HomeMy WebLinkAbout2008-07-09 Planning & Zoning PacketCITY OF KENAI
PLANNING & ZONING COMMISSION
AGENDA
CITY COUNCIL CHAMBERS
July 9, 2408 - 7:00 p.m.
I. CALL TO ORDER:
a. Roll Call
b. Agenda Approval
c. Consent Agenda
d. *Excused Absences
- Roy Wells
*All items listed with an asterisk (*) are considered to be routine and non-controversial by
the Commission and will be approved by one motion. There will be no separate discussion of
these items unless a Commission Member so requests, in which case the item will be
removed from the Consent Agenda and considered in its normal sequence on the agenda as
part of the General Orders.
2. *APPROVAL OF MINUTES:
a. *June 25, 2008
3. SCHEDULED PUBLIC COMMENT: {10 Minutes)
4. CONSIDERATION OF PLATS:
5. PUBLIC HEARINGS:
a. PZ08-39 - A resolution of the Planning and Zoning Commission of the City of Kenai,
Alaska, recommending to the Council that KMC 14.20.200 (a} Accessory Structures be
amended to allow accessory structures in the rear setback and to define one (1) story
height.
6. OLD BUSINESS:
']'. NEW BUSINESS:
8. PENDING ITEMS:
a. PZO'1-25 -Recommending Council enact KMC 9.10.015 to require dumpsters be
screened on at least three sides.
9. REPORTS;
a. City Council
b. Borough Planning
c. Administration
10: PERSONS PRESENT NOT SCHEDULED: {3 Minutes)
Agenda
July 9, 2008
11. INFORMATION ITEMS:
a. Notice of Absence -Commissioner Wells
b. Supreme Court Ruling -Griswold vs. City of Homex
12. COMMISSION COMMENTS & QUESTIONS:
Page 2
13. ADJOURNMENT:
ate,
CITY OF KENAI
PLANNING & ZONING COMMISSION
AGENDA
CITY COUNCIL CHAMBERS
June 25, 2008 - 7:00 p.tn.
L. CALL TO ORDER:
a. Ro11 Call
b. Agenda Approval
c. Consent Agenda
d. *Excused Absences
- Kurt Rogers
*All items listed with an asterisk (*) are considered to be routine and non-
controversial by the Commission and will be approved by one motion. There will be
no separate discussion of these items unless a Commission Member so requests, in
which case the item will be removed from the Consent Agenda and considered in
its normal sequence on the agenda as part of the General Orders.
2. *APPROVAL OF MINUTES:
a. *June I1, 200$
3. SCHEDULED PUBLIC COMMENT: (10 Minutes)
a. Roy Espy -Planning for Future Cell Towers
4. CONSIDERATION OF PLATS:
S. PUBLIC HEARINGS:
a. PZ08-34 - An application to rezone properties known as Lot 4, FBO Subdivision
No. 7 & Lot 5, FBO Subdivision No. 8 (525 & 535 North ~lVillow Street) from
Conservation to Light Industrial. Application submitted by Rick Koch, City
Manager, City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska.
b. PZ08-35 - An application to rezone properties known as Tract A, Gusty
Subdivision No. 3, Tract B, Gusty Subdivision No. 6, and Tract C- i, Gusty
Subdivision No. 7 (410, 420 & 400 Coral Street) from Conservation to Light
Industrial. Application submitted by Rick Koch, City Manager, City of Kenai,
210 Fidalgo Avenue, Kenai, Alaska.
c. PZ08-36 - An application for a Variance from. height restrictions for an 80-foot
cell tower for the property known as Lot 1-A, Grace Brethren Replat #2 (406
McCollum Drive), Kenai, Alaska. Application submitted by Alaska Digitel, 3127
Carnrnercial Drive, Anchorage, Alaska.
d. PZOS-38 - An application to rezone properties known as Buffalo Run
Subdivision Phase 1, Tract 1 and Tract A Swires Subdivision Amended
Excluding Buffalo Run Subdivision Phase 1(Tract lA Buffalo Run Replat
Preliminary Plat), 314 Swires Road from Suburban Residential to Rural
Residential. Application submitted by Bi11 E. Zubeck, 414 Swires Road, Kenai,
Alaska.
6. OLD BUSINESS:
Agenda
June 25, 2008
Page 2
7. NEW BUSINESS:
a. Lease Application -- James H. Doyle, d/b/a Weaver Brothers, Inc. -Tract B,
Gusty Subdivision No. 6 -Discussion.
b. Amendment to KMC 14.20.200 (a) -Discussion -Set public hearing.
8. PENDING ITEMS:
a. PZ07-25 - Recommending Council enact KMC 9.10.015 to require dumpsters
be screened on at least three sides.
