3.9.1. DESIGN REVIEW BOARD (DRB) APPEAL PROCEDURE

   A.   Applicability

   Appeals to the DRB may be made by and party of record from the following decisions by the PDSD Director :

      1.   Neighborhood Preservation Zone (NPZ) design review applications. An appeal under this section must be based upon an error in the Director ’s decision finding compliance or noncompliance with the neighborhood specific design manual and compatibility review standards; and,

      2.   Architectural Variation and Privacy Mitigation Plans associated with a Flexible Lot Development.

   B.   Appeal to the Design Review Board (DRB)

      1.   Filing an Appeal

      A notice of intent to appeal must be filed with the PDSD within 14 days of the effective date of the PDSD Director ’s decision. The complete appeal materials must be filed with the PDSD within 30 days of the effective date of the decision. An appeal will be scheduled for consideration by the DRB at the next regular meeting that is at least 30 days following the filing of the appeal. PDSD may, for good cause, grant one 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 any members of the DRB between the filing of the appeal and the final determination by the DRB.

      3.   PDSD Director ’s Report

      The PDSD Director shall forward the appeal to the DRB any additional materials provided by the appellant, any materials provided by any other party , and the Director ’s report and recommendation.

      4.   Public Hearing and Public Notice Required

         a.   The DRB shall conduct a public hearing on the appeal. The DRB may hold a prior study session but the application for appeal must be scheduled for public hearing within 30 days of acceptance. Mailed notice of the appeal is required in accordance with Section 3.2.4.B, and must be sent not less than 15 days and not more than 30 days prior to the hearing. The public hearing on the appeal is conducted in accordance with the rules and regulations of the DRB.

         b.   The DRB may continue the public hearing for up to 45 days . The public hearing shall not be continued for more than 45 days without the consent of the applicant, regardless of who is the appellant.

      5.   Decision

         a.   The DRB shall reach a decision following the close of the public hearing.

         b.   The DRB may affirm, reverse or modify the decision subject to appeal and may impose conditions necessary and appropriate to implement the UDC and other pertinent regulations. The decision by the DRB shall be announced and is final at the time the decision is made following the public hearing.

         c.   The DRB in formulating its preliminary findings and recommendations shall apply the same standards applied by the design professional .

         d.   Written confirmation of the decision shall be provided within three days of the date of decision to all parties of record.

      6.   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 14 days of the effective date of 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 DRB.

      7.   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 DRB 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 DRB.

3.9.2. MAYOR AND COUNCIL APPEAL PROCEDURE

   A.   Applicability

   Appeals to the following decisions are processed in accordance with the Mayor and Council Appeal procedure:

      1.   Decision by the Zoning Examiner on a Special Exception Land Use;

      2.   Decisions on the 400' Notice Procedures; and,

      3.   Other matters as designated in the UDC .

   B.   Filing of an Appeal

   Appeals must be filed with the City Clerk’s office with a copy to the 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.

   C.   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.

   D.   City Manager’s Communication

   The PDSD Director shall forward to the Mayor and Council 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.

   E.   Public Hearing and Public Notice Required

      1.   The Mayor and Council may hold a study session and shall hold a public hearing on the appeal in accordance with the rules and standards 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 45 days . The public hearing shall not be continued for more than 45 days without the consent of the property owner of the subject site .

      2.   Public notice of the public hearing shall be provided not less than 15 days and not more than 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.

   F.   Mayor and Council Decision

      1.   The Mayor and Council shall decide the appeal based upon the application, testimony, evidence and other materials considered in the prior proceeding, the City Manager’s 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 standards that apply to the appeal.

      2.   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 UDC and other pertinent standards.

      3.   The decision by the Mayor and Council shall be announced and is considered a final action for the purposes of the UDC .

   G.   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.

(Am. Ord. 11732, 2/19/2020)

3.9.3. TAKINGS AND EXACTIONS APPEAL PROCEDURE

   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 in violation of the Fifth Amendment to the United States Constitution (a “takings appeal”) shall be processed in accordance with this section.

   A.   Decisions Subject to Appeal

      1.   A takings appeal may be filed by a property owner as follows:

         a.   Where the property owner has a legally recognized property interest in the property that is subject to the City decision;

         b.   Where a final discretionary administrative decision has been made by the PDSD 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,

         c.   A zoning regulation has been adopted or amended and is alleged to constitute a taking of property.

      2.   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.

   B.   Filing of Appeal

   An appeal must be in writing and filed with or mailed to the Zoning Examiner within 30 days after the final action is taken. Final action on a zoning regulation is the effective date of the regulation. No fee is charged for an appeal under this section.

   C.   Public Hearing

      1.   Public notice shall be mailed to the appellant and to the parties entitled to notice of the administrative decision at least ten days before the appeal is heard.

      2.   The Zoning Examiner shall schedule a public hearing on the appeal to be held no later than 30 days after receipt of the appeal.

   D.   Statement of City Authority

   In all proceedings under this section, 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.

   E.   Zoning Examiner’s Decision

   The Zoning Examiner shall decide the appeal within five days after the appeal is heard. If the City has met its burden set forth in subsection D above, the appeal shall be denied. If the City has failed to meet its burden as set forth in subsection D above, the Zoning Examiner shall:

      1.   In the case of a dedication or exaction, modify or delete the requirement appealed under this section; or,

      2.   In the case of a zoning regulation, transmit a recommendation for further action to the Mayor and Council.

   F.   Appeal of Zoning Examiner’s Decision

   At anytime within 30 days after the Zoning Examiner renders a decision an individual may file a complaint for trial de novo in the superior court, pursuant to A.R.S. §9-500.12.G.