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HomeMy WebLinkAboutSubmittal-Javier Avino-Information PacketAndres Rivero From: Lorena Ramos <lorenaneighbor@gmail.com> Sent: Monday, October 17, 2022 11:34 AM Submitted into the pub 'c l, D To: Andres Rivero; Javier F. Avino record f Subject: Fwd: Minutes from the October 10/11/22 meeting on Attachments: 257 259 NW 39 ST T3-O.pdf, 257NW39StT3-O.pdf City Clerk Meeting Minutes of 10/11/22. "Without a struggle, there can be no progress." Frederick Douglass Buena Vista Stakeholders Corp. Lorena Ramos, Founder and Board Member (305) 213-3747 www.buenavistastakeholders.com lorenaneighbor(a email.com ---------- Forwarded message --------- From: Buena Vista Stakeholders <blasts(@buenavistastakeholders.com> Date: Mon, Oct 17, 2022 at 11:30 AM Subject: Minutes from the October 10/11/22 meeting To: Buena Vista Stakeholders <lorenaneihbor(a email.com> Buena Vista Stakeholders Minutes from the October 10/11/22 meeting Hi, Everyone! It was our first in -person meeting since the pandemic, and it was a success! So many of you came out to voice your concerns, opinions, suggestions. We began with our gracious hosts William and Rosalin Ramos, who welcomed everyone to their home. Lead attorney Javier Avino and his colleague Andres Rivero were the attorneys representing the applicant/property owner, whose properties are located at 39, 40, 48 NW 39 Street. Javier Avino explained the need to request from the city of Miami a change in zoning. The two -floor townhomes/duplex (please see pic - white structure) is not allowed in a T3-L zoning designation. T3-L designation allows a single-family home and an ancillary/granny flat in the back. Therefore, they have to request a step up in zoning to T4-L, in order to build the type of duplex they're envisioning. A T4-L I�A 5\1� - � � C�� - �� (M) � � f k V )l A A� i 133 � Submitted into the u is�� rQ� reco=rem(s)�1City Clerk zoning designation allows for low density commercial uses. In addition, Javier Avino indicated they would submit what's called a covenant (an agreement with the city) that they can only build a 2-floor townhome/duplex, and no commercial. The covenant would restrict the applicant/owner to T3-L uses only. Business owner Henrik asked if the applicant is allowed a T4-L zoning, would that not make it better for the homeowners on NW 39 Street, since the homeowners could also request a step up in zoning and, in turn, their properties would be more valuable? Ulysee stated that the residents are on fixed income, and they would not be able to afford the taxes and would need to move out. Ulysee also stated that a covenant can be broken by the Owner of these lots at hearing before the city commission. And if the covenant is removed by the commission, then the applicant's property has now a T4-L zoning, and instead of building the 2-floor duplex, an office building could be built in its place. introduced several pieces of documents for several properties, which showed 2-floor townhomes/duplexes that have been built throughout our neighborhood, and they all carry a T3-0 zoning, maintaining the residential use without having the change in zoning. Not one had a change in zoning. (please see pic of brown/black townhome and its property Other comments were from Rosa, who asked for the town homes/d u plexes to be fashioned after the homes in our neighborhood, not as contemporary as they are while Alex stated he liked the new design rather than the same townhome design and color that have been built in our neighborhood. Carmen Ramos Watson made the statement that there's a lack of trust that exists when it comes to homeowners being able to rely on covenants offered by developers. The meeting ended with Javier Avino thanking everyone for giving them the opportunity to speak with us. And that he would look into the T3-0 designation, and how that could be achieved. Their application goes before the Planning, zoning and appeals board on December 21, 2022, at 6:30 p.m. Delivered by HOA Express I Privacy Submitted into the lWord f m(s) � r i p blic , on Z' City Clerk Buena Vista Heights Neighborhood Association & gUena Vista Stakeholders sign -in sheet October 11, 2022 6 p.m. community meeting Name (Nombre Non) L , �� se�c Submitted into the lie record or i ern Z. 'n 5 i_ City Clerk Address (direccion, adres) 4 L12 3 U Aix) VrI r n .� . 39 s,,,7 -d L i S/& Nw L Ao-c- 6l�Ys A. Ge,,,a fa. f G Y N_Lt_,� q I' a: HIV. W . 3 j',5T 3 P ,!r .0 ,'.sue _, 6J ,J. c� � S -9 -1,-:e r six,- 10 "z P 50_Z3 IIry If, Submitted into the public -p mord r i em(s) QZ, 4 � i Z.5 BUena Vista Heights Neighborhood Association & city clerk Buena Vista Stakeholders sign -in sheet October 11, 2022 Name (Nombre, Non) 61 S A� 6 p.m. community meeting Address (direction, adres) 121 %4 , Afw�1t� 30110 AW ! 5raVQ- Submitted into the public record f r it m(s) Y Z. 4P on 1 I City Clerk Buena Vista Stakeholders Where we reside, work and play City of Miami City Hall 3500 Pan American Drive Miami, FL 33133 February 23, 2023 Re: Items PZ.5 and PZ.6 To the Commissioner of our District, Honorable Chairwoman Christine King, and the Honorable Commission Board Members, we ask that you approve the recommended T3-0 zoning and its companion FLUM request and deny the request for T4-L. Buena Vista Stakeholders and Buena Vista Heights Neighborhood Association worked together with the goal in mind to keep the three lots residential and not allow commercial to encroach further into NW 39 Street. We also have an applicant who has agreed to the recommended T3-0 rezoning and FLUM designation, thereby keeping the three lots residential. The T3-0 designation keeps the same footprint as our existing T3-L designation, but allows a duplex to be built instead. Buena Vista Stakeholders and Buena Vista Heights Neighborhood had the opportunity to hold a community meeting on 10111122. It was well attended by the immediate neighbors and the applicant's attorneys made a presentation and we had a robust Q & A. Submitted into the public , record f�r it m(s) Z, °" ' 2 City t-Iierk We also attended the PZAB meeting of January 18, 2023, where the PZAB, by a majority vote, recommended the T3-0 designation for both the zoning and FLUM change to T3-0. Buena Vista Stakeholders, again, asks that you approve the T3-0 designation in our neighborhood, which will serve as a ceiling for any future development within our T34 residentially -zoned community. Sincerely, Lorena Ramos Chairperson 305-213-3747 Submitted into the pblic record for i em(s) =Zr ft. ej Andr6s Rivero on City Clerk From: bvvparking@gmail.com Sent: Tuesday, May 9, 2023 6:06 PM To: district5@miamigov.com; yharrell@miamigov.com; Andres Rivero; Javier F. Avin6 Cc: Cu@investcapital.us Subject: City of Miami Hearing CAUTION: This message is from an EXTERNAL sender. Do not click on links or open attachments from senders you do not trust or emails you are not expecting. Attn: Commissioner's Office and Staff My name is Frantz Eloi and residing at (68 NW 39 Street). As I have stated before in previous hearings, I am in agreement with Developer (Gabriel Amiel) development for 39 street NW between North Miami Avenue and 11 avenue. I have also spoken to my neighbors on the east of my house (Trenise Turner 56 NW 39 Street) and (Dieuseul Norelus 55 NW 39 Street) across the street and both residents are also in agreement with Developer (Gabriel Amiel) development for 39 Street. Please feel free to call Trenise Turner, her phone number is 786 624-7424 and also please feel to call Dieuseul Norelus phone number is 305 576-2264. Sincerely, �xw�rtlg. Cr-, President/CEO LYM Buena Vista Valet Parking P.O. Box 3 7044 7 305 417-1614 Miami, Florida. 33127 bvvparkinq@amail.com https://d esiand istrictvaletparkin a. com CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you. CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, BVPA and associates are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment. -Submitted into them4LL Buena Vista / Design District Zoning Map record r i Z (S) - , ! -' - ��, - _ _ _ _ _ _ _ City Clerk �.�._- � �I + NW 461h St NW 4Gth St ~ - _'L �- L_ _L L �L 1, �� NE46th5t L]_3 +►JJ •J-) a �� I .J.J_t ' ` _ i'fo if LL 1 L c t t . NW 45th St y n . J - L L L L ti LL Lzt- L C. -,A I 321 J }•I 1 1't1 _l ;.t I,J I _-J NW 45tfi St NE 45th St NE 45th � r Jr 1 i f1 r (�? `4''�� L l,.'I IJJ I r _ . ''j f i NW46thSt t ,J - i LL '- C.L1~�''L� �- LLB- J d J .J_'t ' 1 �I r I ly . 1 I , _ 1 i- 1 —'� �- ' _ NE 44th $t l :� .I )1 1 j1: ! 1_) .y rt _! 1 '1 1'r t r ' NW 44th St NW Ord St 1 t t � — �t_Ti_�_I. r� �t��y�T � L L �L t`_}t t'_t•I'y .t� 1 ) - L j ! j 1 •t: j- I .1j) ,1 ,1 I I - - NE 43rd St z NW 42nd St ' - f `` ' 1 I t NW 42nd St ' I 1 i i _ L L f �_ I f Sk. , [ ` . T�-0 1 _I� t.'�1 �� �, �•1.!`rt ti tilvl I i L I i �I I {4 — —) TVD NWklstSs _ NW 41st 5t " ' 1.1 � a l-1' � 1' T�a.a i.i _i � -I I 1 ��•' � � _ ';: r�C I _ � I, 1 � ��` fir f Z m w 4t th 4 ' NW 40th St NE CL n-o z NW39th5t PiF sY,l -71 '."t Ezpy a MIAMI 10501251.1 100297/302072 5/5/2023 5:22 PM ' _ �j . I �l I -, , r � llli(..�Ii L1 o I I .......�� t+2-0 Z re-12-0 z Julia Tu Sewa r �-. Submitted into the public Q Map of Existing Multifamily Properties record or tem(s) on NW 39th Street (between Miami Avenue and NW 2"d Avenue) 5 �� City Clerk NN 10.S1 MY adTS L L: j 1) � 2 L L 1 Lam- 8 7 6 5 4 ® LJ L L- �i F1 1] R10 • = Proposed Townhouses # Multifamily Property (keyed to photos) MIAMI 10501251.1 100297/302072 5/5/2023 5:22 PM Submitted into the public record fA r itf m(s) on 6 1 1 B . City Clerk -,w 4 AV" IL 1. 101 NW 391h Street: 3-unit triplex 2. 165 NW 391h Street: 8-unit apartment building MIAMI 10501252.1 100297/302072 5/5/2023 5:23 PM 9tibmitted Into the public NE!6!fd� r o1i City Clerk I� IEltIli I1P . T ' 3. 171-173 NW 391h Street: 2-unit duplex ,���,`�C\`�t 4. 227-231 NW 391h Street: 2-unit townhouse duplex MIAMI 10501252.1 100297/302072 5/5/2023 5:23 PM Submitted into the public record Tfr it (s) Q on I City Clerk AM e S. 235 NW Wh Street: 3-unit triplex 6. 253-255 NW 391" Street: 2-unit townhouse duplex 7. 257-259 NW 391" Street: 2-unit duplex MIAMI 10501252.1 100297/302072 5/5/2023 5:23 PM Submitted into the ublic record fiaem,,, Z. Q2, on 5 j City Clerk 8. 285 NW 391 Street: 2-unit duplex 9. 280-282 NW 39"' Street: 2-unit duplex MIAMI 10501252.1 100297/302072 5/5/2023 5:23 PM Submitted into the Public record rr i em(s) Z i, Q on City Clerk 10. 286-288 NW 391h Street: 2-unit duplex 11. 296 NW 39th Street: 2-unit duplex MIAMI 10501252.1 100297/302072 5/5/2023 5:23 PM SubHiF ip bli pp rec on City Clerk © Town of Juno Beach v. McLeod, 832 So. 2d 864 (Fla. 4th DCA 2002), Court Opinion Printed By: CMARKOVICH on Tue, 21 Mar 2023 13:57:04 -0400 0 Town of Juno Beach v. McLeod, 832 So. 2d 864 (Fla. 4th DCA 2002), Court Opinion Pagination * So.2d Majority Opinion > Submitted into the Public recordipr i (s) :Uti� on � ' ` City Clerk District Court of Appeal of Florida, Fourth District Town of Juno Beach, a Florida municipal corporation, Petitioner, V. T. Bragg McLeod, Respondent. No. 4D02-624 . Nov. 20, 2002. Rehearing Denied Jan. 15, 2003. Gregory S. Kino and W. Jay Hunston, Jr. of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell, West Palm Beach, for petitioner. Thomas J. Baird and Susan A. Kennedy of Thomas J. Baird, P.A., North Palm Beach, for respondent. [*865] Daniel K. Corbett, Juno Beach, for Amicus Curiae Celestial Court Partnership. GROSS, J. The Town of Juno Beach petitions for certiorari review of a circuit court opinion that granted certiorari and quashed the Town's decision to rezone certain property. We grant the petition and quash the decision of the circuit court. Bloomberg Law' © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 1 Submitted into the public %} Town of Juno Beach v. McLeod, 832 So. 2d 864 (Fla. 4th DCA 2002), Court Opinion record �tem(s)jl_ai_ PZ.City Clerk In March, 1999, Celestial Court Partnership (Celestial) applied to the Town for a zoning change as to an undeveloped parcel of property it owns. The parcel is located on the northeast corner of Olympus Drive and U.S. Highway One; it is 125 feet by 200 feet, with 125 feet of frontage on U.S. One, the property's western boundary, and 200 feet on Olympus Drive. As to the west 120 feet of the property, Celestial sought to change the zoning from RS-1, residential single family with low density, residential future land use, to CO, commercial office with commercial future land use. The application proposed that the east 80 feet of the property remain single family residential to create a buffer to the adjacent single family area. Celestial desired to develop a mixed -use two story building with professional offices on the ground floor and residential apartments on the second floor. The application indicated that residential areas lay to the property's north, east, and south, but across the highway to the west was Seminole Plaza, a 60,000 square foot commercial shopping center. Along with the rezoning request, Celestial sought to amend the Town's comprehensive plan, to change the future land use from the existing Low Density Residential to a Commercial future land use classification. The town staff report recommended granting the request. The report observed that the property was approximately .57 of an acre and that the proposed rezoning would cover the west portion, about .34 of an acre. Staff wrote that the rezoning was consistent with the proposed commercial future land use classification. The report noted that the property to the west was zoned Commercial General (CG), a more intense use than that sought by Celestial. Staff stated that the proposed mixed use project will provide a consistent transition from the highway and more intensive uses to the west, to a mixed use of less intensive commercial office and residential uses. Further, the proposed mixed use is a much needed element within town. In this general area of town there are two existing mixed use sites, which function and co -exist very well within their neighborhoods.... Mixed uses are transitional uses. Transitional uses are a necessary element for a sustainable community. Transitional uses allow communities to identify themselves as individual places, among a larger sprawl -like general area, such as greater Palm Beach County. Staff described the proposed use as "an ideal transition use from commercial uses across the highway and single family residential uses to the east." The town council held two public hearings on changing the land use designation and zoning. The council heard expert and lay opinions on all sides of the proposed changes. The council voted to adopt Ordinance 509, which amended the future land use map of the comprehensive plan for the property from residential use to commercial use. The council voted to approve Ordinance 510 to rezone the property from residential to CO. Respondent T. Bragg McLeod owns a single family residence 300 feet east of the property at issue. He filed a petition for writ of certiorari in the circuit court challenging the rezoning. At the same time, in an administrative proceeding, McLeod and [*866] others unsuccessfully challenged the amendment to the future land use map.1 A three -judge panel of the circuit court granted the petition for writ of certiorari and quashed the town's rezoning decision. The circuit court wrote that "[w]hether the town departed from the essential requirements of Bloomberg LaW © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 2 k own of Juno Beach v. McLeod, 832 So. 2d 864 Fla. 4th DCA 2002 , Court Opinion Submitted into thep blia T ( ) P record r �tem(s) on City Clerk law depends largely on what constitutes the 'neighborhood' for purposes of rezoning." After observing that there "is no definition of 'neighborhood' in the Town's comprehensive plan or in Chapter 163, Part II, Florida Statutes (2000)," the circuit court nevertheless concluded that "existing Florida law does not permit the Town to extend" the commercial use across U.S. Highway One "in the manner that it did." The circuit court also ruled that the town's "action constituted spot zoning." Finally, after a discussion of the conflicting evidence at public hearings, the circuit court concluded that there was "no competent substantial evidence" to support the rezoning. This court described the two-tier framework for review of a zoning decision in Town of Manalapan v. Gyongyosi ,828 So.2d 1029, 1032 (Fla. 