Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. City of Homer (06/20/2008) sp-6276

Griswold v. City of Homer (06/20/2008) sp-6276, 186 P3d 558

     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,


) Supreme Court No. S- 12226
Appellant, )
) Superior Court No. 3HO-04-132 CI
v. )
) O P I N I O N
) No. 6276 - June 20, 2008
Appellee. )

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Charles T. Huguelet, Judge.

          Appearances:  Frank Griswold, pro se,  Homer.
          Gordon J. Tans, Perkins Coie, Anchorage,  for

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh,  and Carpeneti, Justices.  [Bryner,
          Justice, not participating.]

          EASTAUGH, Justice.
          CARPENETI, Justice, dissenting.

          After  the  Homer  City  Council  passed  an  ordinance
limiting  the floor area of stores in three City of Homer  zoning
districts  to  between  20,000  and  45,000  square  feet,  Homer
residents passed an initiative that increased the area to  66,000
square feet for all three zoning districts.  Homer resident Frank
Griswold sued the city and argued that the initiative was invalid
for  various  reasons.  The superior court upheld the  initiative
and  granted  summary  judgment to the city.   Griswold  appeals,
arguing  that  zoning is not a proper subject for an  initiative.
Because  this zoning initiative impermissibly bypassed the  Homer
Advisory  Planning  Commission, and therefore exceeded  the  city
council's  own legislative power, we conclude that the initiative
was  invalid.   We consequently remand for entry of judgment  for
          When  Fred Meyer, Inc. publicly announced plans in late
2002 to build a 95,000-square-foot store in Homer, the city began
an  extensive  review of its existing zoning  code  to  determine
whether  it  needed  to alter floor area limits  for  retail  and
wholesale  stores.  For two years, beginning in March  2003,  the
question  was  considered by a special task force, by  the  Homer
Advisory  Planning Commission, and by the Homer City  Council  in
more  than  a  dozen hearings.  After analyzing issues  including
traffic  impact,  the  ideal  rate of  development,  landscaping,
maintaining   the  local  character  of  Homer,  and   protecting
groundwater,   the   planning  commission  made   a   series   of
recommendations  to  the city council regarding  the  appropriate
floor area for retail and wholesale stores.
          While  those hearings were still being conducted, Homer
voters  in  March  2004 filed with the city clerk  an  initiative
petition  that proposed a "footprint area" of 66,000 square  feet
for  retail  and  wholesale  business buildings  in  the  Central
Business  District,  General Commercial 1 District,  and  General
Commercial  2  District.   On April 12, 2004,  the  city  council
passed  Ordinance 04-11(A), which set building floor area  limits
of 35,000 square feet in the Central Business District, 20,000 to
45,000  square  feet in the General Commercial  1  District,  and
45,000 square feet in the General Commercial 2 District.  On  the
same  day,  in  response  to the initiative  petition,  the  city
council  scheduled  an election on the initiative  for  June  15,
2004.   The  voters  approved  the  initiative  at  the  June  15
election;  the initiative became effective on June  21,  2004  as
Ordinance 04-18.
          Stating  that a change in the zoning code sections  was
"required to properly convey the will of the voters," and that an
ordinance was "necessary to implement the will of the voters," in
February  2005 the city council enacted Ordinance 05-02, adopting
a  maximum  floor  area  of 66,000 square  feet  for  retail  and
wholesale  business  buildings  in  the  three  affected   zoning
districts. Ordinance 05-02 amended Ordinance 04-11(A) to  reflect
the  text  of  the  initiative. Ordinance 05-02 also  effectively
defined "footprint area" as "floor area," meaning "the total area
occupied  by a building, taken on a horizontal plane at the  main
grade level, exclusive of steps and any accessory buildings."1
          Frank   Griswold  challenged  the  initiative  in   the
superior  court, claiming among other things that the  initiative
process  could  not be used to amend the zoning code.   The  city
prevailed on summary judgment.
          Griswold appeals.
     A.   Standard of Review
          We  review  a grant of summary judgment de  novo.2   We
decide  the questions of law presented on appeal from a grant  of
          summary judgment by adopting "the rule of law that is most
persuasive in light of precedent, reason, and policy."3
     B.   The  Initiative Was an Invalid Exercise of  the  City's
          Legislative  Authority Because It  Bypassed  the  Homer
          Advisory Planning Commission.

          Griswold  argues that the zoning initiative is  invalid
for  several reasons.  He contends, among other things, that  the
zoning  authority delegated to the City of Homer requires  it  to
pass  only zoning ordinances that are consistent with the  city's
comprehensive plan.  The city, citing Citizens Coalition for Tort
Reform  v.  McAlpine,4  responds that the voters'  constitutional
right  to enact initiatives should be broadly construed to permit
the  voters to amend zoning laws.  The city contends that because
the  city  council has the power to enact zoning ordinances,  the
voters must have the same power.
          The  power  to  initiate cannot  exceed  the  power  to
legislate.5   To  decide whether Homer voters  could  invoke  the
initiative process to amend the City of Homer zoning code we must
determine the extent of the city council's zoning power  and  the
explicit  and  implicit limitations on that  power.   The  city's
zoning  power  flows from two sources: Alaska statutes  providing
for   planning,  platting,  and  land  use  regulation  by  local
governments,  and  Kenai Peninsula Borough ordinances  delegating
zoning powers to cities within the borough.
          We  first  review the statutory sources of that  power.
Alaska Statute 29.40.010 requires first and second class boroughs
to provide for "planning, platting, and land use regulation on an
areawide  basis."6   If  a  city within  a  borough  consents  by
ordinance, the borough assembly may delegate any of its land  use
regulation  powers  to  the city.7  Alaska  Statute  29.40.020(a)
provides that the borough "shall establish a planning commission"
and  AS 29.40.020(b) provides that the planning commission "shall
prepare  and  submit a proposed comprehensive plan in  accordance
with  AS  29.40.030  .  .  .  ."8   Section  .030  describes   "a
comprehensive  plan"  as  "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."9
          These statutes require "areawide" planning and creation
of  a  comprehensive  plan  "for  the  systematic  and  organized
development" of the community, and they implicitly recognize  the
importance of the planning commission and the comprehensive  plan
to the process of regulating land use.10
          A  planning  commission has statutory  responsibilities
beyond  drafting the comprehensive plan.  Per AS 29.40.020(b)(2),
the  commission  must  also  "review, recommend,  and  administer
measures necessary to implement the comprehensive plan, including
measures   provided  under  AS  29.40.040."11   Because   "zoning
regulations"  are  one  of  the  "measures  provided   under   AS
29.40.040,"12   subsection  .020(b)(2)  requires   the   planning
commission   to   "review,  recommend,  and  administer"   zoning
regulations "necessary to implement the comprehensive plan."  The
assembly  by ordinance "shall adopt or amend" land use provisions
          "[i]n accordance with a comprehensive plan" and "in order to
implement the comprehensive plan."13
          The  statutes  therefore  expressly  require  that  the
planning   commission  have  an  active  role   in   creating   a
comprehensive   plan   for  "systematic  and   organized"   local
development,  reviewing and recommending zoning regulations,  and
adopting  measures  "necessary  to  implement  the  comprehensive
plan."14   The  statutes implicitly recognize that  the  planning
commission plays an important part in the formation and amendment
of  local  land  use regulations by providing assistance  to  the
borough  (or  city)  to  ensure that development  proceeds  in  a
"systematic and organized" manner.15
          We  now consider the second source of the city's  power
to regulate land use.  The Kenai Peninsula Borough, by ordinance,
delegated  the  zoning  power to cities  willing  to  accept  the
delegation, and also delegated to those cities power to establish
a  planning  commission "to hear all requests for  amendments  to
zoning codes."16  The same ordinance also authorized a city  with
this delegated zoning power to "exercise all zoning powers within
the  city to the extent that such powers have been granted to the
borough  by  statute."17  The Kenai Peninsula  Borough  therefore
delegated  the  power to regulate zoning to the  City  of  Homer,
which  by ordinance requested the delegation.  The city, standing
in the place of the borough, was therefore obligated to establish
a  zoning commission, draft a comprehensive plan, and comply with
state law governing planning and land use regulation.  And,  most
relevant  here, KPBC 21.01.020(B) delegated to the  city  council
"the  power  to  establish  a planning  commission  to  hear  all
requests for amendments to zoning codes."
          The  City  of Homer created the Homer Advisory Planning
Commission, in accordance with AS 29.40.020 and KPBC
The  city  charged  the  commission  with  holding  hearings  and
preparing  recommendations for the city  council  when  a  zoning
amendment is proposed.19  In addition, the commission may propose
amendments to the zoning code.20
          The   city  council  also  has  the  power  to  propose
amendments  to  zoning  ordinances,21  as  does  "any  person,"22
presumably meaning any Homer resident.
          The relevant state statutes are clear.  A borough or  a
city,  having  the power possessed by the City of  Homer,  cannot
pass  or amend a zoning ordinance without  involving its planning
commission  in reviewing that ordinance.23  This review  includes
considering whether a proposed ordinance is consistent  with  the
comprehensive  plan.24  A borough assembly or  city  council  may
eventually  choose  not  to  follow the  recommendations  of  the
