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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. Homer Board of Adjustment (9/14/2018) sp-7295

Griswold v. Homer Board of Adjustment (9/14/2018) sp-7295

           Notice:   This opinion is subject to correction before publication in the P                       ACIFIC  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@akcourts.us.  



                        THE SUPREME COURT OF THE STATE OF ALASKA                                        



FRANK  GRISWOLD,                                                       )  

                                                                       )      Supreme  Court  No.  S-16660  

                                 Appellant,                            )  

                                                                       )      Superior  Court  No.  3HO-15-00021  CI  

           v.                                                          )  

                                                                       )      O P I N I O N  

                                                                                                   

HOMER BOARD OF ADJUSTMENT,                                             )
  

                                       

RICK ABBOUD, JOSE RAMOS,                                               )     No.7295 -  September 14, 2018
  

                                                           

                                                                                                                          

and KENTON BLOOM,                                                      )
  

                          

                                                                       )  

                                 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.  

                                                                                                                            

                      Holly C. Wells and Thomas F. Klinkner, Birch Horton Bittner  

                                                                                                               

                      &   Cherot,   Anchorage,   for   Appellees   Homer   Board   of  

                                                                                                                      

                      Adjustment and Rick Abboud.  No appearance by Appellees  

                                                                                 

                      Jose Ramos and Kenton Bloom.  

                                                                



                      Before:   Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                                                                              

                      and Carney, Justices.  

                                            



                      STOWERS, Chief Justice.  

                                                       



I.         INTRODUCTION  



                      Frank         Griswold          twice  

                                                                   appealed           the     Homer          Advisory            Planning  



Commission's  approval  of  a  conditional  use  permit  to  the  Homer  Board  of  Adjustment  



and  later  appealed  the  Board's  second  decision  to  the  superior  court,  which  sua  sponte  


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

dismissed his appeal for lack of standing. Because Griswold did not have notice that his                                                                                                                                                                  



standing was at issue, his due process rights were violated.                                                                                                                        We therefore reverse and                                           



remand for the superior court to decide his appeal on the merits.                                                                                                         



II.                 FACTS AND PROCEEDINGS                        



                                        In January 2014 the Homer Advisory Planning Commission approved a                                                                                                                                                      



conditional   use   permit   allowing   "[m]ore   than   one   building   containing   a   permitted  



principal use" on Lot 1-A-1 Carl Sholin Subdivision No. 5 in the Central Business                                                                                                                             



District in Homer.                                      Frank Griswold, as a resident of Homer and as an owner of several                                                                                                                    



                                            1  

lots in the                  area,                                                                                                                                                                                                                                   

                                               appealed the Commission's decision to the Homer Board of Adjustment.  



                                                                                                                                                                                                                                                             

In June the Board issued a decision affirming the Commission's decision in part; it  



                                                                                                                                                                                                                                                          

rejected  two  findings  for  insufficient  evidence  and  remanded  for  consideration  of  



                                                                                                                                                                                                                                                        

additional evidence.  On remand the Commission again approved the conditional use  



                                                                                                                                                                                                                        

permit. Griswold again appealed. In January 2015theBoard affirmed theCommission's  



                                                                                                                                                 

decision, and Griswold appealed to the superior court.  



                                                                                                                                                                                                                                                          

                                        Oral argument before the superior court was held in February 2016, and the  



                                                                                                                                                                                                                                               

court subsequently acceptedsupplementalbriefing. In January 2017 the court suasponte  



                                                                                                                                                                      

dismissed the appeal for lack of standing by Griswold.  In its dismissal order the court  



                                                                                                                                                                                                                                                              

recognized that "the briefs by the parties did not address the issue of standing," but it  



                                                                                                                                                                                                                                  

noted that AS 29.40.060 provides for an appeal by "a person aggrieved from a decision,"  



                                                                                                                                                                                                                                                        

and it determined that the concerns raised by Griswold regarding the conditional use  



                                                                                                                                                                                                                                     

permit "do not rise to the level of aggrievement sufficient to satisfy the Homer ordinance  



                    1                   Griswold reports that he owns eight lots "in very close proximity to the                                                                                                                                        



subject property," including his place of residence, and that one of his lots is "within 300                                                                                                                                                           

feet of the subject property."                                                          He indicates that one of the eight properties (not the one                                                                                                     

within 300 feet) was acquired after the notice of appeal was filed.                                                                                                                



