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HomeMy WebLinkAboutItem 6.3 Amend 8.136 MuniCode (2) ~ CITY CLERK File # D~GSlG2J-[2J[QJ . AGENDA STATEMENT CITY COUNCIL MEETING DATE: October 6, 1998 SUBJECT: EXHIBITS ATTACHED: RECOMMENDATION: ~) 2) 3) ~ 4) 5) . FINANCIAL STATEMENT: BACKGROUND: PUBLIC HEARING: P A 98-052 Zoning Ordinance Amendment to Chapter 8.136 of the Municipal Code (Zoning Ordinance) relating to Appeals. (Report Prepared by': Dennis Carrington, Senior Planner) 1. 2. Ordinance amending Chapter 8.136 Planning Commission Resolution 98-41 dated September 22, 1998 6) Open public hearing and hear staff presentation Take testimony from the public Question staff and the public Close public hearing and deliberate Waive reading and introduce the Ordinance amending Chapter 8.136 (Exhibit 1) of the Municipal Code Continue the public hearing to October 20, 1998 meeting Staff time to process a zone ordinance amendment. Appeals by members of the City Council would be processed at City expense. On September 1, 1998, the City Council during consideration of an appeal of P A 98-030, Montessori Plus preschool, determined that a member of the City Council may appeal an action of the Planning Commission because the City Council was represented by staff at that public hearing. Staff has taken direction from the City Council and is proposing amendments to Chapter 8.136 of the Zoning Ordinance, Appeals, to clarify that chapter as follows: . Section 8.136.040.B, Permit and Hearing Actions, to clarify that a City Council Member may appeal an action of the Planning Commission, that the act of an appeal does not infer bias on the part of that City Council member and whether or not the City Council Member may vote on an item he or she appealed. . Section 8.136.060.A, Report, Scheduling and Action, to change the timeline for scheduling and hearing appeals to provide for more timely hearings and action; . Section 8.136.060.C, Appeal Hearing Procedure, to permit the City Council to consider any issue concerning the application being appealed rather than only those issues involving matters that are the specific subjects of the appeal; . --------------------------------------.---------------------------------------------------------------------- In-House Distribution g:\pa98-052\ccsr COPIES TO: 6.j ITEM NO. . Section 8.136.060.D, Action, to clarify that a majority vote is necessary for the appeal body to affirm, affirm in part, ?r reverse the action that is the basis for the appeal, and to clarify that a tie vote ('110 " action) results in the affirmation of the action being appealed; and . Section 8.136.080, Relation of appeals procedure under this Title to the appeals procedure of Section 1.04.050 of the Dublin Municipal Code, to clarify that appeals under the Zoning Ordinance. will be processed in accordance with this Appeals chapter of the Zoning Ordinance and not in accordance with Section 1.04.050 which applies to the remainder of the Municipal Code. Planning Commission Recommendation The Planning Commission adopted Resolution.98-41 (Exhibit 2) on September 22, 1998, recommending that the City Council amend Chapter 8.136, Appeals, of the Municipal Code. DESCRIPTION: 8.136.040.B, Permit and Hearing Actions Section 8.136.040.B, Appeals, currently limits the appeal of permit and hearing actions of the Zoning Administrator, Community Development Director and Planning Commission to anyone who, in person or through a representative explicitly identified as such, appeared at a public hearing in connection with the decision being appealed, or who otherwise informed the City in writing of the nature of his /her concerns before the hearing. This section did not clearly state how a member of the City Council could appeal an action of the Planning Commission. At the Montessori Plus appeal hearing the member of the City Council who appealed the Planning Commission decision chose to excuse herself because the act of her appeal gave the impression that she would have been biased during the consideration of the appeal. . Staff proposed revised language that stated that no inference of bias would be made because of an appeal by a City Council Member of an action of the Zoning Administrator, Community Development Director and Planning Commission. On the basis of that lack of bias, the City Council Member would not have been disqualified from voting at the appeal hearing. The Planning Commission at its September 22, 1998, public hearing on this matter voted to add language to this section stating "The City Council Member appealing an item shall be disqualified from the appeal hearing". The Staff recommendation is that the City Council Member appealing an item should not be disqualified from the appeal hearing. The language for this section recommended by the Planning Commission and by Staff is as follows (strikeout indicates text deleted and underlining indicates new text): Planning Commission Recommendation B. Permit and Hearing Actions. An action described in Section 8.136.020.B may be appealed by: L Anyone. Anyone who, in person or through a representative explicitly identified as such, appeared at a public hearing in connection with the decision being appealed, or who otherwise informed the City in writing of the nature of his/her concerns before the hearing. 