CITY OF HOMER
HOMER, ALASKA
City Council/City Attorney
ORDINANCE 05-17(S)
AN ORDINANCE OF THE CITY COUNCIL AMENDING HOMER CITY CODE CHAPTER 21.68 CONCERNING APPEALS UNDER THE HOMER ZONING CODE AND ENACTING SECTION 21.30.030 TO AUTHORIZE SETTING ZONING FEES BY RESOLUTION
WHEREAS, according to Homer City Code § 21.28.020 the purpose of the Homer zoning code is to enhance the public health, safety and welfare through, generally, the regulation of the use of land; and
WHEREAS, land use and zoning regulations do impose significant burdens on the use of privately owned land, which are necessary for the enhancement of public health, safety and welfare; and
WHEREAS, the authority and responsibility to enforce the Homer zoning code is given primarily to the Planning Director and the Administrative Official under HCC §§ 21.30.010—21.30.020, subject to appeals to the Planning Commission, Board of Adjustment, and the state courts, the authority to grant some permits and variances is given to the Planning Commission, subject to appeals to the Board of Adjustment and the state courts; and
WHEREAS, a municipality is required by Alaska Statute § 29.40.060 to grant standing to a "person aggrieved" by a zoning decision made by municipal officials, and this signifies that the legislature has chosen to limit standing in the area of land use law, primarily in order to prevent excessive litigation and undue delay of final dispositions, Earth Movers of Fairbanks v. Fairbanks North Star Borough, 865 P.2d 741, 743 n. 6, rehearing denied, (Alaska 1994), but also because an expansive rule of standing would potentially create a land use battleground that would unduly tax the resources of the municipality as well as impair the free enterprise system, id., and unreasonably interfere with the use and development of private property; and
WHEREAS, recent experiences of the Planning Commission and Board of Adjustment reveal there is confusion and uncertainty about the standing of persons to appeal under the current Homer zoning code, which can and should be eliminated by amending the code; and
WHEREAS, other provisions of Chapter 21.68 of the Homer zoning code relating to conflicts of interest and ex parte contacts should also be amended; and
WHEREAS, increasing numbers of zoning matters have added greatly to the City's burden and cost in the administration and enforcement of the zoning code, and it is necessary to establish fees for various activities under the zoning code.
NOW THEREFORE, THE CITY OF HOMER HEREBY ORDAINS:
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Section 1. Homer City Code Chapter 21.68 is hereby amended as follows:
CHAPTER 21.68
APPEALS
Sections:
21.68.010 Purpose
21.68.015 Decisions
subject to appeal.
21.68.020 Who may appeal; appellees.
21.68.030 Time for appeal.
21.68.040 Notice of appeal; appearances.
21.68.060 General appeals procedure.
21.68.065 Appeal to Board of Adjustment--New evidence or changed circumstances.
21.68.070 Appeal to the Board of Adjustment--Preparation of record.
21.68.072 Appeal to the Board of Adjustment--Briefs.
21.68.074 Appeal to the Board of Adjustment--Appeal hearing.
21.68.076 Appeal to the Board of Adjustment--Decision.
21.68.078 Appeal to the Board of Adjustment--Remand.
21.68.080 Appeals to the Homer Advisory Planning Commission.
21.68.090 Appeal--Conflict of Interest.
21.68.100 Appeal--Ex parte contacts prohibited.
21.68.110 Other procedures.
21.68.010 Purpose. a. This chapter governs appeals to the Homer
Advisory Planning Commission and the Board of Adjustment from actions and determinations
taken under the Homer City Zoning Ordinance.
b. An appeal may be taken from a final decision of the Board of Adjustment to the Superior Court pursuant to Section 21.67.040.
21.68.015 Decisions
subject to appeal. a. Only the following
acts or determinations by the Planning Director (which for purposes of appeals
under this chapter includes acts and determinations by the Administrative
Official or any staff member of the Planning Department), when final, may be
appealed to the Commission:
1. approval or denial of a zoning permit;
2. approval or denial of a sign permit;
3. an enforcement order issued under section
21.30.040;
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4. any other decision that is expressly made
appealable to the Commission by other provisions of the Homer Zoning Ordinance.
b. Only
the following acts or determinations of the Commission, when final, may be
appealed to the Board of Adjustment:
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;
grant of denial of a conditional fence permit.
