*1 the courts." But when Providence moved the CON under AS 18.07.081(a) .091(a). or fees, for an award of only opposed Fubs an And argument because Fubs waived his grounds alleged public award on of his inter he attorney's should be shielded from fees status; litigant est argue he did not alterna 82(b)(8)(I), awards under Rule superior tively, or on superi- reconsideration after the court awarding attorney's did not err in fees him, against court ruled that he was to Providence and Gilbertson. We therefore 82(b)(8)(I) shielded Rule from an award of AFFIRM the dismissals of both of Fubs's showing fees. He made no how award superior court cases and AFFIRM both at- torney's fees awards. by similarly would chill suits situated liti gants. hand, On the other superior his court affidavit president asserted that he is CARPENETI, Justices, BRYNER and not
AMC2, independent which an "has board of participating. currently directors and has about 60 mem bers, consumers, including doctors and other providers,
medical and small businesses. We funding
have received variety from a of busi including
nesses Open Imaging [Alaska Cen-
terl, who not Although a member."
affidavit asserts that no member AMC2 reap
"would substantial economic benefit" if prevailed, permits Fubs had it also no infer GRISWOLD, Appellant, Frank prospect ence that the of an partial award of attorney's fees would discourage similarly potential situated litigants filing from suit. HOMER, Appellee. CITY OF Accordingly,Fubs's failure to argu raise this No. S-12226. superior ment court forecloses him raising from it here.30 Supreme Court of Alaska. additionally Fuhs appeals the award of attorney's fees to ground Gilbertson on the June 2008. superior court did adequately explain basis its decision. But the court awarding
order attorney's Providence fees
rejected argument Fuhs's public that he ais litigant;
interest the court required was not
to reiterate ruling regards its to Gilbert-
son. We therefore find no reason to remand attorney's reconsideration of fees and
accordingly affirm court's attorney's
awards of fees to Providence and
Gilbertson.
IV. CONCLUSION Because he was "substantially affect- CON,
ed" the Providence Fubs does not standing
have
challenge
the issuance of
406;
Id.
82(b)(3)(D)
at
see
waived).
Alaska R.
peal
Civ. P.
Because we determine that
("[TJhe
given
extent to
which a
fee award
82(b)(3)(I) argument
Fubhs waived his Rule
non-prevailing
so onerous
party
public
thai Fubs's status
litigant
as a
interest
similarly
would deter
litigants
situated
from the
would not affect
fee award, we do
attorney's
courts.").
voluntary use of the
not need to
public
decide whether Fubs is a
litigant.
interest
30. Brandon
v. Corr.
Am.,
Frank se. Tans, Coie, Anchorage, Perkins Gordon J. Appellee. Justice, FABE, Before: Chief EASTAUGH, MATTHEWS, CARPENETI, Justices.
OPINION EASTAUGH, Justice.
I. INTRODUCTION City passed an After the Homer Council limiting the floor area of stores Homer districts to be- three 45,000 feet, 20,000 square Homer tween passed an initiative that increased residents 66,000 square all three feet for the area Frank zoning districts. Homer resident argued that sued the Griswold for various reasons. initiative was invalid upheld the initiative and court city. summary judgment granted arguing zoning is not appeals, Griswold subject for an initiative. Because proper impermissibly bypassed Commission, Advisory Planning the Homer council's own and therefore exceeded initia- legislative power, we conclude that the consequently remand invalid. tive was We entry judgment for Griswold. AND PROCEEDINGS II. FACTS publicly an- Meyer, Inc. Fred When 95,000- plans in late 2002 build nounced Homer, city began square-foot store existing review of its an extensive to alter whether it needed code to determine floor area limits for effectively retail and wholesale "footprint also defined area" as area," meaning years, beginning "floor stores. For two "the total area occu March question spe- was considered pied by building, taken on a horizontal force, by Advisory cial task the Homer Plan- plane level, at the main grade exclusive of ning Commission, the Homer *3 steps any accessory and buildings." Council in than hearings. more a dozen Af- Frank challenged Griswold in initiative analyzing ter including impact, issues traffic court, claiming among other the ideal development, landscaping, rate of things that the initiative could not be maintaining Homer, the local character of zoning used to amend the city code. The protecting groundwater, and prevailed summary on judgment. commission made a of series recommenda- city appeals. tions to Griswold regarding appro- council priate floor area for retail and wholesale
