Following the enactment of an ordinance by the City Council limiting the floor area of stores in certain zoning districts to between 20,000 and 45,500 square feet, residents passed an initiative increasing the area to 66,000 square feet in these districts. Finding that the zoning initiative impermissibly bypassed the Planning Commission, the Court held that the City Council exceeded its own legislative power when it amended the zoning to enact the language of the initiative passed by the voters, and that therefor the initiative was invalid.
Noting that “the power to initiate cannot exceed the power to legislate,” the Court turned to the state enabling statutes and local ordinances that govern the powers of and limitations on the city council to adopt and amend zoning. Considering state statutes first, the Court concluded that since AS 29.40.020(a) requires the establishment of a planning commission and AS 29.40.020(b) requires that the planning commission prepare and submit a comprehensive plan in accordance with the AS 29.40.030, these statutes “implicitly recognize the importance of the planning commission and the comprehensive plan to the process of regulating land use.” The Court next noted that the statutes require the planning commission to review, recommend and administer zoning regulations necessary to implement the comprehensive plan (see, AS 29.40.020(b)(2)), expressly mandating an active role for the planning commission in the formation and amendment of local land use regulations. Turning to the Kenai Peninsula Borough ordinance that delegates zoning power to cities willing to accept the delegation, the Court noted that the Borough also delegated to those cities the power to establish a planning commission “to hear all requests for amendments to zoning codes.” (See, KPBC 21.01.020). Further, the Court noted that the City of Homer created a Advisory Planning Commission in accordance with the state statute and the borough code, and the City empowered the Commission with, among other things, holding hearings and making recommendations for the city council when a zoning amendment is proposed.
The Court concluded that a borough or city having the power possessed by Homer “cannot pass or amend a zoning ordinance without involving its planning commission in reviewing that ordinance.” Although the city council may eventually choose to not follow the advice of the planning commission, they may not bypass the planning commission altogether. The Court stated, “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 this potentially undermine the comprehensive plan for ‘systematic and organized’ local development.” Further, the Court noted, “Just as the council cannot choose to completely ignore the recommendations in adopting a zoning amendment, the voters cannot pass an initiative in which the commission’s recommendations play no formal, or perhaps even informal, role at all.” Lastly, the Court commented that the state constitutional provision on initiative and referendum (Art. XI, sec. I) does not apply because the initiative was local and not statewide. In this instance the power to initiate was directly derived from AS 29.26.100.
Griswold v. City of Homer, 2008 WL 2469173 (AK 6/20/2008 )
The opinion can be accessed at: http://www.state.ak.us/courts/ops/sp-6276.pdf
Special thanks to Gordon Tans at Perkins Coie for bringing this case to my attention: http://www.perkinscoie.com/gtans
As well as Nicholas Spiropoulos, Borough Attorney for Matanuska-Susitna Region
