The decision came about on an appeal by citizen activist Frank Griswold challenging the initiative. Writing for the majority, Justice Robert Eastaugh wrote that boroughs with zoning powers "cannot pass or amend a zoning ordinance without involving its planning commission in reviewing that ordinance."

"The Homer City Council does not have the power to pass piecemeal zoning amendment without at least giving the Homer Advisory Planning Commission opportunity to review the proposals and make recommendations," Eastaugh wrote. "Therefore, voters, who have no obligation to consider the views of the planning commission or be informed by its expertise, cannot use the initiative process to eliminate the planning commission's role in 'area wide' land use planning and regulation."

Ray Kranich, one of the initiative sponsors and now chairman of the Homer Advisory Planning Commission, said he accepted the court's decision.

"If they feel zoning ordinances are required to go through the planning commission to be legal, then that's the way it has to be," he said.

Valerie Connor, a former planning commissioner who later appealed the conditional use permit allowing Fred Meyer to build a 66,000-square-foot store, applauded the court's decision.

"Just the fact that it has reverted to a more reasonable square footage that was deemed more appropriate for Homer in the first place, it seems like justice has prevailed," she said.

The initiative came about after Fred Meyer in 2002 proposed building a 95,000-square-foot store in Homer. The city reviewed its zoning code, and a special task force recommended numerous changes to ordinances regarding large retail stores. The council eventually approved a maximum size for floor space of 45,000-square-feet for large retail stores in the general commercial 2 district. That ordinance was approved after it had gone through the planning commission, and after numerous public hearings.

"The other number, the 45,000 number, was a compromise we came up with after public meetings. That seemed a number we were comfortable with," said Connor.

During that debate, a group of citizens petitioned and got on the ballot an initiative raising the cap to a footprint of 66,000-square-feet. Votes approved the initiative by 984 yes votes to 717 no votes. Because that initiative was flawed -- referring to the building's overall footprint and not the retail space, for example -- the council, recognizing the will of the voters, amended its earlier ordinance and in a new ordinance, O5-02, raised the cap to 66,000-square-feet.

Griswold appealed the initiative as well as the subsequent council action. The Supreme Court said Griswold adequately argued that the city council action wouldn't have happened without the initiative.

"We are consequently persuaded that because the initiative is invalid, the only legislative purpose for passing Ordinance 05-02 is now absent," Eastaugh wrote.

Justice Walter Carpeneti disagreed with the majority, and in a dissenting opinion argued that the initiative process gives voters the ability to legislate without the restrictions placed on other legislative bodies.

"The Alaska Constitution also makes clear that the procedural requirements for enacting an initiative are different from the procedures applicable to the regular legislative process," Carpeneti wrote.

He also argued that the framers of the Alaska Constitution had placed restrictions on the initiative process, such as not appropriating revenues, and if they had not wanted citizens to change zoning regulations by initiative, it would have done so.

Melinda Merrill, a spokesperson for Fred Meyer, said she had no comment on the decision.

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