planning  commission,  but the statutes  preclude  bypassing  the
planning commission altogether.
          Likewise,  KPBC   21.01.020(B) gives the  city  council
power to establish a planning commission to hear all requests for
amendments  to  zoning codes.25  This provision can  be  read  as
giving  the planning commission the primary authority for initial
consideration  of  zoning amendments.  At the  very  least,  this
provision confirms the commission's role in considering  proposed
amendments  to  an existing zoning code that was  itself  adopted
          "[i]n accordance with a comprehensive plan . . . and in order to
implement the plan . . . ."26
          It  is  for  this reason that zoning by  initiative  is
invalid.  The Homer City Council does not have the power to  pass
piecemeal  zoning  amendments without at least giving  the  Homer
Advisory  Planning Commission opportunity to review the proposals
and  make  recommendations.   Therefore,  voters,  who  have   no
obligation to consider the views of the planning commission or be
informed  by its expertise, cannot use the initiative process  to
eliminate the planning commission's role in "areawide"  land  use
planning  and  regulation,  and thus  potentially  undermine  the
comprehensive   plan   for  "systematic  and   organized"   local
          The city contends that we must determine "[w]hether the
Constitution  and statutes preempt the use of the initiative  for
zoning  ordinances."  But, because the initiative was local,  and
not  statewide,  the power to initiate here was directly  derived
from  AS  29.26.100,  not article XI, section  1  of  the  Alaska
Constitution.28  And we conclude that zoning by initiative exceeds
the scope of the legislative power granted by the legislature  to
the city council.
          The   city  also  contends  that  initiatives  are  not
"governed  by  all  the procedures ordinarily applicable  to  the
enactment of city council ordinances."  The city seems  to  argue
that because notice and a hearing are required for a city council
ordinance but not an initiative, it is acceptable for initiatives
to  bypass  certain procedural requirements.  But as seen  above,
the participation of the city's planning commission in the zoning
process required by the legislature and the borough is more  than
just a mere procedural requirement.
          The  facts  in this case illustrate how the  initiative
process limits or even eliminates the intended role of a planning
commission.    The   planning  commission   spent   many   months
considering appropriate floor area limits for business  buildings
in  the  affected zoning districts. The city council charged  the
commission  with  "develop[ing] standards  for  addressing  large
retail and wholesale development" and "recommend[ing] a size  cap
for  large retail and wholesale development."  To that  end,  the
commission, city council, and a task force conducted more than  a
dozen hearings.  The commission reviewed recommendations from the
Large  Structure  Impact Task Force and the Chamber  of  Commerce
Legislative  Committee;  researched  necessary  improvements   to
lighting,  landscaping,  stormwater drainage,  and  parking;  and
developed standards for traffic and economic impact analyses. The
commission  explicitly applied the standards found in  the  Homer
Comprehensive  Plan in its decision-making process.   And  before
the initiative election, the city council considered the planning
commission's   recommendations  and  amended  the  zoning   code,
adopting different floor area limitations for the subject  zoning
districts.  The voters then approved the initiative and adopted a
single,  and  greater, limitation for all three districts  before
the commission completed its findings.
          Given the public hearings that were being conducted and
the  opportunity for public debate, it is logical to ask  whether
          the voters had, in effect, the same access as the council to the
recommendations of the planning commission, and thus whether  the
initiative   process  did  not  actually  bypass   the   planning
commission.    The   council  was  required   to   consider   the
commission's  recommendations, even  if  it  ultimately  rejected
them.  The council acts as a collegial and public body; it  is  a
matter  of  public  record whether it addresses the  commission's
recommendations  and  attempts to reconcile  proposed  amendments
with  the  comprehensive plan and state and  borough  ordinances.
That  is  not at all the process an initiative election  follows.
Just  as  the  council  cannot choose to  completely  ignore  the
recommendations in adopting a zoning amendment, the voters cannot
pass an initiative in which the commission's recommendations play
no formal, or perhaps even informal, role at all.
          The  commission  does more than simply give  notice  of
hearings  and  allow the public to be heard  on  the  subject  of
zoning  ordinances.   If  a  zoning amendment  is  proposed,  the
commission's  role  is  to analyze the  impact  of  the  proposed
changes in light of the city's development goals as stated in the
comprehensive  plan,  and to suggest other  changes  that  should
accompany the proposed zoning amendment.29  Even if a city council
chooses  to  disregard the recommendations of the  city  planning
commission,  its  decision  has been  informed  by  the  planning
commission's consideration of the potential social and regulatory
costs  and  benefits  of  the  proposed  amendment.   The  city's
planning  commission's role is not merely  "procedural,"  but  is
substantive.   Homer  voters  therefore  could  not  bypass   the
commission by using the initiative power.
          The  city argues that if an initiative fails to  comply