9. REPORTS:
a. City Council
b. Borough Planning
c. Adrninistration
10. PERSONS PRESENT NOT SCHEDULED: (3 Minutes)
11. INFORMATION ITEMS:
a. PZO$-37 -Landscape/Site Plan - A.F.S.S. Building - 470 N. Willow Street
b. Request far excused absence -Commissioner Rogers
c. Planning & Zoning Commission Roster
d. Zoning Bulletin -June 10, 200$
12. COMMISSION COMMENTS & QUESTIONS:
13. ADJOURNMENT:
CITY OF KENAI
PLANNING & ZONING COMMISSION
JUNE 25, 2008
7:00 P.M.
CITY COUNCIL CHAMBERS
CHAIR JEFF TWAIT, PRESIDING
MINUTES
ITEM 1: CALL TO ORDER
Chair Twait called the meeting to order at approximately 7:01 p.m.
1-a. Roll Call
Roll was confirmed as follows:
Commissioners present: R. Wells, J. Twait, P. Bryson, J. Brookman, K Koester,
S. Romain
Commissioners absent: None
Others present: Gity Planner M. Kebschull, Council Member R. Ross,
Planning Administrative Assistant N. Carver
A quorum was present.
1-b. Agenda Appro~cral
Commissioner Brookman read the following lay down items:
ADD TO: 3-a. Scheduled Public Comment
• Cell towers within four miles of McCollum Drive, Kenai
• Antennas within four miles of McCollum Drive, Kenai
• Electromagnetic Fields (EMF) Protection -- United States
• Electromagnetic Fields (EMF) Protection -- Norway
• "Guidelines for Limiting Exposure to Time-Varying Electric,
Magnetic, and Electromagnetic Fields (Up to 300 GHz)"
(Norway's Guidelines)
5-c. PZ08-36
• Letter with attachments from Alaska Digitel
MOTION:
Commissioner Brookman MOVED to approve the agenda with the noted laydown
items included and Commissioner Wells SECONDED the motion. There were no
objections. SO ORDERED.
1-c. Consent Agenda
MOTION:
Commissioner Romain MOVED to approve the consent agenda and Commissioner
Brookman SECONDED the motion. There were no objections. SO ORDERED.
1-d. *Excused Absences
Kurt Rogers
*All items listed with an asterisk (*) are considered to be routine and non
controversial by the Commission and will be approved by one motion. There will be
no separate discussion of these items unless a Commission Member so requests, in
which case the item will be removed from the Consent Agenda and considered in
its normal sequence on the agenda as part of the General Orders.
Approved by consent agenda.
ITEM 2: *APPROVAL OF MINUTES -- June 11, 2008
Approved by consent agenda.
ITEM 3: SCHEDULED PUBLIC COMMENfi
3-a. Roy Espy -Planning for Future Ce11 Towers
Roy Espy, 403 McCollum Drirv~e, Kenai -- Espy requested the City pursue a
moratorium on cell phone towers, establishing suitable locations, giving time to assess
the needs of the community, allowing cell phone companies to disclose areas, and
establishing a policy to "hide" towers when appropriate.
BREAK TAKEN: 7:I.5 P.M.
BACK TO ORDER: 7:20 p.m.
ITEM 4: CONSIDERATION OF PLATS --- None
IfiEM 5: PUBLIC HEARINGS
5-a. PZ08-34 - An application to rezone properties known as Lot 4, FBO
Subdivision No. 7 & Lot 5, FBO Subdivision No. 8 (525 8s 535 North
Willow Street) from Conservation to Light Industrial. Application
submitted by Rick Koch, City Manager, City of Kenai, 210 Fidalgo
Avenue, Kenai, Alaska.
Kebschull reviewed the staff report included in the packet, noting the rezone would
eliminate a split zone and was recommended by the Supplemental Airport Master Plan
and the 2003 Comprehensive Plan.
PLANNING 8~ ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 2
Twait read the rules for public hearing and opened the floor to public hearing. There
being no comments, the public hearing was closed.
MOTION:
Commissioner Bryson MOVED to approve PZ08-34 with staff recommendations.
Commissioner Braokman SECONDED the motion.
VOTE:
We11s YES Twait YES B son YES
Ra ers EXCUSED Brookman YES Koester YES
Romain YES
MOTION PASSED UNANIMOUSLY.
5-b. PZQ8-35 - An application to rezone properties known as Tract A, Gusty
Subdivision No. 3, Tract B, Gusty Subdivision No. 6, and Tract C-1,
Gusty Subdivision No. 7 (410, 420 & 400 Coral Street) from Conservation
to Light Industrial. Application submitted by Rick Koch, City Manager,
City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska.
Kebschull reviewed the staff report included in the packet, noting the rezone would
eliminate the non.-conforming issue for the lessee and was recommended by the
Supplemental Airport Master Plan. and the 2003 Comprehensive Plan.
