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Quiet Creek plat moves to borough

Posted: February 26, 2014 - 5:34pm  |  Updated: February 26, 2014 - 6:18pm

In a rare use of an obscure part of city code, the Homer City Council on Monday considered — and rejected — a resolution expressing its disapproval of a Homer Advisory Planning Commission decision. 

The commission on Jan. 2 recommended approval by the Kenai Peninsula Borough Platting Committee of a preliminary plat for the 37-acre, 71-lot Quiet Creek Park subdivision near Homer High School.

In a 4-1 tally, with council member David Lewis voting no and council member Francie Roberts recused from voting, the council spiked the resolution.

“I’m satisfied that enough information has been forwarded to the borough for them to make an educated, wise decision,” council member Barbara Howard, attending telephonically, said in explaining why she would vote against the resolution.

The platting committee will consider the preliminary plat at its March 10 meeting.

Speaking Monday night, former council member and planning commissioner Ray Kranich said in his experience he did not recollect the council considering ever overriding a decision of the planning commission in this way.

Roberts and Lewis introduced the resolution in response to complaints by opponents of the subdivision plat that information submitted on time by Katherine George and Devony Lehner to the planning commission had been left out of the Jan. 2 packet. 

Citing the omission of that material, commissioner Larry Slone called for reconsideration of the Quiet Creek plat at the Jan. 15 meeting, but that motion failed.

Two neighbors of the subdivision, Ginny Espenshade and Paul Gavenus, cited city code that says every decision or finding of the planning commission be directed to the council and that the council could disapprove actions. 

“The public has a right to expect fair process,” Espenshade said Monday. “You have the authority and duty to review the planning commission.” 

In a memorandum to the city council at its Feb. 10 meeting, City Attorney Thomas Klinkner noted this section of the code and advised the council could exercise this action. Many planning commission decisions, such as denial of a Conditional Use Permit, can be appealed to the city council acting as the Board of Adjustment, a quasi-judicial proceeding.

Quiet Creek Park LLC member-manager Tony Neal, one of nine part-owners in the company, submitted a letter raising the issue of Roberts having a conflict of interest. 

“Roberts not only has an obvious conflict of interest, she acts on her own conflict to the detriment of the city of the whole,” Neal said at Monday’s meeting.

According to the borough online parcel viewer, Roberts’ home on Mountain View Drive is about 335 feet from the western edge of the Quiet Creek lot near the high school. Roberts also testified in writing and in person at planning commission public hearings on the Quiet Creek plat.

In a memo, Klinkner advised the council of the rules on conflict of interest. Because it was not acting as a quasi-judicial body, rules on impartiality did not apply. Council member Beau Burgess also lives near the Quiet Creek Park area, in a home on South Slope Drive about 420 feet away that he co-owns with his father, Tony Burgess. The council had to rule if the two council members had a conflict of interest before voting on the resolution.

That process got a bit confusing when in Roberts’ case the council first voted 3-1 that she had a conflict. 

In a phone call Monday, Klinker told the council on the recusal votes, Roberts and Burgess would have to step aside. Mayor Beth Wythe realized she should have made her ruling first, with the council then voting if anyone objected. 

On reconsideration, Wythe then ruled Roberts had a conflict. 

To confuse matters further, when Lewis objected, the council then voted 3-1 to uphold Wythe’s ruling. Deputy Clerk Melissa Jacobsen pointed out that the council should have done the vote the opposite way, with the motion to veto Wythe’s ruling, and thus a yes vote would be in favor of the veto. Wythe stated for the record that the council’s intention was to not override the mayor.

In determining if Burgess had a conflict, Wythe ruled he did not, with no council members objecting. The council did not consider if because Roberts had a conflict her name should be taken off as a sponsor of the resolution.

Lewis tried to introduce an amendment saying the council neither approved or disapproved the Quiet Creek plat, but did want the platting committee to reconsider the plat with all documents submitted. That amendment failed.

“I am neither for or against this development, but I feel everybody should be heard,” Lewis said. 

Other council members expressed reluctance to disapprove the planning commission’s decision.

“I’m very reluctant to have the city council take any action and send this kind of message to the planning commission,” council member Bryan Zak said.

In public comments at the end, George expressed her disappointment in the council’s action.

“Some of those documents came from me,” George said. “For you to say that what I have to say is not important is just wrong.”

Burgess pointed out a flaw in the process. The council couldn’t send the issue back to the planning commission for another hearing because it lacked authority in plat proceedings to do that — a power reserved to the borough platting committee.

“I know this was a difficult meeting,” Burgess said. “We couldn’t find a way without objecting to the planning decisions to find a reasonable opportunity for public input.”

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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