2. City Council Members. A member of the City Council may appeal an action of the . Zoning Administrator. Community Development Director and Planning Commission. If 2 ~ an appeal is made by a Council Member. there shall be a presumption applied that the reason for the appeal is because the appealed action has si~nificant and material effects on the quality oflife within the City of Dublin. Notwithstanding Section 8.136.050.8. no other reason need be or shall be stated by the Council Member in his/her written appeal. No inference of bias shall be made because of such an appeal. The City Council Member appeaIinf?: an item shall be disqualified from the appeal hearing. . Staff Recommendation B. Permit and Hearing Actions. An action described in Section 8.136.020.B may be appealed by: L. . Anyone. Anyone who, in person or through a representative explicitly identified as such, appeared at a public hearing in connection with the decision being appealed, 'or who otherwise informed the City in writing of the nature of his /her concerns before the hearing. 2. City Council Members. A member of the City Council may appeal an action of the Zoning Administrator. Community Development Director and Planning Commission. If an appeal is made by a Council Member. there shall be a presumption applied that the reason for the appeal is because the appealed action has significant and material effects on the quality oflife within the City of Dublin. Notwithstanding Section 8.136.050.8. no other reason need be or shall be stated bv the Council Member in his/her written appeal. No inference of bias shall be made because of such an appeal. 8.136.060.A, Report, Scheduling and Action . Section 8.136.060.A currently requires the appeal body to conduct a public hearing on an appeal within 90 days of its proper filing. If the matter is not heard within 90 days, the decision being appealed is deemed affirmed. This section only addresses the hearing of an appeal and not action on the appeal. It is recommended that the Council modify this language to require a more timely public hearing (within 45 days rather than 90 days) and that action be taken on the appeal in a timely manner as well (within 75 days). The following modification to Section 8.136.060.A, Processing Appeals, is proposed: 8.136.060 Processing Appeals. A. Report ftfHl,1 Scheduling of Public Hearing. and Action. When an appeal has been filed, the Director shall prepare a report on the matter and shall schedule the matter for consideration by the appropriate appeal body after completion of the report. The appeal body shall conduct a public hearing on the appeal within W 12-days of its proper filing and shall take action on the appeal within 75 days of its proper filing. If the matter is not heard within 45 days or if action is not taken the ma-tter is not heard within W 75 days ofthe proper filing of an appeal, the decision being appealed shall be deemed affirmed. 8.136.060.C, Appeal Hearing Procedure . Section 8.136.060.C currently restricts the appeal body to considering only those issues involving the matters that are the specific subjects ofthe appeal. In other words, if someone were appealing the front yard setback for a house, the Council could not address the height of the house. The proposed change would allow the City Council to consider any issue concerning the application being appealed when the appeal is made by a member ofthe City Council. In the hypothetical example above, the Council would be able to address the height issue (or anything else) as well as the front yard setback issue. The proposed 3 text would read as follows: 4 c. Appeal Hearing Procedure. Appeal hearings shall be held at the date, time, and place stated in the required notice. Minutes of the hearing shall be prepared and an audio tape filed in the Department or with the City Clerk as appropriate. At the hearing, the appeal body may consider. only those issues involving the matters that ts ~ the specific subject~ of the appeal: provided that when the appeal is made bv a Council Member the Citv Council may consider anv issue concemim! the application. Any hearing may be continued provided that prior to the adjournment or recess of the hearing, a clear announcement is made specifying the date, time, and place to which said hearing will be continued and provided the continuance is not bevond the 75 day period for takinQ' action. 