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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Frank Griswold v. Homer Advisory Planning Commission, Derek Reynolds, Catriona Reynolds, and Rick Abboud (4/9/2021) sp-7515

Frank Griswold v. Homer Advisory Planning Commission, Derek Reynolds, Catriona Reynolds, and Rick Abboud (4/9/2021) sp-7515

          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@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                   



FRANK  GRISWOLD,                                              )  

                                                              )    Supreme Court No. S-17669  

                                                                                                   

                               Appellant,                     )  

                                                              )    Superior  Court  No.  3HO-18-00240  CI  

          v.                                                  )  

                                                                                       

                                                              )    O P I N I O N  

                                     

HOMER ADVISORY PLANNING                                       )  

                                                                                                   

                            

COMMISSION, DEREK                                             )    No. 7515 - April 9, 2021  

                       

REYNOLDS, CATRIONA                                            )  

                                        

REYNOLDS, and RICK ABBOUD,                                    )  

                                                              )  

                               Appellees.                     )  

                                                              )  



                                                                                                         

                                  

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                  

                    Judicial District, Homer, Lance Joanis, Judge.  



                                                                                                                  

                    Appearances:   Frank Griswold, pro se, Homer, Appellant.  

                                                                                                  

                    Michael R. Gatti and Max D. Holmquist, Jermain Dunnagan  

                                                                                                   

                     & Owens, P.C., Anchorage, for Appellees Homer Advisory  

                                                                                                              

                    Planning Commission and Rick Abboud.  No appearance by  

                                                                                    

                    Appellees Derek Reynolds and Catriona Reynolds.  



                                                                                     

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

                                              

                     and Borghesan, Justices.  



                                                

                    BOLGER, Chief Justice.  



    

I.        INTRODUCTION  



                                                                                                                                    

                    Homer's Advisory Planning Commission (the Commission) approved a  



                                                                                                                        

conditional use permit for the owners of a bicycle shop seeking to expand their entryway  


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and install a covered porch.  This permit allowed the owners to extend the covered area  



                                                                                                                         

up to 8 feet into the 20-foot setback at the front of the business.  An objecting Homer  



                                                                                                                          

resident appeals fromthe superior court's decision affirming the permit approval, raising  



                                                                                                                       

numerous procedural, legal, and factual issues.  His main contentions can be grouped  



                                                                                                          

into five general categories:  (1) the Commission should have used a variance and not  



                                                                                                                          

a conditional use permit; (2) the approval process violated various constitutional rights;  



                                                                                                              

(3) the Commission erred in its findings supporting the project; (4) the City Planner's  



                                                                                                                                     

participation in the appeal was inappropriate; and (5) the judge was biased against him.  



                                           

None of his arguments has merit.  



                                                                                                                                

                    We conclude that the Homer City Council, in an appropriate use of its  



                                                                                                                         

legislative discretion, has chosen the conditional permitted use process to grant certain  



                                                                                                                             

setback reductions.  The Commission's approval process and findings complied with  



                                                                                                                    

applicable city code requirements and adequately protected the objecting resident's  



                                                                                                                               

rights.  The City Planner's participation in the appeals process was appropriate, and the  



                                                                                                                       

judge displayed no disqualifying bias. We therefore affirm the superior court's decision  



                                                                                                           

upholding the Commission's approval of the conditional use permit.  



                                                              

II.       FACTS AND PROCEDURAL HISTORY  



                                                                    

          A.         The Conditional Use Permit Application  



                                                                                                                                 

                    Derek and Catriona Reynolds purchased property on Pioneer Avenue in  



                                                                                                                         

Homer's central business district to relocate their business offering bicycle sales, repairs,  



                                                                                                                                  

rentals, and tours.   As part of the Reynoldses' remodeling plans, they applied for a  



                                                                                                                                  

conditional use permit to  extend  the existing  entryway  by six  feet and  construct  a  



                                                                                                                        

covered porch along the shopfront.  This would give them space to store rental bicycles  



                                                                                 

and re-orient the entryway to face Pioneer Avenue.  



