HomeMy WebLinkAbout5.0 - Appeal and Call for Review Procedures - PA2015-029 CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
March 5, 2015 Meeting
Agenda Item 5
SUBJECT: Appeal and Call for Review Procedures Code Amendment (PA2015-
029)
• Code Amendment CA2015-001
APPLICANT: City of Newport Beach
PLANNER: Gregg Ramirez, Senior Planner
(949) 644-3219, gramirez@newportbeachca.gov
PROJECT SUMMARY
An amendment to Title 20 (Zoning Code) of the Newport Beach Municipal Code that
would clarify the appeals and call for review procedures for City Council Members and
Planning Commissioners.
RECOMMENDATION
1) Conduct a public hearing; and
2) Adopt the attached resolution recommending City Council adoption of Code
Amendment No. CA2015-001 amending the appeal and call for review
procedures in Title 20 (Attachment No. PC 1).
DISCUSSION
Background
A recent State of California Appellate Court decision determined the City's Municipal
Cade makes no provision for City Council Members to call projects up for review.
Therefore, at their meeting on February 10, 2015, the City Council directed staff to
prepare amendments to clarify the call for review procedures in Title 20.
Chapter 20.64 of the Zoning Code states that an "interested party" is eligible to file an
appeal of an action taken by the Director, Zoning Administrator, Commission or Hearing
Officer. To clarify the procedures for Council Members and Commissioners, revised
code language has been drafted to allow calls for review by Council Members and
Commissioners. The 14-day appeal period for zoning code decisions and the 10-day
appeal period for subdivision code decisions would not change, nor would the chain of
review authority.
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Appeal and Calls for Review Procedures Code Amendment
March 5, 2015
Page 2
Proposed Amendments
The recommended amendments are included as "Exhibit A" in the draft resolution and
are shown as underline/;' t
The proposed calls for review procedures differ from the existing appeal procedures in
two notable ways, the form of appeal and required fees. Additionally, a change related
to appeals/calls for review of Hearing Officer decisions is also recommended to provide
consistency.
Appeals and Calls for Review
The current code requires the interested party filing an appeal to state the facts and
basis for the appeal. These facts and basis are typically project specific such as a
person objecting to the height of a wall that exceeds the allowed height because it
would block sunlight coming into a neighbor's yard.
Calls for review by Council Members or Commissioners would not require facts and
basis for the review be provided. The draft amendment states that "the sole purpose for
the call for review is to bring the matter in front of the entire body for review." In other
words, the Council Member or Commissioner calling for the review does not express an
opinion either for or against a project; instead the call for review is neutral and intended
solely to allow a higher body to consider the decision.
Fees
Fees for City services, including appeals and call for review fees are adopted by the
City Council annually and based on cost recovery percentages identified in Chapter
3.36 (Cost Recovery for User Services) of the Municipal Code. As already established
by Section 3.36.030, fees for a call for review by a Council Member or Commissioner
acting within the scope of their official duties is $0 (zero).
Hearing Officer Decisions
In addition to the changes proposed to 20.64, staff is recommending amendments to the
type of hearing to be conducted for Hearing Officer appeals. The existing code states
that on appeal, the City Council will determine if the Hearing Officer decision was
supported by substantial evidence. The proposed change would make the hearing de
novo, which is consistent with all other appeal and call for review hearings.
Alternatives
The Commission has the option to:
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Appeal and Calls for Review Procedures Code Amendment
March 5, 2015
Page 3
1) Incorporate changes to the proposed amendment and forward a
recommendation that the City Council adopt the amendment; or
2) Continue consideration of the proposed amendment to a future date; or
3) Recommend the City Council not adopt the proposed amendment.
Environmental Review
Staff recommends the Planning Commission find this action is covered by the general
rule that CEQA applies only to projects which have potential for causing a significant
effect on the environment. Where it can be seen with certainty that there is no possibility
that the activity in question may have a significant effect on the environment, the activity
is not subject to CEQA (CEQA Guidelines Section 15061(b)(3)). The proposed
amendment is a procedural and administrative change related to project review and
each individual project will continue to be evaluated pursuant to CEQA requirements.