4th DCA 2002): In the "first -tier" review, a party may seek certiorari review in the circuit court, which is more akin to an appeal and is not discretionary. The court must review the record from the commission decision and determine whether: (1) procedural due process has been afforded; (2) whether the essential requirements of law have been observed; and (3) whether competent substantial evidence supports the commission's judgment. The "competent substantial evidence" standard of review applied to this first -tier review "is tantamount to legally sufficient evidence." On certiorari petition to the district court, "second -tier" review, that court is limited to determining whether procedural due process has been afforded and whether the circuit court applied the correct law. It is not allowed to determine whether the commission decision is supported by competent substantial evidence. (Citations omitted). We agree with the Town that the circuit court failed to apply the correct law and failed to apply the correct standard of certiorari review when it substituted its evaluation of competent substantial evidence for that of the Town. The circuit court applied the wrong law, in that it did not evaluate this zoning request within the context of the Town's comprehensive plan, which designates this property for commercial rather than residential use. Coastal Dev. of N. Fla., Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla.2001) (zoning changes are scrutinized by the circuit court on certiorari review to assure strict compliance with comprehensive plan). The circuit court relied instead on cases which are distinguishable. They were decided long before the adoption of local ['867] comprehensive plans pursuant to Chapter 163, Florida Statutes, which governs comprehensive planning. Also, those cases affirmed the local government's exercise of discretion, and, therefore, do not stand for the proposition that the Town acted arbitrarily in this case. City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956) (affirming city's zoning decision by reversing circuit court); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480 , 3 So.2d 364 (1941) (reversing circuit court and affirming city's down zoning); Harris v. City of Coral Gables, 157 So.2d 146 (Fla. 3d DCA 1963) (affirming dismissal of case where property in one city asked to be zoned similarly to adjacent property in different city); Town of Surfside v. Skyline Terrace Corp., 120 So.2d 20 (Fla. 3d DCA 1960) (reversing court's reversal of zoning decision on the ground that the town's decision as to where a zoning district ends was a legislative action). Because comprehensive plan policies are implemented through zoning codes, the circuit court was also Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 3 Zl Town of Juno Beach v. McLeod, 832 So. 2d 864 (Fla. 4th DCA 2002), Court Opinion Submitted into the bliC record r i m(s) �-- an City Clerk required to apply the zoning code. See Broward County v. G.B.V. Intl, Ltd., 787 So.2d 838 (Fla.2001) (decision granting or denying development order is governed by local regulations, which must be uniformly administered ); Davis v. St. Joe Paper Co., 652 So.2d 907, 910-11 (Fla. 1 st DCA 1995) (Ervin, J., concurring) ((citing City of Cape Canaveral v. Mosher, 467 So.2d 468 (Fla. 5th DCA 1985)), for the proposition that, under the Florida Statutes which govern planning and zoning, after adoption of a comprehensive plan, zoning changes should be made when existing zoning is inconsistent with the plan to make the zoning more consistent with the plan). The Town's zoning code designates only two zoning categories for land with a commercial land use designation —General Commercial and Commercial Office. The Commercial Office zoning placed on the property by the Town is the less intense use category consistent with the plan. It was adopted by the Town to serve as a buffer between commercial uses and residential uses, which is the use to which it was put on this property. Thus, when the land -use designation for this property was changed to commercial, the existing residential zoning became inconsistent with the plan. The new zoning category is consistent with all controlling statutes and ordinances. Also, as a matter of law, the change did not constitute "spot zoning."z S. W. Ranches Homeowners Assn v. Broward County, 502 So.2d 931 , 935 (Fla. 4th DCA 1987) (zoning change not spot zoning because it was consistent with the purposes of the comprehensive plan). Florida law does not supply a hard and fast definition of "neighborhood" from which the Town departed in making its zoning decision. Here, the decision as to what constitutes a "neighborhood" was a factual, not a legal one. The town's zoning code allows it to take adjoining uses into consideration as a factor in rezoning, including the fact that the subject property adjoins a four -lane divided highway, with an average daily traffic count of 24,000 trips and with a projected widening to six lanes. [`868] In addition, the circuit court failed to grasp its role in the review process. As the supreme court explained in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1275-76 (Fla.2001): We reiterate that the "competent substantial evidence" standard cannot be used by a reviewing court as a mechanism for exerting covert control over the policy determinations and factual findings of the local agency. Rather, this standard requires the reviewing court to defer to the agency's superior technical expertise and special vantage point in such matters. The issue before the court is not whether the agency's decision is the "best" decision or the "right" decision or even a "wise" decision, for these are technical and policy -based determinations properly within the purview of the agency. The circuit has no training or experience --and is inherently unsuited —to sit as a roving "super agency" with plenary oversight in such matters. It is also apparent from the opinion that the circuit court reweighed the evidence. Like the circuit court in Gyongyosi , the court "engaged in a reweighing of conflicting evidence and ignored evidence which supported" the town's decision. 828 So.2d at 1032 . It "appears to have applied the 'competent substantial evidence' standard of proof, as set forth in Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla.1986), rather than the standard of review." Gyongyosi, 828 So.2d at 1032. Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 4 Submitted into the N g Town of Juno Beach v. McLeod, 832 So. 2d 864 (Fla. 4th DCA 2002), Court Opinion recordMitmon City MA For these reasons, we grant the Town's petition and quash the circuit court's decision. GUNTHER and WARNER, JJ., concur. fn 1. McLeod and others filed a petition for formal administrative hearing with the State of Florida, Department of Community Affairs, pursuant to section 163.3184(9), Florida Statutes (2000). They contended that the land use plan amendment constituted spot planning, because it was a piecemeal changing of the use affecting a single lot, increasing its density and intensity and creating disharmony in the area. They sought an order finding that the change was not in compliance with the local government comprehensive planning and land development regulation act, and recommending that the amendment not become effective. Following a two-day hearing, the administrative law judge recommended that the department issue a final order determining that the plan amendment was in compliance. Over McLeod's exceptions, the Department issued a final order dated May 30, 2001, accepting the administrative law judge's recommendation and determining the comprehensive plan amendment to be in compliance. The order was not further challenged. fn 2. See Bird -Kendall Homeowners Assn v. Metro. Dade County Bd. of County Commis, 695 So.2d 908 (Fla. T 3d DCA 1997). Though the circuit court relied on Bird -Kendall for the conclusion that this was spot zoning, the third district did not address the consistency of the zoning designation with the comprehensive plan. Additionally, it is distinguishable in that there was no similarly zoned land nearby. In this case, there is commercial development right across the street. Allapattah Cmty. Assn v. Miami, 379 So.2d 387 (Fla. 3d DCA 1980), is distinguishable in that staff disapproved of the change with the result that there was no substantial evidence to support it. Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 5 Submitted into the ublic record for item(s) !L.iQ on City Clerk Bloomberg LAW © Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987), Court Opinion Printed By: CMARKOVICH on Tue, 21 Mar 2023 13:58:24 -0400 "" Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987), Court Opinion Pagination So.2d Majority Opinion > Table of Cases District Court of Appeal of Florida Fourth District Submitted into the public record for it m(s) � QZ, j on 5 1111 o City Clerk Southwest Ranches Homeowners Association, Inc., a Florida corporation, Appellant/Cross Appellee, V. County of Broward, a political subdivision of the State of Florida, Appellee/Cross Appellant. No. 4-86-0208. January 14, 1987 Rehearing and Clarification Denied March 9, 1987 Brion Blackwelder of Titone, Roarke, Blackwelder and Titone, Lauderhill, for appellant/cross appellee. • Susan F. Delegal, Gen. Counsel, and Annette Star Lustgarten, Asst. Gen. Counsel, Fort Lauderdale, for appellee/cross appellant. [" 933] ANSTEAD, Judge. This is an appeal from a final judgment declaring valid two zoning ordinances enacted by Broward County in order to facilitate the location of a sanitary landfill and resource recovery plant in an unincorporated area of the County. We affirm. In 1981, Broward County began to search for an appropriate location, and secure necessary zoning, for a large scale sanitary landfill and resource recovery plant. After a long period of search and negotiations including the consideration of some 100 prospective sites, the County settled upon a 588 acre parcel of land adjacent to the Broward Correctional Institution (BCI), a women's prison located in an unincorporated portion of agricultural southwest Broward County. It was determined that two land use code changes would be necessary to locate the project on that site. First, an application would be required to change the BCI site from a limited agricultural A-1 zoning district, which permits a variety of agricultural, low intensity uses but prohibits dumps, sanitary fill or incinerators, to an agricultural -disposal A-6 zoning district, which permits sanitary fill and incinerators. Second, in order to permit the large scale solid waste disposal facility contemplated, the text of the A-6 district provision needed to be changed to allow landfill up to 125 feet above ground level, to provide for a resource recovery facility, to allow structures to be 200 feet high, and to permit incineration on an area of 20 acres or less. These changes were accomplished by enactment of Ordinances 84-35(Z) and 84-87, the ordinances declared valid Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 1 • Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987), Court Opinion Submitted into the public below. record fqr i m(s) YL, P l on 1 I City Clerk The Southwest Ranches Homeowners Association, Inc. sought to enjoin the County from ocating the project on the BCI site, claiming that the project would endanger the water supply and that the rezoning constituted improper spot zoning and conflicted with the Broward County land use plan. At trial, the Association called several expert witnesses. The substance of their testimony was that the BCI site is a wetland area which rests on the Biscayne Aquifer, a source of drinking water for the inmates and staff of the prison, as well as the property owners comprising the plaintiff Association. According to these witnesses, the proposed plant poses a threat to groundwater control, i.e., flooding, and may cause groundwater pollution which in turn poses a health threat to drinking water. Specifically, one witness testified that the proximity of the high water table to the base of the landfill in a wetlands area creates a risk that the membrane of the landfill lining will rupture, releasing pollutants called leachates into the surrounding environment. The appellant also presented the testimony of an urban planner to the effect that the proposed use is incompatible with the general agricultural character of the region, and inconsistent with several other elements of the Broward County Comprehensive Plan. In particular, the Association attempted to demonstrate that the proposed use was inconsistent with the coastal zone protection conservation element, the potable water element, and the solid waste element of the plan. Finally, the Association presented evidence that this same site had previously been rejected as a location for an industrial and office use, in light of existing land use policy to keep development in the area to a minimum. [*934] The County presented evidence which controverted the claims of the Association in virtually every material regard. The County put on evidence demonstrating the critical need for the facility and the lengthy F search for a suitable site. With respect to the environmental concerns raised by the Association, the County presented the testimony of several experts who were associated with the project and possessed expertise in the fields of hydrology and solid waste disposal. These witnesses testified in detail as to the state-of-the-art safety and engineering standards incorporated into the landfill project and the numerous features of the system designed to address the problems of surface water management and groundwater pollution. They also described numerous monitoring devices and procedures designed to immediately detect any problems of water pollution. The gist of their testimony was that the project would create no problems of water pollution or flooding. In response to the Association's evidence that the project would be inconsistent with certain elements of the comprehensive plan, the County contended that the facility was consistent with the land use elements of the plan and also consistent with the overall objective of the plan to provide an adequate level of services to support future growth in the County without endangering environmental resources. The project was described as providing for a 40 acre park, initially, with the landfill itself to have a 20 year life during the course of which it would be converted entirely into a public park. A County planning official also testified that pursuant to the County Code, the petition for rezoning had been reviewed and approved for consistency with the comprehensive plan by all of the County agencies with expertise in their respective fields, such as pollution and drainage control. It was also demonstrated that the project was subject to the scrutiny and approval of numerous other federal, state and local governmental entities concerned with water pollution and flood control. The court concluded in its final order (1) that the Association had not proven any inherent danger of water pollution in the plan, (2) that the ordinances did not violate the consistency provisions of the Planning Act, and (3) that the ordinances did not constitute spot zoning and would be upheld as "fairly debatable." The court reaffirmed its earlier ruling recognizing the standing of the appellant Association to challenge the zoning Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 2 © Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987), Court Opinion changes. Importantly, the court also retained jurisdiction of the action for purposes of insuring that the project would be constructed and operated in the environmentally safe manner represented by the County. I. STANDING Submitted into the ppb y QZ record r i ems Y , r , , on City Clerk At the outset, we reject the County's challenge on cross appeal to the appellant's standing. The supreme court has recently clarified the standing requirements for citizens' groups in cases like the one at bar. In Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204 (Fla.1984), the court held that "only those persons who already have a legally recognizable right which is adversely affected have standing to challenge a land use decision on the ground that it fails to conform with the comprehensive plan." Id. at 208. The