Griswold v. Homer Board of Adjustment , 426 P.3d 1044 ( 2018 )

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THE SUPREME COURT OF THE STATE OF ALASKA
FRANK GRISWOLD, )
) Supreme Court No. S-16660
Appellant, )
) Superior Court No. 3HO-15-00021 CI
v. )
) OPINION
HOMER BOARD OF ADJUSTMENT, )
RICK ABBOUD, JOSE RAMOS, ) No.7295 – September 14, 2018
and KENTON BLOOM, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Homer, Carl Bauman, Judge.
Appearances: Frank Griswold, pro se, Homer, Appellant.
Holly C. Wells and Thomas F. Klinkner, Birch Horton Bittner
& Cherot, Anchorage, for Appellees Homer Board of
Adjustment and Rick Abboud. No appearance by Appellees
Jose Ramos and Kenton Bloom.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
STOWERS, Chief Justice.
I. INTRODUCTION
Frank Griswold twice appealed the Homer Advisory Planning
Commission’s approval of a conditional use permit to the Homer Board of Adjustment
and later appealed the Board’s second decision to the superior court, which sua sponte
dismissed his appeal for lack of standing. Because Griswold did not have notice that his
standing was at issue, his due process rights were violated. We therefore reverse and
remand for the superior court to decide his appeal on the merits.
II. FACTS AND PROCEEDINGS
In January 2014 the Homer Advisory Planning Commission approved a
conditional use permit allowing “[m]ore than one building containing a permitted
principal use” on Lot 1-A-1 Carl Sholin Subdivision No. 5 in the Central Business
District in Homer. Frank Griswold, as a resident of Homer and as an owner of several
lots in the area,1 appealed the Commission’s decision to the Homer Board of Adjustment.
In June the Board issued a decision affirming the Commission’s decision in part; it
rejected two findings for insufficient evidence and remanded for consideration of
additional evidence. On remand the Commission again approved the conditional use
permit. Griswold again appealed. In January 2015 the Board affirmed the Commission’s
decision, and Griswold appealed to the superior court.
Oral argument before the superior court was held in February 2016, and the
court subsequently accepted supplemental briefing. In January 2017 the court sua sponte
dismissed the appeal for lack of standing by Griswold. In its dismissal order the court
recognized that “the briefs by the parties did not address the issue of standing,” but it
noted that AS 29.40.060 provides for an appeal by “a person aggrieved from a decision,”
and it determined that the concerns raised by Griswold regarding the conditional use
permit “do not rise to the level of aggrievement sufficient to satisfy the Homer ordinance
1
Griswold reports that he owns eight lots “in very close proximity to the
subject property,” including his place of residence, and that one of his lots is “within 300
feet of the subject property.” He indicates that one of the eight properties (not the one
within 300 feet) was acquired after the notice of appeal was filed.
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on standing.” The court also found that Griswold’s “potential injury is indistinguishable
from the potential adverse effect . . . on any member of the general public of Homer.”
Griswold filed a motion for reconsideration, which was denied. He then
filed a motion for clarification of the order that denied reconsideration, arguing that
because “[t]he order [was] captioned ‘Order For Reconsideration[,]’ . . . the [c]ourt may
have intended to grant [the motion] rather than deny it.” (Emphasis in original.) In
response, the court issued an order explaining that “the body of the Order reflects the
opinion of this [c]ourt that reconsideration was and is not appropriate.” Griswold
appeals.
III. STANDARD OF REVIEW
“We review due process claims de novo, ‘adopting the rule of law most
persuasive in light of precedent, reason, and policy.’ ”2
IV. DISCUSSION
Under the Alaska Constitution, “[n]o person shall be deprived of life,
liberty, or property, without due process of law.”3 “[P]rocedural due process under the
Alaska Constitution requires notice and opportunity for hearing appropriate to the nature
of the case.”4 In order to “have a reasonable opportunity to be heard,” the “[p]arties must
have notice of the subject of proceedings that concern them.”5 “A hearing is required in
2
Brandner v. Providence Health & Servs.–Wash., 394 P.3d 581, 587 (Alaska
2017) (quoting Alyeska Pipeline Serv. Co. v. State, Dep’t of Envtl. Conservation, 145 P.3d
561, 564 (Alaska 2006)).
