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Home My WebLink About8.5 Mediation in Appeals CITY CLERK File # D~[][Q]-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 6, 2007 SUBJECT: Mediation in Appeals before City Council Report Prepared by Richard Ambrose, City Manager Elizabeth H Silver, City Attorney RECOMMENDATION~ 1. ~ 2. Receive Report Provide Direction FINANCIAL STATEMENT: None at this time BACKGROUND: Currently, the City does not require parties to mediate any appeals or disputes that come before the City Council. At the October 17, 2006 City Council meeting, the Council raised concerns that certain appeals were excessively time-consuming, and asked whether requiring parties to mediate would save City time by resolving disputes early in the administrative process. The City Council directed Staff and the City Attorney's Office to do further analysis. ANALYSIS 1. Decisions That Are Appealable to the City Council The Dublin Municipal Code allows appeals to the City Council in quite a few situations, some of which concern multiple parties and thus might benefit from mediation. A person other than the applicant or permittee can appeal decisions relating to: - decisions of the Fire Chief - tentative maps - animal control - decisions ofthe Building Official (building regulation administration) - public dances - watercourse protection permits - sound amplification equipment permits - wells - grading. regulations - parades - business registration licenses - solid waste management COPIES TO: l '[J.3 ITEM NO. ~.~ - establishing right-of-way lines - underground utility districts - non-ministerial actions and decisions of the Planning Commission . - smoking pollution control enforcement - abatement of nuisances - heritage tree decisions Because such a large number of decisions may be appealed, any scheme of mediation might save City Council time, 'but if not carefully conceived and implemented, could also put additional burdens and costs on Staff and applicants. II. Other Cities' Practices We looked quickly at whether other cities require mediation. Berkeley does not appear to mandate mediation in specific circumstances, but allows or recommends mediation in certain situations. For example, Berkeley outlines a procedure that private parties may follow in attempting to resolve tree-view disputes. If such a dispute is not resolved after initial written correspondence from the complaining party, that party may then propose mediation to the tree owner. Acceptance of the mediation process by the tree owner is voluntary. The complaining party pays the costs of mediation. (Berkeley Municipal Code sections 12.45.030 and 12.45.050.) Berkeley also allows a property owner to mediate complaints that his or her property is a nuisance. If the owner elects mediation, the costs of mediation are borne equally by the disputing parties and the mediation must occur within 30 days of notice to the owner. (12.92.050.) And, in certain zoning. appeal disputes, the city council will refer the parties to mediation, with the city covering the costs. It is Staff s understanding that mediation in Berkeley has met with limited success. It appears that some parties have used the mediation process simply as a way tct delay projects they oppose. To avoid this pitfall, it would be prudent for any mediation process approved by the City Council to have a maximum time limit, after which, if the parties have not reached an agreement, the mediation process would be discontinued. We did not find mediation to be required by other cities, but did not do an ,exhaustive search. III. Mediation Costs The City Council also wished to consider imposing the costs of mediation upon the disputing parties. The City Attorney concluded that as long as there were an exception to spare indigents the costs of mediation and so long as the price of mediation more generally was not too high, there would be no constitutional problem with requiring the parties to cover the costs of mediation. East Bay Community Mediation (EBCM) provides mediation and conflict resolution services to individuals and cities in Alameda County and South County. Many cities in these counties, including Dublin, have used EBCM's services in the past. j EBCM charges a typical fee of $50 per party for neighbor disputes. For complex cases, the fee can be up to $150. Parties pay based on a sliding scale, and no one is turned away for inability to pay. Individuals fill out a simple form to qualify for a fee waiver or reduction. Requiring disputing parties to use and pay for EBCM, or a similar service, would seem to be permissible. IV. Options Staff has identified three options for the Council to consider: 2'1J~ Option One. Where the Municipal Code provides for appeals for non-applicants or non-permittees after decisions by Staff, Planning Commission, or another city official, the City Council could adopt an ordinance adding a provision to the Municipal Code that would require the complaining party to propose mediation in all or some of those circumstances. The appeal form would indicate that an appealing non- applicant/permittee must propose mediation to the applicant within a certain number of days, which the applicant may then accept or not. If the applicant accepts mediation, during the mediation process the appeals timeline would be tolled. If the applicant declines mediation, he or she would be required to sign a form stating awareness that the City Council encourages mediation, but that nevertheless the applicant is opting out of the mediation process. Option Two. The City Council could adopt an ordinance that provides that the Council can require mediation when appropriate as long as there is adequate time and the delay does not violate time limits in the Municipal Code and/or any state or federal law. Staff could then recommend to the City Council in selected appeals that the Council refer the parties to mediation before hearing the appeal. Technically, the Council would have begun to hear the appeal before the mediation occurs, but typically can simply stay and later continue its consideration if necessary. Thus, before the appellant and other party appeared before the City Council on the merits, they would have been required to air their differences in front of a mediator. This would, in some situations, resolve all or much of the dispute and the appeal can be dropped or at least narrowed. Option Three. The Council could simply identify specific types of disputes that would require mediation, such as parking, parade or animal disputes. . Staff believes that Option One best conserves time for both the City and the applicant. It prevents Staff from having to do a case-by-case analysis and staff report for every appeal, as would be required by Option Two. Option One also prevents an automatic lengthening of the appeal process. EBCM informed us that the mediation process usually takes a minimum of seven to ten days. Adding time to the process could be unfair to some applicants. Furthermore, Option One allows the parties most amenable to the mediation process to pursue mediation before coming before the City Council. V oluntary mediation should result in a higher success rate than mandated mediation. In fact, in many if not all cases, mediation organizations mediate disputes only when both parties are willing. If the City Council is interested in any of these options, the City Attorney can draft proposed ordinance language. We recommend that the new provision be added to Title 1 as it will apply to all decisions that may be appealed to the City Council. This would avoid the need to amend multiple sections of the Municipal Code. RECOMMENDATION Staff recommends the City Council receive the staff report and provide direction. 31J3