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Applications for special exception land uses that are decided by the zoning examiner, "zoning examiner special exceptions", and for expansions of nonconforming uses and substitutions of nonconforming uses (uses not within the same land use class) shall be decided by the zoning examiner in accordance with the pre-application conference, neighborhood meeting, application, notice, public comment, review and denial of plan appeal shall be in conformance with section 23A-50 and the following.
(1) Director's recommendation. The director shall prepare a recommendation and forward it to the applicant and the zoning examiner not less than fifteen (15) days prior to the scheduled public hearing.
(2) Zoning examiner's public hearing. The public hearing shall be held before the zoning examiner within seventy (70) days of acceptance of the application. Public hearings are held in accordance with the following and the zoning examiner's rules and procedures.
a. Notice of the public hearing shall be provided at least fifteen (15) and no more than thirty (30) days before the date of the public hearing to all parties who received notice of the application. The notice of the public hearing may be consolidated with the notice of the application.
b. The zoning examiner may administer oaths and may compel the attendance of witnesses and the production of relevant information, including witnesses requested by any party.
c. The zoning examiner may impose any reasonable limitations on the number of speakers heard and may establish the nature and length of testimony by speakers.
d. Comments may be given by any person, either verbally or in writing.
e. A record of the hearing is made and retained as a public record.
(3) Conduct of the zoning examiner. The zoning examiner shall have the ability to obtain information from all parties, including public agencies, prior to the public hearing, provided all requests for information are in writing and the request and information are included as part of the public record. The zoning examiner shall also have the ability, after the close of the public hearing, to obtain additional information or clarify information presented and of record at the hearing provided the request for additional information or clarification is requested in writing and such request and information are included as part of the record or in the report to the mayor and council.
Beyond these limitations, the zoning examiner shall not communicate, directly or indirectly, with any party or party's representative in connection with any issue involved with a particular request, except upon notice and opportunity for all parties to participate; use or rely upon any communication, report, staff memorandum, or other material prepared in connection with the particular case, unless it is made a part of the record; or inspect the site with any party or party's representative, unless all parties are given an opportunity to be present.
(4) Zoning examiner's decision. The zoning examiner may close the public hearing or continue the public hearing to a specified time, date and place provided the continuance is not for more than thirty (30) days. Within five (5) days of the close of a hearing, the zoning examiner shall make a decision to approve, approve with conditions, or deny the application.
(5) Notice of decision. Notice of the decision on an application shall be mailed within three (3) days of the decision to the applicant and all persons who request the notice.
(6) Appeal. The zoning examiner's decision may be appealed by a party of record to the mayor and council in accordance with section 23A-62 by submitting a notice of intent to appeal to the city clerk within fourteen (14) days from the date of the decision with a copy delivered to PDSD. The complete appeal materials must be filed within thirty (30) days of the decision.
(7) Change of condition. An applicant may request a change in a condition of approval of a zoning examiner special exception land use. The request shall be reviewed by staff for recommendation to the zoning examiner. The request shall then be considered at a public hearing in accordance with subsections 3, 4, 5, 6, 7 and 8 above.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
Where a permitted, secondary or special exception land use is designated in the LUC as subject to suspension or revocation for failure to conform to adopted conditions and there is reason to believe that it is being operated in a manner that violates the conditions imposed for the use, the use may be suspended or revoked as follows:
(1) Determination by the zoning administrator. Upon receipt of information establishing a reasonable grounds for determining that a conditional use is operating in violation of established conditions, the zoning administrator shall initiate such further investigation as may be necessary and, based upon that investigation, shall determine if a violation of the conditions exists.
(2) Notice of violation. Upon determination that a violation of conditions exists, the zoning administrator shall notify the property owner and all other parties who may be identified with the operation of the use of the determination that a violation exists. The notice shall state the facts that support the determination. The notice shall further state that the use may be suspended, subject to additional conditions or revoked if the property is not brought into compliance with all use conditions. The determination shall not be final until a period of fourteen (14) days from the date it is issued or until an appeal to the board of adjustment has been completed.