                                                                                                                               

                     The existing 8-foot-wide entrance already encroached a few feet into the  



                                                                                                                 

20-foot setback required in the central business district.   The proposed construction  



                                                                -2-                                                        7515
  


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would increase that encroachment to a total 8 feet by 8 feet.  The proposed porch roof   



would encroach up to 3 feet into the setback along the rest of the storefront.                                                                                                                                                              At least 12                 



feet of open grass would remain between the building and the sidewalk.                                                                                                                              



                                          The   Reynoldses'   permit application noted                                                                                               that the "property                                           has been   



vacant and neglected for at least 5 years" and "that any improvement to what was a                                                                                                                                                                                         



derelict property will cause adjoining property values to increase," cited support of                                                                                                                                                                                   



nearby    residents,    and    stated    that    the    project    would    boost    "revitalization    and  



beautification efforts."                                                   The application explained that their business would further                                                                                                                   



Homer's Comprehensive Plan to "invest in more fuel-efficient forms of transportation   



such as pedestrian and bicycle alternatives."                                                                                                      It also included various photographs,                                             



surveys of the property, and drawings with the dimensions of the proposal from multiple                                                                                                                                                               



angles.  The Reynoldses noted that the Homer City Code (Code) requires buildings to  



"be set back 20 feet from all dedicated rights-of-way, except as allowed by subsection                                                                                    

                                                                      1      Subsection (b)(4) provides:  "If approved by a conditional use  

(b)(4) of this section."                                                                                                                                                                                                                                             



permit, the setback from a dedicated right-of-way, except from the Sterling Highway or  

                                                                                                                                                                                                                                                                         

Lake Street, may be reduced."2   They therefore sought a conditional use permit for their  

                                                                                                                                                                                                                                                                 



new entryway.  

                                                



                     B.                   The Staff Report And Public Hearing  

                                                                                                                                            



                                          The  City  Planning  Department  prepared  a  staff  report  analyzing  the  

                                                                                                                                                                                                                                                                    

application under the conditional use permit review criteria.3                                                                                                                                   The report found that the  

                                                                                                                                                                                                                                                                      



proposal would not unduly harm property values; be "compatible with existing uses of  

                                                                                                                                                                                                                                                                         



surrounding  land";  "not  cause  undue  harmful  effect  upon  desirable  neighborhood  

                                                                                                                                                                                                                                  



                     1                    HCC 21.18.040(b)(1) (2020).                                           



                     2                    HCC 21.18.040(b)(4).   



                     3  

                                                            

                                          HCC 21.71.030.  



                                                                                                                                   -3-                                                                                                                          7515
  


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 character"; and "be in harmony with other facades along Pioneer Avenue."                                                                                                                                                                                                                                                                                                                                                                                                               The report   



 found no evidence that the permit was contrary to the applicable goals and objectives of                                                                                                                                                                                                                                                                                                                                                                                                                                                        



the Comprehensive Plan, and it concluded that the proposal would comply with the                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 applicable Community Design Manual provisions.                                                                                                                                                                                                                                                                                       Noting that the proposal did not                                                                                                                                                                  



 include lighting, the report suggested adding a condition that any outdoor lighting must                                                                                                                                                                                                                                                                                                                                                                                                                                       



 follow the Community Design Manual guidelines. It concluded with a recommendation                                                                                                                                                                                                                                                                                                                                                           



that the Commission approve the conditional use permit.                                                                                                                                                                                                                                                               



                                                                                    The Commission notified local property owners of the proposal.                                                                                                                                                                                                                                                                                                                                                                 Frank  



 Griswold expressed the only opposition to the project, contending the setback reduction                                                                                                                                                                                                                                                                                                                                                                                                          



was not a "use" in HCC 21.03.040 and arguing:                                                                                                                                                                                                                                                               "The Commission does not have legal                                                                                                                                                                                



 authority to apply HCC 21.18.040(b)(4) to this application."  He later insisted that the                                                                                                                                                                                                                                                                                                                                                                                                                                                 



proposal must be analyzed as a request for a variance and noted that a setback reduction                                                                                                                                                                                                                                                                                                                                                                                                           



might "hamper snow removal operations and affect drainage." Griswold did not identify                                                                                                                                                                                                                                                                                                                                                                                                                         



 any more specific issues with the proposal, nor did he attend the public hearing on the                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 application.   



                                                                                    At    the    public    hearing,    City    Planner    Rick    Abboud    presented    the  



Department's staff report recommending that the permit be approved.                                                                                                                                                                                                                                                                                                                                                                                   He testified that                                                               



his initial concerns about line-of-sight issues for pedestrians and traffic had been allayed                                                                                                                                                                                                                                                                                                                                                                                                                     



 after visiting the property. Abboud also addressed the concerns Griswold had raised, but                                                                                                                                                                                                                                                                                                                                                                                                                                                  



noted that Griswold had provided no specifics on how the proposal might hamper snow                                                                                                                                                                                                                                                                                                                                                                                                                                          



removal or drainage. At the end of Abboud's testimony, he recommended an additional                                                                                                                                                                                                                                                                                                                                                                                                             



 finding:     "[T]he   proposed   activity   will   enhance   the   aesthetic   environment   of   the  



 community, providing gracious human scale entry ways and public ways, orienting the                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 entry way toward the street."                                                                                                                                                          



