Chapter 21.93 Adminstrative Appeals

Subchapter 1
General Provisions
Sections:

21.93.010 Appeals, general.
21.93.020 Decisions subject to appeal to Planning Commission.
21.93.030 Decisions subject to appeal to Board of Adjustment.
21.93.040 Decisions not subject to appeal.
21.93.050 Standing — appeal to Planning Commission.
21.93.060 Standing — appeal to Board of Adjustment.
21.93.070 Time for appeal.
21.93.080 Notice of appeal.
21.93.090 Authorized representative.
21.93.100 General appeals procedure.
21.93.110 Appeal decisions.

21.93.010 Appeals, general. This chapter governs administrative appeals to the Planning Commission and the Board of Adjustment from actions and determinations taken under the Homer Zoning Code. (Ord. 08-29, 2008).

21.93.020 Decisions subject to appeal to Planning Commission. The following acts or determinations made under this title by the City Manager, City Planner, or their staff members may, when final, be appealed to the Commission by a person with standing:
1. approval or denial of a zoning permit.
2. approval or denial of a sign permit.
3. approval or denial of any other permit that is within the authority of the City Planner to approve or deny.
4. an enforcement order issued under HCC § 21.90.060.
5. any other decision that is expressly made appealable to the Commission by other provisions of the Homer Zoning Code. (Ord. 08-29, 2008).

21.93.030 Decisions subject to appeal to Board of Adjustment. The following acts or determinations of the Commission, when final, may be appealed to the Board of Adjustment by a person with standing:
1. Grant or denial of a conditional use permit.
2. Grant or denial of a variance.
3. Grant or denial of formal recognition of a nonconforming use or structure, or a decision terminating a nonconforming use or structure.
4. Grant or denial of a conditional fence permit.
5. A decision by the Commission in a matter appealed to the Commission under HCC § 21.93.020.
6. Any other final decision that is expressly made appealable to the Board of Adjustment by other provisions of the code. (Ord. 08-29, 2008).

21.93.040 Decisions not subject to appeal. The following acts or determinations may not be appealed:
1. A decision to cite or not cite a person for a violation of the code under HCC § 21.90.090, HCC § 21.40.160, HCC § 21.60.160 or any other provision of the code.
2. A decision to not issue an enforcement order under HCC § 21.90.060, HCC § 21.40.150, or any other provision of the code.
3. An order of abatement issued under HCC § 21.90.070 after all appeals have been exhausted or the time for appeal has expired.
4. Any legislative act or determination, including any recommendations, to approve or reject any proposal or ordinance for the adoption, revision, or amendment of the zoning code, the zoning map, a comprehensive plan or any component thereof, any other plan, a rezoning, or any other legislative matter.
5. Any matter not expressly made appealable by this section or another provision of the Homer Zoning Code. (Ord. 08-29, 2008).

21.93.050 Standing — appeal to Planning Commission. Only the following have standing to appeal an appealable action or determination of the City Planner to the Commission:
1. The applicant for the action or determination, or the owner of the property that is the subject of the action or determination.
2. The City Manager or City Planner or any governmental official, agency, or unit.
3. Any person aggrieved by the action or determination. (Ord. 08-29, 2008).

21.93.060 Standing — appeal to Board of Adjustment. Only the following have standing to appeal an appealable action or determination of the Planning Commission to the Board of Adjustment:
1. Applicant for the action or determination, or the owner of the property that is the subject of the action or determination under appeal.
2. The City Manager or City Planner or any governmental official, agency, or unit.
3. Any person who actively and substantively participated in the proceedings before the Commission and is aggrieved by the action or determination.
4. Any person who actively and substantively participated in the proceedings before the Commission and would be aggrieved if the action or determination being appealed were to be reversed on appeal. (Ord. 08-29, 2008).

21.93.070 Time for appeal. a. An appeal to the Planning Commission must be filed within 30 days after the date of distribution of the final action or determination to the applicant or other person whose property is the subject of the matter being appealed.
b. An appeal to the Board of Adjustment must be filed within 30 days after the date of distribution of the final action or determination to the applicant and other parties, if any. (Ord. 08-29, 2008).