(3) Appeal to the board of adjustment. A party who has received a determination that a conditional use will be suspended, subject to additional conditions or revoked, may appeal that decision by filing a notice of appeal with the zoning administrator within fourteen (14) days of the date of the decision. The appeal shall state the reasons for the appeal. Upon receipt of such a notice, the zoning administrator shall schedule a public hearing before the board of adjustment to consider the appeal.
(4) Public notice. Public notice shall be provided in accordance with section 23A-50.
(5) Public hearing. The board of adjustment shall conduct a public hearing to determine whether the use has complied with required conditions. The board of adjustment shall determine whether the zoning administrator's decision is supported by evidence in the record at the hearing. The board of adjustment may affirm, reverse or modify the decision of the zoning administrator and may place additional or different conditions upon the use.
(6) Final decision. Where no appeal is filed or the board of adjustment affirms or modifies the decision of the zoning administrator, a determination shall become final. Failure to comply with a final order shall be a continuing violation of the Land Use Code for each day of operation that is not in full compliance.
(7) Notice of decision. Notice of the decision on an application shall be mailed within three (3) days of the decision to the applicant and all persons who request the notice.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10387, § 4, 4-10-07)
DIVISION 4.
APPEAL PROCEDURES
APPEAL PROCEDURES
(1) Administrative appeals. Appeals from zoning and development decisions shall be to the board of adjustment or to the mayor and council as specified in each procedure. Appeals are limited to review of substantive zoning regulations such as design and performance criteria and required findings for approval. Where there is no further appeal to a city body is specified, the decision is the final city decision and any further appeal or special action may be filed with the Superior Court as provided by law.
(2) Takings appeals for individual dedications and exactions or excessive reduction of property values. Appeals to final discretionary decisions that require a dedication or an exaction as a condition for granting a development approval and appeals to the adoption or amendment of a zoning regulation on the grounds that the regulation creates an unconstitutional taking of private property shall be processed in accordance with section 23A-63.
(Ord. No. 9967, § 9, 5-17-04)
Appeals to the board of adjustment may be made from decisions by the zoning administrator, including interpretations of the Land Use Code, notices of violations of the Land Use Code, determinations of violations of conditional uses, review decisions where the PDSD director has challenged the historic designation of a structure proposed for demolition and other determinations in accordance with the LUC, and decisions of the design review board pertaining to Neighborhood Preservation Zone applications. Appeals shall be reviewed and decided by the board of adjustment following a public hearing. The board of adjustment may affirm, reverse or modify the decision subject to appeal and may impose conditions necessary and appropriate to implement the LUC and other pertinent regulations.
(1) Filing of an appeal. Appeals shall be filed with the zoning administrator within the time provided by the procedure from which the decision is appealed. An appeal shall be scheduled for consideration by the board of adjustment at the next regular meeting which is at least thirty-five (35) days following the filing of the appeal. The zoning administrator may, for good cause, grant one (1) extension to the second regular meeting after the filing of the appeal. The filing of an appeal stays the issuance of permits and approvals and all formal land use action on the development proposal subject to the appeal.
(2) Limitation on contact with the board of adjustment. Except for duly noticed site inspection, study and public hearing, no person shall contact or discuss the merits of any appeal with the members of the board of adjustment between the filing of the appeal and the final determination by the board of adjustment.
(3) PDSD director's report. The PDSD director shall forward the appeal, any additional materials provided by the appellant, the recommendations, or in the case of an appeal of NPZ design review, the decision of the DRB or other applicable advisory body, any materials provided by any other party and the director's report and recommendation to the board of adjustment no later than five (5) days prior to the scheduled meeting.
(4) Public notice. Public notice of the board of adjustment public hearing shall be provided not less than fifteen (15) days and not more than thirty (30) days prior to the hearing. Public notice shall be to the applicant, the same parties notified of the initial application and those who provided oral or written comments in the course of the prior procedure. Notice shall be provided in the same manner as for the procedure from which the appeal is filed.
(5) Board of adjustment public hearing. The board of adjustment may hold a study session and shall hold a public hearing on the appeal in accordance with section 23A-52(2) and the rules and regulations of the board of adjustment. The board of adjustment shall reach a decision following the close of the public hearing. The board of adjustment may continue the public hearing for up to forty-five (45) days. The public hearing shall not be continued for more than forty-five (45) days without the consent of the applicant, regardless of who is the appellant.
