Ordinance 17-07(S-3)(A) Amending HCC 21.93 Board of Adjustment or Hearing Officer

CITY OF HOMER
HOMER, ALASKA

Erickson

ORDINANCE 17-07(S-3)(A)

 

An Ordinance of the City Council of Homer, Alaska, Amending Homer City Code 21.93.060, 21.93.070, 21.93.080, 21.93.100, 21.93.110, 21.93.500, 21.93.540, 21.93.550, 21.93.560, 21.93.570, 21.93.700, AND 21.93.710 REQUIRING THE CITY OF HOMER TO USE A HEARING OFFICER WHEN APPEALING A HOMER ADVISORY PLANNING COMMISSION DECISION, REQUIRING ALL APPELLANTS TO USE A HEARING OFFICER WHEN A BOARD OF ADJUSTMENT QUORUM CANNOT BE OBTAINED DUE TO CONFLICT OF INTEREST, BIAS OR PARTIALITY, AND PERMITTING ALL OTHER APPELLANTS THE CHOICE BETWEEN AN APPEAL BEFORE THE BOARD OF ADJUSTMENT AND A HEARING OFFICER IN APPEALS OF PLANNING COMMISSION DECISIONS

WHEREAS, It is in the City’s best interest to provide individuals and corporate entities appealing decisions issued by the Homer Advisory Planning Commission (“Commission”) the ability to use a hearing officer rather than the Board of Adjustment; and

WHEREAS, requiring the City of Homer to use appeal decisions issued by the Commission to a hearing officer preserves the appearance of impartiality and minimizes perceptions of conflict or bias; and

WHEREAS, The use of experienced hearing officers that do not otherwise advise the City on legislative land use matters promotes public confidence in the City of Homer’s administrative appeals process,

NOW, THEREFORE, THE CITY OF HOMER ORDAINS:

Section 1. Section 21.41.400 shall be amended to read as follows:

a. The Planning Commission shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Planning Department.

b. The Board of Adjustment or a hearing officer appointed by the City Manager shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Planning Commission. 

Section 2.  Section 21.91.110 shall be amended to read as follows:

Either the Board of Adjustment or a hearing officer appointed by the City Manager shall hear and decide appeals authorized by HCC 21.93.  A decision appealed under HCC 21.93 shall be heard by a hearing officer unless the individual or entity appealing the decision selects the Board of Adjustment to hear the appeal in their notice of appeal. A hearing officer appointed by the City Manager shall hear and decide appeals pursuant to the provisions of the zoning code.

A hearing officer appointed by the City Manager to act as the decision maker in appeals of decisions made by the Planning Commission must have at least five years’ experience acting as an administrative law judge or administrative hearing officer and must be licensed to practice law in the State of Alaska and in good standing.

The City Manager, the City Planner or the City Planner’s designee, or any City of Homer official, agency, or unit shall appeal to a hearing officer and may not select to appeal to the Board of Adjustment.

Section 3.  Section 21.91.120 shall be amended as follows:

Appeals heard by the Board of Adjustment or a hearing officer shall be conducted according to applicable procedures specified in Chapter 21.93 HCC.

Section 4.  Section 21.91.130 shall be amended as follows:

a. An appeal from a final decision of the Board of Adjustment or a hearing officer may be taken directly to the Superior Court by a party who actively and substantively participated in the proceedings before the Board of Adjustment or the hearing officer or by the City Manager or City Planner or any governmental official, agency, or unit.

b. An appeal to the Superior Court shall be filed within 30 days of the date of distribution of the final decision to the parties appearing before the Board of Adjustment or hearing officer.

c. An appeal from a final decision of the Board of Adjustment or hearing officer to the Superior Court is governed by court rules.

Section 5. Section 21.93.030 shall be amended to read as follows:

21.93.030 Decisions subject to appeal to the Board of Adjustment or a hearing officer.

The following acts or determinations of the Commission, when final, may be appealed to the Board of Adjustment or a hearing officer appointed by the City Manager by a person with standing:

a. Grant or denial of a conditional use permit.

b. Grant or denial of a variance.

c. Grant or denial of formal recognition of a nonconforming use or structure, or a decision terminating a nonconforming use or structure.

d. Grant or denial of a conditional fence permit.

e. A decision by the Commission in a matter appealed to the Commission under HCC 21.93.020.

f. Any other final decision that is expressly made appealable to the Board of Adjustment or a hearing officer by other provisions of the code.