                                                                                    The Reynoldses then spoke about the community benefits of their bicycle                                                                                                                                                                                                                                                                                                                                                      



 store, as did several Homer residents supporting the proposal.                                                                                                                                                                                                                                                                                                                                        The Commission voted                                                                                               



                                                                                                                                                                                                                                                                       -4-                                                                                                                                                                                                                                                       7515
  


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

unanimously to approve the conditional use permit application based on the findings                                                                                                        



 recommended by the staff report.                                                The Commission issued a written decision approving                                                    



 the permit, adopting all proposed findings, and addressing all HCC 21.71.020 criteria.                                                                                                                          



 The decision mentioned Griswold's concerns about drainage and snow removal but                                                                                                                        



 noted that it was unclear exactly how the proposal would exacerbate these issues.                                                                                                                   



                 C.             Griswold's Appeals   



                                Griswold appealed the permit approval to the Office of Administrative                                                                      



                        4  

 Hearings,                                                                                                                                                                                    

                           which then considered his arguments on 19 legal, procedural, and factual  



                                                                                                                                                                                                    

 issues.             He  also  questioned  Abboud's  participation  as  a  party  to  the  appeal.                                                                                                   The  



                                                                                                                                                                                             

 administrative law judge interpreted this as a motion to "dismiss [Abboud] as a party,"  



                                                            

 which the judge denied.  



                                                                                                                                                                                                       

                                The  administrative  law  judge  affirmed  the  Commission's  grant  of  the  



                                                                                                                                                                                               

 conditional use permit.  The judge's decision noted that several of Griswold's claims  



                                                                                                                                                                                            

 were based on the premise that a structure extending into a designated setback requires  



                                                                                                                                                                                                       

 a variance.   But because the Code specifically provides that setback reductions are  

                                                                                                                                                               5  On the merits, the  

                                                                                                                                                                                                        

 granted by conditional use permit, the judge rejected these claims. 



judge  determined  that  the  conditional  use  permit  application  provided  "sufficient  

                                                                                                                                                                                    



 evidence  to  evaluate  a  simple  request"  and  that  the  Commission  had  sufficiently  

                                                                                                                                                                                  



 addressed Griswold's concerns.  The judge rejected Griswold's complaint that certain  

                                                                                                                                                                                               



 municipal code requirements had  been omitted  from the permit,  reasoning  that the  

                                                                                                                                                                                                       



 Commission need not reiterate provisions which already applied to the project.  

                                                                                                                                                                                               



                4               Griswold requested that the appeal not be heard by the Homer Board of                                                                                                     



 Adjustment;   as   authorized   by   HCC   21.93.030,   the   City   Manager   appointed   an  

 administrative law judge to hear the case.                                                          



                5               HCC 21.18.040(b)(1).  

                                              



                                                                                                    -5-                                                                                            7515
  


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

                                    Griswold then appealed to the superior court, raising essentially the same                                                                                                              



issues.   The court determined that the Commission had authority to consider and grant                                                                                                                                      



theReynoldses'                              application, as                        "Alaskastatelaws                                  allowmunicipalities to adopt                                                 codethat   



includes mechanisms for making setback reductions like the one contemplated [here] in                                                                                                                                                



conditional use permit 18-02, and the Homer City Code allows setback reductions to be                                                                                                                                               



sought via the conditional use permit process."                                                                                 The court found that the Commission's                              



factual findings were supported by substantial evidence.                                                                                                  Finally, the court determined                     



that Abboud's participation in the appeals process was expressly permitted by Code and                                                                                                                                           

                                                                                                                    6   The court thus affirmed the administrative  

rejected Griswold's objection on that issue.                                                                                                                                                        



law judge's decision and the Commission's grant of the conditional use permit.  

                                                                                                                                                                                                                         



                                    Griswold moved for reconsideration.  In addition to his earlier arguments,  

                                                                                                                                                                                                            



Griswold claimed that the superior court judge had shown a "disqualifying bias" against  

                                                                                                                                                                                                                       



him by speculating  that the litigation was the result of "some old grudge," and he  

                                                                                                                                                                                                                                   



requested the judge's recusal.  The court denied Griswold's motion for reconsideration  

                                                                                                                                                                                                



and denied the request for disqualification.  

                                                                                                                       



                                    Griswold now appeals the superior court's decision.  

