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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. City of Homer (9/20/2002) sp-5629

Griswold v. City of Homer (9/20/2002) sp-5629

     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, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


FRANK S. GRISWOLD,            )
                              )    Supreme Court No. S-10321
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3HO-00-105 CI
                              )
CITY OF HOMER,  a municipal        )    O P I N I O N
corporation, and COB, INC.,        )
                              )    [No. 5629 - September 20,
2002]
             Appellees.            )
________________________________)



          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Harold M. Brown, Judge.

          Appearances:   Frank  S.  Griswold,  pro  se,
          Homer,    Appellant.    No   appearance    by
          Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          FABE, Chief Justice.


I.   INTRODUCTION

          Frank  Griswold appeals the Homer Planning  Commissions

approval  of nonconforming uses on a lot bordering his  own.   He

alleges  that  there  was insufficient evidence  to  support  the

Commissions decision and also makes several claims of  procedural

error.  Because we conclude that there is substantial evidence to

support  the  Commissions decision to approve  the  nonconforming

uses, and Griswolds claims of procedural error have no merit,  we

affirm the superior courts decision.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          Robert  L.  Stewart, president of COB, Inc.,  owns  the

property located at 305 East Pioneer Avenue, which is the subject

of  this  appeal.   COB has owned the property since  1982.   The

property was a service station and garage before COB acquired it,

and  COB  continued this use until 1991, when the gas tanks  were

removed.   The  property is located within an area designated  by

Homers zoning regulations as the central business district. It is

impermissible under zoning regulations for COB to use its central

business  district property for automobile repair and maintenance

unless  those  uses were grandfathered in.  To take advantage  of

the grandfather provisions, the owner must have used the property

for vehicle maintenance and repair prior to the zoning enactments

and  must not have discontinued these uses for more than a year.1

With  these  requirements in mind, COB performed only  occasional

automobile repair and maintenance services on the property,  with

the  purpose of maintaining its grandfather rights.  During  this

time, COB substantially remodeled the premises to include a three-

bay  garage.   The  remodeling  was  completed  in  1996.   Since

February   1997  COB  has  leased  the  site  to  a  full-service

automobile  maintenance and repair facility known as  Homer  Tire

and  Auto.   In  1996 COB petitioned the Homer Advisory  Planning

Commission to approve its nonconforming uses.

          Frank  S.  Griswold  is the owner of nearby,  competing

Glacierview  Garage  in  Homer.  The  record  also  reveals  that

Griswold and COB are direct competitors in that they have  worked

on  the same cars.  Griswold is the only person to object to COBs

petition for approval of nonconforming uses.

     B.   Procedural History

          COB petitioned for acceptance of its nonconforming uses

under  Homer  City  Code (HCC) 21.64.035 in  October  1996.   The

Commission  found  that COB had produced sufficient  evidence  to

show  that the property had been used for a public garage,  where

          vehicle  maintenance and vehicle repairs had  not  been

discontinued.  The Commission also found that COB never abandoned

[its]  intent that the Property be used for those purposes.   The

Commission  unanimously approved of COBs  continued  use  of  the

property as a vehicle maintenance and repair facility and  public

garage.   Griswold  appealed to the Homer  Board  of  Adjustment,

which  reversed the Commissions decision.  COB then  appealed  to

the superior court, which in October 1998 reversed the Board with

instructions to remand to the Commission to allow COB to  present

evidence   that  vehicle  repair  and  vehicle  maintenance   had

continued on the property.2

          On  remand, the Commission found that COB had failed to

show  that the uses actually continued, but determined  that  COB

had  intended to continue the nonconforming uses during the years

in question.  The Commission concluded that the zoning ordinances

in  effect  at  the  time  of COBs application  for  approval  of

nonconforming uses required intent to discontinue the use as well

as  actual discontinuance before the nonconforming use  could  be

lost.    The   Board   adopted  the  Commissions   findings   and

conclusions.   Griswold  appealed to the  superior  court,  which

again  reversed  and  remanded.  This time,  the  superior  court

specified that COBs intent was not relevant to the one year  non-

use provision in HCC 21.64.030.  Consequently, the superior court

remanded  to  the  Board  with  instructions  to  remand  to  the

Commission  to  determine whether vehicle maintenance  or  repair

ever  stopped completely on the property for more than one  year.

