34 P.3d 1280 | Alaska | 2001
I,. INTRODUCTION
Frank S. Griswold challenges a city ordinance permitting automobile-related uses in Homer's central business district. Griswold alleges that the ordinance amounts to spot zoning, that proper procedures were not followed in passing the ordinance, and that disqualifying conflicts of interest exist,. The superior court dismissed all of Griswold's claims on summary judgment. Because Griswold has failed to establish a material difference between this case and our decision in Griswold v. City of Homer (Griswold I),
II. FACTS AND PROCEEDINGS
The Homer Zoning Ordinance, originally enacted in 1983 and amended in 1989, disallowed car lots and automobile-related services throughout Homer's central business district (CBD).
A. Ordinance 92-18-Griswold I
In 1990 local businessman Guy Rosi, Sr. requested that the Homer City Council amend the zoning laws to permit automobile-related activities in the CBD. In 1991 he alternatively requested that his lot be rezoned to permit automobile sales and related services. Rosi operated an automotive repair business within the CBD that was a grandfathered nonconforming use, while the automobile sales business that he had previously operated on the same lot was not permitted because it had been discontinued for more than one year.
After public hearings regarding automobile-related services in the CBD and a favorable recommendation from the planning commission, the city council adopted Ordinance 92-18, which amended the city code to allow certain automobile-related businesses in a thirteen-lot section of the CBD that included Rosi's property. It added the following as a permitted use:
hh. Automobile and vehicle repair, vehicle maintenance, public garage, and motor vehicle sales, showrooms and sales lots, but only on Main Street from Pioneer Avenue to the Homer Bypass Road, excluding corner lots with frontage on Pioneer Avenue or the Homer Bypass Road, be allowed as a permitted use.
The city council voted unanimously to pass the ordinance. One participating council member, Brian Sweiven, owned one of the thirteen lots covered by the amendment.
Frank Griswold lives in the CBD and owns an automobile repair business there that has been grandfathered as a nonconforming use. Griswold challenged the validity of the ordinance, claiming that a conflict of interest existed with regard to Sweiven and that the ordinance amounted to illegal spot zoning for the benefit of landowner Rosi. After a bench trial, the superior court rejected Griswold's claims, and an appeal followed.
In Griswold I,
The superior court entered judgment declaring the ordinance invalid on July 27, 1997. In response, the city council officially repealed Ordinance 92-18 via Ordinance 97-10.
B. Ordinance 98-9(A)
In November 1997 a new ordinance proposing changes to the zoning laws identical to those contained in Ordinance 92-18 was introduced to the city council to address the "same public welfare issues and concerns" as the invalidated ordinance.
The planning commission held a public hearing on the proposed ordinance on March 18, 1998, and returned the proposed ordinance to the council with a recommendation that it not be adopted.
The city council gave Ordinance 98-9 a first reading at its May 11, 1998 meeting. The council then held its own public hearing on the proposed ordinance. At a second reading, on June 22, 1998, the city council amended the proposed ordinance to require that visibility screening fences be erected around any automobile parts, automobiles in disrepair, or automobiles awaiting repair or customer pickup. The amended proposal was renamed Ordinance 98-9(A).
The first sentence of the amendment in Ordinance 98-9(A) is almost identical to the complete language of the amendment in Ordinance 92-18.
Vehicles awaiting repair or service; inoperable vehicles; vehicles for parts, and vehicles awaiting customer pickup shall be parked inside a fenced enclosure so as to be concealed from view, on all sides. The fence shall be a minimum height of 8 and *so constructed to prohibit visibility of anything inside of the enclosure. The portion of any vehicle exceeding 8' in height shall be permitted to be visible outside of the fence. Vehicle parts (usable or unusable), vehicle service supplies, and any other debris created in the repair or servicing of vehicles shall also be stored inside the fenced enclosure out of view of the public.
The city council passed Ordinance 98-9(4) at the same meeting at which it was amended.