4.
grant or denial of a conditional fence permit.
4. 5. a decision by the Commission
in a matter appealed to the Commission under subsection 21.68.015(a);
5. 6.any
other final decision that is expressly made appealable to the Board of
Adjustment by other provisions of the code.
c. 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 section 21.30.050, section 21.59.160, or any other provision of the code;
2. a decision to not issue an enforcement order under section 21.30.040, section 21.59.150, or any other provision of the code;
3. an order of abatement issued under section 21.30.090 after all appeals have been exhausted or the time for appeal has expired;
4. any recommendation for or approval of the adoption, revision, or amendment of the zoning code, zoning map, comprehensive plan, any other plan, a rezoning, and any other legislative matter; and
5. any matter not expressly made appealable by this section or another provision of the Homer zoning ordinance.
21.68.020 Who may
appeal; appellees. a. Any action or determination taken under
Chapter 21.28 through 21.70,Any action or determination of the
Planning Director that is appealable to the Commission under section 21.68.015 may
be appealed by only:
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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 Administrative Official or Planning Director or any governmental official, agency, or unit.
3. Any person or
persons with interests in land that is affected by action or determination aggrieved
by the action or determination.
4.
Any person who obtains the signatures of three aggrieved people as defined in
section c. of 21.68.020.
5. An person paying a fee of $750.00
subject to refund if the appellant is successful on any aspect of appeal.
b.
If an
Any action or determination of the Planning Commission that
is appealed appealable
to the Board of Adjustment under section 21.68.015 may be
appealed by only:, the
following may file a written notice of appearance as provided in Section
21.68.040 to participate as a party to the appeal and file an appellee brief as
provided in Section 21.68.070:
1. The
party in whose favor the Planning Commission's decision was rendered
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 Administrative Official or Planning Director or any governmental official, agency, or unit.
3. Any person or
persons with interests in land that would be adversely affected who
participated in the proceedings before the Commission and is aggrieved by the
action or determination.,
or who would be aggrieved
if the decision of the Planning Commission were reversed by the Board of
Adjustment.
4. Any person who participated in the proceedings before the Commission and would be aggrieved if the decision of the Planning Commission were reversed by the Board of Adjustment.
c. For purposes of this section, title, to be a
"person aggrieved" the person must show proof of the adverse effect
the action or determination has or could have on the use, enjoyment, or value
of real property owned by that person.
An interest that is no different from that of the general public is not
sufficient. any person
who was entitled under Section 21.69.030 to notice by mail of a public hearing
on an application for the action or determination appealed from is irrebuttably
presumed to be a person with interests in land that is affected by
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the action or determination.
21.68.030 Time for
appeal. a. An appeal
to the Planning Commission or Board of Adjustment must
be filed within thirty
fourteen days of the date of the action or
determination being appealed.
b. An appeal to the Board of Adjustment must be filed within thirty days of the date of the action or determination being appealed.
21.68.040 Notice of
appeal; appearances. a. A notice of appeal from an action or
determination of the Planning Director or Administrative
Official shall be filed with the City Manager.
A notice of appeal from an action or determination of 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 directly affected by that is the subject
of the action or determination being appealed, and the
name and address of property owner(s).
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 section 21.68.020.
c. The City
Manager or City Clerk shall reject any notice of appeal that does
not comply with this subsection
sections 21.68.030—21.68.040 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 subsection
section will be accepted as timely if filed within seven days of
the date of mailing the notice of rejection.
c.d. The Planning
Director or City Clerk shall mail copies of the notice of appeal to
all parties of record in the proceeding appeal
appealed from within seven days of the date of receipt of the
notice of appeal.
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e.
Only persons who actively participated in the matter
before the Commission and who would be qualified to appeal under subsection
21.68.020(b) may participate as parties in an appeal before the Board of
Adjustment. Any party person so
qualified who desires desiring
to participate in the appeal as a party 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 is qualified under
subsection 21.68.020(b). and
the name and address of the party's representative, if any.
f. 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.
d.g. Any additional
party qualified person filing a notice of appearance
may, within seven days after date of filing of the initial notice of appeal,
file notice of cross appeal complying with subsection (b).
h. The Planning
Director or City Clerk shall promptly give notice of the cross
appeal to the appellant and all other parties who have filed a notice of
appearance.