court in Citizens Growth Management upheld the trial court's finding that the Coalition had failed to prove that it or any of its members met the test. Id. The Coalition is only described as "an incorporated association the membership of which includes residents, citizens and taxpayers of West Palm Beach." Id. at 206. In our view, the Southwest Ranches Homeowners Association has a more direct stake in this matter than would a group of concerned citizens and taxpayers with a general interest in preserving the environmental character of the area. The Association is a group of property owners whose land adjoins the proposed development and stands to be directly affected by the alleged aspects of the development which are claimed to be inconsistent with the comprehensive plan; i.e. pollution, flooding, and deterioration of potable water supply. Therefore, we believe [*935] that the Association meets the general standing criteria of Citizens Growth Management. Moreover, a finding of standing here is in accord with the intent of the legislature as manifested by the recent addition of Section 163.3215, Florida Statutes (1985) to the statutory scheme. This section liberalizes standing requirements and demonstrates a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action. II. SPOT ZONING We also reject the Association's claim that the trial court erred in holding that the ordinances in question did not constitute illegal "spot zoning." Spot zoning is the name given to the piecemeal rezoning of small parcels of land to a greater density, leading to disharmony with the surrounding area. See Dade County v. Inversiones Rafamar, S.A., 360 So.2d 1130, 1133 (Fla. 3d DCA 1978). Spot zoning is usually thought of as giving preferential treatment to one parcel at the expense of the zoning scheme as a whole. See Allapattah Community Assn, Inc. of Florida v. City of Miami, 379 So.2d 387, 394 (Fla. 3d DCA 1980). Moreover, the term is generally applied to the rezoning of only one or a few lots. Cf. Allapattah, 379 So.2d at 395 in. 9. The ordinances in question do not give preferential treatment to one group of property owners in the area over another. Nor is the pattern of development in the area such that its character will be destroyed by the waste disposal facility. The site in question is not completely surrounded by low density rural uses; rather, it will be adjoined by the prison on its eastern edge. More importantly, perhaps, the BCI site is 588 acres in size, substantially larger than a few lots. III. CONSISTENCY UNDER THE PLANNING ACT Bloomberg Law' © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Serndc:e 11 PAGE 3 Submitted into the p blic record or i M,� 1ty�1� � gy Clerk © Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4th Opin A more difficult issue is whether the zoning changes violated the consistency provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Section 163.3161, et seq., Florida Statutes (1985), and thus constituted an invalid exercise of the County's discretionary land use authority. Under the Planning Act, municipalities and counties within the state are vested with the power and responsibility to adopt comprehensive land use plans to guide future development and growth. 163.3167(1). Once a comprehensive plan has been adopted in conformity with the guidelines set out in the Act, all future development undertaken by responsible governing bodies is required to be "consistent" with the plan. 163.3194(1). Initially, we reject the County's assertion that the land use element of its comprehensive plan alone should be considered in determining consistency. The County charter mandated the adoption of a land use plan, which later became the land use element of the comprehensive plan. The other elements of the plan were adopted pursuant to the statutory mandate of Chapter 163. We cannot agree that the land use plan is the sole, controlling document with which subsequent plan elements had to comply. On the contrary, each subsequently adopted element was designed to fulfill the overall requirements and goals of the statute, as the text of these elements amply demonstrates. We find no conflict between the charter powers of the County and the statutorily mandated obligation to adopt a comprehensive plan and abide by all its elements. Having decided that land use decisions in Broward County must be consistent with the whole of the comprehensive plan, we must next address the appropriate standard of review of local zoning decisions that are alleged to be inconsistent with the plan. The County urges in this appeal that zoning lies within the *4w discretionary authority of local government and must be upheld if found to be "fairly debatable." Florida has traditionally applied the deferential "fairly debatable".rule in reviewing the zoning decisions of local government bodies. See, e.g., City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968); City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953) (en banc); [*936] S.A. Healy Company v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). However, we believe the enactment of the comprehensive statutory scheme manifests a clear legislative intent to mandate intelligent, uniform growth management throughout the state in accord with the statutory scheme) This purpose cannot be achieved without meaningful judicial review in lawsuits brought under the Planning Act. The County notes correctly that some courts have applied the "fairly debatable" rule in Planning Act cases. See, e.g., City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1 st DCA 1984). Grubbs upheld as fairly debatable a decision by the City Council of Jacksonville Beach to deny a request to change the zoning on a piece of property from single family residential to duplex residential. Id. at 163. However, the court also held that the denial of rezoning was consistent with the comprehensive plan, which proposed that the property would eventually be available for multi -family use. Id. at 162-63. Our reading of the analysis in Grubbs, with which we agree, is that zoning decisions should not only meet the traditional fairly debatable standard, but should also be consistent with the comprehensive plan. Moreover, we note that the circumstances in Grubbs and the other cases cited by the County are distinguishable in that they involve zoning at a level less intense than that envisioned by the comprehensive plan. As the court in Grubbs noted, the purpose of a comprehensive plan is to set general guidelines for future development, and not necessarily to accomplish immediate land use changes. Id.; see also 163.3161. Where the zoning authority approves a use more intensive than that proposed by the plan, the long term expectations for growth under the plan have been Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 4 Submitted into the public record f r it fm(s) __3 8F, .s V. Southwest: Ranches Homeowners Assn. v. droward County, 502 So. 2d 931 (Fla. ourt QKigerk exceeded, and the decision must be subject to stricter scrutiny than the fairly debatable standard contemplates. Id. at 163 n. 3. In our view, such stricter scrutiny should be applied to the ordinances involved here, which allow a more intense use of an area than was originally contemplated by the County's land use plan. Unfortunately, few Florida decisions address the meaning of the term "consistency" in the statute, or provide guidance as to the proper application of the term to a given set of facts. In his concurring opinion in City of Cape Canaveral v. Mosher, 467 So.2d 468 (Fla. 5th DCA 1985), relied upon by the Association, Judge Cowart advocated strict adherence to the plan. In his view, all zoning changes which depart from the parameters of the plan with respect to density should be deemed inconsistent with the plan and invalid. According to Judge Cowart, this fairly rigid approach is necessary to "make individual zoning changes, which are essentially executive action, conform to a legislated plan." 467 So.2d at 471. The changing needs of an area should be accommodated by amending the plan itself and not by enacting inconsistent provisions whenever a need arises. Id. We believe the legislative scheme calls for a more flexible approach to the determination of consistency. The relevant statutory definition of "consistency" is contained in section 163.3194(3), which, as recently amended, provides: (3)(a) A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by ['937] such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government. (b) A development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities or intensities, capacity or size, timing, and other aspects of the development are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government. Sections 163.3194(4)(a)-(b) of the Act permit the court to consider a broad range of factors in determining consistency with a comprehensive plan: A court, in reviewing local government action on development regulations under this act, may consider, among other things, the reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or elements or elements thereof, in relation to the governmental action or development regulation under consideration. The court may consider the relationship of the comprehensive plan, or element or elements thereof, to the governmental action taken or the development regulation involved in litigation, but private property shall not be taken without due process of law and the payment of just compensation. It is the intent of this act that the comprehensive plan set general guidelines and principles Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service H PAGE 5 Submitted into the vublie record or ' em(s) Q on City Clerk O Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. ,Court Opinion concerning its purposes and contents and that this act shall be construed broadly to accomplish its stated purposes and objectives. It is this latter provision in particular that we believe evidences the legislature's intent that local governments be given some flexibility in applying the plans. Broward County's comprehensive plan consists of a land use element, originally adopted in 1977 and subsequently amended, which designates the types of uses contemplated in a specific geographic area, as well as a number of broader elements and goals which were added to the scheme as developed. The BCI site is located in an area designated in the land use element as "agricultural." In accordance with the norms set out in the agricultural designation, the area of the BCI site was zoned in the A-1 (limited agricultural) district. The agricultural designation is intended to promote agriculture -related uses and contains land use guidelines consistent with that goal, including cultivation, ranches, nurseries, etc. Residential uses are limited to one unit per acre, and neighborhood support business and retail facilities are similarly limited. Utilities, along with transportation and communication facilities, are specifically permitted within agricultural areas. The plan also contains a solid waste element, the stated goals of which are: 1. To provide for the collection, processing and disposal of solid waste by the most efficient and effective means that satisfy health and environmental standards. 2. To eventually make a transition in solid waste disposal practices from land disposal systems to methods that emphasize the recovery of materials and generation of energy from solid waste. The element provides a detailed set of site selection criteria for landfills. According to this element, the chosen site must "safeguard against water pollution originating from the disposal of solid waste." Landfills are specifically prohibited in a number of areas based on the proximity of the site to a public water supply. The BCI site is not in a prohibited area. The coastal zone protection conservation element of the plan provides guidelines for the preservation of water resources. This element states that land use decisions should be consistent with protection of areas with high acquifer recharge capacity, [*938] and that the extent of landfill should be limited in water recharge/storage areas. It also states a policy to protect wetland areas of sufficient size to maintain a productive biological and hydrological system. The potable water element provides that the environmental impact of all future growth should be closely scrutinized to preclude unnecessary degradation of the area's water resources. William Pitt, author of the text of the potable water element, testified for the County that the general area of the BCI site is an unlikely area for public wellfield development based on existing poor water quality which is below federal standards for public water facilities. Taking all the relevant considerations into account, we can find no basis for setting aside the trial court's conclusion that the proposed ordinances are consistent with the overall provisions and purposes of the comprehensive plan. First, with respect to Ordinance 84-87, which merely effected a text change for the A-6 District, we find no inherent inconsistency. This ordinance altered the permissible dimensions of waste disposal Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Servico // PAGE 6 Submitted into the public record for ' em(s) 4_ E QZt�S V. Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 ,.Court%hgq rk facilities within the district, a subject not directly addressed by the comprehensive plan. As the Association's expert witness conceded, this ordinance "in and of itself' does not violate any aspect of the plan. The Association's real challenge is to Ordinance 84-35(Z), which allowed the uses set out in the A-6 text, as amended, to apply to a particular parcel of property. In examining this issue, we believe the factual findings of the trial court should be accorded great weight. The final judgment states: Plaintiff's chief concern is that the construction and maintenance by defendant of a landfill and resource recovery facility will pollute the drinking water of the people who reside nearest to the proposed landfill and, very significantly, the residents and employees of the Broward Correctional Institute. At the trial, defendant presented testimony of experts who testified at length regarding the proposed state-of-the-art landfill which would incorporate two synthetic liners, a leachate collection system with dykes and a storm water management system. There will be vector control with daily six inch covering as required by law. In the main, the court sees no inherent danger of pollution if defendant's plan is properly constructed and --most significantly, if the landfill and resource recovery facility is assiduously monitored. Accordingly it is ADJUDGED that plaintiff's prayers for injunctive and other relief are hereby denied. However, the court will retain jurisdiction of this action to enter such future orders as may be appropriate. As a serious caveat the court notes that it will, forthwith, shut down the entire operation and enjoin its future use if the proposed facility develops a "glitch" which threatens to pollute the drinking water relied upon by the home -owner members of the plaintiff association or by the residents and employees of the Broward Correctional Institute. (Footnote omitted.) Most important is the court's finding that the Association did not prove its claim that hazardous water and other environmental pollution would result from the facility. If in fact the danger of pollution is minimal, as the trial court found, then the Association's central argument that the ordinances are inconsistent with the protection and management of water resources loses much of its force. The Association is essentially asking this court to reweigh the voluminous technical evidence on which the lower court based its findings. The Association also contends that the proposed waste disposal facility will be incompatible with the low - intensity agricultural character of the surrounding environment. While there may be some truth in this statement, we note that the proposed use by the County, while being more "intensive" than previous zoning allowed, does not involve a higher population density ['939] of use. Rather, as is indicated by the symbols utilized, rezoning from A-1 to A-6 involved approval of a more intense use within the same agricultural (A) zoning category. In fact, the County went to great lengths