21.93.080 Notice of appeal. a. A notice of appeal from an action or determination of the City Planner or the Planning Commission shall be filed with the City Clerk.
b. A notice of appeal shall be in writing, be signed by the appellant, and shall contain, but is not limited to, the following information:
1. The name and address of the appellant.
2. A description of the action or determination from which the appeal is sought and the date upon which the action or determination became final.
3. The street address and legal description of the property that is the subject of the action or determination being appealed, and the name and address of the owner(s) of that property.
4. Detailed and specific allegations of error, including reference to applicable provisions of the zoning code or other law.
5. A statement of whether the action or determination should be reversed, modified, or remanded for further proceedings, or any other desired relief.
6. Proof showing that the appellant is an aggrieved person with standing to appeal under HCC §§ 21.93.050 or 21.93.060, whichever is applicable.
c. The City Clerk shall reject any notice of appeal that does not comply with HCC §§ 21.93.070—21.93.080 and notify the appellant of the reasons for rejection. If a notice of appeal is rejected for reasons other than timeliness, a corrected notice of appeal that complies with this section will be accepted as timely if filed within seven days of the date on which the City Clerk mails the notice of rejection.
d. The City Clerk shall mail copies of the notice of appeal to all parties of record in the proceeding appealed from within seven days of the date of the date on which the City Clerk determines the notice of appeal complies with HCC §§ 21.93.070—21.93.080.
e. Any person with standing under HCC §§ 21.93.050 or 21.93.060, whichever is applicable, may, within seven days after date of the City Clerk's mailing copies of an accepted notice of appeal, file notice of cross appeal. Any notice of cross appeal shall, to the extent practical, comply with HCC § 21.93.080(b).
f. The City Clerk shall promptly give notice of the cross appeal to the appellant and all other parties who have filed a notice of appearance. (Ord. 08-29, 2008).

21.93.090 Authorized representative. No person may represent a party to an appeal without filing with the City Clerk written authorization, which shall be signed by the party so represented and provide the name and address of the party's representative. If the person representing another is a lawyer licensed to practice law in Alaska, an entry of appearance signed by the attorney is acceptable in lieu of authorization signed by the person so represented. (Ord. 08-29, 2008).

21.93.100 General appeals procedure. a. All appeals must be heard within 60 days after the appeal record has been prepared. The body hearing the appeal may for good cause shown extend the time for hearing. The decision on appeal must be rendered within 60 days after the appeal hearing.
b. The appellant, the applicant for the action or determination that is the subject of the appeal, the owner of the property that is the subject of the action or determination, and all parties who have entered an appearance shall be provided not less than 15 days written notice of the time and place of the appeal hearing. Neighboring property owners shall be notified as set forth in HCC § 21.94.030.
c. An electronic recording shall be kept of the entire proceeding. Written minutes shall be prepared. The electronic recording shall be preserved for one year unless required for further appeals. No recording or minutes shall be kept of deliberations that are not open to the public. (Ord. 10-41(A)§1, 2010; Ord. 08-29, 2008).

21.93.110 Appeal decisions. a. All final decisions on appeals shall be in writing, and shall state the number of members of the body hearing the appeal who participated in the appeal, number voting in favor of the decision, and the number voting in opposition to the decision. 
b. A decision shall include an official written statement of findings and reasons supporting the decision. This statement shall refer to specific evidence in the record and to the controlling sections of the zoning code. Upon express vote, the body may adopt, as its statement of findings and reasons, those findings and reasons officially adopted by the body or officer below from which the appeal was taken.
c. Copies of the written decision shall be promptly mailed to the appellant, the applicant for the action or determination that is the subject of the appeal, the owner of the property that is the subject of the action or determination, and all parties who entered a written notice of appearance in the appeal proceeding.  (Ord. 10-41(A)§2, 2010; Ord. 08-29, 2008).

Subchapter 2
Planning Commission Appeal Procedures
Sections:

