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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 Board of Adjustment, et al. (4/19/2019) sp-7354

Frank Griswold v Homer Board of Adjustment, et al. (4/19/2019) sp-7354

       Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

       Readers are requested to bring errors to the attention of  the Clerk of  the App ellate Courts, 

       303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

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                THE SUPREME COURT OF THE STATE OF ALASKA 



FRANK GRISWOLD,                                 ) 

                                                )   Supreme Court No. S-16267 

                      Appellant,                ) 

                                                )   Superior Court No. 3HO-14-00243 CI 

       v.                                       ) 

                                                )   O P I N I O N 

HOMER BOARD OF ADJUSTMENT,                      )            

JOHN SMITH, NORMA SMITH,                        ) 

TERRY YAGER, JONNIE YAGER, and  ) 

RICK ABBOUD,                                    ) 

                      Appellees.                )   No. 7354 - April  19, 2019 

                                                ) 



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

               District, Homer, Charles T. Huguelet, Judge. 



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

               Holly C. Wells and Jack R. McKenna, Birch Horton Bittner 

               &  Cherot,  Anchorage,  for  Appellees  Homer  Board  of 

               Adjustment and Rick Abboud.  No appearance by Appellees 

               John Smith, Norma Smith, Terry Yager, and Jonnie Yager. 



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

               and Carney, Justices.  



               CARNEY, Justice. 

               BOLGER, Justice, dissenting. 



I.     INTRODUCTION 



               Frank  Griswold  appealed  a  decision  of  the  Homer  Advisory  Planning 



Commission to the Homer Board of Adjustment.  The Board rej ected his appeal for lack 


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

of standing.  Griswold appealed to the superior court, arguing that he had standing under 



the Homer City Code and alleging a number of due process violations.  The superior 



court ruled that Griswold lacked standing as a matter of law and found any due process 



errors harmless.  It also awarded the Board attorney's fees on the appeal, reasoning that 



Griswold did not qualify for protection from attorney's fees as a public interest litigant.  



               We reverse the superior court's decision on standing and vacate its award 



of attorney's fees. 



II.    FACTS AND PROCEEDINGS 



               In  March  2014  Homer  residents  Terry  and  Jonnie  Yager  applied  for  a 



conditional use permit to build a covered porch ten feet into a twenty-foot setback along 



Pioneer  Avenue  in  Homer's  Central  Business  District.    A  public  hearing  before  the 



Homer Advisory Planning Commission (the Commission) was set for the next month.  



               Frank  Griswold  is  a  Homer  resident  who  owns  several  lots  within  the 



Business District, one of which is approximately 3,280 feet from the Yagers' property.  



Before the hearing he  submitted two  documents to the  Commission,  arguing that the 



setback  exceptions  required  a  variance  rather  than  a  conditional  use permit  and  that 



provisions  of  the  Homer  City  Code  (HCC)  allowing  for  setback  exceptions  by 



conditional use permits in the Business District conflicted with state law.  After a public 



hearing the Commission approved the Yagers' conditional use permit, which it referred 



to as CUP  14-05.  



               In May Griswold filed a notice of appeal of the Commission's decision to 



the Homer Board of Adjustment (the Board).  In his notice Griswold explained that he 



passed the Yagers' property "often several times a day" and that he appreciated the open 



space that the setback created along the street.  He argued that the Yagers' permit would 



adversely affect the value of his Business District properties by increasing congestion in 



the  area and that the permit would create a "pernicious precedent" for future  setback 



                                              -2-                                           7354 


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

exceptions in his neighborhood.  Additionally Griswold said this would harm the use and 



enj oyment of his home.  



               The  city  clerk  initially  rej ected  Griswold's  notice  for  lack  of  a  legal 



description of the property that was the subj ect of the permit.  The clerk later accepted 



Griswold's amended notice and sent out a letter to the parties explaining that she found 



Griswold's  appeal  "compliant  with  [HCC]  Sections  .  .  .  2 1.93.070  and  21.93.080," 



provisions which respectively describe the time in which an appeal may be filed and 



what a notice of appeal must contain.  



