeding.
495 P.2d at 1362-63 (citations omitted).
These lines of authorities offer a choice between vote-
counting (Waikiki) and automatic invalidation (Buell). We have not
had occasion to consider this exact issue. In Carney, we found
that four of seven fisheries board members had a disqualifying
conflict. We then held the board's regulation invalid: "Because a
majority of the votes cast to pass the regulation are invalid, so
is the regulation." 785 P.2d at 549. Carney did not raise the
issue now before us because there the measure would have been
invalidated under either doctrine.
We decline to follow the vote-counting approach adopted
in Waikiki, notwithstanding its appealing ease of application. A
council member's role in the adoption or rejection of an ordinance
cannot necessarily be measured solely by that member's vote. A
conflicted member's participation in discussion and debate
culminating in the final vote may influence the votes of the
member's colleagues. Moreover, the integrity required of public
officeholders demands that the appearance of impropriety be
avoided; the approach adopted in Waikiki will not always do so.
See Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 477 (Alaska
1977) (holding financial disclosure laws preserve the integrity and
fairness of the political process both in fact and appearance);
Warwick v. State ex rel. Chance, 548 P.2d 384, 388 (Alaska 1976)
("[I]t is important that the legislature not only avoid
impropriety, but also the appearance of impropriety."). Cf. AS
39.50.010(b)(1) (public office is a public trust which should be
free from the danger of conflict of interest). The superior court
erred in holding that Ordinance 92-18 is valid simply because
Sweiven did not cast the decisive vote in its adoption.
We also decline, however, to adopt the rule of automatic
invalidation endorsed in cases such as Buell, 495 P.2d at 1362-63.
The vote and participation of a conflicted member will not
invariably alter the votes of other members or affect the merits of
the council's decision. This is especially true if the conflict is
disclosed or well-known, allowing other members to assess the
merits of the conflicted member's comments in light of his or her
interest. Automatic invalidation could needlessly overturn well-
considered measures which would have been adopted even if the
disqualified member had refrained from participating. Automatic
invalidation has the potential for thwarting legislative
enactments which are not in fact the result of improper influence.
The dissenting opinion cites HCC 1.12.030 as
justification for its conclusion that participation by a
disqualified member requires invalidation of the councilūs action.
HCC 1.12.030 and 1.24.040(g), however, determine whether
a member may vote or participate. They deal with disqualification,
and do not address the consequences of participation by a
conflicted member. The drafters of the code must have contemplated
that violations might occur notwithstanding the prohibition. They
nonetheless specified no remedy. Had they intended that particular
consequences would follow from violation of the prohibition, such
as the clear-cut remedies of automatic invalidation or vote-
counting, they could have easily so provided. Their failure to
specify a remedy for violation implies that the drafters intended
that the courts fashion the remedy.
In determining whether the vote of a conflicted member
demands invalidation of an ordinance, courts should keep in mind
the two basic public policy interests served by impartial decision-
making: accuracy of decisions, and the avoidance of the appearance
of impropriety. See generally Mark W. Cordes, Policing Bias and
Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L. Rev. 161
Guided by these basic policy concerns, we conclude that
the following analysis should be applied in determining the effect
of a conflicted vote. Initially the court must determine whether
a member with a disqualifying interest cast the decisive vote. If
so, the ordinance must be invalidated. Carney, 785 P.2d at 549.
If the ordinance would have passed without the vote of the
conflicted member, the court should examine the following three
factors: (1) whether the member disclosed the interest or the other
council members were fully aware of it; (2) the extent of the
member's participation in the decision; and (3) the magnitude of
the member's interest. The first two factors squarely bear on the
accuracy of the council's decision. All three factors directly
relate to any appearance of impropriety.
If the interest is undisclosed, the ordinance will
generally be invalid; it can stand only if the magnitude of the
member's interest, and the extent of his or her participation, are
minimal. If the interest is disclosed, the ordinance will be valid
unless the member's interest and participation are so great as to
create an intolerable appearance of impropriety. The party
challenging the ordinance bears the burden of proving its
invalidity. We recognize that this analysis is more difficult to
apply than the vote-counting and automatic invalidation rules.
