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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 (6/10/2011) sp-6565

Griswold v. City of Homer (6/10/2011) sp-6565, 252 P3d 1020

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

FRANK GRISWOLD,                                ) 
                                               )       Supreme Court No. S-13734 
                Appellant,                     ) 
                                               )       Superior Court No.  3HO-08-00137 CI 
        v.                                     ) 
                                               )       O P I N I O N 
CITY OF HOMER, CITY CLERK                      ) 
JO JOHNSON, and KACHEMAK                       )       No. 6565 - June 10, 2011 
SHELLFISH MARICULTURE                          ) 
ASSOCIATION,                                   ) 
                                               ) 
                Appellees.                     ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Homer, Carl Bauman, Judge. 

                Appearances:       Frank Griswold, pro se, Homer, Appellant. 
                Thomas      F.  Klinkner,     Birch   Horton    Bittner   &    Cherot, 
                Anchorage,   for   Appellees   City   of   Homer   and   City   Clerk 
                Jo Johnson.1 

                Before:   Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                STOWERS, Justice. 

        1       Kachemak   Shellfish   Mariculture   Association   did   not   participate   in   the 

appeal. 

----------------------- Page 2-----------------------

I.     INTRODUCTION 

              Frank Griswold, a resident of Homer, filed a notice of appeal of the Homer 

Advisory Planning Commission's grant of a conditional-use permit to a mariculture 

association.   The city clerk rejected his appeal for lack of standing because Griswold did 

not show that the permitted action would have an adverse effect on the use, enjoyment, 

or value of his property, and because Griswold's interests were not distinct from those 

of the general public.   Griswold appealed that rejection to the superior court, which 

affirmed.  We affirm the superior court's decision because the provisions of the Homer 

City Code restricting standing in land use appeals are lawful and because the city clerk 

correctly rejected Griswold's appeal.   We also clarify that when the superior court acts 

as an intermediate appellate court, its opinion is the judgment that begins the 30-day 

period for appeals under Alaska Appellate Rule 204(a)(1). 

II.    FACTS AND PROCEEDINGS 

              Frank Griswold is a resident of Homer, owns real property there, and is a 
frequent litigant in matters of land use and zoning.2 

              On    February   20,  2008,  the  Homer    Advisory    Planning  Commission 

(Commission) considered an application for a conditional-use permit (Permit) by the 

Kachemak Shellfish Mariculture Association (KSMA).          KSMA applied for the Permit 

so that it could construct an "8,373 square foot two-story structure using the existing 

platform at 3851 Homer Spit Road."  Griswold attended the Commission's meeting and 

made public comments in opposition to the application.         The Commission approved 

Permit 07-14 for KSMA's desired use, issuing its decision on April 22, 2008. 

       2      See Griswold v. City of Homer, 186 P.3d 558 (Alaska 2008); Griswold v. 

City of Homer, 55 P.3d 64 (Alaska 2002); Griswold v. City of Homer, 34 P.3d 1280 
(Alaska 2001); Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996). 

                                            -2-                                         6565 

----------------------- Page 3-----------------------

                On April 28, 2008, Griswold filed a notice of appeal of the Commission's 

approval of Permit 07-14.  In it he stated: 

                Frank Griswold is a resident of the City of Homer and owns 
                property within the city.   He routinely walks on the publicly 
                owned   beach   adjacent   to   the   subject   property   where   he 
                watches shorebirds and marine life, collects agates, and trains 
                his   Labrador   Retrievers.      Griswold   believes   the   excessive 
                uses and excessive structure approved via [Permit] 07-14 will 
                create   congestion   and   visual   blight   which   will   adversely 
                affect his future enjoyment of that beach and his ability to 
                safely access it once rights-of-way and other public property 
                in the vicinity are taken over for customer parking by KSMA. 
                Griswold also occasionally attends performances at Pier One 
                Theater which is located directly across the Homer Spit Road 
                from     KSMA's       property.       Griswold     believes    the   uses 
                facilitated by [Permit] 07-14 could jeopardize future theater 
                operations by taking over its parking spaces and/or lead to the 
                cancelling of its city lease altogether. Furthermore, Griswold 
                drives past KSMA's Spit property virtually on a daily basis 
                and is concerned for the safety of pedestrians including the 
                clients of KSMA who will be forced to cross a highway to 
                access     their  vehicles   due   to  the  insufficiency     of  on-site 
                customer parking spaces. 

                On May 2, 2008, Griswold received a letter from the city clerk, Jo Johnson. 

Johnson stated that she found Griswold's appeal to be "timely and contain[ing] proper 

information."      But she rejected the appeal for lack of a showing of standing because 

Griswold did not "mention or [prove] that [he] own[ed] real property in the vicinity of 

3851 Homer Spit Road."            Johnson also found that Griswold's "interest in the subject 

property   [was]  no   different   from  that   of  the   general   public"   and   that   Griswold   was 
therefore not a "person aggrieved" under Homer City Code 21.68.020(c).3 

        3       The   standing   provisions   of   the   Homer   City   Code   (HCC)   that   Johnson
 

applied to Griswold's appeal were current at the time, but have since been superceded.
 
                                                                                         (continued...)
 