with  the  comprehensive  plan, a court  could  review  it  post-
enactment.   Because  the dispute here turns not  on  consistency
with  the  comprehensive  plan, but on  the  involvement  of  the
planning  commission in the amendment process, we are unconvinced
by this argument.
          The  city  argues  that  the  ultimate  issue  here  is
"whether  the  Alaska  Constitution or  statutes  do  or  do  not
delegate the power to enact zoning regulations exclusively to the
city  council."   The  city argues the people's  power  to  enact
zoning measure by initiative is precluded if the constitution and
statutes  delegate  the  power to zone exclusively  to  the  city
council.  The city implies that for Griswold to prevail  we  must
find that the city council exclusively has the power to zone.  We
disagree,  and  instead conclude that Griswold  prevails  because
zoning  by  initiative eliminates the planning commission's  role
both   specified  and  implied  in  state  statutes  and  borough
ordinances.30   Even  if the power to zone  was  exclusively  and
ultimately delegated to the city council, the initiative  process
prevents  the planning commission from exercising the review  and
recommendation power clearly delegated to it.
          Finally,  we consider the validity of Ordinance  05-02.
The  city argues that because Griswold failed to adequately brief
his request to strike down Ordinance 05-02, that ordinance should
not be invalidated.
          Griswold  preserved  the issue  below.   His  complaint
          asked the superior court to "enter an injunction preventing [the
initiative's]  enforcement  or  the  enforcement  of  any   other
ordinance adopted or enacted as a result of this illegal action."
Summary  judgment was granted in favor of the city on that  cause
of action before the city council enacted Ordinance 05-02.
          Griswold adequately argues on appeal that Ordinance 05-
02 would not have been enacted but for passage of the initiative.
The  "whereas" clauses of Ordinance 05-02 seem to establish  that
the  only purpose of the ordinance was "to implement the will  of
the  voters."  The ordinance gives no indication that the council
was giving independent consideration to the planning commission's
recommendations  or that it was considering the zoning  amendment
on  its  own merits in light of the comprehensive plan.   We  are
consequently  persuaded that because the initiative  is  invalid,
the  only legislative purpose for passing Ordinance 05-02 is  now
absent;  Ordinance 05-02 is therefore also invalid.
          We  REVERSE  the  superior  court's  grant  of  summary
judgment and REMAND for entry of judgment for Griswold.
CARPENETI, Justice, dissenting.
          Because  the initiative power gives voters the  ability
to legislate without being subject to the restrictions applicable
to  other  legislative bodies, I cannot agree that the procedural
requirements  applicable to the Homer City  Council  apply  to  a
voter initiative that involves a zoning ordinance.  Therefore,  I
respectfully dissent.
          The  court reasons that Homer voters' power to initiate
is  limited  by the Homer City Council's power to legislate,  and
therefore  voters must necessarily follow the same procedures  as
the  city council.  The court effectively holds that voters  step
into the shoes of the city council when attempting to initiate an
ordinance that involves zoning laws, and therefore the initiative
must be reviewed by the planning commission before the voters may
pass  it.  There are four reasons I believe the court's reasoning
is flawed.
          First,  and most importantly, under the Alaska Statutes
and  the Alaska Constitution the voter initiative is intended  to
be  a sui generis means of legislating that is not subject to the
procedures  applicable  to  regular  lawmaking.   Alaska  Statute
29.26.100   grants  municipal  voters  the  power   to   initiate
legislation.   It provides that "[t]he powers of  initiative  and
referendum  are  reserved  to  the residents  of  municipalities,
except  the powers do not extend to matters restricted by article
XI,  section 7 of the state constitution."1  There are  no  other
limitations on the voters' power to initiate that are relevant to
this  case.   The  process for exercising the initiative  at  the
municipal level is fairly straightforward.  A proposed initiative
is  first  reviewed by the municipal clerk to determine  that  it
meets   certain  substantive  requirements.2   The   initiative's
sponsors  must then gather the requisite number of signatures  to
support  the  initiative petition.3  Where both these  conditions
are  met,  the initiative is to be submitted to the  voters4  and
"[i]f  a  majority  vote  favors  the  [initiated]  ordinance  or
resolution,  it  becomes  effective  upon  certification  of  the
election,  unless a different effective date is provided  in  the
ordinance  or  resolution."5  Similarly, the Alaska  Constitution
requires that statewide initiatives be subject to a technical and
subject  matter review6 and provides that an initiative  will  be
enacted  "[i]f  a  majority of the votes cast on the  proposition
favor its adoption . . . ."7
          The  Alaska  Constitution also  makes  clear  that  the
procedural requirements for enacting an initiative are  different
from   the  procedures  applicable  to  the  regular  legislative
process.  In order for the state legislature to pass a bill,  the
bill  must go through at least "three readings in each  house  on
three  separate days, except that any bill may be  advanced  from
second  to  third  reading  on the same  day  by  concurrence  of
three-fourths of the house considering it" and be approved by "an
