HomeMy WebLinkAbout14 - Appeal & Call for Review Procedures - Code Amendment 2004-002 - PA 2004-028CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. is
August 10, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patrick J. Alford, Senior Planner
(949) 644 -3235
palford(cDcity.newport- beach.ca.us
SUBJECT: Revisions to Appeal and Call for Review Procedures — Code
Amendment No. 2004 -002 (PA 2004 -028)
ISSUE:
Should the call for review procedures be revised?
RECOMMENDATION:
1. Review options;
2. Provide direction to staff on appeal and review procedures;
3. Provide direction to staff on combining appeal and review procedures;
4. Continue hearing to August 24, 2004.
DISCUSSION:
Introduction:
This item was continued from June 8, 2004. The City Council directed staff to
return with a list of options.
Background:
Currently, decisions of the Planning Director and the Modifications Committee
may be appealed to the Planning Commission and decisions of the Planning
Commission may be appealed to the City Council by any interested person. In
addition, decisions of the Planning Director and the Modifications Committee may
be called up for review by either the Planning Commission or the City Council.
Decisions of the Planning Commission may be called up for review by the City
Council. Presently, any one member of the City Council or Planning Commission
may call an item for review.
Appeal /Call for Review Procedures
August 10, 2004
Page 2
On January 27, 2004, the City Council initiated an amendment to the Zoning
Code that would require two members to call for the review of a decision. The
stated objective of the proposed amendment was to ensure that decisions are
not subject to additional review unless there is substantial concern or interest on
the part of the review body.
Options:
As directed, staff has prepared a list of options for the City Council to consider;
these options are discussed below and summarized in the attached table:
Pre -1994 Procedure. This procedure existed prior to the 1994 amendment, which
reduced the appeal /review period from 21 days to 14 days, and the 1998
amendment, which allowed a single City Council or Planning Commission
member to call for the review of a decision.
Under this procedure, the City Council or Planning Commission could review a
decision only after a motion was adopted by four affirmative votes.
Consequently, this action had to be taken at a City Council or Planning
Commission meeting.
This approach would meet the objective of ensuring substantial interest by the
reviewing body. Also, because initiation of the review would have to occur at a
meeting, there is no increased risk of violating the Brown Act'. However, a
majority would be required just to initiate the review and a super majority would
be required if one or more members are absent. Finally, the 21 -day
appeal /review period is contrary to previous actions intended to reduce the
processing time for development applications.
Current Procedure. This procedure has been in effect since 1998. Under this
procedure, any member of the City Council or Planning Commission may call for
the review of a decision.
When the Zoning Code was updated in 1997, any member of the Planning
Commission was given the authority to call for the review of a decision. This was
deemed necessary because there are times when a regular meeting of the
Planning Commission occurs after the end of the 14 day appeal /review period.
At the time, this authority was not given to City Council members because City
Council meetings typically occur within five days of a Planning Commission
meeting and within 14 days of a Modifications Committee meeting.
Nevertheless, the City Council considered it inappropriate for one Planning
' The Ralph M. Brown Act establishes the basic requirements for open meetings and notice of
hearings for commissions, boards, councils, and other public agencies.
Z
Appeal /Call for Review Procedures
August 10, 2004
Page 3
Commissioner to have authority equal to four members of the City Council.
Therefore, the Zoning Code was amended in 1998 to allow any member of the
City Council to call for the review of a decision.
The current procedure does not present the risk of members discussing the
initiation of the review outside of open meetings and thereby violating the Brown
Act. However, the review can be initiated without substantial concern or interest
on the part of the review body.
Planning Commission Recommendation. Calls to review a decision would
require initiation by two City Council members through a request to the City
Clerk. The City Clerk would deem a review initiated upon the receipt of requests
from two members of the City Council. The Planning Commission procedures
would remain unchanged.
Requirind two members to initiate a review would demonstrate increased support
by the review body. However, this would also present the risk of members
discussing the initiation of the review outside of open meetings, and thereby
potentially violating the Brown Act.
Alternate Two - Member Option. This option would require that a call to review a
decision be initiated by two members of either the Planning Commission or the
City Council at a regularly - scheduled meeting. The City Attorney recommends
that this action be taken at a regularly - scheduled meeting in order to avoid
potential violations of the Brown Act. This would also require extending the
appeal /review period to 21 days in order to avoid situations in which the next
regular meeting of the Planning Commission or City Council is scheduled more
than 14 days after the date of a decision.