Shortly thereafter, the superior court issued an order clarifying

that the Commission ha[s] consistently used the wrong standard to

determine  whether  COBs  various non-conforming  uses  had  been

discontinued.   The  superior court directed  the  Commission  to

reconsider   evidence   of  actual  use,  rather   than   intent.

Accordingly,  the  superior court instructed  the  Commission  to

allow COB to present additional evidence of actual use.

          On  January 31, 2000, the Commission considered  for  a

          third time COBs petition for approval of nonconforming uses.  COB

president  Robert Stewart testified again, and COB provided  five

affidavits from additional witnesses as well as business  records

and  invoices.   The Commission concluded, by a preponderance  of

the  evidence, that COB failed to show that within the past  year

the  property  was used for a public garage; thus, COB  lost  the

right  to  use  the property for a public garage.3  However,  the

Commission  found that COB was entitled to continued use  of  the

property  for  vehicle maintenance and repair as defined  by  HCC

21.32.542 and HCC 21.32.543 as lawful nonconforming uses.

          Griswold again appealed to the Board, raising the  same

issues  currently before this court, and the Board  affirmed  the

Commission  in all respects.  Griswold appealed to  the  superior

court,4  which  also  affirmed in  all  respects.   Griswold  now

appeals  to  this court.  The City of Homer and  COB  have  filed

notices of nonparticipation.

III. STANDARD OF REVIEW

          Judicial  review of zoning board decisions  is  narrow,

and board decisions are accorded a presumption of validity.5  The

zoning bodys decision shall not be reversed if it is supported by

substantial evidence.6

          Substantial  evidence is generally defined as  evidence

that  a  reasonable mind might accept as adequate  to  support  a

conclusion.7   Zoning board interpretations of zoning  ordinances

should  be  given  great weight and should be  accepted  whenever

there  is a reasonable basis for the meaning given by the board.8

This  deferential standard reflects the fact that the  Commission

and  the  Board have expertise in administering zoning ordinances

and  they  receive  deference  equal  to  that  accorded  to   an

administrative agency.9  With respect to questions of law that do

not  involve  Commission or Board expertise,  we  substitute  our

independent judgment.10  Because the superior court was acting as

an  intermediate  appellate court, we  independently  review  the

record.11

IV.  DISCUSSION

     A.   The  Commissions Findings Are Supported by  Substantial

          Evidence.

          A.   This appeal concerns the Commissions approval of COBs

nonconforming use.  It is the responsibility of the landowner  to

show  proof  of continuing nonconforming use of any  property  or

structure which is in nonconformity.12  The Commission serves  as

fact  finder,  and  we determine whether the Commissions  factual

findings are based upon substantial evidence.13

          The  ordinance  in  effect at the time  COB  filed  its

petition, HCC 21.64.030, provided that [o]nce the [nonconforming]

use is changed or discontinued, or the structure not used for the

specific use for more than one year, it shall not be repermitted.14

While  the Commission found that the ordinance required proof  of

intent  to  discontinue  as  well as actual  discontinuance,  the

superior court disagreed and found that intent was irrelevant  to

the  one  year  non-use provision.  The superior court  concluded

that the only reasonable interpretation of the one year provision

is that a nonconforming use terminates as soon as the property is

not  actually  used for the nonconforming use for one  continuous

year.   Thus,  on  remand,  COB  was  required  to  show,  by   a

preponderance of the evidence, that no period of greater than one

year  elapsed during which no vehicle maintenance or repair  took

place on the property.