Public Notice
Notice of this application was published in the Daily Pilot at least 10 days before the
scheduled meeting, consistent with the provisions of the Municipal Code. Additionally,
the item appeared on the agenda for this meeting, which was posted at City Hall and on
the City website.
Prepared by: Submitted by:
Gregg Rd4irez Br n"WisnesKi, ICP, Deputy Director
Senior Planner
ATTACHMENTS
PC 1 Draft Resolution
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Attachment No. PC 1
Draft PC Resolution
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RESOLUTION NO. 2015-
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH, CALIFORNIA RECOMMENDING
CITY COUNCIL ADOPTION OF CODE AMENDMENT NO.
CA2015-001 AMENDING TITLE 20 OF THE NEWPORT BEACH
MUNICIPAL CODE RELATED TO PLANNING COMMISSION
AND CITY COUNCIL CALLS FOR REVIEW (PA2015-029)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. On February 10, 2015, the City Council initiated an amendment of the Zoning Code that
would amend procedures to clarify the process for Planning Commission and City Council
calls for review of decisions by lower review authorities.
2. A public hearing was held on March 5, 2015, in the Council Chambers at 100 Civic Center
Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given
in accordance with the Newport Beach Municipal Code. Evidence, both written and oral,
was presented to, and considered by, the Planning Commission at this public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This Zoning Code amendment is not subject to the California Environmental Quality Act
("CEQA") pursuant to Section 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,
Title 14, Chapter 3, because it has no potential to have a significant effect on the
environment.
SECTION 3. FINDINGS.
1 . When the Zoning Code was comprehensively updated in 2010, the appeal process did not
include procedures specific for Planning Commissioners and City Council Members to call
an item up for review, as it was determined that they would follow the same appeal
process as any interested party.
2. A recent State of California Appellate Court decision suggested that the City's Municipal
Code may be ambiguous regarding calls for review by Council Members acting in their
role as Council Members.
3. The recommended code amendment codifies the call for review process for Planning
Commissioners and City Council Members.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach hereby recommends approval of Code
Amendment No. CA2015-001 as set forth in Exhibit "A," which is attached hereto and
incorporated by reference.
PASSED, APPROVED AND ADOPTED THIS 5th DAY OF MARCH, 2015.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:
Larry Tucker, Chairman
BY:
Jay Myers, Secretary
g
EXHIBIT A
Code Amendment No. CA2015-001
Redline Draft of NBMC Title 20
Table 5-1 (Review Authority) in Section 20.50.030
Table 5-1 (Review Authority) in Section 20.50.030 is hereby amended to delete
footnote No. 4 and all references within Table 5-1 to footnote No. 4.
(4) The sta^,daFd of Feview f. al of , HeaFi^^ OffiGeF .de GiSieR ^Sha lll oc
Subsection 20.52.030(F)(2)
Decisions of the review authority may be appealed or called for review to The
Tin compliance with Chapter 20.64 .x`. Review fee ^ appeal 40m a
On r , the Ge u^^il m sustain, FeVeFse, OF a diFfy the decision of the f'`^M fflissi^n
dL i de ei+heF S Gifir- iR S b. he P- si.d..r...d A- „ .-0r.,.-+10.. fee ., rh ^ ^ heaFiRg
Subsection 20.52.070(D)(1)(b)
The reasonable accommodation request shall be heard with, and subject to, the
notice, review, approval, call for review, and appeal procedures identified for any other
discretionary permit; pFevided the ^+^^,d^r,d Af • appeal Shall ^„+ he ,d„ RAVA
supperte d by suhstan+i^I ey. dennn n eRte d rd6 irinn the n61hiin hnnrinn
Chapter 20.64
APPEALS AND CALLS FOR REVIEW
20.64.010 Purpose.
The purpose of this chapter is to provide procedures for the appeal or call for
review of determinations and decisions of the Director, Zoning Administrator, Hearing
Officers, and PlaRRiRg Commission. Any provision in Title 20 relating to appeals shall
be considered a call for review and processed according to this chapter when initiated
by a member of the Commission or City Council under Section 20.64.030(A).
20.64.020 Appeals or Calls for Review.
A. Director. Interpretations or decisions of the Director may be appealed or
called up for review to the Planning Commission.
