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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. City of Homer (06/20/2008) sp-6276
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| FRANK GRISWOLD, | ) |
| ) Supreme Court No. S- 12226 | |
| Appellant, | ) |
| ) Superior Court No. 3HO-04-132 CI | |
| v. | ) |
| ) O P I N I O N | |
| CITY OF HOMER, | ) |
| ) No. 6276 - June 20, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Charles T. Huguelet, Judge.
Appearances: Frank Griswold, pro se, Homer.
Gordon J. Tans, Perkins Coie, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
CARPENETI, Justice, dissenting.
I. INTRODUCTION
After the Homer City Council passed an ordinance
limiting the floor area of stores in three City of Homer zoning
districts to between 20,000 and 45,000 square feet, Homer
residents passed an initiative that increased the area to 66,000
square feet for all three zoning districts. Homer resident Frank
Griswold sued the city and argued that the initiative was invalid
for various reasons. The superior court upheld the initiative
and granted summary judgment to the city. Griswold appeals,
arguing that zoning is not a proper subject for an initiative.
Because this zoning initiative impermissibly bypassed the Homer
Advisory Planning Commission, and therefore exceeded the city
council's own legislative power, we conclude that the initiative
was invalid. We consequently remand for entry of judgment for
Griswold.
II. FACTS AND PROCEEDINGS
When Fred Meyer, Inc. publicly announced plans in late
2002 to build a 95,000-square-foot store in Homer, the city began
an extensive review of its existing zoning code to determine
whether it needed to alter floor area limits for retail and
wholesale stores. For two years, beginning in March 2003, the
question was considered by a special task force, by the Homer
Advisory Planning Commission, and by the Homer City Council in
more than a dozen hearings. After analyzing issues including
traffic impact, the ideal rate of development, landscaping,
maintaining the local character of Homer, and protecting
groundwater, the planning commission made a series of
recommendations to the city council regarding the appropriate
floor area for retail and wholesale stores.
While those hearings were still being conducted, Homer
voters in March 2004 filed with the city clerk an initiative
petition that proposed a "footprint area" of 66,000 square feet
for retail and wholesale business buildings in the Central
Business District, General Commercial 1 District, and General
Commercial 2 District. On April 12, 2004, the city council
passed Ordinance 04-11(A), which set building floor area limits
of 35,000 square feet in the Central Business District, 20,000 to
45,000 square feet in the General Commercial 1 District, and
45,000 square feet in the General Commercial 2 District. On the
same day, in response to the initiative petition, the city
council scheduled an election on the initiative for June 15,
2004. The voters approved the initiative at the June 15
election; the initiative became effective on June 21, 2004 as
Ordinance 04-18.
Stating that a change in the zoning code sections was
"required to properly convey the will of the voters," and that an
ordinance was "necessary to implement the will of the voters," in
February 2005 the city council enacted Ordinance 05-02, adopting
a maximum floor area of 66,000 square feet for retail and
wholesale business buildings in the three affected zoning
districts. Ordinance 05-02 amended Ordinance 04-11(A) to reflect
the text of the initiative. Ordinance 05-02 also effectively
defined "footprint area" as "floor area," meaning "the total area
occupied by a building, taken on a horizontal plane at the main
grade level, exclusive of steps and any accessory buildings."1
Frank Griswold challenged the initiative in the
superior court, claiming among other things that the initiative
process could not be used to amend the zoning code. The city
prevailed on summary judgment.
Griswold appeals.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.2 We
decide the questions of law presented on appeal from a grant of
summary judgment by adopting "the rule of law that is most
persuasive in light of precedent, reason, and policy."3
B. The Initiative Was an Invalid Exercise of the City's
Legislative Authority Because It Bypassed the Homer
Advisory Planning Commission.