                                                   -3-                                               6565 

----------------------- Page 4-----------------------

               The same day he received the letter, Griswold sent a letter to Johnson - 

which Johnson characterized as a "corrected notice of appeal" - arguing that his interest 

was distinct from the general public's and that it was unclear whether Johnson had the 

authority to "unilaterally decide [he] d[id] not have standing." On May 5, 2008, Johnson 

sent a second letter to Griswold, rejecting his "corrected notice of appeal," informing him 

that he had still failed to provide evidence of the adverse effect the approval of Permit 

07-14 might have on the use, enjoyment, or value of his real property, and stating that as 

a result he still had not demonstrated that he had standing to appeal.  The letter informed 

Griswold that Johnson's determination was now "final" and that he had 30 days to appeal 

it to the superior court.   On May 9, 2008, Griswold submitted a map showing the real 

property   owned   by   Griswold   in   Homer,  labeled   "Supplement   to   Notice   of   Appeal 
[Permit] 07-14 (KSMA)."4        On May 14, 2008, Johnson sent Griswold a third and final 

letter informing him that the May 5 rejection of his corrected notice of appeal was a 

"final action" and that his Supplement was therefore rejected as well. 

               On June 2, 2008, Griswold filed a notice of appeal in the superior court. On 

May 14, 2009, the superior court issued its "Decision on Appeal."              It rejected all of 

Griswold's arguments, concluding that "standing to appeal land use decisions has been 

lawfully restricted by the Homer City Council" and affirming Johnson's rejection of 

Griswold's notice of appeal.      Griswold filed a motion for reconsideration on May 26, 

        3(...continued) 

See HCC 21.93.060 and .080; CITY OF HOMER, ALASKA, ORDINANCE 08-29 (2008).   For 
simplicity, we nevertheless refer to the applicable standing provisions in the present 
tense. 

        4      We observe that the map purports to show that Griswold owns real property 

in the town center of Homer, over four miles away from the affected area on the Homer 
Spit.   By his own admission Griswold's lots are in "a different zoning district" than the 
Homer Spit. 

                                               -4-                                          6565
 

----------------------- Page 5-----------------------

2009, which the superior court denied on June 1.  The court issued a "Final Judgment" 

dismissing the case on December 16, 2009, in which it also awarded the City and KSMA 

attorney's fees and costs.  On December 23, 2009, Griswold filed this appeal. 

III.    DISCUSSION 

        A.      Standard Of Review 

                Where the superior court acts as an intermediate appellate court, we give 

"no deference to its decision, but, instead . . . independently scrutinize[] directly the 
merits   of   the   administrative   determination."5    In   doing   so,   we   apply   four   distinct 

standards of review to administrative decisions:          "(1) the substantial evidence test for 

questions of fact; (2) the reasonable basis test for questions of law involving agency 

expertise; (3) the substitution of judgment test for questions of law where no expertise 

is involved; and (4) the reasonable and not arbitrary test for review of administrative 
regulations."6 

                This case presents only legal questions, none of which involve agency 
expertise.   Whether an appeal is timely is a question of law.7  Whether the provisions of 

the Homer City Code restricting standing in land use actions comply with the applicable 

state statutes is a question of statutory interpretation and therefore a question of law as 

        5       Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 P.2d 

741, 742 n.5 (Alaska 1993) (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line 
Co., 746 P.2d 896, 903 (Alaska 1987)) (internal quotation marks omitted). 

        6      May v. State, Com. Fisheries Entry Comm'n, 168 P.3d 873, 879 (Alaska 

2007) (quoting Brandal v. State, Com. Fisheries Entry Comm'n, 128 P.3d 732, 735 
(Alaska 2006)).      The substitution of judgment standard is the same as de novo review. 
See, e.g., Simpson v. State, Com. Fisheries Entry Comm'n, 101 P.3d 605, 609 (Alaska 
2004) ("We review questions of law .  . . de novo under the substitution of judgment 
standard."). 

        7       See Platz v. Aramburo, 17 P.3d 65, 68 (Alaska 2001). 

                                                 -5-                                            6565
 

----------------------- Page 6-----------------------

well,8 and we review such issues de novo.9         Additionally, "a due process claim . . . raises 

a question of law that does not involve agency expertise."10          The same is true for an equal 

protection claim.11    Finally, whether a municipal delegation of authority to a city official 

is lawful is also a question of law.12     We therefore "apply our independent judgment" to 

all questions in this case, "adopting the rule of law that is most persuasive in light of 
precedent, reason, and policy."13 

        B.      Griswold's Appeal, Though Untimely, Is Not Rejected. 

        8       See Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006) 

("Issues of statutory interpretation are questions of law which we review de novo.") 
(citing Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska 2003)). 

        9       Earth Movers, 865 P.2d at 742 n.5 ("In order to determine if Earth Movers 

has standing, we must interpret the applicable statutes and ordinance. Thus we address 
questions of law, and the appropriate standard of review is de novo.") (citingLangdon v. 
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987)). 