Griswold filed this suit in superior court to have Ordinance 98-9(A) declared invalid. He argued that the ordinance amounts to illegal spot zoning because, in part, it was enacted as the result of prejudice and arbitrary decision-making, has no legitimate public purpose, and does not comply with the comprehensive plan for the city of Homer. He also alleged that two council members had a disqualifying conflict of interest and should not have participated in discussions nor voted on the ordinance. Finally, he argued that amending the ordinance after the public hearing and consideration by the planning commission violated procedural requirements.
On November 29, 1999, the superior court granted partial summary judgment to the city on Griswold's procedural and spot zoning claims, leaving only Griswold's conflict of interest claims. The court ruled that the spot zoning claims were precluded by this court's decision in Griswold I, and that the procedural claims should be dismissed because the amendments did not so alter the ordinance as to require resubmission to the planning commission. On January 28, 2000, the court granted summary judgment against Griswold on the conflict of interest issue because his claim, even accepted as true, did not amount to a conflict of interest. Final judgment against Griswold was entered on February 25, 2000.
III. STANDARD OF REVIEW
"The applicability of collateral estop-pel to a particular set of facts is a question of law.
We use our independent judgment to review grants of summary judgment.
IV. DISCUSSION
A. The Superior Court Properly Dismissed Griswold's Spot Zoning Claims on Summary Judgment.
The superior court granted the city's request for summary judgment on Griswold's claim that Ordinance 98-9(A) amounted to impermissible spot zoning. The superior court found that Griswold's claims were satisfactorily determined in @Griswold I and should not be relitigated.
The doctrine of collateral estoppel, also called issue preclusion, "bars relit-igation, even in an action on a different claim, of all issues of fact or law that were actually litigated and necessarily decided in a prior proceeding."
Griswold contends that collateral estoppel does not apply to his claims in this case for three reasons: (1) the issues here are not identical to those in Griswold I, (2) there was no final judgment averse to his position in the previous case, and (8) the cireumstances surrounding the zoning decision have changed so significantly as to permit relit-igation of the issues.
However, we need not reach the question of whether the issues are "identical" as required by collateral estoppel in order to affirm the decision of the superior court. Even if his claim is not precluded, Griswold must show that this case is not settled by the application of Griswold I as controlling legal precedent. Whether there are factual differences that avoid the preclusive effect of Gris-wold I or whether there are material differences that avoid application of the legal rule of Griswold I on summary judgment are two
In Griswold I, we considered the inclusion of automobile-related businesses in Homer's CBD under three aspects of a spot zoning claim. We noted that "it is the role of elected representatives rather than the courts to decide whether a particular statute or ordinance is a wise one."
[the party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification.20
In light of this standard, we concluded that sufficient public policy reasons existed to conclude that Ordinance 92-18 did not amount to spot zoning.
Specifically, we held that, first, the amendment could be understood as consistent with the comprehensive plan's intent to limit the CBD to commercial and business activities.
Griswold's claims do not present changes significant enough to avoid application of the precedent established in Griswold I. Gris-wold claims that land use in the CBD has changed so significantly that the decision in Griswold I does not apply. However, reconsideration of a previous zoning decision generally requires either that other zoning classifications in the area have changed or use has changed to the point that the character of the area is completely different.
Griswold also alleges that the fencing requirement added to the amendment makes the issue in this case different. We have recognized the "classic" definition of spot zoning as "the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners."
Finally, Griswold argues that the fact that the planning commission gave its approval to the amendment in Griswold I, but did not do so here, is a relevant change. However, the city council is not bound in any way by the planning commission's recommendation. Therefore, whether the planning commission approved of the change does not create a material difference in the question whether the challenged amendment was spot zoning.
Griswold fails to present a material difference between this case and the clearly established legal precedent of Griswold I. As a result, our holding that such an ordinance has sufficient public policy basis for legitima
B. The Superior Court Properly Found that Ordinance 98-9(A) Did Not Require Review by the Planning Commission Subsequent to Amendment.
Griswold argues that the ordinance should have been resubmitted to the planning commission after it was amended by adding the fencing requirement. The superi- or court found that the change did not sufficiently alter the substance of the ordinance to require resubmission.
The Homer City Code specifically outlines the procedures to be followed by the city council in amending zoning ordinances.