9
B. Zoning Administrator. Decisions of the Zoning Administrator may be
appealed or called up for review to the Planning Commission.
C. Hearing Officer. Decisions of a Hearing Officer may be appealed or called
up review to the City Council.
D. Planning Commission. Decisions of the Commission may be appealed or
called up for review to the City Council.
20.64.030 Filing and Processing of Appeals and Calls for Review.
A. Eligibility. Appeals may be initiated by any interested party. Calls for review
may be initiated by a member of the Commission or City Council, in the member's
official capacity, if the sole purpose for the call for review is to bring the matter in front of
the entire body for review.
B. Timing and Form of Appeal. An appeal initiated by an interested party shall
be submitted in writing and shall state the facts and basis for the appeal. A call for
review initiated by a member of the Commission or City Council, in their official capacity,
shall be submitted in writing and shall be for the sole purpose of bringing the matter in
front of the entire body for review.
1 . Filing an Appeal or Call for Review. An appeal or call for review shall be filed
with the Director or City Clerk, as applicable, within fourteen (14) days following the date
the action or decision was rendered unless a different period of time is specified by the
Municipal Code (e.g., Title 19 allows ten (10) day appeal period for tentative parcel and
tract maps, lot line adjustments, or lot mergers).
a. Appeals or calls for review addressed to the Commission shall be filed with
the Director on forms provided by the Department; and
b. Appeals or calls for review addressed to the City Council shall be filed with
the City Clerk on forms provided by the Clerk.
2. Filing Fee. An appeal shall be accompanied by the filing fee identified in the
City's master fee schedule. A call for review is exempt from the payment of a filing fee
under Code Section 3.36.030, or any successor provision.
C. Report, Scheduling, Noticing, and Conduct of Hearing.
1 . The decision from which an appeal or a call for review has been made has
no force of effect as of the date on which the appeal or call for review is filed. When an
appeal or call for review has been filed, the Director shall prepare a report on the
matter, including all of the application materials in question, and schedule the matter for
a public hearing by the appropriate review authority identified in Section 20.64.020
(Appeals).
10
2. Notice of the hearing shall be provided, and the hearing shall be conducted,
in compliance with Chapter 20.62 (Public Hearings).
3. Conduct of Hearing.
a. Review of an appeal from a decision of the Hearing Officer, Zoning
Administrator,-Gr Commission, or the Director, including Director interpretations, shall be
de novo.-Review of n appeal 466 a edeGisLen of a Hen.i g Offine. shall he whetheF the
the denicier. of the GGFRFniocieR GF HeaFiRg Offiner, GF r.ed the matter fern f6lFt r
ediree.tien. fe.r o ., heaFir,e,
A call for review of a decision of the Zoning Administrator, Hearing Officer,
Commission, or the Director, including Director interpretations, shall be de novo. The
body hearing a matter that is called for review shall follow the same procedure
applicable to the lower hearing.
b. The review authority is not bound by the decision that has been appealed or
called for review, or limited to the issues raised on appeal or at the lower hearing.
C. The review authority shall hear testimony of the appellant, if any, the
applicant, and any other interested party.
d. The review authority shall consider the same application, plans, and project-
related materials that were the subject of the original decision, unless otherwise
deemed relevant by the review authority.
D. Decision on Appeal or Call for Review.
1. As provided in this Zoning Code, the review authority may, based upon
findings of fact about the particular case:
a. Affirm, affirm in part, or reverse the action, determination, or decision that is
the subject of the appeal or call for review. Adopted findings shall identify the reasons
for the action e^ the appeal;
b. Adopt additional conditions of approval tom address issues or
concerns raised during the hearingether thnr, thecae that were the basis of the appeal; or
c. Deny the permit approved by the previous review authority, even where the
appellant i, f any, only requested a change or elimination of one or more conditions of
approval.
2. If new or different evidence is presented on appeal or review, the
Commission or CityCouncil may refer the matter to the previous review authority for
further consideration.
11
3. In the event of a tie vote by the review authority on an appeal or call for
review, the lower decision being appealed shall stand.