Griswold argues that the zoning initiative is invalid
for several reasons. He contends, among other things, that the
zoning authority delegated to the City of Homer requires it to
pass only zoning ordinances that are consistent with the city's
comprehensive plan. The city, citing Citizens Coalition for Tort
Reform v. McAlpine,4 responds that the voters' constitutional
right to enact initiatives should be broadly construed to permit
the voters to amend zoning laws. The city contends that because
the city council has the power to enact zoning ordinances, the
voters must have the same power.
The power to initiate cannot exceed the power to
legislate.5 To decide whether Homer voters could invoke the
initiative process to amend the City of Homer zoning code we must
determine the extent of the city council's zoning power and the
explicit and implicit limitations on that power. The city's
zoning power flows from two sources: Alaska statutes providing
for planning, platting, and land use regulation by local
governments, and Kenai Peninsula Borough ordinances delegating
zoning powers to cities within the borough.
We first review the statutory sources of that power.
Alaska Statute 29.40.010 requires first and second class boroughs
to provide for "planning, platting, and land use regulation on an
areawide basis."6 If a city within a borough consents by
ordinance, the borough assembly may delegate any of its land use
regulation powers to the city.7 Alaska Statute 29.40.020(a)
provides that the borough "shall establish a planning commission"
and AS 29.40.020(b) provides that the planning commission "shall
prepare and submit a proposed comprehensive plan in accordance
with AS 29.40.030 . . . ."8 Section .030 describes "a
comprehensive plan" as "a compilation of policy statements,
goals, standards, and maps for guiding the physical, social, and
economic development, both private and public, of the first or
second class borough."9
These statutes require "areawide" planning and creation
of a comprehensive plan "for the systematic and organized
development" of the community, and they implicitly recognize the
importance of the planning commission and the comprehensive plan
to the process of regulating land use.10
A planning commission has statutory responsibilities
beyond drafting the comprehensive plan. Per AS 29.40.020(b)(2),
the commission must also "review, recommend, and administer
measures necessary to implement the comprehensive plan, including
measures provided under AS 29.40.040."11 Because "zoning
regulations" are one of the "measures provided under AS
29.40.040,"12 subsection .020(b)(2) requires the planning
commission to "review, recommend, and administer" zoning
regulations "necessary to implement the comprehensive plan." The
assembly by ordinance "shall adopt or amend" land use provisions
"[i]n accordance with a comprehensive plan" and "in order to
implement the comprehensive plan."13
The statutes therefore expressly require that the
planning commission have an active role in creating a
comprehensive plan for "systematic and organized" local
development, reviewing and recommending zoning regulations, and
adopting measures "necessary to implement the comprehensive
plan."14 The statutes implicitly recognize that the planning
commission plays an important part in the formation and amendment
of local land use regulations by providing assistance to the
borough (or city) to ensure that development proceeds in a
"systematic and organized" manner.15
We now consider the second source of the city's power
to regulate land use. The Kenai Peninsula Borough, by ordinance,
delegated the zoning power to cities willing to accept the
delegation, and also delegated to those cities power to establish
a planning commission "to hear all requests for amendments to
zoning codes."16 The same ordinance also authorized a city with
this delegated zoning power to "exercise all zoning powers within
the city to the extent that such powers have been granted to the
borough by statute."17 The Kenai Peninsula Borough therefore
delegated the power to regulate zoning to the City of Homer,
which by ordinance requested the delegation. The city, standing
in the place of the borough, was therefore obligated to establish
a zoning commission, draft a comprehensive plan, and comply with
state law governing planning and land use regulation. And, most
relevant here, KPBC 21.01.020(B) delegated to the city council
"the power to establish a planning commission to hear all
requests for amendments to zoning codes."
The City of Homer created the Homer Advisory Planning
Commission, in accordance with AS 29.40.020 and KPBC 21.01.020.18
The city charged the commission with holding hearings and
preparing recommendations for the city council when a zoning
amendment is proposed.19 In addition, the commission may propose
amendments to the zoning code.20
The city council also has the power to propose
amendments to zoning ordinances,21 as does "any person,"22
presumably meaning any Homer resident.
