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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)
Appeals asserting that a final discretionary decision or a zoning regulation constitute a "taking" of property in violation of the Fifth Amendment to the United States Constitution (a "takings appeal") shall be processed in accordance with this section.
(1) Decisions subject to appeal.
a. A takings appeal may be filed by a property owner are as follows.
1. Where the property owner has a legally recognized property interest in the property that is subject to the city decision; and
2. Where a final discretionary administrative decision has been made by the development services director, zoning examiner or the mayor and council to require the dedication of property or the payment of a monetary exaction as a condition for the approval of the development application in a manner that is alleged to constitute a taking of property; or
3. A zoning regulation has been adopted or amended and is alleged to constitute a taking of property.
b. A takings appeal may not be filed by a property owner regarding the application of fees, assessments, taxes or any other dedication or exaction required by a legislative act that does not give discretion to the administrative agency or official to determine the nature or extent of the requirement.
(2) Filing of appeal. An appeal shall be in writing and filed with or mailed to the zoning examiner within thirty (30) days after the final action is taken. Final action on a zoning regulation shall be the effective date of the regulation. No fee shall be charged for an appeal under this section 23A-63.
(3) Public hearing and notice of public hearing. The zoning examiner shall schedule a public hearing on the appeal to be held no later than thirty (30) days after receipt of the appeal. Notice of the public hearing shall be mailed to the appellant and to all parties entitled to notice of the administrative decision at least ten (10) days before the appeal is heard.
(4) Statement of city authority. In all proceedings under this section 23A-63, the city shall provide the zoning examiner with a statement of the city's authority to require the dedication or exaction or to adopt or amend the zoning regulation. The city has the burden to establish in its statement of authority the nexus between the dedication or exaction and a legitimate governmental interest and that the proposed dedication, exaction or zoning regulation is roughly proportional to the impact of the proposed use, improvement or development or, in the case of a zoning regulation, that the zoning regulation does not create a taking of property in violation of the Fifth Amendment to the United States Constitution.
(5) Zoning examiner's decision. The zoning examiner shall decide the appeal within five (5) days after the appeal is heard. If the city has met it's burden set forth in subsection (4) above, the appeal shall be denied. If the city has failed to meet it's burden as set forth in subsection (4) above, the zoning examiner shall:
a. In the case of a dedication or exaction, modify or delete the requirement appealed under this section.
b. In the case of a zoning regulation, transmit a recommendation for further action to the mayor and council.
(Ord. No. 9967, § 9, 5-17-04)
Appeals to the design review board may be made from decisions by the PDSD director regarding Neighborhood Preservation Zone applications. Appeals shall be reviewed and decided by the design review board following a public hearing. The design review board 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 planning and development services department within the time provided by the procedure from which the decision is appealed. An appeal shall be scheduled for consideration by the design review board at the next regular meeting which is at least thirty-five (35) days following the filing of the appeal. The planning and development services department 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 design review board. 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 design review board between the filing of the appeal and the final determination by the design review board.
(3) PDSD director's report. The PDSD director shall forward the appeal, any additional materials provided by the appellant, any materials provided by any other party, and the director's report and recommendation to the design review board no later than five (5) days prior to the scheduled meeting.
(4) Public notice. Public notice of the design review board 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 and the same parties notified of the director's decision. Notice shall be provided in the same manner as for the procedure from which the appeal is filed.
(5) Design review board public hearing. The design review board may hold a study session and shall hold a public hearing on the appeal in accordance with section 23A-52(3) and the rules and regulations of the design review board. The design review board shall reach a decision following the close of the public hearing. The design review board 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 design review board 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 or the PDSD director may request reconsideration of a decision on an appeal provided the request is filed with the PDSD director 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 design review board.
(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 design review board 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 design review board.
(Ord. No. 10726, § 3, 11-24-09)
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