        10      May, 168 P.3d at 879 (quoting AU Int'l, Inc. v. State, Dep't. of Nat'l Res., 

971 P.2d 1034, 1040 (Alaska 1999)). 

        11      See Pub. Employees' Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007) 

("The equal protection challenge presents a question of law to which this court applies 
its independent judgment.") (citing Alaska Civil Liberties Union v. State, 122 P.3d 781, 
785 (Alaska 2005)). 

        12      Cf. City of Anchorage v. Richardson Vista Corp., 242 F.2d 276, 285 (9th 

Cir.   1957)   ("[C]ourts   cannot   set   aside  city   ordinances   [delegating   authority   to   city 
officials] unless they are unconstitutional or ultra vires, or in some special connection or 
effect, unreasonable."). 

        13      Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

177 P.3d 1181, 1184 (Alaska 2008) (quoting  Guin v. Ha, 591 P.2d 1281, 1284 n.6 
(Alaska 1979)) (quotation marks and citations omitted). 

                                                  -6-                                            6565
 

----------------------- Page 7-----------------------

                 The City argues that Griswold's present appeal is untimely because he 

failed   to   file   an   appeal   within   30   days  of   judgment   as   required   by   Appellate   Rule 

204(a)(1), which provides in relevant part:             "The notice of appeal shall be filed within 

30 days from the date shown in the clerk's certificate of distribution on the judgment 

appealed from." Specifically, the City argues that under Appellate Rule 204(a)(1), where 

the    superior    court   acts  as   an  intermediate      appellate    court   reviewing     an  agency 

determination, "judgment" refers to the superior court's dispositive decision or opinion 

on the merits.  The City reasons that the superior court's May 14 Decision on Appeal is 
consequently the relevant "judgment" for the purposes of Appellate Rule 204(a)(1).14 

                 Griswold argues that his appeal is timely and, alternatively, that this court 

should excuse his untimeliness given the ambiguity in the rules and his pro se status. 

                 1.      Griswold's appeal is untimely. 

                 The parties' disagreement centers around what is meant by "judgment" in 

Appellate   Rule   204(a)(1).       The   City   argues   that   the   superior   court's   May   14,   2009 

"Decision on Appeal"   is the relevant "judgment" for the purposes of the rule, and that 

Griswold's December 23, 2009 notice of appeal therefore fell outside the rule's 30-day 

         14      The City also emphasizes that Appellate Rule 204(a)(5)(A) provides that 

"[t]he running of the time for filing an appeal is not terminated by . . . proceedings related 
to the award of attorney's fees."          It cites Pruitt v. State, Dep't of Pub. Safety, Div. of 
Motor   Vehicles,   where   we   held   that   an   award   of   attorney's   fees   was   an   abuse   of 
discretion because "the . . . motion for attorney's fees, filed seven months after final 
judgment [had] been entered, was not filed within a 'reasonable time.' "  825 P.2d 887, 
895-96 (Alaska 1992). The City argues that "thePruitt decision certainly would not have 
expressed concern about the timeliness of a motion for attorney's fees if the time for 
appeal began to run only after attorney's fees had been awarded." But Griswold does not 
argue that his notice of appeal was timely because it came within 30 days of the award 
of attorney's fees; he argues that it was timely because it came within 30 days of the 
entry of final judgment. 

                                                    -7-                                              6565
 

----------------------- Page 8-----------------------

window.15       Griswold     argues    that  the  superior    court's   December      16,  2009    "Final 

Judgment" is the relevant judgment, and that his notice of appeal is therefore timely 

under the rule. 

                The City's argument is correct.           It touches on an important distinction 

between cases where the superior court acts as a trial-level court and cases where the 

superior court acts as an intermediate appellate court. 

                Where the superior court acts as a trial-level court, an opinion or decision 

is   not   a   "judgment"   for   the   purposes   of   Appellate   Rule   204(a)(1):  "The   judgment 

referred to in Appellate Rule 204(a)(1) is the judgment that, per Civil Rule 58, must be 

set forth on a separate document and that is to be entered after the court makes its 
decision."16    For example, we held that an appeal was timely where the superior court 

entered final judgment more than one year after it granted summary judgment on all 

claims,   and   the   appellant   filed   her   appeal   within   30   days   of   the   entry   of   that   final 
judgment.17     Specifically, the final judgment entered under Civil Rule 58 - not the order 

granting summary judgment - was the "judgment" to which Appellate Rule 204(a)(1) 
referred.18 

        15      The     City   acknowledges       that  Griswold's      May    26,   2009   motion     for 

reconsideration would have tolled the time for filing an appeal under Appellate Rule 
204(a)(3).   It argues that the time for filing an appeal began to run again on June 2, the 
date the superior court denied Griswold's motion for reconsideration, and that Griswold's 
time to appeal the superior court's order therefore expired on June 21, 2009. As we 
explain, the City is correct. 

        16      Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007) (citing Schneider v. 

Pay'N Save Corp., 723 P.2d 619, 622-23 (Alaska 1986)). 

        17      Schneider, 723 P.2d at 622-23. 

        18      Id. 

                                                   -8-                                             6565
 

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               When the superior court acts as an intermediate appellate court, however, 

it must follow different procedural rules.     These rules are contained in Part Six of the 

Alaska    Rules   of  Appellate  Procedure.    Under    Part  Six's  Appellate   Rule   601(c), 

"procedure in appeals to the superior court shall be governed by the provisions of Parts 

Two and Five," which are the rules for the other Alaska appellate courts, such as the 

Court of Appeals and this court. Under Appellate Rule 507(a), which is contained in Part 

Five, "[t]he opinion of the appellate court . . . shall constitute its judgment." 