          The Commission voted against permitting continuation of

the  nonconforming use as a public garage, but voted four to  one

that  COB  had  maintained  its grandfather  rights  for  vehicle

maintenance  and repair.  The Commission indicated that  although

the   evidence  satisfied  the  preponderance  of  the   evidence

standard,  it probably would not satisfy a higher standard.   The

Board, which must accept the Commissions findings of fact if they

are  supported  by  substantial evidence,15  concluded  that  the

findings were adequately supported by the record.

          Griswold  claims  that although COB  provided  a  large

          quantity of evidence, [it] was unable to provide substantial

evidence  as  provided in HCC 21.68.070(c)(4).  Griswold  alleges

that  the  receipts and affidavits that showed work was performed

at COBs lot were fabricat[ed] and lacking in fundamental details.

Griswold  further  asserts  that even  if  all  the  evidence  is

accepted as valid, there are one-year gaps.

          COB   maintains   that  it  has  documented   forty-six

instances  of  vehicle repair and/or maintenance on the  property

since  1991.  Even while the property was being leased to Maggies

Taxi,  COB  occasionally performed repair work  on  the  premises

solely  to  maintain its grandfather rights.   In  addition,  COB

president  Stewart testified before the Commission that  although

he  was  told he only had to work on the property once a year  to

maintain  his grandfather rights, he worked on the property  more

than  once  a  year.  Stewart conceded that COB did  not  run  an

ongoing,  day-to-day  business on  the  property.   It  performed

services on the property for cash, checks, and trade out, meaning

Stewart  sometimes traded vehicle services for supplies or  other

work.

          Substantial  evidence is defined as what  a  reasonable

mind might accept as adequate to support a conclusion.16  Assuming

that  COBs occasional use of the property solely to maintain  its

grandfather rights provides a legal basis to allow a  finding  of

continued  nonconforming  use, there is substantial  evidence  to

support  the trial courts findings.17  There are several specific

vehicle maintenance and repair entries every twelve months.   The

existence of these activities was established by evidence of over

fifty  instances of vehicle maintenance and repair.   Because  it

was  not  unreasonable  for  the Commission  to  accept  this  as

evidence  of continuing nonconforming use, we conclude  that  the

Commissions findings are supported by substantial evidence.

     B.   The Work Was of a Commercial Nature.

          Griswold   also  argues  that  COB  did   not   perform

commercial  automotive service and repair;  rather,  it  bartered

          services for friends and associates.  Griswold contends that this

is  insufficient to maintain grandfather rights.  Although  there

is  no commercial requirement in the applicable provision,18  COB

concedes  that to qualify as a valid nonconforming use, the  work

in  question must have been performed on anothers vehicle and  in

exchange for consideration of some sort.  COB adds that  this  is

not  an  issue because all of the work performed on the  property

was  on third-party vehicles and that COB received cash or  trade

out for all of the work.

          Griswolds argument boils down to a contention that  for

work  to  be  considered  commercial, it  must  be  performed  on

strangers  vehicles  for  cash.   Not  only  is  this  a   unique

interpretation  of the term commercial, but it  would  be  nearly

impossible  to  achieve in a small town like Homer.   The  record

indicates  that  COB  performed work on  the  vehicles  of  other

persons, and that he received some form of consideration for  the

work.   That  is  sufficient to qualify  as  commercial  in  this

context.

     C.   Vehicle  Maintenance and Repair Do Not  Have  To  Occur

          Outdoors.

          Griswold also claims that the Commission has disallowed

the use of the property as a public garage,19 yet allowed vehicle

maintenance  and  repair  to  occur  inside  a  building,   which

effectively allows use of the property as a public garage.  There

is  no merit in this argument and the Board properly addressed it

by  pointing  out  that  there  is no  requirement  that  vehicle

maintenance and repair occur outdoors.

     D.   The Commission or Board Members Were Not Biased.

          A.   Griswold sets forth two claims of bias, one against a member

of  the  Commission and the other against a member of the  Board.

Griswold  argues that the two members had disqualifying bias[es].