Twait opened the meeting to public hearing.
Kristine Schmidt, 513 Ash Avenue, Kenai -- Spoke against the rezone and
suggested it be zoned the same as the surrounding properties.
There being no further comments, the public hearing was closed.
MOTION:
Commissioner Romain MOVED to approve PZ08-35 with staff recommendations and
Commissioner Bryson SECONDED the motion.
Commissioner comments noted the gully to the north of the property would provide a
buffer along Birch Street.
VOTE:
We11s YES Twait NO B son YES
Ro ers EXCUSED Brookman NO Koester YES
Romain YES
PLANNING S~ ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 3
MOTION PASSED.
5-c. PZ08-36 -- An application for a Variance from height restrictions for an
80-foot cell tower for the property known as Lot 1 ~A, Grace Brethren
Replat #2 (405 McCollum Drive, Kenai, Alaska. Application submitted
by Alaska Digitel, 3127 Commercial Drive, Anchorage, Alaska.
Kebschull reviewed the staff report included in the packet, noting Alaska Digitel had
previously applied for a variance fora 120-foot cell tower on this site and the variance
was denied. She recommended denial of the variance, noting the findings within KMC
14.20.1$0, and stated all conditions could not be met.
Twait opened the meeting to public hearing.
Nick Miller, Alaska Digitel, 3127 Commercial Drive, Anchorage -~ Stated he
believed they met the five conditions. Miller noted Alaska Digitel had met with
neighbors and made the following changes: lowered the tower to 80 feet, would not
install lights, and, would paint the lower tower brown to blend with the trees. Miller
presented information on the safety of cell towers, noting placement should not be
denied based upon health concerns.
Commissioner concerns included:
• If the tower were lowered to 35 feet, they would need seven to eight sites
to have similar coverage.
• Density of trees would be more of a problem with signal loss than single
tall trees.
Some cell companies have standing agreements to share towers.
Roy Espy, 403 McCollum Drive, Kenai -- Spoke against the variance.
Debbie Sonberg, 4~0 Cinderella, Kenai -- Spoke against the variance, but in favor of
working with the city and cell phone companies to plan for the future, suggesting
commercial property in the area.
Patricia Falkenberg, 399 McCollum Drive, Kenai -- Spoke against the variance,
stating she did not want the tower in a residential axea, was concerned with property
values, and very concerned Alaska Digitel started the building process before permits
were received.
Becky Espy, 903 Magic, Kenai -- Spoke against the variance.
Janine Espy, 403 McCollum Drive, Kenai -- Spoke against the variance. Stated she
appreciated the community meeting set up by Alaska Digitel; Grace Brethren Church
apologized to the neighbors and agreed to not accept payments from Alaska Digitel.
Espy stated concern this would allow them to use the property for free. She requested
support of the moratorium or an ordinance change.
PLANNING & ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 4
Billy Stuart, 401 McCollum Drive, Kenai -- Spoke against the variance.
Sylvia Stuart, 401 McCollum Drive, Kenai -- Spoke against the variance, noting she
felt deceived by Alaska Digitel and was concerned about property values.
Wayne Hearer, Alaska Digitel, 3127 Commercial Drive, Anchorage -- Shared
information on market value effect relative to cell tower proximity or view.
Nick Miller, Alaska Digitel, 3127 Commercial Drive, Anchorage -- Questioned
signal strength with too many towers in the area, stating it was just coincidental.
Noted testing might affect Alaska Digitel customers but not other cell users.
There being no further comments, the floor was closed to public hearing.
MOTION:
Commissioner Romain MOVED to approve PZO8-36 and Commissioner Bryson
SECONDED the motion.
Commissioner comments included commercial property in the area belonged to the
borough, axxd permitting would take at least six months.
VOTE:
Wells NQ Twait YES B san NO
Ro ers EXCUSED Brookman NO Koester NO
Romain NO
MOTION FAILED.
Twait read the 15-day appeal process procedure.
MOTION:
Commissioner Romain MOVED to adapt the findings; the application for variance was
denied because Alaska Digitel did not meet findings one, two and four of
KMC 14.20.180. Commissioner Wells SECONDED the motion.
MOTION TO AMEND:
Commissioner Wells MOVED to amend the motion to read "did not meet findings two
and four of KMC 14.20.180." Commissioner Bryson SECONDED the motion.
VOTE ON THE AMENDMENT:
Wells YES Twait YES B son YES
PLANNING & ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 5
Ro ers EXCUSED Brookman YES Koester NO
Romain NO
MOTION PASSED.
MOTION TO AMEND:
Commissioner Bryson MOVED to amend the motion by adding "including staff
comments" after KMC 14.20.180. Commissioner Romain SECONDED the motion.