                                                                                                                                                                                   



III.              STANDARD OF REVIEW  

                                                                     



                                    "When  the  superior  court  acts  as  an  intermediate  court  of  appeal  in  

                                                                                                                                                                                                                                   

administrative cases, we examine the merits of the agency's decision directly."7   In such  

                                                                                                                                                                                                                              



reviews,  we  apply  "the  'substantial  evidence  test'  [to]  questions  of  fact"  and  "the  

                                                                                                                                                                                                                              



                  6                 See  HCC 21.93.060, 21.93.500, 21.93.530(a), 21.93.540(b).                                                                     



                  7  

                                                                                                                                                                                                                               

                                    Rubey v. Alaska Comm'n on Postsecondary Educ., 217 P.3d 413, 415  

                                          

(Alaska 2009).  



                                                                                                                 -6-                                                                                                         7515
  


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

                                                                                                                                                        8  

'reasonable basis test' . . . to questions of law involving agency expertise."                                                                              Zoning  



boards "receive deference equal to that accorded to an administrative agency"; their                                                           



"interpretations of zoning ordinances 'should be given great weight and . . . accepted                                                              

                                                                                                                                                    9   We apply  

whenever there is a reasonable basis for the meaning given by the board.' "                                                                                      

our independent judgment to questions of constitutional law10  and review a judge's  

                                                                                                                                                             

decision on a motion to disqualify for abuse of discretion.11  

                                                                                                                       



IV.	         DISCUSSION  



                                                                                                                                                                 

             A.	           The Commission Had Authority To Grant A Setback Reduction With  

                                                                                                                     

                          A Conditional Use Permit Rather Than A Variance.  



                                                                                                                                                         

                          Many of Griswold's claims rely on the premise that a setback reduction  



                                                                                                                                                                     

always requires a variance rather than a conditional use permit.   He asserts that the  



                                                                                                                                                            

Commission's use of the conditional use permit process violated state law; that a setback  



                                                                                                                                                          

reduction cannot be a "use" as defined in the Code; that the Commission must therefore  



                                                                                                                                                                             

have granted a de facto variance; and that its decision constituted illegal spot zoning.  



                                                    

These arguments all fail.  



                                                                                                                                            

                           Griswold's arguments ignore the broad authority Alaska law grants local  



                                                                                                                                                                       

governments.  The Homer City Council properly exercised its legislative discretion by  



                                                                                                                                              

allowing for setback reductions in the central business district through conditional use  



             8	           Id.  (quoting  Jager v. State                       , 537 P.2d 1100, 1107 n.23 (Alaska 1975)).                               



             9	            Griswold v. City of Homer                              , 55 P.3d 64, 67-68 (Alaska 2002) (quoting                              



                                                                                                                                                                    

S. Anchorage Concerned Coal., Inc. v. Coffey , 862 P.2d 168, 173 (Alaska 1993)).  



             10           Fantasies on 5th Ave., LLC v. Alcoholic Beverage Control Bd., 446 P.3d  

                                                                                                                                                          

360, 367 (Alaska 2019).  

                                    



             11            Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002); see also  

                                                                                                                                                                    

Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017) (reviewing decision on  

                                                                                                                                                                      

motion to recuse for abuse of discretion).  

                                                            



                                                                                   -7-	                                                                          7515
  


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                                                                              12  

permits rather than variances.                                                     The Commission properly applied the requirements for                                                                                      



a conditional use permit to the Reynoldses' application. We                                                                                                therefore affirmthe                                superior  



court's decision upholding the Commission's grant of the conditional use permit.                                                                                                                    



                                    1.               The City of Homer properly exercised its legislative discretion                                                                                     

                                                     in permitting setback reductions via conditional use permitting.                                                                                



                                   The Alaska Constitution and state law grant municipalities broad authority                                                                                                



to legislate in the public interest, and we accordingly give a liberal construction to the                                                                                                                                  

powers of local government.                                                13  

                                                                                                                                                                                                                   

                                                                                  Borough assemblies have authority to enact "(1) zoning  



                                                                                                                                                                                                                          

regulations restricting the use of land and improvements by geographic districts; (2) land  



                                                                                                                                                                                                                         

use  permit  requirements  designed  to  encourage  or  discourage  specified  uses  and  



                                                                                                                                                                                                                          

construction of specified structures . . . [and] (3) measures to further the goals and  



                                                                                                       14  

                                                                                       

objectives of the comprehensive plan." 



                                                                                                                                                                                                       

                                   An assembly may provide for variances from these land use regulations  



                                                                                                                                                                                                                 

unless "(1) special conditions that require the variance are caused by the person seeking  



                                                                                                                                                                                                                               

the variance; (2) the variance will permit a land use in a district in which that use is  



                                                                                                                                                                                                                             

prohibited;  or  (3)  the  variance  is  sought  solely  to  relieve  pecuniary  hardship  or  

inconvenience."15  



                  12               HCC 21.18.040(b).   



                  13               Alaska Const. art. X, § 1; AS 29.35.400-.420;                                                                               see also Interior Cabaret,                    



                                                                                                                                                                                                                      

Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough, 135 P.3d 1000, 1008  

(Alaska 2006);                           Liberati v. Bristol Bay Borough                                                        , 584 P.2d 1115, 1122 (Alaska 1978)                                                 

                                                                                                                                                                                                       

(extending  liberal  construction  of  local  powers  to  general  as  well  as  home-rule  

                                           

municipalities).  



