At their Wednesday meeting the Kenai City Council voted to change the rules that had allowed any Kenai resident to challenge any decision by city administrators or the Kenai Planning and Zoning commission. Now, to appeal appeal a city decisions to the seven council members — who decide on challenged decisions as a board of adjustment — a Kenai resident must be an owner or renter of the affected property who participated in the decision beforehand in writing or at a public meeting.
Council members Henry Knackstedt and Glenese Pettey proposed the changes after an unsuccessful appeal against the planning and zoning commission’s permitting of a marijuana shop, brought by Kenai resident and political activist Bob McIntosh, who doesn’t own affected property but argued that the decision harmed Kenai residents in general.
Pettey said the ordinance was meant “is presented in such a way to prevent extraneous expense to the city after the city has made opportunity for all citizens of our fair city to participate in the process.” At a council member’s request, Kenai City Clerk Jamie Hienz calculated that McIntosh’s appeal had cost $4,855 in city staff time.
Originally introduced March 21, the council delayed discussing and voting on the ordinance at the request of council member Bob Molloy, who was absent that meeting. On Wednesday, Molloy unsuccessfully proposed six changes to the ordinance and, with council member Mike Boyle, ultimately voted against it.
The municipal code that allowed McIntosh to make his appeal simply as a Kenai resident was originally meant to narrow appeal eligibility. Kenai City Code didn’t define who was eligible to appeal until 2005, an especially contentious year when council members ruled on five challenged decisions. Molloy, who started his first council term in October 2005, said the first limits came in March 2005, when then-council member Joe Moore introduced a successful ordinance that specified, according to its text, that “any person aggrieved by a decision of (an) administrative official or Commission may file an appeal,” requiring the appellant to describe in writing how they’d been harmed.
2005’s last appeal came in November from Nikiski resident Debbie McKay against Kenai’s lease of land to Walmart, which was then in the planning phase for its Kenai store. Following McKay’s unsucessful appeal, then-Kenai Mayor Pat Porter introduced an ordinance that split Moore’s “person aggrieved” into five categories, one of which was “a resident of the city of Kenai.” Porter’s ordinance passed March 15, 2006.
“There was maybe not enough thought of the unintended consequences of that,” Molloy said. “But part of what we’re talking about here is maybe, in striking the balance, preventing excessive litigation. If you look at the history of the McKay appeal until now, there really hasn’t been excessive litigation.”
Reviewing the history of Kenai appeals, Molloy called McIntosh and McKay “the outliers” — of the 20 appeals applied for since 2005, they were the only two appellants who didn’t participate in or weren’t directly affected by the decisions they challenged, Molloy said.
Nonetheless, Molloy said there was “some merit” in the new requirements, but he was against eliminating the existing allowance for appeals from property owners within 300 feet of the decision’s subject property. People in this area must be notified of a decision’s public hearing, but under Knackstedt and Pettey’s ordinance couldn’t appeal a decision unless they’d originally participated in the hearing. As example of how the city’s mailed notifications sometimes fail to draw residents’ attention, Molloy gave the case of Kenai’s VIP Drive, where the city paved a cul-de-sac under the mistaken belief that the neighborhood had formed a local improvement district — a belief none of the nine affected property owners, who had been notified by mail, challenged in the two public hearings on the matter because many had been working, vacationing, or residing elsewhere.
Boyle said new restrictions would create unequal opportunity to challenge city decisions.
“If it comes up to the final hour and you, Mr. Citizen, walk in and say ‘I object to this action,’ you don’t have the same rights as someone who went to a meeting once before,” Boyle said. “If I’m correct in my understanding, it creates two classes of citizens: one who participated and another who might have been out of town, on vacation in Hawaii, and missed something.”
Council member Tim Navarre said opponents of the changes were “looking at it only as one side.”
“It’s a fairness issue for both sides — not only for the public in being able to raise the appeal, but you also have to give respect and courtesy to the other side that went through the process and followed the rules.”
Navarre’s nephew Ryan Tunseth owns East Rip, the cannabis business whose permit McIntosh challenged, and Navarre would be a landlord of the business’s planned location.
Kenai Mayor Brian Gabriel said the limits would prevent entrepreneurs from being disrupted by vague protests — a description he gave to McIntosh’s appeal, pointing out that the materials McIntosh provided to support of his grievance included the entirety of Kenai’s comprehensive plan and the United States Constitution.
“It didn’t really speak to the purpose of the appeal, other than that it was sort of philosophical,” Gabriel said. “There were a few things in the comp plan that were stretched a little bit, in my opinion, to make that connection, but if you’re philosophically opposed to — and I’ll use this example because it was our last issue — commercial marijuana retail establishments, you could come in here on every (commercial marijuana establishment permit) the planning and zoning commission issues, and it’s going to cost us $5,000 every time, for a case where someone is philosophical opposed but not necessarily personally affected by it.”