               Therefore, where the superior court acts as an intermediate appellate court, 

there is no requirement that it enter final judgment on a separate document.  Civil Rule 
58 does not apply in such cases.19   The "separate document rule"20 cannot apply to cases 

where the superior court acts an intermediate appellate court, notwithstanding the fact 

that the superior court did enter final judgment on a separate document in this case. 

               We therefore clarify that where the superior court acts as an intermediate 

appellate court, under Appellate Rule 507(a) its opinion or decision on appeal is the 

"judgment" to which Appellate Rule 204(a)(1) refers.         Thus, Griswold's appeal is not 

timely. 

               2.     Griswold's appeal, though untimely, is not dismissed. 

               Griswold argues that this court should excuse any untimeliness given the 

ambiguity in the rules and his pro se status.  The City argues that "Griswold's status as 

a pro se litigant should not relieve him from compliance with the Appellate Rules" 

because:   (1) "the Rules plainly designate the time for filing an appeal," (2) "Griswold's 

       19      See Alaska R. App. P. 601(c) ("On any point not addressed in Part Six, 

procedure in appeals to the superior court shall be governed by the provisions of Parts 
Two and Five of these rules . . . ."); Alaska R. App. P. 507(a) (providing that "[t]he 
opinion of the appellate court, or its order . . . , shall constitute its judgment"). 

       20      See Schneider, 723 P.2d at 622-23. 

                                              -9-                                        6565
 

----------------------- Page 10-----------------------

deviation from the requirements . . . is far from de minimis," and (3) "Griswold is no 

stranger   to   appellate   litigation   [and]   .   .   .   has   demonstrated   the   ability   to   present 

sophisticated legal analyses on issues of first impression." 

                Appellate Rule 204(a)(1)'s "time limit is not jurisdictional, and may be 
relaxed to avoid injustice."21      Although Griswold has perhaps litigated more frequently 

than the typical pro se litigant,22 we have noted that "[o]rdinarily, 'pro se litigants who 

make good faith efforts to comply with court rules should not be held to strict procedural 
requirements.' "23      For example, we have excused a pro se litigant's untimeliness and 

permitted a late appeal where "the record indicate[d] that [the litigant] made a good-faith 
effort to appeal by the deadline."24 

                The application of Appellate Rule 204(a)(1) in the present case might have 

confused   even   a   law-trained   individual.     First,   it   is   well   established   that   where   the 

superior court is not acting as an intermediate appellate court, only the entry of final 

        21      Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007) (citing In re Adoption 

of Erin G., 140 P.3d 886, 889 (Alaska 2006)); see also Isaacson Structural Steel Co. v. 
Armco Steel Corp., 640 P.2d 812, 815 n.8 (Alaska 1982) ("[W]e have previously rejected 
the argument that the requirement as to timely notice of appeal is jurisdictional on the 
ground that that requirement, unlike jurisdictional requirements, can be relaxed to avoid 
surprise or injustice." (internal quotation marks omitted)). 

        22      See Griswold v. City of Homer, 186 P.3d 558 (Alaska 2008) (appeared pro 

se); Griswold v. City of Homer, 55 P.3d 64 (Alaska 2002) (appeared pro se); Griswold v. 
City of Homer, 34 P.3d 1280 (Alaska 2001) (represented by counsel); Griswold v. City 
of Homer, 925 P.2d 1015 (Alaska 1996) (appeared pro se). 

        23      Prentzel v. State, Dep't of Pub. Safety, 169 P.3d 573, 593 (Alaska 2007) 

(quoting Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999)). 

        24      In re Adoption of Erin G., 140 P.3d 886, 889 (Alaska 2006). 

                                                  -10-                                             6565
 

----------------------- Page 11-----------------------

judgment on a separate document begins the running of the time to appeal.25  Second, we 

have not previously specified precisely which event cues the running of the time to 

appeal in cases where the superior court acts as an intermediate appellate court, and 

understanding   which   rules,   both   civil   and   appellate,   properly   apply   in   such   cases 

demands careful study of the law. Third, the fact that the superior court actually entered 

final judgment in the present case suggests that its doing so might be standard practice 

- or at least not anomalous - in these circumstances, even if the Rules of Appellate 

Procedure do not require it. 

                Griswold apparently made a good-faith effort to comply with the deadline. 

We therefore excuse his untimeliness and permit the current appeal. 

        C.	      The   Homer   City   Code   Provisions   Limiting   Standing   In   Land   Use 
                Appeals Are Lawful. 