The relevant state statutes are clear. A borough or a
city, having the power possessed by the City of Homer, cannot
pass or amend a zoning ordinance without involving its planning
commission in reviewing that ordinance.23 This review includes
considering whether a proposed ordinance is consistent with the
comprehensive plan.24 A borough assembly or city council may
eventually choose not to follow the recommendations of the
planning commission, but the statutes preclude bypassing the
planning commission altogether.
Likewise, KPBC 21.01.020(B) gives the city council
power to establish a planning commission to hear all requests for
amendments to zoning codes.25 This provision can be read as
giving the planning commission the primary authority for initial
consideration of zoning amendments. At the very least, this
provision confirms the commission's role in considering proposed
amendments to an existing zoning code that was itself adopted
"[i]n accordance with a comprehensive plan . . . and in order to
implement the plan . . . ."26
It is for this reason that zoning by initiative is
invalid. The Homer City Council does not have the power to pass
piecemeal zoning amendments without at least giving the Homer
Advisory Planning Commission opportunity to review the proposals
and make recommendations. Therefore, voters, who have no
obligation to consider the views of the planning commission or be
informed by its expertise, cannot use the initiative process to
eliminate the planning commission's role in "areawide" land use
planning and regulation, and thus potentially undermine the
comprehensive plan for "systematic and organized" local
development.27
The city contends that we must determine "[w]hether the
Constitution and statutes preempt the use of the initiative for
zoning ordinances." But, because the initiative was local, and
not statewide, the power to initiate here was directly derived
from AS 29.26.100, not article XI, section 1 of the Alaska
Constitution.28 And we conclude that zoning by initiative exceeds
the scope of the legislative power granted by the legislature to
the city council.
The city also contends that initiatives are not
"governed by all the procedures ordinarily applicable to the
enactment of city council ordinances." The city seems to argue
that because notice and a hearing are required for a city council
ordinance but not an initiative, it is acceptable for initiatives
to bypass certain procedural requirements. But as seen above,
the participation of the city's planning commission in the zoning
process required by the legislature and the borough is more than
just a mere procedural requirement.
The facts in this case illustrate how the initiative
process limits or even eliminates the intended role of a planning
commission. The planning commission spent many months
considering appropriate floor area limits for business buildings
in the affected zoning districts. The city council charged the
commission with "develop[ing] standards for addressing large
retail and wholesale development" and "recommend[ing] a size cap
for large retail and wholesale development." To that end, the
commission, city council, and a task force conducted more than a
dozen hearings. The commission reviewed recommendations from the
Large Structure Impact Task Force and the Chamber of Commerce
Legislative Committee; researched necessary improvements to
lighting, landscaping, stormwater drainage, and parking; and
developed standards for traffic and economic impact analyses. The
commission explicitly applied the standards found in the Homer
Comprehensive Plan in its decision-making process. And before
the initiative election, the city council considered the planning
commission's recommendations and amended the zoning code,
adopting different floor area limitations for the subject zoning
districts. The voters then approved the initiative and adopted a
single, and greater, limitation for all three districts before
the commission completed its findings.
Given the public hearings that were being conducted and
the opportunity for public debate, it is logical to ask whether
the voters had, in effect, the same access as the council to the
recommendations of the planning commission, and thus whether the
initiative process did not actually bypass the planning
commission. The council was required to consider the
commission's recommendations, even if it ultimately rejected
them. The council acts as a collegial and public body; it is a
matter of public record whether it addresses the commission's
recommendations and attempts to reconcile proposed amendments
with the comprehensive plan and state and borough ordinances.
That is not at all the process an initiative election follows.
Just as the council cannot choose to completely ignore the
recommendations in adopting a zoning amendment, the voters cannot
pass an initiative in which the commission's recommendations play
no formal, or perhaps even informal, role at all.