In similar cireumstances, we have held that amended ordinances must be resubmitted only if the amendment results in a material change to the subject covered by the ordinance. In Liberati v. Bristol Bay Borough,"
Similarly, in Jefferson v. City of Anchorage,
Griswold argues that changes to a zoning ordinance are different because of the requirement that such changes be submitted to a planning commission. He relies upon cases from other jurisdictions to support this difference. For example, in Colorado Leisure Products, Inc. v. Johnson,
Similarly, in Maricopa County Board of Supervisors v. Bell 51st Investors,
The city distinguishes these cases on the ground that the amended ordinance involved additional land that was not covered by the original. The city points to another Arizona case in which an appellate court noted that the requirement of resubmission to a zoning commission after amendment is not absolute.
The amendment inserted in the current case is both minor and of a more restrictive nature than the original proposal. It does not alter the subject matter of the ordinance, and it does not alter the amount of land affected or the permitted use classification. It merely provides a condition upon a certain form of use. In addition, the amendment has the effect of narrowing the zoning change. The city is correct that requiring resubmission after minor, narrowing changes like the one involved in this case would so encumber the process as to discourage effective and proper amendment by the council.
In addition, as we noted in Liberati
C. No Actionable Conflict of Interest Exists with Regard to Council Member Waddell.
Griswold argues that council member Al Waddell should not have participated in the consideration or vote on Ordinance 98 9(A) because of a conflict of interest. The superior court granted the city's motion for summary judgment on this claim.
Alaska state law directs municipalities to adopt a conflict of interest ordinance that
Griswold argues that there are two grounds on which Waddell has a substantial financial interest in the passage of Ordinance 98-9(A). First, he claims that Waddell intends to initiate automobile-related businesses on property that he owns within the CBD, but not in the area covered by the ordinance. Griswold argues that the present ordinance is a significant "step" toward allowing automobile sales on Waddell's property. Second, Griswold argues that a conflict exists because Waddell operates a snow removal business which uses sand stored on Rosi's property. However, the sand is owned by another man, Paul Hodgson, and Waddell has agreed to add salt to Hodgon's sand pile in exchange for use of the sand in his snow removal service. There is no direct business relationship between Waddell and Rosi.
We have found a substantial financial interest where members of a governing board had a "narrow and specific interest" in the immediate subject of a regulation. In Carney v. State, Board of Fisheries,
Similarly, in Griswold I, we found a conflict of interest with regard to council member Brian Sweiven, who owned one of the thirteen lots in the area affected by the ordinance.
Council member Waddell's situation is distinguishable from these cases. Viewing Gris-wold's allegations in the light most favorable to Griswold, they do not rise to the level of creating a violation. Under Griswold's own version of the facts, Waddell does not own any property in the area affected by Ordinance 98-9(A) nor does he participate in any business operations that are directly benefit-ted by the ordinance. Therefore, Waddell does not have a direct connection to the subject matter of Ordinance 98-9(A); at best, his connections are attenuated.
We hold that the benefit created by such an attenuated connection is too speculative to amount to a disqualifying conflict of interest. Griswold's allegations fail to indicate how the amended ordinance would provide any direct benefit to Waddell without requiring an intervening step or additional council action. This means that Waddell does not have a "narrow and specific" interest in the subject matter of this regulation in the same way as the fisheries board members in Carney or council member Sweiven in Griswold I.
V. CONCLUSION
Without reaching the question whether collateral estoppel was properly applied in this case, we hold that Griswold has failed to show that the cireumstances in this case are materially different so as to avoid application of the controlling legal rule in Griswold I. We also hold that the superior court correctly found that the Homer City Council followed proper procedures in passing Ordinance 98-9(A). Finally, the superior court properly found that council member Waddell would not have a disqualifying conflict of interest even if all of Griswold's allegations are assumed to be true. As a result, we AFFIRM the decision of the superior court in full.
. 925 P.2d 1015 (Alaska 1996).
. See id. at 1017. 2
. See HCC 21.64.010.
. 925 P.2d 1015 (Alaska 1996).
