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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. City of Homer (6/10/2011) sp-6565
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK GRISWOLD, )
) Supreme Court No. S-13734
Appellant, )
) Superior Court No. 3HO-08-00137 CI
v. )
) O P I N I O N
CITY OF HOMER, CITY CLERK )
JO JOHNSON, and KACHEMAK ) No. 6565 - June 10, 2011
SHELLFISH MARICULTURE )
ASSOCIATION, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Homer, Carl Bauman, Judge.
Appearances: Frank Griswold, pro se, Homer, Appellant.
Thomas F. Klinkner, Birch Horton Bittner & Cherot,
Anchorage, for Appellees City of Homer and City Clerk
Jo Johnson.1
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
STOWERS, Justice.
1 Kachemak Shellfish Mariculture Association did not participate in the
appeal.
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I. INTRODUCTION
Frank Griswold, a resident of Homer, filed a notice of appeal of the Homer
Advisory Planning Commission's grant of a conditional-use permit to a mariculture
association. The city clerk rejected his appeal for lack of standing because Griswold did
not show that the permitted action would have an adverse effect on the use, enjoyment,
or value of his property, and because Griswold's interests were not distinct from those
of the general public. Griswold appealed that rejection to the superior court, which
affirmed. We affirm the superior court's decision because the provisions of the Homer
City Code restricting standing in land use appeals are lawful and because the city clerk
correctly rejected Griswold's appeal. We also clarify that when the superior court acts
as an intermediate appellate court, its opinion is the judgment that begins the 30-day
period for appeals under Alaska Appellate Rule 204(a)(1).
II. FACTS AND PROCEEDINGS
Frank Griswold is a resident of Homer, owns real property there, and is a
frequent litigant in matters of land use and zoning.2
On February 20, 2008, the Homer Advisory Planning Commission
(Commission) considered an application for a conditional-use permit (Permit) by the
Kachemak Shellfish Mariculture Association (KSMA). KSMA applied for the Permit
so that it could construct an "8,373 square foot two-story structure using the existing
platform at 3851 Homer Spit Road." Griswold attended the Commission's meeting and
made public comments in opposition to the application. The Commission approved
Permit 07-14 for KSMA's desired use, issuing its decision on April 22, 2008.
2 See Griswold v. City of Homer, 186 P.3d 558 (Alaska 2008); Griswold v.
City of Homer, 55 P.3d 64 (Alaska 2002); Griswold v. City of Homer, 34 P.3d 1280
(Alaska 2001); Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996).
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On April 28, 2008, Griswold filed a notice of appeal of the Commission's
approval of Permit 07-14. In it he stated:
Frank Griswold is a resident of the City of Homer and owns
property within the city. He routinely walks on the publicly
owned beach adjacent to the subject property where he
watches shorebirds and marine life, collects agates, and trains
his Labrador Retrievers. Griswold believes the excessive
uses and excessive structure approved via [Permit] 07-14 will
create congestion and visual blight which will adversely
affect his future enjoyment of that beach and his ability to
safely access it once rights-of-way and other public property
in the vicinity are taken over for customer parking by KSMA.
Griswold also occasionally attends performances at Pier One
Theater which is located directly across the Homer Spit Road
from KSMA's property. Griswold believes the uses
facilitated by [Permit] 07-14 could jeopardize future theater
operations by taking over its parking spaces and/or lead to the
cancelling of its city lease altogether. Furthermore, Griswold
drives past KSMA's Spit property virtually on a daily basis
and is concerned for the safety of pedestrians including the
clients of KSMA who will be forced to cross a highway to
access their vehicles due to the insufficiency of on-site
customer parking spaces.
On May 2, 2008, Griswold received a letter from the city clerk, Jo Johnson.
Johnson stated that she found Griswold's appeal to be "timely and contain[ing] proper
information." But she rejected the appeal for lack of a showing of standing because
Griswold did not "mention or [prove] that [he] own[ed] real property in the vicinity of
3851 Homer Spit Road." Johnson also found that Griswold's "interest in the subject
property [was] no different from that of the general public" and that Griswold was
therefore not a "person aggrieved" under Homer City Code 21.68.020(c).3
3 The standing provisions of the Homer City Code (HCC) that Johnson
applied to Griswold's appeal were current at the time, but have since been superceded.
(continued...)