The commission does more than simply give notice of
hearings and allow the public to be heard on the subject of
zoning ordinances. If a zoning amendment is proposed, the
commission's role is to analyze the impact of the proposed
changes in light of the city's development goals as stated in the
comprehensive plan, and to suggest other changes that should
accompany the proposed zoning amendment.29 Even if a city council
chooses to disregard the recommendations of the city planning
commission, its decision has been informed by the planning
commission's consideration of the potential social and regulatory
costs and benefits of the proposed amendment. The city's
planning commission's role is not merely "procedural," but is
substantive. Homer voters therefore could not bypass the
commission by using the initiative power.
The city argues that if an initiative fails to comply
with the comprehensive plan, a court could review it post-
enactment. Because the dispute here turns not on consistency
with the comprehensive plan, but on the involvement of the
planning commission in the amendment process, we are unconvinced
by this argument.
The city argues that the ultimate issue here is
"whether the Alaska Constitution or statutes do or do not
delegate the power to enact zoning regulations exclusively to the
city council." The city argues the people's power to enact
zoning measure by initiative is precluded if the constitution and
statutes delegate the power to zone exclusively to the city
council. The city implies that for Griswold to prevail we must
find that the city council exclusively has the power to zone. We
disagree, and instead conclude that Griswold prevails because
zoning by initiative eliminates the planning commission's role
both specified and implied in state statutes and borough
ordinances.30 Even if the power to zone was exclusively and
ultimately delegated to the city council, the initiative process
prevents the planning commission from exercising the review and
recommendation power clearly delegated to it.
Finally, we consider the validity of Ordinance 05-02.
The city argues that because Griswold failed to adequately brief
his request to strike down Ordinance 05-02, that ordinance should
not be invalidated.
Griswold preserved the issue below. His complaint
asked the superior court to "enter an injunction preventing [the
initiative's] enforcement or the enforcement of any other
ordinance adopted or enacted as a result of this illegal action."
Summary judgment was granted in favor of the city on that cause
of action before the city council enacted Ordinance 05-02.
Griswold adequately argues on appeal that Ordinance 05-
02 would not have been enacted but for passage of the initiative.
The "whereas" clauses of Ordinance 05-02 seem to establish that
the only purpose of the ordinance was "to implement the will of
the voters." The ordinance gives no indication that the council
was giving independent consideration to the planning commission's
recommendations or that it was considering the zoning amendment
on its own merits in light of the comprehensive plan. We are
consequently persuaded that because the initiative is invalid,
the only legislative purpose for passing Ordinance 05-02 is now
absent; Ordinance 05-02 is therefore also invalid.
IV. CONCLUSION
We REVERSE the superior court's grant of summary
judgment and REMAND for entry of judgment for Griswold.
CARPENETI, Justice, dissenting.
Because the initiative power gives voters the ability
to legislate without being subject to the restrictions applicable
to other legislative bodies, I cannot agree that the procedural
requirements applicable to the Homer City Council apply to a
voter initiative that involves a zoning ordinance. Therefore, I
respectfully dissent.
The court reasons that Homer voters' power to initiate
is limited by the Homer City Council's power to legislate, and
therefore voters must necessarily follow the same procedures as
the city council. The court effectively holds that voters step
into the shoes of the city council when attempting to initiate an
ordinance that involves zoning laws, and therefore the initiative
must be reviewed by the planning commission before the voters may
pass it. There are four reasons I believe the court's reasoning
is flawed.
