HomeMy WebLinkAbout20 - Appeal and Call for Review Procedures Code AmendmentCTY OF
F
NEWPORT BEACH
City Council Staff Report
April 14, 2015
Agenda Item No. 20
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kimberly Brandt, Community Development Director — (949) 644 -3226,
kbrandt @newportbeachca.gov
PREPARED BY: Gregg Ramirez, Senior Planner
PHONE: (949) 644 -3219
TITLE: Appeal and Call for Review Procedures Code Amendment
ABSTRACT:
An amendment to Title 20 (Zoning Code) and various other sections of the Newport Beach Municipal Code
to clarify the appeals and call for review procedures for City Council Members, Planning Commissioners
and other appointed officials.
RECOMMENDATION:
a) Conduct a public hearing;
b) Find that the adoption of Code Amendment No. CA2015 -001 is not subject to the California
Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines;
c) Introduce Ordinance No. 2015 -8, An Ordinance of the City Council of the City of Newport Beach,
California, Amending Title 20 of the Newport Beach Municipal Code Related to Planning Commission and
City Council Appeals and Calls for Review (Staff Report Attachment No. CC 1), approving Code
Amendment No. CA2015 -001 as recommended by the Planning Commission, and pass to second reading
on April 28, 2015; and
d) Introduce Ordinance No. 2015 -9, An Ordinance of the City Council of the City of Newport Beach,
California, Amending Various Sections of the Newport Beach Municipal Code Related to Appeals and Calls
for Review (Staff Report Attachment No. CC 2), and pass to second reading on April 28, 2015.
FUNDING REQUIREMENTS:
There is no direct fiscal impact related to this item. See the following discussion regarding fees for more
information.
20 -1
DISCUSSION:
Background
A recent State of California Appellate Court decision determined the City's Municipal Code 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
the Zoning Code (Title 20). As part of staff's review of the Zoning Code, staff also identified and revised
various other sections in the Municipal Code to clarify the call for review procedures.
The Municipal Code identifies the review authority for various discretionary applications (e.g., Conditional
Use Permit, Variances, Modification Permits, Harbor Development Permits, etc.). For example, Chapter
20.64 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 a higher review authority. 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.
The call for review procedure allows a Commissioner or Council Member to call a decision up from a lower
body or officer to allow the entire body to consider the decision. The call for review procedure is free from
bias and provides explicit language regarding the ability to call an item up for consideration by a higher
body.
The Draft Ordinances and Administrative Drafts are contained in Attachment Nos. CC1, CC2 and CC3,
respectively.
Planning Commission Review and Recommendation of the Zoning Code Amendments
On March 5, 2015 the Planning Commission held a public hearing and discussed the proposed
amendments to the Appeals Chapter of the Zoning Code. Following the public hearing, the Commission
recommended approval of the proposed amendments, on a 7 -0 vote.
The proposed procedures differ from the existing procedures in two notable ways: the form of appeal and
required fees. Additionally, a change related to the review of Hearing Officer decisions is also
recommended to provide consistency with the procedures for Zoning Administrator and Planning
Commission decisions. The following discussion describes the recommended changes.
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 an objection to the height of a wall because it
would block sunlight coming into a neighbor's yard.
As recommended, a Council Member or Commissioner would not be required to provide any facts and
basis for the requested call for review. 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 will not express an opinion either for or against a project; instead the
request will be considered neutral and intended solely to allow a higher body to consider the decision.
Additionally, a Council Member or Commissioner would not be required to pay a fee in order to make such
a request.
Hearing Officer Decisions
In addition to the proposed changes stated above, the Commission is recommending an amendment to the
review procedures for Hearing Officer appeals. The existing code states that on appeal, the Council's
review is limited to as to whether the Hearing Officer's decision was supported by substantial evidence.
The Commission is recommending that the hearing be "de novo ", which means that everything may be
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considered by the appellate or review body. Conducting a de novo hearing is consistent with all other
appeal and call for review hearings in the Municipal Code.
Additionally, the Commission is recommending that when appealed or called for review, Hearing Officer
decisions would be forwarded to the Commission and not directly to the Council. As noted below, a
Commission decision could then be appealed or called for review to the Council.
ZA
Hearing Officer
CD Director
Fees
Appeal and Calls for Review — Chain of Review Authority
Planning City
Commission Council
Fees for City services, including appeals and call for review fees are adopted by the 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 are $0 (zero).
Alternatives
The Council has the option to
1) Modify the Zoning Code amendment as recommended by the Commission or other proposed
amendments as recommended by staff; or
2) Take no action on the Zoning Code amendment or other amendments, thereby maintaining the City's
existing procedures for appeals.
ENVIRONMENTAL REVIEW:
This action is covered by the general rule that California Environmental Quality Act (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)).
NOTICING:
Notice of this application to amend Title 20 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.
ATTACHMENTS:
Description
Attachment No.
CC 1 - Draft Ordinance Amending Title 20
Attachment No.
CC 2 - Draft Ordinance Amending Various Municipal Code Sections
Attachment No.
CC 3 - Administrative Drafts
Attachment No.
CC 4 - Planning Commission Resolution
Attachment No.
CC 5 - Planning Commission Minutes
Attachment No.
CC 6 - Planning Commission Staff Report
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Attachment No. CC 1
Draft Ordinance Amending Title 20
=I
ORDINANCE NO. 2015-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, AMENDING TITLE 20
OF THE NEWPORT BEACH MUNICIPAL CODE RELATED
TO PLANNING COMMISSION AND CITY COUNCIL
APPEALS AND CALLS FOR REVIEW (PA2015 -029)
WHEREAS, on February 10, 2015, the City Council of the City of Newport Beach
( "City ") initiated an amendment of the Zoning Code to clarify the process for Planning
Commission and City Council calls for review of decisions and appeals by lower review
authorities;
WHEREAS, 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 they would
follow the same appeal process as any interested party;
WHEREAS, a recent State of California Appellate Court decision suggested that
the City's Municipal Code may be ambiguous regarding calls for review by City Council
Members acting in their role as City Council Members;
WHEREAS, this code amendment codifies the call for review process for
Planning Commissioners and City Council Members when reviewing decisions made
under Title 20; and
WHEREAS, a public hearing was held by the Planning Commission on March 5,
2015 and by a vote of (7 -0), the Planning Commission, based upon the record and testimony
submitted at the hearing, recommended the City Council adopt Zoning Code Amendment No.
CA2015 -001 (PA2015 -029) to explicitly add language to the Municipal Code to allow Planning
Commissioners and City Council Members to call items up for review.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Section 20.50.030 of Title 20 (Zoning Code) of the Newport Beach
Municipal Code is hereby amended as follows:
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.
Section 2: Subsection 20.52.030(F)(2) of Title 20 (Zoning Code) of the
Newport Beach Municipal Code is hereby amended to read as follows:
Decisions of the review authority may be appealed or called for review in
compliance with Chapter 20.64.
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Section 3: Subsection 20.52.070(D)(1)(b) of Title 20 (Zoning Code) of the
Newport Beach Municipal Code is hereby amended to read as follows:
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.
Section 4: Chapter 20.64 of Title 20 (Zoning Code) of the Newport Beach
Municipal Code is hereby amended to read as follows:
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 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.
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 Commission.
B. Zoning Administrator. Decisions of the Zoning Administrator may be
appealed or called for review to the Commission.
C. Hearing Officer. Decisions of a Hearing Officer may be appealed or
called for review to the Planning Commission.
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 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
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20 -6
Council, in their official capacity, shall be submitted in writing and shall be
for the 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; 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.
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.
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.
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20 -7
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 action;
b. Adopt additional conditions of approval to address issues or concerns
raised during the hearing; or
C. Deny the permit approved by the previous review authority, even
where the appellant, if 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 City Council 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 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.
Section 5: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 6: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
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M
subsection, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared unconstitutional.
Section 7: The City Council finds the introduction and approval of this
ordinance 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 8: Except as expressly modified in this ordinance, all other Sections,
Subsections, terms, clauses and phrases set forth in the Newport Beach Municipal
Code shall remain unchanged and shall be in full force and effect.
Section 9: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance to be published pursuant to
City Charter Section 414, and it shall be effective thirty (30) days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 14'h day of April, 2015, and adopted on the 28'h day of
April, 2015, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
iM
ATTEST:
EDWARD D. SELICH
LEILANI I. BROWN, CITY CLERK
021 •
Page 15
`r
Attachment No. CC 2
Draft Ordinance Amending Various
Municipal Code Sections
20 -10
ORDINANCE NO. 2015-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, AMENDING VARIOUS
SECTIONS OF THE NEWPORT BEACH MUNICIPAL CODE
RELATED TO APPEALS AND CALLS FOR REVIEW
WHEREAS, a recent State of California Appellate Court decision suggested that
the City of Newport Beach's ( "City ") Municipal Code may be ambiguous regarding calls
for review by City Council Members acting in their role as City Council Members;
WHEREAS, on February 10, 2015, the City Council initiated an amendment of
the Zoning Code to clarify the process for Planning Commission and City Council calls
for review of decisions and appeals by lower review authorities;
WHEREAS, as part of staff's review of the Zoning Code, staff reviewed the
entirety of the Municipal Code to clarify the call for review process; and
WHEREAS, staff recommends the City Council amend the Municipal Code to
clarify the procedure by which higher bodies call items up for review.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Exhibit "A" in Section 3.36.030 of the Newport Beach Municipal
Code is hereby amended to read as follows:
Exhibit A
The City's cost of providing the following services shall be recovered
through direct fees charged for services in the percentages or dollar
amounts indicated.
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Building
Preliminary Plan Review
75%
Planning
Appeals to City Council
50%
P 102FE1
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Appeals to Planning
Commission
50%
Recreation and Senior
Services
Adult Sports
Adult Sports
62%
Adult Drop -In Sports
15%
Rentals
50%
Badge Replacement
45%
After School /Camp Programs
Camps
40%
After - School /Teen
Program
20%
Pre - School Program
40%
Aquatics
20%
Contract Classes
60%
Class Refunds
$74 or less
29%
$75 or more
59%
Youth Sports
25%
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20 -12
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Special Events— Levels 1, 2,
and 3
Resident
Up to 45 %
Nonresident
Up to 85%
Appeal to City Council
25%
Senior Services
Oasis Transportation
5%
Contract Classes
50%
Oasis Rentals
45%
Fitness Center
50%
Marine Environment
Services — Marine Preserve
Tours
15%
Library Services
Meeting Room Rentals
1%
Rentals — Materials
20%
Inter - Library Loan
10%
Fire and Marine
Emergency Operations
Services
Advanced Life
Up to 80%
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20 -13
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Support— Escorted
Advanced Life
Support—Not Escorted
Up to 80%
Basic Life Support—
Escorted
Up to 80%
Basic Life Support—Not
Escorted
Up to 80%
State - Mandated Inspections
Day Care Facilities
25%
Marine
Junior Guards
82.1%
Police
Initial Concealed
Weapons Permit
Maximum
Permitted by Law
Concealed Weapon
Permit Renewal
Maximum
Permitted by Law
Bike Licenses
17%
Subpoena Duces Tecum
Maximum
Permitted by Law
Vehicle Release
91%
Domestic Violence
Reports
0%
Page 14
20 -14
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Missing Persons Report
0%
Second Hand /Pawn
Dealer Tag Check
0%
Registrant —Sex
0%
Registrant— Narcotics
0%
Public Works
Engineering
Encroachment Permit
without Traffic Engineer Review
88%
Encroachment Permit
with Traffic Engineer Review
57%
Appeal of Lease /Permit
under Section 17.60.080
$100
Finance
Parking Reviews
0%
Parking Hearings
0%
Admin. Cite Hearings
0%
Municipal Operations
Construction Water
Meter Establishment
30%
Page 15
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Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
City Council, Board,
Commission, Committee or
Any Individual Member
Thereof when Acting within
the Scope of Their Official
Duties
Review from a Lower
$0
Body or Official
Section 2: Section 5.12.080 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.12.080 Grounds for Revocation.