                                                                                                                             -2-                                                                                                                    7295
  


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on standing." The court also found that Griswold's "potential injury is indistinguishable                                                                                                                                



from the potential adverse effect . . . on any member of the general public of Homer."                                                                                                                                                                                       



                                          Griswold filed a motion for reconsideration, which was denied. He then                                                                                                                                                



filed a motion for clarification of the order that denied reconsideration, arguing that                                                                                                                                               



because "[t]he order [was] captioned 'Order                                                                                             For  Reconsideration[,]' . . . the [c]ourt may                                                                           



have intended to grant [the motion] rather than deny it."                                                                                                                             (Emphasis in original.)                                                       In  



response, the court issued an order explaining that "the body of the                                                                                                                                                Order  reflects the   



opinion   of this [c]ourt that reconsideration was                                                                                                          and  is not appropriate."                                                         Griswold  



appeals.  



III.                 STANDARD OF REVIEW                                        



                                          "We review due process claims de novo, 'adopting the rule of law most                                                                                                                                               

persuasive in light of precedent, reason, and policy.' "                                                                                                               2  



IV.                  DISCUSSION  



                                                                                                                                                                                                                                                                

                                          Under the Alaska Constitution, "[n]o person shall  be  deprived of life,  



                                                                                                                                                        3  

                                                                                                                                                                                                                                                                    

liberty, or property, without due process of law."                                                                                                            "[P]rocedural due process under the  



                                                                                                                                                                                                                                                           

Alaska Constitution requires notice and opportunity for hearing appropriate to the nature  



                                     4  

                                                                                                                                                                                                                                                               

of the case."                              In order to "have a reasonable opportunity to be heard," the "[p]arties must  



                                                                                                                                                                                            5  

                                                                                                                                                                                                                                                                        

have notice of the subject of proceedings that concern them."                                                                                                                                     "A hearing is required in  



                     2                   Brandner v. Providence Health & Servs.-Wash.                                                                                                      , 394 P.3d 581, 587 (Alaska                                 



2017) (quoting                                Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation                                                                                                                                 , 145 P.3d       

561, 564 (Alaska 2006)).                               



                     3                    Alaska Const. art. I,  7.  

                                                                                                               



                     4  

                                                                                                                                                                                                                                                                        

                                         Price v. Eastham , 75 P.3d 1051, 1056 (Alaska 2003) (quoting  Walker v.  

                                                                                                               

 Walker, 960 P.2d 620, 622 (Alaska 1998)).  



                     5                   Id.  (quoting Potter v. Potter , 55 P.3d 726, 728 (Alaska 2002)).  

                                                                                                                                                                                                                     



                                                                                                                                   -3-                                                                                                                         7295
  


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

order to give the parties an opportunity to present the quantum of evidence needed [for                                                                 

the court] to make an informed and principled determination."                                                     6  



                        Griswold argues that his due process rights were violated by the superior  

                                                                                                                                               



court's sua sponte dismissal for lack of standing. He points out that he asserted standing  

                                                                                                                                               



in his notices of appeal to the Board based on several lots he owns "within one block of  

                                                                                                                                                           



the subject property," including one lot within 300 feet, and based on his belief that the  

                                                                                                                                                         



uses approved via the conditional use permit "will create congestion, visual blight, and  

                                                                                                                                                        



leaching/migration  of sewage and  other  contaminates that will adversely affect  the  

                                                                                                                                                        



general character of the neighborhood and the value of his real property."  In his second  

                                                                                                                                                  



notice of appeal to the Board, he also alleged that the uses approved via the conditional  

                                                                                                                                          



use permit "will promote . . . criminal activity that will adversely affect the general  

                                                                                                                                                



character of the neighborhood and the value of his real property."  He points out that the  

                                                                                                                                                         



city   clerk   found   these   notices   of   appeal   compliant   with   Homer   City   Code  

                                                                                                                                                   

                                                                                                                     7  and cites Griswold v.  

