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HomeMy WebLinkAbout06 - PA2004-028 - Appeal & Call for Review - Code Amendment 2004-002CITY OF NEWPORT BEACH COUNCIL AGENDA CITY COUNCIL STAFF REPORT Agenda Item No. 16 August 24, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL 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, modification permits, and Planning Director decisions? RECOMMENDATION: Conduct public hearing; introduce Ordinance No. 2004 (Attachment A) approving Code Amendment No. 2004 -002 and pass to second reading on September 14, 2004. DISCUSSION: Background: 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. 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. On August 10, 2004, the City Council reviewed a set of options and directed staff to revise the proposed code amendment to require a simple majority vote of the City Council to initiate an appeal. Appeal /Call for Review Procedures August 24, 2004 Page 2 The Proc>osed Amendment: 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. Majority Required Initiate The proposed code amendment would require that a City Council appeal be initiated by a simple majority vote at a regularly - scheduled meeting. Requiring a simple majority vote is intended to ensure that decisions are not subject to additional review unless there is substantial concern or interest on the part of the City Council. Extension of the Appeal Time Limit In order to avoid situations where the next regular meeting is scheduled more than 14 days after the date of a decision, a single City Council member would have the authority to extend the time limit to the next regularly - scheduled meeting. Any City Council member seeking to extend the time limit would have to do so within the 14 -day appeal period at a regularly scheduled City Council meeting or by written request to the City Clerk or Planning Director. Statement of Grounds The proposed code amendment would require that any City Council member making a motion to initiate an appeal would be required to specifically state the grounds for the appeal. Similarly, any Planning Commissioner seeking to initiate an appeal would be required to specifically state the grounds for the appeal. 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. Various other chapters of the Zoning Code will be amended to delete references to calls for review. Appeal /Call f• --r Review ' rocedures August 24, 2004 Page 3 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. Mord Senior Planner Attachments: A. Draft ordinance. B. August 10, 2004 City Council staff report. Submitted by: R4W& . - -n JnL' Patricia L. Temple Planning Director 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, August 10, 2004, and August 24, 2004, the City Council of the City of Newport Beach held duly noticed public hearings 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). ID THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 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 August 24, 2004, and adopted on the 14th day of September 2004, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK R CHAPTER 20.95 APPEALS AND GALLS ^o.° RE IEW Sections: Page 20.95 -1 Appealsaad Qa4- � 20.95.010 Purpose and Authorization for Appeals and Calls fer Re 20.95.020 Rights of Appeal 20.95.030 Appeals of Decisions on Tentative Maps 20.95.040 Time Limits for Appeals and galls feF Re 20.95.050 Initiation of Appeals 20.95.060 Procedures for Appeals and- QR^"Ts for Rmoo; 20.95.010 Purpose A. A 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. EXHIBIT A CA 2004 -002 I Page 20.95 -2 Appeals -aad Call- FApa-i=... 20.95.040 Time Limits for Appeals ^^-' ra-Ii; for Review A -ApR Appeals shall be initiated within 14 days of the decision. Exception: Any member of the City Council may extend the appeal time limit to the next scheduled meeting of the Citv Council. The extension of the appeal time limit shall be made within 14 days of the decision at a regularly scheduled City Council meeting or by written request to the Planning Director or the City Clerk. 1 20.95.050 Initiation of Appeals and G-al's c,.. Review A. Filinq of Appeals. Except for an appeal authorized by Subsection C, the Appeals appeal of a decisions of the Planning Director or of the Modifications Committee shall be made in writing to the Planning Director. Appeals 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*- E7tA. 1. Planninq Commission. Any member of the Planninq Commission may initiate an appeal of a decision of the Modifications Committee or the Planninq Director to the Planninq Commission by a written request to the Planninq Director and shall specifically state the grounds for the appeal. 