VOTE ON THE AMENDMENT:
Wells YES Twait YES B son YES
Ra ers EXCUSED Brookman YES Koester YES
Rornain YES
MOTION PASSED UNANIMOUSLY.
VOTE ON MAIN MOTION AS AMENDED:
Wells YES Twait YES B son YES
Ro ers EXCUSED Brookman YES Koester YES
Rornain YES
MOTION PASSED UNANIMOUSLY.
5-d. PZ08-38 - An application to rezone properties known as Buffalo Run
Subdivision Phase 1, Tract 1 and Tract A Swires Subdivision Amended
Excluding Buffalo Run Subdivision Phase 1(Tract 1A Buffalo Run Replat
Preliminary Platj, 314 Swires Road from Suburban Residential to Rural
Residential. Application submitted by Bill E. Zubeck, 414 Swires Road,
Kenai, Alaska.
Kebschull reviewed the staff report included in the packet, noting the rezone would
eliminate a split zone.
Twait opened the meeting to public hearing. There being no comments, the public
hearing was closed.
MOTION:
Commissioner Romain MOVED to approve PZ08~38 and Commissioner Wells
SECONDED the motion.
VOTE:
PLANNING 8a ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 6
We11s YES Twait YES B son YES
Ro ers EXCUSED Brockman YES Koester YES
Rornain YES
MOTION PASSED UNANIMOUSLY.
ITEM 6: OLD BUSINESS -- None
ITEM 7: NEW BUSINESS
7-a. Discussion -- Lease Application -James H. Doyle, d/b/a Weaver
Brothers, Inc. -Tract B, Gusty Subdivision No. 6.
Kebschull reviewed the staff report included in the packet.
MOTION:
Commissioner Wells MOVED to recommend City Council approve the lease application
and Commissioner Koester SECONDED the motion.
VOTE:
Wells YES Twait YES B son YES
Ro ers EXCUSED Brookman YES Koester YES
Rornain YES
MOTION PASSED UNANIMOUSLY.
7-b. Discussion -- Amendment to KMC 14.20.200 (a) -Set public hearing.
Kebschull reviewed the staff report included in the packet, noting if the amendment
would be approved, accessory structures larger than 120 square feet would need to be
only five feet from the rear lot line, rather than 20 feet, and would define single story
as 12 feet.
Commissioner comments included changing "the top of the roof' to "the highest point
of the roof."
Tvvait opened the meeting to public comment.
Kristine Schmidt, 513 Ash Avenue, Kenai -- Suggested a work session before a
public hearing. It was noted there had been work sessions and the commission
wanted public input before proceeding.
It was recommended Administration set a public hearing for the draft ordinance with
the changes suggested.
PLANNING 8v ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 7
ITEM 8: PENDING ITEMS
8-a. PZ07-25 -Recommending Council enact KMC 9.10.015 to require
dumpsters be screened on at least three sides.
ITEM 9: REPORTS
9-a. City Council -- Ross reviewed the action agenda items from the June 18,
2008 City Council meeting.
9-b. Borough Planning -- Bryson reviewed the action agenda items from the
June 23, 2008 Borough Planning meeting.
9-c. Administxation -- Kebschull requested all commissioners come into City
Hall to fill out a W-4 to receive payment.
ITEM Y0: PERSONS PRESENT NOT SCHEDULED -- None
ITEM 11: INFORMATION ITEMS
11-a. PZ08-37 -Landscape/Site Plan - A.F.S.S. Building - 470 N. Willow
Street
11-b. Request for excused absence - Commissioner Rogers
11-c. Planning & Zoning Commission Roster
11-d. Zoning Bulletin -June 10, 200$
ITEM 12: COMMISSION_COMMENTS & QUESTIONS
Wells noted he attended the June 25, 2008 Chamber luncheon to hear Mayor Porter's
presentation on the city budget.
ITEM 13: ADJOURNMENT
MOTION:
Commissioner Brookrnan MOVED to adjourn and Commissioner Bryson SECONDED
the motion, There were no objections. SO ORDERED.
There being no further business before the Commission, the meeting was adjourned at
approximately 9:1.0 p.m.
Meeting summary prepared and submitted by:
Corene Hall, Deputy City Clerk
PLANNING & ZONING COMMISSION MEETING
JUNE 25, 2008
PAGE 8
Suggested by: Administration
~~~
_- .
s ~ ~ CITY OF KENAI
t~recr o PLANNING AND ZONING COMMISSION
K~HA AIASHA SOLUTION NO. PZ08-39
A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF
KENAI, ALASKA, RECOMMENDING TO THE COUNCIL THAT KMC 14.20.200 (a)
(ACCESSORY STRUCTURES) BE AMENDED TO ALLOW ACCESSORY STRUCTURES
IN THE REAR SETBACK AND TO DEFINE ONE (1) STORY HEIGHT.