(HCC) provisions relating to the timing for and notice of appeal                                                                                           

                                                                                                         



City of Homer, where this court held that "[t]he delegation [to the city clerk] of the  

                                                                                                                                                        



authority to reject appeals for lack of standing was . . . lawful."  He also notes that the  

                                                                                                                                                         



Board  did  not  raise  the  issue  of  his  standing.                                           He  argues  that  his  motion  for  

                                                                                                                                                        



reconsideration, which was limited to five pages under Alaska Civil Rule 77(k)(2), was  

                                                                                                                                                       



his only opportunity to defend his standing.  

                                                                



                        The Board responds that "Griswold had ample notice that his standing was  

                                                                                                                                                        



at issue and opportunity to demonstrate he met the standing requirement." It argues that  

                                                                                                                                                        



"Griswold had ample notice of the criteria for determining his standing to appeal" and  

                                                                                                             



"fully  understood  his  obligation  to  meet  the  standing  criteria,"  noting  that  "[h]e  

                                                                                                                                                    



            6           Id.  (alteration  in  original)  (quoting   Walker,  960  P.2d  at  622).  



            7           HCC  21.93.070,  .080  (2008).  



                                                                            -4-                                                                           7295  


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

                                                                                                                                

previously litigated his standing to appeal a Homer land use decision" and that his  



                                                                                                                        

notices of appeal to the Board responded to the requirement to show that he had standing  



                                                                                                                                

to appeal.   It contends that Griswold did not "identify[] the specific location of his  



                                                                                                                              

property";  that  his  "allegations  regarding  the  harm  that  would  result  from  [the  



                                                                                                                                 

conditional use permit were] nonspecific, conclusory and  speculative"; and that he  



                                                                                                                        

therefore  failed  to  prove standing.                   The Board  asserts that Griswold  "had multiple  



                                                                                                                                   

opportunities to present evidence that showed he met [the standing] criteria[] and had a  



                                                                                                                                

final opportunity to argue against the dismissal of his appeal through his motion for  



                                        

reconsideration."  It also argues that "Griswold used his motion for reconsideration to  



                                                                                                                               

advance  new,  and  spurious,  arguments  for  his  standing,  rather  than  directing  the  



                                                                                

[s]uperior [c]ourt's attention to specific facts in the record."  



                                                                                                                                

                    Contrary to the Board's assertions, the record shows that Griswold did not  



                                                                                                                           

have notice that his standing was at issue. After Griswold addressed the standing criteria  



                                                                                                                             

in  his  notices  of  appeal  and  the  city  clerk  found  those  notices  compliant  with  



                                                                                                                                 

HCC 21.93.070 and 21.93.080, he had no reason to believe that standing was at issue -  



                                                                                                         

his standing was never challenged.  And while Griswold may have had "opportunities  



                                                                                                                              

to present evidence that showed he met [the standing] criteria," he had no reason to seek  



                                                                                                                        

to present such evidence because he had no notice that standing was at issue.  Because  



                                                                                                                                

no one had raised the issue of standing and the superior court sua sponte dismissed the  



                                                                                                                                   

appeal for lack of standing, without providing any opportunity to Griswold to make a  



                                                                                                                              

showing of standing or remanding the case for him to present evidence, Griswold's only  



                                                                                                                            

opportunity  to  present  any  argument  regarding  standing  once  the  superior  court  



                                                                                                                                

determined sua sponte he did not have standing was his motion for reconsideration. The  



                                                                                                                            

Board's arguments about the motion for reconsideration highlight the due process issues  



                                                                                                                                

in this case. The Board argues that the motion for reconsideration "advance[d] new, and  



                                                                                                                       

spurious,  arguments  for  his  standing,  rather  than  directing  the  [s]uperior  [c]ourt's  



                                                                -5-                                                          7295
  


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

                                                                                                                                                                                  

attention to specific facts in the record." But any arguments Griswold could make at that  



                                                                                                                                                                                

point would necessarily be new arguments because the issue of standing had never been  



                                                                                                                                                                                  

raised until the dismissal order, and there had been no notice of the need to place any  



                                                                                                                                                                               

additional facts in the record to support his standing.  Because Griswold did not have  



                                                                                                                                           

notice that his standing was at issue, his due process rights were violated.  



V.            CONCLUSION  



                             We REVERSE and REMAND for the superior court to decide Griswold's                                                                    



appeal on the merits.          



                                                                                          -6-                                                                                  7295
  

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