2. City Council. The City Council, on its own motion and adopted by maiority vote, may initiate an appeal of a decision of the Modifications Committee, the Planninq Director, or the Planninq Commission. Any such motion shall specifically state the grounds for the appeal. EXHIBIT A CA 2004 -002 a Page 20.95 -3 Appeals -aad Salk; €a� Reuizw D. Effect on Decisions. A Qom^ c,s^; decision that afe is appealed er- ealledp shall not become final and effective until the appeal Vf,CP:-; ,mod is considered and decided by the Planning Commission or City Council, as appropriate as pFevided iR SRGt1nR 20 95 05n. 20.95.060 Procedures for Appeals and Calls fm- -r R .'- - A. Hearing Date. e^ appeal GF GalI f FRv;P— A hearing on the appeal shall be held before the- a Fp,+ oll. reviewing an appellate body within 38 60 days of the f444g date the appeal is filed The hearing may be scheduled more than 60 days after of the appeal is filed, ar}less provided both the applicant and the appellant or feyiew+r }g the appellate body consent to a later date. B. Notice and Public Hearing. An appeal shall be considered at a public hearing and notice of the public hearings shall be given in the manner required for the decision being appealedAr peP owed. al e ];C. Hearing. At the heariRg, the appellate 9F revie���� The public hearinq 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 appellate body Is not bound by the decision that has been appealed or limited to the issues raised on appeal The appellate body shall hear testimony of the appellant the applicant and any other interested party. The appellate body shall consider only the same application plans and project related materials that were the subject of the original decision unless otherwise deemed relevant by the appellate body. • - ■ EXHIBIT A CA 2004 -002 I rage 2Q.95 Appeals -aasl F,,Rdereel within 30 days of the GlGs„ of the heaFi ,. The appellate body shall, after considering all of the evidence presented at the hearing and within 30 days after the 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. SuGh The notice shall be mailed to the applicant and the appellant of the decision within 5 working days after the date of the decision to the nliGaRt and the , ellaRt EXHIBIT A CA 2004 -002 P 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 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 EXHIBITA 1 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 20.91.060: 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 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 20.93.035 (E): E. Report to the Planninq Commission and City Council. The Planning Director shall report the decision of the Modification EXHIBITA CA 2004 -002 Committee to the Planning Commission and City Council at the next regular meeting or within 5 days of the decision, whichever occurs first. Section 20.93.065: 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. EXHOIT A CA 2004 -002 1 Section 20.96.040 (H): H. Rights of Appeal. Appeals shall be as prescribed by Chapter 20.95: Appeals. EXHIBITA 1 CA 2004 -002 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 August 10, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Senior Planner (949) 644 -3235 palford (aDcity. 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 3. Provide direction to staff on combining 4. Continue hearing to August 24, 2004. DISCUSSION: Introduction: review procedures; appeal and review procedures; 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. 0 Appeal /Cali 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 suoject to additional review unless there is substantial concern or interest on the pa I of the review body. O tions: 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 appeallreview 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 appeallreview 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. 1� Appeai /Call for Raview 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 199E 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. Requiring 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. X Appeal /Call for Peview 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 appeaVreview 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 Directors 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. p I Appeal /Cali 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. AppeaVCall for Review Options Submitted by: lt- {Patricia L. Temple c Planning Director N C O �F+ Q O 0 N U C Q Q E+ / L' C � C U) o m m v m O m 'y m Q U °.` vi 'o S m o N ° 3 v 3 U) O i'n °o 'mE'> m ca E O Em` d' mct0 E_0 o� cf9io'i ai me `oc CL Ito ww�9 Leo 3�t o -o EQavo wLO° O (p o vo_• 00o vo No ° a�ioo a Y NQU [� v m ca Z.