The  Homer City Code does not have an ordinance that specifically

pertains  to  bias.   Each municipality is directed  to  adopt  a

conflict of interest ordinance that provides that a member  of  a

          governing body shall declare a substantial financial interest the

member  has  in an official action and ask to be excused  from  a

vote on the matter.20  Homers conflict of interest ordinance, HCC

21.68.090, provides that a member of the Commission or Board  may

not  participate  in  the deliberation or voting  process  of  an

appeal if that person has a substantial financial interest in the

official  action,  or [o]ther legal grounds for  disqualification

are  established.   The  ordinance does not  define  other  legal

grounds  for disqualification.  Homer has also enacted an  entire

chapter  on  conflicts of interest as they pertain to other  city

officers.21  The conflicts of interest chapter applies only in the

event  that  a  city employee or other officer has a  substantial

financial interest in an official action.22

          There  have  been no allegations that either challenged

member has any financial interest in the property at issue  here;

therefore  the only code provision that applies is HCC 21.68.090,

which  provides  for  other legal grounds  for  disqualification.

Since the version of HCC 21.68.090 in effect at the time did  not

provide  a  remedy in the event that a conflict  of  interest  is

established,   we   draw  guidance  from  the   three-part   test

established in Griswold v. City of Homer to determine whether the

Commission  or  Board  decisions  must  be  invalidated.23    The

threshold issue is whether a member with a disqualifying interest

cast  the  decisive vote.  If so, the ordinance is  invalid.   If

not,  the  court examines three factors:  (1) whether the  member

disclosed  the interest or the other council members  were  fully

aware  of it; (2) the extent of the members participation in  the

decision; and (3) the magnitude of the members interest.24

          1.   Chairperson Evans

          Griswold  asserts  that Commission  Chairperson  Evanss

question as to whether it would be appropriate for the Commission

to   reach  a  decision  different  from  its  original  decision

constitutes  bias.   He further asserts that  Chairperson  Evanss

eager[] acceptance of COBs testimony and unwarranted warnings  to

          Mr. Griswold also constitute bias.  Griswold therefore argues

that  Evanss  participation  in  the  process  has  tainted   the

proceedings and that all proceedings in which he was involved are

therefore invalid.

          The  Commission first approved COBs nonconforming  uses

in  January 1997.  Griswold appealed to the Board, which reversed

the  Commission,  and  COB then appealed to the  superior  court,

which  in  October 1998 reversed the Board and  remanded  to  the

Commission to determine whether vehicle maintenance and repair as

defined  in  the Homer City Code took place on the property.   On

remand  in January 1999, Evans  who was not chairperson when  the

first  approval  was  granted  in  1997   asked  the  Commissions

attorney, Allen Tesche, whether the Commission could reverse  its

prior   decision.   In  response,  Tesche  explained   that   the

Commission  was  the  trier of fact and,  based  on  the  current

evidence, could issue a decision different from its original one.

          The above exchange does not constitute a conflict under

the  Homer  City  Code.  It is also difficult to see  how  Evanss

brief  exchange  with Tesche could constitute legal  grounds  for

disqualification.   Evans, a non-lawyer and recent  appointee  as

chairperson, expressed a legitimate concern regarding whether the

Commission was bound by its earlier decision.  In addition,  this

exchange25 allegedly took place in January 1999 before the second

Commission   decision  that  was  later  reversed.    The   third

Commission  decision  underlying the  present  case  occurred  in

January  2000,  when  the  Commission was considering  additional

evidence  under a different standard.  Indeed, Griswolds argument

that  Evans is biased against him is undermined by the fact  that

Evans  voted against COB in the second decision, concluding  that

COB   had   not  demonstrated  continuing  nonconforming   use.26

Griswolds other claims regarding Evanss eager acceptance of  COBs

testimony and unwarranted warnings have no merit.