21.68.060 General
appeals procedure. a. All appeals must be heard within sixty days
after the appeal record has been prepared.
The agency hearing the appeal may for good cause shown extend the time
for hearing. The decision on appeal
must be rendered within sixty days after the appeal hearing.
b. The appellant and all parties who have entered an appearance shall be provided not less than fifteen days' written notice of the appeal hearing. Neighboring property owners shall be notified as set forth in Section 21.69.030.
c. An electronic recording shall be kept of the entire proceeding and shall be reduced to written minutes. 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.
d. All final decisions shall be in writing.
e. 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 Chapters 21.28 through 21.70. Upon express vote, the agency may adopt, as its statement of findings and reasons, those findings and reasons officially adopted by the agency below from which the appeal was taken.
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f. Copies of the agency's decision shall be promptly mailed to all parties who entered a written notice of appearance in the appeal proceeding.
21.68.065 Appeal to the Board of Adjustment--New evidence or changed circumstances. a. Except as provided in subsection b. 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 shall, in its discretion, either hear the appeal without considering the allegations or shall remand the matter forthwith to the appropriate lower administration body or official, which shall determine whether to rehear the matter.
b. When the standing of a party person is
in issue, the Board of Adjustment may, after notice to the parties to the
appeal, take additional evidence for the limited purpose of making findings on
the question of a party's
the person's standing. No
evidence received under this subsection shall be considered for purposes other
than determining standing.
21.68.070 Appeal to the
Board of Adjustment--Preparation of record. a. Upon Within 14 days after
receipt of timely notice of appeal to the Board of Adjustment, the Clerk shall: Prepare will
prepare an appeal record consisting of all relevant documents involved
in the original decision, including any staff reports, minutes, exhibits,
notices, and other documents utilized in the original decision. The appeal record shall be paginated.
b. A verbatim transcript of the testimony before the Planning Commission will be included only if a party makes a written request to the City Clerk within ten days after the filing of the notice of appeal or notice of cross appeal, if any is filed. The requesting party shall pay the full cost of the transcript. All arrangements for preparation of the transcript are the responsibility of the party desiring the transcript, and are subject to the prior approval of the City Clerk. Only a transcript prepared and certified as accurate by the City Clerk's Office or a qualified court reporter shall be accepted. The original transcript must be filed with the City Clerk to be included as part of the record on appeal. Any person may obtain a copy of the transcript upon payment of the cost of reproduction and any applicable mailing costs.
c. The appellant and other parties who have entered an appearance shall be notified by mail when the record is complete. Any person may obtain a copy of the appeal record upon payment of the costs of reproduction and any applicable mailing costs.
21.68.072 Appeal to the Board of Adjustment--Briefs. a. Each party to the appeal shall file with the City Clerk an opening brief not later than twenty days after the date of notice of the completion of the record on appeal. The brief shall be typed on 8 ½ X 11 inch paper and shall include a statement of facts with citations to the record on appeal, a clear statement of the party's position regarding the allegations of error specified in the notice of appeal, and points and legal authorities in support of such position.
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b. Each party may submit a 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 brief 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.
21.68.074 Appeal to the Board of Adjustment--Appeal hearing. a. The meeting at which the Board of Adjustment hears an appeal shall be open to the public. The City Attorney shall be present.
b. The taking of testimony or other evidence shall be governed by Section 21.68.065.
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 City Attorney.
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 ordinances or other provisions of law.
e. The Board of Adjustment shall defer to the judgment 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. However, findings of fact adopted by less than a majority of the lower administrative body shall not be given deference and the Board of Adjustment shall exercise independent judgment when reviewing such findings of fact. "Substantial evidence", as used in this section, means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
21.68.076 Appeal to the 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. 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.
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b. The Board may seek the assistance of the City Attorney, city staff, or parties in the preparation of a decision or proposed findings of fact.
21.68.078 Appeal to the Board of Adjustment--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.
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.
b. The lower administrative body shall act on the case upon remand in accordance with the decision of the Board of Adjustment in the minimum time allowed by the circumstances. Cases on remand following a decision of the Board shall take precedence over all other matters on the agenda of the lower administrative body, except cases remanded under Subsection 21.68.065(a) are not entitled to such precedence.
