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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
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
corrections@akcourts.us.
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
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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).
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----------------------- 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
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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
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----------------------- 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).
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----------------------- 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)).
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----------------------- 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...)
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----------------------- 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.
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----------------------- 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.
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----------------------- 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...)
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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...)
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----------------------- 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.").
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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.").
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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.
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