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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/13/2016 - COUNCIL APPEAL PROCESS AMENDMENTSDATE: STAFF: December 13, 2016 Wanda Winkelmann, City Clerk Carrie Daggett, City Attorney Tom Leeson, Director, Comm Dev & Neighborhood Svrs WORK SESSION ITEM City Council SUBJECT FOR DISCUSSION Council Appeal Process Amendments. EXECUTIVE SUMMARY The purpose of this item is to review the options for improving the Council appeal process. GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED 1. What changes, if any, would Council like to make to the appeal process? 2. What additional feedback should be sought? BACKGROUND / DISCUSSION Updating and amending the Council appeal process has occurred various times since 1990. In 2015, two specific appeals were heard by Council and feedback was received from certain appellants that the process was confusing and unfair. Among the issues raised were confusion as to how new evidence could be considered, whether the site visit was properly conducted, who was eligible to present to Council and on what topics, and how much time would be allowed for presentations. Several appeals have been heard in 2016 that raised additional concern about the merit of some appeals and ineligible persons testifying at appeal hearings. A staff team has been meeting to explore possible improvements to the appeals process. Additionally, feedback was received in 1:1 or 1:2 meetings with staff and Councilmembers. The following summarizes the topics discussed and the general feedback received: Issue 1 Current Provision Eligibility to file an appeal (redefining “Party-in- interest”) The following individuals are eligible to file an appeal: 1. The applicant. 2. Property owner. 3. Anyone who received notice of the hearing (which are citizens who reside within 800-1000 feet of the proposed project). 4. Anyone who provided written comments prior to or at the original hearing that produced a decision. 5. A City Councilmember. Explanation: Presently, the number of individuals eligible to file an appeal can number in the hundreds, many of whom may not have participated in the development hearing process. Limiting eligible appellants to only those who were actively involved in the process by testifying at the original hearing or providing comments prior to or at the appeal hearing was discussed in the feedback meetings with Councilmembers. December 13, 2016 Page 2 Pros  Communicating with an identified group of citizens become easier  Mailing appeal hearing notices is reduced from hundreds to perhaps less than ten  Limits confusion on who is eligible to speak at the appeal hearing  Parties-in-interest can be easily identified  Since the merit of the appeal is based on the record, those who participated previously are “in the record”  Parties-in-interest are encouraged to participate early in the process. Cons  The list of eligible appellants is narrowed to only those citizens who either attended the original hearing or provided written comments Council Feedback: 1. Individual Councilmembers were generally agreeable to amending the eligibility to file an appeal to those who participated in the hearing (either in person or by submitting written comments prior to the hearing). 2. Councilmembers recommended that Councilmember appeals be continued. a. Should more than one Councilmember need to agree to appeal, similar to the manner in which it requires three Councilmembers to initiate an ordinance or resolution? b. Should the appeal deadline for Councilmembers be extended so that he/she is aware if citizen appeals are filed? Staff Proposed Consideration: Staff recommends limiting eligible appellants to only those who were actively involved in the process by testifying at the original hearing or providing comments prior to or at the appeal hearing. Issue 2 Current Provision Appeal Hearing Schedule Appeals are generally heard at Regular Council Meetings Explanation: Appeal hearings take two-three hours. It may be helpful to hold appeals on a different night than a Regular Council meeting. Pros  Dates for holding appeals could be predetermined .Parties-in-interest would know the exact time the appeal would begin  Citizens interested in other items later on the agenda wouldn’t have to wait for the appeal to finish  When multiple appeals are filed for the same project, additional time could be given to the appellants Cons  It is hard to predetermine dates for appeal hearings December 13, 2016 Page 3 Council Feedback: Individual Councilmembers were open to holding an appeal hearing on a different night, but generally preferred to keep it on a Tuesday. Staff proposed consideration: Council could consider, on a case-by-case basis, if an appeal hearing should be scheduled on a different night in instances when multiple appeals are filed. Issue 3 Current Provision Merit of Appeal (Allow for Council to consider terminating an appeal hearing) An entire hearing is held for the consideration of an appeal. Explanation: Concern has been expressed that several appeals heard in 2016 lacked merit. A Councilmember has suggested a change to permit the termination of the appeal hearing (by motion) after hearing the appellant’s presentation. Pros  The appeal hearing time is shortened significantly when a ruling is made that the appeal lacks merit  This practice is similar to certain court proceedings  Court remains a remedy for appellants Cons  Appellants may perceive this change as infringing on their due process rights.  