8.136.060.D, Action As currently written this section states that an appeal body may affirm, affirm in part, or reverse an action based on the findings of fact about the particular case. Changes are recommended to clarify this section by stating that the above action must be taken by a majority vote and that a tie vote (no action) results in the affirmation of the action being appealed. The revised text for this section is as follows: D. Action. Bv a maioritv vote +1he appeal body may affirm, affirm in part, or reverse the action, decision or determination that is the subject of the appeal, based upon findings of fact about the particular case. A tie vote shall mean that no action was taken and shall result in the affirmation of the action being appealed The findings shall identify the reasons for the action on the appeal, and verify the compliance or non-compliance of the subject of the appeal with the provisions of this Chapter. The appeal body shall take action and announce and record its decision at the public . hearing. Following the hearing, the appeal body shall provide written notice of the action taken to . the appellant at the address shown upon the application for the appeal. 8.136.080, Relation of appeals procedure under this Title to the appeals procedure of Section 1.04.050 of the Dublin Municipal Code The Appeals chapter of the Zoning Ordinance as adopted did not make clear that the appeals section that applies to the Municipal Code in general, Section 1.04.050, should not apply to appeals under the Zoning Ordinance and that Chapter 8.136 of the Zoning Ordinance should apply. The proposed text making this change is as follows: 8.136.080 Relation of appeals procedure under this Title to the appeals procedure of Section 1.04.050 of the Dublin Municipal Code. Any appeal under Title 8 shall be processed in accordance with the appeal provisions of this Chapter and not in accordance with the appeal provisions of Section 1.04.050 of the Municipal Code. RECOMMENDATION Staff recommends that the City Council: Open public hearing and hear staff presentation, take testimony from the public, question staff and the public, close public hearing and deliberate, waive reading and introduce the Ordinance as recommended by Staff amending Chapter 8.136 (Exhibit 1) of the Municipal . Code, and continue public hearing to the October 20, 1998 meeting. 4 . . . ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN AMENDING CHAPTER 8.136, APPEALS OF THE MUNICIPAL CODE (ZONING ORDINANCE) THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Chapter 8.136 of the Dublin Municipal Code is amended to read as follows: "CHAPTER 8.136 APPEALS 8.136.010 Purpose. To establish a procedure for the appeal of a requirement, decision or determination made by the Zoning Administrator, Director of Community Development, or Planning Commission. Intent. The intent of this Chapter is to ensure that appeals of decisions are properly held and noticed and that the public has a means to appeal decisions made by the City. 8.136.020 Appeal subjects and jurisdiction. Actions and decisions that may be appealed, and the authority to act upon an appeal shall be as follows: A. Administration and interpretation. The following actions of the Director may be appealed to the Planning Commission and then to the City Council: 1. Meaning and applicability ofthe provisions of Title 8. Determinations on the meaning or applicability of the provisions of Title 8 of the Dublin Municipal Code that are believed to be in error, and cannot be resolved with Staff. 2. Incomplete application. Any determination that a permit, application, or information submitted with the application is incomplete, pursuant to Government Code Section 65943. B. Permit and Hearing Actions. Except as otherwise provided in this Chapter, actions of the Director of Community Development and the Zoning Administrator on permits may be appealed to the Planning Commission and then to the City Council. Actions of the Planning Commission on permits may be appealed to the City Council. Actions ofthe City Council are final. 8.136.030 No Appeal From Ministerial Actions. No right of appeal shall exist when the decision or action is ministerial and does not involve the exercise of judgment or deliberation pursuant to any provisions of this Title. 8.136.040 Who may appeal. A. Administration and Interpretation. An appeal may be filed by any person affected by a Department administrative action or interpretation as described in Section 8.136.020.A. 1 EXHIBIT 1 B. Permit and Hearing Actions. An action described in Section 8.136.020.B may be appealed by: 1. Anyone. Anyone who, in person or through a representative explicitly identified as such, . appeared at a public hearing in cormection with the decision being appealed, or who otherwise informed the City in writing of the nature ofhislher concerns before the hearing. 