                 1.	     The provisions do not conflict with applicable state statutes. 

                Alaska Statutes 29.40.050 and .060 "provide for two levels of review" of 
certain municipal land use actions and determinations.26              The statutes provide for first 

level review within a borough: AS 29.40.050(a) requires "the assembly" to "provide for 

an    appeal    from   an   administrative     decision    of  a  municipal     employee,     board,    or 

commission   made   in   the   enforcement,   administration,   or   application   of   a   land   use 

regulation."      That appeal may be "to a court, hearing officer, board of adjustment, or 
other   body."27    The   statutes   provide   for   second   level   review   by   the   superior   court: 

AS 29.40.060(a) requires "[t]he assembly" to "provide . . . for an appeal by a municipal 

        25      See, e.g., Richard, 162 P.3d at 633; Schneider, 723 P.2d at 622-23. 

        26      Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 P.2d 

741, 743 (Alaska 1993). 

        27      AS 29.40.050(a). 

                                                  -11-	                                            6565
 

----------------------- Page 12-----------------------

officer or person aggrieved from a decision of a hearing officer, board of adjustment, or 

other body to the superior court." 
                 Griswold argues that HCC 21.68.020(c)28 and .040(b)(6)29 conflict with 

AS 29.40.050, and that HCC 21.68.020(c) provides for a "more restrictive definition of 

'person aggrieved' than that adopted by" this court.  Both arguments are flawed. 

                 HCC 21.68.020(c) and .040(b)(6) satisfy AS 29.40.050 and .060.  In Earth 

Movers of Fairbanks, Inc. v. Fairbanks North Star Borough, we examined municipal 

code provisions limiting standing in land use cases (both for internal appeals and appeals 

to    the   superior    court)    to   "[a]ny    person   adversely       affected   by    a   decision     or 
determination."30       We   "interpret[ed]   the   phrase   'adversely   affected'   as   used   in   the 

[municipal] ordinance to mean the same as the word 'aggrieved' as used in the [state] 
statute."31   We held that the denial of standing to a business competitor - whose only 

         28      Homer City Code 21.68.020(c) provides: 

                 For   purposes   of   this   title,   to   be   a   "person   aggrieved"   the 
                 person must show proof of the adverse effect the action or 
                 determination has or could have on the use, enjoyment, or 
                 value of real property owned by that person.  An interest that 
                 is no different from that of the general public is not sufficient. 

         29      Homer City Code 21.68.040(b) provides in relevant part: 

                 A   notice   of   appeal   shall   be   in   writing,   be   signed   by   the 
                 appellant,     and    shall  contain,    but   is  not   limited    to,  the 
                 following information: 

                 . . . 

                 (6) Proof showing that the appellant is an aggrieved person 
                 with standing to appeal under section 21.68.020. 

         30      Earth Movers, 865 P.2d at 743 (emphasis in original). 

         31      Id. 

                                                    -12-                                               6565
 

----------------------- Page 13-----------------------

potential injury would have resulted from increased competition - under the municipal 

code provisions was lawful under AS 29.40.050 and .060 because the competitor was not 
a "person aggrieved" within the meaning of AS 29.40.060(a).32 

                In so holding, we looked to several sources of law, including cases from 
other jurisdictions,33 and noted that "[t]he legislature chose to provide review for those 

'aggrieved,' indicating that it follows the general practice of review in zoning cases."34 

We then "adopt[ed] the majority interpretation of 'aggrieved.' "35 

                The definition of "aggrieved" in Homer City Code 21.68.020(c) mirrors that 
presented in Earth Movers: one who is adversely affected.36              The Homer City Code's 

definition    of   "aggrievement"      is  not  more    restrictive   than  our   interpretation    of 

AS 29.40.060(a).   The provisions of the Homer City Code therefore do not violate either 
AS 29.40.050 or .060.37 

                2.	    The   provisions   do   not   unlawfully   eliminate   taxpayer-citizen 
                       standing. 

        32     Id. at 745.     We did so despite the fact that AS 29.40.050(a) makes no 

mention of "person aggrieved," suggesting that the statute requires, at most, appeals 
within the borough to be available only to those who would also have standing to appeal 
to the superior court. 

        33	    Id. at 744-45. 

        34	    Id. at 743. 

        35	    Id. at 745. 

        36	    Id. at 743. 

        37      See   Earth   Movers,   865   P.2d   at   745   (holding   that   provisions   denying 

standing to appeal a land use determination were lawful under both AS 29.40.050 and 
.060     because     prospective     appellant     was    not   a   "person     aggrieved"      under 
AS 29.040.060(a)). 

                                                -13-	                                           6565
 

----------------------- Page 14-----------------------

                Griswold   argues   that   the   provisions   of   the   Homer   City   Code   limiting 

standing unlawfully eliminate taxpayer-citizen standing in land use cases, and that the 

Earth Movers rationale applies only to cases involving business competition, rather than 

all land use cases. 

                We have noted that "[i]n the area of land use law, the legislature has chosen 
to limit standing by statute."38     In Earth Movers, "[g]eneral Alaska standing law [was] 

not applicable" because it was a municipal land use case generally, not because it was 
a business competition case.39        The Alaska Legislature, not the Homer City Council, 

eliminated taxpayer-citizen standing in land use cases by enacting AS 29.40.050-.060.40 

                3.	     Neither   HCC   21.68.020(b)(3)   nor   HCC   21.68.020(c)   violates 
                        Griswold's due process rights. 