Requiring two members to initiate a review would demonstrate increased support
by the review body. Also, because initiation of the review must occur at a
meeting, there would be no increased risk of violating the Brown Act. However,
the 21 -day appeal /review period is contrary to previous actions intended to
reduce the processing time for development applications.
Alternate Single- Member Option. Staff is suggesting a new option, which would
require that a call to review a decision be initiated by a simple majority vote at a
regularly - scheduled meeting. In order to avoid situations where the next regular
meeting is scheduled more than 14 days after the date of a decision, a single
member would have the authority to extend the time limit to the next regularly -
scheduled meeting. Any member seeking to extend the time limit would have to
do so within the 14 -day appeal /review period by written request to the City Clerk
or Planning Director.
3
Appeal /Call for Review Procedures
August 10, 2004
Page 4
Requiring a simple majority vote achieves the goal of ensuring that decisions are
not subject to additional review unless there is substantial concern or interest on
the part of the review body. Also, potential Brown Act violations are avoided
since this action must occur at a regularly - scheduled meeting. Furthermore, the
14 -day appeal /review period would be retained, unless a member requests that it
be extended to the next regularly - scheduled meeting. Finally, this approach
solves the problems associated with meetings scheduled more than 14 days
after the date of a decision, due to tricks of the calendar and meeting
cancellations due to holidays or the lack of business.
The negative consequences to this approach would be that a single member
could extend the appeal /review period from 1 to 13 days, depending on the date
of the decision, the decision - making body, and the reviewing body:
Planning Commission
review of Modifications 1 to 8 days
Committee
City Council review of 6 to 13 days
Modifications Committee
City Council review of 5 to 12 days
Planning Commission
Extending the appeal /review period may not have a significant effect on the
overall length of the process, however. Under the current system, a single
member can initiate a review of a decision and a public hearing is required. Due
to notification requirements, the hearing could not be held for at least two weeks
following the end of the appeal /review period. Thus, the effect is minimal. Of
course, if the Planning Commission or City Council votes to review the decision,
then the process would require a minimum of two additional weeks to take the
call for review to hearing.
Calls for Review:
Staff also requests direction on whether the proposed amendment should revise
Chapter 20.95 (Appeals and Calls for Review) to remove the call for review
provisions. With this revision, any review of a decision by either the Planning
Commission or City Council would be regarded as an appeal. This revision was
not part of the amendment initiated by the City Council. This was proposed later
to avoid potential confusion between appeals and calls for reviewz. The City
] This issue arose due to recent litigation against the City where the court was uncertain whether an issue was an appeal
or a call for review. The case involved an appeal of an interpretation by the Planning Director to the Planning
Commission. The Planning Commission upheld the Planning Director's Interpretation and this decision was called for
review by a City Council member. The call for review was continued more than once and eventually removed from
calendar.
q
Appeal /Call for Review Procedures
August 10, 2004
Page 5
Attorney's office believes that it would be clearer to use one term to describe the
various levels of appeal through to the City Council. However, this would also
remove the current distinction in the Zoning Code between an appellant and a
reviewing body.
Environmental Review:
The proposed action is not defined as a project under the California Environmental
Quality Act (CEQA) because it involves general policy and procedure making
activities not associated with a project or a physical change in the environment
(Section 15378 of the CEQA Guidelines).
Public Notice:
Since this item was continued to a specific date, no additional public notice was
required.
Prepared by:
Patrick J. Alford
Senior Planner
Attachment:
A. Appeal /Call for Review Options
Submitted by:
f-1-Patricia L. Temple
Planning Director
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
COUNCIL AGENDA
NQ 6�
Agenda Item No. 25
June 8, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patrick J. Alford, Senior Planner
(949) 644 -3235
palford(UDcitV. newport- beach.ca.us
SUBJECT: Revisions to Appeal and Call for Review Procedures -Code
Amendment No. 2004 -002 (PA 2004 -028)
ISSUE:
Should the City revise the Call for Review procedures for use permits, variances,
site plan review, modification permits, and Planning Director decisions?
RECOMMENDATION:
Introduce Ordinance No. 2004- (Attachment A) approving Code
Amendment No. 2004 -002 and pass to second reading on June 22, 2004.