affirmative vote of a majority of the membership of each house."8
Unless the governor vetoes the bill within fifteen days after its
passage, it will become law.9
          The differences between the regular legislative process
and the procedures for statewide initiatives demonstrate that the
          framers of our constitution envisioned a separate, simplified
process  for initiative elections, one not generally  subject  to
the   constraints  imposed  on  the  legislature.   The   special
treatment afforded to the initiative process stems from the  fact
that  the  initiative  is  a form of direct  democracy.   As  the
Supreme  Court  of  California  has  explained,  "[t]he  original
proponents  of the initiative and referendum sought to  give  the
electorate the ability to govern directly by majority rule:  this
was  to  be  true  democracy as distinguished from representative
democracy."10   That court has also held that  a  right  of  such
importance should be "jealously guard[ed]."11
          By  importing  requirements applicable to  a  different
legislative body, the court today does exactly the opposite.  Its
approach  not  only  ignores the fact that  initiative  elections
stand  apart from the traditional legislative process,  but  also
weakens voters' ability to participate directly in the affairs of
the  city  in which they live.  In Brooks v. Wright12  we  stated
that  the constitutional framers "chose to include the initiative
process  as  a law-making tool with full knowledge of  the  risks
inherent  to  direct  democracy."13   Today's  decision   ignores
Brooks's wisdom.
          Second,  the  court overlooks that the legislature  has
imposed   explicit   subject  matter  prohibitions  on  municipal
initiatives  and  has  declined to  include  zoning  among  those
prohibitions.  Alaska Statute 29.26.100, in preserving the powers
of  initiative  and  referendum to residents  of  municipalities,
incorporates the limitations that article XI, section  7  of  the
Alaska   Constitution14   imposes  upon   those   powers.    That
constitutional  section lists five matters that may  not  be  the
subject  of  an  initiative:  (1)  dedication  of  revenues;  (2)
appropriations;  (3) creation of courts; (4)  changing  of  court
rules  or  jurisdictions; or (5) local or special  legislation.15
If  the legislature intended to prohibit zoning by initiative, it
could  easily  have included zoning among the prohibited  subject
matters.   That  the legislature did not employ this  simple  and
direct  means to prohibit zoning by initiative strongly  suggests
that it did not intend to accomplish the same result through  the
roundabout means the court today attributes to it.
          Third,  the court bases its decision to prohibit zoning
by  initiative on the concern that allowing zoning by  initiative
would  undermine comprehensive zoning.16  But zoning  ordinances,
whether  they  are enacted by the voters or by the city  council,
are  subject  to post-enactment review.  We explained  in  Brooks
that  "[c]oncerned  parties  can .  .  .  bring  a  post-election
substantive  challenge to what they may believe is an ill-advised
law."17  In Price v. Dahl18 we suggested that an ordinance  could
be  challenged  on the grounds that it is inconsistent  with  the
comprehensive plan, stating, "[b]orough land use regulations  are
to  be  `in accordance' with the comprehensive plan."19  Thus,  I
believe  the  initiated ordinance was subject to a post-enactment
challenge  on  the grounds that it failed to comply with  Homer's
comprehensive plan.
          Finally,  the  court's  decision conflicts  with  well-
reasoned holdings from other states that have addressed zoning by
          initiative.  California has definitively resolved the issue
before  us  today in favor of allowing zoning by initiative.   As
the  California Supreme Court succinctly explained, "[p]rocedural
requirements which govern [City] Council action . .  .  generally
do  not apply to initiatives, any more than the provisions of the
initiative  law govern the enactment of ordinances in council."20
The  Nevada  Supreme Court similarly concluded that voters  could
enact   zoning  laws  through  the  initiative  process   without
following   the  procedures  applicable  to  the   city   council
attempting to enact the same ordinance.21  In both cases  special
procedures applied to the enactment of zoning laws by  the  local
government  bodies, but the courts nevertheless  recognized  that
subjecting   voter   initiatives  to   those   procedures   would
impermissibly restrict the voters' initiative powers.
          In   sum,  the  initiative  process  is  unique.   When
exercising  the initiative power, municipal voters do not  simply
step  into  the shoes of the legislative body they are bypassing,
as  the  court  today assumes.  Instead, voters in an  initiative
election are participating in a process that is separate from the
regular  means  used  for  legislating.  Because  the  initiative
process  is intended to be separate from the procedures that  the
Homer  City  Council must follow when passing a zoning ordinance,
the  initiative ordinance in this case should not be  subject  to
review  by the Homer Advisory Planning Commission.  I would  hold
that  the initiated ordinance does not violate any of the subject
matter  restrictions  imposed by article XI,  section  7  of  the
Alaska  Constitution (and made applicable to municipal  elections
through  AS  29.26.100  and to elections  in  Homer  through  HCC
4.60.010),  and  I  therefore would affirm the  superior  court's
grant of summary judgment to the City of Homer.
     1    Homer City Code (HCC) 21.32.208.