                        a.	     HCC 21.68.020(b)(3) 

                Griswold argues that HCC 21.68.020(b)(3)'s requirement that a person have 

"participated in the proceedings before the [Planning] Commission" in order to have 

standing to appeal an action or determination "violates due process."  The participation 

requirement,   Griswold   argues,   "encourages   arbitrary   decision-making   and   cronyism 

because if no member of the public 'actively' participates in a proceeding the Planning 

Commissioners know there is little likelihood their decisions will be subjected to judicial 

review." 

                Griswold attended the February 20, 2008 meeting at which the Planning 

Commission approved Permit 07-14 and spoke in opposition to the Permit.  Because he 

actively participated in the proceedings, it appears Griswold is attempting to assert the 

        38      Id. at 743. 

        39      See id. 

        40      Ch. 74,  11, SLA 1985. 

                                                 -14-                                              6565 

----------------------- Page 15-----------------------

due process rights of others who did not participate in the proceedings.  Regardless, the 

participation      requirement      did    not   preclude     Griswold      from    having     standing; 

HCC 21.68.020(b)(3)'s requirement that a person also be "aggrieved" by an action or 

determination did. 

                Because HCC 21.68.020(b)(3)'s participation requirement did not preclude 

him from having standing, Griswold is not the proper party to request an adjudication of 
this issue,41 and he lacks standing to assert the due process claims.42 

                        b.      HCC 21.68.020(c) 

                Griswold also argues that HCC 21.68.020(c)'s provision that "[a]n interest 

that is no different from that of the general public is not sufficient" to confer standing 

"violates . . . due process and common sense."  The City argues that HCC 21.68.020(c) 

did   not   deprive   Griswold   of   a   property   interest   sufficient   to   warrant   constitutional 

protection. 

        41      Griswold does not claim that he suffered harm from having to participate 

in the proceedings; the only harm of the participation requirement to which he alludes 
is the lost opportunity to appeal, which he did not suffer as a result of the requirement. 
See Moore v. State, 553 P.2d 8, 23 n.25 (Alaska 1976) ("Standing questions are limited 
to whether the litigant is a 'proper party to request an adjudication of a particular issue 
. . . .' ") (quoting Flast v. Cohen, 392 U.S. 83, 100-01 (1968)). 

        42      See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 273 (Alaska 2003) 

(holding   that   a   nonresident   did   not   have   standing   to   challenge   a   provision   of   a   tax 
ordinance relating to residential property used as a permanent residence because he 
"ha[d] no personal stake in the constitutionality of the [provision]"). 

                                                  -15-                                             6565
 

----------------------- Page 16-----------------------

                The test for deprivations of procedural due process under both the Alaska 
Constitution43 and the United States Constitution44 is the test outlined in Mathews v. 

Eldridge.45  Under the Mathews test, a litigant claiming a due process violation must have 

been deprived of a cognizable liberty or property interest.46  Griswold identifies no liberty 

or property interest of which HCC 21.68.020(c) deprived him.               And the City is correct 

that any property interest great enough to be cognizable for the purposes of a due process 

violation would also have been sufficient to confer standing  on Griswold under the 

Homer City Code. 

                4.	     Neither   HCC   21.68.020(b)(3)   nor   HCC   21.68.020(c)   violates 
                        Griswold's equal protection rights. 

                Griswold does not directly cite the equal protection provisions of either the 
Alaska     Constitution47    or   the   United   States   Constitution,48  but   he   does   argue   that 

HCC 21.68.020(c) "discriminates against" both him and "renters and other affected 

parties who do not own real property."          The City interprets this as an equal protection 

        43      ALASKA CONST. art. I,  7 ("No person shall be deprived of life, liberty, or 

property, without due process of law."). 

        44      U.S. CONST. amend. XIV,  1 ("[N]or shall any State deprive any person 

of life, liberty, or property, without due process of law . . . ."). 

        45      Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (establishing the test 

under the United States Constitution); Hilbers v. Municipality of Anchorage, 611 P.2d 
31, 36-37 (Alaska 1980) (adopting the Mathews test for state due process claims). 

        46      Mathews, 424 U.S. at 332. 

        47      ALASKA CONST. art. I,  1 ("[A]ll persons are equal and entitled to equal 

rights, opportunities, and protection under the law . . . ."). 

        48      U.S. CONST. amend. XIV,  1 ("[N]or shall any State . . . deny to any person 

within its jurisdiction the equal protection of the laws."). 

                                                 -16-	                                          6565
 

----------------------- Page 17-----------------------

claim,49 and argues that Griswold's claim does "not invoke any heightened level of equal 

protection   scrutiny"   and   that   Griswold   does   not   have   standing   to   assert   the   equal 

protection interests of renters and other affected parties. 

                Griswold owns real property in Homer.  For the same reasons discussed in 

Section III(C)(3)(a) above, Griswold cannot assert the equal protection rights of renters 
and   other   parties   who   do  not   own   real   property.50    He   also   does   not   satisfy   the 

requirements for any of the exceptions to the general rule that a litigant lacks standing 
to   assert  the   constitutional    rights  of   others.51  We     therefore    limit  our   inquiry   to 

Griswold's claim that HCC 21.68.020(c) discriminates against him. 

