Kenai residents who disagree with decisions by city administrators or the Kenai Planning and Zoning Commission can appeal them to the seven members of the Kenai City Council, who act as a board of adjustment. Any resident can appeal any decision under current city code, but at their April 4 meeting the council will discuss and vote on whether to limit appeals to those who can show harm from a decision.

The ordinance, from council members Henry Knackstedt and Glenese Pettey, follows an unsuccessful appeal against a planning and zoning permit for a marijuana shop, brought by Kenai resident Bob McIntosh, who argued that the decision harmed Kenai residents in general.

Knackstedt and Pettey wrote in the ordinance text that “excessive appeals can be harmful in delaying business growth, development, and other actions of property owners, and superfluously expend City resources,” and that their ordinance seeks to “provide a balance between the interests of concerned community members, parties potentially negatively affected by City decisions, and those endeavoring to benefit and move forward from a decision in their favor.” To do so, it would restrict appeals to those who can show that a decision has an adverse effect on property they own, rent, or lease. It also requires an appellant to have previously given public comment on the decision they’re appealing.

In his legal analysis of Knackstedt and Petey’s proposal, Kenai City Attorney Scott Bloom wrote that Homer, Soldotna, and the Kenai Peninsula Borough have similar restrictions on who can appeal a planning and zoning (or in the case of the Borough, planning) decision. These governments also restrict appeal standing to property owners, Bloom wrote, while Knackstedt and Pettey’s ordinance would allow appeals from property renters as well.

Their ordinance would also reduce the current code’s waiver of the $100 filing fee for appellants with income below the current U.S Department of Health and Human Services poverty line for Alaska. Such applicants can currently waive the fee completely — the ordiance would allow a 90 percent waiver.

East Rip appeal

In February, McIntosh — an activist in Kenai politics who unsuccessfully ran for city council in 2016 and 2017 and who maintains the local politics website Peninsula Town Crier — challenged the Kenai Planning and Zoning Commission’s December 2017 permit to marijuana entrepreneur Ryan Tunseth for his planned retail shop East Rip. McIntosh argued in his presentation that by permitting the shop, the commissioners had “inadequately addressed health, saftey, and public wellfare,” as well as the shop’s compatability with the Kenai Comprehensive plan, a long-term land use planning document.

McIntosh doesn’t own property or a business near East Rip’s planned location in the strip mall next to the Kenai Arby’s, and appealed as a city resident. In previous interviews and speeches as a city council candidate, McIntosh has criticized Planning and Zoning decisions made against the protest of surrounding residents and land-owners, including the permitting of Kenai’s first marijuana shop, Red Run Cannabis, which some living in an adjacent residential area vocally opposed. East Rip is the first Kenai marijuana shop to be located in a multi-business building and the first in Kenai’s central commercial area, and was also opposed by some surrounding business owners.

Kenai City Clerk Jamie Hienz denied McIntosh’s application for the appeal when he first brought it in December 2017, stating he hadn’t met the requirement of describing how he’d been harmed by the planning and zoning decision. In January McIntosh re-applied, including a statement that he “was harmed because the process resulted in a decision that does not protect the quality of life and economic future of the City of Kenai as required by the City Code and Comp Plan (comprehensive plan).”

At the Feb. 20 hearing, Tunseth and his attorney Jana Weltzin argued that McIntosh didn’t have standing for appeal, citing the 2011 Alaska Supreme Court Case Griswold versus City of Homer, where the court ruled that Homer’s city clerk “correctly rejected” resident Frank Griswold’s appeal against the city’s permit of a mariculture business because Griswold “did not show that the permitted action would have an adverse effect on the use, enjoyment, or value of his property, and because Griswold’s interests were not distinct from those of the general public.”

The Kenai board of adjustment ruled against McIntosh’s appeal, but in their March 7 decision held that he was eligible to bring it as Kenai resident without proving that he’d been specifically harmed. Kenai Council member Tim Navarre — Tunseth’s uncle and an owner of the strip mall in which East Rip would rent space — was absent from the Feb. 20 board of adjustment hearing.

Reach Ben Boettger at bboettger@peninsulaclarion.com.