DISCUSSION:
Introduction:
Decisions of the Planning Director and the Modifications Committee may be
appealed to the Planning Commission, and decisions of the Planning
Commission may be appealed to the City Council by any interested person. In
addition, decisions of the Planning Director and the Modifications Committee may
be called up for review by the Planning Commission or by the City Council and
- decisions of the Planning Commission may -be called up for-review by the City
Council. Presently, any one member of the City Council or Planning Commission
may call an item for review.
On June 24, 2003, the City Council discussed amending the Zoning Code to
require two members to call for the review of a decision. The City Council
initiated the amendment on January 27, 2004.
Appeal /Call for Review Procedures
June 8, 2004
Page 2
On April 22, 2004, the Planning Commission voted unanimously to recommend
that the City Council adopt the proposed code amendment with the provision that
the procedures of the Planning Commission would remain the same.
The Proposed Amendment:
The stated objective of the proposed amendment is to ensure that decisions are
not subjected to additional review unless there is substantial concern or interest
on the part of the review body.
Calls for Review
The proposed amendment would revise Chapter 20.95 (Appeals and Calls for
Review). The call for review provisions would be deleted. A review of a decision
would be regarded as an appeal. Members of the Planning Commission could
appeal the decisions of the Planning Director and Modifications Committee to the
Planning Commission and members of the City Council could appeal decisions of
the Planning Director, Modifications Committee, and Planning Commission to the
City Council.
Initiation by Two Members
The proposed amendment would require that an appeal of a decision be initiated
by two members of the City Council. This would be accomplished through a
request to the City Clerk. The City Clerk would deem an appeal initiated upon
the receipt of requests from two (2) members of the City Council.
As stated above, the Planning Commission is recommending that their
procedures remain unchanged. Only one (1) member of the Planning
Commission would be needed to initiate an appeal of a decision. This would be
accomplished through a request to the Planning Director.
Other Provisions
A new provision has been added that will require the Planning Director to report
decisions to the Planning Commission and City Council at the next regular
meeting or within 5 days of the decision, whichever occurs first.
Alternatives:
Two Member Option
The City Council may wish to consider the amendment proposed to the Planning
Commission. The original amendment required that an appeal would have to be
Appeal /Call for Review Procedures
June 8, 2004
Page 3
initiated by two members of the Planning Commission or the City Council at a
regularly scheduled meeting. Because appeals must be initiated by two
members, the City Attorney recommended that the action be taken at a regularly
scheduled meeting in order to avoid potential violations of the Brown Act.
There will be times when the next regular meeting of the Planning Commission or
City Council is scheduled more than 14 days after the date of a decision. For
example, in 2005, there will be four occasions when there will be three weeks
between regular Planning Commission meetings and three weeks between
regular City Council meetings. The cancellation of regular meetings due to
holidays or the lack of business will also result in additional times when a regular
meeting of the Planning Commission or City Council is scheduled after the 14-
day time limit for filing appeals has expired. In order to avoid such situations, the
time limit for filing appeals would have to be extended to at least of 21 days if the
appeal must be made at a meeting of the appeal body. Consequently, the effect
date of the decision (i.e., a modification permit, use permit, or variance) would
have to be extended to 21 days.
It should be noted that extending the appeal period and effective date of the
decision is contrary to previous actions intended to reduce the processing time
for development applications. At the recommendation of the Economic
Development Committee, the City reduced the appeal period from 21 days to 14
days in 1994, as part of an effort to streamline the development review process,
and this amendment would eliminate that benefit.
One Member Option
The City Council also has the option of retaining the current procedure, which
allows any member of the City Council to initiate the appeal.
Environmental Review:
The proposed action is not defined as a project under the California Environmental
Quality Act (CEQA) because it involves general policy and procedure making
activities not associated with a project or a physical change in the environment
(Section 15378 of the CEQA Guidelines).
Public Notice:
Notice of this hearing was published in the Daily Pilot a minimum of 10 days in
advance of this hearing consistent with the Municipal Code. Additionally, the item
appeared upon the agenda for this meeting, which was posted at City Hall and
on the city website.
Prepared by:
Patrick J. Afford
Senior Planner
Attachments:
Appeal /Call for Review Procedures
June 8, 2004
Page 4
Submitted by.