. See id. at 1020-25.
. See id. at 1027.
. See id. at 1030.
. Council member Sweiven, whose conflict of interest led to the invalidation of the ordinance in Griswold I, was not on the city council at this time.
. Ordinance 92-18 refers to Alaska Highway 1 as "the Homer Bypass Road," whereas Ordinance 98-9(A) refers to the highway as "the Sterling Highway."
. Although Griswold lists his complaints about the council's improper purpose as four different issues in this appeal (improper motive, primary purpose to assist Rosi, spot zoning, and no legitimate public purpose), his charges all revolve around the requirements for a claim of spot zoning. Since each of those four issues was also considered in Griswold I and may be precluded by that decision, they will be considered together for purposes of this appeal.
. Griswold's initial complaint claimed that both Waddell and Council Member Dennis Leach had disqualifying conflicts of interest, but he does not raise the argument with respect to Leach in this appeal.
. Chilton-Wren v. Olds, 1 P.3d 693, 696 (Alaska 2000).
. Id.
. See DeNardo v. GCI Communication Corp., 983 P.2d 1288, 1289 (Alaska 1999).
. at 1289-90 (quoting Baxley v. State, 958 P.2d 422, 428 (Alaska 1998)).
. See id. at 1290.
. Campion v. State, 876 P.2d 1096, 1098 (Alaska 1994) (internal quotation marks omitted).
. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 LEd.2d 552 (1979).
. Griswold I, 925 P.2d 1015, 1019 (Alaska 1996).
. Id. (quoting Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).
. See id. at 1021.
. See id. at 1023-24.
. See id. at 1024-25.
. See Burke v. Village of Glenview, 257 Ill.App.3d 63, 195 Ill.Dec. 1, 628 NE.2d 465, 469 (1993); 4 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning § 48.06 (West 4th ed.1997).
. Griswold I, 925 P.2d at 1020 (interior quotation marks omitted).
. The code is in accord with state statutes, which require that such zoning changes be made by ordinance and outline how an ordinance should be passed. See AS 29.25.010; AS 29.25.020.
. HCC 21.70.020 provides: Amendment Procedure.
a. Any valid request by an individual to initiate a zoning ordinance amendment shall be submitted to the City Manager.
b. Zoning amendments requested by the City Council shall be introduced at any regular or special meeting of the Council.
c. In each instance, the City Manager shall immediately forward the request to the City Planning Director. The Planning Director shall arrange notice and schedule public hearings as follows:
1. A public hearing shall be held by the Homer Advisory Planning Commission on the proposed amendment in accordance with Chapter 21.69 of this title. After the public hearing, the Homer Advisory Planning Commission shall send its written recommendations to the City Council along with all certified copies of minutes and public records relating to the proposed amendment.
2. The City Council, in accordance with ordinance enactment procedures of the Homer City Code, may or may not adopt the amendment as a City ordinance.
. 584 P.2d 1115 (Alaska 1978).
. Id. at 1119.
. 513 P.2d 1099 (Alaska 1973).
. Id. at 1100.
. Id. at 1102.
. 187 Colo. 443, 532 P.2d 742 (1975).
. Id. at 745.
. 108 Ariz. 261, 495 P.2d 1315 (1972).
. Id. at 1318.
. Summit Properties, Inc. v. Wilson, 26 Ariz.App. 550, 550 P.2d 104, 109 (1976).
. Id.
. See, eg., Westland West Community Ass'n v. Knox County, 948 S.W.2d 281, 283 (Tenn.1997) ("If the revision is inconsequential and would not have altered the [regional planning commission]'s recommendation, resubmission is not mandated.").
. See Liberati, 584 P.2d 1115, 1119 (Alaska 1978).
. AS 29.25.020(b)(6); see also HCC 01.08.020.
. AS 29.20.010.
. HCC 01.12.010.
. See HCC 01.12.040.
. See HCC 01.12.050.
. 785 P.2d 544 (Alaska 1990).
. See id. at 548.
. See id.
. Griswold I, 925 P.2d 1015, 1025, 1027 (Alaska 1996).
. See id. at 1026-27.