Any certificate or permit granted under the provisions of this chapter may
be revoked by the City Manager, either as a whole or as to any person or
vehicle described therein or as to the right to use any distinctive color,
monogram or insignia, for any of the following reasons:
A. That the document required by Section 5.12.070 has not been filed or
has been withdrawn or lapsed or is not in force for any reason.
B. For the nonpayment of any City business license or other fees
provided by this title.
C. For the breach of any rules, regulations or conditions set out in this
Code or the certificate.
D. For the violation of any of the laws of the State of California or the
City with respect to the operation of the business by any certificate holder,
or repeated violations by operators or drivers of any vehicle covered by
such certificate.
E. For failure to maintain satisfactory service to the public, or for failure
to keep any such vehicle in a safe and sanitary condition and good repair,
or for failure to use the distinctive coloring, monogram or insignia
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20 -1s
described in the application, or for deviation from the schedule or rates
and fares set forth in the application.
F. For any cause which the City Council finds makes it contrary to the
public health, interest, convenience, necessity or general welfare for the
certificate or permit to be continued.
In any such case, the certificate or permit holder shall have the right to
appeal to the City Council or a member of the City Council may call an
item for review in a time and manner set forth in this section.
When the City Manager concludes that the grounds for revocation of a
certificate or permit exists, the City Manager shall serve the certificate or
permit holder, either personally or by certified mail addressed to the
business address of the certificate or permit holder, with a notice of
revocation of the certificate or permit. The notice shall state the reasons
for the revocation, the effective date of revocation if no appeal is filed by
the certificate or permit holder, and the right of the certificate or permit
holder to appeal to the City Council and the decision to revoke the
certificate or permit.
If an applicant is aggrieved by any action of the City Manager in revoking
any certificate or permit under this chapter, such applicant may appeal to
the City Council by filing with the City Clerk a statement addressed to the
City Council setting forth the facts and circumstances regarding the action
of the City Manager. A member of the City Council, in their official
capacity, may call for review any action of the City Manager under this
chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review shall be filed with the City Clerk on a form
provided by the Clerk. The City Clerk shall notify the applicant in writing of
the time and place set forth the hearing on his or her appeal or a call for
review.
The right to appeal to the City Council or file a call for review from the
revocation of any certificate or permit required by this chapter shall
terminate upon the expiration of fifteen (15) days following the deposit of a
certified letter in the United States Post Office advising the applicant of the
action of the City Manager and of his or her right to appeal such action to
the Citv Council.
The City Council of the City of Newport Beach may preside over the
revocation hearing or, in the alternative, appoint a hearing officer to
conduct the hearing, receive relevant evidence and to submit to the City
Council findings and recommendations to be considered by the City
Council of the City of Newport Beach. The City Council shall preside over
call for review hearings. The City Council of the City of Newport Beach
shall render its decision within forty -five (45) days from the date of the
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hearing or, in the event that a hearing officer has been appointed within
forty -five (45) days on which the City Council receives the findings and
recommendations of the hearing officer. The decision of the City Council
shall be final.
Section 3: Section 5.14.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.14.070 Termination or Suspension of Agreement.
A. The City Manager may terminate or suspend the agreement on one
or more of the following grounds:
1. The certificate holder has not filed adequate evidence of insurance
coverage with the City Clerk, or has allowed its insurance coverage to
lapse or be canceled; or
2. The violation of any rule, regulation or condition set forth in or
authorized by this chapter; or made a condition of the agreement; or
3. The violation of any laws of the State of California, County of Orange,
or City with respect to the operation of the business by the contractor, or
repeated violations by employees of the contractor; or
4. Failure to maintain satisfactory service to the public, or for failure to
keep any ambulance in a safe and sanitary and fully operational condition,
or for deviation from the schedule of rates approved by the City Council; or
5. The lapse or loss of any license, permit or other approval necessary
to the services provided pursuant to the agreement; or
6. Unethical conduct or malpractice by contractor or its employees as
determined either by a court of competent jurisdiction or by such review
processes as are, or may be established by Chapter 5.14 of the Newport
Beach Municipal Code; or
7. The breach by contractor of any provision of the agreement.
In any such case, the certificate holder shall have the right to appeal to the
City Council or a member of the City Council may call an item for review in
the time and manner set forth in this section.
B. When the City Manager concludes that grounds for termination or
suspension exist, the City Manager shall serve the contractor, either
personally or by certified mail addressed to the business address of the
contractor, with a notice of intent to terminate or suspend the agreement.
This notice shall state the reasons for the proposed termination or
suspension, the right to appeal and effective date of the termination or
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suspension, if no appeal is filed by contractor. A member of the City
Council, in their official capacity, may call for review any action of the City
Manager under this chapter for the purpose of bringing the matter in front
of the entire body for review. A call for review shall be filed with the City
Clerk on a form provided by the Clerk. The right to appeal to the City
Council or call an item for review shall terminate upon the expiration of
fifteen (15) days following the personal service or deposit of the notice of
intent to terminate or suspend the agreement in the United States mail,
whichever shall occur first.
The City Council may preside over the hearing on appeal, or, in the
alternative, appoint a hearing officer to conduct the hearing, receive
relevant evidence and to submit to the City Council findings and
recommendations to be considered by the City Council. The City Council
shall preside over a call for review hearing. The City Council shall render
its decision within forty -five (45) days from the hearing or the date on
which the City Council receives the findings and recommendations of the
hearing officer. The decision of the City Council shall be final.
Section 4: Subsection 5.20.050(H) of the Newport Beach Municipal Code is
hereby amended to read as follows:
H. Appeal or Call for Review. Any person aggrieved by the action of the
Chief of Police or the City Manager in the denial of an application for
permit or renewal of permit as provided heretofore, shall have the right of
appeal to the City Council of the City of Newport Beach. Such appeal shall
be taken by filing with the City Council within fourteen (14) days after
notice of the action complained of has been mailed to such person's last
known address, a written statement setting forth fully the grounds for
appeal. A member of the City Council, in their official capacity, may call for
review any action of the Chief of Police or the City Manager in the denial
of an application for permit or renewal of permit for the purpose of bringing
the matter in front of the entire body for review. A call for review shall be
filed with the City Clerk on a form provided by the Clerk, within fourteen
(14) days after notice of the action of the Chief of Police or the City
Manager has been mailed to such person's last known address. The City
Council shall set a time and place for a hearing of such appeal or call for
review and notice of such hearing shall be given to the appellant, if any, in
the same manner as provided in subsection (G) of this section for notice of
hearing on revocation. The decision of the City Council on such appeal or
call for review shall be final and conclusive.
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Section 5: Section 5.28.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.28.070 Appeals and Calls for Review.
A. If an applicant is aggrieved by any action or failure to act upon the
part of the City Manager in issuing, failing to issue, suspending or revoking
any permit under this chapter, such applicant may appeal to the City
Council by filing with the City Clerk a statement addressed to the City
Council setting forth the facts and circumstances regarding the action or
failure to act on part of the City Manager. A member of the City Council, in
their official capacity, may call for review any action on a permit by the City
Manager under this chapter for the purpose of bringing the matter in front
of the entire body for review. A call for review shall be filed with the City
Clerk on a form provided by the Clerk. The City Clerk shall notify the
applicant in writing of the time and place set for the hearing on his or her
appeal or call for review.
B. The right to appeal to the City Council from the denial, suspension or
revocation of any permit, or a call for review regarding the same, required
by this chapter shall terminate upon the expiration of fifteen (15) days
following the deposit of a certified letter in the United States Post Office
advising the applicant of the action of the City Manager and of his or her
right to appeal such action to the City Council.
C. The hearing shall be held within twenty (20) days of the receipt by
City Clerk of the appeal or call for review, or at the next regularly
scheduled Council meeting, whichever is sooner.
D. The City Council of the City of Newport Beach may preside over the
hearing on appeal or, in the alternative, appoint a hearing officer to
conduct the hearing, receive relevant evidence and to submit to the City
Council findings and recommendations to be considered by the City
Council of the City of Newport Beach. The City Council shall preside over
a call for review hearing. The City Council of the City of Newport Beach
shall render its decision within five (5) days from the date of the hearing
or, in the event that a hearing officer has been appointed, within five (5)
days on which the City Council receives the findings and
recommendations of the hearing officer. The decision of the City Council
shall be final.
Section 6: Section 5.32.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.32.070 Appeals and Calls for Review.
If an applicant is aggrieved by any action or failure to act upon the part of
the City Manager in issuing, failing to issue, suspending or revoking any
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permit under this chapter, such applicant may appeal to the City Council
by filing with the City Clerk a statement addressed to the City Council
setting forth the facts and circumstances regarding the action or failure to
act on the part of the City Manager. A member of the City Council, in their
official capacity, may call for review any action of the City Manager under
this chapter for the purpose of bringing the matter in front of the entire
body for review. A call for review is exempt from the payment of a fee and
shall be filed with the City Clerk on a form provided by the Clerk. The City
Clerk shall notify the applicant in writing by registered mail of the time and
place set for hearing his appeal or a call for review. The City Council at its
next regular meeting held not less than five (5) days from the date on
which such appeal or call for review shall have been filed with the City
Clerk shall hear the applicant, the City Manager, and all relevant evidence.
The City Council may sustain, overrule or modify the action of the City
Manager, and the decision of the City Council shall be final.
The right to appeal to the City Council from the denial, suspension or
revocation of any permit required by this chapter or call an item for review
shall terminate upon the expiration of fifteen (15) days following the
deposit of a registered letter in the United States Post Office advising the
applicant of the action of the City Manager and of his right to appeal such
action to the City Council.
Section 7: Section 5.46.060 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.46.060 Appeal or Call for Review.
A. Decision of Film Liaison. Any person aggrieved by the decision of the
Film Liaison shall have the right to appeal the approval or disapproval of
the application to the City Manager within five (5) calendar days after
notice of the decision of the Film Liaison is mailed. The City Manager shall
review the application de novo and shall render a decision within fourteen
(14) days.
B. Decision of City Manager. Any person aggrieved by the City
Manager's decision shall have the right to appeal the approval or
disapproval of the application to the City Council within five (5) calendar
days after notice of the decision is mailed. The City Council shall review
the application de novo and act upon the appeal within sixty (60) days
after the filing thereof.
C. Call for Review. A member of the City Council, in their official
capacity, may call for review any action of the Film Liaison or City
Manager under this chapter for the purpose of bringing the matter in front
of the entire body for review. A call for review shall be filed with the City
Clerk, on a form provided by the Clerk, within five (5) calendar days after
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notice of the decision is mailed. The City Council shall review the
application de novo and act upon the call for review within sixty (60) days
after the filing thereof.
Section 8: Section 5.46.080 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.64.080 Suspension, Revocation, Denial, Appeal, and Call for
Review.