                  14               AS 29.40.040(a).  

                                              



                  15               AS 29.40.040(b).  

                                              



                                                                                                               -8-                                                                                                     7515
  


----------------------- Page 9-----------------------

                     The   Kenai   Peninsula   Borough   Assembly   has   delegated  its   land   use  



                                                                                             16  

authority to the Homer City Council for areas within the City.                                                                   

                                                                                                Using this authority, the  



                                                                                                                                 

Council has adopted a system of zoning districts in which certain uses and structures are  



                                                                                                                                 

permitted outright and others may be permitted subject to the grant of a conditional use  

           17   In the Homer central business district, buildings are generally required to "be  

permit.                                                                                                                          

set back 20 feet from all dedicated rights-of-way."18  But the Code allows this setback  

                                                                                               

to be reduced "[i]f approved by a conditional use permit."19  

                                                                             



                     Griswold argues that the Homer City Council was required to follow the  

                                                                                                                                 



variance procedure to reduce the setback requirement rather than the conditional use  

                                                                                                                                



permit procedure.  But this result would require us to read the zoning statute narrowly.  

                                                                                                                                       



Under the liberal construction that we give to statutory grants of municipal power,  

                                                                                                                           



analyzing setback reduction requests through the conditional use permit process is well  

                                                                                                                               



within the municipality's authority to adopt "land use permit requirements designed to  

                                                                                                                                   

                                                                                                   20  We decline to imply  

encourage or discourage . . . construction of specified structures."                                                         

                                                                                  

limitations on the City's powers where none exist.21  

                                                                      



          16         Kenai Peninsula Borough Code of Ordinances  21.01.020;  see also Griswold  



v.  City  of  Homer,  925  P.2d   1015,   1017  (Alaska   1996).  



          17         HCC  21.10.010  - .34.050.  



          18         HCC  21.18.040(b)(1).  



          19         HCC  21.18.040(b)(4).  



          20        AS  29.40.040(a)(2).  



          21        See  Liberati   v.   Bristol Bay   Borough,   584   P.2d   1115,   1120-21   (Alaska  



1978).  



                                                                -9-                                                          7515
  


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

                              2.	            The Commission                             properly  applied   the Homer City Code by                                                         

                                             approving the setback reduction as a conditional use permit.                                                                  



                              Griswold objects that expanding an existing building into a setback does                                                                                 



not fit the definition of "use" in HCC 21.03.040.                                                             This argument ignores more specific                               



provisions directly addressing setback reductions in the central business district.                                                                                



                              We interpret statutes in such a way as to reconcile conflict and produce a                                                          



                                            22  

harmonious whole.                                                                                                                                                                         

                                                   If two provisions conflict, "the later in time controls over the  



                                                                                                              23  

                                                                                                                                                                              

earlier, and the specific controls over the general."                                                              Although HCC 21.03.040 provides  



                                                                                                                                                                                          

a general definition of "use," HCC 21.18.040(b)(4)  is specific in  its allowance for  



                                                                                                                                                                                          

setback reductions via conditional use permit.  The Commission correctly applied the  



                                                                                                  

specific provision to grant the Reynoldses' permit.  



                                                                                                                                                                                             

                              The Code defines "use" as "the purpose for which land or a structure is  



                                                                                                                                                                                            

occupied, arranged, designed or intended, or for which either land or a structure is or  



                                                                               24  

                                                                                                                                                                                         

may  be  occupied  or  maintained."                                                    Griswold  argues  that  the  bicycle  store  is  the  



                                                                                                                                                                                            

"permitted use," that a setback reduction "is clearly not a use," and that regardless of  



                                                                                                                                                                                 

other code provisions a conditional use permit may be issued only for a "use" as defined  



                                              

by HCC 21.03.040.  



                                                                                                                                                                                       

                              But as the Commission points out, the Reynoldses applied to change their  



                                                                                                                                                                                     

"use" of a portion of the setback:   They sought to extend their business and retail  



                                                                                                                                                                                  

activities into it.  Using a setback for this purpose is a conditional use within the central  



               22            Allen v. Alaska Oil & Gas Conservation Comm'n                                                                        , 147 P.3d 664, 668                   



(Alaska 2006).   