Simple to apply, those rules are unacceptably rigid.
The factual record before us is not so clear that we can
decide as a matter of law whether invalidation is appropriate. The
record does not reveal whether the other council members had actual
knowledge of Sweiven's interest. While Sweiven's interest in his
lot, where he lived and worked, was open and obvious, this is a
matter of potential factual dispute to be explored on remand.
Likewise, we cannot weigh the extent of Sweiven's participation or
say whether it may have affected the outcome of the measure. Nor
does the record establish whether Sweiven was likely in the
foreseeable future to realize any significant appreciation from the
reclassification by selling or servicing motor vehicles or by
selling his lot to someone who intended to do so. We therefore
remand so that the superior court, applying the analysis discussed
above, can determine whether Ordinance 92-18 must be invalidated.
C. Public Interest Litigant Status
The superior court found that Griswold was not a public
interest litigant. That finding was clearly erroneous because
Griswold met all four criteria of a public interest litigant in
this case: (1) his lawsuit was designed to effectuate strong
public policies; (2) if Griswold succeeded, numerous people would
have benefited from the lawsuit; (3) only a private party could be
expected to bring the action; and (4) Griswold lacked sufficient
economic incentive to bring the lawsuit if it did not also involve
issues of general importance. See Oceanview Homeowners Ass'n, Inc.
v. Quadrant Constr. and Eng'g, 680 P.2d 793, 799 (Alaska 1984)
(citing Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska
In Oceanview, the plaintiff was a homeowners' association
which objected to a Zoning Board of Appeals decision to set aside
orders issued by the Zoning Enforcement Office of the Anchorage
Department of Public Works. These orders restricted improvements
to and the use of a private airstrip located in a residential area.
680 P.2d at 795. We held that the homeowners' association was a
public interest litigant. Id. at 799. We found that "Oceanview's
appeal was designed to vindicate a strong public policy in
effectuating zoning ordinances, that numerous people in the area
would have benefited had it succeeded, and that only a private
party could have been expected to bring the appeal." Id.
The superior court stated that "it is hard to see how
declaring a valid legislative enactment 'illegal' would be of
benefit to anyone." That statement misapprehends the meaning of
the public interest litigant criteria and has no application here.
Griswold's appeal was designed to vindicate the strong public
policy of ensuring that zoning ordinances are not arbitrary or
capricious. This public policy is quite similar to, and at least
as important as, ensuring that zoning ordinances are properly
enforced. The importance of this issue to the general public is
evidenced by the considerable amount of public comment regarding
the passage of the Ordinance, prompting one planning commissioner
to state, "[t]he car lot deal drew as much public comment as
anything we (planners) have had but the sign ordinance." Likewise,
just as the Oceanview suit benefited at least the community of
homeowners, Griswold's suit was intended to benefit the entire
community of Homer, especially those who live, shop, and operate
small businesses in the CBD, by challenging the City's alleged
arbitrary deviation from its zoning plan. It is also true in this
case, as in Oceanview, that only private citizens can be expected
to bring suit against a municipality for a zoning violation of this
nature, not because the issue is not one of general importance, as
the superior court stated, but because the defendant in this case
is the public entity which would normally be enforcing Homer's
Only the fourth component of the public interest litigant
test appears even arguable. That criterion requires that the
public interest litigant not have "sufficient economic incentive to
bring the lawsuit even if it involved only narrow issues lacking
general importance." Griswold lives in the CBD and owns an
automobile repair shop on a lot located in the CBD but not included
in the reclassified area. He thus continues to be restricted by
his "grandfather"status in the operation of his business, and may
lose his rights if he ceases operation for more than one year. The
superior court agreed with Griswold that "any economic advantage he
might have gained, if successful, was slight." The court
nevertheless found that this fact "does not obviate the fact that
one of [Griswold's] primary motives in pursuing this litigation was
to achieve this goal." Thus, the court found that even a "slight"
economic gain can be sufficient to constitute a plaintiff's primary
motivation in bringing a lawsuit. Neither case law nor the record
in this case supports the court's finding.