'\
' L-le L4 ��
Patricia L. emple
Planning Director
A. Draft ordinance.
B. April 22, 2004 Planning Commission staff report.
C. April 22, 2004 Planning Commission minutes.
ORDINANCE 2004-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING AN AMENDMENT
TITLE 20 OF THE NEWPORT BEACH MUNICIPAL CODE
RELATING TO PROCEDURES FOR APPEALS AND
CALLS FOR REVIEW (CODE AMENDMENT NO. 2004 -
002)
WHEREAS, on January 27, 2004, the City Council initiated an amendment to
Title 20 of the City of Newport Beach Municipal Code to require two members of the
Planning Commission to call a decision of the Planning Director or Modifications
Committee for review and to require two members of the City Council to call a decision
of the Planning Director, Modifications Committee, or Planning Commission for review;
and
WHEREAS, on April 22, 2004, the Planning Commission of the City of Newport
Beach held a duly noticed public hearing regarding this code amendment; and
WHEREAS, the Planning Commission voted unanimously to recommend
approval of this code amendment to the City Council with the provision that the
procedures of the Planning Commission would remain unchanged; and
WHEREAS, on June 8, 2004, the City Council of the City of Newport Beach held
a duly noticed public hearing regarding this code amendment; and
WHEREAS, the proposed action is not defined as a project under the California
Environmental Quality Act (CEQA) because it involves general policy and procedure
making activities not associated with a project or a physical change in the environment
(Section 15378 of the CEQA Guidelines).
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN
AS FOLLOWS:
�J
SECTION 1: Title 20 of the Newport Beach Municipal Code shall be amended to
revise Chapters 20.42, 20.57, 20.61, 20.62, 20.64, 20.82, 20.86, 20.89, 20.91, 20.92,
20.93, 20.94, 20.95, and 20.96 of Title 20 as provided in Exhibit A.
SECTION 2: The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall become effective thirty (30) days after the date of its
adoption.
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on June 8, 2004, and adopted on the 22nd day of June
2004, by the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
Page 20.95 -1
Appeals
CHAPTER 20.95
APPEALS
Sections:
20.95.010
Purpose and Authorization for Appeals
20.95.020
Rights of Appeal
20.95.030
Appeals of Decisions on Tentative Maps
20.95.040
Time Limits for Appeals
20.95.050
Initiation of Appeals
20.95.060
Procedures for Appeals
20.95.010 Purpose
To avoid results that are inconsistent with the purposes of this code, decisions of the
Planning Director and the Modifications Committee may be appealed to the Planning
Commission, and decisions of the Planning Commission may be appealed to the City
Council.
20.95.020 Rights of Appeal
Appeals may be initiated by any interested party, unless otherwise prescribed in the
individual chapters of this code.
20.95.030 Appeals of Decisions on Tentative Maps
Notwithstanding other provisions of this Chapter, procedures and time limits for appeals of
decisions on tentative tract maps and tentative parcel maps shall be as specified in
Chapter 19.08 of the Subdivision Code.
20.95.040 Time Limits for Appeals
Appeals shall be initiated within 14 days of the decision.
20.95.050 Initiation of Appeals
A. Filing of Appeals. Except for an appeal authorized by Subsection C, the
appeal of a decision of the Planning Director or of the Modifications
EXHIBIT A
CA 2004 -002
q
Page 20.95 -2
Appeals
Committee shall be made in writing to the Planning Director and appeals of
decisions of the Planning Commission shall be made in writing to the City
Clerk.
B. Fee. Appeals shall be accompanied by a fee as established by resolution of
the City Council.
Exception: No fee shall be required for appeals filed under Section
20.95.050 (C).
C. Appeals by Elected or Appointed Officials.
Planning Commission. Any member of the Planning Commission
may initiate an appeal of a decision of the Modifications Committee or
the Planning Director to the Planning Commission by a request to the
Planning Director.
2. City Council. Members of the City Council may initiate an appeal of a
decision of the Modifications Committee, the Planning Director, orthe
Planning Commission to the City Council by a request to the City
Clerk. The City Clerk shall deem an appeal initiated upon the receipt
of requests from 2 members of the City Council.
D. Effect on Decisions. A decision that is appealed shall not become final and
effective until the appeal is considered and decided by the Planning
Commission or City Council, as appropriate.
20.95.060 Procedures for Appeals
A. Hearing Date. An appeal or call for review shall be scheduled for a hearing
before appeal body within 30 days of the date the appeal is filed. The
hearing may be scheduled more than 30 days after the appeal is filed with
the consent of both the applicant and the appellant.