20.64.040 Judicial Review of City Decision.
A person shall not seek judicial review of a City decision on a permit or other
matter until all appeals to the Commission and Council have been first exhausted in
compliance with this chapter.
12
Planning Commission - March 5, 2015
Item No. 5a: Additional Materials Received
PORr Appeal and Call for Review Procedures Code AmendrM,pgt (PA2015-029)
y0 e� COMMUNITY DEVELOP RTMENT
F f n 100 Civic Center Drive
Newport Beach,California 92660
Gq
`p. 949 644-3200<UFolk newportheachca.gov/communitydevelopment
Memorandum
To: Chair Tucker and the Planning Commission
From: Gregg Ramirez, Senior Planner
Date: March 3, 2015
Re: Agenda Item No. 5 (PA2015-029)
Appeals and Calls for Review Procedure Code AmendmentClick hereto
enter text.
Attached is a revised Exhibit "A" to the draft Planning Commission resolution for
the above captioned agenda item. Staff recommends adoption of this version in
place of the draft included in the staff report. Should you have any questions,
please let me know.
Gregg Ramirez
949-644-3219
gramirez(a)newportbeachca.gov
Community Development Depa
Planning Commission - March 5, 2015
Item No. 5a: Additional Materials Received
Appeal and Call for Review Procedures Code Amendment (PA2015-029)
Exhibit A - Revised
Code Amendment No. CA2015-001
Redline Draft of NBMC Title 20
Table 5-1 (Review Authority) in Section 20.50.030
Table 5-1 (Review Authority) in Section 20.50.030 is hereby amended to delete
footnote No. 4 and all references within Table 5-1 to footnote No. 4.
(4) The I;tand@F,J Af Feview f. appeal „f aRY WeaFiR9 Q#iGPF GIPA4134AR ^51� Imo„ cc
Subsection 20.52.030(F)(2)
Decisions of the review authority may be appealed or called for review to the
Ceeasll—in compliance with Chapter 20.64 (Appeals). Revie ^, f^• RR appeal f•^^
On riawmpw the C9 innil m 16tain reverse, er edify the d8Gi6iAA of the GArArniss An
Subsection 20.52.070(D)(1)(b)
The reasonable accommodation request shall be heard with, and subject to, the
notice, review, approval, call for review, and appeal procedures identified for any other
discretionary permit.; pFevided the St-,RdaFd Rf FPViR'.AV GR al shall RAt he ao RAVA
s6ippeiled by suhstantial ey.rJenne n eRted d irinn the P61191 hnnrinn
Chapter 20.64
APPEALS AND CALLS FOR REVIEW
20.64.010 Purpose.
The purpose of this chapter is to provide procedures for the appeal or call for
review of determinations and decisions of the Director, Zoning Administrator, Hearing
Officers, and and RaRRORg Commission. Any provision in Title 20 relating to appeals
shall be considered a call for review and processed according to this chapter when
initiated by a member of the Commission or City Council under Section 20.64.030(A) if
the purpose for the call for review is to bring the matter in front of the entire body for
review.
Planning Commission - March 5, 2015
Item No. 5a: Additional Materials Received
Appeal and Call for Review Procedures Code Amendment (PA2015-029)
20.64.020 Appeals or Calls for Review.
A. Director. Interpretations or decisions of the Director may be appealed or
called for review to the PIaRRFRg Commission.
B. Zoning Administrator. Decisions of the Zoning Administrator may be
appealed or called for review to the P!aRRIRg Commission.
C. Hearing Officer. Decisions of a Hearing Officer may be appealed or called
for review to the City Council.
D. Planning Commission. Decisions of the Commission may be appealed or
called for review to the City Council.
20.64.030 Filing and Processing of Appeals and Calls for Review.
A. Eligibility. Appeals may be initiated by any interested party. Calls for review
may be initiated by a member of the Commission or City Council, in the member's
official capacity, if the seie-purpose for the call for review is to bring the matter in front of
the entire body for review.
B. Timing and Form of Appeal. An appeal initiated by an interested party shall
be submitted in writing and shall state the facts and basis for the appeal. A call for
review initiated by a member of the Commission or City Council, in their official capacity,
shall be submitted in writing and shall be for the sole-purpose of bringing the matter in
front of the entire body for review.