WHEREAS, KMC 14.20.200(a)(2) naw allows for accessory structures of not more than
one hundred twenty (120) square feet and not more than one story in height to be in
setback areas provided they are not closer than three feet to the adjoining iot; and,
WHEREAS, existing setbacks for sheds above one hundred twenty (120} square feet cause a
significant lass of usable yard space; and
WHEREAS, increasing the size of such accessory structures allowed in the rear setback would
allow for more inside storage without the added expense of another out building, thus reducing
outside storage in yards; and
WHEREAS, defining single story height would insure allowing structures in the rear
setback do not adversely affect the adjacent properties; and,
WHEREAS, it is in the best interest of the City of Kenai to amend KMC 14.20.200(a) to
allow accessory structures over one hundred twenty (120) square feet to be placed up
to five feet (5') from the adjoining lot and to define single-story height as a maximum of 12
feet {12') high as measured from the ground to the tap of the roof.
NOW, THEREFORE, THE PLANNING AND ZONING COMMISSION OF THE CITY OF
KENAI RECOMMENDS THE COUNCIL OF THE CITY OF KENAI, ALASKA AMEND
KMC 14.20.200 as follows:
PZ08-39
KMC 14.2D.200 Accessory structures.
Page 2
(a} Yard Requirements for Accessory Structures. Where yards are required,
accessory structures shall be subject to the same requirements as principal structures
except as follows:
(1] In an RR and RS zone, the minimum front yard setback for an
unoccupied attached or detached garage ox carport shall be ten feet (10'J;
(2} Covered but unenclosed passenger landings, or storage sheds of not
more than one hundred twenty (120) square feet, and not more than one (1}
story in height may extend into either side yard or rear yard, but such structure
shall not be closer than three feet (3'} to an adjoining lot;
S Covered but unenclosed risen er landin s or stora a sheds more than
one hundred twenty (120) square feet, and not more than one (~.] story in height
may extend into the rear yard, but such„structure shall not be closer than flue
feet f5'1 to an_adioinin~ lot;
[3] ~ Unenclosed outside stairways, fire escapes, porches, or landing places as
well as cornices, canopies, eaves, and other similar architectural features not
providing additional floor space may extend into a required side or rear yard
except within, three feet (3`) of any lot line;
[4] ~ Unenclosed outside stairways, fire escapes, porches, or landing places as
well as cornices, canopies, eaves, and other similar architectural features not
providing additional floor space may extend into a required front yard except
within ten feet (10'} of any lot Line;
[S] ~ A detached accessory building may be permitted to occupy a rear yard;
provided that, not more than one-third (1 / 3} of the total area of such rear yard
shall be so occupied. Except as provided in KMC 14.20.200(a} (2} and KMC
14.20.200 {a) f3), setbacks, per development tables, must be maintained if
structure requires a building permit.
7 For ur oses of this section one 1 sto in hei ht is a maximum
of 1.2. feet (12') high as measured from, the ground to the highest point of
the subject structure. roof.
PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI,
ALASKA, this 9th day of July 2008.
CHAIRPERSON:
ATTEST:
New test underlined [DELETED TEXT BRACKETED AND ALL CAPS
~~
AGENDA
KENAI CITY COUNCIL -REGULAR MEETING
JULY 2, 2008
7:00 P.M.
KENAI CITY COUNCIL CHAMBERS
http: I I www.ci.kenai. ak.us
ACTION AGENDA
ITEM A:
CALL TO ORDER
1. Pledge of Allegiance
2. Roll Ca11
3. Agenda Approval
4. Consera.t Agenda
*All items listed with an asterisk (*) are considered to be routine and non-
controversial by the council and will be approved by one motion. fihere will be no
separate discussion of these items unless a council member so requests, in which case
the item will be removed from the consent agenda and considered in its normal
sequence on the agenda as part of the General Orders.
ITEM B: SCHEDULED PUBLIC COMMENTS (10 minutes)
1. City Manager Rick Koch -- Forestry Video (11 minutes)
2. Judy Reece, Kenai Peninsula Fire Wise Team/Division of Forestry --
Fire Safe Program Update
ITEM C: UNSCHEDULED PUBLIC COMMENTS (3 minutes)
ITEM D: REPORTS OF_KPB ASSEMBLY, LEGISLATORS AND COUNCILS
ITEM E: PUBLIC HEARINGS (Testimony limited to 3 minutes per speaker.)
1. PASSED UNANIMOUSLY. Ordinance No. 2321-2008 -- Increasing
Estimated Revenues and Appropriations by X250,000 in the Library
Expansion Capital Project Fund and $750,000 in the Street and Sewer
Capital Project Find for Public Improvements.