In Oceanview we found that the homeowners' association
which claimed that the "immediate effect of the [adverse zoning
board] decision is to deny or diminish the value of real property
owned or leased by appellant"was nevertheless a public interest
litigant, citing Oceanview's "consistent emphasis on health and
safety to the virtual exclusion of economic concerns." 680 P.2d at
799 n.3. Likewise, in this case, Griswold's emphasis was always on
the harm to the community, the importance of public accountability,
and fairness in municipal government. Griswold stated in a sworn
affidavit that he did not have any expectation of financial gain as
a result of filing the lawsuit. He wrote a letter to the Homer
Advisory Planning Commission stating that he opposed rezoning any
areas of the CBD to GC1. These facts are not contested. Moreover,
it appears that Griswold only discussed the exclusion of his own
lot to illustrate the equal protection problems and arbitrariness
inherent to spot zoning cases, and to demonstrate his standing,
disputed by the City early in the suit, to bring this lawsuit. See
id. (stating that appellant's claim of standing due to immediate
economic harm is "not synonymous with 'economic incentive'"). The
court's emphasis on Griswold's "political motivation"also
conflicts with its finding that the hope of slight economic gain
was Griswold's primary motivation.
Griswold satisfies Alaska's four-factor public interest
litigant test. We consequently hold that he is a public interest
We hold that Ordinance 92-18 does not constitute spot
zoning, and consequently AFFIRM that aspect of the judgment below.
We hold, however, that council member Sweiven had a conflict of
interest which should have disqualified him from participating in
consideration of the Ordinance. We consequently REVERSE the
court's finding that there was no conflict of interest and REMAND
so the superior court can determine whether the Ordinance must be
invalidated. We also REVERSE that portion of the judgment imposing
costs and fees on Griswold.RABINOWITZ, Justice, dissenting in part.
I believe it is of particular significance that Sweiven
participated in the discussion of and voted for Ordinance 92-18.
As the court observes, this ordinance does not directly affect all
of Homer, or even a large segment of the City or an entire class of
its citizens. More particularly, the ordinance directly affects
only thirteen lots, including Sweiven's own, out of approximately
500 lots located within the Central Business District. The record
further reveals Sweiven's belief that Ordinance 92-18 would
increase the value of his property. Indeed Sweiven explicitly
stated that "[the proposal] would increase the tax base and
property values"of the area when recommending the Limited Rezone
to the planning commission. (EN1)
Based on the foregoing, the court correctly concludes
that "Sweiven had a ūsubstantial financial interestū within the
meaning of HCC 1.12.010(a)[ (EN2)] in a reclassification which would
increase the permissible uses of his property . . . . The superior
court's finding that Sweiven did not have a disqualifying conflict
of interest is clearly erroneous." Op. at 25, 28.
My disagreement with the court's opinion goes to its
discussion of the effect of Sweiven's conflict of interest and the
appropriate remedy given the factual context of this case. Central
to my differing analysis are the provisions of the Homer City
ordinances which address the subject of conflict of interest. In
my view, the court's analysis ignores that part of the Homer
Municipal Code 1.12.030, which states:
A City Councilmember or Mayor with a conflict
of interest under section 1.12.020 shall so
declare to the body as a whole and ask to be
excused from voting on the matter. However, a
City Councilmember or Mayor with a conflict of
interest, regardless of whether excused from
voting, shall not be allowed to participate in
discussion about the matter. (Ord. 92-49(A)
sec.4, 1992; Ord. 86-22(S) sec.1(part), 1986).[
The City of Homer, as expressed in section 1.12.030 of
its Code, has adopted a policy which flatly contradicts the court's
[t]he vote and participation of a conflicted
member will not invariably alter the votes of
other members or affect the merits of the
council's decision. This is especially true
if the conflict is disclosed or well known,
allowing other members to assess the merits of
the conflicted member's comments in light of
his or her interest.