          2.   Board Member Fenske

          1.   Griswold asserts that Board member Fenske also had a

          disqualifying bias and that his participation automatically

nullifies  the vote of the Board of Adjustment. In January  1999,

on  the first remand to the Commission,27 Fenske, who was  not  a

member  of  the Commission or Board at the time, participated  in

the  audience commentary at the end of the hearing and voiced his

agreement   with   the  Commissions  decision  to   approve   the

nonconforming uses.  Later, Fenske was appointed to the Board and

served  at  the  Boards  March  1999  and  April  2000  hearings.

Griswold  raised  the issue of possible bias on  both  occasions.

Fenske explained that his comments reflected approval of the  way

in  which  the  Commission  handled the  situation,  rather  than

approval of the result:

          And  I   we should explain the comments  that

          were   made  at  the  [Commission]   hearing.

          Because  they arent all inclusive.   But,  it

          was   a  very  difficult  hearing  that   the

          [Commission] had dealt with.  And my comments

          were  merely with the evidence that they  had

          been  presented with.  I thought they  did  a

          good  job  of  coming to a  conclusion.   One

          conclusion  or  another. . .  .  But  I  dont

          think,   you  know,  my  judgment  has   been

          impaired  by  the  fact that  I  was  showing

          support  for  a task, a hard task,  that  was

          pursued by a commission.

When specifically asked by Mayor Cushing, who served on the Board

at  the  time, whether he could base his decision on the evidence

in  front of him, Fenske apparently said yes, but then added that

he  understood  why  Griswold would feel uncomfortable  with  his

presence on the Board.28

          Assuming  Griswolds quotations of Fenskes comments  are

accurate, they do not rise to the level of a disqualifying  bias.

Fenskes  statement  to the Commission that  he  agreed  with  its

decision  was made in January 1999.  At that time, the Commission

          was proceeding under a different legal standard on a different

evidentiary  record.   Eight  months after  Fenskes  comment,  in

September 1999, the superior court remanded the case for a second

time  and  clarified  that  the Commission  had  used  the  wrong

standard  to  determine whether COBs various non-conforming  uses

had  been discontinued.  The Board did not make the decision  now

on  review  until  June 2000.  In addition,  again  assuming  the

veracity  of  Griswolds quotation, Fenskes March 1999 explanation

of  his  earlier  comments  suggests that  his  remark  indicated

approval   of  the  way  the  Commission  handled  the   delicate

situation,   rather  than  an  approval  of  the  result.    This

explanation is not unreasonable.

          Even  if  Fenskes comment did amount to bias, it  would

not  necessarily invalidate the Boards decision.  Fenske did  not

have  a  financial  or personal interest in the  case;  moreover,

Fenske  did  not  cast the deciding vote.  There were  six  Board

members and the decision was unanimous.  Applying the factors  of

Griswold  v.  City of Homer,29 (1) the Board members  were  fully

aware  of Fenskes possible bias because it was raised by Griswold

and the Board solicited Fenskes explanation twice; (2) the extent

of   Fenskes  participation  cannot  be  determined  because  the

decision  was reached in executive session; and (3)  Fenske  does

not  have  a  financial or other interest in the outcome  of  the

case.   These  factors  weigh in favor of  not  invalidating  the

Boards decision.

          In  a related argument, Griswold also claims that Mayor

Cushing  did not have the authority to rule as to whether  Fenske

had  a  disqualifying bias.  After Griswold raised the  issue  of

Fenskes  purported bias for a second time in April  2000,   Mayor

Cushing  stated his opinion that Fenske was not biased  and  then

gave the Board the opportunity to override him:

          MAYOR CUSHING:  . . . [i]f the Board sees fit
          to   override  or   or  make  the  motion  to
          override and have a vote at this . . . .
          
          . . . .
     
          COUNCIL MEMBER WELLS:  . . . I guess I myself
          feel  that  that [Fenskes] impartial in this,
          and  would a motion be necessary to  reaffirm
          that?
          
          MR.  TANS:  It  it would not be necessary  to
          reaffirm  it, in light of the Mayors  already
          ruling that he should participate, and if the
          Board  does  not  move to override  that,  it
          signifies your at least passive approval.
          