3
Alaska Const. art. I, § 7.
4
Price v. Eastham, 75 P.3d 1051, 1056 (Alaska 2003) (quoting Walker v.
Walker, 960 P.2d 620, 622 (Alaska 1998)).
5
Id. (quoting Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002)).
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order to give the parties an opportunity to present the quantum of evidence needed [for
the court] to make an informed and principled determination.”6
Griswold argues that his due process rights were violated by the superior
court’s sua sponte dismissal for lack of standing. He points out that he asserted standing
in his notices of appeal to the Board based on several lots he owns “within one block of
the subject property,” including one lot within 300 feet, and based on his belief that the
uses approved via the conditional use permit “will create congestion, visual blight, and
leaching/migration of sewage and other contaminates that will adversely affect the
general character of the neighborhood and the value of his real property.” In his second
notice of appeal to the Board, he also alleged that the uses approved via the conditional
use permit “will promote . . . criminal activity that will adversely affect the general
character of the neighborhood and the value of his real property.” He points out that the
city clerk found these notices of appeal compliant with Homer City Code
(HCC) provisions relating to the timing for and notice of appeal7 and cites Griswold v.
City of Homer, where this court held that “[t]he delegation [to the city clerk] of the
authority to reject appeals for lack of standing was . . . lawful.” He also notes that the
Board did not raise the issue of his standing. He argues that his motion for
reconsideration, which was limited to five pages under Alaska Civil Rule 77(k)(2), was
his only opportunity to defend his standing.
The Board responds that “Griswold had ample notice that his standing was
at issue and opportunity to demonstrate he met the standing requirement.” It argues that
“Griswold had ample notice of the criteria for determining his standing to appeal” and
“fully understood his obligation to meet the standing criteria,” noting that “[h]e
6
Id. (alteration in original) (quoting Walker, 960 P.2d at 622).
7
HCC 21.93.070, .080 (2008).
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previously litigated his standing to appeal a Homer land use decision” and that his
notices of appeal to the Board responded to the requirement to show that he had standing
to appeal. It contends that Griswold did not “identify[] the specific location of his
property”; that his “allegations regarding the harm that would result from [the
conditional use permit were] nonspecific, conclusory and speculative”; and that he
therefore failed to prove standing. The Board asserts that Griswold “had multiple
opportunities to present evidence that showed he met [the standing] criteria[] and had a
final opportunity to argue against the dismissal of his appeal through his motion for
reconsideration.” It also argues that “Griswold used his motion for reconsideration to
advance new, and spurious, arguments for his standing, rather than directing the
[s]uperior [c]ourt’s attention to specific facts in the record.”
Contrary to the Board’s assertions, the record shows that Griswold did not
have notice that his standing was at issue. After Griswold addressed the standing criteria
in his notices of appeal and the city clerk found those notices compliant with
HCC 21.93.070 and 21.93.080, he had no reason to believe that standing was at issue —
his standing was never challenged. And while Griswold may have had “opportunities
to present evidence that showed he met [the standing] criteria,” he had no reason to seek
to present such evidence because he had no notice that standing was at issue. Because
no one had raised the issue of standing and the superior court sua sponte dismissed the
appeal for lack of standing, without providing any opportunity to Griswold to make a
showing of standing or remanding the case for him to present evidence, Griswold’s only
opportunity to present any argument regarding standing once the superior court
determined sua sponte he did not have standing was his motion for reconsideration. The
Board’s arguments about the motion for reconsideration highlight the due process issues
in this case. The Board argues that the motion for reconsideration “advance[d] new, and
spurious, arguments for his standing, rather than directing the [s]uperior [c]ourt’s
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attention to specific facts in the record.” But any arguments Griswold could make at that
point would necessarily be new arguments because the issue of standing had never been
raised until the dismissal order, and there had been no notice of the need to place any
additional facts in the record to support his standing. Because Griswold did not have
notice that his standing was at issue, his due process rights were violated.
V. CONCLUSION
We REVERSE and REMAND for the superior court to decide Griswold’s
appeal on the merits.
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