First, and most importantly, under the Alaska Statutes
and the Alaska Constitution the voter initiative is intended to
be a sui generis means of legislating that is not subject to the
procedures applicable to regular lawmaking. Alaska Statute
29.26.100 grants municipal voters the power to initiate
legislation. It provides that "[t]he powers of initiative and
referendum are reserved to the residents of municipalities,
except the powers do not extend to matters restricted by article
XI, section 7 of the state constitution."1 There are no other
limitations on the voters' power to initiate that are relevant to
this case. The process for exercising the initiative at the
municipal level is fairly straightforward. A proposed initiative
is first reviewed by the municipal clerk to determine that it
meets certain substantive requirements.2 The initiative's
sponsors must then gather the requisite number of signatures to
support the initiative petition.3 Where both these conditions
are met, the initiative is to be submitted to the voters4 and
"[i]f a majority vote favors the [initiated] ordinance or
resolution, it becomes effective upon certification of the
election, unless a different effective date is provided in the
ordinance or resolution."5 Similarly, the Alaska Constitution
requires that statewide initiatives be subject to a technical and
subject matter review6 and provides that an initiative will be
enacted "[i]f a majority of the votes cast on the proposition
favor its adoption . . . ."7
The Alaska Constitution also makes clear that the
procedural requirements for enacting an initiative are different
from the procedures applicable to the regular legislative
process. In order for the state legislature to pass a bill, the
bill must go through at least "three readings in each house on
three separate days, except that any bill may be advanced from
second to third reading on the same day by concurrence of
three-fourths of the house considering it" and be approved by "an
affirmative vote of a majority of the membership of each house."8
Unless the governor vetoes the bill within fifteen days after its
passage, it will become law.9
The differences between the regular legislative process
and the procedures for statewide initiatives demonstrate that the
framers of our constitution envisioned a separate, simplified
process for initiative elections, one not generally subject to
the constraints imposed on the legislature. The special
treatment afforded to the initiative process stems from the fact
that the initiative is a form of direct democracy. As the
Supreme Court of California has explained, "[t]he original
proponents of the initiative and referendum sought to give the
electorate the ability to govern directly by majority rule: this
was to be true democracy as distinguished from representative
democracy."10 That court has also held that a right of such
importance should be "jealously guard[ed]."11
By importing requirements applicable to a different
legislative body, the court today does exactly the opposite. Its
approach not only ignores the fact that initiative elections
stand apart from the traditional legislative process, but also
weakens voters' ability to participate directly in the affairs of
the city in which they live. In Brooks v. Wright12 we stated
that the constitutional framers "chose to include the initiative
process as a law-making tool with full knowledge of the risks
inherent to direct democracy."13 Today's decision ignores
Brooks's wisdom.
Second, the court overlooks that the legislature has
imposed explicit subject matter prohibitions on municipal
initiatives and has declined to include zoning among those
prohibitions. Alaska Statute 29.26.100, in preserving the powers
of initiative and referendum to residents of municipalities,
incorporates the limitations that article XI, section 7 of the
Alaska Constitution14 imposes upon those powers. That
constitutional section lists five matters that may not be the
subject of an initiative: (1) dedication of revenues; (2)
appropriations; (3) creation of courts; (4) changing of court
rules or jurisdictions; or (5) local or special legislation.15
If the legislature intended to prohibit zoning by initiative, it
could easily have included zoning among the prohibited subject
matters. That the legislature did not employ this simple and
direct means to prohibit zoning by initiative strongly suggests
that it did not intend to accomplish the same result through the
roundabout means the court today attributes to it.
Third, the court bases its decision to prohibit zoning
by initiative on the concern that allowing zoning by initiative
would undermine comprehensive zoning.16 But zoning ordinances,
whether they are enacted by the voters or by the city council,
are subject to post-enactment review. We explained in Brooks
that "[c]oncerned parties can . . . bring a post-election
substantive challenge to what they may believe is an ill-advised
law."17 In Price v. Dahl18 we suggested that an ordinance could
be challenged on the grounds that it is inconsistent with the
comprehensive plan, stating, "[b]orough land use regulations are
to be `in accordance' with the comprehensive plan."19 Thus, I
believe the initiated ordinance was subject to a post-enactment
challenge on the grounds that it failed to comply with Homer's
comprehensive plan.