>U m 3 N d mU �'> a m c> D d z T T T t > W m m m m c _a 0 3 c 0 2 m am E m c m Oc a a a a `o of m rn w w E x v a w E _ _w U c U o `m O'.0 U U v m a � U CD D E a a O E E E E S U C O C C O U o )U >� U U V Q N N d � c o O IL E v IL E 0 m a O w v y E L U Ua / L' N C O C. d CC O f0 U f0 C. C. 21 o 'N o T a o D o c o O n E E naafi nCa= a) E n CL O O O N mu o nm U �wca ° iA0 ¢eU Qom Z i w 2 9 O N d a �Eo N O O O Ems-' O acO cd'm OE , a� c w s N E W U U U U U O N T MW E - E = E E E v U a n E_ ac y N U O Z c a O U)O H CL n O E E d m Q� TO: CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 August 10, 2004 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Senior Planner (949) 644 -3235 Pafford C city.newoort- 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. Appeai /Cali fa- =.e view =roceoures 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 Ralpi M. Brown Act establishes the basic requirements for open meetings and notice of hearings for commissions, boards, councils, and other public agencies. L e3lil: X review r'uCcQUFaS 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. Requiring 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. resi/Call .­--ir Flevievv 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 ex-end 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 review2. 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. �ppeai /�- sil ;or review ; rocedures 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: [.-,-Patricia L. Temple Planning Director I E 0 k O k \ � 0 \ \ I \ CY) » }/ 2 � \�\ \ �\ ) \- \ \\ E \ RG {\_ 2 ® ' ® ®` a - gEa2 23[ *K - »5: f2 °® - - 25 a - - &m2 a / /( }/ J 7 [m 2 J 7/ (\ !/ % G f f 2@ j u 3 { m { [ | / / { ) °0> \ \ \ § \ \� — — — 3 3 3 - /m / $ $ $ @ t E a-) \ °© / \± z — » J ƒ 0 ) \ \ E / ! ) / _ \ G \ \ ® \ & \ \ �\ § ; ( § : E ( a) ± #ƒ ) � & N C O C 0 a> i O m U iC d C C El M C O on o @a O 00ci O� Z E > a)" -mom a O A CA 0 Ql C X E (DA IL \ O C O O t0 Q) .0 7 Q1 u! a) "O N C a a) - .� = a D .. O c = a� OU U m G� [/J a> a E C N Q U Q 'O Z T W 'a V o m a U1 E _ O .N O O O O E .O = C p 4 C c x O -°oa E m c w Y W U u U U _T U 0 E — A O O a) O f0 _ E .E E a) c � a N E U aa) c m O O U) O ~ a) a �A O EE a) Q � CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT 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(o�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, 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. Ap peal:/CaJ ivl .0 \�C� °C i VCOU uiOJ 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 Mernber 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 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. Alford Senior Ranner Attachments: - JNaclh�oi�:r � . =VicYJ , i:Ce1..icS June 8, 2004 Page 4 Submitted by: 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: l SECTION 1: Title 20 of the Newport Beach Municipal Code shall be amended to revise Chap`ers 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 OE •; ATTEST: CITY CLERK f ICJ Face 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 �i jV 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. 1. 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, or the 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. i 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 ✓ App-eals E. Decision and Notice. The reviewing body shall, after considering all of the evidence presented at the hearing and within 30 days after the 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. EXHIBITA CA 2004 -002 (y� 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 2.0.57.060: 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. The City Council shall have a right to appeal as set forth in Chapter 20.95, as limited above. EXHIBIT A C4 20C4 -002 �� 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 Planninq 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 1 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. ection 20.91.045: Use permits and variances shall not become effective for 21 days after being granted, and in the event an appeal is fled 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 .0.92.080: 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 t' � r 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 Planninq 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. EXHIBITA CA 2004 -0002 Section 20.96.040 (H): H. Rights of Appeal. Appeals shall be as prescribed by Chapter 20.95: Appeals. EXHISITA CA 2004 -0'2 'y 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 palfordCcDcity. newoort-b each. 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 c211 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. ApDeaiiC ail for .evie;, April 22, 2004 Page 2 The Prorosed Amendment: The statE:d 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 ti-e 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 Feriod 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 wil 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. rpeali Fes 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 Pianning Commission and the City Council. Therefore, the appeal period, and consequent!; /, the effective date of the approval, could be extended from-14-days 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 Pianning 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. i '� r,p_�cil�,cll iOi � � \ %IcVv " "vCcCUicB 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: Patrick J. Alfo Patricia L. Temple Senior Plan er Planning Director Exhibits: 1. Draft resolution. 