A. Violation and Noncompliance. The Chief of Police may refuse to
renew a permit or may revoke or suspend an existing permit on the
grounds that the applicant or permit holder has failed to comply with the
permit conditions or other requirements of this chapter. If a suspended
permit lapses during the suspension period, a new application must be
made at the end of the suspension period. In any such case, the applicant
or permit holder shall have the right to appeal to the City Council or a
member of the City Council may call an item for review in the time and
manner set forth in this section. A member of the City Council, in their
official capacity, may call for review any action of the Chief of Police under
this chapter for the purpose of bringing the matter in front of the entire
body for review.
B. Revocation, Suspension or Denial of Renewal of Holistic Health
Practitioner Permit.
1. The Chief of Police may revoke or refuse to renew a holistic health
practitioner and operator permit if he or she makes any of the findings for
denial of a permit under Section 5.64.040, 5.64.070(A)(5), or upon any
subsequent violation of any provision within one year following prior
suspension under subsection two below, or upon demonstrated inability,
to operate or manage the holistic health establishment in a law abiding
manner, thus necessitating action by law enforcement officers;
2. The Chief of Police may suspend a holistic health practitioner and
operator permit for a period of thirty (30) days for each violation of Section
5.64.070.
3. The Chief of Police may also take action to suspend, revoke or deny
renewal of a holistic health practitioner operator permit when actions by
employees violate specified sections, in accordance with Chapters 5.50
and 5.64 of this Code.
C. Notice. When the Chief of Police concludes that grounds for denial,
suspension, revocation or refusal to renew a permit exist, the Chief of
Police shall serve the applicant or permit holder, either personally or by
certified mail, addressed to the business or residence of applicant or
permit holder listed on the application, with a notice of denial or notice of
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intent to suspend, revoke or refuse to renew permit. This notice shall state
the reasons for the proposed action, the effective date of the decision if no
appeal is filed by applicant or permit holder or a call for review is filed by a
member of the City Council and the right of the applicant or permit holder
to appeal to the City Council and the decision of the Chief of Police.
D. Appeal or Call for Review. The right to appeal to the City Council or
call an item for review shall terminate upon the expiration of fifteen (15)
days following the date of the notice. The City Council of the City may
preside over the hearing on appeal or, in the alternative, the City Manager
may appoint a hearing officer to conduct a hearing, receive relevant
evidence and to submit to the City Council findings and recommendations
to be considered by the City Council. The City Council shall preside over
call for review hearings. The City Council shall render its decision within
forty -five (45) days from the date of the hearing or, in the event that a
hearing officer has been appointed, within forty -five (45) days from the
date on which the City Council receives the findings and
recommendations of the hearing officer. The decision of the City Council
shall be final.
Section 9: Section 5.70.055 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.70.055 Appeals and Calls for Review.
The City Council shall have the power to hear and decide appeals based
upon the enforcement or interpretation of the provisions of this chapter.
Any permittee or owner who is aggrieved by any decision of the City
Manager may appeal that decision by submitting a written notice of appeal
to the City Clerk within twenty -one (21) days of the date on which notice of
the decision was mailed. A member of the City Council, in their official
capacity, may call for review any action of the City Manager under this
chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review shall be filed with the City Clerk, on a form
provided by the Clerk, within twenty -one (21) days of the date on which
the notice of the decision was mailed. The City Council may preside over
the hearing on appeal or may designate a hearing officer to take evidence
and submit a proposed decision together with findings, within fifteen (15)
days from the date of the hearing. The City Council shall preside over the
hearing for a call for review. The City Council shall, within thirty (30) days
from the date of the hearing, render its decision on the appeal or call for
review, together with findings. The decision of the City Council shall be
final.
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Section 10: Section 5.80.050 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.80.050 Revocation or Denial of License.
The City Manager may refuse to issue or to renew a license or may
revoke or suspend an existing license on any of the following grounds:
1. The applicant or license holder has failed to comply with any of the
provisions of the California Penal Code.
2. The applicant or license holder has failed to comply with applicable
provisions of the Newport Beach Municipal Code.
3. The applicant or license holder has failed to comply with applicable
Federal firearms laws and regulations.
4. The applicant or license holder has made a material false, misleading,
or fraudulent statement of fact to the City in the permit application process.
In any such case, the applicant or license holder shall have the right to
appeal to the City Council or a member of the City Council may call an
item for review in the time and manner set forth in this section.
When the City Manager concludes that grounds for suspension or
revocation or refusal to renew a license exists, the City Manager shall
serve the applicant or license holder, either personally or by certified mail
addressed to the business address of the applicant or license holder, with
a notice of intent to suspend or revoke or refuse to renew the license. This
notice shall state the reasons for the proposed suspension, revocation, or
refusal to renew, the effective date or if no appeal is filed by applicant or
license holder, and the right of the applicant or license holder to appeal to
the City Council and the decision of the City Manager to suspend, revoke
or refuse to renew the license. A member of the City Council, in their
official capacity, may call for review any action of the City Manager under
this chapter for the purpose of bringing the matter in front of the entire
body for review. A call for review shall be filed with the City Clerk on a
form provided by the Clerk. The right to appeal to the City Council or call
an item for review shall terminate upon the expiration of fifteen (15) days
following the personal service or deposit of the notice of intent to suspend
or revoke or refuse to renew the license in the United States Mail,
whichever shall occur first.
The City Council of the City of Newport Beach may preside over the
hearing on appeal or, in the alternative, appoint a hearing officer to
conduct the hearing, receive relevant evidence and to submit to the City
Council findings and recommendations to be considered by the City
Council of the City of Newport Beach. The City Council shall preside over
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a hearing for a call for review. The City Council shall render its decision
within forty -five (45) days from the date of the hearing or, in the event that
a hearing officer has been appointed, within forty -five (45) days from the
date on which the City Council receives the findings and
recommendations of the hearing officer. The decision of the City Council
shall be final.
Section 11: Section 5.90.090 of the Newport Beach Municipal Code is hereby
amended to read as follows:
5.90.090 Suspension, Revocation, Denial, Appeal, and Call for
Review.
The City Manager may refuse to renew a permit or may revoke or
suspend an existing permit on the grounds that the applicant or permit
holder has failed to comply with the permit conditions or other
requirements of this chapter. No suspended permit may be renewed. If a
suspended permit lapses during the suspension period, anew application
must be made at the end of the suspension period. In any such case, the
applicant or permit holder shall have the right to appeal to the City Council
or a member of the City Council may call an item for review in the time
and manner set forth in this section.
When the City Manager concludes that grounds for suspension,
revocation or refusal to renew a permit exist, the City Manager shall serve
the applicant or permit holder, either personally or by certified mail
addressed to the business address of applicant or permit holder, with a
notice of intent to suspend, revoke or refuse to renew permit. This notice
shall state the reasons for the proposed revocation, the effective date of
the revocation if no appeal is filed by applicant or permit holder, and the
right of the applicant or permit holder to appeal to the City Council and the
decision of the City Manager to suspend, revoke or refuse to renew the
permit. A member of the City Council, in their official capacity, may call for
review any action of the City Manager under this chapter for the purpose
of bringing the matter in front of the entire body for review. A call for
review shall be filed with the City Clerk on a form provided by the Clerk.
The right to appeal to the City Council or call an item for review shall
terminate upon the expiration of fifteen (15) days following the personal
service or deposit of the notice of intent to suspend, revoke, or refuse to
renew permit in the United States Mail, whichever shall occur first.
The City Council of the City of Newport Beach may preside over the
hearing on appeal or, in the alternative, appoint a hearing officer to
conduct the hearing, receive relevant evidence and to submit to the City
Council findings and recommendations to be considered by the City
Council of the City of Newport Beach. The City Council shall preside over
a hearing for a call for review. The City Council shall render its decision
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within forty -five (45) days from the date of the hearing or, in the event that
a hearing officer has been appointed, within forty -five (45) days from the
date on which the City Council receives the findings and
recommendations of the hearing officer. The decision of the City Council
shall be final.
Section 12: Subsection 5.96.045(D) of the Newport Beach Municipal Code is
hereby amended to read as follows:
D. Appeal or Call for Review. Any person aggrieved by a decision to
revoke a permit under this chapter may file an appeal with the City Clerk
within ten (10) days of the decision. The request for the appeal shall state
the grounds upon which the appeal is based. A member of the City
Council, in their official capacity, may call for review any decision to
revoke a permit under this chapter for the purpose of bringing the matter in
front of the entire body for review. A call for review is exempt from the
payment of a fee and shall be filed with the City Clerk on a form provided
by the Clerk. Upon receipt, the City Clerk shall schedule an appeal or call
for review hearing before the City Council or an appointed hearing officer
and shall provide written notice of the time, date and location of the
hearing to the applicant. The City Council shall hear all calls for review.
The hearing shall be held no later than forty -five (45) days from the date
the request for the appeal or call for review is received by the City Clerk.
The City Council shall determine whether grounds for revocation of the
adult- oriented business permit exists and shall render their decision at the
conclusion of the hearing or upon recommendation of the hearing unless
the applicant otherwise consents to a continuance.
Section 13: Section 7.08.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
7.08.070 Appeals and Calls for Review.
If any person is aggrieved by any action of the City Manager taken
pursuant to this chapter, such person may appeal to the City Council by
filing with the City Clerk a statement addressed to the City Council setting
forth the facts and circumstances regarding the action or failure to act on
the part of the City Manager. A member of the City Council, in their official
capacity, may call for review any action of the City Manager under this
chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review is exempt from the payment of a fee and shall be
filed with the City Clerk on a form provided by the Clerk. The City Clerk
shall notify the applicant in writing by registered mail of the time and place
set for hearing his appeal or a call for review. The City Council at its next
regular meeting held not less than five (5) days from the date on which
such appeal or call for review shall have been filed with the City Clerk,
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shall hold a hearing. The City Council may sustain, overrule or modify the
action of the City Manager and its decision shall be final.
The right to appeal to the City Council from any action or decision of the
City Manager or the right to file a call for review under this chapter shall
terminate upon the expiration of fifteen (15) days following the giving of
notice to the applicant advising him or her of the action of the City
Manager.
Section 14: Section 10.50.080 of the Newport Beach Municipal Code is hereby
amended to read as follows:
10.50.080 Appeal and Call for Review.
A. The decision of the City Manager may be appealed to the Appeals
Board by the owner or any person owning property within three hundred
(300) feet of the property that was the subject of the hearing or may be
called for review by a member of the City Council. The appeal or call for
review must be filed with the City Clerk no more than ten (10) days after
the date of the posting and service of the order and the appeal must be
accompanied by the fee established by resolution. A call for review by a
member of the City Council is exempt from the payment of a fee. The
order of abatement shall be suspended pending action of the Appeals
Board if an appeal or call for review is filed. B. The notice of appeal shall
specify:
1. A description of the property;
2. The proceedings that are the subject of the appeal;
3. The standing of the appellant;
4. A statement of disputed and undisputed facts;
5. A statement specifying the portion of the abatement proceedings
being appealed together with any evidentiary or supporting materials that
would support the appeal; and
6. A verification of the truth of all matters asserted in the appeal.
C. A call for review initiated by a member of the City Council, in their
official capacity, shall be for the purpose of bringing the matter in front of
the entire body for review.