Finally, the court's decision conflicts with well-
reasoned holdings from other states that have addressed zoning by
initiative. California has definitively resolved the issue
before us today in favor of allowing zoning by initiative. As
the California Supreme Court succinctly explained, "[p]rocedural
requirements which govern [City] Council action . . . generally
do not apply to initiatives, any more than the provisions of the
initiative law govern the enactment of ordinances in council."20
The Nevada Supreme Court similarly concluded that voters could
enact zoning laws through the initiative process without
following the procedures applicable to the city council
attempting to enact the same ordinance.21 In both cases special
procedures applied to the enactment of zoning laws by the local
government bodies, but the courts nevertheless recognized that
subjecting voter initiatives to those procedures would
impermissibly restrict the voters' initiative powers.
In sum, the initiative process is unique. When
exercising the initiative power, municipal voters do not simply
step into the shoes of the legislative body they are bypassing,
as the court today assumes. Instead, voters in an initiative
election are participating in a process that is separate from the
regular means used for legislating. Because the initiative
process is intended to be separate from the procedures that the
Homer City Council must follow when passing a zoning ordinance,
the initiative ordinance in this case should not be subject to
review by the Homer Advisory Planning Commission. I would hold
that the initiated ordinance does not violate any of the subject
matter restrictions imposed by article XI, section 7 of the
Alaska Constitution (and made applicable to municipal elections
through AS 29.26.100 and to elections in Homer through HCC
4.60.010), and I therefore would affirm the superior court's
grant of summary judgment to the City of Homer.
_______________________________
1 Homer City Code (HCC) 21.32.208.
2 Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 991 (Alaska 2004).
3 Id.
4 Citizens Coal. for Tort Reform v. McAlpine, 810 P.2d
162 (Alaska 1991) (stating that people's constitutional right to
initiate is broad and should be liberally construed).
5 Municipality of Anchorage v. Frohne, 568 P.2d 3, 8
(Alaska 1977) (citations omitted) ("[T]he subject of the
initiative must constitute such legislation as the legislative
body to which it is directed has the power to enact.").
6 AS 29.40.010 provides:
(a) A first or second class borough shall
provide for planning, platting, and land use
regulation on an areawide basis.
(b) If a city in a borough consents by
ordinance, the assembly may by ordinance
delegate any of its powers and duties under
this chapter to the city. The assembly may
by ordinance, without first obtaining consent
of the city, revoke any power or duty
delegated under this section.
7 AS 29.40.010(b).
8 AS 29.40.020 provides:
(a) Each first and second class borough
shall establish a planning commission
consisting of five residents unless a greater
number is required by ordinance. Commission
membership shall be apportioned so that the
number of members from home rule and first
class cities reflects the proportion of
borough population residing in home rule and
first class cities located in the borough. A
member shall be appointed by the borough
mayor for a term of three years subject to
confirmation by the assembly, except that a
member from a home rule or first class city
shall be selected from a list of
recommendations submitted by the council. .
. .
(b) In addition to the duties prescribed by
ordinance, the planning commission shall
(1) prepare and submit to the assembly
a proposed comprehensive plan in accordance
with AS 29.40.030 for the systematic and
organized development of the borough;
(2) review, recommend, and administer
measures necessary to implement the
comprehensive plan, including measures
provided under AS 29.40.040.
9 AS 29.40.030 provides:
(a) The comprehensive plan is a compilation
of policy statements, goals, standards, and
maps for guiding the physical, social, and
economic development, both private and
public, of the first or second class borough,
and may include, but is not limited to, the
following:
(1) statements of policies, goals, and standards;
(2) a land use plan;
(3) a community facilities plan;
(4) a transportation plan; and
(5) recommendations for implementation
of the comprehensive plan.
(b) With the recommendations of the planning
commission, the assembly shall adopt by
ordinance a comprehensive plan. The assembly
shall, after receiving the recommendations of
the planning commission, periodically
undertake an overall review of the
comprehensive plan and update the plan as
necessary.
10 AS 29.40.010(a) ("areawide basis"); AS 29.40.020(a)
("borough shall establish a planning commission"); AS
29.40.020(b)(1) (requiring planning commission to prepare and
submit a "proposed comprehensive plan . . . for the systematic
and organized development of the borough").