               The letter further noted that "[o]nly persons . . . who would be qualified to 



appeal  under  [HCC]  2 1.93.060  may  participate  as  parties  in  an  appeal  from  the 



Commission to the Board of Adjustment."  HCC 2 1.93.060 defines standing to appeal 



from an action of the Commission to the Board, and allows appeals from "[a]ny person 



who actively and substantively participated in the proceedings before the Commission 

and is aggrieved by the action or determination."1 



               The clerk scheduled a hearing for August  13, 2014, but it was postponed 



at Griswold's request until September  15.  In the meantime City Planner Rick Abboud 



filed a brief supporting the Commission's decision, and Griswold moved to strike the 



brief for lack of standing.  



               On  the  morning  of  September  15  Griswold  emailed  the  Board's  legal 



advisor, Holly Wells, asking whether there would be sufficient Board members if he won 



his motions to disqualify certain members.  Wells responded that the hearing would have 



to be postponed if he successfully moved to disqualify members, but Griswold protested 



any postponement.    The  city  clerk  then  issued  a  notice postponing  the  hearing  until 



September 29, 2014, over Griswold's obj ections.  



        1      HCC 2 1.93.060(c) (2014).  



                                               -3-                                            7354 


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

               Mayor  Mary  Wythe  and  all  Board  members  were  present  -  one  by 



telephone - for the hearing on September 29, as were the city clerk, Griswold, and the 



Yagers.  Wells had been replaced by Joseph Levesque as the Board's legal advisor.  



               After the Board heard and rej ected Griswold's disqualification motions, 



Griswold asked if they were ready to address standing, referring to his motion to strike 



Abboud's  brief  for  lack  of  standing.    After  being  told  that  the  Board  had  to  finish 



preliminary  issues  first,  Griswold  asked  when  they  would  address  his  motion.    The 



mayor responded, "I think that's under the jurisdictional section [of the hearing]."  After 



the Board approved a motion to supplement the record, Griswold asserted that he had no 



more  preliminary  issues  and  again  said  that  he  would  "like  to  address  [Abboud's] 



standing."  The mayor then determined that the Yagers had no preliminary issues of their 



own, and recessed the hearing briefly.  



               After the break the mayor opened the floor to questions of standing.  She 



read from HCC 21.93.060's language regarding standing, and noted that it required an 



individual  appellant  be  "aggrieved  by  the  action  or  determination"  from  which  he 



appealed.  She recited the definition of "person aggrieved" from HCC 2 1.03.040:  



               a person who shows proof of the adverse effect an action or 

               determination taken or made under the Homer Zoning Code 

               has  or  could  have  on  the  use,  enj oyment,  or  value  of  real 

               property  owned  by  that  person.    An  interest  that  is  no 

               different from that of the general public is not  sufficient to 

               establish aggrievement.   



She then asked Griswold if he had any property affected by the decision at issue and if 



his  "use  [or]  enj oyment  thereof  affected  by  [the  decision  was]  something  different 



than . . . that of anyone else in the community."  



               Griswold responded that his notice of appeal "was not rej ected by the clerk" 



and  had  included  a  statement  of  standing  that  listed  his  properties.    Mayor  Wythe 



                                                -4-                                            7354 


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

acknowledged Griswold's properties in the Business District, but asked him again to 



identify  any  proof  of  adverse  impact  to  those  properties  or  his  enj oyment  of  those 



properties from the Commission's action.   She further noted that his notice of appeal 



"[did] not  identify  .  .  . proof that  [his] properties  .  .  .  [were] negatively  impacted by 



this . . . CUP."  The mayor explained that she was looking for "very specific, tangible 



proof" of how the permit negatively impacted Griswold.  Griswold responded, "[I]f there 



was no proof [the appeal] would have been rej ected by the city clerk."  