B. Notice and Public Hearing. An appeal shall be considered at a public
hearing and notice of the public hearing shall be given in the manner
required for the decision being appealed.
C. Hearing. The public hearing on an appeal shall be conducted "de novo" in
that the decision that has been appealed has no force or effect as of the date
on which the appeal was filed. The reviewing body is not bound by the
decision that has been appealed or limited to the issues raised on appeal.
The reviewing body shall hear testimony of the appellant, the applicant, and
any other interested party.
EXHIBIT A
CA 2004 -002
D
Page 20.95 -3
Appeals
E. Decision and Notice. The reviewing body shall, after considering all of the
evidence presented at the hearing and within 30 days afterthe public hearing
is closed, approve, modify, or disapprove, in whole or in part, the permit or
approval that forms the basis of the appeal and shall make the findings
required by this Code in support of the decision. The Planning Director shall
mail notice of a Planning Commission decision and the City Clerk shall mail a
notice of a City Council decision. The notice shall be mailed to the applicant
and the appellant of the decision within 5 working days after the date of the
decision.
EXHIBIT A
CA 2004 -002
Related Revisions to Title 20
Section 20.42.070:
20.42.070 Rights of Appeal
Appeals of decisions of the Planning Director or Planning Commission
regarding the implementation of this Chapter shall be governed by
Chapter 20.95: Appeals.
Section 20.57.060:
20.57.060 Rights of Appeal
Appeals of decisions of the Planning Director or Planning Commission
regarding the implementation of this Chapter shall be governed by
Chapter 20.95: Appeals.
Section 20.61.040:
20.61.040 Rights of Appeal
A. Appeals. Decisions of the Planning Director may be appealed to the
Planning Commission and decisions of the Planning Commission
may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
Section 20.62.100:
20.62.100 Rights of Appeal
A. Appeals. Decisions of the Planning Director or the Modifications
Committee may be appealed to the Planning Commission and
decisions of the Planning Commission may be appealed to the City
Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
Section 20.64.090 (B):
B. The City Council shall have a right to appeal as set forth in Chapter
20.95, as limited above.
EXHIBITA
CA 2004 -002 10
Section 20.82.050 (E):
E. Appeal. The decision of the Planning Director to approve or deny
an application is final, subject to appeal by the Planning
Commission or by the City Council pursuant to Chapter 20.95:
Appeals.
Section 20.82.080:
20.82.080 Rights of Appeal
A. Appeals. Decisions of the Planning Director may be appealed to the
Planning Commission and decisions of the Planning Commission may
be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by Chapter
20.95: Appeals.
Section 20.86.090:
20.86.090 Rights of Appeal
A. Appeals. Decisions of the Modifications Committee may be
appealed to the Planning Commission and decisions of _ the
Planning Commission may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
Section 20.89.070:
20.89.070 Rights of Appeal
A. Appeals. Decisions of the Planning Director may be appealed to the
Planning Commission and decisions of the Planning Commission
may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
Section 20.91.025 (C):
C. Report to the Planning Commission and City Council. The
Planning Director shall report the discussion of the Planning
Commission on a use permit or variance to the City Council at the
EXHIBIT A
CA 2004 -002
next regular meeting or within 5 days of the decision, whichever
occurs first. Upon rendering a decision on a use permit, the
Planning Director shall report to the Planning Commission and the
City Council at the next regular meeting or within 5 days of the
decision, whichever occurs first.
Section 20.91.045:
Use permits and variances shall not become effective for 21 days after being
granted, and in the event an appeal is filed under the provisions of Chapter
20.95, the permit shall not become effective unless and until a decision granting
the use permit or variance is made by the Planning Commission or the City
Council.
Section 20.91.060:
20.91.060 Rights of Appeal
A. Appeals. Decisions of the Planning Director may be appealed to the
Planning Commission and decisions of the Planning Commission
may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
New Section 20.92.060 (D):
D. Report to the City Council. The Planning Director shall report the
discussion of the Planning Commission on a site plan review to the
City Council at the next regular meeting or within 5 days of the
decision, whichever occurs first.
