Posted by: Patricia Salkin | November 20, 2018

AK Supreme Court Holds Trial Court’s Dismissal for Lack of Standing Violated Property Owner’s Due Process Rights

This post was authored by Matthew Loeser, Esq.

In 2014, the Homer Advisory Planning Commission approved a conditional use permit allowing “more than one building containing a permitted principal use” on Lot 1-A-1 Subdivision No. 5 in the Central Business District in Homer. Frank Griswold, a resident of Homer and an owner of several lots in the area, appealed the Commission’s decision to the Homer Board of Adjustment. The Board issued a decision affirming the Commission’s decision in part: rejecting two findings for insufficient evidence and remanding for consideration of additional evidence. On remand, the Commission approved the conditional use permit again. In 2015, the Board affirmed the Commission’s decision, and Griswold appealed to the superior court. The superior court then sua sponte dismissed the appeal for lack of standing by Griswold.

On appeal, Griswold contended that his due process rights were violated by the superior court’s sua sponte dismissal for lack of standing. Specifically, Griswold argued that he asserted standing in his notices of appeal to the Board based on several lots he owned “within one block of the subject property,” including one lot within 300 feet, and based upon his belief that the uses approved via the conditional use permit would create congestion, visual blight, and leaching/migration of sewage and other contaminates that would adversely affect the general character of the neighborhood and the value of his real property. The court found that after Griswold addressed the standing criteria in his notices of appeal, and the city clerk found those notices compliant with the applicable statutory requirement, he had no reason to believe that standing was at issue, as it was never challenged. Furthermore, since no party 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, the court held that his due process rights were violated. Accordingly, the case was reversed and remanded for the superior court to hear Griswold’s appeal on the merits.

Griswold v Homer Board of Adjustment, 426 P. 3d 1044 (AK 9/14/2018)


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