stores. III. DISCUSSION hearings While being those were still con- A. Standard of Review ducted, Homer in voters March 2004 filed grant We summary review a of city with the petition clerk an initiative that judgment de questions novo.2 We decide the 66,000 "footprint square area" of presented of appeal law on grant from a feet for retail and wholesale business build- summary judgment by adopting "the rule of ings District, in the Central Business General persuasive law that is most light prece in District, Commercial 1 and General Commer- dent, reason, policy." and 12, 2004, cial 2 April District. city On 04-11(A), passed council Ordinance which set building 35,000 floor area square limits of B. The Initiative anWas Invalid Exer- District, 20,000 in feet the Central Business City's Legislative cise of the Au- 45,000 square to feet in the General Com- thority Bypassed Because It the Ho- District, 45,000 mercial 1 square and in feet Advisory Planning mer Commission. the General Commercial 2 District. On the argues Griswold zoning initiative day, response same peti- to the initiative is invalid for contends, several reasons. He tion, council scheduled an election on among things, other that the authori 15, the initiative for June 2004. The voters ty delegated requires of Homer approved the at the June 15 elec- pass only zoning ordinances that are con tion; the initiative became effective on June city's sistent with plan. 21, 2004 as Ordinance 04-18. city, citing Citizens Coalition Tort for Stating change that a code McAlpine,4 responds v. that the vot Reform "required sections was properly convey ers' right constitutional to enact initiatives voters," the will of the and an ordinance broadly should be permit construed to "necessary
was the will of the voters to amend laws. The con voters," February 2005 the tends that because council has the 05-02, enacted Ordinance adopting a maxi power ordinances, enact the voters 66,000 mum square floor area of feet for must have the power. same retail and buildings wholesale business three affected districts. Ordinance to initiate cannot exceed 04-11(A) 05-02 amended Ordinance to reflect legislate.5 To decide whether the text of the initiative. Ordinance 05-02 Homer voters could invoke (HCC) right 1. Homer constitutional to initiate is broad and Code 21.32.208. construed). liberally should be Ctr., 2. Municipality Alaska Action Inc. v. An- (Alaska 2004). chorage, 84 P.3d Frohne, Municipality 5. Anchorage v. (Alaska 1977) (citations omitted) ("[The 3. Id. subject of the initiative leg- must constitute such McAlpine, Coal. legislative Tort body Citizens islation as the to which it is for Reform (Alaska 1991) (stating P.2d 162 people's enact."). directed has the ..."8 Section .030 dance with AS 29.40.0380. zoning code City of Homer amend the cess to plan" as "a com "a of the describes the extent determine we must statements, goals, policy stan explicit pilation and zoning power and the council's dards, physical, city's maps guiding power. The and on that implicit limitations social, pri development, Alaska both from two sources: and economic zoning power flows platting, and first or second class planning, public, and providing vate statutes borough." governments, regulation local use land Borough del- ordinances Kenai Peninsula plan require "areawide" These statutes cities zoning powers to within egating comprehensive plan ning creation of a borough. develop systematic organized "for the statutory sources review the We first community, they implicitly ment" of the *4 29.40.010 re Alaska Statute power. planning of the recognize importance the boroughs to class quires first and second plan to comprehensive the commission and and land use "planning, platting, provide for regulating land use.10 the of 6 city If a areawide basis." regulation on an statutory re ordinance, has planning A commission by the borough consents a within drafting compre the sponsibilities beyond any of its assembly may delegate borough 29.40.020(b)(2), the plan. Per AS city.7 hensive powers to the regulation land use recommend, "review, 29.40.020(a) also that the commission must provides Alaska Statute necessary imple measures and administer planning a commis borough "shall establish 29.40.020(b) plan, including comprehensive the the ment provides and sion" AS 11 provided under AS 29.40.040." and sub measures prepare commission "shall planning of the "zoning regulations" are one plan in accor Because comprehensive mit a recommend, (2) review, administer and provides: 6. AS 29.40.010 implement compre- necessary the measures (a) borough shall A first or second class including provided plan, un- hensive measures regu- platting, planning, and land use vide for der AS 29.40.040. basis. lation on an areawide (b) by borough a consents ordi- If a provides: 29.40.030 AS nance, may by assembly ordinance dele- the powers under this gate (a) compilation and duties comprehensive plan of its a of The assembly may by standards, city. statements, chapter maps The policy goals, to the and ordinance, social, obtaining consent of without first guiding physical, and economic for the duty delegated city, any power public, revoke development, private the both and include, borough, under this section. and first or second class to, following: the but is not limited 29.40.010(b). 