D. Assuming the timely filing of a notice of a proper appeal or call for
review, the City Clerk shall place the appeal or call for review on the
agenda of a regular meeting of the City Council scheduled to be held
within thirty (30) days after the appeal or call for review is filed. The City
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Clerk shall provide written notice of the appeal or call for review, including
the time, place and date of the hearing on the appeal or call for review, to
the appellant, if any, and any other person to whom notice of the City
Manager's order was sent. The notice shall be sent in the same manner
as notice of hearing. The Appeals Board may limit the issues on appeal to
those raised in the notice of appeal. A call for review is de novo. The
Appeals Board shall declare its findings by resolution and in the event a
nuisance is declared, uphold or modify the order of the Hearing Officer
and order the owner to abate the nuisance. A copy of the resolution shall
be posted on the property and sent to all persons to whom, and in the
same manner, notice of the City Manager's order was sent and to all
persons who have, in writing, requested notice at or before the hearing on
the appeal or call for review.
Section 15: Subsection 11.03.060(H) of the Newport Beach Municipal Code is
hereby amended to read as follows:
H. Appeals or Calls for Review of City Manager Decision. The City
Manager's decision under subsection F or G above shall be rendered
within ten days of his or her consideration of the appeal or special review.
The City Manager shall approve the application unless he or she makes
one or more of the findings for denial set out in subsection 4 of Section
11.03.060(E), in which case the City Manager may deny the application. In
approving a special event permit, the City Manager may impose
conditions of approval, as set out in subsection 5 of Section 11.03.060(E).
The City Clerk shall notify the Applicant in writing within five days of the
City Manager's decision. The City Manager's decision on an appeal under
subsection F above for all Level 2 permits shall be final. The City
Manager's decision under subsection G above, and on all Level 3 permits
may be appealed or called for review pursuant to Section 11.03.100.
Section 16: Section 11.03.100 of the Newport Beach Municipal Code is hereby
amended to read as follows:
11.03.100 Appeals and Calls for Review.
If an applicant is aggrieved by any decision of the City Manager under this
chapter, the applicant may appeal to the City Council by filing with the City
Clerk a statement addressed to the City Council setting forth the facts and
circumstances regarding the City Manager's decision and the basis for the
appeal. The appeal shall be accompanied by a fee as established by
resolution of the City Council. A member of the City Council, in their official
capacity, may call for review any action of the City Manager under this
chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review is exempt from the payment of a fee and shall be
filed with the City Clerk on a form provided by the Clerk. The City Clerk
shall provide written notification of the time and place set for hearing the
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appeal or call for review. The City Council at its next regular meeting held
not less than ten (10) days from the date on which the appeal or call for
review was filed with the City Clerk, shall hear the appeal or call for review
and all relevant evidence. The City Council may sustain, overrule or
modify the action of the City Manager, and decision of the City Council
shall be final.
The right to appeal or call an item for review shall terminate upon the
expiration of ten (10) days following personal delivery to the applicant or
the deposit of a letter in the United States mail advising the applicant of
the action of the City Manager.
Section 17: Section 12.62.040 of the Newport Beach Municipal Code is hereby
amended to read as follows:
12.62.040 Appeal and Call for Review.
If an applicant is aggrieved by any action or failure to act upon the part of
the City Manager in issuing, falling to issue, suspending or revoking any
permit under this chapter, such applicant may appeal to the City Council
by filing with the City Clerk a statement addressed to the City Council
setting forth the facts and circumstances regarding the action or failure to
act on the part of the City Manager. A member of the City Council, in their
official capacity, may call for review any action of the City Manager in
issuing, failing to issue, suspending, or revoking any permit under this
chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review shall be filed with the City Clerk on a form
provided by the Clerk. The City Clerk shall notify the applicant in writing
by certified mail of the time and place set for hearing his appeal or call for
review. The City Council at its next regular meeting held not less than five
(5) days from the date on which such appeal or call for review shall have
been filed with the City Clerk shall hear the applicant, the City Manager,
and all relevant evidence. The City Council may sustain, overrule or
modify the action of the City Manager, and the decision of the City Council
shall be final.
The right to appeal or call an item for review regarding the denial,
suspension or revocation of any permit required by this chapter shall
terminate upon the expiration of fifteen (15) days following the deposit of a
certified letter in the United States Post Office advising the applicant of the
action of the City Manager and of his right to appeal such action to the
City Council.
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Section 18: Section 12.64.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
12.64.070 Appeal or Call for Review.
Any person whose application for a permit is denied or revoked may
appeal such decision to the City Council by filing a written notice of appeal
with the City Clerk within ten (10) days after notification by the Chief of
Police that said permit has been denied. A member of the City Council, in
their official capacity, may call for review any decision of the Chief of
Police under this chapter by filing written notice with the City Clerk within
ten (10) days after the Chief of Police's decision. A call for review shall be
for the purpose of bringing the matter in front of the entire body for review.
The City Council shall thereupon conduct a hearing on said appeal or call
for review within thirty (30) days from the date of filing said notice of
appeal or call for review with the City Clerk. The decision of the City
Council shall be final and conclusive upon all persons concerned.
Section 19: Section 13.01.080 of the Newport Beach Municipal Code is hereby
amended to read as follows:
13.01.080 Appeal or Call for Review.
Any applicant aggrieved by a decision of the Public Works Director shall
have the right to appeal the decision to the City Council by filing written
notice of appeal, the appeal must be filed with the City Clerk within ten
(10) days from the date on which notice of the decision is deposited in the
U.S. Mail, postage prepaid and addressed to the parties as provided on
the application for permit. A member of the City Council, in their official
capacity, may call for review any decision of the Public Works Director
under this chapter by filing written notice with the City Clerk within ten (10)
days from the date on which notice of the decision is deposited in the U.S.
Mail, postage prepaid and addressed to the parties as provided on the
application for permit. A call for review shall be for the purpose of bringing
the matter in front of the entire body for review. The City Council shall,
within thirty (30) days from the date on which an appeal is received or a
call for review is filed, schedule a hearing on the appeal or call for review
within a reasonable period of time. The City Council may preside over the
hearing on appeal, or may designate a hearing officer to take evidence
and submit a proposed decision, together with findings, to the City Council
within fifteen (15) days from the date of the hearing. The City Council shall
hear all decisions called for review. The City Council shall render its
decision within thirty (30) days from the date of the hearing, and the
decision of the City Council shall be final.
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Section 20: Section 13.05.040 of the Newport Beach Municipal Code is hereby
amended to read as follows:
13.05.040 Appeal and Call for Review.
If any person is aggrieved by any decision of the City Manager in acting
upon an application for waiver, he may take an appeal to the City Council
by filing a written statement setting forth the grounds of appeal with the
City Clerk. A member of the City Council, in their official capacity, may call
for review any decision of the City Manager in acting upon an application
for a waiver for the purpose of bringing the matter in front of the entire
body for review. A call for review shall be filed with the City Clerk on a
form provided by the Clerk. The City Clerk shall notify the applicant of the
time and place set for the hearing by registered mail.
The right to appeal or call for review a decision of the City Manager shall
terminate upon the expiration of fifteen (15) days following the deposit of a
registered letter in the United States Mail advising the applicant of the
action of the City Manager and of his right to appeal such action to the
City Council.
Section 21: Section 13.06.060 of the Newport Beach Municipal Code is hereby
amended to read as follows:
13.06.060 Closure as .Condition of Building Department Approval.
No final approval or certificate of occupancy shall be given by the
Community Development Department for the completion of any work
involving the construction, alteration, enlargement or demolition of any
building on any lot or parcel of property until all curb cuts and driveway
approaches, which the Public Works Director has determined are no
longer needed or used for reasonable vehicular access to said property,
are altered or removed in accordance with the determination of the Public
Works Director and the City's Standard Plans and Specifications for Public
Works. The foregoing requirement may be satisfied by a written
agreement to do any such work, executed by the property owner or lessee
and the Public Works Director, and secured by a bond, letter of credit or
other security, approved by the City Attorney. Any decision of the Public
Works Director made pursuant to this section may be appealed to the City
Council or called for review.
Section 22: Section 13.06.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
13.06.070 Right of Appeal and Call for Review.
Any person who objects to or disagrees with any decision of the Public
Works Director which is made pursuant to this chapter shall have the right
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to appeal to the City Council by filing written notice of appeal with the City
Clerk within thirty (30) days after receiving notice of the decision of the
Public Works Director. A member of the City Council, in their official
capacity, may call for review any decision of the Public Works Director
which is made pursuant to this chapter by filing written notice of appeal
with the City Clerk within thirty (30) days after the decision of the Public
Works Director. A call for review shall be for the purpose of bringing the
matter in front of the entire body for review. Upon receiving such a notice
of appeal or call for review, the City Clerk shall set the appeal or call for
review for hearing by the City Council at a meeting not more than thirty
(30) days thereafter, and shall advise the appellant, if any, of the date,
time and place on which the appeal or call for review will be heard at least
ten (10) days prior to such date. On the date of the hearing, the City
Council shall proceed to hear and pass upon the appeal or call for review,
and its decision thereon shall be final and conclusive. The City Clerk shall
notify the property owner by mail of the decision of the City Council.
Section 23: Section 13.07.040 of the Newport Beach Municipal Code is hereby
amended to read as follows:
13.07.040 Performance of Work by City.
Unless the work required by such notice to replace shall be commenced
by the owner within sixty (60) days after mailing said notice, and shall be
diligently prosecuted to completion, or in case of an appeal to the City
Council or call for review within thirty (30) days from the date of its
decision on the appeal or call for review, unless such appeal or call for
review shall be resolved in favor of the property owner, the Public Works
Director shall cause said work to be done, in which case the cost and
expense thereof will be assessed against the property benefitted and
become a lien upon such property. However, if upon appeal to the City
Council or call for review, the work required to be done by the notice to
replace is modified, the Public Works Director shall be governed by such
modification in performing the work.
Section 24: Section 13.07.070 of the Newport Beach Municipal Code is hereby
amended to read as follows:
13.07.070 Right of Appeal and Call for Review.
Any property owner who objects to or disagrees with any determination of
the Public Works Director rendered pursuant to Section 13.07.010 of this
chapter shall have the right to appeal to the City Council within fifteen (15)
days from the date of mailing of the notice to replace by the Public Works
Director by filing a written notice of appeal with the City Clerk. A member
of the City Council, in their official capacity, may call for review any
determination of the Public Works Director rendered pursuant to Section
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13.07.010 of this chapter within fifteen (15) days from the date of the
mailing of the notice to replace by the Public Works Director by filing a
written notice with the City Clerk. The call for review shall be for the
purpose of bringing the matter in front of the entire body for review. Upon
receiving such notice of appeal or call for review, the City Clerk shall set
the appeal or call for review for hearing by the City Council at a meeting
not more than thirty (30) days thereafter and shall advise the appellant, if
any, of the date, time and place on which the appeal or call for review will
be heard, at least ten (10) days prior to such date. On the date of the
hearing, the City Council shall proceed to hear and pass upon the appeal
or call for review, and its decision thereon shall be final and conclusive.
The City Clerk shall notify the property owner of the decision of the City
Council in the same manner as provided in Section 13.07.050 of this
chapter.
Section 25: Subsection 15.16.060(D) of the Newport Beach Municipal Code is
hereby amended to read as follows:
D. Appeal or Call for Review. In case the applicant or any other person
is not satisfied with the action of the Planning Commission, he may within
fifteen (15) days appeal in writing to the City Council and shall be
accompanied by a fee as established by resolution of the City Council. A
member of the City Council, in their official capacity, may call for review
any action of the Planning Commission within fifteen (15) days from the
Planning Commission's action by filing a written notice with the City Clerk.
The call for review shall be for the purpose of bringing the matter in front
of the entire body for review and shall be exempt from the payment of a
fee.
The City Council shall set a date for public hearing and give notice as
required in subsection (B). Notice shall be given to the Planning
Commission of such appeal or call for review and the Commission shall
submit a report to the City Council setting forth the reasons for the action
taken by it, or shall be represented at the hearing.
