New rules for appeals in Kenai
There will be a more rigorous process for appealing some city decisions for Kenai residents. The council approved changes to city code that lay out who has good standing for such appeals.
Council members GlenesePettey and Henry Knackstedt sponsored the ordinance that narrow the prerequisites to filing an appeal decisions by the planning and zoning commission. Knackstedt said it’s meant to keep from potentially holding up projects with last minute appeals that might be filed by people who aren’t necessarily affected by the decision.
“It allows a reasonable avenue for appeal, that you have skin in the game, that actually participated, that you didn’t show up at all and then you appeal on the 15th day of the appeal period, surprising everybody and so forth," Knackstedt said.
The code update amounts to changing some specific wording. The benchmark standard used is what’s currently in place at the borough and for the cities of Soldotna and Homer, where for someone to have good standing to file an appeal, they must have engaged the commission in person or in writing, they must own property and they also have to show that the decision would have an adverse effect on that property. That word, show, is important here, because showing that a decision is harmful is a tighter standard than simply stating it. City attorney Scott Bloom says neither is perfect.
“Although from my perspective, ‘shows’, in the way I would interpret it and work with our clerk, is not a high bar, based on that you don’t have to show actual but potential harm.”
Another change is giving the city clerk discretion to determine who does or doesn’t have standing to file an appeal. Right now, that responsibility fall to the board of adjustment. Council member Bob Molloy, who offered up several amendments seeking to enable the most public engagement, wants the clerk to have a clear set of guidelines for making those decisions.
“I think the clerk should have a checklist...and you’re in or you’re out. That’s the way we’ve been doing it."
He says that word, shows, leaves too much to be interpreted on the fly. It might not be possible in some cases to show that property’s value took a dive because of some nearby project until after the project is completed. Molloy pointed to issues with gravel pits in the borough.
“They couldn’t really show (harm) in the time period, but they do have that because they’ve since sold their property and lost 40 grand. And they don’t care anymore because they don’t own property. So that’s what my concern is, and I think you have to tell us that’s happening and tell us what your harm is and the clerk can check it off, then I’m okay with that.”
The council voted down four of Molloy’s amendments. Mayor Brian Gabrial said the point of the change isn’t to give people fewer opportunities to challenge city actions, but to keep those challenges specific. He noted some challenges to permit applications for cannabis businesses.
“If you’re on that side where you are philosophically opposed, you can just sit there and sort of shoot arrows all day long at it. I think there needs to be some side boards. I don’t want to sound like we want to limit anyone who has opposition, but certainly if someone is personally affected by a piece of legislation by planning and zoning, they have the right to go through an appeal and they have the right to due process.”
And there is still a long process to challenge the city if it finds someone not to be in good standing for an appeal, with options to take the matter up with the local board of adjustment and further up to superior court if necessary. The council, with the exceptions of members Molloy and Boyle, voted for the new rule changes, which go into effect April 20th.