Record may be incomplete in that opposer’s statement is not included in the record Council Feedback: If Council is interested in this suggestion, staff will craft proposed Code language to permit the termination of an appeal hearing. Staff proposed consideration: A. Staff has no recommendation regarding the termination of an appeal hearing. B. While reviewing Issue #3, the staff team discussed those instances when a procedural or technical defect is found (such as the original hearing was not recorded, public notice was not given, no sign was posted at the site, etc.). In these circumstances, staff would recommend that the code be revised to permit the City Manager, upon advisement by the CAO, to remand back to P&Z/Hearing Officer. Issue 4 Current Provision Allow Councilmember questions to be submitted prior to the hearing Councilmembers can only ask questions at the hearing. Explanation: In order to give parties-in-interest and staff the better ability to answer questions at the hearing, it has been suggested that Councilmembers be permitted to submit questions to staff in advance of the hearing. The list of questions would then be provided to parties-in-interest. December 13, 2016 Page 4 Pros  By having the questions in advance of the hearing, all parties can prepare appropriately. Cons  This suggestion adds another “layer” to an already confusing process. Council Feedback: Council feedback was mixed and staff looks forward to the conversation at Work Session. Staff proposed consideration: Questions could be emailed to the City Clerk by noon on the day of the appeal hearing. The list of questions would be compiled and emailed to parties-in-interest, Council, and staff. The questions would be answered at the hearing. IDENTIFIED ISSUES THAT CAN BE IMPROVED WITH A PROCESS CHANGE/CODE AMENDMENT Issue A Current Provision Hearing Procedures: 1. Time Limits for Presentation and Rebuttal 2. Registration of parties- in-interest who wish to speak at the hearing. The Mayor sets the time limits for presentation and rebuttal at the appeal hearing. The 20/20/10/10 rule has been typically followed (20 minutes for presentation by each side, 10 minutes for rebuttal). These timeframes can be amended by the Mayor and Council. Anyone who is a party-in-interest may appear at the hearing and may have the expectation of being allowed to testify. Explanation: Appellants and those opposed to the appeal are often confused about how much time they will receive to present their argument and frequently ask about timeframes in order to plan their presentation. Council Feedback: Consider requiring parties-in-interest to register their teams with the City Clerk so that time can be equitably divided and their status as a party-in-interest verified. Proposed Process Change: A. Staff recommends including information in the Appeal Guidelines that describes the typical amount given for presentations and rebuttals. Council may wish to codify timeframes, with the caveat that they can be changed by the Mayor and Council on a case-by-case basis. B. In the event an appellant or opposer has not utilized all of their time for presentation or rebuttal, this time could be allotted to other parties-in-interest. Parties-in-interest could inform the Clerk (prior to the appeal hearing) that they would like to speak if there is any time remaining after the Appellant’s/Opposer’s presentation has concluded. The process for registering, including the deadline to register, would be included in the Notice of Hearing. Issue B Current Provision Site Visit (should they continue to be held?) At the request of Councilmembers, a site inspection is held for the purpose of gaining a better understanding of the physical characteristics of the site, the surrounding area, and issues on appeal. Explanation: Past appellants have expressed concern that ex parte communications are being held during site visits. Site visits are not conducted in any other process (such as by P&Z, etc.) December 13, 2016 Page 5 Pros  Eliminates the possibility of ex parte communications at site visits  Councilmembers could still visit the site on an individual basis Cons  The understanding gained by visiting the site would be lost  Technical questions about the site (such as site lines, etc.) could not be answered Council Feedback: Councilmembers expressed a benefit to the site visits. Process Improvements Already Implemented:  Staff will continue to verbally describe the process at the beginning of the site visit.  Staff will continue to answer technical questions about the physical layout of the site and surrounding area; questions that fall outside that scope will be captured in writing and answered at the appeal hearing. Issue C Current Provision Ex Parte Communications In order to maintain the impartiality of the Council, Councilmembers must avoid communication regarding the merits of the appeal prior to the hearing Explanation: Council receives correspondence from citizens (via email) regarding the appeal. Process Improvement Already Implemented: When citizen emails sent to the distribution list “City Leaders” are received that discuss the merits of the appeal, the City Clerk replies (and cc’s the City Manager) and informs the sender that the Code limits the City Council from receiving new written materials regarding the matter (such as citizen emails), and requires the Council to avoid “ex parte” communications held outside the hearing. Emails sent to individual Councilmembers regarding appeals will need to be forwarded to the City Manager and City Clerk for response. SUMMARY OF ISSUES/PROCESS IMPROVEMENTS AND RECOMMENDED ACTION Issue Recommended Action Issue 1 – Eligibility to file an appeal 1. Amend the Code to narrow the field of parties-in interest (staff recommendation). 2. Council discussion on: a. appeals filed by Councilmembers; b. parties-in-interest informing the City Clerk that they would like to speak if there is any time remaining. Issue 2 – Appeal Hearing Schedule Council discussion on holding an appeal hearing on a different night than a Regular Council Meeting Issue 3 – Merit of Appeal 1. Council discussion on the option of terminating the appeal hearing after hearing the appellant’s presentation. 