                Under the Alaska Constitution, the "legitimate reason test" is "the standard 
level of scrutiny . . . in equal protection cases,"52 and we apply it to laws that do not 

employ   classifications   based   on   suspect   factors   or   infringe   on   fundamental  rights.53 

Under this test, a law "will survive as long as a 'legitimate reason for the disparate 

        49      The superior court did as well. 

        50      See Keller v. French, 205 P.3d 299, 304 (Alaska 2009); State ex rel. Dep'ts 

of Transp. & Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 n.9 (Alaska 
1989). 

        51      See Keller, 205 P.3d at 304 n.24 (noting exceptions for third-party standing 

such as where a parent asserts a child's constitutional rights, where a special relationship 
exists, or where the interested party's attempt to vindicate rights would forfeit those 
rights). 

        52      Pub. Emps.' Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007). 

        53      See id, at 349-50. 

                                                  -17-                                             6565
 

----------------------- Page 18-----------------------

treatment exists' and the law creating the  classification 'bears a fair and substantial 
relationship to that reason.' "54 

                In     defining    who     is   aggrieved      for   the    purposes      of   standing, 

HCC 21.68.020(c) creates a classification based only on whether people can demonstrate 

that   an   action   or   determination   has   or   could   have   an   adverse   effect   "on   the   use, 

enjoyment, or value of real property owned by [them]."  It therefore does not employ a 
classification based on a suspect55 (or quasi-suspect56) factor, nor does it infringe on a 

fundamental right.57 

                Applying the test to the present case, the reason for HCC 21.68.020(c)'s 

classification of who is a "person aggrieved" is to limit standing to persons with "a 
substantial, direct, and immediate interest in the outcome on the matter,"58 "in order to 

prevent excessive litigation and undue delay of final dispositions."59   Indeed, when the 

        54      Squires v. Alaska Bd. of Architects, Eng'rs & Land Surveyors, 205 P.3d 

326, 341 (Alaska 2009) (quoting Gallant, 153 P.3d at 349). 

        55      See   id.  (identifying   race,   national   origin,   and   alienage   as   examples   of 

suspect factors); Gallant, 153 P.3d at 349-50 (also identifying race, national origin, and 
alienage as examples of suspect factors). 

        56      See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 270 (Alaska 2003) 

(quoting Gonzalesv. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994)) (identifying 
gender and illegitimacy as examples of quasi-suspect factors). 

        57      See  Gallant, 153 P.3d at 349-50 (identifying voting, litigating, and the 

exercise of intimate personal choices as examples of fundamental rights). 

        58      83 AM. JUR. 2D Zoning and Planning  923 (2003). 

        59      See Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 

P.2d 741, 743 n.6 (Alaska 1993) (explaining the rationale for more restrictive standing 
requirements in zoning cases); see also  83 AM. JUR. 2D  Zoning and Planning  923 
(2003) ("[P]ermitting everyone to seek review [of administrative actions in land use 
                                                                                         (continued...) 

                                                  -18-                                               6565 

----------------------- Page 19-----------------------

City of Homer enacted the ordinance establishing its "person aggrieved" standard for 

standing, it expressly justified the standard as follows: 

                 [A]municipality is required by Alaska Statute  29.40.060 to 
                grant standing to a "person aggrieved" by a zoning decision 
                made      by  municipal     officials,  and   this   signifies  that  the 
                legislature has chosen to limit standing in the area of land 
                use law, primarily in order to prevent excessive litigation and 
                undue delay of final dispositions, . . . but also because an 
                expansive rule of standing would potentially create a land use 
                battleground   that   would   unduly   tax   the   resources   of   the 
                municipality        as   well    as   impair     the   free   enterprise 
                system,   .   .   .   and   unreasonably   interfere   with   the   use   and 
                development of private property.[60] 

                These reasons are "legitimate."  And the law's requirement that an action 

potentially have an adverse effect on the use, enjoyment, or value of real property owned 

by the person seeking to appeal that action - in a manner different from that of the 
general public - "bears a fair and substantial relationship to that reason."61  Indeed, the 

requirement is a relatively common method of achieving this goal.62 

        59(...continued) 

cases] could work against the welfare of the community by proliferating litigation and 
by unduly delaying final dispositions."). 

        60      CITY     OF HOMER,   ALASKA,   ORDINANCE             05-17(s)   (2005)   (citing  Earth 

Movers, 865 P.2d at 743 n.6) (emphasis added). 

        61      Squires v. Alaska Bd. of Architects, Eng'rs & Land Surveyors, 205 P.3d 

326, 341 (Alaska 2009) (quoting Gallant, 153 P.3d at 349). 

        62      See Ross D. Cohen, Note, Why Require Standing If No One Is Seated? The 

Need To Clarify Third Party Standing Requirements In Zoning Challenge Litigation, 42 
BRANDEIS L.J. 623, 623-24, n.5 (2004) (acknowledging the need to limit standing in land 
use cases and listing states that require a person to be similarly "aggrieved"); see also 83 
AM. JUR. 2D Zoning and Planning  925 (2003) ("To maintain standing . . . a person 
. . . must present proof of the adverse effect the changed status has or could have on the 
                                                                                         (continued...) 