               Griswold then explained that approval of the Yagers' permit would "set . . . 



a  continuing  precedent  for  other  properties  in  the  neighborhood."    "[I]f  my  entire 



neighborhood encroaches into the setbacks," he argued, "it's certainly going to affect my 



neighborhood,  my  enj oyment  of  walking  around  the  Business  District."    Griswold 



explained that setbacks were meant to "provide adequate open spaces for light and air, 



prevent  undue  concentration  of  populations,  lessen  .  .  .  congestion  on  streets  and 



highways,  preserve  and  enhance  the  aesthetic  environment  of  the  community,  and 



promote the health, safety and general welfare."  The mayor asked if the permit would 



decrease the value of Griswold's property, and Griswold answered that he believed so 



but could not give an exact figure.  But when Griswold asked in response if she could 



prove it would not devalue his property, the mayor said no.  Griswold finally noted that 



no one had obj ected to his standing "through this whole event," and argued that standing 



obj ections were therefore waived.   



               The  Board  voted  and  found  that  Griswold  did  not  have  standing.    The 



hearing adj ourned, and the Board issued a written decision in November explaining its 



reasoning.  



               Griswold appealed the Board's decision to the superior court in December 



2014.  He argued that the Board erred in holding that he did not have standing; that the 



Board did not have the power to  find that he lacked  standing  after the  city  clerk had 



                                                -5-                                             7354 


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

accepted his notice of appeal; that the Board did not give him sufficient time or notice 



to  argue  the  standing  question;  and  that  Wells,  Levesque,  and  Mayor  Wythe  were 



impermissibly  biased  and  had  conspired  to  dismiss  Griswold's  appeal  on  standing 



grounds.  



                 The superior court held that the Board had the authority to review the issue 



of Griswold's standing even though the clerk had accepted his notice of appeal.  The 



court also held that Griswold had not shown that he was a "person aggrieved" under the 



HCC.  It noted that Griswold had raised a number of due process arguments related to 



alleged  misconduct  by  Wells,  Levesque,  and  Mayor  Wythe,  but  found  no  harm  to 



Griswold because of its determination that Griswold lacked standing to appear before the 



Board.  



                 The court awarded the Board $4,733.10 in attorney's fees for Griswold's 



appeal under Alaska Appellate Rule 508(e)(4).  Griswold had argued that he was a public 



interest litigant and was exempt from attorney's fees under AS 09.60.010(c)(2).  The 



court disagreed: 



                 The  maj ority  of  Appellant's  litigation  does  not  appear  to 

                 represent others' interests.  Instead, he often bases standing 

                 on his own property values without proof, as in this case.  He 

                 appears to hold a personal grudge against the City of Homer; 

                 and rather than benefitting the other citizens of Homer, his 

                 litigation  is  costing  Homer  taxpayers  a  lot  of  money  to 

                          [  ] 

                           2 

                 defend.        



                 Griswold now appeals, representing himself. 



        2        Griswold has litigated a number of matters of land-use policy and related 



issues  in  Homer.    See  Griswold  v.  City  of   Homer  (Griswold  2011),  252  P.3d  1020 

(Alaska 2011); Griswold v. City of  Homer, 186 P.3d 558 (Alaska 2008); Griswold v. City 

of  Homer, 55 P.3d 64 (Alaska 2002); Griswold v. City of  Homer, 34 P.3d 1280 (Alaska 

2001); Griswold v. City of  Homer, 925 P.2d  1015 (Alaska  1996). 



                                                     -6-                                                  7354 


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

III.    STANDARD OF REVIEW 



                "We resolve issues of standing . . . using our independent judgment because 



                                                                             3 

they are  questions  of law involving matters  of judicial policy."    "When the  superior 



court acts as an intermediate appellate court, we independently review the merits of the 



underlying administrative decision.  The specific form our independent review takes is 



de novo review:  We adopt the rule of law that is most persuasive in light of precedent, 

reason, and policy."4 



                "A trial court's award of attorney's fees is generally reviewed for abuse of 



              5 

discretion."     But  a  "trial  court's  application  of  law  in  awarding  attorney's  fees  is 

reviewed de novo."6 



IV.     DISCUSSION 



        A.      Griswold Is A "Person Aggrieved" Under HCC 21.03.040. 



                We generally interpret standing doctrine broadly, "in favor of 'increased 

accessibility to judicial forums.' "7  But "[i]n the area of land use law, the legislature has 



        3       Fairbanks Fire Fighters Ass 'n, Local 1324 v. City of  Fairbanks, 48 P.3d 



1165,  1167 (Alaska 2002).  The dissent cites cases from other states to conclude that 

aggrievement is a question of fact.  Dissent at  14.  But in Alaska, standing is a question 

of law, not a question of fact.  We decline to overrule our cases on this matter. 