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The same day he received the letter, Griswold sent a letter to Johnson -
which Johnson characterized as a "corrected notice of appeal" - arguing that his interest
was distinct from the general public's and that it was unclear whether Johnson had the
authority to "unilaterally decide [he] d[id] not have standing." On May 5, 2008, Johnson
sent a second letter to Griswold, rejecting his "corrected notice of appeal," informing him
that he had still failed to provide evidence of the adverse effect the approval of Permit
07-14 might have on the use, enjoyment, or value of his real property, and stating that as
a result he still had not demonstrated that he had standing to appeal. The letter informed
Griswold that Johnson's determination was now "final" and that he had 30 days to appeal
it to the superior court. On May 9, 2008, Griswold submitted a map showing the real
property owned by Griswold in Homer, labeled "Supplement to Notice of Appeal
[Permit] 07-14 (KSMA)."4 On May 14, 2008, Johnson sent Griswold a third and final
letter informing him that the May 5 rejection of his corrected notice of appeal was a
"final action" and that his Supplement was therefore rejected as well.
On June 2, 2008, Griswold filed a notice of appeal in the superior court. On
May 14, 2009, the superior court issued its "Decision on Appeal." It rejected all of
Griswold's arguments, concluding that "standing to appeal land use decisions has been
lawfully restricted by the Homer City Council" and affirming Johnson's rejection of
Griswold's notice of appeal. Griswold filed a motion for reconsideration on May 26,
3(...continued)
See HCC 21.93.060 and .080; CITY OF HOMER, ALASKA, ORDINANCE 08-29 (2008). For
simplicity, we nevertheless refer to the applicable standing provisions in the present
tense.
4 We observe that the map purports to show that Griswold owns real property
in the town center of Homer, over four miles away from the affected area on the Homer
Spit. By his own admission Griswold's lots are in "a different zoning district" than the
Homer Spit.
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2009, which the superior court denied on June 1. The court issued a "Final Judgment"
dismissing the case on December 16, 2009, in which it also awarded the City and KSMA
attorney's fees and costs. On December 23, 2009, Griswold filed this appeal.
III. DISCUSSION
A. Standard Of Review
Where the superior court acts as an intermediate appellate court, we give
"no deference to its decision, but, instead . . . independently scrutinize[] directly the
merits of the administrative determination."5 In doing so, we apply four distinct
standards of review to administrative decisions: "(1) the substantial evidence test for
questions of fact; (2) the reasonable basis test for questions of law involving agency
expertise; (3) the substitution of judgment test for questions of law where no expertise
is involved; and (4) the reasonable and not arbitrary test for review of administrative
regulations."6
This case presents only legal questions, none of which involve agency
expertise. Whether an appeal is timely is a question of law.7 Whether the provisions of
the Homer City Code restricting standing in land use actions comply with the applicable
state statutes is a question of statutory interpretation and therefore a question of law as
5 Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 P.2d
741, 742 n.5 (Alaska 1993) (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line
Co., 746 P.2d 896, 903 (Alaska 1987)) (internal quotation marks omitted).
6 May v. State, Com. Fisheries Entry Comm'n, 168 P.3d 873, 879 (Alaska
2007) (quoting Brandal v. State, Com. Fisheries Entry Comm'n, 128 P.3d 732, 735
(Alaska 2006)). The substitution of judgment standard is the same as de novo review.
See, e.g., Simpson v. State, Com. Fisheries Entry Comm'n, 101 P.3d 605, 609 (Alaska
2004) ("We review questions of law . . . de novo under the substitution of judgment
standard.").
7 See Platz v. Aramburo, 17 P.3d 65, 68 (Alaska 2001).
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well,8 and we review such issues de novo.9 Additionally, "a due process claim . . . raises
a question of law that does not involve agency expertise."10 The same is true for an equal
protection claim.11 Finally, whether a municipal delegation of authority to a city official
is lawful is also a question of law.12 We therefore "apply our independent judgment" to
all questions in this case, "adopting the rule of law that is most persuasive in light of
precedent, reason, and policy."13
B. Griswold's Appeal, Though Untimely, Is Not Rejected.
8 See Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006)
("Issues of statutory interpretation are questions of law which we review de novo.")
(citing Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska 2003)).
9 Earth Movers, 865 P.2d at 742 n.5 ("In order to determine if Earth Movers
has standing, we must interpret the applicable statutes and ordinance. Thus we address
questions of law, and the appropriate standard of review is de novo.") (citingLangdon v.
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987)).
10 May, 168 P.3d at 879 (quoting AU Int'l, Inc. v. State, Dep't. of Nat'l Res.,
971 P.2d 1034, 1040 (Alaska 1999)).
11 See Pub. Employees' Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007)
("The equal protection challenge presents a question of law to which this court applies
its independent judgment.") (citing Alaska Civil Liberties Union v. State, 122 P.3d 781,
785 (Alaska 2005)).
12 Cf. City of Anchorage v. Richardson Vista Corp., 242 F.2d 276, 285 (9th
Cir. 1957) ("[C]ourts cannot set aside city ordinances [delegating authority to city
officials] unless they are unconstitutional or ultra vires, or in some special connection or
effect, unreasonable.").
13 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)) (quotation marks and citations omitted).
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The City argues that Griswold's present appeal is untimely because he
failed to file an appeal within 30 days of judgment as required by Appellate Rule
204(a)(1), which provides in relevant part: "The notice of appeal shall be filed within
30 days from the date shown in the clerk's certificate of distribution on the judgment
appealed from." Specifically, the City argues that under Appellate Rule 204(a)(1), where
the superior court acts as an intermediate appellate court reviewing an agency
determination, "judgment" refers to the superior court's dispositive decision or opinion
on the merits. The City reasons that the superior court's May 14 Decision on Appeal is
consequently the relevant "judgment" for the purposes of Appellate Rule 204(a)(1).14
Griswold argues that his appeal is timely and, alternatively, that this court
should excuse his untimeliness given the ambiguity in the rules and his pro se status.
1. Griswold's appeal is untimely.
The parties' disagreement centers around what is meant by "judgment" in
Appellate Rule 204(a)(1). The City argues that the superior court's May 14, 2009
"Decision on Appeal" is the relevant "judgment" for the purposes of the rule, and that
Griswold's December 23, 2009 notice of appeal therefore fell outside the rule's 30-day
14 The City also emphasizes that Appellate Rule 204(a)(5)(A) provides that
"[t]he running of the time for filing an appeal is not terminated by . . . proceedings related
to the award of attorney's fees." It cites Pruitt v. State, Dep't of Pub. Safety, Div. of
Motor Vehicles, where we held that an award of attorney's fees was an abuse of
discretion because "the . . . motion for attorney's fees, filed seven months after final
judgment [had] been entered, was not filed within a 'reasonable time.' " 825 P.2d 887,
895-96 (Alaska 1992). The City argues that "thePruitt decision certainly would not have
expressed concern about the timeliness of a motion for attorney's fees if the time for
appeal began to run only after attorney's fees had been awarded." But Griswold does not
argue that his notice of appeal was timely because it came within 30 days of the award
of attorney's fees; he argues that it was timely because it came within 30 days of the
entry of final judgment.
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window.15 Griswold argues that the superior court's December 16, 2009 "Final
Judgment" is the relevant judgment, and that his notice of appeal is therefore timely
under the rule.
The City's argument is correct. It touches on an important distinction
between cases where the superior court acts as a trial-level court and cases where the
superior court acts as an intermediate appellate court.
Where the superior court acts as a trial-level court, an opinion or decision
is not a "judgment" for the purposes of Appellate Rule 204(a)(1): "The judgment
referred to in Appellate Rule 204(a)(1) is the judgment that, per Civil Rule 58, must be
set forth on a separate document and that is to be entered after the court makes its
decision."16 For example, we held that an appeal was timely where the superior court
entered final judgment more than one year after it granted summary judgment on all
claims, and the appellant filed her appeal within 30 days of the entry of that final
judgment.17 Specifically, the final judgment entered under Civil Rule 58 - not the order
granting summary judgment - was the "judgment" to which Appellate Rule 204(a)(1)
referred.18
15 The City acknowledges that Griswold's May 26, 2009 motion for
reconsideration would have tolled the time for filing an appeal under Appellate Rule
204(a)(3). It argues that the time for filing an appeal began to run again on June 2, the
date the superior court denied Griswold's motion for reconsideration, and that Griswold's
time to appeal the superior court's order therefore expired on June 21, 2009. As we
explain, the City is correct.
16 Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007) (citing Schneider v.
Pay'N Save Corp., 723 P.2d 619, 622-23 (Alaska 1986)).
17 Schneider, 723 P.2d at 622-23.
18 Id.
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When the superior court acts as an intermediate appellate court, however,
it must follow different procedural rules. These rules are contained in Part Six of the
Alaska Rules of Appellate Procedure. Under Part Six's Appellate Rule 601(c),
"procedure in appeals to the superior court shall be governed by the provisions of Parts
Two and Five," which are the rules for the other Alaska appellate courts, such as the
Court of Appeals and this court. Under Appellate Rule 507(a), which is contained in Part
Five, "[t]he opinion of the appellate court . . . shall constitute its judgment."