7. AS (1) goals, policies, and stan- statements dards; provides: 29.40.020 8. AS (2) a land use plan; (3) community plan; facilities a (a) borough class shall Each first and second (4) plan; transportation and a consisting planning commission establish a (5) implementation of for recommendations greater a number is re- five residents unless comprehensive plan. the by member- quired Commission ordinance. (b) planning the the recommendations of With apportioned number ship so that the shall be commission, adopt by assembly ordi- shall the rule and first class of members from home assembly plan. comprehensive a nance borough popu- proportion the cities reflects receiving the recommendations shall, after residing class home rule and first lation commission, periodically under- planning borough. A member shall in the cities located comprehensive take an overall review of mayor by borough a term appointed for necessary. update plan plan as years subject to confirmation of three assembly, except a from a home that member basis"); 29.40.010(a) ("areawide AS 10. AS selected from class shall be rule or first 29.40.020(a) planning ("borough shall establish by the submitted list of recommendations 29.40.020(b)(1) commission"); (requiring AS council.... prepare and submit planning commission (b) or- to the duties In addition prescribed sys- comprehensive plan ... "proposed dinance, planning commission shall organized development the bor- tematic and (1) assembly a prepare to the and submit ough"). plan proposed comprehensive in accordance orga- systematic for the with AS 29.40.030 29.40.020(b)(2). borough; development of the nized provided 29.40.040," "measures under AS codes." The same ordinance also .020(b)(2) requires subsection planning authorized a delegated zoning with this "review, recommend, commission to and ad to "exercise all powers within zoning regulations "necessary minister" powers to the extent that such have implement comprehensive plan." The granted been borough by statute." assembly by adopt ordinance "shall or The Kenai Borough Peninsula therefore dele provisions amend" land use "[iJn accordance gated regulate zoning to the a comprehensive plan" and "in order to City Homer, which requested implement comprehensiveplan." delegation. city, standing place of borough, was expressly obligated The statutes therefore require therefore zoning commission, that the to establish a planning commission have an active draft a creating role in comprehensive plan plan, comply with state "systematic organized" governing law develop local regula and land use ment, reviewing And, and recommending zoning tion. here, most relevant KPBC regulations, 21.01.020(B) and adopting measures "neces delegated sary "the to establish a planning commis plan." implicitly statutes recognize sion requests to hear all for amendments to that the planning plays impor commission an zoning codes." *5 part tant in the formation and amendment of The of Homer created the Homer regulations by local land use providing assis Advisory Commission, Planning in accor (or tance to borough city) the to ensure that dance with AS 29.40.020 and KPBC development proceeds in "systematic a 21.01.020.18 city charged The the commis organized" manner.15 holding sion with hearings preparing We now consider the second source of the city recommendations for the council when a city's power regulate to land use. The Kenai zoning amendment proposed.19 is In addi Borough, by ordinance, Peninsula delegated tion, may the cormission propose amend zoning power the willing to cities accept to ments to zoning the code.20 delegation, the delegated and also to those power cities to a planning establish commis- The council power also has the to propose sion "to hear all requests for zoning ordinances,21 amendments to amendments to 29.40.040(a)(1). (A) 12. AS city by If a resolution of the council re- quests assembly delegate power the the provide zoning regulation 29.40.040(a). within the provides AS AS 29.40.040 in city, assembly delegate the pertinent power. shall part: the cityA zoning authority to which the is (a) In plan accordance with a delegated may zoning powers exercise all adopted under AS 29.40.030 and in order to within the pow- to the extent that such plan, assembly by