21.68.080 Appeals to
the Homer Advisory Planning Commission.
a. Upon Within
14 days after receipt of a timely notice of appeal to the Planning
Commission, the Planning Director shall
will prepare an appeal record consisting of all relevant
documents involved in the original
decision, including any staff reports, correspondence, applications, or other
documents utilized in the original
action or determination. The appeal
record shall be paginated. The
appellant and parties who have entered an appearance shall be notified by mail
when the appeal record is complete. A
copy of the appeal record may be obtained from the Planning Department upon
payment of the costs of reproduction.
b. A public hearing shall be scheduled as per Section 21.68.060.
c. The Commission may prescribe rules of procedure for additional public notification in cases where a decision of the Commission would have a substantial effect on the surrounding neighborhood.
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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 Administrative Official or Planning Director. 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 the City Attorney.
21.68.090 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:
1.
The the commission or board member has a
substantial financial interest in the official action according to Chapter 1.12
of the code., or
2. Other legal grounds for disqualification are
established.
Otherwise, all Commission or Board members shall participate in the deliberation and voting process.
b. If a financial interest or other potential grounds for legal
disqualification of a member of the Planning Commission or Board of
Adjustment is disclosed on the record, and the Commission or Board,
respectively, determines
that the member should participate because there is no substantial financial
interest in the action or other legal grounds for disqualification, any Board
or Commission action taken thereafter shall be invalid if 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 action or
other legal grounds for disqualification. in the matter, any
Board or Commission action taken thereafter 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 action . When an
action is invalidated, the Commission or Board shall undertake de novo
reconsideration of the appeal beginning at the point where the Commission
or Board, respectively, determines it is necessary to eliminate the effect of
the member's improper participation. stage
where the disqualified member's participation began.
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c. 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 under
Section 21.68.090(a)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 laid aside until a later date (not beyond the date specified in
section 21.68.060(a)) when the agency can obtain a quorum of members
who do not have a are
not disqualified by a substantial financial interest or other disqualification.
21.68.100 Appeals--Ex
parte contacts prohibited. a. Planning
Commission and Board of Adjustment members shall be impartial in all appeal
matters, both in fact and in appearance. No member of the Commission or Board Adjustment shall
communicate, directly or indirectly, with the appellant, other parties or
persons affected by the appeal, or members of the public concerning the 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 shall not be deemed to 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 and 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.
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d. A member of the Commission or Board who receives an ex parte
communication in violation of this section 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, and shall
advise all parties that these matters have been placed on the record. Any party to the appeal
desiring to rebut the ex parte communication must be allowed granted a reasonable opportunity
to do so if a timely request is made., upon requesting the opportunity for rebuttal within ten
days after notice on the record of the communication.
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 and it may order
that the portions of the record pertaining to the communication be sealed by
protective order. In
addition, the Commission or Board may provide for appropriate sanctions,
including default, for any violation of this section.
f. It is a violation, subject to applicable penalties and other enforcement remedies under this code:
1. For any person to knowingly communicate or attempt to communicate with a Commission or Board member in violation of subsection a.
2. For any Commission or Board member to knowingly receive a 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.
21.68.110 Other procedures. If no specific procedure is prescribed by the code, the Planning Commission or Board of Adjustment may proceed in any lawful manner not inconsistent with this code, statutes, and the constitution.
Section 2. A new section 21.30.030 is hereby enacted to read as follows:
21.30.030 Zoning fees. The City Council may by resolution establish fees to be charged
for any application, filing, permit, inspection, appeal, or any other action or
service provided for in the Homer Zoning Ordinance or applicable
regulations. This includes the
authority to amend such fees from time to time and set conditions, if any,
under which a fee will be increased or waived, in whole or in part.
Section 3. This ordinance is of a permanent and general character and shall be included in the City Code.
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ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA, this __________ day of ______________________, 2005.
CITY OF HOMER
_______________________________
JAMES HORNADAY, MAYOR
ATTEST:
___________________________
MARY L. CALHOUN, CMC, CITY CLERK
AYES:
NOES:
ABSTAIN:
ABSENT:
First Reading:
Public Hearing:
Second Reading:
Effective Date:
Reviewed and approved as to form:
_____________________________ ___________________________
Walt Wrede Gordon J Tans
City Manager City Attorney