          COUNCIL MEMBER WELLS:  So I think he stays.
          
          MAYOR  CUSHING: Okay.  Any  in  other  words,

          the   anybody on the Board right now has  the

          opportunity to take it to a vote if you like.

          If not  okay, well proceed.

Thus,  the  Board agreed with the Mayor on the issue  of  Fenskes

participation  and did not vote to override the  Mayors  decision

that Fenske was unbiased.

          The  conflict  of  interest provision,  HCC  21.68.090,

appears  not to have contained a clause to address who determines

disqualification, and the current version simply states that  the

Commission or Board determines whether a conflicted member should

participate.  Homers chapter on conflicts of interest, which  was

in  effect  when these proceedings were initiated, provided  that

voting  members  of  city  boards or  commissions  must  disclose

financial  interests, and may not participate in  the  debate  or

vote  upon  the  matter unless the board or commission  determine

that a financial interest is not substantial.30  We conclude that

the  Board proceeded with proper caution by discussing the matter

on  the  record;  moreover,  the Board  had  the  opportunity  to

override the Mayors initial determination and elected not  to  do

so.   This  procedure  does  not  conflict  with  any  applicable

provisions.

     E.   The  Board Did Not Improperly Review the Case  with  an

          Incomplete Record.

          Griswolds  fourth  claim of error  is  that  the  Board

improperly decided this case without having a complete record  of

the  Commissions January 12, 2000 proceedings.  Griswold contends

          that by reviewing the record without a transcript of the

Commissions  proceedings, the Board manipulated  the  evidentiary

record  to achieve a desired result.  However, Griswold fails  to

note  that, according to HCC 21.68.070, it was his responsibility

to obtain a transcript of the testimony before the Commission:

          A verbatim transcript of the testimony before

          the Planning Commission will be included only

          if  a  party makes a written request  to  the

          City  Clerk within ten days after the  filing

          of  the  notice  of  appeal  .  .  .  .   All

          arrangements   for   preparation    of    the

          transcript  are  the  responsibility  of  the

          party desiring the transcript.

It  was thus Griswolds responsibility to request and provide  the

transcript.   He  acknowledges  that  the  ten-day  deadline  for

providing a transcript was March 3, 2000.  He also concedes  that

he  did  not  meet  that deadline, and filed  a  request  for  an

extension  on March 10, 2000.  That late request was denied,  and

Griswold does not challenge that ruling.  There is no error here.

     F.   Griswold Was Not Improperly Denied the Right To  Cross-

          Examine.

          A.   Griswold also claims that his case was prejudiced by the

inadequate  notice  of his right to cross examine  COB  president

Stewart  at  the  January 12, 2000 hearing and  by  warnings  and

restrictions  imposed  on  his cross-examination  by  Chairperson

Evans.  He further asserts that [t]he agenda should have  advised

parties  of  their right to cross examine and of their  potential

obligation to face cross examination.  This argument also has  no

merit.   Griswold was given the opportunity to and, in fact,  did

cross-examine  Stewart.   Griswold was evidently  aware  that  he

would  have  this  opportunity to cross-examine  because  he  had

prepared  cross-examination questions.31   Furthermore,  Griswold

failed  to  object at the hearing that he did not  have  adequate

notice  of  the  opportunity  to cross-examine  or  that  he  was

          unprepared to do so.

          Moreover, Chairperson Evans did not impose restrictions

on  Griswolds cross-examination of Stewart.  Rather,  Chairperson

Evans  cautioned  Griswold  to  be  brief  [and]  courteous,  and

reserved  the right to reign [sic] [Griswold] in should [he]  get

out  of  tolerable acceptance level.  These admonitions  did  not

constitute   substantive   restrictions   on   Griswolds   cross-

examination  and  did  not  interfere  with  his  examination  of

Stewart.