the the ordinance granted ers borough by have been to the adopt provisions governing shall or amend the statute, those reserved except powers occupancy include, may use and of land that borough by the Section 21.01.010. to, but are not limited (B) The delegated power the (1) zoning regulations restricting the use of planning establish a commission to hear all improvements by land and geographic dis- requests codes, amendments to tricts; or for variances, conditional use permits, (2) permit requirements land use designed rezoning[,] contract or to hear all other encourage discourage specified or uses and coming maiters under the ordi- construction structures, or to specified mini- by city.... nances enacted the mize unfavorable effects of uses and the con- added.) (Emphasis structures; struction of (3) goals objec- measures to further the 21.01.020(A). 17. KPBC comprehensive plan. tives the 1.76.010(a). 18. HCC 29.40.020(b)(1), (2); 29.40.040(d)(1). 14. AS AS 21.70.020(c)(1). 19. HCC 29.40.020(b)(1). 21.70.010(a)(2). 20. HCC Borough (KPBC) 16. Kenai Peninsula Code provides pertinent part: 21.01.020 21.70.010(a)(1). 21. HCC must determine meaning that we city contends presumably "any person," as does and statutes the Constitution "IwJhether any Homer resident. initiative use of the preempt A clear. statutes state The relevant But, initiative was because ordinances." power pos having the city, or a borough statewide, to initiate local, and not Homer, pass cannot City of by the sessed 29.26.100, from AS directly derived was here involving without zoning ordinance amend Alaska Constit 1 of the article section reviewing commission planning its And we conclude ution.28 consider includes review This ordinance.23 legislative scope exceeds initiative is consis proposed ing whether legislature granted A bor plan.24 tent council. eventually city council assembly or ough initiatives are city also contends the recommendations to follow choose not ordinari- procedures all "governed commission, the statutes but planning city council applicable to the enactment ly commission planning bypassing preclude argue that seems ordinances." altogether. required for hearing are and a notice because initiative, not an but city council ordinance 21.01.020(B) gives the Likewise, KPBC bypass cer- acceptable for initiatives it is planning to establish city council But as seen requirements. procedural tain requests for amend all to hear commission city's planning above, participation can provision This zoning codes.25 ments to required by process commission commission giving read as than borough is more legislature and initial consideration authority for primary requirement. procedural a mere just least, very At the zoning amendments. role commission's confirms the how provision in this case illustrate The facts to an amendments eliminates limits or even considering *6 adopted commission. planning was itself zoning code that role of existing the intended many spent plan planning commission with The accordance "[iln floor area appropriate considering the months in order and affected buildings in the limits for business plan....26 charged city council The zoning districts. by zoning reason that this "develop[ing] It is for standards with commission the City Council The Homer de- invalid. and wholesale addressing large initiative is retail for piecemeal cap pass "recommend[ing] a size power the not have and velopment" does giving development." at least without and wholesale large amendments retail for council, commission, city Advisory Planning end, Commission the Homer the To than a proposals and more the conducted to review a task foree opportunity and voters, Therefore, reviewed hearings. The commission recommendations. dozen make the views to consider obligation Large Structure no have from the who recommendations informed or be commission the Chamber planning Force and Impact Task Committee; re- Legislative Commerce initiative use the cannot by expertise, its light- improvements necessary commis planning the searched process to eliminate drainage, and landscaping, stormwater planning ing, use land in "areawide" sion's role traffic for developed standards and parking; potentially under and thus regulation, and The commis- analyses. impact economic "systematic and plan for mine the in found the standards development.27 explicitly applied local sion organized" and supra n. 10. 21.70.010(b). 27. See 22. HCC
23. AS 29.40.020. powers of initia- provides: "The 28. AS 29.26.100 the residents are reserved tive and referendum .040(a). .020(b)(2), 29.40.030(b), 24. AS powers do not ex- except municipalities, the 21.01.020(B). § 7 of the art. 25. KPBC matters restricted by tend to ' state constitution." 29.40.040(a). Comprehensive development goals