2. AMENDED/PASSED UNANIMOUSLY. Ordinance No. 2322-2008 --
Placing on the Ballot for the Next General Election the Question As to
Whether the Municipal Officers of the City of Kenai Should be Exempt
From the Provisions of the State of Alaska Finaxicial Disclosure Statutes
(AS 39.50).
3. POSTPONED/JULY Y 6, 2U48. Ordixx,ax~ce No. 2323-2008 -- Amending
KMC 1.85 by: 1) Updating the Financial Reporting Requirements for
Municipal Officers and Candidates
Contained in KMC 1.85.020; and, 2) Including the Members of the
Planning and Zoning Commission i~z the Definition of "Municipal Officer
in KMC 1.85,070; and, Including Stockbrokers and Financial Advisors in
the List of Professionals Subject to Modified Requirements in KMC
1.85.030.
4. FAILED UNANIMOUSLY. Ordinance No. 2325-2008 -- Amending the
Code Violation Fine Schedule in KMC 13.10.015 to Include a Standard
Fine of $500 for Trespass in Violation of KMC 3.20.010.
5. PASSED UNANIMOUSLY. Resolution No. 2008-40 -- Contributing
$5,000 to the Central Area Rural Transit System, Inc. (CARTS) for Fiscal
Year 2008-2009 Transit Services.
6. PASSED UNANIMOUSLY. Resolution No. 2008-41 -- Awarding the Bid
to Alaska Enviroscape far Leif Hansen Park Sprinklers Installation - 2008
for the Total Amount of $52,630.
ITEM F: MINUTES
1. APPROVED. *Regular Meeting of June 18, 2008,
ITEM G: UNFINISHED BUSINESS
ITEM H: NEW BUSINESS
1, APPROVED. Bills to be Ratified
2. APPROVED. Approval of Purchase Orders Exceeding ~ 15,000
3. INTRODUCED. *Ordinance No. 2326-2008 -- Amending KMC 7.22.010
and Enacting a New Section of the Kenai Municipal Code {KMC 7.30.020)
to Establish a New Investment Policy for the Airport Land Sale
Permanent end.
4. INTRODUCED. *Ordinance No. 2327-2008 -- Amending the Official
Kenai Zoning Map by Rezoning a Portion of Lot 4, FBO Subdivision No. 7
8v Lot 5, FBO Subdivision No. $ From Conservation to Light Industrial.
5. INTRODUCED. *Ordinance No. 2328-2008 -- Amending the Official
Kenai Zoning Map by Rezoning Tract A, Gusty Subdivision No. 3, Tract
B, Gusty Subdivision No. 6, and Tract C-1, Gusty Subdivision No. 7
From Conservation to Light Industrial.
6. INTRODUCED, *Ordinance No. 2329-2008 -- Amending the Official
Kenai Zoning Map by Rezoning Tract lA of $uffalo Run Subdivision 2008
Replat (Preliminary Plat) Consisting of Approximately 72 Acres from
Suburban Residential and Rural Residential to Rural Residential.
7. INTRODUCED. *Ordinance No. 2330-2008 -- Increasing Estimated
Revenues and Appropriations by X25,000 in the Airport Special Revenue
Fund and the Courthouse Parking Capital Project Fund for Engineering.
$. SUBSTITUTE INTRODUCED. *Ordinance No. 2331-2008 -- Enacting a
New Section of the Kenai Municipal Code (KMC 13.20.00) Titled
"Trespass" Making It a Violation to Trespass Upon Real Property.
9. APPROVED. Approval -- Grant of Easement/TCaN R11W, Sections 32 &
33, Seward SW KN2006025, Baron Park 2006 Replat Lot A, Records of
the Kenai Recording District (Slope Easement/Marathon Road
Improvements) .
ITEM I: COMMISSION/COMMITTEE REPORTS
1, Council on Aging
2. Airport Commission
3. I~arbor Commission
4. Library Commission
5. Parks 8s Recreation Commission
6. Planning Sv Zoning Commission
7. Miscellaneous Commissions and Committees
a. Beautification Committee
b. Alaska Municipal League Report
c. Mini-Grant Steering Committee
ITEM J: REPORT OF THE MAYOR
ITEM K: ADMINISTRATION REPORTS
1. City Manager
2. Attorney
3. City Clerk
ITEM L: DISCUSSION
1. Citizens (five minutes)
2. Council
ITEM M: PENDING LEGISLATION (This item lists legislation which will be
addressed at a later date as noted.)
Ordinance Na. 2314-2008 -- Enacting KMC 23.55.080 Providing for Longevity Pay of
Two Percent (2%) for Certain Employees in Step CC in the City of Kenaz Salary
Schedule. (Postponed on June 4, 2008 to August 6, 2008.)