21.93.300 Appeals to the Planning Commission.
21.93.310 Other procedures.

21.93.300 Appeals to the Planning Commission. a. Within 30 days after receipt of a timely notice of appeal to the Planning Commission, the City Planner will prepare an appeal record consisting of all relevant documents submitted to or used by the Planning Department in making the decision under appeal, including any staff reports, correspondence, applications, or other documents. The appeal record shall be paginated. The appellant shall be notified by mail when the appeal record is complete. Any person may obtain a copy of the appeal record from the Planning Department upon payment of the costs of reproduction.
b. An appeal hearing shall be scheduled within the time specified in HCC § 21.93.100. The hearing will be open to the public.
c. The Commission may prescribe rules of procedure for additional public notification in cases where the Commission determines its decision would have a substantial effect on the surrounding neighborhood.
d. The Commission may accept new testimony and other evidence, including public testimony, and hear oral arguments as necessary to develop a full record upon which to decide an appeal from an act or determination of the City Planner. Any person may file a written brief or testimony in an appeal before the Commission.
e. The Commission may undertake deliberations immediately upon the conclusion of the hearing on appeal or may take the matter under advisement and meet at such other time as is convenient for deliberations until a decision is rendered. Deliberations need not be public and may be in consultation with an attorney acting as legal counsel to the Commission.
f. The Commission may affirm or reverse the decision of the City Planner in whole or in part. A majority vote of the fully constituted Commission is required to reverse or modify the action or determination appealed from. For the purpose of this section the fully constituted Commission shall not include those members who do not participate in the proceedings due to a conflict of interest or disqualifying ex parte contacts, disqualifying partiality, or other disqualification for cause. A decision affirming, reversing, or modifying the decision appealed from shall be in a form that finally disposes of the case on appeal, except where the case is remanded for further proceedings.
g. The Commission may seek the assistance of legal counsel, city staff, or parties in the preparation of a decision or proposed findings of fact. (Ord 10-41(A)§3, 2010; Ord. 08-29, 2008).

21.93.310 Other procedures. If no specific procedure is prescribed by the code, the Planning Commission may proceed in an administrative appeal in any lawful manner not inconsistent with this title, statutes, and the constitution. (Ord. 08-29, 2008).

Subchapter 3
Board of Adjustment Appeal Procedures
Sections:

21.93.500 Parties eligible to appeal to Board of Adjustment; notice of appearance.
21.93.510 New evidence or changed circumstances.
21.93.520 Preparation of record.
21.93.530 Written briefs.
21.93.540 Appeal hearing.
21.93.550 Board of Adjustment Decision.
21.93.560 Remand.
21.93.570 Other procedures.

21.93.500 Parties eligible to appeal to Board of Adjustment; notice of appearance. a. Only persons who actively and substantively participated in the matter before the Commission and who would be qualified to appeal under HCC § 21.93.060 may participate as parties in an appeal from the Commission to the Board of Adjustment. 
b. Any person so qualified who desires to participate in the appeal as a party, other than the appellant, the applicant for the action or determination that is the subject of the appeal and the owner of the property that is the subject of the action or determination, must, not less than 14 days before the date set for the appeal hearing, file with the City Clerk a written and signed notice of appearance containing that party's name and address, and proof that the person would be qualified under HCC § 21.93.060 to have filed an appeal. (Ord. 10-41(A)§4, 2010; Ord. 08-29, 2008).

21.93.510 New evidence or changed circumstances. a. Except as provided in subsections (b) and (c) of this section, the Board of Adjustment shall not consider allegations of new evidence or changed circumstances and shall make its decision based solely on the record. If new evidence or changed circumstances are alleged, the Board may, in its discretion, either hear the appeal without considering the allegations or may remand the matter to the appropriate lower administrative body or official to rehear the matter, if necessary.
b. When the standing of a person is in issue, the Board of Adjustment may take additional evidence for the limited purpose of making findings on the question of the person's standing. No evidence received under this subsection shall be considered for purposes other than determining standing.
c. When the disqualification of a member of the Board of Adjustment for conflict of interest, ex parte contact, partiality or other cause is in issue, the Board of Adjustment may take additional evidence for the limited purpose of making findings on the question of disqualification. No evidence received under this subsection shall be considered for purposes other than determining disqualification. ( Ord. 10-41(A)§5, 2010; Ord. 08-29, 2008).

21.93.520 Preparation of record. a. The appeal record shall be completed within 30 days after receipt of a timely and complete notice of appeal to the Board of Adjustment, shall consist of the items, and shall be prepared in the manner, described in this subsection.
1. The Clerk will assemble and paginate all relevant documents involved in the original decision, including any staff reports, minutes, exhibits, notices, and other documents considered in making the original decision.
2. A party may elect to include a verbatim transcript of the testimony before the Planning Commission in the appeal record by making a written request to the City Clerk for a recording of the testimony within 14 days after the clerk mails copies of the notice of appeal to the parties pursuant to HCC § 23.90.080(d). The requesting party shall arrange and pay for the preparation of the transcript. Only a transcript prepared and certified as accurate by a qualified court reporter shall be accepted. The original transcript must be filed with the City Clerk to be provided to the Board of Adjustment with the record on appeal.
b. The appellant, the applicant for the action or determination that is the subject of the appeal, the owner of the property that is the subject of the action or determination, and other parties who have entered an appearance shall be notified by mail when the record and transcript, if ordered, are complete. Any person may obtain a copy upon payment of the costs of reproduction and any applicable mailing costs. (Ord. 10-41(A) §6, 2010; Ord. 08-29, 2008).