the Homer Plan in its deci- compre as stated the sion-making process. And before the initia- plan, suggest changes hensive and to other election, tive council considered the accompany proposed that should planning commission's recommendations and amendment.29 Even if a councilchooses code, adopting amended different disregard recommendations subject zoning floor area limitations commission, planning its decision has been approved districts. The voters then ini- by planning informed commission's con adopted single, greater, tiative and potential regula sideration of the social and limitation for all three districts before the tory proposed costs and benefits of the completed findings. commission its city's planning amendment. commis public hearings being merely Given the sion's role is "procedural," that were but is substantive. Homer voters therefore could opportunity public conducted and the de- bate, bypass logical using it the commission ini is to ask whether the voters had, effect, power. tiative same access as the council planning to the recommendations of the com- city argues that if an initiative fails to mission, and thus whether the initiative comply comprehensive plan, with the a court actually bypass planning cess did not post-enactment. could review it Because the required commission. The council was dispute consistency here turns not on recommendations, consider the commission's comprehensive plan, but on the involve- ultimately rejected even if it them. The ment of the commission in the collegial public body; council acts as a process, amendment we are unconvinced public
is a matter of record whether it ad- argument. dresses the commission's recommendations attempts to reconcile amend- city argues the ultimate issue comprehensive plan ments with the and state here is "whether the Alaska Constitution or borough That ordinances. is not at all statutes do or delegate do not an initiative election follows. zoning regulations exclusively enact to the Just as the council cannot choose to com- city argues couneil." The people's pletely ignore adopt- the recommendations in to enact measure initiative amendment, ing the voters cannot precluded if the constitution and statutes pass an which the commission's delegate exclusively to zone formal, play recommendations perhaps no city implies council. The that for Gris- *7 informal, even at role all. prevail wold to city we must find that the exclusively council power The has the simply commission does more than to zone. give disagree, hearings notice of We and public and allow the instead conclude that Gris- subject prevails to be heard on zoning by the of ordi wold because initiative nances. If a proposed, planning amendment is eliminates the commission's role analyze the impact specified commission's role is to both implied and in state statutes borough pow proposed changes ordinances.30 Even if the of the light city's in of the 29.40.040(a)(1)}; 29.40.020(b)(2). Tucson, 346, 1055, AS 157 Ariz. 757 P.2d 1059 Cf. of 21.01.020(B). KPBC (1988) ("The power part police to zone is of the State, power delegated by but the parties jurisdic 30. Both cite cases from other governmental greater subordinate unit has no reject approve zoning by tions that either power delegated."). than that which is Trans- e.g., initiative. See, Kaiser Hawaii Kai Dev. Co. v. supports express america the views we in this Honolulu, 480, City County & 70 Haw. Supreme case. In Transamerica the Arizona 244, (1989) (holding "[zJoning by P.2d that prior holding 'zoning Court adhered to a "that goal long initiative is inconsistent exempted process,' law is from initiative range comprehensive planning" and was not in prevent private usurping order to citizens from by legislature); tended see also Garvin v. Ninth governing body's delegated power and from Court, Judicial Dist. 118 Nev. circumventing hearing require the notice and (2002) (holding city that "[if] council can ments of the statute." Id. at 1058. The zoning legislation, county enact vot holding initiative"). Arizona court noted that its in the case only ers can do the same The harmony on which it relied scope cited case that was "in with the law deals with the of the dele gated power City is Transamerica Title Ins. Co. v. CARPENETI, Justice, dissenting. ultimately exclusively and to zone was er council, the initiative delegated to the Justice, BRYNER, participating. planning commission prevents process CARPENETTI, Justice, dissenting. recommenda exercising the review and from power gives the initiative voters Because it. clearly delegated to power tion subject ability legislate being without legisla- to other applicable the restrictions validity of Finally, consider the we bodies, procedur- that agree I cannot tive city argues that be 