        4       Heller v. State, Dep 't of  Revenue, 314 P.3d 69, 72-73 (Alaska 2013). 



        5       DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290, 294 (Alaska 2015) 



(quoting Bachner Co. v.  Weed, 315 P.3d  1184,  1189 (Alaska 2013)).  



        6       Id. (quoting Bachner Co., 315 P.3d at  1189). 



        7       Kanuk  ex  rel. Kanuk  v.  State, Dep 't  of  Nat. Res.,  335  P.3d  1088,  1092 



(Alaska 2014) (quoting Trs. f or Alaska v. State, Dep 't of  Nat. Res., 736 P.2d 324, 327 

(Alaska  1987)). 



                                                  -7-                                               7354 


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

                                            8 

chosen to limit standing by statute."   As explained in one of Griswold's earlier cases, 



Griswold v.  City  of  Homer, these provisions  effectively  "eliminate[] taxpayer-citizen 

standing  in  land  use  cases."9    But  injury-interest  standing  was  not  abrogated;  under 



AS 29.40.060(a) the legislature provides review for those "aggrieved" when "adversely 

affected" by the challenged city action.10  Deciding whether a person is "aggrieved" in 



a land use case thus still resembles a traditional standing inquiry - an inquiry with a 

long-held policy "in favor of 'increased accessibility to judicial forums.' "11  In light of 



this liberal policy, we interpret AS 29.40.050-.060 to "promot[e] citizen access to the 

courts," in harmony with our long-held, expansive views of standing.12   



                Because "[g]eneral Alaska standing law is not applicable," "we must look 



to the applicable statutes and ordinance[s] for guidance in determining whether [a party 

in a land use appeal] has standing."13  There is no dispute that Griswold "actively and 



substantively"14 participated in the Commission proceedings, so our analysis of standing 



        8       Griswold 2011, 252 P.3d 1020, 1029 (Alaska 2011) (alteration in original) 



(quoting Earth Movers of  Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 P.2d 74 1, 

743 (Alaska  1993)); see AS 29.40.050, AS 29.40.060.  



        9       Griswold 2011, 252 P.3d at  1029.  



        10      Earth Movers, 865 P.2d at 743. 



        11      See Kanuk, 335 P.3d at 1092 (quoting Trs.f  or Alaska, 736 P.2d at 327); see 



also Coghill v. Boucher, 511 P.2d 1297, 1304 (Alaska 1973) (refusing to limit standing 

of registered voters  to  challenge  vote-counting regulations  due  to  "the public's  vital 

interest in maintenance of the integrity of vote-tallying procedures"). 



        12      Kanuk, 335 P.3d at  1093. 



        13      Earth Movers of  Fairbanks, Inc., 865 P.2d at 743.  



        14      HCC  2 1.93.060(c)  (granting  standing  to  appeal  to  the  Board  to  "[a]ny 



                                                                                          (continued...) 



                                                   -8-                                                7354 


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

begins  with  the  HCC's  definition  of  "person  aggrieved."    HCC  21.03.040  defines 



"person aggrieved" as  



               a person who shows proof of the adverse effect an action or 

               determination taken or made under the Homer Zoning Code 

               has  or  could  have  on  the  use,  enj oyment,  or  value  of  real 

               property  owned  by  that  person.    An  interest  that  is  no 

               different from that of the general public is not  sufficient to 

               establish aggrievement.[15] 



We held previously that Homer's standing ordinance for land use appeals is "not more 

restrictive than our interpretation of AS 29.40.060(a)."16  And the standing requirement 



in AS 29.40.050(a) - which requires municipal governments to provide appeals from 



administrative decisions - should be read to provide review to those "aggrieved" within 

the meaning of AS 29.40.060(a) - which provides for appeals to the superior court.17  



               So interpreted, HCC 2 1.03.040 requires that a property owner make only 



a minimal showing to qualify as a "person aggrieved."  HCC 2 1.03.040 requires only 



that the property owner "show[] p roof " of - not prove - the adverse effect that an 



action under the Homer Zoning Code "has or could have on the use, enj oyment, or value 



        14     (...continued) 



person  who  actively  and  substantively  participated  in  the  proceedings  before  the 

Commission and would be aggrieved if the . . . determination being appealed were to be 

reversed on appeal").  