(6) Notice of the decision. The decision by the board of adjustment shall be announced and shall be final at the time the decision is made following the public hearing. Written confirmation of the decision shall be provided within three (3) days of the date of decision to all parties of record.
(7) Reconsideration. The appellant, the applicant, the zoning administrator, or in the case of a decision relating to NPZ design review, the PDSD director, may request reconsideration of a decision on an appeal provided the request is filed with the zoning administrator within fourteen (14) days of the date the decision is announced. A request for reconsideration may be made only where there is an error in fact or law in the decision or where a party has new evidence that was not available at the time of the public hearing. The request shall be scheduled for the next regular meeting of the board of adjustment.
(8) Issuance of permits and approvals. No permits or development approvals based on the decision shall be issued, no inspections performed or other formal action taken, while the appeal is pending before the board of adjustment or before the expiration of the period for reconsideration where no request is filed. If a request for reconsideration is filed, no permits or development approvals based on the decision shall be issued, or other formal action taken until completion of action on the request for reconsideration is announced by the board of adjustment.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09; Ord. No. 10726, § 2, 11-24-09)
Appeals to the mayor and council may be made from decisions by the development services director on Hillside Development Zone, Scenic Corridor Zone, Environmental Resource Zone and Historic Preservation Zone applications, on certain special exception land uses and such other matters as are designated in this chapter and in the LUC. The mayor and council shall consider the appeal following a public hearing in accordance with this section. The mayor and council may affirm, reverse or modify the decision that is appealed and may establish such conditions as are appropriate to implement the LUC and other pertinent regulations.
(1) Filing of an appeal. Appeals shall be filed with the city clerk with a copy to PDSD within the time provided by the procedure from which the decision is appealed. The filing of an appeal stays the issuance of any permits or development approvals based on the decision and all formal land use action on the development proposal subject to the appeal.
(2) Limitation on contact with the mayor and council. No person shall contact or discuss the merits of any appeal with the members of the mayor and council between the filing of the appeal and the final determination by the mayor and council.
(3) DRB Review. Appeals from decisions on SCZ, ERZ and HPZ applications shall be forwarded to the DRB for review and recommendation if such review and recommendation has not occurred.
(4) STAC Review. Appeals from decisions on ERZ and WASH applications shall be forwarded to the stormwater technical advisory committee (STAC) for review and recommendation if such review and recommendation has not occurred.
(5) City manager's communication. The PDSD director shall forward the appeal, any additional materials provided by the appellant, the recommendations of the applicable advisory body(ies), any materials provided by any other party and the city manager's report and recommendation to the mayor and council no later than five (5) days prior to the scheduled meeting.
(6) Public notice. Public notice of the mayor and council public hearing shall be provided not less than fifteen (15) days and not more than thirty (30) days prior to the hearing. Public notice shall be in accordance with section 23A-50.
(7) Mayor and council public hearing. The mayor and council may hold a study session and shall hold a public hearing on the appeal in accordance with the rules and regulations of the mayor and council. The mayor and council shall reach a decision following the close of the public hearing. The mayor and council may continue the public hearing for up to forty-five (45) days. The public hearing shall not be continued for more than forty-five (45) days without the consent of the property owner of the subject site.
(8) Mayor and council decision. Mayor and council shall decide the appeal based upon the application, testimony, evidence and other materials considered in the prior proceeding, the city managers communication and the testimony and evidence presented in the public hearing. Mayor and council shall consider the provisions, purpose and intent of the plans and regulations that apply to the appeal.
(9) Notice of the decision. The decision by the mayor and council shall be announced and shall be final at the time the decision is made following the public hearing. Written notice of the decision shall be provided within three (3) days of the date of decision to all parties of record.
(10) Issuance of permits and approvals. No permits or development approvals based on the decision shall be issued, or other formal action taken, while the appeal is pending before the mayor and council or before the expiration of the period for reconsideration where no request is filed. If a request for reconsideration is filed, no permits or development approvals based on the decision shall be issued, or other formal action taken until completion of action on the request for reconsideration is announced by the mayor and council.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
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