to demonstrate the "parklike" appearance that the site would have during and after its contemplated use for waste disposal. The area in question is already the location of a high -density use, the Broward Correctional Institution. Certainly, the prison facility could also be seen as incompatible with the norms set forth in the agricultural designation of the comprehensive plan. While Bloomberg Law," © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 7 Submitted into the pub record fpr i em(s) on . City. Clerk Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4t , Court inlon we do not believe that one inconsistent use justifies another, we do believe this factor weakens the Association's contention that the area cannot support isolated high -intensity uses without losing its essentially agricultural character. In addition, utilities are already permitted in the agricultural areas and the BCI site is not in an area where landfills are expressly forbidden. The presence of the prison facility in this area illustrates another factor demonstrating a need for flexibility. The County conceded below that it arrived at this location in a lightly settled unincorporated part of the County largely because it had experienced resistance from the residents of municipalities opposed to placing a waste disposal site in their neighborhoods. We agree with the appellant that zoning decisions should be made on the basis of rational planning goals and not political pressure. We also believe, however, that the County was entitled to consider the proximity of a particular site to large population centers as a relevant factor in the decisionmaking process. Common sense tells us that few persons will want a prison or a waste disposal facility in their neighborhoods. Government, however, is saddled with the reality that some provision must be made for such facilities. Offending the fewest people may appear to be a cop-out, especially to the "fewest," but that does not change the fact that prisons, waste disposal facilities and other indispensable components of our infrastructure must be located somewhere. This fact, while certainly not providing the County with a blank check, distinguishes such facilities from nearly every other form of residential or commercial development and constitutes, in our view, a valid additional consideration to the overall determination of consistency. We agree with the County that managing growth under a comprehensive plan with such a wide array of elements may involve selecting between conflicting goals and priorities. This case presents a classic example. - There can be no question that the legislature regards the Biscayne Aquifer, which underlies the land in question, to be a crucial environmental resource; see section 163.3177(6)(c), providing that this area "shall be given special consideration when the local government is engaged in zoning or considering future land use for said designated areas." However, we are satisfied that the trial court properly found that these concerns are protected under the County's planned use of the property, and that the ordinances are consistent with other important objectives of the plan, such as providing for more efficient solid waste disposal, and maintaining an adequate level of services for County residents. We also approve of the trial court's action in retaining jurisdiction as an additional protective device to ensure the project's development as represented in court. Obviously, waste, if not disposed of in a proper manner, constitutes a substantial threat to the environment and public health. While it may appear that we have come a long way from the time when sewage was indiscriminately dumped in our waterways and piled on our lands, legitimate concerns continue and must be addressed on an ongoing basis. The record reflects the County's near exhaustion of available waste disposal facilities, an immediate need for the project in question, and an absence of any ultimate weapon against waste accumulation and its effects. Therefore, we conclude that the trial court did not err in finding that Ordinance 84-87 was a permissible exercise of the [*940] County's authority, and that the reclassification of the property by Ordinance 84-35(Z) was not fatally inconsistent with the environmental elements of the Broward County Comprehensive Plan, or with the water management provisions of Chapter 163 which are reflected in the plan. DOWNEY, J., and WILLIS, BEN C., Associate Judge (Retired), concur. Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 8 Submitted into the public record f r i m(s) 9 on City► Clerk 0 Southwest Ranches Homeowners Assn. v. Broward County, 502 So. 2d 931 (Fla. 4 , �urt Opinl n MI In a recent New York Times article, Professor Charles Haar noted some of the results of our traditional reliance on local zoning power: [Z]oning has not dealt adequately with regional problems. This is not an inherent aspect of zoning but a political reality. Although it is the states that legally authorize local communities to zone, local communities and their residents view zoning as a strictly local power. Because of such parochialism, opportunities for intelligent regional solutions to planning problems have been missed. Haar and Kayden, Zoning Laws Reflect Our Values and Priorities, N.Y. Times, Nov. 24, 1986, at 17, col. 1. Table of Cases Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach , 450 So.2d 204 (Fla.1984) Dade County v. Inversiones Rafamar, S.A., 360 So.2d 1130, 1133 (Fla. 3d DCA 1978) Allapattah Community Ass'n, Inc. of Florida v. City of Miami, 379 So.2d 387, 394 (Fla. 3d DCA 1980) City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968) City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953) (en banc) S.A. Healy Company v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978) Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975) City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984) City of Cape Canaveral v. Mosher, 467 So.2d 468 (Fla. 5th DCA 1985) Bloomberg Law* © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 9 Submitted into the ublic record r ' em(s) �, i' Q on City Clerk Bloomberg LAW © Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion Printed By: CMARKOVICH on Tue, 21 Mar 2023 13:59:56 -0400 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion Pagination P.2d Majority Opinion > Dissenting Opinion > Table of Cases Supreme Court of Alaska Frank S. Griswold, Appellant, V. City of Homer, Appellee. No. S-6532. October 25, 1996. Frank S. Griswold, Homer, pro se. Gordon J. Tans, Perkins Coie, Anchorage, for Appellee. Submitted into the ublic record or 'tem(s) 4 Q . on City Clerk Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. [`1017] EASTAUGH, Justice. I. INTRODUCTION In 1992 the Homer City Council adopted Ordinance 92-18 amending Homer's zoning and planning code to allow motor vehicle sales and services on thirteen lots in Homer's Central Business District. Frank Griswold claims Ordinance 92-18 is invalid because it constitutes spot zoning. We affirm the superior court's rejection of that claim. Griswold also claims the Ordinance is invalid because a council member with a personal interest improperly participated in its adoption. We hold that the council member should not have participated. We consequently remand so the superior court can determine whether that participation invalidates the Ordinance. Finally, we hold that Griswold is a public interest litigant who cannot be assessed the City's attorney's fees and court costs. II. FACTS AND PROCEEDINGS Alaska Statute 29.40.020 requires that each first class borough establish a planning commission which will prepare, submit, and implement a comprehensive plan.1 This plan must be adopted before the local government can adopt a zoning ordinance. AS 29.40.020.040. A borough assembly "[i]n accordance with a comprehensive plan adopted under AS 29.40.030 and in order to implement the plan ... shall adopt or amend provisions governing the use and occupancy of land." AS 29.40.040. That statute requires the borough to implement the comprehensive plan by adopting provisions governing land use, including zoning regulations. Id. Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service ll PAGE 1 Submitted into the publiy � Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record for item(s) ft. on 2 City Clerk A borough may delegate this responsibility and the planning power to a city within the borough, if the city consents. AS 29.40.010(b). The Kenai Peninsula Borough delegated to the City of Homer the zoning authority for areas within the City. The City adopted a comprehensive land use plan in 1983 and revised it in 1989. The City Council enacted zoning ordinances to implement the plans. Motor vehicle sales and services were not a permissible use within the Central Business District (CBD). Several businesses provided automobile services in the CBD before the City adopted the zoning ordinances. Those businesses were "grandfathered" into the zoning district and allowed to continue to provide those services as nonconforming uses, so long as those uses did not extend beyond the original lot boundaries and the property owners did not discontinue their nonconforming uses for more than one year. [*1018] Guy Rosi Sr. owns a parcel (Lot 13) in the CBD.2 Rosi Sr. has continuously operated an automobile repair service on Lot 13. His repair business remains a valid nonconforming use in the CBD. Rosi Sr. also operated an automobile dealership on Lot 13 until sometime prior to 1990, but lost the right to continue that nonconforming use on that lot by discontinuing the vehicle sales business for more than one year. Guy Rosi Jr. owns Lot 12, which is adjacent to his father's lot. Lot 12 is also in the CBD; because it had never been used for automobile sales or services, these uses were not grandfathered for Lot 12. In 1986 the City received complaints that Lot 12 was being used for vehicle sales in violation of the zoning ordinance. In May 1986 Rosi Jr. applied to the Homer Advisory Planning Commission for a conditional use - permit for Lot 12. The commission denied the application. It found that public services and facilities were adequate to serve the proposed use. The commission also found that automobile sales were not consistent with the purpose of the CBD; were not in harmony with the Comprehensive Plan; would negatively impact neighborhood character; but might not negatively impact the value of adjoining property more than permitted uses. Rosi Jr. then applied for a contract rezone under Homer City Code (HCC) 21.63.020(c). The City granted the application in 1986, rezoning Rosi Jr.'s lot to General Commercial 1(GC1) and restricting its use to vehicle sales. Griswold does not challenge the Lot 12 contract rezone in this litigation. Rosi Sr.'s Lot 13 was not affected by the Lot 12 contract rezone. In September 1990 Rosi Sr. requested that the CBD be rezoned to allow vehicle sales and related services. In August 1991 Rosi Sr., stating that he had not received any response to his earlier request, asked that Lot 13 be rezoned to allow vehicle sales and related services. During this period, there were numerous zoning proposals and public hearings regarding automobile -related services in the CBD, but some people spoke in favor of rezoning the area. In January 1992 a commission memorandum informed the City Manager that the commission had been wrestling with several possible amendments to the zoning code since 1990, and that "[c]entral to the issue is the Commission's desire to rezone the Guy Rosi property to allow for vehicle sales." The commission noted that a proposed ordinance would allow automobile -related services in the CBD only on Main Street from Pioneer Avenue to the Homer Bypass, excluding corner lots with frontage on Pioneer Avenue and the Homer Bypass Road. However, the commission staff recommended that the council pass an ordinance which would Bloomberg Law# © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 2 Submitted into the blic Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion p record r i em(s) �( f L, , on 1 City Clerk allow automobile -related services "everywhere in the Central Business District or nowhere." The memo stated that the City Attorney felt the proposed ordinance would be difficult to enforce and defend. In April the City Council adopted Ordinance 92-18, which amended HCC 21.48.020 by adding the following section: 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 Ordinance passed five -to -zero. One council member was absent. Brian Sweiven was one of the council members voting for the amendment. He owned one of the thirteen lots on which automobile sales and services were to be allowed under Ordinance 92-18. Sweiven both lived on his lot and operated an appliance repair business there. In 1994, stating he had a potential conflict of interest, he refrained from voting on Ordinance 94-13, which would have repealed subsection (hh). A week later he reversed that position and voted not to repeal subsection (hh). Frank Griswold, the plaintiff in this case, owns an automobile repair shop in the CBD. Its operation was grandfathered in [`1019] under the zoning code. He also lives in the CBD. Griswold's lot was not one of the thirteen lots directly affected by Ordinance 92-18. Griswold brought suit against the City, alleging under several theories that Ordinance 92-18 is an invalid exercise of the City's zoning power and that Sweiven's participation -= in the adoption of Ordinance 92-18 invalidates the Ordinance. Following a bench trial, the superior court found against Griswold on all issues. It later ordered him to pay a portion of the City's court costs and attorney's fees. Griswold appeals. III. DISCUSSION We have repeatedly held that it is the role of elected representatives rather than the courts to decide whether a particular statute or ordinance is a wise one.3 Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985); Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299 (Alaska 1982). In Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974), we stated: A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. 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. (Footnote omitted.) See also 6 Eugene McQuillan, Municipal Corporations § 20.05, at 12 (3d ed. 1988) ("The validity of an ordinance will be upheld where there is room for a difference of opinion 'even though the correctness of the legislative judgment is doubtful."') (quoting Western Springs v. Bernhagen, 326 III. 100, 156 Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 3 s Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion Submitted into the pblic rec=itN.E. 753, 754 (1927)). onCity Clerk However, we will invalidate zoning decisions which are the result of prejudice, arbitrary decision -making, or improper motives. See South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168,174 (Alaska 1993) ("In reviewing zoning decisions, courts generally try to guard against prejudice, arbitrary decision -making, and improper motives.") (citing 3 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning § 41.06, at 41- 29, § 41.14(3)(b), at 41-93 (1992)). Similarly, a legislative body's zoning decision violates substantive due process if it has no reasonable relationship to a legitimate government purpose. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452. Moreover, another court has noted, "The dividing line between ... mere difference in opinion and what is arbitrary is the line between zoning based on objective factual evidence and zoning without a rational basis." Smith v. County of Washington, 241 Or. 380, 406 P.2d 545, 548 (1965) (citations omitted).4 In this case, Griswold argues that the City's Ordinance does not have a legitimate basis but rather is arbitrary spot zoning.5 We have not previously had the opportunity to consider whether a municipality's planning [*1020] and zoning enactment is invalid because it constitutes "spot zoning." The City states that "this is not a case of 'spot zoning' at all" because the area in question remains zoned CBD. However, treatise discussions of spot zoning appear to make no distinction between cases where a zoning district has been reclassified and those where a new use without district reclassification is at issue. See, e.g., 1 Robert M. Anderson American Law of Zoning 3d § 5.12, at 358 (1986) ("The common [spot zoning] situation is one in which an amendment is initiated at the request of an owner or owners who seek to establish a use prohibited by the existing regulations."). See also, Ballenger v. Door County, 131 Wis.2d 422, 388 N.W.2d 624, 627 (App.1986) (applying spot zoning analysis in a case where the zoning district remained the same but the permitted uses within the district were expanded); Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (whether zoning decision violates substantive due process depends on whether it has a reasonable relationship to a legitimate public purpose). A. Claim of Spot Zoning The "classic" definition of spot zoning is "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...." Anderson, supra, § 5.12, at 359 (quoting Jones v. Zoning Bd. of Adjustment of Long Beach, 32 N.J.Super. 