Regardless of the wisdom of the City of Homer's legislative
enactment barring conflicted council members' participation in
decisions, (EN4) the fact remains that the City of Homer has
expressly adopted a rule specifically prohibiting conflicted
council members from taking part in discussion or voting on the
matter of interest. In fact, the prohibition on discussion is more
stringent than the rule on voting -- even when the "Mayor or other
presiding officer"decides that the member need not be excused from
voting, and even when the council chooses not to override that
decision by a simple majority vote, the member is nonetheless
forbidden to participate in the discussion.
The rule adopted by the court pays no heed to this
participation ban contained in the City of Homer's municipal code.
The portions of the court's rule which conflict with the express
non-participation policy of HCC 1.12.030 are the following:
If the interest is undisclosed, the ordinance
will generally be invalid; it can stand only
if the magnitude of the member's interest, and
the extent of his or her participation, are
minimal. If the interest is disclosed, the
ordinance will be valid unless the member's
interest and participation are so great as to
create an intolerable appearance of
(Emphasis added.) In short, the court's rule would permit a
conflicted council member to participate in the discussion of a
matter before the body responsible for official action in cases
where the conflicting interest has been disclosed, or where the
conflicting interest is undisclosed and the conflicted member's
participation does not create an intolerable appearance of
Although the court's formulation might well be adopted as
a general rule, I think it inappropriate to do so in the face of an
ordinance completely prohibiting participation by any city council
member with a substantial conflicting interest in the subject
matter of a proposed ordinance. In this regard, it is noteworthy
that HCC 1.12.030 is not couched in terms of de minimis levels of
participation. On the contrary, it imposes a complete ban on the
conflicted member's participation.
Given the participation ban imposed by HCC 1.12.030,
Sweiven's conflict generating significant financial interest, and
Sweiven's participation in the discussion of Ordinance 92-18, I
conclude that the appropriate remedy is invalidation of the
As the court recognizes, a council member's role in the
adoption or rejection of an ordinance cannot necessarily be
measured solely by that member's vote. A conflicted member's
participation in discussion and debate culminating in the final
vote may influence the votes of the member's colleagues. The court
also appropriately recognizes that the integrity required of public
office holders demands that even the appearance of impropriety be
Guided by these principles and the City of Homer's
explicit ban on a conflicted member's participation, I respectfully
dissent from the court's remedy. Rather than remand this issue, I
would hold Ordinance 92-18 invalid because of council member
Sweiven's participation. (EN6)
1. AS 29.40.030 defines a comprehensive plan as follows:
[A] compilation of policy statements, goals,
standards, and maps for guiding the physical,
social, and economic development, both private
and public, of the first or second class
borough, and may include, but is not limited
to, the following:
(1) statements of policies, goals, and
(2) a land use plan;
(3) a community facilities plan;
(4) a transportation plan; and
(5) recommendations for implementation of the
2. Although the Borough's tax assessment records indicate that
Guy Rosi Sr. owns only part of Lot 13, the parties and the trial
court have referred to his parcel as "Lot 13." We do the same.
3. This appeal concerns the validity of an enactment of a
legislative body, rather than a decision of a zoning board. See
Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974) (analyzing a Borough
Assembly's ordinance as a legislative enactment). We are here
reviewing a superior court judgment rejecting claims that a
municipal ordinance is invalid. We give independent consideration
to the legal conclusions of the superior court. Beesley v. Van
Doran, 873 P.2d 1280, 1281 (Alaska 1994). We will uphold the
superior court's findings of fact unless they are clearly
erroneous. In re R.K., 851 P.2d 62, 66 (Alaska 1993).