     2     Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 991 (Alaska 2004).

     3    Id.

     4     Citizens Coal. for Tort Reform v. McAlpine,  810  P.2d
162 (Alaska 1991) (stating that people's constitutional right  to
initiate is broad and should be liberally construed).

     5     Municipality of Anchorage v. Frohne,  568  P.2d  3,  8
(Alaska  1977)  (citations  omitted)  ("[T]he  subject   of   the
initiative  must  constitute such legislation as the  legislative
body to which it is directed has the power to enact.").

     6    AS 29.40.010 provides:

          (a)   A  first or second class borough  shall
          provide for planning, platting, and land  use
          regulation on an areawide basis.
          (b)   If  a  city  in a borough  consents  by
          ordinance,  the  assembly  may  by  ordinance
          delegate  any of its powers and duties  under
          this  chapter to the city.  The assembly  may
          by ordinance, without first obtaining consent
          of   the  city,  revoke  any  power  or  duty
          delegated under this section.
     7    AS 29.40.010(b).

     8    AS 29.40.020 provides:

          (a)   Each  first  and second  class  borough
          shall   establish   a   planning   commission
          consisting of five residents unless a greater
          number  is  required by ordinance. Commission
          membership shall be apportioned so  that  the
          number  of  members from home rule and  first
          class  cities  reflects  the  proportion   of
          borough population residing in home rule  and
          first class cities located in the borough.  A
          member  shall  be appointed  by  the  borough
          mayor  for  a term of three years subject  to
          confirmation by the assembly, except  that  a
          member  from a home rule or first class  city
          shall   be   selected   from   a   list    of
          recommendations submitted by the  council.  .
          . .
          (b)  In addition to the duties prescribed  by
          ordinance, the planning commission shall
               (1)   prepare and submit to the assembly
          a  proposed  comprehensive plan in accordance
          with  AS  29.40.030  for the  systematic  and
          organized development of the borough;
               (2)   review, recommend, and  administer
          measures    necessary   to   implement    the
          comprehensive   plan,   including    measures
          provided under AS 29.40.040.
     9    AS 29.40.030 provides:

          (a)   The comprehensive plan is 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
               (1)  statements of policies, goals, and standards;
               (2)  a land use plan;
               (3)  a community facilities plan;
               (4)  a transportation plan; and
               (5)   recommendations for implementation
          of the comprehensive plan.
          (b)  With the recommendations of the planning
          commission,  the  assembly  shall  adopt   by
          ordinance a comprehensive plan. The  assembly
          shall, after receiving the recommendations of
          the    planning    commission,   periodically
          undertake   an   overall   review   of    the
          comprehensive  plan and update  the  plan  as
     10     AS  29.40.010(a) ("areawide basis"); AS  29.40.020(a)
("borough   shall   establish   a   planning   commission");   AS
29.40.020(b)(1)  (requiring planning commission  to  prepare  and
submit  a  "proposed comprehensive plan . . . for the  systematic
and organized development of the borough").