Section 6.  Section 21.93.060 shall be amended to read as follows:

21.93.060  Standing – Appeal to Hearing Officer.

Only the following have standing to appeal an appealable action or determination of the Planning Commission to the Board of Adjustment or a hearing officer:

a. Applicant for the action or determination, or the owner of the property that is the subject of the action or determination under appeal.

b. The City Manager, the City Planner or the City Planner’s designee, or any governmental official, agency, or unit.

c. Any person who actively and substantively participated in the proceedings before the Commission and is aggrieved by the action or determination.

d. 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.

Section 7. Section 21.93.070 shall be amended to read as follows:

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.

An appeal to the Board of Adjustment or a hearing officer 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.

Section 8.  Section 21.93.080 shall be amended to read as follows:

A notice of appeal from an action or determination of the City Planner or the Planning Commission shall be filed with the City Clerk.

A notice of appeal shall be in writing, be signed by the appellant, and shall contain, but is not limited to, the following information:

The name and address of the appellant.

A description of the action or determination from which the appeal is sought and the date upon which the action or determination became final.

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.

Detailed and specific allegations of error, including reference to applicable provisions of the zoning code or other law.

A statement of whether the action or determination should be reversed, modified, or remanded for further proceedings, or any other desired relief.

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.

The appellant’s choice of decision maker, which may be either the Board of Adjustment or a hearing officer appointed by the City Manager.

The City Clerk shall reject any notice of appeal that does not comply with HCC 21.93.070 and this section and notify the appellant of the reasons for the 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.

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 on which the City Clerk determines the notice of appeal complies with HCC 21.93.070 and this section.

Any person with standing under HCC 21.93.050 or 21.93.060, whichever is applicable, may, within seven days after the date the City Clerk mailed copies of an accepted notice of appeal, file notice of cross appeal.  Any notice of cross appeal shall, to the extent practical, comply with subsection (b) of this section.

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.

Section 9. Section 21.93.100 shall be amended to read as follows:

a. All appeals must be heard within 60 days after the appeal record has been prepared. The body or officer 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. When an appellant chooses to appeal to a hearing officer, the City Clerk shall identify the hearing officer in the notice of hearing.  All parties shall have ten days from the date of the notice to object to the hearing officer based upon conflicts of interest, personal bias or ex parte contacts.  Failure to file an objection to the hearing officer within the ten days shall waive any objection to the hearing officer.

cd. 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.

Section 10. Section 21.93.110 shall be amended to read as follows:

a. All final decisions on appeals shall be in writing, and shall state the names and number of members of the body who participated in the appeal, the names and number voting in favor of the decision, and the names and number voting in opposition to the decision.  All final decisions issued by a hearing officer must state the name of the officer.

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 or hearing officer may adopt, as their 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.

Section 11. Section 21.93.500 shall be amended to read as follows:

21.93.500               Parties eligible to appeal Planning Commission decision to the Board of Adjustment or a hearing officer – 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 or a hearing officer.

b. Any person so qualified who desires to participate in the appeal as a party, other than the appellant, the City Planner or the City Planner’s designee, 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.

Section 12. Section 21.93.510 shall be amended to read as follows:

a. Except as provided in subsections (b) and (c) of this section, the Board of Adjustment or hearing officer shall not consider allegations of new evidence or changed circumstances and shall make their decision based solely on the record. If new evidence or changed circumstances are alleged, the Board of Adjustment or hearing officer may, in their 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 or hearing officer 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.

Section 13.  Section 21.93.520 shall be amended to read as follows:

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 or hearing officer, and 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 21.93.080(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 hearing officer 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.

Section 14. Section 21.93.540 shall be amended to read as follows:

 

a. The meeting at which the Board of Adjustment hears an appeal shall be open to the public.  An appeal before the hearing officer shall also be open to the public.  The City Attorney or another attorney acting as legal counsel to the Board shall be present at appeals before the Board of Adjustment.