Therefore, where the superior court acts as an intermediate appellate court,
there is no requirement that it enter final judgment on a separate document. Civil Rule
58 does not apply in such cases.19 The "separate document rule"20 cannot apply to cases
where the superior court acts an intermediate appellate court, notwithstanding the fact
that the superior court did enter final judgment on a separate document in this case.
We therefore clarify that where the superior court acts as an intermediate
appellate court, under Appellate Rule 507(a) its opinion or decision on appeal is the
"judgment" to which Appellate Rule 204(a)(1) refers. Thus, Griswold's appeal is not
timely.
2. Griswold's appeal, though untimely, is not dismissed.
Griswold argues that this court should excuse any untimeliness given the
ambiguity in the rules and his pro se status. The City argues that "Griswold's status as
a pro se litigant should not relieve him from compliance with the Appellate Rules"
because: (1) "the Rules plainly designate the time for filing an appeal," (2) "Griswold's
19 See Alaska R. App. P. 601(c) ("On any point not addressed in Part Six,
procedure in appeals to the superior court shall be governed by the provisions of Parts
Two and Five of these rules . . . ."); Alaska R. App. P. 507(a) (providing that "[t]he
opinion of the appellate court, or its order . . . , shall constitute its judgment").
20 See Schneider, 723 P.2d at 622-23.
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deviation from the requirements . . . is far from de minimis," and (3) "Griswold is no
stranger to appellate litigation [and] . . . has demonstrated the ability to present
sophisticated legal analyses on issues of first impression."
Appellate Rule 204(a)(1)'s "time limit is not jurisdictional, and may be
relaxed to avoid injustice."21 Although Griswold has perhaps litigated more frequently
than the typical pro se litigant,22 we have noted that "[o]rdinarily, 'pro se litigants who
make good faith efforts to comply with court rules should not be held to strict procedural
requirements.' "23 For example, we have excused a pro se litigant's untimeliness and
permitted a late appeal where "the record indicate[d] that [the litigant] made a good-faith
effort to appeal by the deadline."24
The application of Appellate Rule 204(a)(1) in the present case might have
confused even a law-trained individual. First, it is well established that where the
superior court is not acting as an intermediate appellate court, only the entry of final
21 Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007) (citing In re Adoption
of Erin G., 140 P.3d 886, 889 (Alaska 2006)); see also Isaacson Structural Steel Co. v.
Armco Steel Corp., 640 P.2d 812, 815 n.8 (Alaska 1982) ("[W]e have previously rejected
the argument that the requirement as to timely notice of appeal is jurisdictional on the
ground that that requirement, unlike jurisdictional requirements, can be relaxed to avoid
surprise or injustice." (internal quotation marks omitted)).
22 See Griswold v. City of Homer, 186 P.3d 558 (Alaska 2008) (appeared pro
se); Griswold v. City of Homer, 55 P.3d 64 (Alaska 2002) (appeared pro se); Griswold v.
City of Homer, 34 P.3d 1280 (Alaska 2001) (represented by counsel); Griswold v. City
of Homer, 925 P.2d 1015 (Alaska 1996) (appeared pro se).
23 Prentzel v. State, Dep't of Pub. Safety, 169 P.3d 573, 593 (Alaska 2007)
(quoting Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999)).
24 In re Adoption of Erin G., 140 P.3d 886, 889 (Alaska 2006).
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judgment on a separate document begins the running of the time to appeal.25 Second, we
have not previously specified precisely which event cues the running of the time to
appeal in cases where the superior court acts as an intermediate appellate court, and
understanding which rules, both civil and appellate, properly apply in such cases
demands careful study of the law. Third, the fact that the superior court actually entered
final judgment in the present case suggests that its doing so might be standard practice
- or at least not anomalous - in these circumstances, even if the Rules of Appellate
Procedure do not require it.
Griswold apparently made a good-faith effort to comply with the deadline.
We therefore excuse his untimeliness and permit the current appeal.
C. The Homer City Code Provisions Limiting Standing In Land Use
Appeals Are Lawful.
1. The provisions do not conflict with applicable state statutes.
Alaska Statutes 29.40.050 and .060 "provide for two levels of review" of
certain municipal land use actions and determinations.26 The statutes provide for first
level review within a borough: AS 29.40.050(a) requires "the assembly" to "provide for
an appeal from an administrative decision of a municipal employee, board, or
commission made in the enforcement, administration, or application of a land use
regulation." That appeal may be "to a court, hearing officer, board of adjustment, or
other body."27 The statutes provide for second level review by the superior court:
AS 29.40.060(a) requires "[t]he assembly" to "provide . . . for an appeal by a municipal
25 See, e.g., Richard, 162 P.3d at 633; Schneider, 723 P.2d at 622-23.
26 Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 P.2d
741, 743 (Alaska 1993).
27 AS 29.40.050(a).
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officer or person aggrieved from a decision of a hearing officer, board of adjustment, or
other body to the superior court."
Griswold argues that HCC 21.68.020(c)28 and .040(b)(6)29 conflict with
AS 29.40.050, and that HCC 21.68.020(c) provides for a "more restrictive definition of
'person aggrieved' than that adopted by" this court. Both arguments are flawed.
HCC 21.68.020(c) and .040(b)(6) satisfy AS 29.40.050 and .060. In Earth
Movers of Fairbanks, Inc. v. Fairbanks North Star Borough, we examined municipal
code provisions limiting standing in land use cases (both for internal appeals and appeals
to the superior court) to "[a]ny person adversely affected by a decision or
determination."30 We "interpret[ed] the phrase 'adversely affected' as used in the
[municipal] ordinance to mean the same as the word 'aggrieved' as used in the [state]
statute."31 We held that the denial of standing to a business competitor - whose only
28 Homer City Code 21.68.020(c) provides:
For purposes of this title, to be a "person aggrieved" the
person must show proof of the adverse effect the action or
determination has or could have on the use, enjoyment, or
value of real property owned by that person. An interest that
is no different from that of the general public is not sufficient.
29 Homer City Code 21.68.040(b) provides in relevant part:
A notice of appeal shall be in writing, be signed by the
appellant, and shall contain, but is not limited to, the
following information:
. . .
(6) Proof showing that the appellant is an aggrieved person
with standing to appeal under section 21.68.020.
30 Earth Movers, 865 P.2d at 743 (emphasis in original).
31 Id.
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potential injury would have resulted from increased competition - under the municipal
code provisions was lawful under AS 29.40.050 and .060 because the competitor was not
a "person aggrieved" within the meaning of AS 29.40.060(a).32
In so holding, we looked to several sources of law, including cases from
other jurisdictions,33 and noted that "[t]he legislature chose to provide review for those
'aggrieved,' indicating that it follows the general practice of review in zoning cases."34
We then "adopt[ed] the majority interpretation of 'aggrieved.' "35
The definition of "aggrieved" in Homer City Code 21.68.020(c) mirrors that
presented in Earth Movers: one who is adversely affected.36 The Homer City Code's
definition of "aggrievement" is not more restrictive than our interpretation of
AS 29.40.060(a). The provisions of the Homer City Code therefore do not violate either
AS 29.40.050 or .060.37
2. The provisions do not unlawfully eliminate taxpayer-citizen
standing.
32 Id. at 745. We did so despite the fact that AS 29.40.050(a) makes no
mention of "person aggrieved," suggesting that the statute requires, at most, appeals
within the borough to be available only to those who would also have standing to appeal
to the superior court.
33 Id. at 744-45.
34 Id. at 743.
35 Id. at 745.
36 Id. at 743.
37 See Earth Movers, 865 P.2d at 745 (holding that provisions denying
standing to appeal a land use determination were lawful under both AS 29.40.050 and
.060 because prospective appellant was not a "person aggrieved" under
AS 29.040.060(a)).
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Griswold argues that the provisions of the Homer City Code limiting
standing unlawfully eliminate taxpayer-citizen standing in land use cases, and that the
Earth Movers rationale applies only to cases involving business competition, rather than
all land use cases.
We have noted that "[i]n the area of land use law, the legislature has chosen
to limit standing by statute."38 In Earth Movers, "[g]eneral Alaska standing law [was]
not applicable" because it was a municipal land use case generally, not because it was
a business competition case.39 The Alaska Legislature, not the Homer City Council,
eliminated taxpayer-citizen standing in land use cases by enacting AS 29.40.050-.060.40
3. Neither HCC 21.68.020(b)(3) nor HCC 21.68.020(c) violates
Griswold's due process rights.
a. HCC 21.68.020(b)(3)
Griswold argues that HCC 21.68.020(b)(3)'s requirement that a person have
"participated in the proceedings before the [Planning] Commission" in order to have
standing to appeal an action or determination "violates due process." The participation
requirement, Griswold argues, "encourages arbitrary decision-making and cronyism
because if no member of the public 'actively' participates in a proceeding the Planning
Commissioners know there is little likelihood their decisions will be subjected to judicial
review."