               23             Id.
  



               24
            HCC 21.03.040.  

                                           



                                                                                            -10-	                                                                                     7515
  


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

business district.                   The setback reduction therefore constituted a "use" as defined by the                                                                      



Code.   



                            Even if this were not so,theCodeexpresslyallowstheCommission                                                                              to grant  



setback reductions in the central business district as conditional use permits. There is no                                                                                      



indication  that   this   provision   should   be   limited   by   the   definition   of   "use"   found  



elsewhere in the Code.                              And to the extent the provisions conflict, the more specific                                                     



                                                                 25  

HCC 21.18.040(b)(4) controls.                                          



                            The Code explicitly allows the Commission to approve setback reductions  

                                                                                                                                                                

on Pioneer Avenue via conditional use permits.26                                                            And the Commission followed the  

                                                                                                                                                                               



procedural requirements and considered the applicable factors listed in HCC 21.71 for  

                                                                                                                                                                                



conditional use permits.  Griswold's arguments that the setback reduction required a  

                                                                                                                                                                                   



variance are without merit.  

                                                          



              B.            Griswold's Constitutional Rights Were Not Violated.  

                                                                                                                               



                            Griswold alludes to various constitutional provisions allegedly violated by  

                                                                                                                                                                                 



the conditional use permit approval process.  He claims procedural and substantive due  

                                                                                                                                                                              



process violations,suggeststhesetbackreduction violates afundamental rightto privacy,  

                                                                                                                                                                     



and asserts that allowing setback reductions for most, but not all, of the central business  

                                                                                                                                                                    



district violates equal protection.  But Griswold's claims are inadequately briefed:  He  

                                                                                                                                                             



neither cites case law nor explains how the facts support his constitutional arguments.  

                                                                                                                                                                                        



              25            See  Allen ,   147  P.3d  at  668.  



              26            HCC  21.18.040(b)(4).  



                                                                                       -11-                                                                                       7515  


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

Because   Griswold   failed   to   adequately   brief   his   constitutional   arguments,   they  are  

waived.27  



                                                                                                        

          C.         Substantial Evidence Supports The Commission's Findings.  



                                                                                                                                

                    In addition to Griswold's legal and constitutional claims, he contests the  



                                                                                                                    

Commission's fact finding.   He criticizes the Reynoldses' application for containing  



                                                                                                                            

insufficient data and insists the Commission erred by considering the effects of the entire  



                                                                                                                      

proposal rather than the specific impacts of the proposed setback reduction.  



                                                                                                                                 28  

                                                                                                                                      

                    Zoning board decisions are generally accorded a presumption of validity. 



                                                                                                                     

We arerequired tosustain the Commission's findings if they are supported by substantial  



               29  

                                                                                                                            

evidence.         "Substantial evidence is 'such relevant evidence as a reasonable mind might  



                                                                      30  

                                                                           

                                                                     

accept as adequate to support a conclusion.' " 



                                                                                                                    

                    The Reynoldses adequately responded to each question in the conditional  



                                                                                                                        

use permit application, focusing on how the entire project fit into the central business  



                                                                                                                      

district.  They explained how their business and planned renovations would fit in with  



          27        See  Casciola  v.  F.S.  Air  Serv.,  Inc.,  120  P.3d  1059,  1062-63  (Alaska  2005)  



("We  do  not  consider  arguments  that  are  inadequately  briefed.   .   .   .   We  apply  a  more  

lenient   standard to pro   se   litigants.   .   .   .    Even   a   pro   se   litigant,   however,   must   cite  

authority  and  provide  a  legal  theory."  (emphasis  omitted)  (citing  Peterson  v.  Ek,  93  P.3d  

458,   464   n.9   (Alaska   2004)));  Adamson   v.   Univ.   of  Alaska ,   819   P.2d   886,   889   n.3  

(Alaska   1991)   ("[W]here   a   point   is   given   only   a   cursory   statement   in   the   argument  

portion  of  a  brief,  the  point  will  not  be  considered  on  appeal.").  



          28        S. Anchorage Concerned Coal., Inc. v. Coffey, 862 P.2d 168, 173 (Alaska  

                                                                                                                         

1993).  

              



          29        Id. ; see  also  Griswold v.  City of Homer, 55 P.3d  64, 67 (Alaska 2002)  

                                                                                                                           

("Judicial review of zoning board decisions is narrow, and board decisions are accorded  

                                                                                                                       

a presumption of validity.").  

                            



          30        DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (quoting Miller  

                                                                                                                           

v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)).  