1. Filing an Appeal or Call for Review. An appeal or call for review shall be filed
with the Director or City Clerk, as applicable, within fourteen (14) days following the date
the action or decision was rendered unless a different period of time is specified by the
Municipal Code (e.g., Title 19 allows ten (10) day appeal period for tentative parcel and
tract maps, lot line adjustments, or lot mergers).
a. Appeals addressed to the Commission shall be filed with the Director on
forms provided by the Department; and
b. Appeals addressed to the City Council shall be filed with the City Clerk on
forms provided by the Clerk,--
c. Calls for review addressed to the Commission shall be filed with the
Director on forms provided by the Department: and
d. Calls for review addressed to the City Council shall be filed with the City
Clerk on forms provided by the Clerk.
2. Filing Fee. An appeal shall be accompanied by the filing fee identified in the
City's master fee schedule. A call for review is exempt from the payment of a filing fee
under Code Section 3.36.030, or any successor provision.
Planning Commission - March 5, 2015
Item No. 5a: Additional Materials Received
Appeal and Call for Review Procedures Code Amendment (PA2015-029)
C. Report, Scheduling, Noticing, and Conduct of Hearing.
1 . The decision from which an appeal or a call for review has been made has
no force of effect as of the date on which the appeal or call for review is filed. When an
appeal or call for review has been filed, the Director shall prepare a report on the
matter, including all of the application materials in question, and schedule the matter for
a public hearing by the appropriate review authority identified in Section 20.64.020
(Appeals).
2. Notice of the hearing shall be provided, and the hearing shall be conducted,
in compliance with Chapter 20.62 (Public Hearings).
3. Conduct of Hearing.
a. Review of an appeal from a decision of the Hearing Officer, Zoning
Administrator, Commission, or the Director, including Director interpretations, shall be
de novo. Review of aR appeal from a deGiS.GR of a HeaF; n Offiner shall he whnfhe r the
findings made by the Hearing 0"' ed by substantial evidence prese
the dnniSinn of the rnmFRi SGinn OF HeaFinn Offinn. eF remand the .mate. fn. fU.4hnr
A call for review of a decision of the Zoning Administrator, Hearing Officer,
Commission, or the Director, including Director interpretations, shall be de novo. The
body hearing a matter that is called for review shall follow the same procedure
applicable to the lower hearing.
b. The review authority is not bound by the decision that has been appealed or
called for review, or limited to the issues raised on appeal or at the lower hearing.
C. The review authority shall hear testimony of the appellant, if any, the
applicant, and any other interested party.
d. The review authority shall consider the same application, plans, and project-
related materials that were the subject of the original decision, unless otherwise
deemed relevant by the review authority.
D. Decision on Appeal or Call for Review.
1. As provided in this Zoning Code, the review authority may, based upon
findings of fact about the particular case:
a. Affirm, affirm in part, or reverse in whole or in part the action, determination,
or decision that is the subject of the appeal or call for review. Adopted findings shall
identify the reasons for the actionnn the
Planning Commission - March 5, 2015
Item No. 5a: Additional Materials Received
Appeal and Call for Review Procedures Code Amendment (PA2015-029)
b. Adopt additional conditions of approval to# address issues or
concerns raised during the hearingetheF than these that ewe the bas's of theappeal; or
c. Deny the permit approved by the previous review authority, even where the
appellant i, f any, only requested a change or elimination of one or more conditions of
approval.
2. If new or different evidence is presented on appeal or review, the
Commission or CityCouncil may refer the matter to the previous review authority for
further consideration.
3. In the event of a tie vote by the review authority on an appeal or call for
review, the lower decision b8iRg appealed shall stand.
20.64.040 Judicial Review of City Decision.
A person shall not seek judicial review of a City decision on a permit or other
matter until all appeals or calls for review, if applicable, to the Commission and City
Council have been first exhausted in compliance with this chapter.
Planning Commission - March 5, 2015
Item No. 5b: Additional Materials Received
Appeal and Call for Review Procedures Code Amendment (PA2015-029)
March 5, 2015, Planning Commission Agenda Comments
Comments on Newport Beach Planning Commission regular meeting agenda item submitted by:
Jim Mosher( iimmosher(oo)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229).