2. City Council Members. A member of the City Council may appeal an action of the Zoning Administrator, ConUTIunity Development Director and Planning Commission. If an appeal is made by a Council Member, there shall be a presumption applied that the reason for the appeal is because the appealed action has significant and material effects on the quality of life within the City of Dublin. Notwithstanding Section 8.136.050.B, no other reason need be or shall be stated by the Council Member in his/her written appeal. No inference of bias shall be made because of such an appeal. C. Staff Appeal Prohibited. A representative of the City government presenting departmental recommendations at a hearing is prohibited from appealing a decision reached at such hearing. 8.136.050 Filing Appeals. A. Appeal Periods. An appeal must be filed within 10 days of the action which is the subject of the appeal. Appeals filed beyond 10 days shall not be accepted. B. Form of appeal. An appeal shall be in writing, shall reference any Planning Application number, shall ~lly state the extent of the appeal and the reasons and grounds for appeal, shall include any . information required by the Director of Community Development, and may include any explanatory materials the appellant wishes to furnish. The appeal shall be accompanied by the filing fee established by the City Council. C. Filed with City Clerk. An appeal shall be filed with the City Clerk. D. Effect of filing. In the event of an appeal, the decision being appealed shall not be effective until final action by the appeal body. 8.136.060 Processing Appeals. A. Report, Scheduling of Public Hearing, and Action. When an appeal has been filed, the Director shaH prepare a report on the matter and shall schedule the matter for consideration by the appropriate appeal body after completion of the report. The appeal body shall conduct a public hearing on the appeal within 45 days of its proper filing and shall take action on the appeal within 75 days of its proper filing. rfthe matter is not heard within 45 days or if action is not taken within 75 days of the proper filing of an appeal, the decision being appealed shall be deemed affirmed. B. Notice of Appeal Public Hearing. Notice shall be provided for an appeal public hearing in the same manner as required for a public hearing by this Title. The appellant shall be responsible for . providing all noticing materials for the appeal hearing. 2 c. . Appeal Hearing Procedure. Appeal hearings shall be held at the date, time, and place stated in the required notice. Minutes of the hearing shall be prepared and an audio tape filed in the Department or with the City Clerk as appropriate. At the hearing, the appeal body may consider only those issues involving the matters that are the specific subjects of the appeal; provided that when the appeal is made by a Council Member the City Council may consider any issue concerning the application. Any hearing may be continued provided that prior to the adjournment or recess of the hearing, a clear announcement is made specifying the date, time, and place to which said hearing will be continued and provided the continuance is not beyond the 75 day period for taking action. D. Action. By a majority vote the appeal body may affirm, affirm in part, or reverse the action, decision or determination that is the subj ect of the appeal, based upon findings of fact about the particular case. A tie vote shaIl mean that no action was taken and shall result in the affirmation of the action being appealed. The findings shaIl identify the reasons for the action on the appeal, and verify the compliance or non-compliance of the subject of the appeal with the provisions of this Chapter. The appeal body shall take action and announce and record its decision at the public hearing. FoIlowing the hearing, the appeal body shall provide written notice of the action taken to the appellant at the address shown upon the application for the appeal. E. Additional conditions of approval. When reviewing a decision on a permit, the appeal body may adopt additional conditions of approval that address the specific subject of the appeal. . F. 8.136.070 8.136.080 Effective Date of Appealed Actions. An action of the Zoning Administrator or Director of Community Development appealed to the Planning Commission shall not become effective until action on the appeal by the Planning Commission. An action of the Planning Commission appealed to the City Council shall not become effective until action on the appeal by the City Council. Effect of Denial. When an application for a permit is denied on appeal, no application for the same or substantially same permit or a permit for the same use on the same property shall be filed for a period of one year from the date of denial, except where 'the permit was denied without prejudice. Relation of appeals procedure under this Title to the appeals procedure of Section 1.04.050 of the Dublin Municipal Code. Any appeal under Title 8 shall be processed in accordance with the appeal provisions of this Chapter and not in accordance with the appeal provisions of Section 1.04.050 of the Municipal Code." Section 2. Severabilitv. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, .c~auses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or lfcumstances. 3 Section 3. Effective Date and Postin!!: of Ordinance This ordinance shall take effect and be in force thirty (30) days from and after the date of its final adoption. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 39633 of the Government Code ofCalifomia. . PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF DUBLIN on this 20th day of October, 1998. by the following votes: Ayes: Noes: Absent: Abstain: Mayor Attest: City Clerk . g:pa98052\ord . 4 . RESOLUTION NO. 98- 41 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING CITY COUNCIL APPROVAL OF AN AMENDMENT TO CHAPTER 8:136, APPEALS OF THE MUNICIPAL CODE (ZONING O~INANCE) WHEREAS, the comprehensive revision to the Zoning Ordinance (Ordinance 20- 97) was adopted by the City Council on September 2, 1997; and WHEREAS, Chapter 8.136, Appeals, of the revised Zoning Ordinance addressed appeals to the provisions of the Zoning Ordinance; and WHEREAS, the City Council on August 18, 1997, adopted Resolution 103-97 finding that the Comprehensive Revision to the Zoning Ordinance, including Chapter 8.136, Appeals, is exempt from the California Environmental Quality Act (CEQA) because it can be seen with certainty that there is no possibility that revising the Zoning Ordinance would have a significant effect on the environment (Section 15061 (b )(3); and . WHEREAS, the amendments to Chapter 8.136, Appeals, do not represent changes that can have any environmental effect because it can be seen with certainty that there is no possibility that revising the Zoning Ordinance would have a significant effect on the environment (Section 15061(b)(3); and WHEREAS, an Environmental Impact Report, SCH#84011 002, was prepared for the Dublin General Plan and certified on February 11, 1985; which addressed impacts of the future development of the City of Dublin; and which impacts and analysis exceed the impacts of the amendments to Chapter 8.136 the Zoning Ordinance, Appeals; and WHEREAS, a staff report was submitted for P A 98-052, which stated that the amendments to Chapter 8.136 (PA 98-052) do not represent changes that can have any environmental effect because it can be seen with certainty that there is no possibility that revising the Zoning Ordinance would have a significant effect on the environment (Section 15061(b)(3); and . WHEREAS, the Planning Commission at its September 22, 1998, meeting adopted Resolution 98-41 finding that the amendments to Chapter 8.136 (P A 98-052) do not represent changes that can have any environmental effect because it can be seen with certainty that there is no possibility that revising the Zoning Ordinance would have a significant effect on the environment (Section 15061(b)(3); and WHEREAS, Staff has prepared an amendment to Chapter 8.136, Appeals; to 1 EXHIBIT J.. clarify how a member of the City Council could appeal a decision of the Planning Commission and; WHEREAS, a Staff Report was submitted for P A 98-052, the proposed amendment to Chapter 8.136, Appeals; and WHEREAS, the Planning Commission held a public hearing on said amendment to Chapter 8.136, Appeals on September 22, 1998, for which proper notice was given in accordance with California State uiw; and WHEREAS, the Planning Commission at its September 22, 1998, meeting considered all written and oral testimony submitted at the public hearing. NOW THEREFORE, BE IT RESOLVED THAT THE Dublin Planning Commission does hereby find that the amendments to Chapter 8.136 (P A 98-052) do not represent changes that can have any environmental effect because it can be seen with certainty that there is no possibility that revising the Zoning Ordinance in such a manner would have a significant effect on the environment (Section 15061 (b )(3), and does recommend that the City Council amend Chapter 8.136, Appeals, of the Municipal Code (Zoning Ordinance). PASSED, APPROVED AND ADOPTED THIS 22nd day of September, 1998. AYES: Cm. Johnson, Hughes, and Oravetz NOES: Cm. Jennings, and Musser ABSENT: Planning Commission Chairperson ATTEST: Community Development Director g:pa98052\pcres 2 -. . . .