05-02. Ordinance applicable to the Homer requirements al adequately brief his failed to Griswold cause in- initiative that apply to voter Council 05-02, that to strike down Ordinance request Therefore, I re- ordinance. volves invalidated. not be ordinance should spectfully dissent. His preserved the issue below. Griswold pow- Homer reasons that voters' The court superior court to "enter asked the complaint is limited the Homer er to initiate en- initiative's] injunction preventing [the an legislate, and therefore Council's any other enforcement of forcement or the necessarily must follow the same voters as a result of adopted or enacted ordinance council. The court effec- cedures as Summary was judgment illegal action." this tively step that voters into the shoes holds that cause of of the on granted favor attempting initiate city council when laws, that involves enacted Ordi- an ordinance action before must be reviewed nance 05-02. therefore the voters planning commission before argues appeal on adequately Griswold I be- may pass it. There are four reasons not have enact- 05-02 would been Ordinance reasoning is flawed. lieve the court's of the initiative. passage but for ed First, importantly, under and most seem of Ordinance 05-02 "whereas" clauses and the Alaska Constitution Alaska Statutes only purpose of the to establish is intended to be sui the voter initiative of the the will ordinance was "to legislating that is not sub generis means of gives indication no voters." The regular procedures applicable to ject to the con- giving independent the council was grants lawmaking. 29.26.100 Alaska Statute commission's ree- sideration legisla initiate municipal voters the considering the or that it was ommendations powers initia provides that "[the tion. It light zoning amendment on its own merits reserved to the resi and referendum are tive conse- comprehensive plan. We are powers do municipalities, except the dents persuaded that because the quently by article restricted extend to matters invalid, only legislative purpose the state constitution." section absent; 05-02 is now Or- passing Ordinance limitations on the voters' There are no other is therefore also invalid. dinance 05-02 are relevant to initiate that exercising the initia
case. *8 fairly straight municipal level is tive at IV. CONCLUSION re initiative is first forward. A grant court's REVERSE We municipal clerk determine viewed requireme REMAND for certain substantive summary judgment that it meets sponsors must then initiative's nts.2 entry judgment for Griswold. certify application if the majority jurisdictions, which clerk shall [The of other in the vast and, prohibits zoning by proper at 1059. form for an initiative." Id. that it is in clerk finds that the matter initiative petition, provi- City 4.60.010 makes this 1. Homer Code 29.26.100; (1) by AS is not restricted City applicable of Homer. to elections sion (2) only single subject; includes provisions Statute 29.26 'The of Alaska It states: (3) legislative than to an to a rather relates relating and Referendum 2, Article to Initiative matter; and administrative fully chapter incorporated as if set into (4) of law. be as matter would enforceable out." 29.26.110(a) part: provides in relevant 2. AS
566
gather
requisite
signatures
number of
simplified process
elections,
for initiative
one
support
petition.3
Where both
generally subject
to the constraints im
met,
these conditions are
the initiative is to
posed
legislature.
on the
special
treat
4
major
be submitted to the voters
ment
process
afforded to the initiative
stems
ity vote favors the [initiated] ordinance or
from the fact that the initiative is a form of
resolution,
upon
becomes effective
certifi
democracy.
direct
Supreme
As the
Court of
election,
cation of the
unless a different effec
explained,
California has
original pro
"[t]he
provided
tive date is
in the ordinance or
ponents of the initiative and referendum
5 .Similarly,
resolution."
the Alaska Constitu
sought
give
ability
the electorate the
requires
tion
statewide initiatives be
govern directly by majority rule:
this was to
subject
to a
subject
technical and
matter
democracy
true
distinguished
be
as
representative
from
6
provides
review and
that an initiative will
cy."10
democra
That court has
majority
be enacted
"[}f
of the votes cast
also held that a right
importance
of such
7
proposition
on the
adoption...."
favor its
11
"jealouslyguard[ed]."
should be
The Alaska Constitution also makes clear
By importing requirements applicable to a
procedural
requirements
for enact
legislative body,
different
today
the court
ing an
proce
initiative are different from the
exactly
opposite.
does
approach
Its
applicable
regular
dures
legislative
only ignores the fact that initiative elections
process.