     G.   Griswold Was Not Improperly Denied the Opportunity To Speak.

          A.   Griswolds final argument is that neither the parties nor the

public  were  provided the opportunity to  speak  at  the  Boards

meeting.   He bases this claim on AS 29.20.020(a) which  provides

that  municipal  bodies shall provide reasonable opportunity  for

the  public  to  be heard at regular and special meetings.   That

statute  also  provides that [m]eetings of all  municipal  bodies

shall  be  public  as provided in AS 44.62.310.   Alaska  Statute

44.62.310,  the  Open  Meetings  Act,  specifically  provides  an

exemption for governmental bodies performing a judicial or quasi-

judicial  function  when  holding a  meeting  solely  to  make  a

decision in an adjudicatory proceeding.32  Griswold concedes that,

because  of  this provision, the Board is exempt  from  the  Open

Meetings  Act.   However, he seems to argue  that  the  provision

allowing reasonable opportunity for the public to be heard exists

in  a  vacuum and is unaffected by the Boards exemption from  the

Open  Meetings  Act.  Thus, Griswold is claiming that  while  the

Board  may  conduct its appellate review in private,  the  public

must  be afforded the opportunity to speak at closed proceedings.

Such  a  result  is incongruous and would eviscerate  the  Boards

exemption from the Open Meetings Act.  Nevertheless, even  if  he

were entitled to be heard, he made no oral or written request  to

speak.   Furthermore,  he  filed two appellate  briefs  with  the

Board.   Griswold  had reasonable opportunity to  set  forth  his

arguments, and he did so.

V.   CONCLUSION

          For the foregoing reasons, the decision of the superior

court is AFFIRMED.

_______________________________
     1     Homer  City  Code (HCC) 21.64.010; HCC 21.64.015;  HCC
21.64.030; HCC 21.64.035.

     2      Specifically,   the  superior  court   directed   the
Commission  to  reopen  the record to determine  whether  vehicle
maintenance, as defined in HCC 21.32.542, and vehicle repair,  as
defined in HCC 21.32.543, continued on the property for the years
in question.  Homer City Code 21.32.542 provides:

          Vehicle  maintenance means to keep a  vehicle
          in proper running condition by services which
          do   not   customarily  require  a  qualified
          mechanic such as the installation and service
          of  lubricants, tires, batteries,  and  other
          small accessories.
          
Homer City Code 21.32.543 provides:

          Vehicle  repair  or  auto  repair  means   to
          restore  a  vehicle  to a sound  state  after
          decay,  dilapidation, or partial  destruction
          with such repair requiring the services of  a
          qualified mechanic.
          
     3     As  defined  in HCC 21.32.215, a public  garage  is  a
building other than a private garage used for the care, repair or
equipment  of automobiles, or where such vehicles are  parked  or
stored for remuneration, hire or sale.

     4    The first two appeals to the superior court were before
Judge Jonathan H.  Link.  On this third appeal, Griswold filed  a
peremptory challenge of Judge Link and the case was reassigned to
Judge Harold M. Brown.

     5     South  Anchorage Concerned Coalition, Inc. v.  Coffey,
862 P.2d 168, 173 (Alaska 1993).

     6     Id.;  Galt  v.  Stanton, 591 P.2d 960, 962-63  (Alaska
1979).

     7     DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska  2000)
(quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska
1978)).

     8     South Anchorage Concerned Coalition, 862 P.2d  at  173
n.12  (quoting 3 Edward Ziegler, Rathkophs The Law of Zoning  and
Planning  42.07 (1992)).

     9     Lazy  Mountain Land Club v. Matanuska-Susitna  Borough
Bd.  of  Adjustment  & Appeals, 904 P.2d 373,  385  n.68  (Alaska
1995).

     10     Alaska Public Employees Assn v. State, 831 P.2d 1245,
1247 (Alaska 1992).

     11    South Anchorage Concerned Coalition, 862 P.2d at 173.

     12    HCC 21.64.035.

     13    South Anchorage Concerned Coalition, 862 P.2d at 173.

     14     HCC  21.64.030 (1996) (language has  since  undergone
minor alteration).

     15    HCC 21.68.074(e).

     16     DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000)
(quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska
1978)).

     17    The standard applied by the Commission was whether COB
had  performed work on the property once per year.  This standard
is  apparently  consistent with advice to  Stewart  by  the  City
Planning   Department  that  he  only  had  to  perform   vehicle
maintenance  and repair on the property once a year in  order  to
continue the nonconforming use.  Griswold has not challenged this
standard  and  it  is therefore not before us  for  review.   But
whether   one   use  per  year  is  sufficient  to   maintain   a
nonconforming use remains an open question.  The authorities  are
split  on the issue.  8A Eugene McQuillan, Municipal Corporations
25.194  (3d ed. 1994) (Casual, intermittent or temporary  use  of
land  may  be  enough  to stop the running  of  a  discontinuance
period.);  Estate of Cuomo v. Rush, 708 N.Y.S.2d 695  (N.Y.  App.
2000)  (holding  that nonconforming use as a nightclub  had  been
lost  where the property was used as such only once per year  for
an  annual  holiday party attended by twenty to forty people  and
held  for the sole purpose of maintaining the nonconforming use);
but  see  Islip  v.  P.B.S. Marina, 518 N.Y.S.2d 427  (N.Y.  App.
1987)  (holding that nonconforming use as a marina was  not  lost
where  one  mooring was leased and used at least once per  year);
cf.  Cizek v. Concerned Citizens of Eagle River Valley, Inc.,  41
P.3d  140, 143 (Alaska 2002) (noting that nonconforming uses  are
disfavored  and  should  be terminated  as  quickly  as  possible
because  those  uses frustrate a local governments implementation
of consistent and logical land use planning).

     18     In  addition, Chapter 21.32 of the Homer  City  Code,
which   sets  forth  the  zoning  definitions,  does  not  define
commercial.

     19     As  defined  in HCC 21.32.215, a pubic  garage  is  a
building other than a private garage used for the care, repair or
equipment  of automobiles, or where such vehicles are  parked  or
stored  for remuneration, hire or sale.  Compare to HCC 21.32.542
and 21.32.543, set forth in full, supra note 2.

     20    AS 29.20.010(a).

     21    See HCC 1.12.020 (council members); HCC 1.12.060 (city
employees and officials); HCC 1.12.070 (members of city boards or
commissions).

     22    HCC 1.12.

     23    925 P.2d 1015, 1029 (Alaska 1996).

     24    Id.

     25     For  purposes of this argument, we are  assuming  the
exchange  actually did take place where and when Griswold  claims
because,  while the two transcript pages containing the  exchange
are in the record, they are undated, out of context, and there is
no  title  or  other identifying information to  show  that  they
actually occurred at the January 1999 Commission meeting.

     26     Evans did find that COB had intended to continue  the
nonconforming uses, and therefore approved them.

     27     The January 1999 remand was the first of two remands,
and was designated by a different case number.

     28     There  is  no  record support for these  comments  by
Fenske.  Griswolds citations in his brief are to an earlier brief
containing these statements allegedly by Fenske.  We have no  way
of  verifying  the statements attributed to Fenske while  on  the
Board, nor can we discern their proper context.

     29    925 P.2d 1015, 1029 (Alaska 1996).

     30     HCC 1.12.070.  The two authorities Griswold cites  in
support of his argument that the Mayor could not decide whether a
conflict existed are inapplicable:  HCC 21.68.100 only applies to
ex  parte  contacts,  and Section G of the Bylaws  of  the  Homer
Advisory   Planning  Commission  only  applies  to  the  Planning
Commission.

     31     Griswold asked I was wondering if I was going  to  be
given the opportunity to cross examine that witness before I give
my  presentation.   Griswold  then  asked  Stewart  a  series  of
questions  about  licensing,  sales,  tax,  and  Stewarts   prior
testimony.

     32    AS 44.62.310(d)(1).