                                                                                          



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

the surrounding neighborhood and conform with the goals of the Comprehensive Plan.                                                                                                                                                                                



They included photographs, surveys, and drawings of the proposed covered area and                                                                                                                                                                   



entryway, indicating the scale of the proposal and the intrusion into the setback.                                                                                                                                                               The  



information the Reynoldses provided in their application was appropriate for the modest                                                                                                                                                   



accommodation they sought.                                      



                                       The City Planning Department's staff report analyzed the Reynoldses'                                                                                                              



proposal under each of the requirements laid out in the Code and applicable provisions                                                                                                                                          



of the Community Design Manual.                                                                             The Commission considered the staff report and                                                                                         

                                                                                                                                                                                                   31      In further support  

found that the permit application complied with each requirement.                                                                                                                                                                       



of this finding, the Commission heard testimony from Abboud, the Reynoldses, and  

                                                                                                                                                                                                                                                   



supportive neighbors who testified that the proposal would enhance the aesthetics of the  

                                                                                                                                                                                                                                                      



central business district by providing just the sort of "pedestrian-friendly design and  

                                                                                                                                                                                                                                                   

amenities" encouraged in the neighborhood.32  

                                                                                                                                         



                                       Griswold suggests the Commission should have considered the setback  

                                                                                                                                                                                                                                        



reduction in isolation rather than the business as a whole, but the conditional use permit  

                                                                                                                                                                                                                                            

criteria indicate that the entire proposal should be considered in context.33   In light of the  

                                                                                                                                                                                                                                                      



entire record, including the detailed staff report, support of Abboud, and testimony from  

                                                                                                                                                                                                                                                 



neighboring   business   owners,   there   was   substantial   evidence   to   support   the  

                                                                                                                                                                                                                                                  



Commission's  findings  that  the  permit  application  complied  with  all  applicable  

                                                                                                                                                                                                                              



requirements.  



                    31                 See  HCC 21.71.030                                         .  



                    32  

                                                        

                                       HCC 21.18.10.  



                    33                 See  HCC 21.71.030.                                            



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

           D.	         The Commission Did Not Err By Omitting The Screening And Fire                                                                 

                       Marshal Conditions From The Conditional Use Permit.                                    



                       Griswold   claims  the   Commission   erred   in   omitting   a   Code   provision  



                                                                                                                               34  

limiting   unscreened,   outdoor   display   of   the   bicycles   to   business   hours.                                                    

                                                                                                                                     But  the  



                                                                                                                                               

screening  requirement  is  applicable  to  all  residents,  and  the  Reynoldses  would  be  



                                                                                                                                          

required to follow it whether or not the permit was granted.  The Commission made  



                                                                                                                                    

findings on all factors required to grant the conditional use permit; it was not obligated  



                                                                               

to repeat all other applicable code provisions.  



                                                                                                                                             

                       Similarly, Griswold argues the Commission erred in not including fire  



                                                                                                                                              

marshal certification as a condition of approval. As he did not raise this claim before the  



                                                                                                                                      

superior court, the issue is waived.  In any case, the project will require fire marshal  



                                                                                                                                                35  

                                                                                                                                                     

certification as a matter of state law, independent of the conditional use permit process. 



The Commission did not err by omitting these generally applicable requirements from  

                                                                                                                                           



the permit conditions.  

                   



           E.	         It Was Appropriate For The City Planner To Submit A Brief And  

                                                                                                                                           

                       Participate In The Appeal Proceedings.  

                                                                        



                       Griswold argues that City Planner Abboud was "never a legitimate party  

                                                                                                                      



to the appeal."  Griswold also claims that, as Abboud does not have a law license, his  

                                                                                                                                              



participation constituted an unauthorized practice of law. But the Code explicitly allows  

                                                                                                                                         



the City Planner to participate in the appeals process.  

                                                                                            



                       Pursuant to the Code, the City Planner may be a party to an appeal to the  

                                                                                                                                              



Office of Administrative Hearings if he or she "actively and substantively participated  

                                                                                                                               



           34          HCC  21.18.080(b).  



           35          See   13  Alaska  Administrative  Code  50.027(a)  (2020).   



                                                                      -14-                                                                     7515  


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

                                                               36  

in the matter before the Commission."                                Each party may submit a written brief and                       



                                                                  37  

present   oral   argument,   as   Abboud   did.                                                                               

                                                                        His  participation  was  therefore  entirely  



                                                                                                                                        

appropriate under the Code.  And because Abboud never claimed to be an attorney, he  



                                                             38  

                                                                  

                                                  

did not practice law without a license. 