4. We have held that, although a planning commission is not
required to make specific findings supporting its decisions, it
must articulate reasons for its decisions sufficient to assist the
parties preparing for review and to restrain agencies within the
bounds of their jurisdiction. South Anchorage Coalition v. Coffey,
862 P.2d 168, 175 (Alaska 1993) (citing City of Nome v. Catholic
Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska 1985); and Kenai
Peninsula Borough v. Ryherd, 628 P.2d 557, 562 (Alaska 1981)).
5. Griswold also argues that the Ordinance is invalid because it
is inconsistent with the City's zoning code and comprehensive plan.
We consider this argument in conjunction with our discussion of
6. The City argues that spot zoning should not be considered per
se illegal, but merely descriptive. Thus, whether spot zoning is
valid or invalid would depend upon the facts of each case. See
Chrismon v. Guilford County, 370 S.E.2d 579, 588 (N.C. 1988); Save
Our Rural Env't v. Snohomish County, 662 P.2d 816 (Wash. 1983);
Tennison v. Shomette, 379 A.2d 187 (Md. Spec. App. 1977). However,
we will follow the vast majority of jurisdictions which hold that,
while not all small-parcel zoning is illegal, spot zoning is per se
illegal. See Chrismon, 370 S.E.2d at 588 (noting that majority of
jurisdictions regard spot zoning as a legal term of art); 3 Edward
H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning sec.
28.01 n.2 (4th ed. 1995) (compiling cases holding same); Anderson,
supra, sec. 5.12, at 359 n.46 (same).
Thus, spot zoning is simply the legal term of art for a zoning
decision which affects a small parcel of land and which is found to
be an arbitrary exercise of legislative power. Cf. Concerned
Citizens of S. Kenai Peninsula, 527 P.2d at 452 ("[T]he
constitutional guarantee of substantive due process assures only
that a legislative body's decision is not arbitrary but instead
based upon some rational policy.").
7. The City argues that Griswold could not show any "concrete
detriment"but instead "could only argue that car lots were not
pleasant to look at, they didn't alleviate traffic, and other
8. At trial the City's planner testified that the Ordinance was
restricted to Main Street to avoid certain negative impacts in more
tourist-oriented areas. These negative impacts include traffic
congestion, visual blight, detraction from the pleasing aesthetic
nature of Pioneer Avenue, and conflict with the comprehensive
plan's goal of promoting sidewalks, pocket parks, and pedestrian
amenities in the CBD.
9. Not all of the goals articulated by the City can be
considered legitimate per se. For example, any zoning change which
eases restrictions on property use could be said to further the
goal of "filling in vacant places." Similarly, increasing the tax
base and the employment of a community is not automatically a
legitimate zoning goal. See Concerned Citizens for McHenry, Inc.
v. City of McHenry, 395 N.E.2d 944, 950 (Ill. App. 1979) (an
increase in the tax base of the community as the primary
justification for a rezone is "totally violative of all the basic
principles of zoning"); Oakwood at Madison, Inc. v. Township of
Madison, 283 A.2d 353, 357 (N.J. Super. 1971) (finding that "fiscal
zoning per se is irrelevant to the statutory purposes of zoning
[although] 'alleviating tax burden is a permissible zoning purpose
if done reasonably and in furtherance of a comprehensive plan)
(citing Gruber v. Mayor of Bariton, 186 A.2d 489, 493 (N.J.
1962))'"; Chrobuck v. Snohomish County, 480 P.2d 489, 497 (Wash.
1971) (allowing industrial development on only one site would be
arbitrary spot zoning despite the potential tax revenue the oil
refinery would produce). Thus, the goal of increasing the tax base
and employment opportunities is usually legitimate only if the
ordinance is otherwise reasonable and in accordance with the
Some courts have allowed inconsistent small or single parcel
rezoning in order to raise tax revenues or stimulate needed
industry if the public receives higher tax revenue or employment
industries. Ziegler, supra, sec. 28.04, at 28-20. Generally, the
facility being built must be indisputably needed, and the city must
have secured assurance as to the existence and amount of increased
employment and tax revenue. For example, in Information Please
Inc. v. County Comm'rs of Morgan County, 600 P.2d 86 (Colo. App.