21.93.530 Written briefs. a. Each party to the appeal (each appellant, cross-appellant, and respondent) may file with the City Clerk one opening brief not later than twenty days after the date of mailing the notice of the completion of the record on appeal. The brief shall be typed on 8 1/2 x 11 inch paper and shall include a statement of relevant facts contained in the record on appeal, with citations to the page numbers in the record, a clear statement of the party's position regarding the allegations of error specified in the notice of appeal, and arguments citing points and legal authorities in support of such position.
b. Each party (each appellant, cross-appellant, and respondent) may submit one reply brief within fourteen days after the date opening briefs are due. A reply brief shall be limited to a response to matters specifically raised in the opening brief(s) being responded to.
c. Upon request, any person may obtain a copy of any brief upon payment of reproduction charges and any applicable cost of mailing.
d. Upon written request, and for good cause shown and when it appears to the City Clerk that other parties will not be unduly prejudiced by the delay, the City Clerk may grant an extension of time not to exceed five days for the filing of any brief. (Ord. 10-41(A) §7, 2010; Ord. 08-29, 2008).

21.93.540 Appeal hearing. a. The meeting at which the Board of Adjustment hears an appeal shall be open to the public. The City Attorney or another attorney acting as legal counsel to the Board shall be present.
b. Each party (each appellant, cross-appellant, and respondent) may present oral argument at the appeal hearing, subject to the order of presentation and time limitations that the chair adopts at the commencement of the hearing. The taking of testimony or other evidence is limited by HCC § 21.93.510.
c. The Board of Adjustment may undertake deliberations immediately upon the conclusion of the hearing on appeal or may take the matter under advisement and meet at such other time as is convenient for deliberations until a decision is rendered. Deliberations need not be public and may be in consultation with the legal counsel to the Board.
d. The Board of Adjustment may exercise its independent judgment on legal issues raised by the parties. "Legal issues" as used in this section are those matters that relate to the interpretation or construction of the zoning code, ordinances or other provisions of law.
e. The Board of Adjustment shall defer to the findings of the lower administrative body regarding disputed issues of fact. Findings of fact adopted expressly or by necessary implication by the lower body shall be considered as true if they are supported by substantial evidence. But findings of fact adopted by less than a majority of the lower administrative body shall not be given deference, and when reviewing such findings of fact the Board of Adjustment shall exercise independent judgment and may make its own findings of fact. If the lower administrative body fails to make a necessary finding of fact and substantial evidence exists in the record to enable the Board to make the finding of fact, the Board may do so in the exercise of its independent judgment, or, in the alternative, the Board may remand the matter for further proceedings. "Substantial evidence", as used in this section, means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (Ord. 10-41(A) §8, 2010; Ord. 08-29, 2008).

21.93.550 Board of Adjustment Decision. a. The Board of Adjustment may affirm or reverse the decision of the lower administrative body in whole or in part. A majority vote of the fully constituted Board is required to reverse or modify the action or determination appealed from. For the purpose of this section the fully constituted board shall not include those members who do not participate in the proceedings due to a conflict of interest or disqualifying ex parte contacts, disqualifying partiality, or other disqualification for cause. A decision affirming, reversing, or modifying the decision appealed from shall be in a form that finally disposes of the case on appeal, except where the case is remanded for further proceedings.
b. The Board may seek the assistance of legal counsel, city staff, or parties in the preparation of a decision or proposed findings of fact. (Ord. 08-29, 2008).

21.93.560 Remand. a. The Board of Adjustment may remand the appeal to the lower administrative body when the Board determines that:
1. There is insufficient evidence in the record on an issue material to the decision of the case;
2. There has been a substantial procedural error that requires further consideration by the lower administrative body; or
3. There is other cause requiring further proceedings by the lower administrative body.
b. A decision remanding a case shall describe any issue upon which further evidence should be taken, and shall set forth any further directions the Board deems appropriate for the guidance of the lower administrative body.
c. The lower administrative body shall promptly act on the case upon remand in accordance with the decision of the Board of Adjustment. A case on remand has priority on the agenda of the lower administrative body, except cases remanded under HCC § 21.93.510(a) are not entitled to priority. The applicant or owner of the property in question may waive the priority given by this subsection. (Ord. 08-29, 2008).