Item No. 5. APPEAL AND CALL FOR REVIEW PROCEDURES CODE
AMENDMENT (PA2015-029)
1. The decision alluded to in the staff report, which brought judicial scrutiny to the City's
practice of allowing free appeals by Council members and Planning Commissioners
(formerly, but not since 2010, part of the Zoning Code), was Woody's Group, Inc. v. City of
Newport Beach, Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 2015 (G050155).
2. In considering the propriety of staff's response to that decision, the Commissioners would
seem well advised to carefully review the opinion, which offers a detailed critique of our
current appeals code, along with the two key cases cited in it: Cohan v. City of Thousand
Oaks, 30 Cal. App. 4th 547 (1994) and Breakzone Billiards v. City of Torrance, 81
Cal.AgpAth 1205 (2000).
3. In reading the opinion, after getting past the appeal panel's dim understanding of the
geography of Newport Beach (at the start of"ll. Facts," they place Woody's on a Lido Isle
they confuse with the Balboa Peninsula), it is important to understand the lack of any
codification of a fee exemption, which is repeatedly referred to, was addressed by the
Council after the Woody's appeal through its modification of NBMC 3.36.030, as described
in the present staff report.
4. However, until the present action, the Council has not attempted to address the core issues
highlighted in this key paragraph from the opinion:
"The most that Newport Beach can validly wring out of Cohan's qualifying paragraph is
that the court was willing to say (and even this is arguably dicta) that a Ione city council
member might have validly appealed if such an appeal had "complied with the municipal
code" (Cohan, supra, 30 Cal.App.4th at p. 559) and the member was willing to be
disqualified from his or her own appeal."
5. Even now, while staff seems to be trying to comply with the first part of this dual standard
which, if complied with, might allow for a party to appeal a matter to a body on which he sits
(placing the procedure in the code), it seems to being ignoring the second part (requiring the
appealing member to disqualifying himself from hearing the appeal).
6. It should be emphasized that the court has declared in no uncertain terms that having an
"interested" party sit in judgment on a matter in which they are interested, as the proposed
code may still be allowing, is fundamentally wrong. Staff may think that by inventing a
separate "call for review" procedure it has sufficiently insulated the Council members and
Planning Commissioners from bearing the onus of being identified as "interested" parties,
Planning Commission - March 5, 2015
Item No. 5b: Additional Materials Received
March 5, 2015, PC agenda it p%WggnrYsall fg� I%Procedures CocgaAg"g Tent (PA2015-029)
but common sense tells us a person initiating an appeal is interested (and presumptively
thinks something was wrong with the previous decision and they would have reached a
different decision). And the Woody's court emphasized that neither they nor the Breakzone
court had resolved the issue "is it fundamentally unfair for the government official appealing
the action to participate in the hearing on the appeal and vote on that appeal?" According to
the opinion, the Breakzone court did not resolve the issue because it had not been properly
presented to it by the litigating parties, forcing it to look for bias in the hearing transcript, and
the Woody's court could not properly reach the question of whether the mere act of
appealing demonstrated "interest," because in the Woody's case the more direct evidence of
"interest" on the part of the appealing Council member was overwhelming.
7. It might be noted, that pairs of Commissioners on the California Coastal Commission
frequently appeal local decisions to a hearing before their own body pursuant to Public
Resources Code Section 30625(a). Whether that practice has been challenged or not, it
would seem to me that in the face of the present opinion, a code amendment allowing
Council members and Planning Commissioners to appeal a matter to themselves without a
requirement for recusal opens the City to litigation to resolve the issue left unresolved in the
Woody's opinion.
8. The only recent appeal by a Planning Commissioner that comes readily to mind is the
vehicle lift item for the 441 Old Newport Blvd medical office building from May 8, 2014. In
that case, which seems to illustrate the possibility that a disinterested appeal can be made,
the primary issue seemed to be the need for oversight of the appropriateness of the Zoning
Administrator's decision in an area where the Municipal Code provided no clear policy
direction, and the Commissioner initiating the appeal ultimately voted to affirm the Zoning
Administrator's decision.