1979), the county rezoned agricultural area to industrial to
accommodate an electric utility after determining the plant would
add $46,000,000 to the tax base of the county, and provide
approximately 250 jobs after it was completed. Id. at 88. In
Watson v. Town Council of Bernalillo, 805 P.2d 641, 647 (N.M. App.
1991), the county made findings that the rezone would employ
eighty-seven people from the community and would produce tax
revenues constituting twenty-five percent of the city's budget. In
Chrismon v. Guilford County, 370 S.E.2d 579, 590 (N.C. 1988), the
court approved the rezoning of two contiguous tracts from
agricultural to conditional use industrial district to facilitate
expansion of an already-operating grain elevator. The court stated
that the "[e]vidence clearly shows that [the owner's] operation is
beneficial to area farmers." Id. It also noted that spot zoning
will be allowed even where the adjacent property owners object and
the owner receives a greater benefit than others if there is a
community-wide need for the rezone. Id.
10. Currently, Rosi Jr.'s lot is not affected by Ordinance 92-
18 since that lot has been contract rezoned to GC1.
11. There may be an immaterial discrepancy about the size of
the reclassified area. There was testimony Ordinance 92-18
affected 7.29 acres, but the trial court's memorandum decision
stated the affected lots contained about 7.44 acres. That decision
did not state that the exact size of the parcel was significant to
its determination that the amendment does not constitute illegal
12. In addition, Homer's City Code mandates that a city
official "disclose any financial interest in any matter before the
board or commission before debating or voting upon the matter"and
prohibits the official from participating in the debate or vote
unless the board or commission determines that a financial interest
is not substantial as defined in HCC 1.12.010. HCC 1.12.070
13. At first glance it may appear that the Executive Branch
Ethics Act, AS 39.52.010-.960, which explicitly supersedes the
common law on conflicts of interest, see AS 39.52.910, requires
intent on the part of public officials subject to that Act. See AS
39.52.120(b)(4). However, that Act does not apply to municipal
officials. Gates v. City of Tenakee Springs, 822 P.2d 455, 462
(Alaska 1992). Thus, the common law of conflicts of interest
continues to apply to municipal officers. Carney, 785 P.2d at 547-
14. The portion of HCC 1.12.030 cited by the dissent states:
A City Councilmember or Mayor with a conflict
of interest under section 1.12.020 shall so
declare to the body as a whole and ask to be
excused from voting on the matter. However, a
City Councilmember or Mayor with a conflict of
interest, regardless of whether excused from
voting, shall not be allowed to participate in
discussion about the matter. (Ord. 92-49(A)
sec.4, 1992; Ord. 86-22(S) sec.1(part), 1986).
This language is nearly identical to the similar
prohibition in HCC 1.24.040(g), but also applies to the mayor.
1. The court notes:
The record reflects that when Sweiven was
advocating rezoning the entire CBD, he was
quoted in the Homer News as stating: "Even my
own business. I can't sell my business, but I
can sell my building, and someone who wants to
put a VW repair shop there -- he can't. . . .
It's not just me. This gives everybody in
town a lot more options as far as selling
their business." Finally, Sweiven refrained
from voting on Ordinance 94-13, which would
have repealed Ordinance 92-18, on the ground
that he had a potential conflict of interest.
Op. at 27.
2. At all times relevant to the case at bar, HCC 1.12.010(a)
defined "substantial financial interest"as follows:
1. An interest that will result in
immediate financial gain; or
2. An interest that will result in
financial gain which will occur in the
reasonably foreseeable future.
(HCC 1.12.010 has subsequently been amended.)
HCC 1.12.020 provides:
A City Councilmember or Mayor with a
substantial financial interest in an official
action to be taken by the Council has a
conflict of interest. (Ord. 92-49(A) sec. 3,
1992; Ord. 86-22(S) sec. 1(part), 1986).