In
legislature
order for the state
apart
stand
legislative
from the traditional
bill,
pass a
go through
the bill must
at least
process, but also
ability
weakens voters'
readings
"three
sepa
each house on three
participate directly
in the affairs of the
days, except
may
rate
bill
be ad
they
in which
live. In
Wright12
Brooks v.
we
vanced from second
reading
to third
on the
stated that the constitutional framers "chose
day by
same
concurrence of three-fourths of
process
include the initiative
as a law
considering
approved
house
it" and
making
knowledge
tool with full
of the risks
"an affirmative
majority
vote of a
inherent
democracy."13
to direct
Today's
membership of each house."8 Unless the
ignores
decision
Brooks's wisdom.
governor
days
vetoes the bill within fifteen
passage,
after its
it will become law.9
Second, the court
leg
overlooks that
imposed
islature has
regular legis-
explicit subject
differences between the
matter
procedures
prohibitions
lative
municipal
on
state-
initiatives and has
wide initiatives demonstrate that the
declined
framers
to include
among those
of our constitution
separate,
prohibitions.
envisioned a
29.26.100,
Alaska Statute
I,
3. AS 29.26.130.
9.
§
Alaska
governor
Const. art.
17.
If the
veto,
exercises a
a bill
become law if the
legislature
governor's
pursu
overrides
veto
4. AS 29.26.170.
II,
requirements
ant to the
of article
section 16 of
the Alaska Constitution.
29.26.170(d).
Against
10.
Rent Control v.
Citizens
Berke
XI, §
6. See Alaska Const. art.
819,
ley,
826,
84,
Cal.Rptr.
Cal.3d
(1980),
P.2d
grounds,
rev'd on other
Citizens
7. Article
section 6 of the Alaska Constitution
Against
Housing
Rent
Fair
Control/Coalition for
provides:
290,
City Berkeley,
434,
454 U.S.
102 S.Ct.
(1981);
L.Ed.2d 492
see also McKee v.
majority
If a
proposi-
of the votes cast on the
Louisville,
200 Colo.
tion favor
its
the initiated measure
adoption,
(1980) (describing power of initiative as "a fun
majority
enacted.
If a
of the votes cast on the
right
very
representa
damental
at the
core of our
proposition
rejection
favor the
of an act re-
government").
tive
*9
rejected....
ferred,
it is
An initiated
law be-
certification,
ninety days
comes effective
after
763, 776,
County Napa,
11. DeVita v.
9 Cal .4th
veto,
subject
may
is not
repealed
to
not be
699,
Cal.Rptr.2d
(1995) (cita
38
567 they may believe is an ill-advised and ref what of initiative powers preserving suggested that In v. Dahl 18 law.17 Price in municipalities, to residents erendum challenged that article on the limitations could be an ordinance corporates 14 im Alaska Constitution 7 of the section it with the com grounds that is inconsistent That constitu powers. upon those poses "[blorough land use plan, stating, prehensive may that matters lists five section tional 'in accordance' with the regulations are to be (1) dedi initiative: subject of an Thus, I not be plan."19 believe comprehensive (3) (2) appropriations; cation of revenues; subject post- to a ordinance was initiated (4) courts; changing court creation of that it challenge grounds on the enactment (5) special or local or jurisdictions; rules or comply with Homer's failed to to legislature intended If the legislation.15 plan. initiative, easily by could prohibit conflicts prohibited Finally, court's decision zoning among have included did legislature holdings from other states that subject matters. That well-reasoned by Califor initiative. to have addressed and direct means simple this employ not sug definitivelyresolved the issue before strongly zoning by initiative nia has prohibit accomplish intend it did gests allowing zoning initia today in favor of us roundabout through the result Supreme Court suc- the same tive. As the California to it. today attributes the court means requirements "[pJrocedural cinetly explained, ... [City] gen action govern Council which pro Third, its decision the court bases initiatives, any more erally apply to do not on the concern zoning by initiative hibit gov law provisions of the initiative than the under by initiative would allowing zoning in council." of