No grandfather rights for historic Homer inn

Online reviews of Bay View Inn praise its “excellent,” “amazing” and “breathtaking views.” Its cleanliness, price and outdoor eating areas also rate high.

Those were written before its owner and former Homer City Council member Dennis Novak died in 2011. Now, that once popular haven for Homer guests faces an uncertain future. 

Following Novak’s death, his sister, who lives out of state, became responsible for handling Novak’s estate. She is attempting to sell the property. It is the top “commercial lot” listing on Bay View Realty’s web site, where it is noted for its “stunning forever ocean view few can ever call their own.”  The selling price: $543,000.

The problem is that the inn, a popular place to overnight for many since the early 1950s, purchased as an inn by Novak in 1985 and operated that way until his death, can no longer be run as an inn.

When the city incorporated in 1964, Bay View Inn fell inside city limits. When that area of the city was zoned “rural residential” in the 1980s, it fell outside the conforming use, making it “nonconforming.”

According to City Code 21.61.010, “When a zoning ordinance or other land use regulation is adopted or amended, or when the zoning district designation applicable to a lot changes, or when annexation or other boundary changes occur, then as a result a previously lawful lot, structure, or use may no longer be allowed.” The wording for that section was established by Ordinance 08-29, passed in 2008, during the time Novak served on the council. 

Continuance of a nonconforming use is possible by city code if specific provisions are met. In the case of Bay View Inn, since its use discontinued for a period of 12 consecutive months, that possibility is removed. 

Summarizing this section of city code, Julie Engebretsen of the city’s Planning Department, said, “Let’s say you own an auto body shop in downtown Homer, in a place we don’t allow auto body shops. You try to sell the business, can’t find a buyer and close the business. You have a year to start back up again. If you do not take action within a year, you lose nonconforming rights.”

In Engebretsen’s example, the body shop could continue to operate under the new owner in accordance with city code.

At the council’s Sept. 23 meeting, Ordinance 13-037, sponsored by Mayor Beth Wythe and City Manager Walt Wrede, was introduced to amend the definition of “discontinued.” If passed, it would have changed the 12-month time limit from the time of the owner’s death “until the use is legally available for transfer to a successor operator.”

Calling it “a special consideration for a very limited population,” City Planner Rick Abboud recommended against adoption of the ordinance. Wrede recommended introducing the ordinance and forwarding it to the Planning Commission with a request for comments and recommendations.

The council did not give the ordinance its blessing.  (See related story.)

At Monday’s meeting, Zak sponsored Resolution 13-102, seeking to restore back to Bay View Inn “irrevocable grandfather rights.” City Attorney Thomas Klinkner pointed out in a memo to Wythe and the council the section of city code pertaining to nonconforming uses does not include irrevocable grandfather rights and a nonconforming use may continue only as long as it meets code requirements.

“We are probably going to vote this down tonight, but I thought it would be good to have at least some discussion on how to move forward,” said Zak. 

Agreeing with Zak, council member Beau Burgess said, “The best approach would be to see if we can find a more universal solution.”

Council member Barbara Howard encouraged the property owner “to start working through the proper channels and see how things can be resolved or changed for the good of the whole.”

Calling the conversation improperly directed, James Dolma said, “The problem was that the owner of the property didn’t do things that were possible for him to do. It was poor planning.”

Before calling for a roll call vote, Wythe said, “It would be nice if everyone had their affairs in order, but the likelihood is that maybe 10 percent are that organized. So, if we can have it addressed, the option to do that is through planning and zoning.”

The resolution failed unanimously, all six council members voting against it.

Debra Leisek, broker for Bay View Realty, said she had been “trying to work with the city.” Several parties have expressed interest in purchasing Bay View Inn, but when Leisek sent them to the Planning Department, “one person told them to tear it down and build a home.” After that, Leisek said she quit sending people to the city. 

The Kachemak Board of Realtors, of which Leisek is president, passed a resolution earlier this month asking the city to “act in a timely matter to rectify this situation and restore the irrevocable grandfather rights back to Bay View Inn.”

“What (the city) is trying to do is completely control that property, devalue it, degrade it, take away its highest and best use and say no, you can’t do that. They’re saying you can’t use it as the Bay View Inn,” said Leisek. “I think they have the power with the stroke of their pen to right the wrong and give back the grandfathered rights. I believe they can do that. They just won’t.”

With other nonconforming uses, such as Quick Draw H2O Service, in the same rural residential area as Bay View Inn, Engebretsen suggested a change in zoning might be a conversation of interest to the community. Such a conversation would begin by writing a letter to the Planning Commission. She also suggested other options for the property on which Bay View Inn sits.

“As far as the business of the hotel, that’s clearly gone, whatever cash flow that generated, but there’s some pretty nice real estate with a bluff view,” said Engebretsen. “I realize people have a nostalgic attachment to it, it’s nice real estate, but it’s not like it has lost all of its value.”

Zak hasn’t given up on changing city code, beginning with redefining “discontinue” to include a period longer than 12 months. 

“Because of the ordinances that are in place, you just can’t go and say ‘grandfather it,’” said Zak.