     11    AS 29.40.020(b)(2).

     12    AS 29.40.040(a)(1).

     13     AS  29.40.040(a).  AS 29.40.040 provides in pertinent

          (a)   In accordance with a comprehensive plan
          adopted  under AS 29.40.030 and in  order  to
          implement the plan, the assembly by ordinance
          shall adopt or amend provisions governing the
          use  and  occupancy of land that may include,
          but are not limited to,
               (1)   zoning regulations restricting the
          use  of  land and improvements by  geographic
               (2)    land   use   permit  requirements
          designed to encourage or discourage specified
          uses    and    construction   of    specified
          structures,   or   to  minimize   unfavorable
          effects  of  uses  and  the  construction  of
               (3)   measures to further the goals  and
          objectives of the comprehensive plan.
     14    AS 29.40.020(b)(1), (2); AS 29.40.040(d)(1).

     15    AS 29.40.020(b)(1).

     16    Kenai Peninsula Borough Code (KPBC) 21.01.020 provides
in pertinent part:

          (A)  If  a  city by resolution of the council
               requests  the  assembly to delegate  the
               power   to   provide  zoning  regulation
               within  the  city,  the  assembly  shall
               delegate the power.  A city to which the
               zoning   authority  is   delegated   may
               exercise  all zoning powers  within  the
               city to the extent that such powers have
               been  granted to the borough by statute,
               except  those  powers  reserved  to  the
               borough by Section 21.01.010.
          (B)  The  city council is delegated the power
               to  establish  a planning commission  to
               hear  all  requests  for  amendments  to
               zoning    codes,   or   for   variances,
               conditional   use   permits,    contract
               rezoning[,] or to hear all other matters
               coming   under  the  zoning   ordinances
               enacted by the city. . . .
(Emphasis added.)

     17    KPBC 21.01.020(A).

     18    HCC 1.76.010(a).

     19    HCC 21.70.020(c)(1).

     20    HCC 21.70.010(a)(2).

     21    HCC 21.70.010(a)(1).

     22    HCC 21.70.010(b).

     23    AS 29.40.020.

     24    AS 29.40.030(b), .020(b)(2), .040(a).

     25    KPBC 21.01.020(B).

     26    AS 29.40.040(a).

     27    See supra n.10.

     28     AS 29.26.100 provides: "The powers of initiative  and
referendum  are  reserved  to  the residents  of  municipalities,
except the powers do not extend to matters restricted by art. XI,
7 of the state constitution."

     29     AS  29.40.040(a)(1);  AS 29.40.020(b)(2).   Cf.  KPBC

     30     Both parties cite cases from other jurisdictions that
either reject or approve zoning by initiative.  See, e.g., Kaiser
Hawaii  Kai Dev. Co. v. City & County of Honolulu, 777 P.2d  244,
247  (Haw.  1989)  (holding  that  "[z]oning  by  initiative   is
inconsistent with the goal of long range comprehensive  planning"
and  was  not intended by legislature); see also Garvin v.  Ninth
Judicial  Dist.  Court, 59 P.3d 1180, 1190 (Nev.  2002)  (holding
that  "[if]  a  city  council can enact zoning  legislation,  the
county and city voters can do the same by initiative").  The only
cited  case that deals with the scope of the delegated  power  is
Transamerica  Title Ins. Co. v. City of Tucson,  757  P.2d  1055,
1059 (Ariz. 1988) ("The power to zone is part of the police power
and   may   be  delegated  by  the  State,  but  the  subordinate
governmental  unit  has  no  greater power  than  that  which  is
delegated.").  Transamerica supports the views we express in this
case.   In  Transamerica the Arizona Supreme Court adhered  to  a
prior  holding "that `zoning law is exempted from the  initiative
process,' in order to prevent private citizens from usurping  the
governing  body's  delegated  power and  from  circumventing  the
notice  and hearing requirements of the zoning statute."  Id.  at
1058.   The Arizona court noted that its holding in the  case  on
which it relied was "in harmony with the law in the vast majority
of  other  jurisdictions, which prohibits zoning by  initiative."
Id. at 1059.

1       Homer   City   Code   4.60.010   makes   this   provision
applicable  to elections in the City of Homer.  It states:   "The
provisions  of  Alaska  Statute  29.26  Article  2,  relating  to
Initiative  and Referendum are incorporated into this chapter  as
if fully set out."