                                                  -19-                                                6565 

----------------------- Page 20-----------------------

                Thus, HCC 21.68.020(c) does not deprive Griswold of equal protection 
under the Alaska Constitution or the United States Constitution.63 

        D.	     The City Clerk Did Not Err In Rejecting Griswold's Appeal For Lack 
                Of Standing. 

                Griswold argues that even under the disputed provisions of the Homer City 

Code he had standing to appeal the approval of Permit 07-14, and that Johnson therefore 

erred in rejecting his appeal.       Griswold also argues that HCC 21.68.040(c)'s use of the 

term "general public" might refer to all Alaskans or even all Americans, and that his 

interest as a resident of Homer is therefore distinct from that of the general public. 

                Under HCC 21.68.020(c), to be a "person aggrieved" a person "must show 

proof of the adverse effect the action or determination has or could have on the use, 
enjoyment, or value of real property owned by that person."64 (Emphasis added.)                     The 

City correctly observes that Griswold's uses of public land, attendance at the Pier One 

Theater,   and   concerns   about   parking   and   pedestrian   safety   do   nothing   to   suggest   a 

potential detrimental effect on any of his property.   And Griswold's statement, without 

elaboration, that he owns several lots of land "which, even though in a different zoning 

district, could be adversely affected by KSMA's activities" is insufficient to demonstrate 

how his use, his enjoyment, or the value of his property might be adversely affected. 

        62(...continued) 

use, enjoyment, and value of his or her property. . . .  [H]e or she must also be personally 
and specially affected in a way different from that suffered by the public generally."). 

        63      See Barber v. Municipality of Anchorage, 776 P.2d 1035, 1039 (Alaska 

1989)   ("The   minimum   level   of   equal   protection   scrutiny   in   Alaska   .   .   .   is   more 
demanding than the federal rational basis test."). 

        64      In Earth Movers we "interpret[ed] the phrase 'adversely affected' as used 

in the [municipal] ordinance to mean the same as the word 'aggrieved' as used in the 
[state] statute."  865 P.2d at 743. 

                                                  -20-	                                           6565
 

----------------------- Page 21-----------------------

Even if Johnson had considered Griswold's "Supplement to Notice of Appeal [Permit] 

07-14 (KSMA)" showing the real property Griswold owned in Homer, she would still 

have been correct to conclude that Griswold was not a "person aggrieved" and to reject 
his appeal for lack of standing.65 

              We also reject Griswold's argument that "general public" means something 

other than the citizens of Homer.     We find this interpretation highly implausible as a 

matter of statutory interpretation and seemingly a roundabout attempt to read citizen- 

taxpayer standing into HCC 21.68.020(c). 

       E.     The City Clerk Had The Authority To Reject Griswold's Appeal. 

              Griswold also argues that the city clerk lacks the authority to "summarily 

and arbitrarily" determine standing issues.  The City argues that the Homer City Code 

authorized Johnson to reject Griswold's appeal, and that the delegation of that authority 

was lawful. 

              Homer City Code 21.68.040(c) expressly provides that "[t]he City Clerk 

shall reject any notice of appeal that does not comply with sections 21.68.030 - 21.68.040 

and notify the appellant of the reasons for rejection."  City law thus authorized, indeed 

mandated, that the clerk reject Griswold's appeal. 

              The delegation of the authority to reject appeals for lack of standing was 

also lawful.  We have stated that a city's "right . . . to delegate powers to govern the 

       65     Johnson did not consider Griswold's May 9, 2008 "Supplement to Notice 

of Appeal [Permit] 07-14 (KSMA)" showing the real property owned by Griswold in 
Homer because she "had already taken final action" in the matter.  Failure to consider it 
was potentially error; HCC 21.68.040(c) provides that "[i]f a notice of appeal is rejected 
for reasons other than timeliness, a corrected notice of appeal that complies with this 
section will be accepted as timely if filed within seven days of the date of mailing the 
notice of rejection." Griswold's supplement was filed within seven days of Johnson's 
initial rejection.   Any error was harmless, however, because the map Griswold provided 
was not evidence that he was a "person aggrieved" under the statute. See supra note 4. 

                                           -21-                                        6565 

----------------------- Page 22-----------------------

affairs of the municipality will not be strictly construed, for '[w]ithout the power to 
delegate duty and discretion the affairs of the [c]ity could not be carried on.' "66  Homer 

City Code 21.68.040(c) does not vest arbitrary power or authority in the city clerk; it 

provides specific criteria, namely the requirements of HCC 21.68.030-.040, for the clerk 

to apply to appeals of land use determinations.  We therefore agree that the Homer City 

Code authorized the clerk to reject Griswold's appeal and that the delegation of such 

authority was lawful. 

IV.    CONCLUSION 

              For these reasons, we AFFIRM the superior court's decision upholding the 

city clerk's denial of Griswold's appeal for lack of standing. 

       66     Municipality of Anchorage v. Anchorage Police Dep't Emps. Ass'n, 839 

P.2d 1080, 1084 (Alaska 1992) (quoting City of Anchorage v. Richardson Vista Corp., 
242 F.2d 276, 285 (9th Cir. 1957)) (alteration in original). 

                                            -22-                                         6565 
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