EXECUTNE SESSION -- Financial Matters/City Manager Evaluation Continuation
ITEM N: ADJOURNMENT
Marilyn Kebschull
rim
From: Roy A Wells [rawells@wradvisors.cam]
Sent: Wednesday, July 02, 2008 2:54 PM
70: Carol Frees; Marilyn Kebschull
Marilyn and Carolyn,
I will be out of town from July 6tl' until July 23rd. I will be absent from the Planning and
Zoning meetings faIiing within that time frame.
See you after the 23rd
Thank you,
Ray A. Wells, CFP
Financial Advisor
Waddell & Reed
610 Attla Way Suite 2
Kenai, AK 99611
907-283-5646
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THE SUPREME COURT OF THE STATE OF ALASKA
FRANK GRISWOLD,
Appellant,
v.
CITY OF HOMER,
Appellee.
Supreme Court No. 5-12226
Superior Court No. 3H0-04-132 CZ
OPINION
No. 6276 -June 20, 2008
Appeal from the Superior Caurt of the State of Alaska, Third
Judicial District, Homex, 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.
Ia YL~ ll!®17~11..TA®1\
After the Homer City Council passed an ordinance limiting the floor area
of stores in three City of Hamer 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
~_ 4'
t
» f.
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 Hamer Advisory Planning Commission, and therefore exceeded the city council's
own legislative power, we conclude that the initiative was invalid. We consequently
remand far entry of judgment for Griswold.
Ige FACTS A.NI) P~tOCEEDIIeIGS
When Fred Meyer, Znc. publicly announced plans in late 2002 to build a
95,000-square-foot stare 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. Fox two years, beginning in March 2003, the question was considered
by a special task force, by the Hamex 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
Cf,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 1 S, 2004. The voters approved the
-2- 6276
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
canyey 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 OS-02, adopting
a maximum Haar 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."~
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 an summary judgment.
Griswold appeals.
III. I)ISCLTSSIOI~
A. Standard of Itevieva
We review a grant of summary judgment de navo.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
1 Homer City Cade (HCC) 21.32.20$.
z Ala.~ka Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989, 991
(Alaska 2004}.
3 Id.
-3- 627G
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 far 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.g To decide
whether Homer voters could invoke the initiative process to amend the City o£ 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
~ Citizens Coal. for Tort Reform v. McAlpine, $10 P.2d 162 (Alaska 1991)
(stating that people's constitutional right to initiate is broad and should be liberally
construed).
s Municipality of Anchorage v. Frohne, 56$ P.2d 3, S (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."). ,
-4- 62'16
land use regulation on an areawide basis."d If a city within a borough consents by
ordinance, the borough assembly may delegate any of its land use regulation powers to
the city. 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...."g Section .030 describes "a comprehensive plan" as "a compilation of
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, wzthout first obtaining consent of the city, revoke
any power or duty delegated under this section.
~ AS 29.40.010{b).
s 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. Amember-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
(continued...)
-5- 6276
policy statements, goals, standards, and maps for guiding the physical, social, and
economic development, bath private and public, of the first or second class borough."9
These statutes require "areawide"planning and creation of a comprehensive
plan "far 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.1a
$(...continued)
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 ofpolicies, goals, and standards;
(2) a land use plan;
{3) a community facilities plan;
(4) a transportation plan; and
(S) 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.
1o AS 29.40.010(a) {"areawide basis"); AS 29.40.020{a) {"borough shall
(continued...)
-b- 6270
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."~1 Because "zoning regulations" are
one of the "measures provided under AS 29.40.040,"r2 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
io( continued)
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").
ii AS 29.40.020(b)(2).
zz AS 29.40.040(a}(1).
}3 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,
(I) 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.
-7-
~27s
.. ~,
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 Iand use regulations by providing assistance to the borough {or city) to ensure
that development proceeds in a "systematic and organized" rnanner.aS
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
x4 AS 29.40.020(b}(1), (2); AS 29.40.040(d)(1).
1s 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 dele atg_ ed the,,laower to establish a
planningcornmission„_ to hear all requests for
amendments to„„zoning codesa or for variances,
conditional use permits, contract rezoning[,]-or to hear
all other matters coming under the zoning ordinances
enacted by the city... .
{continued...)
-$- ~ ~ b276
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."~~ The Kenai Peninsula Borough therefore delegated the power to regulate
zoning to the City of Hamer, 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 hers, 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 Tn addition, the commission may propose amendments to the
zoning code.20
16( continued}
{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).
-9- 6276
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.za
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 ....„z6
Tt 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
21 Hcc 21.70.o1o(a}(1).
zz HCC 2T.70.010(b).
z~ AS 29.40.020.
za AS 29.40.030(b), .020{b)(2}, .040{a).
zs KPBC 21 A 1.020(B).
z6 AS 29.40.040{a).