The City Council shall render its decision within sixty (60) days after the
filing of such appeal or call for review.
Section 26: Subsection 15.32.015(E) of the Newport Beach Municipal Code is
hereby amended to read as follows:
E. Right of Appeal or Call for Review. Any person dissatisfied with the
decision of the Building Official may file a written statement, listing the
reasons for the appeal with the City Council. A member of the City
Council, in their official capacity, may call for review any decision of the
Building Official for the purpose of bringing the matter in front of the entire
body for review. Said appeal or call for review shall be filed with the City
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20 -33
Clerk within fifteen (15) days after the decision of the Building Official is
deposited in the mail. The City Council may overrule, modify or affirm the
decision of the Building Official.
Section 27: Subsection 15.45.080(F) of the Newport Beach Municipal Code is
hereby amended to read as follows:
F. Any interested party may appeal the Zoning Administrator's
determination under subsection (C) of this section to the City Council by
filing an appeal with the City Clerk, on forms provided by the Clerk, within
fourteen (14) days following the date the determination was rendered. An
appeal shall be accompanied by the filing fee identified in the City's
master fee schedule. A member of the City Council, in their official
capacity, may call for review the Zoning Administrator's determination
under subsection (C) of this section for the purpose of bringing the matter
in front of the entire body for review. A call for review is exempt from the
payment of a fee and shall be filed with the City Clerk, within fourteen (14)
days following the date the determination was rendered, on a form
provided by the Clerk. The determination from which an appeal or 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 Community Development Director shall refer the periodic
review to the City Council, for de novo review, in accordance with
subsection (D) of this section.
Section 28: Subsection 15.50.180(E) of the Newport Beach Municipal Code is
hereby amended to read as follows:
E. Those aggrieved by the decision of the Building and Fire Board of
Appeals may appeal such decision to the City Council as provided in Title
20. A member of the City Council may call for review any decision of the
Building and Fire Board of Appeals under this chapter as provided in Title
20.
Section 29: Section 17.40.160 of the Newport Beach Municipal Code is hereby
amended to read as follows:
17.40.160 Appeal or Call for Review.
Appeals or calls for review to this chapter shall be made in accordance
with Chapter 17.65.
Section 30: Subsection 17.50.030(C) of the Newport Beach Municipal Code is
hereby amended to read as follows:
C. Before issuing a permit for any work on oceanfront beaches or for
any unusual type of harbor structure, or for a structure on which the
applicant proposes a use that is not in keeping with the surrounding area,
Page 124
20 -34
all property owners or long -term lessees within three hundred (300) feet of
the proposed work shall be notified in writing by the Harbor Resources
Division of the pending application. Notice will be sent ten (10) days prior
to a decision by the Harbor Resources Division, and after the department
has rendered a decision. The permit shall not be issued until the appeal or
call for review period provided in Chapter 17.65 expires.
Section 31: Section 17.50.110 of the Newport Beach Municipal Code is hereby
amended to read as follows:
17.50.110 Appeal or Call for Review.
Appeals or calls for review to this chapter shall be made in accordance
with Chapter 17.65.
Section 32: Section 17.65.010 of the Newport Beach Municipal Code is hereby
amended to read as follows:
Section 17.65.010 Authorization.
A. Decisions of the Harbor Resources Manager resulting from the Manager's
administration of this Code may be appealed to the Harbor Commission by any
interested person.
B Decisions of the Harbor Commission may be appealed to the City Council
by any interested person.
C. A member of the Harbor Commission, acting in their official capacity, may
call for review, to the Harbor Commission, decisions of the Harbor Resources
Manager resulting from the Manager's administration of this Code.
D. A member of the City Council, acting in their official capacity, may call for
review, to the City Council, decisions of the Harbor Commission.
Section 33: Section 17.65.020 of the Newport Beach Municipal Code is hereby
amended to read as follows:
17.65.020 Time Limits.
Appeals or calls for review shall be initiated within fourteen (14) days of
the decision.
Page 125
NOW
Section 34: Section 17.65.030 of the Newport Beach Municipal Code is hereby
amended to read as follows:
17.65.030 Initiation.
A. Filing of Appeals and Calls for Review. Appeals or calls for review of
decisions of the Harbor Resources Manager shall be made in writing to
the Harbor Resources Manager on forms provided by the Manager.
Appeals or calls for review of decisions of the Harbor Commission shall be
made in writing to the City Clerk on forms provided by the Clerk. The
appeal shall state the facts and basis for the appeal. A call for review
initiated by a member of the Harbor Commission or City Council, in their
official capacity, shall be for the purpose of bringing the matter in front of
the entire body for review.
B. Fee. Appeals shall be accompanied by a fee as established by
resolution of the City Council. A call for review is exempt from the
payment of a filing fee under Code Section 3.36.030, or any successor
provision.
C. Effect on Decisions. Decisions that are appealed or called for review
shall not become effective until the appeal or review is resolved.
Section 35: Section 17.65.040 of the Newport Beach Municipal Code is hereby
amended to read as follows:
17.65.040 Procedures.
A. Hearing Date. An appeal or call for review shall be scheduled for a
hearing before the appellate or review body within thirty (30) days of the
filing of the appeal or review unless both applicant and appellant or review
body consent to a later date.
B. Notice and Public Hearing. An appeal or call for review hearing shall
be a public hearing if the decision being appealed or called for review
required a public hearing. Notice of public hearings shall be given in the
manner required for the decision being appealed or called for review.
C. Plans and Materials. At an appeal or review hearing, the deciding
body shall consider only the same application, plans and project - related
materials that were the subject of the original decision.
D. Hearing. At the hearing, the deciding body shall review the record of
the decision and hear testimony of the appellant, if any, the applicant and
any other interested party. An appeal or call for review shall be de novo.
Page 126
20 -36
E. Required Findings. At an appeal or review hearing, the deciding body
shall make the findings prescribed in the individual chapters of this Code
when affirming, modifying or reversing the original decision.
F. Decision and Notice. After the hearing, the appellate (or reviewing
body) shall affirm, modify or reverse the original decision. When a decision
is modified or reversed, the appellate (or reviewing) body shall state the
specific reasons for modification or reversal. Decisions on appeals shall
be rendered within thirty (30) days of the close of the hearing. The Harbor
Resources Manager shall mail notice of a Harbor Commission decision
and the City Clerk shall mail a notice of a City Council decision. Such
notice shall be mailed within five (5) working days after the date of the
decision to the applicant and the appellant, if any.
Section 36: Section 17.65.050 is hereby added to Chapter 17.65 of the Newport
Beach Municipal Code to read as follows:
17.65.050 Judicial Review of City Decision.
A person shall not seek judicial review of a City decision on any matter
until all appeals or calls for review, if applicable, to the Harbor Commission
and City Council have been first exhausted in compliance with this
chapter.
Section 37: Subsection 17.70.020(D) of the Newport Beach Municipal Code is
hereby amended to read as follows:
D. Effective Date. The decision to revoke a permit shall become final
fourteen (14) days after the date of decision, unless appealed or called for
review.
Section 38: Subsection 17.70.020(E) of the Newport Beach Municipal Code is
hereby amended to read as follows:
E. Rights of Appeal or Call for Review. Appeals or calls for review shall
be as prescribed by Chapter 17.65, or any successor chapter.
Section 39: Subsection 19.04.070(B) of the Newport Beach Municipal Code is
hereby amended to read as follows:
B. Appeals and Calls for Review. Any interpretation of the provisions
of this Code by the Community Development Director or the City Engineer
may be appealed to the Planning Commission or called for review by a
member of the Planning Commission under the same procedures as set
forth in Title 20.
Page 127
20 -37
Section 40: Subsection 19.12.050(1) of the Newport Beach Municipal Code is
hereby amended to read as follows:
Appeals and Calls for Review
1. Initiation of an Appeal or Call for Review. Any interested person may
appeal any action of the Planning Commission regarding a tentative tract
map to the City Council. A City Council member may call for review any
action of the Planning Commission regarding a tentative tract map. Calls
for review may be initiated by a member of the 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.
2. Time Limits for Filing. Appeals or calls for review shall be filed with the
City Clerk within ten (10) days after the action of the Planning Commission
upon a form provided by the City Clerk. Upon the filing of an appeal or call
for review, the original decision shall be stayed and the matter shall be set
for public hearing.
3. Fees. Any appeal filed by an interested person shall be accompanied
by a filing fee set by resolution of the City Council pursuant to Section
66451.2 of the Government Code, or any successor statute. A call for
review is exempt from the payment of a filing fee under Code Section
3.36.030, or any successor provision.
4. Hearing and Action. A public hearing shall be noticed and held prior to
action on a tentative tract map appeal or call for review. The appeal or
review hearing shall be noticed in accordance with Sections 65090, 65091
and 66451.3 of the Government Code, or any successor statutes, and
shall be held within thirty (30) days after filing of the appeal or call for
review. Within ten (10) days following the conclusion of the hearing, the
City Council shall render its decision on the appeal or call for review.
5. Effect of Inaction. If the City Council does not make a decision on an
appeal or call for review within the time limits specified, the tentative tract
map, insofar as it complies with the Subdivision Map Act and this title,
shall be deemed to be approved or conditionally approved as last
approved or conditionally approved, and it shall be the duty of the City
Clerk to certify or state that approval.
Section 41: Subsection 19.12.060(B) of the Newport Beach Municipal Code is
hereby amended to read as follows:
B. Appeal or Call for Review of Zoning Administrator Action.
1. Initiation of Appeal or Call for Review. Any interested person may
appeal any action of the Zoning Administrator regarding a tentative parcel
map to the Planning Commission. Calls for review of any action of the
Page 128
20 -38
Zoning Administrator regarding a tentative parcel map may be initiated by
a member of the Planning Commission, to the Planning Commission, 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. Calls for review of
any action of the Planning Commission regarding a tentative parcel map
may be initiated by a member of the City Council, to the 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. In accordance
with Government Code Section 66463.5, or any successor statute, an
appeal of a denial of a tentative parcel map extension shall be heard by
the City Council.
2. Time Limits for Filing. Appeals or calls for review to the Planning
Commission shall be filed with the Community Development Director
within ten (10) days after the action of the Zoning Administrator on a form
provided by the Community Development Director. Appeals or calls for
review to the City Council shall be filed with the City Clerk within ten (10)
days after the action of the Planning Commission on a form provided by
the City Clerk. An appeal of a denial of a tentative parcel map extension
shall be filed with the City Clerk and heard by City Council accordance
with Government Code Section 66463.5, or any successor statute. The
time limit for filing appeals on denials of a tentative parcel map extension
shall be fifteen (15) days after the action of the Zoning Administrator.
Upon the filing of an appeal or call for review, the original decision shall be
stayed and the matter shall be set for public hearing.
3. Fees. Any appeal filed by an interested person shall be accompanied
by a fee set by resolution of the City Council. A call for review is exempt
from the payment of a filing fee under Code Section 3.36.030, or any
successor provision.
Section 42: Subsection 19.12.060(C) of the Newport Beach Municipal Code is
hereby amended to read as follows:
C. Further Appeal or Call for Review. Any action by the Planning
Commission, when acting as the Appeal Board, or any decision affirmed
by the City Clerk due to Planning Commission inaction within the specified
time limits in Sections 19.12.050(D) and (E) may in turn be appealed or
called for review in accordance with the procedures and time limits set
forth in Section 19.12.050.