11 AS 29.40.020(b)(2).
12 AS 29.40.040(a)(1).
13 AS 29.40.040(a). AS 29.40.040 provides in pertinent
part:
(a) In accordance with a comprehensive plan
adopted under AS 29.40.030 and in order to
implement the plan, the assembly by ordinance
shall adopt or amend provisions governing the
use and occupancy of land that may include,
but are not limited to,
(1) zoning regulations restricting the
use of land and improvements by geographic
districts;
(2) land use permit requirements
designed to encourage or discourage specified
uses and construction of specified
structures, or to minimize unfavorable
effects of uses and the construction of
structures;
(3) measures to further the goals and
objectives of the comprehensive plan.
14 AS 29.40.020(b)(1), (2); AS 29.40.040(d)(1).
15 AS 29.40.020(b)(1).
16 Kenai Peninsula Borough Code (KPBC) 21.01.020 provides
in pertinent part:
(A) If a city by resolution of the council
requests the assembly to delegate the
power to provide zoning regulation
within the city, the assembly shall
delegate the power. A city to which the
zoning authority is delegated may
exercise all zoning powers within the
city to the extent that such powers have
been granted to the borough by statute,
except those powers reserved to the
borough by Section 21.01.010.
(B) The city council is delegated the power
to establish a planning commission to
hear all requests for amendments to
zoning codes, or for variances,
conditional use permits, contract
rezoning[,] or to hear all other matters
coming under the zoning ordinances
enacted by the city. . . .
(Emphasis added.)
17 KPBC 21.01.020(A).
18 HCC 1.76.010(a).
19 HCC 21.70.020(c)(1).
20 HCC 21.70.010(a)(2).
21 HCC 21.70.010(a)(1).
22 HCC 21.70.010(b).
23 AS 29.40.020.
24 AS 29.40.030(b), .020(b)(2), .040(a).
25 KPBC 21.01.020(B).
26 AS 29.40.040(a).
27 See supra n.10.
28 AS 29.26.100 provides: "The powers of initiative and
referendum are reserved to the residents of municipalities,
except the powers do not extend to matters restricted by art. XI,
7 of the state constitution."
29 AS 29.40.040(a)(1); AS 29.40.020(b)(2). Cf. KPBC
21.01.020(B).
30 Both parties cite cases from other jurisdictions that
either reject or approve zoning by initiative. See, e.g., Kaiser
Hawaii Kai Dev. Co. v. City & County of Honolulu, 777 P.2d 244,
247 (Haw. 1989) (holding that "[z]oning by initiative is
inconsistent with the goal of long range comprehensive planning"
and was not intended by legislature); see also Garvin v. Ninth
Judicial Dist. Court, 59 P.3d 1180, 1190 (Nev. 2002) (holding
that "[if] a city council can enact zoning legislation, the
county and city voters can do the same by initiative"). The only
cited case that deals with the scope of the delegated power is
Transamerica Title Ins. Co. v. City of Tucson, 757 P.2d 1055,
1059 (Ariz. 1988) ("The power to zone is part of the police power
and may be delegated by the State, but the subordinate
governmental unit has no greater power than that which is
delegated."). Transamerica supports the views we express in this
case. In Transamerica the Arizona Supreme Court adhered to a
prior holding "that `zoning law is exempted from the initiative
process,' in order to prevent private citizens from usurping the
governing body's delegated power and from circumventing the
notice and hearing requirements of the zoning statute." Id. at
1058. The Arizona court noted that its holding in the case on
which it relied was "in harmony with the law in the vast majority
of other jurisdictions, which prohibits zoning by initiative."
Id. at 1059.
1 Homer City Code 4.60.010 makes this provision
applicable to elections in the City of Homer. It states: "The
provisions of Alaska Statute 29.26 Article 2, relating to
Initiative and Referendum are incorporated into this chapter as
if fully set out."