Section 20.92.080:
20.92.080 Rights of Appeal
A. Appeals Decisions of the Planning Commission may be appealed
to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
Section 20.93.010:
A Modifications Committee consisting of three members is hereby established for
the purpose of passing upon requests for reasonable use of property not
EXHIBITA
CA 2004 -002 1
permissible under existing regulations. The Modifications Committee shall have
authority to grant, subject to appeal to the Planning Commission or City Council
under provisions of this code, modifications as provided herein.
Section 20.93.015:
No permit or license shall be issued for any use or property modification until the
decision shall have become final by reason of the expiration of time to make an
appeal, which for purposes of modification permits shall be within 21 calendar
days after the date of the Modifications Committee's decision. In the event an
appeal is filed, the. modification permit shall not become effective unless and until
a decision is made by the Planning Commission or City Council on such appeal.
Section 20.93.035 (E):
E. Report to the Planning Commission and City Council. The
Planning Director shall report the decision of the Modification
Committee to the Planning Commission and City Council at the
next regular meeting or within 5 days of the decision, whichever
occurs first.
Section 20.93.050:
Modification permits shall not become effective for 21 days after being granted,
and in the event an appeal is filed under the provisions of Chapter 20.95, the
permit shall not become effective unless and until a decision granting the
modification permit is made by the Planning Commission or City Council.
Section 20.93.065:
20.93.065 Rights of Appeal
A. Appeals. Decisions of the Modifications Committee may be
appealed to the Planning Commission and decisions of the
Planning Commission may be appealed to the City Council.
B. Procedures. Procedures for appeals shall be as prescribed by
Chapter 20.95: Appeals.
Section 20.94.040 (C):
C. Denial by the Planning Commission. If the proposed amendment is
disapproved, no further action shall be taken thereon, unless
appealed to the City Council under the provisions of Chapter 20.95:
Appeals.
EXHIBIT A
CA 2004 -002 \�
Section 20.96.040 (H):
H. Rights of Appeal. Appeals shall be as prescribed by Chapter
20.95: Appeals.
EXHIBITA
CA 2004 -002
1
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
Agenda Item No. 5
April 22, 2004
TO: PLANNING COMMISSION
FROM: Planning Department
Patrick J. Alford, Senior Planner
- (949) 644 -3235
palford(a )city.newport- beach.ca.us
SUBJECT: Revisions to Appeal and Call for Review Procedures - Code
Amendment No. 2004 -002 (PA 2004 -028)
ISSUE: -
Should the City revise the Call for Review procedures for use permits, variances,
site plan review, and modification permits?
RECOMMENDATION:
Staff recommends the Planning Commission recommend approval of the
proposed amendment to Title 20 of the Municipal Code to the City Council by
adopting the attached draft resolution.
DISCUSSION:
Introduction:
Decisions of the Planning Director and the Modifications Committee may be
appealed to the Planning Commission, and decisions of the Planning
Commission may be appealed to the City Council by any interested person. In
addition, decisions of the Planning Director and the Modifications Committee may
be called up for review by the Planning Commission or by the City Council and
decisions of the Planning Commission may be called up for review by the City
Council. Presently, any one member of the City Council or Planning Commission
may call an item for review.
On June 24, 2003, the City Council discussed amending the Zoning Code to
require two members to call for the review of a decision. The City Council
initiated the amendment on January 27, 2004.
�5
Appeal /Call for Review Procedures
April 22, 2004
Page 2
The Proposed Amendment:
The stated objective of the proposed amendment is to ensure that decisions are
not subjected to additional review unless there is substantial concern or interest
on the part of the review body.
Calls for Review
The proposed amendment would revise Chapter 20.95 (Appeals and Calls for
Review). The call for review provisions would be deleted. A review of a decision
would be regarded as an appeal. Members of the Planning Commission could
appeal the decisions of the Planning Director and Modifications Committee to the
Planning Commission and members of the City Council could appeal decisions of
the Planning Director, Modifications Committee, and Planning Commission to the
City Council.
Initiation by Two Members
The proposed amendment would also require that an appeal would have to be
initiated by two members of the Planning Commission or the City. Council at a
regularly scheduled meeting. Such an action would be deemed as filing an
appeal in writing with either the Planning Director or the City Clerk. Because
appeals must be initiated by two members of the Planning Commission or two
members of the City Council, the action must be taken at a regularly scheduled
meeting in order to avoid potential violations of the Brown Act.