3. HCC 1.12.040 provides:
The Mayor or, in his absence, the Mayor Pro-
Tem or other presiding officer, shall rule on
a request by a City Councilmember to be
excused from voting on a matter because of a
declared conflict of interest. The Mayor Pro-
tem or other presiding officer shall rule on a
request by the Mayor to be excused from
participating in a matter because of a
declared conflict of interest. (Ord. 92-49(A)
sec.5, 1992; Ord. 86-22(S) sec.1(part), 1986).
HCC 1.12.050 further provides:
A decision of the Mayor or other presiding
officer under Section 1.12.040 may be
overridden by a majority vote of the City
Council. (Ord. 86-22(S) sec.1(part), 1986).
4. This court has consistently held that it is not our function
to question the wisdom of legislation. University of Alaska v.
Geistauts, 666 P.2d 424, 428 (Alaska 1983); Alaska Interstate v.
Houston, 586 P.2d 618, 621 (Alaska 1978).
5. See generally Mark W. Cordes, Policing Bias and Conflict of
Interest in Zoning Decisionmaking, 65 N.D. L. Rev. 161 (1989).
Here the author writes in part:
The second and more common provision is
to prohibit participation when a conflict of
interest exists. The rationales behind this
are obvious. Although disclosure has some
restraining effect, a significant conflict
might still affect the substantive outcome of
a decision. More importantly, perceptions of
fairness and legitimacy are only partly
addressed by disclosure.
For these reasons disqualification rather
than disclosure is the preferable approach.
Although in some instances disclosure might
adequately address the need for impartiality,
in many instances it will only be partially
effective. The inconvenience of adjusting to
the disqualification of a decisionmaker is not
so great as to justify the threat to accuracy
and legitimacy posed by the requirement of
Beyond determining what effect a conflict
of interest should have on a particular
decisionmaker is what judicial remedies should
be available when a zoning decision in fact
involved an improper conflict of interest. In
those instances in which the biased
decisionmaker casts a dispositive vote, courts
have consistently invalidated the decision.
This seems appropriate in that both accuracy
and legitimacy concerns are clearly threatened
when a decision appears to turn on the vote of
a self-interested decisionmaker.
A more difficult issue is whether the
participation of a conflicting member whose
vote was not determinative to a decision
should also result in invalidation. This
might occur in two general situations. First
is where the tainted vote was numerically
unnecessary for the decision. Courts have
evenly split on this issue, with a slight
majority favoring invalidation. Courts
refusing to invalidate such decisions have
primarily reasoned that even without the
tainted vote the decision would have occurred
anyway and therefore invalidation is improper.
In this sense the threat to accuracy and
legitimacy concerns is arguably de minimis
when the particular vote is apparently not
crucial to a decision. In particular,
legitimacy concerns are less threatened when a
decision appears inevitable. As a result, the
administrative burden of invalidating and
remanding a decision outweighs any threat to
substantive results and perceptions of
Despite these distinctions, several
strong reasons exist for invalidating
decisions even when a tainted decisionmaker's
vote was numerically unnecessary for the
decision. First, courts invalidating such
decisions have noted that collegial
decisionmaking ideally involves the exchange
of ideas and views, often with the intent of
persuading toward a particular position. The
actual contribution of any particular
decisionmaker cannot be measured with
precision, but frequently extends
significantly beyond the actual vote cast.
For this reason, a significant threat to
accuracy can exist even when a particular vote
was numerically unnecessary for the decision.
For similar reasons legitimacy concerns
also exist even when a vote is numerically
unnecessary. Although legitimacy concerns are
less substantial in such circumstances, the
perception of collegial decisionmaking and the
potential influence of a tainted decisionmaker
on others would violate "appearance of
fairness"standards. Thus, for both accuracy
and legitimacy reasons the better view is that
even when a vote is numerically unnecessary
for a decision courts should still invalidate
Id. at 214-216 (footnotes omitted).
6. I note my agreement with the court's other holdings.