Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

FRANK GRISWOLD, 

Appellant, 

v. 

HOMER BOARD OF ADJUSTMENT,

RICK ABBOUD, JOSE RAMOS, 

and KENTON BLOOM, 

Appellees. 

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) Supreme Court No. S-16660 

Superior Court No. 3HO-15-00021 CI 

O P I N I O N 

No.7295 – September 14, 2018
 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Homer, Carl Bauman, Judge. 

Appearances: Frank Griswold, pro se, Homer, Appellant. 

Holly C. Wells and Thomas F. Klinkner, Birch Horton Bittner 

& Cherot, Anchorage, for Appellees Homer Board of 

Adjustment and Rick Abboud. No appearance by Appellees 

Jose Ramos and Kenton Bloom. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

STOWERS, Chief Justice. 

I. INTRODUCTION 

Frank Griswold twice appealed the Homer Advisory Planning 

Commission’s approval of a conditional use permit to the Homer Board of Adjustment 

and later appealed the Board’s second decision to the superior court, which sua sponte 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

dismissed his appeal for lack of standing. Because Griswold did not have notice that his 

standing was at issue, his due process rights were violated. We therefore reverse and 

remand for the superior court to decide his appeal on the merits. 

II. FACTS AND PROCEEDINGS 

In January 2014 the Homer Advisory Planning Commission approved a 

conditional use permit allowing “[m]ore than one building containing a permitted 

principal use” on Lot 1-A-1 Carl Sholin Subdivision No. 5 in the Central Business 

District in Homer. Frank Griswold, as a resident of Homer and as an owner of several 

lots in the area,1 appealed the Commission’s decision to the Homer Board of Adjustment. 

In June the Board issued a decision affirming the Commission’s decision in part; it 

rejected two findings for insufficient evidence and remanded for consideration of 

additional evidence. On remand the Commission again approved the conditional use 

permit. Griswold again appealed. In January 2015theBoard affirmed theCommission’s 

decision, and Griswold appealed to the superior court. 

Oral argument before the superior court was held in February 2016, and the 

court subsequently acceptedsupplementalbriefing. In January 2017 the court suasponte 

dismissed the appeal for lack of standing by Griswold. In its dismissal order the court 

recognized that “the briefs by the parties did not address the issue of standing,” but it 

noted that AS 29.40.060 provides for an appeal by “a person aggrieved from a decision,” 

and it determined that the concerns raised by Griswold regarding the conditional use 

permit “do not rise to the level of aggrievement sufficient to satisfy the Homer ordinance 

1 Griswold reports that he owns eight lots “in very close proximity to the 

subject property,” including his place of residence, and that one of his lots is “within 300 

feet of the subject property.” He indicates that one of the eight properties (not the one 

within 300 feet) was acquired after the notice of appeal was filed. 

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on standing.” The court also found that Griswold’s “potential injury is indistinguishable 

from the potential adverse effect . . . on any member of the general public of Homer.” 

Griswold filed a motion for reconsideration, which was denied. He then 

filed a motion for clarification of the order that denied reconsideration, arguing that 

because “[t]he order [was] captioned ‘Order For Reconsideration[,]’ . . . the [c]ourt may 

have intended to grant [the motion] rather than deny it.” (Emphasis in original.) In 

response, the court issued an order explaining that “the body of the Order reflects the 

opinion of this [c]ourt that reconsideration was and is not appropriate.” Griswold 

appeals. 

III. STANDARD OF REVIEW 

“We review due process claims de novo, ‘adopting the rule of law most 

persuasive in light of precedent, reason, and policy.’ ”2 

IV. DISCUSSION 

Under the Alaska Constitution, “[n]o person shall be deprived of life, 

liberty, or property, without due process of law.”3 “[P]rocedural due process under the 

Alaska Constitution requires notice and opportunity for hearing appropriate to the nature 

of the case.”4 In order to “have a reasonable opportunity to be heard,” the “[p]arties must 

have notice of the subject of proceedings that concern them.”5 “A hearing is required in 

2 Brandner v. Providence Health & Servs.–Wash., 394 P.3d 581, 587 (Alaska 

2017) (quoting Alyeska Pipeline Serv. Co. v. State, Dep’t of Envtl. Conservation, 145 P.3d 

561, 564 (Alaska 2006)). 

3 Alaska Const. art. I, § 7. 

4 Price v. Eastham, 75 P.3d 1051, 1056 (Alaska 2003) (quoting Walker v. 

Walker, 960 P.2d 620, 622 (Alaska 1998)). 

5 Id. (quoting Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002)). 

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order to give the parties an opportunity to present the quantum of evidence needed [for 

the court] to make an informed and principled determination.”6 

Griswold argues that his due process rights were violated by the superior 

court’s sua sponte dismissal for lack of standing. He points out that he asserted standing 

in his notices of appeal to the Board based on several lots he owns “within one block of 

the subject property,” including one lot within 300 feet, and based on his belief that the 

uses approved via the conditional use permit “will create congestion, visual blight, and 

leaching/migration of sewage and other contaminates that will adversely affect the 

general character of the neighborhood and the value of his real property.” In his second 

notice of appeal to the Board, he also alleged that the uses approved via the conditional 

use permit “will promote . . . criminal activity that will adversely affect the general 

character of the neighborhood and the value of his real property.” He points out that the 

city clerk found these notices of appeal compliant with Homer City Code 

(HCC) provisions relating to the timing for and notice of appeal7 and cites Griswold v. 

City of Homer, where this court held that “[t]he delegation [to the city clerk] of the 

authority to reject appeals for lack of standing was . . . lawful.” He also notes that the 

Board did not raise the issue of his standing. He argues that his motion for 

reconsideration, which was limited to five pages under Alaska Civil Rule 77(k)(2), was 

his only opportunity to defend his standing. 

The Board responds that “Griswold had ample notice that his standing was 

at issue and opportunity to demonstrate he met the standing requirement.” It argues that 

“Griswold had ample notice of the criteria for determining his standing to appeal” and 

“fully understood his obligation to meet the standing criteria,” noting that “[h]e 

6 Id. (alteration in original) (quoting Walker, 960 P.2d at 622). 

7 HCC 21.93.070, .080 (2008). 

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previously litigated his standing to appeal a Homer land use decision” and that his 

notices of appeal to the Board responded to the requirement to show that he had standing 

to appeal. It contends that Griswold did not “identify[] the specific location of his 

property”; that his “allegations regarding the harm that would result from [the 

conditional use permit were] nonspecific, conclusory and speculative”; and that he 

therefore failed to prove standing. The Board asserts that Griswold “had multiple 

opportunities to present evidence that showed he met [the standing] criteria[] and had a 

final opportunity to argue against the dismissal of his appeal through his motion for 

reconsideration.” It also argues that “Griswold used his motion for reconsideration to 

advance new, and spurious, arguments for his standing, rather than directing the 

[s]uperior [c]ourt’s attention to specific facts in the record.” 

Contrary to the Board’s assertions, the record shows that Griswold did not 

have notice that his standing was at issue. After Griswold addressed the standing criteria 

in his notices of appeal and the city clerk found those notices compliant with 

HCC 21.93.070 and 21.93.080, he had no reason to believe that standing was at issue — 

his standing was never challenged. And while Griswold may have had “opportunities 

to present evidence that showed he met [the standing] criteria,” he had no reason to seek 

to present such evidence because he had no notice that standing was at issue. Because 

no one had raised the issue of standing and the superior court sua sponte dismissed the 

appeal for lack of standing, without providing any opportunity to Griswold to make a 

showing of standing or remanding the case for him to present evidence, Griswold’s only 

opportunity to present any argument regarding standing once the superior court 

determined sua sponte he did not have standing was his motion for reconsideration. The 

Board’s arguments about the motion for reconsideration highlight the due process issues 

in this case. The Board argues that the motion for reconsideration “advance[d] new, and 

spurious, arguments for his standing, rather than directing the [s]uperior [c]ourt’s 

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attention to specific facts in the record.” But any arguments Griswold could make at that 

point would necessarily be new arguments because the issue of standing had never been 

raised until the dismissal order, and there had been no notice of the need to place any 

additional facts in the record to support his standing. Because Griswold did not have 

notice that his standing was at issue, his due process rights were violated. 

V. CONCLUSION 

We REVERSE and REMAND for the superior court to decide Griswold’s 

appeal on the merits. 

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