ordinances ern the enactment zoning.16 But mine 0 similarly Supreme Court 2 The Nevada ordinances, they are enacted whether could enact laws concluded that voters council, subject voters or process without follow through the initiative explained review. We post-enactment applicable to the ing procedures can parties "[cloncerned Brooks the same ordi- attempting to enact challenge to post-election substantive bring provides in full: of the Alaska Constitu- section XII, section 11 14. This Article prohibits catch-all restriction that tion creates a used to dedicate shall not be The initiative being it would be from used where the initiative revenues, repeal appropriations, cre- make or "clearly inapplicable," this court has in- which jurisdiction courts or courts, ate define applying only "even idiots terpreted where 55 as rules, special or prescribe or enact local their inap- subject agree" matter was that the would ap- legislation. shall not be The referendum Brooks, process. plicable to the initiative revenue, appropria- plied to dedications of However, (citation omitted). AS P.2d at 1028 legislation, laws or to to local or tions, incorporate prohibition, special does not 29.26.100 preservation necessary for the immediate "clearly inapplicable" restriction and thus the health, safety. public peace, or apply municipal elections. Opinion at 563. 16. subject only prohibited matter listed 15. The the initiative article XI into which at 1030. special legisla- 17. 971 P.2d potentially fall is "local or could all affected were Because the districts tion." (Alaska 1996). appears to have P.2d 541 18. 912 commercial and develop- promote commercial been intended 29.40.040(a), areas, (citing does not which I would hold it AS of those Id. at 542 ment adopted legislation. "in special See ordinances shall local vides that constitute or [comprehensive] plan"). (Alaska order to Engstrom, 456, 528 P.2d Boucher v. 1974) ("[Classifications based upon population where v. Liver differences] Builders, will be sustained Inc. or territorial 20. Assoc. Home City of 41, 582, more, Cal.Rptr. 557 P.2d upon difference of situation a rational 18 Cal.3d founded omitted); (citation 473, (1976) objects upon accord DeVita existing which it condition 763, Cal.Rptr.2d County Napa, 9 Cal.4th v. basis there is a reasonable rests, and where (1995) 1019, (allowing objects pur- 1037-38 889 P.2d in view of the the classification omitted), despite general plan (citations Napa's to amend accomplished.") poses to be county plan procedures comply with McAlpine grounds, failure other partially overruled on amendment). ning agency follow to enact 1988). must (Alaska Alaska, Univ. of *10 In special procedures nance.21 both cases
applied to the enactment of laws government bodies,
the local but the courts recognized
nevertheless subjecting voter procedures imper-
initiatives to those would
missibly powers. restrict the voters' initiative sum,
In process unique. the initiative is exercising power,
When munici-
pal voters do not simply step into the shoes legislative body they
of the bypassing, as today Instead,
the court assumes. voters in
an initiative participating election are in a
process separate regular from the
means legislating. used for Because the ini-
tiative separate is intended to be procedures
from the the Homer
Council must passing follow when a zoning
ordinance, the initiative ordinance in this subject
case should not be to review Advisory Planning
Homer Commission. I
would hold that the initiated ordinance does subject
not violate matter restric- imposed by
tions article section 7 of the (and
Alaska Constitution applicable made
municipal through elections AS 29.26.100 and
to elections through Homer HCC
4.60.010), I therefore would affirm the grant summary judgment court's of Homer. EDENSHAW, Plaintiff,
Gerald
SAFEWAY, INC.; Quality Carr's
Center; Safeway Food Drug,
& Defendants.
No. S-12583.
Supreme Court of Alaska.
July3,2008. Ellis, Offices,
Peter R. Inc., Ellis Law Ket- chikan, McGee, Juneau, and Jack B. Plaintiff. (2002). Garvin v. Dist. Court, 118 Nev.