21.93.570 Other procedures. If no specific procedure is prescribed by the code, the Board of Adjustment may proceed in an administrative appeal in any lawful manner not inconsistent with this title, statutes, and the constitution. (Ord. 08-29, 2008).

Subchapter 4
Conflicts of Interest and Ex Parte Contacts
Sections:

21.93.700 Appeals--Conflict of interest.
21.93.710 Appeals--Ex parte communication prohibited.

21.93.700 Appeals--Conflict of interest. a. A member of the Planning Commission or Board of Adjustment many not participate in the deliberation or voting process of an appeal if, following the procedures set forth in this chapter, the Commission or Board member is determined to have a substantial financial interest in the official action, as defined in HCC Chapter 1.18. In the absence thereof, all Commission or Board members shall participate in the deliberation and voting process unless excused pursuant to other provisions of this chapter.
b. When a financial interest of a member of the Planning Commission or Board of Adjustment is disclosed on the record, the remainder of the Commission or Board, respectively, shall determine whether the member should participate in the matter. If it is determined the member should participate, any action taken thereafter by the body shall be valid notwithstanding a later determination by a court or appellate tribunal that the member should have been disqualified from participation because of a substantial financial interest in the matter; except the action shall be invalidated when the disqualified member's vote was necessary to establish the required majority to approve the decision of the body. When a Commission or Board decision is invalidated because such vote was necessary to establish the required majority, the body shall commence new consideration of the matter beginning at the point where the Commission or Board, respectively, determines it is necessary to do so to eliminate the effect of the member's improper participation.
c. For purposes of hearing an appeal, a quorum of the Commission is four members and a quorum of the Board is four members, one of whom may be the mayor. If it is not possible to obtain a quorum of the Planning Commission or Board of Adjustment to hear an appeal without the participation of members disqualified by reason of a substantial financial interest, then all members who would be so disqualified shall nevertheless participate in the appeal, including deliberations and voting, and the decision rendered in such a case shall be valid notwithstanding the participation of such members. This subsection shall not apply if the matter can be postponed to a later date (not later than 75 days after the appeal record is prepared) when the body can obtain a quorum of members who are not disqualified by a substantial financial interest. (Ord. 08-29, 2008).

21.93.710 Appeals--Ex parte communication prohibited. a. No member of the Commission or Board Adjustment shall have ex parte communication with any person. "Ex parte communication" means to communicate, directly or indirectly, with the appellant, other parties or persons affected by the appeal, or members of the public concerning an appeal or issues specifically presented in the notice of appeal, either before the appeal hearing or during any period of time the matter is under consideration or subject to reconsideration, without notice and opportunity for all parties to participate in the communication.
b. This section does not prohibit:
1. Members from discussing matters relating to the appeal among themselves.
2. Communications between municipal staff and Commission or Board members where;
a. such staff members are not themselves parties to the appeal and
b. such communications do not furnish, augment, diminish, or modify the evidence in the record on appeal.
3. Communications between the Commission or Board and its legal counsel.
c. If, before an appeal commences, a member of the Commission or Board receives an ex parte communication of a type that could not properly be received while an appeal is pending, the member shall disclose the communication in the manner prescribed in subsection (d) at the first meeting of the Commission or Board at which the appeal is addressed.
d. A member of the Commission or Board who receives an ex parte communication at any time shall, at the first opportunity after the communication, place on the record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the member received an ex parte communication. Any party to the appeal desiring to rebut the ex parte communication must be granted a reasonable opportunity to do so if a request is promptly made.
e. If the Commission or Board determines in its discretion it is necessary to eliminate the harmful effect of an ex parte communication received in violation of this section, the Commission or Board may disqualify the member who received the communication from participation in the appeal. In addition, the Commission or Board may impose appropriate sanctions, including default, against a party to the appeal for any violation of this section.
f. It is a violation, subject to penalties and other enforcement remedies under this title:
1. For any person to knowingly have or attempt to have ex parte communication with a Commission or Board member in violation of subsection (a).
2. For any Commission or Board member to knowingly receive an ex parte communication in violation of subsection (a).
3. For any Commission or Board member to knowingly fail to place on the record any matter when and as required under subsections (c) and (d). (Ord. 08-29, 2008).