2 AS 29.26.110(a) provides in relevant part:
[T]he clerk shall certify the application if
the clerk finds that it is in proper form
and, for an initiative petition, that the
matter
(1) is not restricted by AS 29.26.100;
(2) includes only a single subject;
(3) relates to a legislative rather
than to an administrative matter;
and
(4) would be enforceable as a matter of
law.
3 AS 29.26.130.
4 AS 29.26.170.
5 AS 29.26.170(d).
6 See Alaska Const. art. XI, 2.
7 Article XI, section 6 of the Alaska Constitution
provides:
If a majority of the votes cast on the
proposition favor its adoption, the initiated
measure is enacted. If a majority of the
votes cast on the proposition favor the
rejection of an act referred, it is rejected.
. . . An initiated law becomes effective
ninety days after certification, is not
subject to veto, and may not be repealed by
the legislature within two years of its
effective date. It may be amended at any
time. . . . Additional procedures for the
initiative and referendum may be prescribed
by law.
8 Alaska Const. art. II, 14.
9 Alaska Const. art. II, 17. If the governor exercises
a veto, a bill may become law if the legislature overrides the
governor's veto pursuant to the requirements of article II,
section 16 of the Alaska Constitution.
10 Citizens Against Rent Control v. City of Berkeley, 27
Cal. 3d 819, 826 (1980), rev'd on other grounds, Citizens Against
Rent Control/Coalition for Fair Housing v. City of Berkeley, 454
U.S. 290 (1981); see also McKee v. City of Louisville, 616 P.2d
969, 972 (Colo. 1980) (describing power of initiative as "a
fundamental right at the very core of our representative
government").
11 DeVita v. County of Napa, 9 Cal. 4th 763, 776 (1995)
(citation omitted).
12 971 P.2d 1025 (Alaska 1999).
13 Id. at 1029.
14 This section provides in full:
The initiative shall not be used to dedicate
revenues, make or repeal appropriations,
create courts, define the jurisdiction of
courts or prescribe their rules, or enact
local or special legislation. The referendum
shall not be applied to dedications of
revenue, to appropriations, to local or
special legislation, or to laws necessary for
the immediate preservation of the public
peace, health, or safety.
15 The only prohibited subject matter listed in article XI
into which the initiative ordinance could potentially fall is
"local or special legislation." Because the districts affected
were all commercial and the initiative appears to have been
intended to promote commercial development of those areas, I
would hold it does not constitute local or special legislation.
See Boucher v. Engstrom, 528 P.2d 456, 463 (Alaska 1974)
("[Classifications based upon population or territorial
differences] will be sustained where founded upon a rational
difference of situation or condition existing in the objects upon
which it rests, and where there is a reasonable basis for the
classification in view of the objects and purposes to be
accomplished.") (citations omitted), partially overruled on other
grounds, McAlpine v. Univ. of Alaska, 762 P.2d 81, 85 (Alaska
1988).
Article XII, section 11 of the Alaska Constitution
creates a catch-all restriction that prohibits the initiative
from being used where it would be "clearly inapplicable," which
this court has interpreted as applying only where "even 55 idiots
would agree" that the subject matter was inapplicable to the
initiative process. Brooks, 971 P.2d at 1028 (citation omitted).
However, AS 29.26.100 does not incorporate this prohibition, and
thus the "clearly inapplicable" restriction may not apply to
municipal elections.
16 Opinion at 10-11.
17 971 P.2d at 1030.
18 912 P.2d 541 (Alaska 1996).
19 Id. at 542 (citing AS 29.40.040(a), which provides that
zoning ordinances shall be adopted "in order to implement the
[comprehensive] plan").
20 Assoc. Home Builders, Inc. v. City of Livermore, 557
P.2d 473, 479 (Cal. 1976) (citation omitted); accord DeVita v.
County of Napa, 889 P.2d 1019, 1037-38 (Cal. 1995) (allowing
initiative to amend Napa's general plan despite failure to comply
with procedures county planning agency must follow to enact
amendment).
21 Garvin v. Dist. Court, 59 P.3d 1180, 1190 (Nev. 2002).
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