DOC APPEAL PROCEDURE AMENDMENTS (00105674).DOC

WHEREAS, HCC Chapter 21.93 provides procedures for appeals to the Homer Advisory Planning Commission and the Board of Adjustment; and

WHEREAS, Experience has demonstrated the need to improve and clarify certain appeal procedures to support the fair and expeditious processing of appeals.

NOW, THEREFORE, THE CITY OF HOMER ORDAINS:

Section 1. Homer City Code 21.93.100, General appeals procedure, is amended to read as follows:

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.

Section 2. Homer City Code 21.93.110, Appeal decisions, is amended to read as follows:

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.

Section 3. Homer City Code 21.93.300, Appeals to the Planning Commission, is amended to read as follows:

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.

Section 4. Homer City Code 21.93.500, Parties eligible to appeal to Board of Adjustment; notice of appearance, is amended to read as follows:

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.

Section 5. Homer City Code 21.93.510, New evidence or changed circumstances, is amended to read as follows:

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.

Section 6. Homer City Code 21.93.520, Preparation of record, is amended to read as follows:

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.

Section 7. Subsection (a) of Homer City Code 21.93.530, Written briefs, is amended to read as follows:

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.

Section 8. Homer City Code 21.93.540, Appeal hearing, is amended to read as follows:

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.

Section 9. 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 ______________ 2010.

CITY OF HOMER

_____________________________

JAMES C. HORNADAY, MAYOR

ATTEST:

______________________________

JO JOHNSON, CMC, CITY CLERK

YES:

NO:

ABSTAIN:

ABSENT:

First Reading:

Public Hearing:

Second Reading:

Effective Date:

Reviewed and approved as to form:

________________________ ____________________________

Walt E. Wrede, City Manager Thomas F. Klinkner, City Attorney

Date: ___________________ Date: _______________________