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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).