Section 43: Subsection 19.68.030(K) of the Newport Beach Municipal Code is
hereby amended to read as follows:
K. Effective Date, Appeals, and Calls for Review. Decisions on lot
mergers shall not become effective for ten (10) days after being granted.
Appeals or calls for review shall be made in accordance with the
Page 129
20 -39
provisions for appeal of tentative parcel maps, as set forth in Section
19.12.060(B). Upon the filing of an appeal or call for review, the original
decision shall be stayed and the matter shall be set for public hearing.
Section 44: Subsection 19.76.020(L) of the Newport Beach Municipal Code is
hereby amended to read as follows:
L. Effective Date, Appeals, and Calls for Review. Decisions on lot line
adjustments shall not become effective for ten (10) days after being
granted. Appeals or calls for review shall be made in accordance with the
provisions for appeal or call for review of tentative parcels maps, as set
forth in Section 19.12.060. Upon the filing of an appeal or call for review,
the original decision shall be stayed and the matter shall be set for public
hearing. The lot line adjustment shall only become effective when the lot
line adjustment instrument specifying the owners of the fee interest and
particularly describing the real property is approved by the City in writing
and the instrument is filed for recordation with the County Recorder.
Section 45: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 46: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared unconstitutional.
Section 47: The City Council finds the introduction and approval of this
ordinance 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 48: Except as expressly modified in this ordinance, all other Sections,
Subsections, terms, clauses and phrases set forth in the Newport Beach Municipal
Code shall remain unchanged and shall be in full force and effect.
Section 49: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance to be published pursuant to
City Charter Section 414, and it shall be effective thirty (30) days after its adoption.
Page 130
20 -40
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 14`h day of April, 2015, and adopted on the 28th day of
April, 2015, by the following vote, to -wit:
AYES.COUNCILMEMBERS
NOES,COUNCILMEMBERS
ABSENT COUNCILMEMBERS
Am
ATTEST:
EDWARD D. SELICH
LEILANI I. BROWN, CITY CLERK
APPRO D AS TO FORM:
CITY T OFFICE
AARON RP, CITY ATTORNEY
Page 131
20 -41
Attachment No. CC 3
Administrative Drafts
20 -42
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.
Subsection 20.52.030(F)(2)
Decisions of the review authority • • .• 20.64 •
..
•.
notice, Subsection 20.52.070(D)(1)(b)
The reasonable accommodation request shall be heard with, and subject to, the
approval, for • appeal procedures i•- • for any other
discretionary •-
..
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 PlaRRORg 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.
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 Plann+ag Commission.
20 -43
B. Zoning Administrator. Decisions of the Zoning Administrator may be
appealed or called for review to the RlaRRing Commission.
C. Hearing Officer. Decisions of a Hearing Officer may be appealed or called
for review to the CommissionSeundl.
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 sele- 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 sele- 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; aPA
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.
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
20 -44
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. Revco w of . appeal fica fn a deGis.en of a HeaFi g Offir fir shall
dUF'ng the evidentiary heaFing. On Fe 4e%y, fl"— Goe-u-neii may +ho rtor -'R'A , of fhp r,,.. m'�� An „r Hoar{dRg Offi,.or FeMand tho matter for f- irkhor
r.r n'
drorfi.. n f .. heaFin..
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 action ^^ f�. he appeal;
b. Adopt additional conditions of approval to}h address issues or
concerns raised during the hearing^fher than those that ... ° re the basis of the appeal; or
20 -45
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 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 or calls for review, if applicable, to the Commission and CCU
Council have been first exhausted in compliance with this chapter.
20 -46
Redline Draft of NBMC Appeal Sections
Exhibit "A" in NBMC Section 3.36.030
Exhibit A
The City's cost of providing the following services shall be recovered through direct fees
charged for services in the percentages or dollar amounts indicated.
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Building
Preliminary Plan Review
75%
Planning
Appeals to City Council
50%
Appeals to Planning
Commission
50%
Recreation and Senior
Services
Adult Sports
Adult Sports
62%
Adult Drop -In Sports
15%
Rentals
50%
Badge Replacement
45%
After School /Camp Programs
Camps
40%
20 -47
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
After- School/Teen
Program
20%
Pre - School Program
40%
Aquatics
20%
Contract Classes
60%
Class Refunds
$74 or less
29%
$75 or more
59%
Youth Sports
25%
Special Events — Levels 1, 2,
and 3
Resident
Up to 45%
Nonresident
Up to 85%
Appeal to City Council
25%
Senior Services
Oasis Transportation
5%
Contract Classes
50%
Oasis Rentals
45%
Fitness Center
50%
N=
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Marine Environment
Services— Marine Preserve
Tours
15%
Library Services
Meeting Room Rentals
1%
Rentals — Materials
20%
Inter - Library Loan
10%
Fire and Marine
Emergency Operations
Services
Advanced Life
Support— Escorted
Up to 80%
Advanced Life
Support—Not Escorted
Up to 80%
Basic Life Support—
Escorted
Up to 80%
Basic Life Support—Not
Escorted
Up to 80%
State - Mandated Inspections
Day Care Facilities
25%
Marine
Junior Guards—
Rooidpint
-- cc�rcrcrrt
82.1%
20 -49
Service
Percentage of Cost
or Amount to Be
Recovered from
Direct Fees
Police
Initial Concealed
Weapons Permit
Maximum
Permitted by Law
Concealed Weapon
Permit Renewal
Maximum
Permitted by Law
Bike Licenses
17%
Subpoena Duces Tecum
Maximum
Permitted by Law
Vehicle Release
91%
Domestic Violence
Reports
0%
Missing Persons Report
0%
Second Hand /Pawn
Dealer Tag Check
0%
Registrant —Sex
0%
Registrant— Narcotics
0%
Public Works
Engineering
Encroachment Permit
without Traffic Engineer Review
88%
Encroachment Permit
with Traffic Engineer Review
57%
20 -50
5.12.080 Grounds for Revocation.
Any certificate or permit granted under the provisions of this chapter may be revoked by
the City Manager, either as a whole or as to any person or vehicle described therein or
as to the right to use any distinctive color, monogram or insignia, for any of the following
reasons:
A. That the document required by Section 5.12.070 has not been filed or has been
withdrawn or lapsed or is not in force for anv reason.
20 -51
Percentage of Cost
or Amount to Be
Recovered from
Service
Direct Fees
Appeal of Lease /Permit
$100
under Section 17.60.080
Finance
Parking Reviews
0%
Parking Hearings
0%
Admin. Cite Hearings
0%
Municipal Operations
Construction Water
30%
Meter Establishment
City Council, Board,
Commission, Committee or
Any Individual Member
Thereof when Acting within
the Scope of Their Official
Duties
Appeal eFReview from a
$0
Lower Body or Official
5.12.080 Grounds for Revocation.
Any certificate or permit granted under the provisions of this chapter may be revoked by
the City Manager, either as a whole or as to any person or vehicle described therein or
as to the right to use any distinctive color, monogram or insignia, for any of the following
reasons:
A. That the document required by Section 5.12.070 has not been filed or has been
withdrawn or lapsed or is not in force for anv reason.
20 -51
B. For the nonpayment of any City business license or other fees provided by this title.
C. For the breach of any rules, regulations or conditions set out in this Code or the
certificate.
D. For the violation of any of the laws of the State of California or the City with respect
to the operation of the business by any certificate holder, or repeated violations by
operators or drivers of any vehicle covered by such certificate.
E. For failure to maintain satisfactory service to the public, or for failure to keep any
such vehicle in a safe and sanitary condition and good repair, or for failure to use the
distinctive coloring, monogram or insignia described in the application, or for deviation
from the schedule or rates and fares set forth in the application.
F. For any cause which the City Council finds makes it contrary to the public health,
interest, convenience, necessity or general welfare for the certificate or permit to be
continued.
In any such case, the certificate or permit holder shall have the right to appeal to the
City Council or a member of the City Council may call an item for review in a time and
manner set forth in this section.
When the City Manager concludes that the grounds for revocation of a certificate or
permit exists, the City Manager shall serve the certificate or permit holder, either
personally or by certified mail addressed to the business address of the certificate or
permit holder, with a notice of revocation of the certificate or permit. The notice shall
state the reasons for the revocation, the effective date of revocation if no appeal is filed
by the certificate or permit holder, and the right of the certificate or permit holder to
appeal to the City Council and the decision to revoke the certificate or permit.
If an applicant is aggrieved by any action of the City Manager in revoking any certificate
or permit under this chapter, such applicant may appeal to the City Council by filing with
the City Clerk a statement addressed to the City Council setting forth the facts and
circumstances regarding the action of the City Manager. A member of the City Council,
in their official capacity, may call for review any action of the City Manager under this
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chapter for the purpose of bringing the matter in front of the entire body for review. A
call for review shall be filed with the City Clerk on a form provided by the Clerk. The City
Clerk shall notify the applicant in writing of the time and place set forth the hearing on
his or her appeal or a call for review
The right to appeal to the City Council or file a call for review from the revocation of any
certificate or permit required by this chapter shall terminate upon the expiration of fifteen
(15) days following the deposit of a certified letter in the United States Post Office
advising the applicant of the action of the City Manager and of his or her right to appeal
such action to the City Council.
The City Council of the City of Newport Beach may preside over the revocation hearing
or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant
evidence and to submit to the City Council findings and recommendations to be
considered by the City Council of the City of Newport Beach. The City Council shall
preside over call for review hearings. The City Council of the City of Newport Beach
shall render its decision within forty -five (45) days from the date of the hearing or, in the
event that a hearing officer has been appointed within forty -five (45) days on which the
City Council receives the findings and recommendations of the hearing officer. The
decision of the City Council shall be final.
5.14.070 Termination or Suspension of Agreement.
A. The City Manager may terminate or suspend the agreement on one or more of the
following grounds:
1. The certificate holder has not filed adequate evidence of insurance coverage with
the City Clerk, or has allowed its insurance coverage to lapse or be canceled; or
2. The violation of any rule, regulation or condition set forth in or authorized by this
chapter; or made a condition of the agreement; or
3. The violation of any laws of the State of California, County of Orange, or City with
respect to the operation of the business by the contractor, or repeated violations by
emplovees of the contractor; or
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4. Failure to maintain satisfactory service to the public, or for failure to keep any
ambulance in a safe and sanitary and fully operational condition, or for deviation from
the schedule of rates approved by the City Council; or
5. The lapse or loss of any license, permit or other approval necessary to the services
provided pursuant to the agreement; or
6. Unethical conduct or malpractice by contractor or its employees as determined
either by a court of competent jurisdiction or by such review processes as are, or may
be established by Chapter 5.14 of the Newport Beach Municipal Code; or
7. The breach by contractor of any provision of the agreement.
In any such case, the certificate holder shall have the right to appeal to the City Council
or a member of the City Council may call an item for review in the time and manner set
forth in this section
B. When the City Manager concludes that grounds for termination or suspension exist,
the City Manager shall serve the contractor, either personally or by certified mail
addressed to the business address of the contractor, with a notice of intent to terminate
or suspend the agreement. This notice shall state the reasons for the proposed
termination or suspension, the right to appeal and effective date of the termination or
suspension, if no appeal is filed by contractor. A member of the City Council, in their
official capacity, may call for review any action of the City Manager under this chapter
for the purpose of bringing the matter in front of the entire body for review. A call for
review shall be filed with the City Clerk on a form provided by the Clerk. The right to
appeal to the City Council or call an item for review shall terminate upon the expiration
of fifteen (15) days following the personal service or deposit of the notice of intent to
terminate or suspend the agreement in the United States mail, whichever shall occur
first.