Griswold attended the February 20, 2008 meeting at which the Planning
Commission approved Permit 07-14 and spoke in opposition to the Permit. Because he
actively participated in the proceedings, it appears Griswold is attempting to assert the
38 Id. at 743.
39 See id.
40 Ch. 74, § 11, SLA 1985.
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due process rights of others who did not participate in the proceedings. Regardless, the
participation requirement did not preclude Griswold from having standing;
HCC 21.68.020(b)(3)'s requirement that a person also be "aggrieved" by an action or
determination did.
Because HCC 21.68.020(b)(3)'s participation requirement did not preclude
him from having standing, Griswold is not the proper party to request an adjudication of
this issue,41 and he lacks standing to assert the due process claims.42
b. HCC 21.68.020(c)
Griswold also argues that HCC 21.68.020(c)'s provision that "[a]n interest
that is no different from that of the general public is not sufficient" to confer standing
"violates . . . due process and common sense." The City argues that HCC 21.68.020(c)
did not deprive Griswold of a property interest sufficient to warrant constitutional
protection.
41 Griswold does not claim that he suffered harm from having to participate
in the proceedings; the only harm of the participation requirement to which he alludes
is the lost opportunity to appeal, which he did not suffer as a result of the requirement.
See Moore v. State, 553 P.2d 8, 23 n.25 (Alaska 1976) ("Standing questions are limited
to whether the litigant is a 'proper party to request an adjudication of a particular issue
. . . .' ") (quoting Flast v. Cohen, 392 U.S. 83, 100-01 (1968)).
42 See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 273 (Alaska 2003)
(holding that a nonresident did not have standing to challenge a provision of a tax
ordinance relating to residential property used as a permanent residence because he
"ha[d] no personal stake in the constitutionality of the [provision]").
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The test for deprivations of procedural due process under both the Alaska
Constitution43 and the United States Constitution44 is the test outlined in Mathews v.
Eldridge.45 Under the Mathews test, a litigant claiming a due process violation must have
been deprived of a cognizable liberty or property interest.46 Griswold identifies no liberty
or property interest of which HCC 21.68.020(c) deprived him. And the City is correct
that any property interest great enough to be cognizable for the purposes of a due process
violation would also have been sufficient to confer standing on Griswold under the
Homer City Code.
4. Neither HCC 21.68.020(b)(3) nor HCC 21.68.020(c) violates
Griswold's equal protection rights.
Griswold does not directly cite the equal protection provisions of either the
Alaska Constitution47 or the United States Constitution,48 but he does argue that
HCC 21.68.020(c) "discriminates against" both him and "renters and other affected
parties who do not own real property." The City interprets this as an equal protection
43 ALASKA CONST. art. I, § 7 ("No person shall be deprived of life, liberty, or
property, without due process of law.").
44 U.S. CONST. amend. XIV, § 1 ("[N]or shall any State deprive any person
of life, liberty, or property, without due process of law . . . .").
45 Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (establishing the test
under the United States Constitution); Hilbers v. Municipality of Anchorage, 611 P.2d
31, 36-37 (Alaska 1980) (adopting the Mathews test for state due process claims).
46 Mathews, 424 U.S. at 332.
47 ALASKA CONST. art. I, § 1 ("[A]ll persons are equal and entitled to equal
rights, opportunities, and protection under the law . . . .").
48 U.S. CONST. amend. XIV, § 1 ("[N]or shall any State . . . deny to any person
within its jurisdiction the equal protection of the laws.").
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claim,49 and argues that Griswold's claim does "not invoke any heightened level of equal
protection scrutiny" and that Griswold does not have standing to assert the equal
protection interests of renters and other affected parties.
Griswold owns real property in Homer. For the same reasons discussed in
Section III(C)(3)(a) above, Griswold cannot assert the equal protection rights of renters
and other parties who do not own real property.50 He also does not satisfy the
requirements for any of the exceptions to the general rule that a litigant lacks standing
to assert the constitutional rights of others.51 We therefore limit our inquiry to
Griswold's claim that HCC 21.68.020(c) discriminates against him.