        15     HCC 2 1.03.040 (2014). 



        16     Griswold  2011,  252  P.3d  1020,  1028 (Alaska  2011).    In  that  case  we 



examined  a  prior  version  of  the  HCC,  but  the  previous  version  was  substantively 

identical  to  the  current  code.   Id.  at  1028,  n.28; compare   former  HCC  2 1.68.020(c) 

(2011) (requiring a person to show proof of "adverse effect . . . on the use, enj oyment, 

or value" of his or her real property to be considered "aggrieved") with HCC 2 1.03.040 

(2014) (same). 



        17     Earth Movers, 865 P.2d at 743. 



                                                -9-                                            7354 


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

of  real  property  owned  by  that  person."    (Emphases  added.)    The  language  "shows 



proof" suggests the HCC does not contain an evidentiary burden, such as a requirement 



to  show  standing by  a preponderance  of the  evidence  or beyond  a reasonable  doubt.  



Rather  it requires  only that the property  owner produce  some  evidence  supporting  a 



claim of impact on real property.  Likewise, the language "could have" implies that the 



causation chain for such evidence is minimal; i.e., that the property owner's evidence 



supports a potential, not actual, diminution in "use, enj oyment, or value."  Finally, the 



language  provides  that  the  detrimental  impact  does  not  have  to  be  economic  -  the 



impact  can be  on the  "use"  or "enj oyment"  of the  owner's property.   The HCC thus 



requires only that a property owner produce some evidence supporting the owner's claim 



that the city's action could p otentially adversely affect the owner's use or enj oyment of 

the owner's property.18 



                                                         19 

                 Griswold met these requirements.    Griswold argued that Homer's enabling 



ordinance      for    setback     reductions      under     conditional     use    permits     -     HCC 



        18       It  is  the  Homer  Code,  which  can  be  as  liberal  or  restrictive  as  Homer 



decides  to  make  it,  that  establishes  whether  there  is  standing.    As  is  true  when  we 

interpret any statute, we do not create a new definition but rather interpret and apply the 

statute.  Our interpretation of "aggrieved" thus relies upon the statute in which it appears:  

section 2 1.03.040 of the Homer Code. 



        19       Griswold also argues he has standing because the city clerk accepted his 



notice of appeal, constituting a factual finding of standing to which the Board must defer.  

But  standing  is  a  question  of  law,  not  fact,  and  the  HCC  expressly  gives  the  Board 

authority to make findings on the question of a person's standing.  See Law Proj ect f or 

Psy chiatric  Rights,  Inc.  v.  State,  239  P.3d   1252,   1254-55  (Alaska  2010);  HCC 

2 1.93.510(b) (2014).  The Board was not required to regard the clerk's acceptance of 

Griswold's notice of appeal as a decision on the issue of standing and it is not relevant 

to our determination that he has standing.  Because the Board found Griswold lacked 

standing, it did not address his arguments on the legality of HCC 2 1.18.040(b)(4), so we 

need not address whether the Board has jurisdiction to determine the legality of its own 

code. 



                                                   -10-                                                 7354 


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

2 1.18.040(b)(4) - conflicts with state statutes and illegally circumvented another HCC 

provision.20  Griswold  supported this argument in his notice of appeal by  stating that 



when the setbacks on neighboring properties are reduced, his use and enj oyment of his 



property are also reduced.  Griswold claimed that he lives in the same zoning district as 



the property for which the conditional use permit was granted and that he owns six other 



properties in that district, one of which is within 3,300 feet of the permit property.  No 



one disputed this factual support; when discussing standing before the Board the mayor 



explained, "Okay, so, Mr. Griswold, we do have record of your properties, and . . . and 