The City Council may preside over the hearing on appeal, or, in the alternative, appoint
a hearing officer to conduct the hearing, receive relevant evidence and to submit to the
City Council findings and recommendations to be considered by the City Council. The
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City Council shall preside over a call for review hearing. The City Council shall render
its decision within forty -five (45) days from the hearing or the date on which the City
Council receives the findings and recommendations of the hearing officer. The decision
of the City Council shall be final.
NBMC Subsection 5.20.050(H)
H. Appeal or Call for Review. Any person aggrieved by the action of the Chief of
Police or the City Manager in the denial of an application for permit or renewal of permit
as provided heretofore, shall have the right of appeal to the City Council of the City of
Newport Beach. Such appeal shall be taken by filing with the City Council within
fourteen (14) days after notice of the action complained of has been mailed to such
person's last known address, a written statement setting forth fully the grounds for
appeal. A member of the City Council, in their official capacity, may call for review any
action of the Chief of Police or the City Manager in the denial of an application for permit
or renewal of permit for the purpose of bringing the matter in front of the entire body for
review. A call for review shall be filed with the City Clerk on a form provided by the
Clerk, within fourteen (14) days after notice of the action of the Chief of Police or the
City Manager has been mailed to such person's last known address. The City Council
shall set a time and place for a hearing of such appeal or call for review and notice of
such hearing shall be given to the appellant i, f any, in the same manner as provided in
subsection (G) of this section for notice of hearing on revocation. The decision of the
City Council on such appeal shall be final and conclusive.
5.28.070 Appeals and Calls for Reviewsrn --m nptio., of Gity Manager.
A. If an applicant is aggrieved by any action or failure to act upon the part of the City
Manager in issuing, failing to issue, suspending or revoking any permit under this
chapter, such applicant may appeal to the City Council by filing with the City Clerk a
statement addressed to the City Council setting forth the facts and circumstances
regarding the action or failure to act on part of the City Manager. A member of the City
Council, in their official capacity, may call for review any action on a permit by the City
Manager under this chapter for the purpose of bringing the matter in front of the entire
body for review. A call for review shall be filed with the City Clerk on a form provided by
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the Clerk. The City Clerk shall notify the applicant in writing of the time and place set for
the hearing on his or her appeal or call for review.
B. The right to appeal to the City Council from the denial, suspension or revocation of
any permit, or a call for review regarding the same, required by this chapter shall
terminate upon the expiration of fifteen (15) days following the deposit of a certified
letter in the United States Post Office advising the applicant of the action of the City
Manager and of his or her right to appeal such action to the City Council.
C. The hearing shall be held within twenty (20) days of the receipt by City Clerk of the
appeal or call for review, or at the next regularly scheduled Council meeting, whichever
is sooner.
D. The City Council of the City of Newport Beach may preside over the hearing on
appeal or, in the alternative, appoint a hearing officer to conduct the hearing, receive
relevant evidence and to submit to the City Council findings and recommendations to be
considered by the City Council of the City of Newport Beach. The City Council shall
preside over a call for review hearing. The City Council of the City of Newport Beach
shall render its decision within five days from the date of the hearing or, in the event
that a hearing officer has been appointed, within five (5) days on which the City Council
receives the findings and recommendations of the hearing officer. The decision of the
City Council shall be final.
5.32.070 Appeals and Calls for Review .
If an applicant is aggrieved by any action or failure to act upon the part of the City
Manager in issuing, failing to issue, suspending or revoking any permit under this
chapter, such applicant may appeal to the City Council by filing with the City Clerk a
statement addressed to the City Council setting forth the facts and circumstances
regarding the action or failure to act on the part of the City Manager. A member of the
City Council, in their official capacity, may call for review any action of the City Manager
under this chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review is exempt from the payment of a fee and shall be filed with the
City Clerk on a form provided by the Clerk. The City Clerk shall notify the applicant in
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writing by registered mail of the time and place set for hearing his appeal or a call for
review. The City Council at its next regular meeting held not less than five (5) days from
the date on which such appeal or call for review shall have been filed with the City Clerk
shall hear the applicant, the City Manager, and all relevant evidence. ^gall
deteF..,,..e the .. eFitS of the .,.,pea The City Council may sustain, overrule or modify the
action of the City Manager, and the decision of the City Council shall be final
The right to appeal to the City Council from the denial, suspension or revocation of any
permit required by this chapter or call an item for review shall terminate upon the
expiration of fifteen (15) days following the deposit of a registered letter in the United
States Post Office advising the applicant of the action of the City Manager and of his
right to appeal such action to the City Council.
5.46.060 Appeal or Call for Review
A. Decision of Film Liaison. Any Qeunp -" Me ffihel: eF atheF person aggrieved by the
decision of the Film Liaison shall have the right to appeal the approval or disapproval of
the application to the City Manager within five calendar days after notice of the
decision of the Film Liaison is mailed. The City Manager shall review the application de
novo and shall render a decision within fourteen (14) days.
B. Decision of City Manager. Any Geun..;, Member „r etheF person aggrieved by the
City Manager's decision shall have the right to appeal the approval or disapproval of the
application to the City Council within five (5) calendar days after notice of the decision is
mailed. The City Council shall review the application de novo and act upon the appeal
within sixty (60) days after the filing thereof. ARY •eWRGil N4eR.hPF Shall have the Fight t„
C. Call for Review. A member of the City Council, in their official capacity, may call for
review any action of the Film Liaison or City Manager under this chapter for the purpose
of bringing the matter in front of the entire body for review. A call for review shall be
filed with the City Clerk, on a form provided by the Clerk, within five (5) calendar days
after notice of the decision is mailed. The City Council shall review the application de
novo and act upon the call for review within sixty (60) days after the filing thereof.
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5.64.080 Suspension, Revocation, Denialyawd Appeal, and Call for Review
A. Violation and Noncompliance. The Chief of Police may refuse to renew a permit or
may revoke or suspend an existing permit on the grounds that the applicant or permit
holder has failed to comply with the permit conditions or other requirements of this
chapter. If a suspended permit lapses during the suspension period, a new application
must be made at the end of the suspension period. In any such case, the applicant or
permit holder shall have the right to appeal to the City Council or a member of the City
Council may call an item for review in the time and manner set forth in this section. A
member of the City Council, in their official capacity, may call for review any action of
the Chief of Police under this chapter for the purpose of bringing the matter in front of
the entire bodv for review.
B. Revocation, Suspension or Denial of Renewal of Holistic Health Practitioner Permit
1. The Chief of Police may revoke or refuse to renew a holistic health practitioner and
operator permit if he or she makes any of the findings for denial of a permit under
Section 5.64.040, 5.64.070(A)(5), or upon any subsequent violation of any provision
within one year following prior suspension under subsection two below, or upon
demonstrated inability, to operate or manage the holistic health establishment in a law
abiding manner, thus necessitating action by law enforcement officers;
2. The Chief of Police may suspend a holistic health practitioner and operator permit
for a period of thirty (30) days for each violation of Section 5.64.070.
3. The Chief of Police may also take action to suspend, revoke or deny renewal of a
holistic health practitioner operator permit when actions by employees violate specified
sections, in accordance with Chapters 5.50 and 5.64 of this Code.
C. Notice. When the Chief of Police concludes that grounds for denial, suspension,
revocation or refusal to renew a permit exist, the Chief of Police shall serve the
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applicant or permit holder, either personally or by certified mail, addressed to the
business or residence of applicant or permit holder listed on the application, with a
notice of denial or notice of intent to suspend, revoke or refuse to renew permit. This
notice shall state the reasons for the proposed action, the effective date of the decision
if no appeal is filed by applicant or permit holder or a call for review is filed by a member
of the City Council and the right of the applicant or permit holder to appeal to the City
Council and the decision of the Chief of Police.
D. Appeal or Call for Review. The right to appeal to the City Council or call an item for
review shall terminate upon the expiration of fifteen (15) days following the date of the
notice. The City Council of the City may preside over the hearing on appeal or, in the
alternative, the City Manager may appoint a hearing officer to conduct a hearing,
receive relevant evidence and to submit to the City Council findings and
recommendations to be considered by the City Council. The City Council shall preside
over call for review hearings. The City Council shall render its decision within forty -five
(45) days from the date of the hearing or, in the event that a hearing officer has been
appointed, within forty -five (45) days from the date on which the City Council receives
the findings and recommendations of the hearing officer. The decision of the City
Council shall be final.
5.70.055 Appeals and Calls for Review
The City Council shall have the power to hear and decide appeals based upon the
enforcement or interpretation of the provisions of this chapter. Any permittee or owner
who is aggrieved by any decision of the City Manager may appeal that decision by
submitting a written notice of appeal to the City Clerk within twenty -one (21) days of the
date on which notice of the decision was mailed. A member of the City Council, in their
official capacity, may call for review any action of the City Manager under this chapter
for the purpose of bringing the matter in front of the entire body for review. A call for
review shall be filed with the City Clerk, on a form provided by the Clerk, within twenty -
one (21) days of the date on which the notice of the decision was mailed. The City
Council may preside over the hearing on appeal or may designate a hearing officer to
take evidence and submit a proposed decision together with findings, within fifteen (15)
days from the date of the hearing. The City Council shall preside over the hearing for a
20 -59
call for review. The City Council shall, within thirty (30) days from the date of the
hearing, render its decision on the appeal or call for review, together with findings. The
decision of the City Council shall be final.
5.80.050 Revocation or Denial of License.
The City Manager may refuse to issue or to renew a license or may revoke or suspend
an existing license on any of the following grounds:
1. The applicant or license holder has failed to comply with any of the provisions of the
California Penal Code.
2. The applicant or license holder has failed to comply with applicable provisions of
the Newport Beach Municipal Code.
3. The applicant or license holder has failed to comply with applicable Federal
firearms laws and regulations.
4. The applicant or license holder has made a material false, misleading, or fraudulent
statement of fact to the City in the permit application process.
In any such case, the applicant or license holder shall have the right to appeal to the
City Council or a member of the City Council may call an item for review in the time and
manner set forth in this section.
When the City Manager concludes that grounds for suspension or revocation or refusal
to renew a license exists, the City Manager shall serve the applicant or license holder,
either personally or by certified mail addressed to the business address of the applicant
or license holder, with a notice of intent to suspend or revoke or refuse to renew the
license. This notice shall state the reasons for the proposed suspension, revocation, or
refusal to renew, the effective date or if no appeal is filed by applicant or license holder,
and the right of the applicant or license holder to appeal to the City Council and the
decision of the City Manager to suspend, revoke or refuse to renew the license. A
member of the City Council, in their official capacity, may call for review any action of
the City Manager under this chapter for the purpose of bringing the matter in front of the
20 -60
entire body for review. A call for review shall be filed with the City Clerk on a form
provided by the Clerk. The right to appeal to the City Council or call an item for review
shall terminate upon the expiration of fifteen (15) days following the personal service or
deposit of the notice of intent to suspend or revoke or refuse to renew the license in the
United States Mail, whichever shall occur first.
The City Council of the City of Newport Beach may preside over the hearing on appeal
or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant
evidence and to submit to the City Council findings and recommendations to be
considered by the City Council of the City of Newport Beach. The City Council shall
preside over a hearing for a call for review. The City Council of the City of ni,.,.,peFt
Deaeh shall render its decision within forty -five (45) days from the date of the hearing or,
in the event that a hearing officer has been appointed, within forty -five (45) days from
the date on which the City Council receives the findings and recommendations of the
hearing officer. The decision of the City Council shall be final.