     2    AS 29.26.110(a) provides in relevant part:

          [T]he clerk shall certify the application  if
          the  clerk  finds that it is in  proper  form
          and,  for  an initiative petition,  that  the
               (1)  is not restricted by AS 29.26.100;
               (2)  includes only a single subject;
               (3)  relates  to  a  legislative  rather
                    than  to  an administrative matter;
               (4)  would be enforceable as a matter of
     3    AS 29.26.130.

     4    AS 29.26.170.

     5    AS 29.26.170(d).

     6    See Alaska Const. art. XI,  2.

     7     Article  XI,  section  6  of the  Alaska  Constitution

          If  a  majority  of  the votes  cast  on  the
          proposition favor its adoption, the initiated
          measure  is  enacted.  If a majority  of  the
          votes  cast  on  the  proposition  favor  the
          rejection of an act referred, it is rejected.
          .  .  .   An  initiated law becomes effective
          ninety  days  after  certification,  is   not
          subject  to veto, and may not be repealed  by
          the  legislature  within  two  years  of  its
          effective  date.  It may be  amended  at  any
          time.  .  . .  Additional procedures for  the
          initiative  and referendum may be  prescribed
          by law.
     8    Alaska Const. art. II,  14.

     9     Alaska Const. art. II,  17.  If the governor exercises
a  veto,  a bill may become law if the legislature overrides  the
governor's  veto  pursuant  to the requirements  of  article  II,
section 16 of the Alaska Constitution.

10    Citizens  Against  Rent Control v.  City  of  Berkeley,  27
Cal. 3d 819, 826 (1980), rev'd on other grounds, Citizens Against
Rent Control/Coalition for Fair Housing v. City of Berkeley,  454
U.S.  290 (1981); see also McKee v. City of Louisville, 616  P.2d
969,  972  (Colo.  1980) (describing power of  initiative  as  "a
fundamental   right  at  the  very  core  of  our  representative

     11    DeVita  v. County of Napa, 9 Cal. 4th 763, 776  (1995)
(citation omitted).

     12   971 P.2d 1025 (Alaska 1999).

     13   Id. at 1029.

     14   This section provides in full:
          The  initiative shall not be used to dedicate
          revenues,   make  or  repeal  appropriations,
          create  courts,  define the  jurisdiction  of
          courts  or  prescribe their rules,  or  enact
          local  or special legislation. The referendum
          shall  not  be  applied  to  dedications   of
          revenue,  to  appropriations,  to  local   or
          special legislation, or to laws necessary for
          the  immediate  preservation  of  the  public
          peace, health, or safety.
     15   The only prohibited subject matter listed in article XI
into  which the initiative ordinance  could potentially  fall  is
"local  or special legislation."  Because the districts  affected
were  all  commercial  and the initiative appears  to  have  been
intended  to  promote commercial development of  those  areas,  I
would  hold  it does not constitute local or special legislation.
See  Boucher  v.  Engstrom,  528  P.2d  456,  463  (Alaska  1974)
("[Classifications   based   upon   population   or   territorial
differences]  will  be sustained where founded  upon  a  rational
difference of situation or condition existing in the objects upon
which  it  rests, and where there is a reasonable basis  for  the
classification  in  view  of  the  objects  and  purposes  to  be
accomplished.") (citations omitted), partially overruled on other
grounds,  McAlpine v. Univ. of Alaska, 762 P.2d  81,  85  (Alaska

          Article  XII,  section  11 of the  Alaska  Constitution
creates  a  catch-all restriction that prohibits  the  initiative
from  being used where it would be "clearly inapplicable,"  which
this court has interpreted as applying only where "even 55 idiots
would  agree"  that  the subject matter was inapplicable  to  the
initiative process.  Brooks, 971 P.2d at 1028 (citation omitted).
However, AS  29.26.100 does not incorporate this prohibition, and
thus  the  "clearly inapplicable" restriction may  not  apply  to
municipal elections.

     16   Opinion at 10-11.

     17   971 P.2d at 1030.

     18   912 P.2d 541 (Alaska 1996).

     19   Id. at 542 (citing AS 29.40.040(a), which provides that
zoning  ordinances shall be adopted "in order  to  implement  the
[comprehensive] plan").

     20    Assoc.  Home Builders, Inc. v. City of Livermore,  557
P.2d  473,  479 (Cal. 1976) (citation omitted); accord DeVita  v.
County  of  Napa,  889 P.2d 1019, 1037-38 (Cal.  1995)  (allowing
initiative to amend Napa's general plan despite failure to comply
with  procedures  county planning agency  must  follow  to  enact

     21   Garvin v. Dist. Court, 59 P.3d 1180, 1190 (Nev. 2002).

This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights