• Castner vs City of Homer argues unfair treatment and unequal benefit in natural gas hookups
By Naomi Klouda
Special assessments levied at condo owners gets its first legal test in the coming weeks in a lawsuit launched by building owner Ken Castner against the City of Homer and the council members.
The civil complaint is Kenneth Castner III vs. the City of Homer, Walt Wrede, Francie Roberts, Beau Burgess, Bryan Zak, Barbara Howard, David Lewis and James Dolma, filed March 4 in Superior Court of Alaska in Homer. Castner is acting as his own attorney.
The legal basis relies on a claim of violating Castner’s U.S. Constitutional rights. “(Castner) requests an order determining that defendants have violated the rights of plaintiff to equal protection and due process of law, and that defendants have violated statutory law regarding its natural gasline assessment scheme.”
The Homer City Council was given three legal opinions on how the condo owners should be assessed for paying to hook into the natural gas distribution line. All three attorneys consulted by City Manager Wrede said essentially that condos are to be assessed like free-standing lots. That means a building with 11 units would each pay the $3,200, just as a homeowner. But condo owners objected that apartment buildings pay as a single lot and office buildings may possess just one owner, yet host many tenants.
In Castner’s case, he is the sole owner of “unit C” in the Kachemak Bay Title Building, a structure composed of five units. And, he is 30 percent owner of all common property, including 50 percent of Unit D and 30 percent of Unit E. All together, he calculates the assessment to hook into gas will cost $20,000.
None of the units are residential. All are used as office space.
“It’s the condo-type of ownership they’ve decided to discriminate against. There are others similar to mine, but mine amplifies the wrongness of the policy,” Castner said. He is asking the court to declare the ordinance void.
“The ordinance is what supports it all wrapped in one ordinance. That part, if found unconstitutional would mean they will have to write a new ordinance.”
Castner argues his case only. It is not joined in this lawsuit by other condo owners. The city estimates about 118 condo units are in Homer.
Attorneys consulted by the city, Tom Klinkner, Sally Kucko and James McCollum all agreed that state statute is clear: “Each unit shall be separately taxed and assessed,” according to the 1982 Uniform Common Interest Ownership Act. But the constitutionality of it has never been challenged.
Dozens of other commercial buildings fit in the same category as Castners.
“Mine is heated by one power plant. There are many different uses going on in the building. This is an office condo,” he said.
All along Pioneer Avenue, commercial buildings have mixed uses. “The only difference between those and mine is that individuals own discrete parts of the building, so we are charged differently,” he said.
Since the end result, after paying the assessment and hooking into natural gas, would not give Castner the same benefit as everyone else, he argues it discriminates. It would take a long time after paying $20,000 to realize the benefits of natural gas, if ever.
“They can’t take away a person’s constitutional right. The Constitution is basis of all law. This is a straight equal protection case,” Castner argues.
Instead of working on an equitable plan, the council chose a “Jam-it-down their throat method,” in the property assessment rules, he said
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