I'm just asking for you to identify the proof of adverse impact to those properties."  But 



the potential impact of building into the reduced setback is some evidence that Griswold, 



by virtue of his ownership in the zoning district, may suffer diminished enj oyment of his 

property.21  And if Griswold's legal claim were successfully adjudicated on the merits, 



Griswold would be able to prevent setback reductions on all properties near or adj oining 



his  in  the  zoning  district,  including  the property  in  dispute.   Griswold is therefore  a 

"person aggrieved" under the HCC.22 



        20     HCC 2 1.18.040(b)(4) provides in full:  "If approved by a conditional use 



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

Lake Street, may be reduced."  HCC 2 1.18.040(b)(1) provides in turn:  "Buildings shall 

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

(b)(4) of this section."  Subsection (b)(4)'s invalidation would thus result in a mandatory 

20-foot setback requirement under subsection (b)(1). 



        21     Griswold  cites  two  law  review  articles  as  evidence  that  the  setback 



reduction could also negatively affect the value of his property.  See William K. Jaeger, 

The Eff ects of  Land-use Regulations on Prop erty  Values, 36 ENVTL. L.  105,  106,  115 

(2006); Richard K. Green, Land Use Regulation and the Price of  Housing in a Suburban 

Wisconsin County , 8 J. HOUSING ECON .  144,  156 (1999). 



        22     The   superior   court   reasoned   that   Griswold   "could   have   hired   an 



                                                                                   (continued...) 



                                               -11-                                           7354 


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

                 The City argues that granting Griswold standing would provide standing 



to any property owner in the zoning district, rendering the City's standing requirement 



"futile."  But because reduced setbacks could potentially harm every property owner in 



the zoning district, every property owner in that zoning district does have standing to 

challenge their legality.23  As we explained in Kanuk ex rel. Kanuk v. State, Dep artment 



of  Natural Resources, "even federal law recognizes that denying injured persons standing 



on grounds that others are also injured - effectively preventing judicial redress for the 

most widespread injury solely because it is widespread - is perverse public policy."24  



An  aggrieved property  owner  is no  less  aggrieved merely because the neighbors  are 



                      25 

aggrieved as well.    Although every property owner in the district has standing, this does 



        22       (...continued) 



appraiser . . . to determine the [permit]'s effect, if any, on [Griswold]'s property values," 

an  argument  the  City  echoes  on  appeal.    But  HCC  2 1.03.040  does  not  require  an 

appraisal showing a decrease in property value to demonstrate standing.  By the code's 

own  language  the  injury may be  to  a property  owner's  "use"  or  "enj oyment"  of  the 

property rather than its value; moreover, "show[ing] proof" of a diminution in value does 

not necessarily require a professional appraisal.  Cf . Olivera v. Rude-Olivera, 4 11 P.3d 

587, 592-93 (Alaska 2018) (upholding real property valuation based on property owner's 

testimony over argument that valuation was much higher than tax-assessed value). 



        23       This basis for injury-interest standing remains distinct from taxpayer-citizen 



standing because  each property  owner in the zoning  district has  an interest that goes 

beyond being a "suitable advocate" of issues "of significant public concern" as required 

for taxpayer-citizen standing.  Kleven v. Yukon-Koy ukuk School Dist., 853 P.2d 518, 526 

(Alaska 1993).  All of the property owners in the zoning district have the potential injury 

to their property values and enj oyment; this is an adverse effect not felt by all taxpayer- 

citizens.  



        24       335 P.3d 1088, 1094 (Alaska 2014) (citing Massachusetts v. EPA, 549 U.S. 



497, 522 (2007)). 



        25       We  recognize  the  dissent's  concern  that  a  zoning  district  in  a  large 



                                                                                           (continued...) 



                                                   -12-                                                 7354 


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

not mean that every property owner will prevail on a claim.  The individual bringing the 



claim must still prevail on the merits by showing that a legal remedy against such harm 

is available.26 



V.      CONCLUSION 



               We REVERSE the superior court's judgment that Griswold lacks standing 

under the HCC and REMAND for reconsideration by the Homer Board of Adjustment.27  



We VACATE the superior court's award of attorney's fees against Griswold.28 



       25      (...continued) 



municipality  may  be  so  large  that  allowing  every  property  owner  in  the  district  to 

challenge  a  zoning  decision  could  "invite[]  obstacles  to  reasonable  development."  