2. Proposed revisions (Exhibit A). 1� missioner 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. . We:.all live here and have a goal for the community to be the best possible place to live. Commissioner Eaton noted his preference would be to vote on this tonight and let .. staff put together the areas that were unresolved. If we continue this) 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: Commissioners Selich, Eaton, Cole, McDaniel Staff verified that there would be revised language on private communities. 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. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker i Noes: Absent: None Abstain: None None SUBJECT: City of Newport Beach (PA2004 -028) ITEM NO. 5 Revisions to Appeal and Call for Review PA2004 -028 Procedures Recommended for An amendment to Title 20 of the Municipal Code to review Approval procedures for appeals and calls for review. Chairpersor. 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. Commissiorer 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 clays 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 Councilmen-bers 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. Clausor 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 .;;e::':'.:�: =__CCU r`,�004',0== ���'• =� ;1a= 8:'30;'- 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 * * 4 ADDITIONAL BUSINESS: a. City C06ricikF.,ollow -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 "their policy manual update for 2004 and within those policy changes-were K1 which is the procedures for the adoption and amendment•of General Plan Amendments - eliminated the process of initiation' for.,.property owner or developer requested amendments, and the - policy ADDITIONAL BUSINESS J"— nc^.T'_m7 10011'•.0=- 7.:?nm h� This Web information brought to you by CFAC Promoting and defending the people's right to know since 1988 TO BE PUBLISHED III THE OFFICIAL REPORTS OFFICE OF THE ATTOR'N'EY GENERAL State of California BILL LOCI: YER Attornev General OPINIOI of BILL LOCKYER - ttornev General CLAYTON P. ROCHE Deput�r Attorney General No. 00 -906 February° 20. 2001 [00 -906] THE HONORABLE N�TSLEY CHESBRO. k EMBER OF THE STATE SENATE, has requested as opi.-lion on the followh"i question: May a majority of the board members of a local pubiic agency e- mail each other to develop a collective concurrence as to action to be taken by the board without violating the Ralph M. Brown Act if the e -mails are also sent to the secretary and chairperson of the agency, the e -mails are posted On the agency's Internet website, and a printed version of each e -mail is r =_ported at the next pub is meeting of the board? CONCLUSION A majority of the board member of a local public agency may not e -mail each other to develop a collective concurrence as to action to be taken by the board without vi- dating the Ralph M. Brown Act even if the e -malls are also sent to the secretary and chairperson of the agency, the e.-malls a, e Dolled on the agency's Internet website, and a printed version of each =--mail Is report ed at the next public meeting of the board. ANALYSIS The Ra!pn M. Brown Act (Gov. Code, §§ 54950 - 54962; "Brown Act ")[ 1 All references hereafter to the Government Code are by section number only. ]1 generally requires the legislative body of a local public agency to hold its meetings open to the public. ( §§ 54951, 54952, 54953, 54962 .) Agendas of the meetings must be posted (§§ 54954.1, 54954.2), and members of the public must be given an opportunity to address the legislative body on any agenda item of int =_rest to the public (§ 5-195 -13). The purposes of the Brown Ad are thus to allow the public to attend, ooserve, monitor, and participate in the decision - making process at the local level of government. Not only are the actions taken by the legislative body to be monitored by the public but also the deliberations leading to the actions taken. (See Roberts v. City of Palmdale (-1993) 5 Cal.4th 363, 373, 375; Frazer v. Dixon Unified School Dist. (1993) 18 Cal. App.4th 781, 795-797; Stockton Newspaper, Inc, v. Redevelopment Agency ( 1985) 171 Ca(.App.3d 95, 100; Sacramento Newspaper Guild v. Sacramento County 5d. of Suprs. (1968) 263 Cal..4pp.2d 41, 45.) 'The term 'deliberation' has been broadly construed to connote'not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision [Citation.]" (Bowen v. Santa Clara Unified School Dist (1981) 121 CaLApp3d 231, 234; see Robe—LS v. City of Palmdale, supra, 5 Cal.4th at p. 376.) : ac'. .'� 'ad ra- l' er^ a___ ?G`.11�_a m$iaJerZ G- I ine vJ_.,.•Oii prcS�nt.. rot �o.J.10ri CJnC...