397, 108 A.2d 498 (1954)). Spot zoning "is the very antithesis of planned zoning." Id.6 Courts have developed numerous variations of this definition. Id. These variations have but minor differences and describe any zoning amendment which "reclassifies a small parcel in a manner inconsistent with existing zoning patterns, for the benefit of the owner and to the detriment of the community, or without any substantial public purpose." Anderson, supra, § 5.12, at 362. Professor Ziegler states: Faced with an allegation of spot zoning, courts determine first whether the rezoning is compatible with the comprehensive plan or, where no plan exists, with surrounding uses. Courts then examine the degree of public benefit gained and the characteristics of land, including parcel size and other factors indicating that any reclassification should have embraced a larger area containing the subject parcel rather than that parcel alone. No one particular characteristic associated with spot zoning, except a failure to comply with at least the spirit of a comprehensive Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 4 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion Submitted into the ��ubl,i, p record or i em(s) '. , �, k� on rJ �ICity Clerk plan, is necessarily fatal to the amendment. Spot zoning analysis depends primarily on the facts and circumstances of the particular case. Therefore the criteria are flexible and provide guidelines for judicial balancing of interests. 3 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning § 28.01, at 28-3 (4th ed.1995). In accord with the guidance offered by Professor Ziegler, in determining whether Ordinance 92-18 constitutes spot zoning, we will consider (1) the consistency of the amendment with the comprehensive plan; (2) the benefits and detriments of the amendment to the owners, adjacent landowners, and community; and (3) the size of the area "rezoned." [*1021 ] 1. Consistency with the comprehensive plan Just as an ordinance which complies with a comprehensive plan may still constitute an arbitrary exercise of a city's zoning power, Watson v. Town Council of Bernalillo, 111 N.M. 374, 805 P.2d 641, 645 (App.1991), nonconformance with a comprehensive plan does not necessarily render a zoning action illegal. Anderson, supra, § 5.06, at 339-40. However, consistency with a comprehensive plan is one indication that the zoning action in question has a rational basis and is not an arbitrary exercise of the City's zoning power. Homer's comprehensive plan divides the city into several zoning areas. By its own terms, Homer's comprehensive plan is not intended to set specific land use standards and boundaries; specific standards and boundaries are instead implemented through the City's zoning ordinance. The plan states, "The City shall encourage a mix of business/commercial and public/governmental activities in areas zoned or planned as central business district." The plan states that the CBD is "intended primarily for retail sales and services occurring within enclosed structures." The plan's objectives for the CBD are (1) to guide growth and development to provide a centrally located business and commercial area and focal point for the community; (2) to encourage infilling of the area already designated CBD before expanding the area; (3) to promote a safe, attractive, and easily accessible business and commercial core for pedestrian and vehicular visitors and residents; (4) to attract and accommodate a variety of uses to fill the business and commercial needs of downtown Homer; and (5) to tie into state and federal programs that beautify the business and commercial core. Griswold does not dispute that the CBD is intended to allow commercial uses. He notes however, that although auto -related services are explicitly permitted in the General Commercial 1 District under HCC 21.49.020(d), the planning commission previously denied a conditional use permit for auto -related services on Main Street, specifically finding, inter alia, that automobile sales were not consistent with the purpose of the CBD and were not in harmony with the comprehensive plan. He also notes that the comprehensive plan provides that the CBD was meant primarily for retail sales and services occurring within enclosed structures. Further, the fact that the City began phasing out auto -related services in the CBD when it adopted the comprehensive plan, while simultaneously specifically permitting these services in the General Commercial I District, indicates to Griswold that auto -related sales and services were, at least at one time, considered incompatible with the CBD. The superior court concluded that the Ordinance was consistent with the comprehensive plan. In so Bloomberg Laws © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 5 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion Submitted into the public record or i e (s) Q S on City Clerk concluding, it considered the policy statement implementing the Ordinance, and found that the Ordinance "encourages private investment and infilling" and "enhances convenient access to other parts of the CBD which are designated for other uses." It noted that Policy 4.1 provided: "The City shall research the nature of land uses and CBD land use needs and evaluate the need for subzones in the CBD." Griswold points to trial evidence that the expansion of auto -related services in the CBD does not further all the goals of the comprehensive plan, but he fails to demonstrate that the superior court's finding --that the Ordinance is consistent with the plan --is clearly erroneous. Although the evidence presented by Griswold would permit a finding that the City Council had believed in 1986 that auto -related uses were incompatible with the CBD and the zoning ordinance as it then read, that evidence does not compel a finding that auto -related uses are in fact incompatible with the CBD or comprehensive plan, or that the City Council's 1992 change of opinion is unsupportable and arbitrary. The superior court did not clearly err in making the findings discussed above. The court permissibly relied on Policy 4.1, which anticipates the type of action at issue here. The comprehensive plan does not expressly prohibit automobile sales or service establishments in the CBD. As the City notes, motor vehicle sales are most appropriately classified as a business and commercial use, for which the CBD was intended under the plan. [*1022] Homer's city planner testified at trial that the Ordinance is in accordance with Homer's comprehensive plan. We conclude that the superior court did not err in holding that Ordinance 92-18 is consistent with the City's comprehensive plan. 2. Effect of small -parcel zoning on owner and community Perhaps the most important factor in determining whether a small -parcel zoning amendment will be upheld is whether the amendment provides a benefit to the public, rather than primarily a benefit to a private owner. See Anderson, supra, §§ 5.13-5.14; Ziegler, supra, § 28.03, § 28.04, at 28-19 (calling an amendment intended only to benefit the owner of the rezoned tract the "classic case" of spot zoning). Courts generally do not assume that a zoning amendment is primarily for the benefit of a landowner merely because the amendment was adopted at the request of the landowner. Anderson, supra, § 5.13, at 368. If the owner's benefit is merely incidental to the general community's benefit, the amendment will be upheld. Ziegler, supra, § 28.04, at 28-19 to 28-20. The City argues that Ordinance 92-18 serves the interests of the general community rather than primarily the interests of the Rosis. We agree. a. Benefits and detriments to the community Griswold argues that there are many negative aspects of the City's decision to allow auto -related uses in the CBD. Griswold presented evidence that the neighborhood character would be harmed by the zoning amendment. He presented evidence that a newspaper article quoted Planning Commissioner Cushing as saying that public opinion was overwhelmingly against allowing auto -related services in the CBD and that many Homer citizens expressed the opinion that their homes and businesses would be harmed by introducing auto -related services into the area. A real estate agent testified that property in the CBD has a higher value than property in the GC1 District. Bloomberg Lawr' © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 6 Submitted into the p iblic U Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record r i m(s) i P on II City Clerk Many jurisdictions, including this one, have held that interests such as the preservation of neighborhood character, traffic safety, and aesthetics are legitimate concerns. Barber v. Municipality of Anchorage, 776 P.2d 1035, 1037 (Alaska) (holding the government's interest in aesthetics is substantial and should be accorded respect), cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989); Cadoux v. Planning and Zoning Comm'n of Weston, 162 Conn. 425, 294 A.2d 582, 584(holding increased traffic a valid reason to deny application for rezone), cert. denied, 408 U.S. 924, 92 S.Ct. 2496, 33 L.Ed.2d 335 (1972). Contrary to the implication of the City's argument,7 these are tangible harms. Moreover, the City itself appears to be concerned about the effects of auto -related services on property values and aesthetics, as evidenced by the council's findings supporting its confinement of the zoning change to Main Street,$ and the commission's earlier finding that use for automobile sales would negatively impact neighborhood character. However, despite this negative aspect of Ordinance 92-18, it appears that the Ordinance will result in genuine benefits for the City of Homer. The City notes that before adopting Ordinance 92-18, for a year and a half it deliberated proposals which would allow auto -related uses in the CBD and delineated the many benefits which it believed the Ordinance will confer upon the community. These benefits include encouraging filling in vacant places in the CBD; increasing the tax base and employment in the CBD; increasing convenience and accessibility for local and regional customers for vehicle repairs or purchases; and promoting orderly growth and development in the [*1023] CBD.9 Homer's city planner testified that the Ordinance provides a convenience to the public and guides growth and development to a centrally located area, while restricting such uses to areas away from tourists or to areas for visitors and pedestrians. �. The superior court stated that Ordinance 92-18 advances legitimate legislative goals articulated in HCC 21.28.020 including but not limited to regulating and limiting the density of populations; conserving and stabilizing the value of properties; providing adequate open spaces for light and air; preventing undue concentration of population; lessening congestion on streets and highways; and promoting health, safety and general welfare. The court found "as a matter of fact and law that Ordinance No. 92-18 bears a substantial relationship between legitimate legislative goals and the means chosen to achieve those goals." Griswold has demonstrated that there are some negative aspects of allowing auto -related uses in the CBD. Nonetheless, giving proper deference to the City Council as legislative policymaker and to the superior court as finder of fact, we cannot conclude that these detriments so outweigh the benefits of Ordinance 92-18 that we must hold the Ordinance was arbitrarily and capriciously adopted. b. Benefit to the landowner It appears that initially the City was primarily concerned with Rosi Sr.'s interests.10 Rosi Sr. initiated the inquiry into rezoning the CBD. Before the City amended the zoning code, the planning commission chair stated that "[c]entral to the issue is the Commission's desire to rezone the Guy Rosi property to allow for vehicle sales." In 1991 commissioners "voiced their dislike for spot zoning but felt it important to right a wrong [done to Mr. Rosi]." The City planning staff stated that "'spot zoning' is not good planning; however there are extenuating circumstances that support the proposed change in zone." The commission supported these conclusions [*1024] with the following findings of fact: (1) the property owner had owned and operated a business on the Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 7 Submitted into the ublic 2 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record h r i em(s) on City Clerk property since the early 1950's; (2) public testimony and response to staff were positive; (3) the City Attorney's response was positive; and (4) the business was an expensive business to establish and maintain. This desire to accommodate the needs of a businessman who had been in the community for decades is understandable. Nevertheless, small -parcel zoning designed merely to benefit one owner constitutes unwarranted discrimination and arbitrary decision -making, unless the ordinance amendment is designed to achieve the statutory objectives of the City's own zoning scheme, even where the purpose of the change is to bring a nonconforming use into conformance or allow it to expand. See Speakman v. Mayor of N. Plainfield, 8 N.J. 250 , 84 A.2d 715, 718-19 (1951). Otherwise, the City would be forced either to discriminate arbitrarily among landowners seeking relaxed restrictions or to abandon the concept of planned zoning altogether. Thus, if assisting Guy Rosi Sr. was the primary purpose of the Ordinance, we would invalidate it even if it was not the product of discriminatory animus. However, it appears that the City Council was ultimately motivated to pass the Ordinance because of the community benefits the council perceived rather than because of the benefit the Ordinance would confer upon Rosi Sr. The Ordinance restricted auto -related uses to one street not because its real intent was to benefit Rosi Sr.'s property, but, as Homer's city planner testified, because the City desired to minimize the negative impact of auto -related uses, especially the impact of such uses on more pedestrian and tourist -oriented areas such as Pioneer Avenue. See also supra note 7. Similarly, it appears that vacant lots located farther from Pioneer Avenue were excluded not because Rosi did not own these lots, but in an attempt to prevent urban sprawl by filing in vacant places in developed areas before expanding development. These reasons are legitimate, nondiscriminatory justifications for enacting the Ordinance. 3. Size of "rezoned" area Ordinance 92-18 directly affects 7.29 acres. 1 1 The size of the area reclassified has been called "more significant [than all other factors] in determining the presence of spot zoning." Anderson, supra, § 5.15, at 378. The rationale for that statement is that "[i]t is inherently difficult to relate a reclassification of a single lot to the comprehensive plan; it is less troublesome to demonstrate that a change which affects a larger area is in accordance with a plan to control development for the benefit of all." Id. at 379. We believe that the relationship between the size of reclassification and a finding of spot zoning is properly seen as symptomatic rather than causal, and thus that the size of the area rezoned should not be considered more significant than other factors in determining whether spot zoning has occurred. A parcel cannot be too large per se to preclude a finding of spot zoning, nor can it be so small that it mandates a finding of spot zoning. Although Anderson notes that reclassifications of parcels under three acres are nearly always found invalid, while reclassifications of parcels over thirteen acres are nearly always found valid, id., as Ziegler notes, the relative size of the parcel is invariably considered by courts. Ziegler, supra, § 28.04, at 28-14. One court found spot zoning where the reclassified parcel was 635 acres in an affected area of 7,680 acres. Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971). Nor does the reclassification of more than one parcel negate the possibility of finding spot zoning. Ziegler, supra, § 28.04, at 28-15. In this case, there was some evidence that the reclassified area may have been expanded to avoid a charge of spot zoning. Other courts have invalidated zoning amendments after finding Bloomberg Law* © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 8 Submitted into the public pp R Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record f r it m(s) QZ. iZ+ on City Clerk that a multiple -parcel [*1025] reclassification was a subterfuge to obscure the actual purpose of special treatment for a particular landowner. Id. See Atherton v. Selectmen of Bourne, 337 Mass. 250, 149 N.E.2d 232 , 235 (1958) (holding that the amendment is "no less 'spot zoning' by the inclusion of the additional six lots than it would be without them" where proponents of a zoning change apparently anticipated a charge of spot zoning and enlarged the area to include the three lots on either side of the lot in question). Homer's CBD is over 400 acres; the reclassified area is 7.29 acres. The CBD appears to contain approximately 500 lots; the reclassified area contains 13 lots. A comparison of the size of the area rezoned and the size of the entire CBD is not in itself sufficient to persuade us that the City's decision was the product of prejudice, arbitrary decision -making, or improper motives. South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168,174 (Alaska 1993). Further, it is not necessarily appropriate to compare the area of the affected lots with that of the entire CBD. The comprehensive plan recognized the possibility of subzones. The City considered significant portions of the CBD to be inappropriate for automobile sales and services, particularly Pioneer Avenue and the Bypass. Subtracting those areas from the entire CBD, the reclassified area on Main Street is a relatively larger part of the remaining CBD. Thus, having considered the relative size of the rezoned area in determining whether Ordinance 92-18 constituted spot zoning, we hold that the size of the area rezoned does not require a finding of spot zoning given other factors supporting a contrary conclusion. We conclude that the superior court did not err in finding that Ordinance 92-18 does not constitute spot zoning. B. Claim of Conflict of Interest Homer City Council member Brian Sweiven owned one of the thirteen lots in the reclassified area. He was one of nine owners directly affected by Ordinance 92-18. It appears that it was Sweiven who first recommended to the commission that the rezone apply only to Main Street. An article in the Homer News was titled "Sweiven proposes commercial zoning for downtown Homer." The article refers to the idea of rezoning Main Street as "Sweiven's proposal." Griswold alleges that Sweiven had a disqualifying conflict of interest under Homer municipal law and that his participation in the adoption of Ordinance 92-18 therefore invalidates the Ordinance, even though Sweiven's vote was not necessary for passage. The superior court found that Sweiven did not have a disqualifying conflict of interest and that even if he had, his participation in the deliberations and vote would not invalidate Ordinance 92-18. 1. Was there a conflict of interest? Homer City Code 1.24.040(g) states: A member of the Council shall declare a substantial financial interest the member has in an official action and ask to be excused from a vote on the matter. The Mayor or other presiding officer shall rule on the request; however, the decision may be overridden by the majority vote of the Council. Should a Council member fail to declare a substantial financial interest, the Council may move to disqualify that member from voting by a Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 9 Submitted into the 13ublic 0 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record Jor Jem(s) on 1 City Clerk majority vote of the body. A Council member with a conflict of interest regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter.[12] The code defines "substantial financial interest" as 1. An interest that will result in immediate financial gain; or 2. An interest that will result in financial gain which will occur in the reasonably foreseeable future. [*1026] HCC 1.12.010(a). Under common law, "the focus ... [is] on the relationship between the public official's financial interest and the possible result of the official's action, regardless of the official's intent." Carney v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) (citing Marsh v. Town of Hanover, 113 N.H. 667, 313 A.2d 411, 414-15 (1973)).13 The plain language of HCC 1.24.040(g) appears to coincide with this principle. The City Council did not address Sweiven's alleged conflict of interest until after the Ordinance had been passed. After the council passed the Ordinance, the City Attorney advised the council to address the matter at its next meeting by having Sweiven declare the facts concerning his ownership of the land and ask the council to determine whether his participation in the matter constituted a conflict of interest under the City Code, and to have the Mayor then rule on this question. The City Attorney stated that if the City were to determine that Sweiven had a disqualifying conflict of interest, it should declare the Ordinance void. The City Attorney also stated that, in his opinion, Sweiven's ownership did not constitute a disqualifying conflict of interest. The superior court found that [t]here has been no showing that passage of the ordinance will result in a financial gain to Council member Sweiven, now or in the future. In fact, it may act as a detriment. Council member Sweiven's interest in Ordinance No. 92-18 is simply too remote and/or speculative to require his disqualification as a legislative official. This finding is clearly erroneous. The court further stated, Plaintiff correctly surmises that Council Member Sweiven's purpose and intent at the time he promoted and voted for the ordinance are of crucial importance in determining whether or not he had a conflict of interest. This holding incorrectly states the law, because the proper focus is on the relationship between the official's financial interest and the result of the official's action, "regardless of the official's intent." Carney, 785 P.2d at 548. Sweiven had a "substantial financial interest" within the meaning of HCC 1.12.010(a)(2) in a reclassification which would increase the permissible uses of his property. Indeed, it seems inconsistent for the City to argue both that the Ordinance will benefit the City by increasing the tax base and property values, and that it will not benefit Sweiven's lot in a similar fashion. Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 10 Submitted into thepublic Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record fqr it m(s) t �Z on 1 1 M City Clerk The City nevertheless asserts that Sweiven's interest in the passage of Ordinance 92-18 is too remote and r speculative to constitute a disqualifying interest, and argues that Sweiven's property is affected the same way as other citizens' property. The City attempts to distinguish Carney in which we held that fishermen who sat on the Board of Fisheries could vote on matters affecting the fishing industry as a whole but were disqualified from voting on regulations which affected the area in which they actively fished. We reasoned in Carneythat the members should have abstained from decision -making in areas in which they had a narrow and specific interest. Id. at 548. The City argues that Sweiven did not have a narrow and specific interest because "Mr. Sweiven's operations (his home and appliance repair business) are not affected at all by Ordinance 92-18 (automobile sales and services)." Ordinance 92-18 does not directly affect all of Homer, or even a large part of the City or an entire class of its citizens. Sweiven voted on an amendment which directly affects only thirteen lots, including his own, out of the 500-some lots in the CBD. According to the Alaska Department of Law, the common law requires that a legislator refrain from voting on a bill which will inure to the legislator's financial benefit if the legislator's interest "is peculiarly personal, such as when a bill benefits [*1027] only a tiny class of which the legislator is a member." 1982 Formal Op. Att'y Gen. 4133. Furthermore, it is said in the context of zoning: Most of the cases [of disqualifying conflict of interest] have involved a charge of a more -or -less direct financial interest, and it is clear that such an interest is a proper ground of disqualification, as where the officer himself holds property which is directly involved in or affected by the proceeding. The clearest situation in which disqualifying bias or prejudice is shown is that where the zoning officer himself owns property the value of which will be directly promoted or reduced by the decision to be made and it is not surprising that upon a showing of such interest the courts have usually held the officer disqualified. W.E. Shipley, Annotation, Disqualification for Bias or Interest of Administrative Officer Sitting in Zoning Proceeding, 10 A.L.R.3d 694, 697 (1966). Sweiven himself apparently believed that the Ordinance would increase the value of his property. In recommending the limited rezone to the planning commission, he stated that "it would increase the tax base and property values" of the area. The record reflects that when Sweiven was advocating rezoning the entire CBD, he was quoted in the Homer News as stating: "Even my own business. I can't sell my business, but I can sell my building, and someone who wants to put a VW repair shop there --he can't.... It's not just me. This gives everybody in town a lot more options as far as selling their business." Finally, Sweiven initially refrained from voting on Ordinance 94-13, which would have repealed Ordinance 92-18, on the ground that he had a potential conflict of interest. It consequently appears that Sweiven had a "substantial financial interest" as that term is defined in HCC 1.12.010(a). The superior court's finding that Sweiven did not have a disqualifying conflict of interest is clearly erroneous. 2. What was the effect of the conflict of interest? Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 11 Submitted into the ublic Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record or ' em(s) 4 k L on Z City Clerk There are six voting members on the Homer City Council. Five voted for Ordinance 92-18 on its first reading. One was absent. Four weeks later, it passed its second and final reading, again by a vote of five in favor and one absent. Thus, without counting Sweiven's vote, Ordinance 92-18 would have passed. The superior court held that even if Sweiven had a disqualifying conflict of interest, his participation and voting would not invalidate the result. In support it cited Waikiki Resort Hotel v. City of Honolulu, 63 Haw. 222, 624 P.2d 1353, 1370-71 (1981). Waikiki followed the rule, also articulated in several other jurisdictions, that where the required majority exists without the vote of the disqualified member, the member's participation in deliberation and voting will not invalidate the result. 624 P.2d at 1371 (citing Singewald v. Minneapolis Gas Co., 274 Minn. 556,142 N.W.2d 739 (1966); Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972); Eways v. Reading Parking Auth., 385 Pa. 592, 124 A.2d 92 (1956)). The Waikiki court also cited Marshall v. Ellwood City Borough, 189 Pa. 348, 41 A. 994 (1899), where the court reasoned that because the other four members voted in favor of the disputed ordinance, the invalid vote of one city councilman had no legal efficacy; thus, the court would not invalidate the ordinance. Waikiki, 624 P.2d at 1371. Waikiki cited decisions from three other jurisdictions holding that a vote cast by a disqualified member vitiates the decision in which the member participated, even if the vote does not change the outcome of the decision. 624 P.2d at 1370 (citing Piggott v. Borough of Hopewell, 22 N.J.Super. 106, 91 A.2d 667 (1952); Baker v. Marley, 8 N.Y.2d 365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Buell v. City of Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972)). In Buell, the court stated: The self-interest of one member of the planning commission infects the action of the other members of the commission regardless of their disinterestedness. The recommendation of the planning commission to the city council could not be assumed [*1028] to be without impact on the council. More importantly, it would not appear to the affected public that it was without impact, and [the disqualified member's] actual financial gain is sufficient to invalidate the entire proceeding. 495 P.2d at 1362-63 (citations omitted). These lines of authorities offer a choice between vote -counting (Waikiki) and automatic invalidation (Buell). We have not had occasion to consider this exact issue. In Carney, we found that four of seven fisheries board members had a disqualifying conflict. We then held the board's regulation invalid: "Because a majority of the votes cast to pass the regulation are invalid, so is the regulation." 785 P.2d at 549. Carney did not raise the issue now before us because there the measure would have been invalidated under either doctrine. We decline to follow the vote -counting approach adopted in Waikiki, notwithstanding its appealing ease of application. A council member's role in the adoption or rejection of an ordinance cannot necessarily be measured solely by that member's vote. A conflicted member's participation in discussion and debate culminating in the final vote may influence the votes of the member's colleagues. Moreover, the integrity required of public officeholders demands that the appearance of impropriety be avoided; the approach adopted in Waikiki will not always do so. See Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 477 (Alaska 1977) (holding financial disclosure laws preserve the integrity and fairness of the political process both in fact and appearance); Warwick v. State ex rel. Chance, 548 P.2d 384, 388 (Alaska 1976) ("[I]t is important that the Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 12 Submitted into the public Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record or item(s) f Z. 5 on City Clerk legislature not only avoid impropriety, but also the appearance of impropriety."). Cf. AS 39.50.010(b)(1) (public office is a public trust which should be free from the danger of conflict of interest). The superior court erred in holding that Ordinance 92-18 is valid simply because Sweiven did not cast the decisive vote in its adoption. We also decline, however, to adopt the rule of automatic invalidation endorsed in cases such as Buell, 495 P.2d at 1362-63. The vote and participation of a conflicted member will not invariably alter the votes of other members or affect the merits of the council's decision. This is especially true if the conflict is disclosed or well- known, allowing other members to assess the merits of the conflicted member's comments in light of his or her interest. Automatic invalidation could needlessly overturn well -considered measures which would have been adopted even if the disqualified member had refrained from participating. Automatic invalidation has the potential for thwarting legislative enactments which are not in fact the result of improper influence. The dissenting opinion cites HCC 1.12.030 as justification for its conclusion that participation by a disqualified member requires invalidation of the council's action.14 HCC 1.12.030 and 1.24.040(g), however, determine whether a member may vote or participate. They deal with disqualification, and do not address the consequences of participation by a conflicted member. The drafters of the code must have contemplated that violations might occur notwithstanding the prohibition. They nonetheless specified no remedy. Had they intended that particular