           F.         The Superior Court Judge Did Not Have A Disqualifying Bias.  

                                                                                                                         



                      In Griswold's motion for reconsideration, he alleged that "recusal of the  

                                                                                                                                       



adjudicator would be appropriate" on the grounds that the superior court judge was  

                                                                                                                                     



biased against him.  Griswold's motion was based on a comment in the judge's written  

                                                                                                                                



decision:  

                 



                                After reading through this two-inch high file . . . , the  

                                                                                                                  

                      court is left with the numb feeling that some old grudge is  

                                                                                                                   

                      actuallybehind this litigation. Althoughtherearegeneralized  

                                                                                                    

                      issues   raised,   the   court   sees   no   genuine   issue   that  

                                                                                                              

                      Mr. Griswold has with this particular bicycle shop's awning;  

                                                                                                          

                      the attack is on the City of Homer.  

                                                                               



The superior court denied the motion for recusal, correctly noting that a judge may form  

                                                                                                                                    

"an opinion relative to the parties involved" without developing an improper bias.39  

                                                                                                                                        



                      Alaska Statute 22.20.020(a)(9) requires disqualification of a judge if "the  

                                                                                                                                     



judicial officer feels that, for any reason, a fair and impartial decision cannot be given."  

                                                                                                                                             



A judge must also self-disqualify from any proceeding in which that judge's impartiality  

                                                                                                                         



           36         HCC  21.93.060(b),  21.93.500.  



           37         HCC  21.93.530(a),  21.93.540(b).  



           38         Alaska  Bar  R.  63(a);  AS  08.08.230.  



           39         Vickers   v.   State,   175   P.3d   1280   (Alaska   App.   2008)   (quoting   Pride   v.  



Harris,  882  P.2d  381,  385  (Alaska   1994)).   



                                                                  -15-                                                             7515
  


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

                                                                                                                         40  

might reasonably be questioned, even if no actual bias exists.                                                                 Courts have found        



 disqualifying bias if a judge expresses "an opinion that derives from an extrajudicial                                                     



 source" or "reveal[s] such a high degree of favoritism or antagonism as to make fair                                                                        



                                           41  

judgment impossible."                           



                         As  we  explained  in  Hanson  v.  Hanson,  however,  "a  judge  is  not  

                                                                                                                                                             



 disqualified if the judge's 'knowledge and the opinion it produced were properly and  

                                                                                                                                                             

necessarily acquired  in  the course of the proceedings.'  "42                                                         It is  rare  for  a judge's  

                                                                                                                                                     



 comments, even when "critical or disapproving of, or even hostile to" a party, to rise to  

                                                                                                                                                                

the level of disqualifying bias.43                            We did not find disqualifying bias in Hanson after the  

                                                                                                                                                              



judge commented that the plaintiff "really hate[s] women," as we noted that the judge's  

                                                                                                                                                      



 "comments  were  the  result  of  opinions  and  attitudes  formed  in  court"  rather  than  

                                                                                                                                                           

 animosity or extrajudicial information.44  

                                                   



                          Here  the  judge's  comments  reflect  opinions  that  might  reasonably  be  

                                                                                                                                                               



 formed in court and indicate no disqualifying bias.  The record shows that Griswold  

                                                                                                                                                  



raised  general  issues  without  explaining  how  the  Reynoldses'  permit  harmed  him,  

                                                                                                                                                           



neighboring businesses, or thecommunity ofHomer. Giventhedisproportionateamount  

                                                                                                                                                      



 of time and energy spent on this litigation, the judge could have reasonably inferred that  

                                                                                                                                                             



 Griswold had other motivations for his repeated appeals.  

                                                                                                             



             40          See  Amidon v. State ,   604  P.2d   575,   578  (Alaska   1979);  see  also  Alaska  



 Code  of  Judicial  Conduct  Canon  3(B)(5),  3(E)(1)(a).  



             41          Liteky  v.   United  States,  510  U.S.  540,  555  (1994).  



             42           36  P.3d   1181,   1184  (Alaska  2001)  (quoting  Liteky,  510  U.S.  at  551).   



             43          Id.  (quoting  Liteky,  510  U.S.  at  555).   



             44          Hanson,  36  P.3d  at   1186  (alteration  in  original).  



                                                                              -16-                                                                        7515
  


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

                                   A judge has the discretion to decide whether to disqualify him or herself                                                                                                      



from a case; we afford that decision substantial weight and we will reverse only if it was                                                                                                                              

                                                          45  Nothing in the record suggests that the superior court judge was  

an abuse of discretion.                                                                                                                                                                                                   



actually biased against Griswold.  Denying Griswold's request for disqualification was  

                                                                                                                                                                                                                          



not an abuse of discretion.  

                                                                        



V.                CONCLUSION  

        



                                   We AFFIRM the superior court's decision affirming the Homer Advisory  

                                                                                                                                                                                                            



Planning Commission's decision.  

                                                                                            



                  45               Amidon , 604 P.2d at 577.  

                                                                                           



                                                                                                             -17-                                                                                                                7515  

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