��5 e- m�311mary -� the board of a local public agency. May a majority Of the members e -mail each other to develop a collective concurrence as to action to be taken by the board without violating the Brown Ac if the e -mails are sent to the secretary and chairperson of the agency, the e -mails are posted on the agency's internet website, and a printed version of each e- mail is reported at the next public meeting of the agency? We conclude that such conditions would not be su nclent to prevent a violation of the Brown Amt. he tatute governing our disc,sson is section 54 952.2, subdivision. (b), which prvibe=_: "Except as authorized pursuant to Section 54953, any use of dire communication, personal intermediaries, or technological devices that is employed by a majorty of tie members of the legislative body to develop a collective concurrence as to action to de taken on an item by the member of the legislative body is prohibited." Section 5 =953 concerns the use of te!econferencing procedures and has no application LO the situation presented herein. _n analyzing the language of section 54952.2, we may aPPIY well recognized principles of statutory construction. We are to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." ( DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) 'The words of the statute are the staring point." (Wilcox v. Birtwhistle ( 1999) 21 Cal.4th 973, 977.) "Words used in a statute ... should be given the meaning they bear in ordinary use. [Citations.] if the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature ...." (Lungren v. Deukmejuan (1988) 45 Cal.3d 727, 735.) Applying these rules of construction to the terms of subdivision (b) of section 54952.2, we find that the sending of e -mails would be the "use of ... technological devices." The statutory prohibition applies to such use "by a majority of the members of the legislative body." Anything less than a majority is not covered by the statute. (See Robers v. City of Palmdale, supra, 5 Cal.4th at pp. 375 - 377; Frazer v. Dixon Unified School Dist., Supra, 18 Cal.App.4th at p. 797.) Here, we are given that a majority of the board member are sendino e -mails to each othei . As for the requirement that the e-malls be employed "to develop a collective concurrence as to action to be taken on an Item," we note that such activity would nclude any exchange of facts (see Roberts v. City of Palmdale, supra, 5 C31.4th at pp. 375 -376; Frazer v. Dixon Unified School Dist., supra, 13 Cal.App.4th at P. 796) or, as \r. have previously explained in our pamphlet on the Brown Ac, subcantive discussions "which advance or clarify a member's understanding of an issue, or fackitaze an agi?en i?n;. Or Co ^premise amongst members, or advance th =_ ;:Ilillial'°_ 'e501Ution Oi an issue" (Cat. Dept. of justice, The Brown Act, open L.. eLIiIJ.'S ll! JCaI i zg!sIV,.�,�e v�l'�..� 1\ I Jim., li L 1 find no distinction between z malls and other 10, ms of communication such as leaving telephone messages or sending letters or memorandums. If ­mails are employed to develop a collective concurrence by a majority Df board members on an agenda item, they are subject to the prohibition of section 5 4952.2, subdivision (b). Application of the statute in such circumstances i'J,ii'le•'S the "bfOaC' poll:.y of i•'1c act i'J eS'.Sllf= that IOC 31 gOVefr'.ing b4dieS deli ^:° ' ^, public." lRoberts v. C!ty of Palmdale, suD2, 5 Cal.4th at p. 373; See FraZ?r v. Ur --ten Unified School Dist., supra, 13 Cal,App.4th at pp. 794 -795; Stockton Newspapers, inc. v. Redevelopment Agency, supra, 171 Cal.App3d at p. 100; Sacramento Newspaper Guild v. Sacramento Country Board of Suprs., supra, 253 Cal, App. 3d at p. 45). We recognize ti .at the three conditions of (1) concurrently sending copies of the e-rnailS to the secretary and chairperson of the agency, (2) concurrently poling the e mails on the agency's Internet website, and (3) reporting the contents of the e -mails at the agency's next public muting would allow the deliberations to be conducted "in Public" to some extent. Nevertheless, the deliberations would not be conducted as cont=emplated by the Brown Act. Members of the public who do not have Internet access would be unable to monitor the deliberations as ti ley occur. All debate concerning an agenda item could well be over before member of the public could be given an opportunity to participate in the decision - making process, (See Frazer v. Dixon Unified School Dist., supra, 18 Cal.App.4th at p. 794; Cal. Dept. of Justice, The Brown Act, Open Meetings For Local Legislative Bodies, supra, p. 12.) Subdivision (b) of section 54952.2 is straightforward and unambiguous. The proposed conditions satisfy reither the specific language nor ail the critical purposes of the statute. We thus :onciude that a majority of the beard members of a local public agency ,tray not e -mail each other to develop a collective concurrence as to action to be taken by the board without violating the Brown Act even f the e- r;.ails are also sent to the secretary and chairperson of the agency, the e -mails are posted on the agency's InLerr let website, and a printed version of each e-mail is reported at the ne >:t public meeting of the board. �*x*