9. However, appeals of Planning Commission decisions by Council members seem much more
frequent, with the appealing Council member often appearing to act on behalf of aggrieved
constituents and to act as the principal advocate for overturning the PC decision.
10. In addition to the problems raised in the Woody's opinion, the entire concept of giving
special privileges to Council members or Planning Commissioners in Newport Beach seems
inconsistent with the City Charter. Specifically, Article IV creates a Council of seven that
acts by majority vote. I am unable to find anything that conveys any special power to any of
them as individuals based only their election to the Council, with the sole exception of the
Mayor (or Mayor Pro Tem acting as Mayor) who is designated as a policy spokesperson, but
not a special decision maker. In my view, Council members and Planning Commissioners
acting as individuals have no status different than that of any other citizen, and the Municipal
Code should not attempt to change that.
11. In my view, the current issue arises almost entirely because of the high financial cost placed
on initiating appeals in Newport Beach, and the fee exemption for Council and Commission
generated appeals is seen primarily as a way of avoiding that charge. I believe the City
would be better served, and much less vulnerable to future litigation, if Council members
Planning Commission - March 5, 2015
Item No. 5b: Additional Materials Received
March 5, 2015, PC agenda it p%WggnrYsall fg� I%Procedures CodgaAggigg Tent (PA2015-029)
and Planning Commissioners stayed completely out of the appeal-initiation process, leaving
that to truly interested parties who would then be in a position to make the case for the
appeal, as a Council member or Planning Commissioner cannot, or at least, as we have
learned, should not. For this to work, the financial barrier against truly interested parties
initiating an appeal needs to be lowered so they do not see a need to ask a Council member
or Planning Commissioner to make the appeal for them.
12. Specific comments about the legislation proposed in the March 3, 2015, supplement:
a. Section 20.50.030: 1 thought the reason for having Hearing Officers was to allow for
matters to be heard by an "impartial" person independent of"the City." I would have
to assume the restrictions on what could be appealed from a Hearing Officer's
decision in such matters as group homes reasonable accommodations was to
provide assurance to applicants that their matter would not be politicized and that the
decision could not be overturned unless it was capricious. Does removing the
"substantial evidence" review open those codes to even more litigation?
b. Section 20.64.030.A&B: The sole change introduced by the March 3 supplement
appears to be to delete the word "sole" from these two clauses. I assumed the
reason for the word was to emphasize that the person "calling for review" wanted the
whole body to review the matter, but (presumably) had no interest in the outcome.
No reason is offered for deleting it, and I see none. The deletion seems to leave
open the possibility the Council member or Planning Commissioner wants a review
by the whole body and has some other reason, such as being interested in the
outcome.
c. Section 20.64.030.B.3.a: What is the intended significance of the sentence tacked
onto the end of the second paragraph: "The body hearing a matter that is called for
review shall follow the same procedure applicable to the lower hearing"? Does the
absence of a similar sentence at the end of the first paragraph have any meaning?
d. Section 20.64.030.B.3.d: This existing provision, stating that appeals should be
confined to a review of the same application that was originally heard, is very much
in need of review quite separate from the appeal initiation issue. There is a long
history of applicants, after a denial by the Planning Commission, appealing to the
Council (either directly or with a fee waiver by convincing a Council member to make
the appeal for them) and then presenting a different application to the Council,
saying it overcomes all the Commission's objections (without any assurance from the
Commission that it does). This has led to loud objections from the public, for
example in the appeal of the Commission's Mariner's Pointe denial.
A better procedure would be for the Commission to deny the application without
prejudice, and then have any substantially revised application reheard by the
Commission to see if it does indeed overcome the original objections.
Planning Commission - March 5, 2015
Item No. 5b: Additional Materials Received
March 5, 2015, PC agenda it rVR%WggnCsall fyi6f %;%VrProcedures CocjqaAgpfgq Tent (PA2015-029)
As it is, the phrase "unless otherwise deemed relevant by the review authority" is
so open-ended as to render the promise to "consider the same application"
meaningless.
e. Section 20.64.030(C)(1): to quote from the Woody's opinion:
.'no force of effect [sic: obviously "or" instead of"of was meant] as of the date
the appeal is filed,"