Under the Alaska Constitution, the "legitimate reason test" is "the standard
level of scrutiny . . . in equal protection cases,"52 and we apply it to laws that do not
employ classifications based on suspect factors or infringe on fundamental rights.53
Under this test, a law "will survive as long as a 'legitimate reason for the disparate
49 The superior court did as well.
50 See Keller v. French, 205 P.3d 299, 304 (Alaska 2009); State ex rel. Dep'ts
of Transp. & Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 n.9 (Alaska
1989).
51 See Keller, 205 P.3d at 304 n.24 (noting exceptions for third-party standing
such as where a parent asserts a child's constitutional rights, where a special relationship
exists, or where the interested party's attempt to vindicate rights would forfeit those
rights).
52 Pub. Emps.' Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007).
53 See id, at 349-50.
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treatment exists' and the law creating the classification 'bears a fair and substantial
relationship to that reason.' "54
In defining who is aggrieved for the purposes of standing,
HCC 21.68.020(c) creates a classification based only on whether people can demonstrate
that an action or determination has or could have an adverse effect "on the use,
enjoyment, or value of real property owned by [them]." It therefore does not employ a
classification based on a suspect55 (or quasi-suspect56) factor, nor does it infringe on a
fundamental right.57
Applying the test to the present case, the reason for HCC 21.68.020(c)'s
classification of who is a "person aggrieved" is to limit standing to persons with "a
substantial, direct, and immediate interest in the outcome on the matter,"58 "in order to
prevent excessive litigation and undue delay of final dispositions."59 Indeed, when the
54 Squires v. Alaska Bd. of Architects, Eng'rs & Land Surveyors, 205 P.3d
326, 341 (Alaska 2009) (quoting Gallant, 153 P.3d at 349).
55 See id. (identifying race, national origin, and alienage as examples of
suspect factors); Gallant, 153 P.3d at 349-50 (also identifying race, national origin, and
alienage as examples of suspect factors).
56 See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 270 (Alaska 2003)
(quoting Gonzalesv. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994)) (identifying
gender and illegitimacy as examples of quasi-suspect factors).
57 See Gallant, 153 P.3d at 349-50 (identifying voting, litigating, and the
exercise of intimate personal choices as examples of fundamental rights).
58 83 AM. JUR. 2D Zoning and Planning § 923 (2003).
59 See Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865
P.2d 741, 743 n.6 (Alaska 1993) (explaining the rationale for more restrictive standing
requirements in zoning cases); see also 83 AM. JUR. 2D Zoning and Planning § 923
(2003) ("[P]ermitting everyone to seek review [of administrative actions in land use
(continued...)
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City of Homer enacted the ordinance establishing its "person aggrieved" standard for
standing, it expressly justified the standard as follows:
[A]municipality is required by Alaska Statute § 29.40.060 to
grant standing to a "person aggrieved" by a zoning decision
made by municipal officials, and this signifies that the
legislature has chosen to limit standing in the area of land
use law, primarily in order to prevent excessive litigation and
undue delay of final dispositions, . . . but also because an
expansive rule of standing would potentially create a land use
battleground that would unduly tax the resources of the
municipality as well as impair the free enterprise
system, . . . and unreasonably interfere with the use and
development of private property.[60]
These reasons are "legitimate." And the law's requirement that an action
potentially have an adverse effect on the use, enjoyment, or value of real property owned
by the person seeking to appeal that action - in a manner different from that of the
general public - "bears a fair and substantial relationship to that reason."61 Indeed, the
requirement is a relatively common method of achieving this goal.62
59(...continued)
cases] could work against the welfare of the community by proliferating litigation and
by unduly delaying final dispositions.").
60 CITY OF HOMER, ALASKA, ORDINANCE 05-17(s) (2005) (citing Earth
Movers, 865 P.2d at 743 n.6) (emphasis added).
61 Squires v. Alaska Bd. of Architects, Eng'rs & Land Surveyors, 205 P.3d
326, 341 (Alaska 2009) (quoting Gallant, 153 P.3d at 349).
62 See Ross D. Cohen, Note, Why Require Standing If No One Is Seated? The
Need To Clarify Third Party Standing Requirements In Zoning Challenge Litigation, 42
BRANDEIS L.J. 623, 623-24, n.5 (2004) (acknowledging the need to limit standing in land
use cases and listing states that require a person to be similarly "aggrieved"); see also 83
AM. JUR. 2D Zoning and Planning § 925 (2003) ("To maintain standing . . . a person
. . . must present proof of the adverse effect the changed status has or could have on the
(continued...)
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Thus, HCC 21.68.020(c) does not deprive Griswold of equal protection
under the Alaska Constitution or the United States Constitution.63
D. The City Clerk Did Not Err In Rejecting Griswold's Appeal For Lack
Of Standing.