-10- ~ ''• : 6276
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
. ' ;::
27 See supra n. l0.
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. Xl, § 7 of the state constitution."
-11- ; ~ .~ 6276
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
traff c 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
far 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
..12_ 6276
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 ofthe proposed changes in Iight
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
z9 AS 29.40.040(a)(1); A~ 29.40.020(b}(2}. Cf. KP13C 21.01.020{B}.
-13- 6276
~~
ordinances.3° 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 OS-02. The city argues that
because Griswold failed to adequately brief his request to strike down Ordinance OS-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 OS-02.
Griswold adequately argues on appeal that Ordinance OS-02 would not have
been enacted but far passage of the initiative. The "whereas" clauses ofOrdinance OS-02
~~ Both parties cite cases from other jurisdictions that either reject or appxove
zoning by initiative. See, e.g., Kaiser Hawaii Kai Dev. Ca. v. City ~i 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 11$0, 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, 1.988) {"The power to zone is pa~•t 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 l OS8. 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.
-14- 6276
. ~;
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 p5-02 is now absent; Ordinance OS-02 is therefore also znvalid.
IVo COl~CI.,USg®lV
We REVERSE the superior court's grant of summary judgment and
REMAND for entry of judgment for Griswold.
~~7:
-1~- 6276
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 fallow
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 generic 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 "[tjhe
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 '1 of the state
constitution."~ There are no other limitations on the voters' power to initiate that are
relevant to this case. The process for exercising the initiative of the municipal level is
fairly straightforward. A proposed initiative is first reviewed by the municipal clerk to
~ 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."
-16- 62`16
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 review and provides that an initiative will be
enacted "[i]f a majority of the votes cast on the proposition favor its adoption ...."7
a 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.
a AS 29.26.170.
s AS 29.26.170{d).
6 See ALASKA CONST. art. XT, § 2.
+~~
~ 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. Ifa majority ofthe
votes cast on the proposition favor the rejection of an act
{continued...)
-17- Gz76
The Alaska.Constitution also makes clear that the procedural requirements
far 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."S Unless the governor vetoes the bill within
fifteen days after its passage, it will become 1aw.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 far 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 farm 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
7(...continued)
referred, it is rej ected.... 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. ZI, § 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.
-18- ~ 6276
rule: this was to be true democracy as distinguished from representative democracy."r4
That court has also held that a .right of such importance should be "jealously
guard{ed]."r1
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
Broaks v. Wright12 we stated that the constitutional framers "chase to include the
initiative process as alaw-making tool with full knowledge of the risks inherent to direct
democracy."r3 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
io Citizens Against Rent Control v. City of Berkeley, 27 Cal. 3d 819, 826
(1980), rev'd an other grounds, Citizens Against Rent Control/Coalition for Fair
Housing v. City of Berkeley, 454 U.S. 294 (19$1); see also McKee v. City of Louisville,
616 P.2d 969, 972 (Colo. 1984) (describing power of initiat~ye ~s "a fundamental right
at the very core of our representative government").
rr DeVita v. County of Napa, 9 Cal. 4th 763, 776 {1995) (citation omitted).
1a 971 P.2d 1025 (Alaska 1999).
1s Id. at 1029.
1a This section provides in full: '~
The initiative sha11 not be used to dedicate revenues, make or
{continued...}
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:.~, , .
constitutional section Iists 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.is 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.
1a( .continued)
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.
xs 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, S28 P.2d X56, 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
ofthe objects andpurposes to be accomplished.") (citations omitted), partially overruled
on other grounds, McAlpine v. Univ. of Alaska, 762 P.2d 81, 85 (Alaska 1988}.
Article XI1, section 1I of the Alaska Constitution creates acatch-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.
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T,.
Third, the court bases its decision to prohibit zoning by initiative on the
concern that allowing zoning by initiative would undermine comprehensive zaning.x6
But zoning ordinances, whether they are enacted by the voters or by the city council, are
subject topast-enactment review. We explained inBrooks that "[c]oncerned parties can
... bring a post-election substantive challenge to what they may believe is anill-advised
law."~~ In Price v. Dahlls we suggested that an ordinance could be challenged an 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. "~9 Thus, I believe the
initiated ordinance was subject to apost-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
i6 Opinion at 10-11.
17 971 P.2d at 1030.
x8 912 P.2d 541 (Alaska 1996}.
19 Id. at 542 (citing A,S 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 ofLivermore, 557 P.2d 473, 479 {Cal.
1976) (citation omitted); accardDeVita v. County ofNapa, 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).
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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 subj ect
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 4.60.410), and I therefore would affirm the superior court's grant of
summary judgment to the City of Homer.
Zi Garvin v. Dist. Court, 59 P.3d 1180, 1190 (Nevi 2002}.
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