consequences would follow from violation of the prohibition, such as the clear-cut remedies of automatic invalidation or vote -counting, they could have easily so provided. Their failure to specify a remedy for violation implies that the drafters intended that the courts fashion the remedy. In determining whether the vote of a conflicted member demands invalidation of an ordinance, courts should keep in mind the two basic public policy interests served by [*1029] impartial decision -making: accuracy of decisions, and the avoidance of the appearance of impropriety. See generally Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L.Rev. 161 (1989). Guided by these basic policy concerns, we conclude that the following analysis should be applied in determining the effect of a conflicted vote. Initially the court must determine whether a member with a disqualifying interest cast the decisive vote. If so, the ordinance must be invalidated. Carney, 785 P.2d at 549. If the ordinance would have passed without the vote of the conflicted member, the court should examine the following three factors: (1) whether the member disclosed the interest or the other council members were fully aware of it; (2) the extent of the member's participation in the decision; and (3) the magnitude of the member's interest. The first two factors squarely bear on the accuracy of the council's decision. All three factors directly relate to any appearance of impropriety. If the interest is undisclosed, the ordinance will generally be invalid; it can stand only if the magnitude of the member's interest, and the extent of his or her participation, are minimal. If the interest is disclosed, the ordinance will be valid unless the member's interest and participation are so great as to create an intolerable appearance of impropriety. The party challenging the ordinance bears the burden of proving its invalidity. We recognize that this analysis is more difficult to apply than the vote -counting and automatic invalidation rules. Simple to apply, those rules are unacceptably rigid. Bloomberg Laws © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service II PAGE 13 Submitted into () n4 6 .L A w ic Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record r i m s o on 611113City Clerk The factual record before us is not so clear that we can decide as a matter of law whether invalidation is 3 appropriate. The record does not reveal whether the other council members had actual knowledge of Sweiven's interest. While Sweiven's interest in his lot, where he lived and worked, was open and obvious, this is a matter of potential factual dispute to be explored on remand. Likewise, we cannot weigh the extent of Sweiven's participation or say whether it may have affected the outcome of the measure. Nor does the record establish whether Sweiven was likely in the foreseeable future to realize any significant appreciation from the reclassification by selling or servicing motor vehicles or by selling his lot to someone who intended to do so. We therefore remand so that the superior court, applying the analysis discussed above, can determine whether Ordinance 92-18 must be invalidated. C. Public Interest Litigant Status The superior court found that Griswold was not a public interest litigant. That finding was clearly erroneous because Griswold met all four criteria of a public interest litigant in this case: (1) his lawsuit was designed to effectuate strong public policies; (2) if Griswold succeeded, numerous people would have benefited from the lawsuit; (3) only a private party could be expected to bring the action; and (4) Griswold lacked sufficient economic incentive to bring the lawsuit if it did not also involve issues of general importance. See Oceanview Homeowners Assn, Inc. v. Quadrant Constr. and Eng'g, 680 P.2d 793, 799 (Alaska 1984) (citing Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska 1982)). In Oceanview, the plaintiff was a homeowners' association which objected to a Zoning Board of Appeals decision to set aside orders issued by the Zoning Enforcement Office of the Anchorage Department of Public Works. These orders restricted improvements to and the use of a private airstrip located in a residential area. 680 P.2d at 795. We held that the homeowners' association was a public interest litigant. Id. at 799. We found that "Oceanview's appeal was designed to vindicate a strong public policy in effectuating zoning ordinances, that numerous people in the area would have benefited had it succeeded, and that only a private party could have been expected to bring the appeal." Id. The superior court stated that "it is hard to see how declaring a valid legislative enactment 'illegal' would be of benefit to anyone." That statement misapprehends the meaning of the public interest litigant criteria and has no application here. Griswold's appeal was [*1030] designed to vindicate the strong public policy of ensuring that zoning ordinances are not arbitrary or capricious. This public policy is quite similar to, and at least as important as, ensuring that zoning ordinances are properly enforced. The importance of this issue to the general public is evidenced by the considerable amount of public comment regarding the passage of the Ordinance, prompting one planning commissioner to state, "[t]he car lot deal drew as much public comment as anything we (planners) have had but the sign ordinance." Likewise, just as the Oceanview suit benefited at least the community of homeowners, Griswold's suit was intended to benefit the entire community of Homer, especially those who live, shop, and operate small businesses in the CBD, by challenging the City's alleged arbitrary deviation from its zoning plan. It is also true in this case, as in Oceanview, that only private citizens can be expected to bring suit against a municipality for a zoning violation of this nature, not because the issue is not one of general importance, as the superior court stated, but because the defendant in this case is the public entity which would normally be enforcing Homer's zoning code. Bloomberg Law' © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service 11 PAGE 14 Submitted into the public 1 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record r i em(s) JL q on — -5 11111,5 City Clerk Only the fourth component of the public interest litigant test appears even arguable. That criterion requires that the public interest litigant not have "sufficient economic incentive to bring the lawsuit even if it involved only narrow issues lacking general importance." Griswold lives in the CBD and owns an automobile repair shop on a lot located in the CBD but not included in the reclassified area. He thus continues to be restricted by his "grandfather" status in the operation of his business, and may lose his rights if he ceases operation for more than one year. The superior court agreed with Griswold that "any economic advantage he might have gained, if successful, was slight." The court nevertheless found that this fact "does not obviate the fact that one of [Griswold's] primary motives in pursuing this litigation was to achieve this goal." Thus, the court found that even a "slight" economic gain can be sufficient to constitute a plaintiffs primary motivation in bringing a lawsuit. Neither case law nor the record in this case supports the court's finding. In Oceanviewwe found that the homeowners' association which claimed that the "immediate effect of the [adverse zoning board] decision is to deny or diminish the value of real property owned or leased by appellant" was nevertheless a public interest litigant, citing Oceanview's "consistent emphasis on health and safety to the virtual exclusion of economic concerns." 680 P.2d at 799 n. 3. Likewise, in this case, Griswold's emphasis was always on the harm to the community, the importance of public accountability, and fairness in municipal government. Griswold stated in a sworn affidavit that he did not have any expectation of financial gain as a result of filing the lawsuit. He wrote a letter to the Homer Advisory Planning Commission stating that he opposed rezoning any areas of the CBD to GC1. These facts are not contested. Moreover, it appears that Griswold only discussed the exclusion of his own lot to illustrate the equal protection problems and arbitrariness inherent to spot zoning cases, and to demonstrate his standing, disputed by the City early in the suit, to bring this lawsuit. See id. (stating that appellant's claim of standing due to immediate economic harm is "not synonymous with 'economic incentive"'). The court's emphasis on Griswold's "political motivation" also conflicts with its finding that the hope of slight economic gain was Griswold's primary motivation. Griswold satisfies Alaska's four -factor public interest litigant test. We consequently hold that he is a public interest litigant. IV. CONCLUSION We hold that Ordinance 92-18 does not constitute spot zoning, and consequently AFFIRM that aspect of the judgment below. We hold, however, that council member Sweiven had a conflict of interest which should have disqualified him from participating in consideration of the Ordinance. We consequently REVERSE the court's finding that there was no conflict of interest and REMAND so the superior court can determine whether the Ordinance must be invalidated. We also REVERSE that portion of [*1031] the judgment imposing costs and fees on Griswold. RABINOWITZ, Justice, dissenting in part. I believe it is of particular significance that Sweiven participated in the discussion of and voted for Ordinance 92-18. As the court observes, this ordinance does not directly affect all of Homer, or even a large segment of the City or an entire class of its citizens. More particularly, the ordinance directly affects only thirteen lots, including Sweiven's own, out of approximately 500 lots located within the Central Business District. The record Bloomberg Laws © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service ll PAGE 15 Submitted into the RRublie record or 'M (s) R,, �i_ v Q L, 4 Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion re , City Clerk further reveals Sweiven's belief that Ordinance 92-18 would increase the value of his property. Indeed Sweiven explicitly stated that "[the proposal] would increase the tax base and property values" of the area when recommending the Limited Rezone to the planning commission) Based on the foregoing, the court correctly concludes that "Sweiven had a'substantial financial interest' within the meaning of HCC 1.12.010(a)[2] in a reclassification which would increase the permissible uses of his property.... The superior court's finding that Sweiven did not have a disqualifying conflict of interest is clearly erroneous." Op. at 25, 28. My disagreement with the court's opinion goes to its discussion of the effect of Sweiven's conflict of interest and the appropriate remedy given the factual context of this case. Central to my differing analysis are the provisions of the Homer City ordinances which address the subject of conflict of interest. In my view, the court's analysis ignores that part of the Homer Municipal Code 1.12.030, which states: A City Councilmember or Mayor with a conflict of interest under section 1.12.020 shall so declare to the body as a whole and ask to be excused from voting on the matter. However, a City Councilmember or Mayor with a conflict of interest, regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter. (Ord.92-49(A) § 4, 1992; Ord. 86-22(S) § 1(part), 1986).[3] The City of Homer, as expressed in section 1.12.030 of its Code, has adopted a policy which flatly contradicts the court's statement that [t]he vote and participation of a conflicted member will not invariably alter the votes of other members or affect the merits of the council's decision. This is especially true if the conflict is disclosed or well known, allowing other members to assess the merits of the conflicted member's comments in light of his or her interest. Regardless of the wisdom of the City of Homer's legislative enactment barring conflicted [*1032] council members' participation in decisions,4 the fact remains that the City of Homer has expressly adopted a rule specifically prohibiting conflicted council members from taking part in discussion or voting on the matter of interest. In fact, the prohibition on discussion is more stringent than the rule on voting --even when the "Mayor or other presiding officer" decides that the member need not be excused from voting, and even when the council chooses not to override that decision by a simple majority vote, the member is nonetheless forbidden to participate in the discussion. The rule adopted by the court pays no heed to this participation ban contained in the City of Homer's municipal code. The portions of the court's rule which conflict with the express non -participation policy of HCC 1.12.030 are the following: If the interest is undisclosed, the ordinance will generally be invalid; it can stand only if the magnitude of the member's interest, and the extent of his or her participation, are minimal. If the interest is disclosed, the ordinance will be valid unless the member's interest and participation are so great as to create an intolerable appearance of impropriety. Bloomberg Law* © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service ll PAGE 16 Submitted into the ublic Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record tr Yem(s) on ,I iA City Clerk (Emphasis added.) In short, the court's rule would permit a conflicted council member to participate in the discussion of a matter before the body responsible for official action in cases where the conflicting interest has been disclosed, or where the conflicting interest is undisclosed and the conflicted member's participation does not create an intolerable appearance of impropriety. Although the court's formulation might well be adopted as a general rule, I think it inappropriate to do so in the face of an ordinance completely prohibiting participation by any city council member with a substantial conflicting interest in the subject matter of a proposed ordinance. In this regard, it is noteworthy that HCC 1.12.030 is not couched in terms of de minimis levels of participation. On the contrary, it imposes a complete ban on the conflicted member's participation. Given the participation ban imposed by HCC 1.12.030, Sweiven's conflict generating significant financial interest, and Sweiven's participation in the discussion of Ordinance 92-18, 1 conclude that the appropriate remedy is invalidation of the ordinance. As the court recognizes, a council member's role in the adoption or rejection of an ordinance cannot necessarily be measured solely by that member's vote. A conflicted member's participation in discussion and debate culminating in the final vote may influence the votes of the member's colleagues. The court also appropriately recognizes that the integrity required of public office holders demands that even the appearance of impropriety be avoided.5 [`1033] Guided by these principles and the City of Homer's explicit ban on a conflicted member's participation, I respectfully dissent from the court's remedy. Rather than remand this issue, I would hold Ordinance 92-18 invalid because of council member Sweiven's participations MAJORITY OPINION FOOTNOTES fn1 AS 29.40.030 defines a comprehensive plan as follows: [A] compilation of policy statements, goals, standards, and maps for guiding the physical, social, and economic development, both private and public, of the first or second class borough, and may include, but is not limited to, the following: (1) statements of policies, goals, and standards; (2) a land use plan; (3) a community facilities plan; (4) a transportation plan; and (5) recommendations for implementation of the comprehensive plan. Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 17 Submitted into the public p Iu Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record J r i m(s) f Z, on I City Clerk fn2 Although the Borough's tax assessment records indicate that Guy Rosi Sr. owns only part of Lot 13, the parties and the trial court have referred to his parcel as "Lot 13." We do the same. fn3. This appeal concerns the validity of an enactment of a legislative body, rather than a decision of a zoning board. See Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974) (analyzing a Borough Assembly's ordinance as a legislative enactment). We are here reviewing a superior court judgment rejecting claims that a municipal ordinance is invalid. We give independent consideration to the legal conclusions of the superior court. Beesley v. Van Doren, 873 P.2d 1280, 1281 (Alaska 1994). We will uphold the superior court's findings of fact unless they are clearly erroneous. In re R.K., 851 P.2d 62, 66 (Alaska 1993). M4 We have held that, although a planning commission is not required to make specific findings supporting its decisions, it must articulate reasons for its decisions sufficient to assist the parties preparing for review and to restrain agencies within the bounds of their jurisdiction. South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168, 175 (Alaska 1993) (citing City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska 1985); and Kenai Peninsula Borough v. Ryherd, 628 P.2d 557, 562 (Alaska 1981)). fn5, Griswold also argues that the Ordinance is invalid because it is inconsistent with the City's zoning code and comprehensive plan. We consider this argument in conjunction with our discussion of spot zoning. fn6. The City argues that spot zoning should not be considered per se illegal, but merely descriptive. Thus, whether spot zoning is valid or invalid would depend upon the facts of each case. See Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579, 588 (1988); Save Our Rural Env't v. Snohomish County, 99 Wash.2d 363, 662 P.2d 816 (1983); Tennison v. Shomette, 38 Md.App. 1, 379 A.2d 187 (1977). However, we will follow the vast majority of jurisdictions which hold that, while not all small -parcel zoning is illegal, spot zoning is per se illegal. See Chrismon, 370 S.E.2d at 588 (noting that majority of jurisdictions regard spot zoning as a legal term of art); 3 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning § 28.01 n. 2 (4th ed.1995) (compiling cases holding same); Anderson, supra, § 5.12, at 359 n. 46 (same). Thus, spot zoning is simply the legal term of art for a zoning decision which affects a small parcel of land and which is found to be an arbitrary exercise of legislative power. Cf. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 ("[T]he constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based upon some rational policy."). fn7. The City argues that Griswold could not show any "concrete detriment" but instead "could only argue that car lots were not pleasant to look at, they didn't alleviate traffic, and other similar arguments." fn8 At trial the City's planner testified that the Ordinance was restricted to Main Street to avoid certain negative impacts in more tourist -oriented areas. These negative impacts include traffic congestion, visual blight, detraction from the pleasing aesthetic nature of Pioneer Avenue, and conflict with the comprehensive plan's goal of promoting sidewalks, pocket parks, and pedestrian amenities in the CBD. fn9. Not all of the goals articulated by the City can be considered legitimate per se. For example, any zoning change which eases restrictions on property use could be said to further the goal of "filling in vacant places." Similarly, increasing the tax base and the employment of a community is not automatically a legitimate zoning goal. See Concerned Citizens for McHenry, Inc. v. City of McHenry, 76 III.App.3d 798, 32 III.Dec. 563, 568, 395 N.E.2d 944, 950 (1979) (an increase in the tax base of the community as the primary justification for a rezone is "totally violative of all the basic principles of zoning"); Oakwood at Madison, Inc. v. Township of Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service ll PAGE 18 Submitted into the ublic N Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record r i em(s) y on City Clerk Madison, 117 N.J.Super. 11, 283 A.2d 353, 357 (1971) (finding that "fiscal zoning per se is irrelevant to the statutory purposes of zoning [although] 'alleviating tax burden is a permissible zoning purpose if done reasonably and in furtherance of a comprehensive plan) (citing Gruber v. Mayor and Tp. Committee of Raritan Tp., 39 N.J. 1, 186 A.2d 489, 493 (1962))'"; Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971) (allowing industrial development on only one site would be arbitrary spot zoning despite the potential tax revenue the oil refinery would produce). Thus, the goal of increasing the tax base and employment opportunities is usually legitimate only if the ordinance is otherwise reasonable and in accordance with the comprehensive plan. Some courts have allowed inconsistent small or single parcel rezoning in order to raise tax revenues or stimulate needed industry if the public receives higher tax revenue or employment industries. Ziegler, supra, § 28.04, at 28-20. Generally, the facility being built must be indisputably needed, and the city must have secured assurance as to the existence and amount of increased employment and tax revenue. For example, in Information Please Inc. v. County Commis of Morgan County, 42 Colo.App. 392, 600 P.2d 86 (1979), the county rezoned agricultural area to industrial to accommodate an electric utility after determining the plant would add $46, 000,000 to the tax base of the county, and provide approximately 250 jobs after it was completed. Id. 600 P.2d at 88. In Watson v. Town Council of Bernalillo, 111 N.M. 374, 805 P.2d 641, 647 (App.1991), the county made findings that the rezone would employ eighty-seven people from the community and would produce tax revenues constituting twenty-five percent of the city's budget. In Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579, 590 (1988), the court approved the rezoning of two contiguous tracts from agricultural to conditional use industrial district to facilitate expansion of an already -operating grain elevator. The court stated that the "[e]vidence clearly shows that [the owner's] operation is beneficial to area farmers." Id. It also noted that spot zoning will be allowed even where the adjacent property owners object and the owner receives a greater benefit than others if there is a community -wide need for the rezone. Id. fnl0. Currently, Rosi Jr.'s lot is not affected by Ordinance 92-18 since that lot has been contract rezoned to GC1. fall 1. There may be an immaterial discrepancy about the size of the reclassified area. There was testimony Ordinance 92-18 affected 7.29 acres, but the trial court's memorandum decision stated the affected lots contained about 7.44 acres. That decision did not state that the exact size of the parcel was significant to its determination that the amendment does not constitute illegal spot zoning. fn12 In addition, Homer's City Code mandates that a city official "disclose any financial interest in any matter before the board or commission before debating or voting upon the matter" and prohibits the official from participating in the debate or vote unless the board or commission determines that a financial interest is not substantial as defined in HCC 1.12.010. HCC 1.12.070 (emphasis added). fall 3. At first glance it may appear that the Executive Branch Ethics Act, AS 39.52.010-.960, which explicitly supersedes the common law on conflicts of interest, see AS 39.52.910, requires intent on the part of public officials subject to that Act. See AS 39.52.120(b)(4). However, that Act does not apply to municipal officials. Gates v. City of Tenakee Springs, 822 P.2d 455, 462 (Alaska 1992). Thus, the common law of conflicts of interest continues to apply to municipal officers. Carney, 785 P.2d at 547-48. fn14. The portion of HCC 1.12.030 cited by the dissent states: A City Councilmember or Mayor with a conflict of interest under section 1.12.020 shall so declare to the body as a whole and ask to be excused from voting on the matter. However, a City Councilmember or Mayor with a conflict of interest, regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter. (Ord.92-49(A) § 4, 1992; Ord. 86-22(S) § 1(part), 1986). Bloomberg Laws © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms or Service // PAGE 19 Submitted into the public Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record f item(s) on I City Clerk This language is nearly identical to the similar prohibition in HCC 1.24.040(g), but also applies to the mayor. DISSENTING OPINION FOOTNOTES fn1 The court notes: The record reflects that when Sweiven was advocating rezoning the entire CBD, he was quoted in the Homer News as stating: "Even my own business. I can't sell my business, but I can sell my building, and someone who wants to put a VW repair shop there --he can't.... It's not just me. This gives everybody in town a lot more options as far as selling their business." Finally, Sweiven refrained from voting on Ordinance 94-13, which would have repealed Ordinance 92- 18, on the ground that he had a potential conflict of interest. Op. at 27. fn2 At all times relevant to the case at bar, HCC 1.12.010(a) defined "substantial financial interest" as follows: 1. An interest that will result in immediate financial gain; or 2. An interest that will result in financial gain which will occur in the reasonably foreseeable future. (HCC 1.12.010 has subsequently been amended.) ­ HCC 1.12.020 provides: A City Councilmember or Mayor with a substantial financial interest in an official action to be taken by the Council has a conflict of interest. (Ord.92-49(A) § 3, 1992; Ord. 86-22(S) § 1(part), 1986). fn3. HCC 1.12.040 provides: The Mayor or, in his absence, the Mayor Pro-Tem or other presiding officer, shall rule on a request by a City Councilmember to be excused from voting on a matter because of a declared conflict of interest. The Mayor Pro -tern or other presiding officer shall rule on a request by the Mayor to be excused from participating in a matter because of a declared conflict of interest. (Ord.92-49(A) § 5, 1992; Ord. 86-22(S) § 1(part), 1986). HCC 1.12.050 further provides: A decision of the Mayor or other presiding officer under Section 1.12.040 may be overridden by a majority vote of the City Council. (Ord.86-22(S) § 1(part), 1986). N. This court has consistently held that it is not our function to question the wisdom of legislation. University of Alaska v. Geistauts, Bloomberg Law © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service // PAGE 20 Submitted into the ublic tW Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion record or ltem(s) he 4 on 5 1111City Clerk 666 P.2d 424, 428 (Alaska 1983); Alaska Interstate v. Houston, 586 P.2d 618, 621 (Alaska 1978). f175. See generally Mark W. Cordes, Policing Bias and Conflict of Interest in Zoning Decisionmaking, 65 N.D. L.Rev. 161 (1989). Here the author writes in part: The second and more common provision is to prohibit participation when a conflict of interest exists. The rationales behind this are obvious. Although disclosure has some restraining effect, a significant conflict might still affect the substantive outcome of a decision. More importantly, perceptions of fairness and legitimacy are only partly addressed by disclosure. For these reasons disqualification rather than disclosure is the preferable approach. Although in some instances disclosure might adequately address the need for impartiality, in many instances it will only be partially effective. The inconvenience of adjusting to the disqualification of a decisionmaker is not so great as to justify the threat to accuracy and legitimacy posed by the requirement of mere disclosure. Beyond determining what effect a conflict of interest should have on a particular decisionmaker is what judicial remedies should be available when a zoning decision in fact involved an improper conflict of interest. In those instances in which the biased decisionmaker casts a dispositive vote, courts have consistently invalidated the decision. This seems appropriate in that both accuracy and legitimacy concerns are clearly threatened when a decision appears to turn on the vote of a self -interested decisionmaker. A more difficult issue is whether the participation of a conflicting member whose vote was not determinative to a decision should also result in invalidation. This might occur in two general situations. First is where the tainted vote was numerically unnecessary for the decision. Courts have evenly split on this issue, with a slight majority favoring invalidation. Courts refusing to invalidate such decisions have primarily reasoned that even without the tainted vote the decision would have occurred anyway and therefore invalidation is improper. In this sense the threat to accuracy and legitimacy concerns is arguably de minimis when the particular vote is apparently not crucial to a decision. In particular, legitimacy concerns are less threatened when a decision appears inevitable. As a result, the administrative burden of invalidating and remanding a decision outweighs any threat to substantive results and perceptions of fairness. Despite these distinctions, several strong reasons exist for invalidating decisions even when a tainted decisionmaker's vote was numerically unnecessary for the decision. First, courts invalidating such decisions have noted that collegial decisionmaking ideally involves the exchange of ideas and views, often with the intent of persuading toward a particular position. The actual contribution of any particular decisionmaker cannot be measured with precision, but frequently extends significantly beyond the actual vote cast. For this reason, a significant threat to accuracy can exist even when a particular vote was numerically unnecessary for the decision. For similar reasons legitimacy concerns also exist even when a vote is numerically unnecessary. Although legitimacy concerns are less substantial in such circumstances, the perception of collegial decisionmaking and the potential influence of a tainted decisionmaker on others would violate "appearance of fairness" standards. Thus, for both accuracy and legitimacy reasons the better view is that even when a vote is numerically unnecessary for a decision courts should still invalidate it. Id. at 214-216 (footnotes omitted). Bloomberg Law" © 2023 Bloomberg Industry Group, Inc. All Rights Reserved. Terms of Service ll PAGE 21 © Griswold v. City of Homer, 925 P.2d 1015 (Alaska 1996), Court Opinion fn6. I note my agreement with the courts other holdings. Table of Cases Submitted into the ublic 5 record J& it m s) on ! � Z City Clerk Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985) Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299 (Alaska 1982) Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough , 527 P.2d 447, 452 (Alaska 1974) Western Springs v. Bernhagen, 326 III. 100, 156 N.E. 753, 754 (1927) South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168, 174 (Alaska 1993) Smith v. County of Washington, 241 Or. 380, 406 P.2d 545, 548 (1965) Ballenger v. Door County, 131 Wis.2d 422, 388 N.W.2d 624, 627 (App.1986) Jones v. Zoning Bd. of Adjustment of Long Beach, 32 N.J.Super. 397,108 A.2d 498 (1954) Watson v. Town Council of Bernalillo, 111 N.M. 374, 805 P.2d 641, 645 (App.1991) Barber v. Municipality of Anchorage, 776 P.2d 1035, 1037 (Alaska) , cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989) Cadoux v. Planning and Zoning Comm'n of Weston, 162 Conn. 425, 294 A.2d 582, 584, cert. denied, 408 U.S. 924, 92 S.Ct. 2496, 33 L.Ed.2d 335 (1972) 'qmr Speakman v. Mayor of N. Plainfield, 8 N.J. 250, 84 A.2d 715, 718-19 (1951) Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971) Atherton v. Selectmen of Bourne, 337 Mass. 250, 149 N.E.2d 232, 235 (1958) South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168,174 (Alaska 1993) Carney v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) Marsh v. Town of Hanover, 113 N.H. 667, 313 A.2d 411, 414-15 (1973) Waikiki Resort Hotel v. City of Honolulu, 63 Haw. 222, 624 P.2d 1353, 1370-71 (1981) Singewald v. Minneapolis Gas Co., 274 Minn. 556,142 N.W.2d 739 (1966) Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972) Eways v. Reading Parking Auth., 385 Pa. 592,124 A.2d 92 (1956) Marshall v. Ellwood City Borough, 189 Pa. 348, 41 A. 994 (1899) Piggott v. Borough of Hopewell, 22 N.J.Super. 106, 91 A.2d 667 (1952) Baker v. Marley, 8 N.Y.2d 365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960) Buell v. City of Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972) Falcon v. Alaska Pub. 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