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 Board of Adjustment or hearing officer 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 or hearing officer 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.

d.The Board of Adjustment or  hearing officer may exercise his or her 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 or hearing officer 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 or hearing officer shall exercise independent judgment and may make their 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 of Adjustment or hearing officer to make the finding of fact, they may do so in the exercise of their independent judgment, or, in the alternative, the Board of Adjustment or hearing officer 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.

Section 15. Section 21.93.550 shall be amended to read as follows:

                                21.93.550 Board of Adjustment or Hearing Officer Decision

a.The Board of Adjustment or hearing officer may affirm or reverse the decision of the lower administrative body in whole or in part.  If the appeal is heard by the Board of Adjustment, a 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.

Section 16. Section 21.93.560 shall be amended to read as follows:

a. The Board of Adjustment or hearing officer may remand the appeal to the lower administrative body when the Board or hearing officer 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 or hearing officer 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 or hearing officer. 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.

Section 17. Section 21.93.570 shall be amended to read as follows:

If no specific procedure is prescribed by the code, the Board of Adjustment or hearing officer may proceed in an administrative appeal in any lawful manner not inconsistent with this title, statutes, and the Constitution.

Section 18. Section 21.93.700 shall be amended to read as follows:

 A member of the Planning Commission, or Board of Adjustment or a hearing officer appointed to hear an appeal from a Planning Commission decision may 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 or hearing officer is determined to have a substantial financial interest in the official action, as defined in Chapter 1.18 HCC. In the absence thereof, all Commission, or Board members or a hearing officer shall participate in the deliberation and voting process unless excused pursuant to other provisions of this chapter.

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, an appellate tribunal, or a hearing officer 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.

A hearing officer shall disclose any substantial financial interest, personal bias or ex parte contact immediately upon being appointed by the City Manager and shall refrain from accepting the appointment if a substantial financial interest, personal bias or ex parte contact exists.  If the substantial financial interest, personal bias or ex parte contact arises after the hearing officer’s appointment, he or she shall disclose his or her interest and shall be disqualified from serving as the hearing officer unless all parties waive any objection to the hearing officer.

For purposes of hearing an appeal, a quorum of the Commission is four members. If it is not possible to obtain a quorum of the Planning Commission 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.

e. For purposes of hearing an appeal, a quorum of the Board is four members.  If it is not possible to obtain a quorum of the Board to hear an appeal without the participation of members who have chosen to abstain or been disqualified by the Board due to substantial financial interest, bias or partiality, then the hearing shall be postponed and a hearing officer shall be appointed.  A hearing officer appointed under this subsection shall conduct the rescheduled hearing no more than 60 days after the original hearing date except that the hearing officer may extend the hearing date for good cause shown.

Section 19. Section 21.93.710 shall be amended to read as follows:

a. No member of the Commission or Board of Adjustment or any hearing officer appointed by the City Manager to review a decision issued by the Commission 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 or the hearing officer 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) of this section 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 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 or hearing officer in violation of subsection (a) of this section.

2. For any Commission or Board member or hearing officer to knowingly receive an ex parte communication in violation of subsection (a) of this section.

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) of this section.

Section 20.  This ordinance shall take effect upon its adoption by the Homer City Council.

Section 21.  This ordinance is of a permanent and general character and shall be included in the City Code.

 

                ENACTED BY THE CITY COUNCIL OF HOMER, ALASKA, this ________ day of ______________, 2017.

 

                                                                                    CITY OF HOMER

 

 

_________________________________

BRYAN ZAK, MAYOR

 

 

 

ATTEST:

 

_____________________________

MELISSA JACOBSEN, MMC, CITY CLERK

 

YES:

NO:

ABSTAIN:

ABSENT:

 

First Reading:

Public Hearing:

Second Reading:

Effective Date: 

 

Reviewed and approved as to form.

 

                                                                                                                                                                                    

Mary K. Koester, City Manager                                                              Holly C. Wells, City Attorney

Date:                                                                                                          Date: