Memorandum 17-064 Ordinance 17-07(S-2) Hearing Officer

Memorandum 17-064

TO:                        MAYOR ZAK AND FELLOW COUNCIL MEMBERS

FROM:                 COUNCIL MEMBER ADERHOLD

DATE:                   APRIL 18, 2017

SUBJECT:          ORDINANCE 17-07(S-2)

I received comments from Homer residents regarding Ordinance 17-07(S-2) and tried to work them into a substitute ordinance, but my attempt at revisions turned into concerns and questions probably best answered by further review by the Advisory Planning Commission with input from the city attorney than through city council amendments. I’ve summarized the comments and questions below and will recommend at our April 24, 2017 regular meeting that we postpone vote on Ordinance 17-07(S-2) and send the ordinance to the Advisory Planning Commission for their review and recommendation. The City of Homer’s means for adjudicating appeals is an extremely important issue and I feel it’s important to get right rather than passing or failing a particular ordinance because it’s what is in front of us.

Summary of comments:

Overall: Ordinance 17-07(S-2) allows the appellant to decide between a Board of Adjustment and a Hearing Officer. This choice raises several questions:

• What about other parties in the appeal? Do they have any say in the choice between a Board of Adjustment and a Hearing Officer?
  • During discussion at the April 10, 2017 City Council meeting, City Council members discussed “simple” appeals going to the Board of Adjustment and “complex” appeals going to a Hearing Officer. But that’s not what’s presented in the ordinance. Is it understood that appellants will know the difference between “simple” and “complex” appeals and decide accordingly? What test would be used to determine whether an appeal is “simple” or “complex?”
  • What happens if the appellant or another party associated with the appeal disagrees with the decision made by the Board of Adjustment or Hearing Officer? For example, an appellant selects the Board of Adjustment and an individual with standing in the appeal objects to that selection because of the perception of bias. The Board of Adjustment decides in favor of the appellant. What is the recourse for the individual with standing?
• Overall: Ordinance 17-07(S-2) dropped sections of code that were revised under Ordinance 17-07(S) that passed and was then reconsidered. Should those sections of code be included in this or another ordinance regarding who will hear appeals?
• Lines 14-20: The whereas clauses for Ordinance 17-07(S-2) are unchanged from the original ordinance and state that it is in the City of Homer’s best interest to use a Hearing Officer for most types of appeals rather than the Board of Adjustment. If City Council moves to a vote on Ordinance 17-07(S-2), these whereas clauses should be amended.
• Lines 333-337: The language in this paragraph is substantively changed from the current language in Homer City Code Section 21.93.550. Should some or all of the existing language in city code be retained?
• Lines 408-418: If the Board of Adjustment does not have a quorum without including members who have been disqualified, would it not be in the best interest of the city to automatically refer the appeal to a Hearing Officer?
• Lines 464-469: This paragraph refers to ex parte communication by members of the Board of Adjustment. Should the ordinance contain similar language for the replacement of a Hearing Officer in the event of ex parte communication?

The comments I received included numerous suggested revisions to the code presented in Ordinance 17-07(S-2) that do not directly pertain to the hearing of appeals by the Board of Adjustment or a Hearing Officer. I believe these were good suggestions that may be appropriate for a separate ordinance in the future.

Recommendation: Postpone Ordinance 17-07(S-2) and refer the ordinance to the Homer Advisory Planning Commission for their review and recommendation.