Appeal Period and Effective Date
Under the current regulations, the time limit for filing an appeal or calling for a
review of a decision is 14 days from the date of the decision. There will be times
when the next regular meeting of the Planning Commission or City Council is
scheduled more than 14 days after the date of a decision. For example, in 2005,
there will be four occasions when there will be three weeks between regular
Planning Commission meetings and three weeks between regular City Council
meetings. The cancellation of regular meetings due to holidays or the lack of
business will also result in additional times when a regular meeting of the
Planning Commission or City Council is scheduled after the 14 -day time limit for
filing appeals has expired. In order to avoid such situations, the time limit for
filing appeals would have to be extended to at least of 21 days if the appeal must
be made at a meeting of the appeal body. Consequently, the effect date of the
decision (i.e., a modification permit, use permit, or variance) would have to be
extended to 21 days.
t�
Appeal/Call for Review Procedures
April 22, 2004
Page 3
Extending the appeal period to 21 days would not necessarily insure that the
appeal period would not expire prior to a regularly scheduled meeting. There is
the potential that a cancelled meeting could result in a period between meetings
greater than 21 days. To avoid this possibility, Section 20.95.040 could be
revised to extend the appeal period to the next regularly scheduled meeting of
the Planning Commission or City Council:
Appeals by members of the public, other than members of the Planning
Commission or members of the City Council, shall be initiated within 14
days of the decision. Appeals by members of the Planning Commission or
members of the City Council shall be initiated within 14 days of the
decision, or at the next regularly scheduled meeting of the respective
body, whichever occurs later.
This provision would apply to regularly scheduled meetings of both the Planning
Commission and the City Council. Therefore, the appeal period, and
consequently, the effective date of the approval, could be extended from.l4days ..._.___...___
to 21 days or more. Under certain circumstances, an appeal period of more -than
30 days is possible.
It should be noted that extending the appeal period and effective date of the
decision is contrary to previous actions intended to reduce the processing time
for development applications. At the recommendation of the Economic
Development Committee, the City reduced the appeal period from 21 days to 14
days in 1994, as part of an effort to streamline the development review process,
and this amendment would eliminate that benefit.
Other Provisions
The proposed amendment includes revisions to a number of sections of Title 20.
to change the effective date of decisions from 14 days to 21 days or to delete
references to calls for review. Also, a new provision has been added that will
require the Planning Director to report discussions to the Planning Commission
and City Council at the next regular meeting or within 5 days of the decision,
whichever occurs first.
Alternative:
The Planning Commission could determine that extending a permit's effective
date has a more adverse affect on the development review process than the
potential for a higher number of appeals that may result from the current single
member initiation process. If so, the Planning Commission could recommend
that the amendment include the terminology changes while maintaining the
single member initiation provision and the current 14 -day appeal period.
Appeal /Call for Review Procedures
April 22, 2004
Page 4
Environmental Review:
The proposed action is not defined as a project under the California Environmental
Quality Act (CEQA) because it involves general policy and procedure making
activities not associated with a project or a physical change in the environment
(Section 15378 of the CEQA Guidelines).
Public Notice:
Notice of this hearing was published in the Daily Pilot a minimum of 10 days in
advance of this hearing consistent with the Municipal Code. Additionally, the item
appeared upon the agenda for this meeting, which was posted at City Hall and
on the city website.
Prepared by:
Submitted by:
el �e-
Q.✓� _ . .
Patrick J. Alfo Patricia L. Temple
Senior Plan er Planning Director
Exhibits:
1. Draft resolution.
2. Proposed revisions (Exhibit A).
Iq
Planning Commission Minutes 04/22/2004
ner Tucker noted the following:
There is a great deal of effort made to do things right and to
preserve the beautiful area that we all have.
II live here and have a goal for the community to be the
?ossible place to live.
Commissiondr Eaton noted his preference would be to vote on this
tonight and lei staff put together the areas that were unresolved. If
we continue this 'it would be for only the purpose of reviewing those
things where we asked staff to make changes and limit the public
hearing to those things where we asked staff to make changes.
Otherwise, my concern is there would be another three hours of
testimony.
Commissioner Selich agreed with the previous comments. The
biggest thing we wanted to'see is the private community language
and I think staff can take care;of that. I would just as soon vote on
this tonight.
Straw vote to vote on the LCP tonight:
A
Commissioners Selich, Eaton, Cole, McDaniel
.µ
Staff verified that there would be revised language on private
communities.
d
Motion was made by Commissioner Eaton to recommend
approval of the LCP with all the corrections and Errata as proposed
plus the additional ones that were provided tonight.