Dissent at  15.  But there is a distinction between a challenge to the legality of a zoning 

regulation that affects every property owner in a district and a challenge to a particular 

zoning decision that, although valid under the regulations, wrongly affects certain parcels 

within the district.  The former can and should be available to each property owner; the 

latter can only succeed if the property owner can show the different and harmful impact 

upon the particular property. 



       26      See, e.g., Sp endlove v. Anchorage Mun. Zoning Bd. of  Exam 'rs & App eals, 



695 P.2d 1074, 1076 (Alaska 1985) (affirming zoning enforcement prohibiting mineral 

resource extraction despite existence of harm to individual property owner). 



       27      Because  we  are  reversing  on  the  basis  of  standing,  we  do  not  address 



Griswold's fair notice claims.  



       28      Because  we  are  reversing  and  remanding,  attorney's  fees  must  also  be 



vacated.  In the event the superior court finds against Griswold and attorney's fees are 

again an issue, an analysis must be conducted under AS 09.60.010(c).  The former public 

interest litigant doctrine on which the superior court relied was abrogated by the 2003 

statute's  creation  of  "constitutional  claimants."    Ch.  86,    2,  SLA  2003;  see Alaska 

Conservation Found. v. Pebble Ltd. P 'ship , 350 P.3d 273, 274 (Alaska 2015) ("Alaska 

Statute  09.60.010 was  enacted to  abrogate  our previous  common  law public  interest 

litigation  attorney's  fees  framework  and  replace  it  with  a  narrower  constitutional 

litigation framework."). 



                                              -13-                                           7354 


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

BOLGER, Justice, dissenting. 



                 I  disagree  with  the  court's  opinion  on  the  standing  issue.    When  the 

legislature chose to limit appeals to a "person aggrieved" by a land use decision,1 it was 



choosing language that is used across the country to limit participation more strictly than 



the broad definition of interest-injury standing.  



                 Aggrievement requires a showing of more than minimal or 

                 slightly  appreciable harm.   The  adverse  effect  on  a person 

                 must be substantial enough to constitute actual aggrievement 

                 such that there can be no question that the person should be 

                 afforded  the  opportunity  to  seek  a  remedy.    To  conclude 

                 otherwise would choke the courts with litigation over myriad 

                 zoning decisions where individual plaintiffs have not been, 

                 obj ectively  speaking,  truly  and  measurably  harmed.    The 

                 issue is whether a person has put forth credible evidence to 

                 show that she will be injured or harmed by proposed changes 

                 to  an  abutting  property,  not  whether  she  simply  will  be 

                                                     [  ] 

                 "impacted" by such changes. 2 



                                                                                                         3 

Aggrievement  is thus  a  question  of  fact that must be resolved by  a  finder  of  fact.    I 



would affirm the Homer Board of Adjustment because the Board reasonably concluded 



that Frank Griswold was not aggrieved by the Homer Advisory Planning Commission's 



setback decision.  



                 I am especially concerned about the court's conclusion that Griswold, "by 



virtue  of his  ownership  in the  zoning  district," will  suffer recognizable harm  from  a  



        1        AS 29.40.060(a). 



        2        8A EUGENE MCQUILLIN THE LAW OF MUNICIPAL CORPORATIONS  25:354 



(3d ed.) (footnotes omitted). 



        3        See Trimar Equities, LLC v. Planning & Zoning Bd. of  City of  Milf ord, 785 



A.2d 619, 622 (Conn. App. 2001) ("Aggrievement is an issue of fact . . . for the trier of 

the facts."); Kenner v. Zoning Bd. of  App eals of  Chatham, 944 N.E.2d  163,  168 (Mass. 

2011) ("Standing essentially becomes a question of fact."). 



                                                    -14-                                                 7354 


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

                                                      4 

covered porch more than a half-mile away.   In a large municipality, a zoning district 



could contain many  square miles of property.  This decision thus invites obstacles to 



reasonable development proposals, even when the competing interest is very remote or 



speculative. 



        4        Opinion at  11. 



                                                     -15-                                               7354 

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