2. Amend the Code to permit a remand, resulting in the dismissal of an appeal by the City Manager when a defect is found in the process (staff recommendation). Issue 4 – Submission of Councilmember questions prior to the hearing Council discussion on a Code amendment to permit Councilmember questions to be submitted prior to the appeal hearing. December 13, 2016 Page 6 Process Improvement Recommended Action Issue A – Time Limits for Presentation and Rebuttal 1. Update the Appeals Guidelines to state the typical timeframes of 20/20/10/10 (staff recommendation). 2. Council discussion on a Code amendment to add in the typical timeframes. Issue B – Site Visits Council discussion on the merits of site visits. Issue C – Ex Parte Communication Council discussion on the process improvement already occurring whereby the City Clerk responds to citizen emails. RULES OF PROCEDURE FOR QUASI-JUDICIAL MATTERS Resolution 2015-091 outlines the Rules of Procedure governing the conduct of Council meetings, including the display of signs and props. At the December 6 Regular Meeting, Council discussed (under Other Business) if signs are appropriate in quasi-judicial proceedings (such as appeal hearings). Staff will explore this issue further and will be prepared to discuss it at the Work Session. NEXT STEPS If Council elects to make any changes to the appeal process, staff would propose obtaining feedback from: 1. The Development Review Advisory Committee (DRAC), which is a citizen advisory body whose primary function is to foster a timely, predictable and accountable development review process that implements the City's goals for land use, transportation, neighborhood livability and the environment. The Committee advocates for and supports consistent and fair application and implementation of regulations. 2. Additionally, feedback could be sought from former appellants and other interested citizens, members of the Planning and Zoning Board and Building Review Board, developers, and attorneys. Councilmembers may have additional suggestions and staff looks forward to hearing those comments. Once all of the changes have been identified and adopted, staff would involve CPIO to explore ways to make the process easier for citizens to understand and participate. One possible solution is the creation of a short video that explains the process in a clear, concise manner. ATTACHMENTS 1. PowerPoint presentation (PDF) 1 Appeal Process Improvements Wanda Winkelmann, City Clerk; Tom Leeson, Director of CDNS Carrie Daggett, City Attorney December 13, 2016 ATTACHMENT 1 General Direction Sought 1. What changes, if any, would Council like to make to the appeal process? 2. In addition to the Development Review Advisory Committee, P&Z, BRB, former appellants and other interested citizens, what other groups should weigh in on the proposed changes? 2 Background • Updates to the appeal process have occurred throughout the years • Concerns have been raised regarding the fairness of the appeal process, the merit of appeals and eligibility of those testifying • A staff team met in 1:1 or 1:2 meetings with Councilmembers to receive feedback 3 Issues and Action 4 Issue Recommended Action Issue 1 – Eligibility to file an appeal Councilmembers filing an appeal 1. Council discussion on: a. Amending the Code to narrow the field of parties-in interest (staff recommendation). 1. Council discussion on: a. appeals filed by Councilmembers – should more than one be required to file? b. should the deadline to file an appeal by a Councilmember be amended? Issues and Action 5 Issue Recommended Action Issue 2 – Appeal Hearing Schedule Council discussion on holding an appeal hearing on a different night than a Regular Council Meeting (on a case-by-case basis Issues and Action 6 Issue Recommended Action Issue 3 – Merit of Appeal 1. Council summary decision on the merit of the appeal after hearing the appellant’s presentation (if appeal is without merit). 2. Amend the Code to permit a remand of an appeal by the City Manager when a defect is found in the process (staff recommendation). Issues and Action 7 Issue Recommended Action Issue 4 – Submission of Councilmember questions prior to the hearing Council discussion to permit Councilmember questions to be submitted to the City Clerk for distribution prior to the appeal hearing. Process Improvement and Action 8 Issue Recommended Action Issue A – Meeting Procedures: Time Limits for Presentation and Rebuttal Registration of parties-in- interest who wish to speak 1. a. Update the Appeals Guidelines to state the typical timeframes of 20/20/10/10 (staff recommendation). b. Council discussion on a Code amendment to add in the typical timeframes 2. Requiring parties-in-interest to pre-register with the Clerk in order to speak at the hearing. Process Improvement and Action 9 Issue Recommended Action Issue B – Site Visits Council discussion on the merits of site visits. Process Improvement and Action 10 Issue Recommended Action Issue C – Ex Parte Communication Council discussion on the process improvement already occurring whereby the City Clerk responds to citizen emails concerning the appeal. Summary 1. Eligibility to file an appeal. 2. Appeal hearing schedule. 3. Merit of appeal. 4. Submission of Councilmember questions. 5. Meeting procedures: time limits, registration of parties-in- interest. 6. Site Visits. 7. Ex parte communications. 11 Rules of Procedure • Resolution 2015-091 outlines the Rules of Procedure governing the conduct of Council meetings, including the display of signs and props • At the December 6 Regular Meeting, Council discussed if signs are appropriate in quasi-judicial proceedings 12 Next Steps Public Engagement • Development Review Advisory Committee • Planning & Zoning Board • Building Review Board • Open house to invite feedback from former appellants, developers, attorneys, and other interested citizens 13 14 • What additional changes would Council like to see in the appeal process? • What additional feedback should be sought? Conclusion