Chairperson McDaniel thanked Mr. Alford for all his work on this
item. `
4
Ayes: Eaton, Cole, Toerge, McDaniel, Selich, I iser and
Tucker y
Noes: �k
Absent: None t
Abstain: None
None is
SUBJECT: City of Newport Beach (PA2004 -028)
Revisions to Appeal and Call for Review
Procedures
An amendment to Title 20 of the Municipal Code to review
file://H:\Piancornm\2004\0422.htm
Page 31 of 34
ITEM NO. 5
PA2004 -028
Recommended for
Approval
05/28/2004
Planning Commission Minutes 04/22/2004 Page 32 of 34
procedures for appeals and calls for review.
Chairperson McDaniel noted the following:
. If the City Council wants to do this, that is fine.
. The Planning Commission should be separate from this
action.
. Zoning issues should come to us as quickly as possible and
anyone who wants to bring them up, it should only require
one person to do that.
. I talked to the maker of the motion at City Council and he is
okay with this procedure.
Ms. Temple noted that if the Commission wishes to give this
direction to staff then they will proceed with it. Making that part of
the motion we will amend the resolution and forward this item to
City Council.
Commissioner Selich noted his support of the Chairman's views.
Commissioner Tucker supports the comments as well. He added
that the way it is written now, it appears you actually have to be at
a meeting in order to be a participant in a call up so if you were a
person who wanted to call it up and was going to be missing the
meeting then you could not be a person to call it up. I also don't
have the phobia about the Brown Act. Mechanically one of the
ways to get around that is to limit the time frame to the same
number of days and if it is not called up at a meeting, leave the
language where you could call it up at a meeting, but anybody on
the Council could send a letter to staff saying they wanted to call
this item up. Staff would then copy all the other Councilmembers
and if there was a mirroring further filing by one of the other
Councilmembers within the timeframe then it would be called up.
That way you do not have to have the formality of going on a
meeting. You are not really deciding anything, you are only saying
you want to review it. If the written notice merely says I would like
to call this one up for review and another councilmember within the
timeframe concurs, then it is done. The way it is set up it isn't
going to work because you have to be at a meeting to call it up.
Commissioner Eaton noted he would not like to see the appeal
period go to 21 days.
Ms. Clauson noted the concern is the tendency for one member to
go around and get another member to call it up. Commissioner
Tucker's idea is a good one. The only way that might be a problem
P
file://H:\Plancon-Lm\'-1004\042'-.htm 05/28/2004
Planning Commission Minutes 04/22/2004
is if one councilmember determined on the last day they wanted to
call it up there might not be enough time to notice all the others
that they had called it up to see if anybody else agreed. It would
have to be just an independent thing. If the Council knew that two
people need to call it up and if two came in independently to
request it within the appeal period then you would have a call up.
Following a brief discussion it was proposed to send this along to
Council for their action that would not change the Planning
Commission routine.
Motion was made by Chairperson McDaniel to recommend the
adoption of Code Amendment No. 2004 -002 (PA2004 -028)
whereby we leave the procedures of the Planning Commission as
is and the revision of Council appeals to 2 members while retaining
the 14 day appeal period.
Ms. Clauson noted that it is an appeal of a decision. Rather than
give it two names we decided to call it an appeal. If you have a
court reviewing the various levels of appeal through to the City
Council it is better to call it appeal. That is why we have decided to
eliminate the concept of call for review.
Commissioner Kiser noted that the motion to leave our procedures
the way it is, the terminology will be changed from call up to
appeal. Nevertheless, the procedure for any one Planning
Commissioner and the timeframe for the appeal would remain the
same.
Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and
Tucker
Noes:
Absent: None
Abstain: None
None
ADDITIONAL BUSINESS:
a. City CouncikEollow -up - Ms. Temple noted that the Council
heard the call for•..>eview for the Zinc Cafe and market
amendment and they sustained the decision of the Planning
Commission; they considered"thet[rr policy manual update for
2004 and within those policy changes were K1 which is the
procedures for the adoption and amendme'nt,of General Plan
Amendments - eliminated the process of initiation'for property
owner or developer requested amendments, and the policy
fiie://H:\Plancomm\'-)004\0422.htm
Page 33 of 34
ADDITIONAL
BUSINESS
05/28/2004
�1