Griswold argues that even under the disputed provisions of the Homer City
Code he had standing to appeal the approval of Permit 07-14, and that Johnson therefore
erred in rejecting his appeal. Griswold also argues that HCC 21.68.040(c)'s use of the
term "general public" might refer to all Alaskans or even all Americans, and that his
interest as a resident of Homer is therefore distinct from that of the general public.
Under HCC 21.68.020(c), to be a "person aggrieved" a person "must show
proof of the adverse effect the action or determination has or could have on the use,
enjoyment, or value of real property owned by that person."64 (Emphasis added.) The
City correctly observes that Griswold's uses of public land, attendance at the Pier One
Theater, and concerns about parking and pedestrian safety do nothing to suggest a
potential detrimental effect on any of his property. And Griswold's statement, without
elaboration, that he owns several lots of land "which, even though in a different zoning
district, could be adversely affected by KSMA's activities" is insufficient to demonstrate
how his use, his enjoyment, or the value of his property might be adversely affected.
62(...continued)
use, enjoyment, and value of his or her property. . . . [H]e or she must also be personally
and specially affected in a way different from that suffered by the public generally.").
63 See Barber v. Municipality of Anchorage, 776 P.2d 1035, 1039 (Alaska
1989) ("The minimum level of equal protection scrutiny in Alaska . . . is more
demanding than the federal rational basis test.").
64 In Earth Movers we "interpret[ed] the phrase 'adversely affected' as used
in the [municipal] ordinance to mean the same as the word 'aggrieved' as used in the
[state] statute." 865 P.2d at 743.
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Even if Johnson had considered Griswold's "Supplement to Notice of Appeal [Permit]
07-14 (KSMA)" showing the real property Griswold owned in Homer, she would still
have been correct to conclude that Griswold was not a "person aggrieved" and to reject
his appeal for lack of standing.65
We also reject Griswold's argument that "general public" means something
other than the citizens of Homer. We find this interpretation highly implausible as a
matter of statutory interpretation and seemingly a roundabout attempt to read citizen-
taxpayer standing into HCC 21.68.020(c).
E. The City Clerk Had The Authority To Reject Griswold's Appeal.
Griswold also argues that the city clerk lacks the authority to "summarily
and arbitrarily" determine standing issues. The City argues that the Homer City Code
authorized Johnson to reject Griswold's appeal, and that the delegation of that authority
was lawful.
Homer City Code 21.68.040(c) expressly provides that "[t]he City Clerk
shall reject any notice of appeal that does not comply with sections 21.68.030 - 21.68.040
and notify the appellant of the reasons for rejection." City law thus authorized, indeed
mandated, that the clerk reject Griswold's appeal.
The delegation of the authority to reject appeals for lack of standing was
also lawful. We have stated that a city's "right . . . to delegate powers to govern the
65 Johnson did not consider Griswold's May 9, 2008 "Supplement to Notice
of Appeal [Permit] 07-14 (KSMA)" showing the real property owned by Griswold in
Homer because she "had already taken final action" in the matter. Failure to consider it
was potentially error; HCC 21.68.040(c) provides that "[i]f a notice of appeal is rejected
for reasons other than timeliness, a corrected notice of appeal that complies with this
section will be accepted as timely if filed within seven days of the date of mailing the
notice of rejection." Griswold's supplement was filed within seven days of Johnson's
initial rejection. Any error was harmless, however, because the map Griswold provided
was not evidence that he was a "person aggrieved" under the statute. See supra note 4.
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affairs of the municipality will not be strictly construed, for '[w]ithout the power to
delegate duty and discretion the affairs of the [c]ity could not be carried on.' "66 Homer
City Code 21.68.040(c) does not vest arbitrary power or authority in the city clerk; it
provides specific criteria, namely the requirements of HCC 21.68.030-.040, for the clerk
to apply to appeals of land use determinations. We therefore agree that the Homer City
Code authorized the clerk to reject Griswold's appeal and that the delegation of such
authority was lawful.
IV. CONCLUSION
For these reasons, we AFFIRM the superior court's decision upholding the
city clerk's denial of Griswold's appeal for lack of standing.
66 Municipality of Anchorage v. Anchorage Police Dep't Emps. Ass'n, 839
P.2d 1080, 1084 (Alaska 1992) (quoting City of Anchorage v. Richardson Vista Corp.,
242 F.2d 276, 285 (9th Cir. 1957)) (alteration in original).
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