5.90.090 Suspension, Revocation, Denial, -w4d Appeal, and Call for Review
The City Manager may refuse to renew a permit or may revoke or suspend an existing
permit on the grounds that the applicant or permit holder has failed to comply with the
permit conditions or other requirements of this chapter. No suspended permit may be
renewed. If a suspended permit lapses during the suspension period, a new application
must be made at the end of the suspension period. In any such case, the applicant or
permit holder shall have the right to appeal to the City Council or a member of the City
Council may call an item for review in the time and manner set forth in this section.
When the City Manager concludes that grounds for suspension, revocation or refusal to
renew a permit exist, the City Manager shall serve the applicant or permit holder, either
personally or by certified mail addressed to the business address of applicant or permit
holder, with a notice of intent to suspend, revoke or refuse to renew permit. This notice
shall state the reasons for the proposed revocation, the effective date of the revocation
if no appeal is filed by applicant or permit holder, and the right of the applicant or permit
holder to appeal to the City Council and the decision of the City Manager to suspend,
revoke or refuse to renew the permit. A member of the City Council, in their official
20 -61
capacity, may call for review any action of the City Manager under this chapter for the
purpose of bringing the matter in front of the entire body for review. A call for review
shall be filed with the City Clerk on a form provided by the Clerk. The right to appeal to
the City Council or call an item for review shall terminate upon the expiration of fifteen
(15) days following the personal service or deposit of the notice of intent to suspend,
revoke, or refuse to renew permit in the United States Mail, whichever shall occur first.
The City Council of the City of Newport Beach may preside over the hearing on appeal
or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant
evidence and to submit to the City Council findings and recommendations to be
considered by the City Council of the City of Newport Beach. The City Council shall
preside over a hearing for a call for review. The City Council of the Gity Of N ,,,.,POFt
Beaeh shall render its decision within forty -five (45) days from the date of the hearing or,
in the event that a hearing officer has been appointed, within forty -five (45) days from
the date on which the City Council receives the findings and recommendations of the
hearing officer. The decision of the City Council shall be final.
NBMC Subsection 5.96.045(D)
D. Appeal or Call for Review. Any person aggrieved by a decision to revoke a permit
under this chapter may file an appeal with the City Clerk within ten 10) days of the
decision. The request for the appeal shall state the grounds upon which the appeal is
based. A member of the City Council, in their official capacity, may call for review any
decision to revoke a permit under this chapter for the purpose of bringing the matter in
front of the entire body for review. A call for review is exempt from the payment of a fee
and shall be filed with the City Clerk on a form provided by the Clerk. Upon receipt, the
City Clerk shall schedule an appeal or call for review hearing before the City Council or
an appointed hearing officer and shall provide written notice of the time, date and
location of the hearing to the applicant. The City Council shall hear all calls for review.
The hearing shall be held no later than forty -five (45) days from the date the request for
the appeal or call for review is received by the City Clerk. The City Council shall
determine whether grounds for revocation of the adult- oriented business permit exists
and shall render their decision at the conclusion of the hearing or upon recommendation
of the hearina unless the applicant otherwise consents to a continuance.
20 -62
7.08.070 Appeals and Calls for Review
If any person is aggrieved by any action of the City Manager taken pursuant to this
chapter, such person may appeal to the City Council by filing with the City Clerk a
statement addressed to the City Council setting forth the facts and circumstances
regarding the action or failure to act on the part of the City Manager. A member of the
City Council, in their official capacity, may call for review any action of the City Manager
under this chapter for the purpose of bringing the matter in front of the entire body for
review. A call for review is exempt from the payment of a fee and shall be filed with the
City Clerk on a form provided by the Clerk. The City Clerk shall notify the applicant in
writing by registered mail of the time and place set for hearing his appeal or a call for
review. The City Council at its next regular meeting held not less than five days from
the date on which such appeal or call for review shall have been filed with the City
Clerk, shall hold a hearing_ and dote nine the ^ eFitS of the appeal. The City Council
may sustain, overrule or modify the action of the City Manager and its decision shall be
final.
The right to appeal to the City Council from any action or decision of the City Manager
or the right to file a call for review under this chapter shall terminate upon the expiration
of fifteen (15) days following the giving of notice to the applicant advising him or her of
the action of the City Manager
10.50.080 Appeal and Call for Review.
A. The decision of the City Manager may be appealed to the Appeals Board by the
owner or any person owning property within three hundred (300) feet of the property
that was the subject of the hearing or may be called for review by a member of the City
Council. The appeal or call for review must be filed with the City Clerk no more than ten
10 days after the date of the posting and service of the order and the appeal must be
accompanied by the fee established by resolution. A call for review by a member of the
City Council is exempt from the payment of a fee. The order of abatement shall be
suspended pending action of the Appeals Board if an appeal or call for review is filed.
B. The notice of appeal shall specify
20 -63
1. A description of the property;
2. The proceedings that are the subject of the appeal;
3. The standing of the appellant;
4. A statement of disputed and undisputed facts;
5. A statement specifying the portion of the abatement proceedings being
appealed together with any evidentiary or supporting materials that would
support the appeal; and
6. A verification of the truth of all matters asserted in the appeal.
C. A call for review initiated by a member of the City Council, in their official
capacity, shall be for the purpose of bringing the matter in front of the entire body for
review.
DG. Assuming the timely filing of a notice of a proper appeal or call for review, the City
Clerk shall place the appeal or call for review on the agenda of a regular meeting of the
City Council scheduled to be held within thirty (30) days after the appeal or call for
review is filed. The City Clerk shall provide written notice of the appeal or call for review,
including the time, place and date of the hearing on the appeal or call for review, to the
appellant i, f any, and any other person to whom notice of the City Manager's order was
sent. The notice shall be sent in the same manner as notice of hearing. The Appeals
Board may limit the issues on appeal to those raised in the notice of appeal. A call for
review is de novo. The Appeals Board shall declare its findings by resolution and in the
event a nuisance is declared, uphold or modify the order of the Hearing Officer and
order the owner to abate the nuisance. A copy of the resolution shall be posted on the
property and sent to all persons to whom, and in the same manner, notice of the City
Manager's order was sent and to all persons who have, in writing, requested notice at or
before the hearing on the appeal or call for review.
NBMC Subsection 11.03.060(H)
Appeals or Calls for
Review of City Manager Decision. The
City
Manager's decision
under subsection F
or G above shall be rendered within
ten
days of his or her
20 -64
consideration of the appeal or special review. The City Manager shall approve the
application unless he or she makes one or more of the findings for denial set out in
subsection 4 of Section 11.03.060(E), in which case the City Manager may deny the
application. In approving a special event permit, the City Manager may impose
conditions of approval, as set out in subsection 5 of Section 11.03.060(E). The City
Clerk shall notify the Applicant in writing within five days of the City Manager's decision.
The City Manager's decision on an appeal under subsection F above for all Level 2
permits shall be final. The City Manager's decision under subsection G above, and on
all Level 3 permits may be appealed or called for review to the Gity Gaun pursuant to
Section 11.03.100.
11.03.100 Appeals and Calls for Revie
If an applicant is aggrieved by any decision of the City Manager under this chapter, the
applicant may appeal to the City Council by filing with the City Clerk a statement
addressed to the City Council setting forth the facts and circumstances regarding the
City Manager's decision and the basis for the appeal. The appeal shall be accompanied
by a fee as established by resolution of the City Council. A member of the City Council,
in their official capacity, may call for review any action of the City Manager under this
chapter for the purpose of bringing the matter in front of the entire body for review. A
call for review is exempt from the payment of a fee and shall be filed with the City Clerk
on a form provided by the Clerk. The City Clerk shall provide written notification of the
time and place set for hearing the appeal or call for review. The City Council at its next
regular meeting held not less than ten (110)days from the date on which the appeal or
call for review was filed with the City Clerk, shall hear the appeal or call for review and
all relevant evidence_, and she" det,,... iRe the R;P-.;t, of the appeal. The City Council
may sustain, overrule or modify the action of the City Manager, and decision of the City
Council shall be final.
The right to appeal or call an item for review to the City r°U RGH firern. the reyeGation °f
aRy permit required by this nhapter shall terminate upon the expiration of ten 10 days
following personal delivery to the applicant or the deposit of a letter in the United States
mail advising the applicant of the action of the City Manager. and of the Fight t° appeal
cunh nnfir.n t° the (`ifii r°i innil
20 -65
12.62.040 Appeal and Call for Review _to the City Gou
If an applicant is aggrieved by any action or failure to act upon the part of the City
Manager in issuing, falling to issue, suspending or revoking any permit under this
chapter, such applicant may appeal to the City Council by filing with the City Clerk a
statement addressed to the City Council setting forth the facts and circumstances
regarding the action or failure to act on the part of the City Manager. A member of the
City Council, in their official capacity, may call for review any action of the City Manager
in issuing, failing to issue, suspending, or revoking any permit under this chapter for the
purpose of bringing the matter in front of the entire body for review. A call for review
shall be filed with the City Clerk on a form provided by the Clerk. The City Clerk shall
notify the applicant in writing by certified mail of the time and place set for hearing his
appeal or call for review. The City Council at its next regular meeting held not less than
five (5) days from the date on which such appeal or call for review shall have been filed
with the City Clerk shall hear the applicant, the City Manager, and all relevant evidence
and shall detGFFnmRG the FneFitS ef the appeal. The City Council may sustain, overrule or
modify the action of the City Manager, and the decision of the City Council shall be final.
The right to appeal or call an item for reviewte the Gity GeURGil fFe 4 regarding the
denial, suspension or revocation of any permit required by this chapter shall terminate
upon the expiration of fifteen (15) days following the deposit of a certified letter in the
United States Post Office advising the applicant of the action of the City Manager and of
his right to appeal such action to the City Council.
12.64.070 Appeal or Call for Review.
Any person whose application for a permit is denied or revoked may appeal such
decision to the City Council by filing a written notice of appeal with the City Clerk within
ten (days after notification by the Chief of Police that said permit has been denied. A
member of the City Council, in their official capacity, may call for review any decision of
the Chief of Police under this chapter by filing written notice with the City Clerk within
ten (10) days after the Chief of Police's decision. A call for review shall be for the
purpose of bringing the matter in front of the entire body for review. The City Council
shall thereupon conduct a hearing on said appeal or call for review within thirty (30)
days from the date of filing said notice of appeal or call for review with the City Clerk.
20 -66
The decision of the City Council shall be final and conclusive upon all persons
concerned.
13.01.080 Appeal or Call for Review.
Any applicant aggrieved by a decision of the Public Works Director shall have the right
to appeal the decision to the City Council by filing written notice of appeal, the appeal
must be filed with the City Clerk within ten 10 days from the date on which notice of
the decision is deposited in the U.S. Mail, postage prepaid and addressed to the parties
as provided on the application for permit. A member of the City Council, in their official
capacity, may call for review any decision of the Public Works Director under this
chapter by filing written notice with the City Clerk within ten (10) days from the date on
which notice of the decision is deposited in the U.S. Mail, postage prepaid and
addressed to the parties as provided on the application for permit. A call for review
shall be for the purpose of bringing the matter in front of the entire body for review. The
City Council shall, within thirty (30) days from the date on which an appeal is received or
a call for review is filed, schedule a hearing on the appeal or call for review within a
reasonable period of time. The City Council may preside over the hearing on appeal, or
may designate a hearing officer to take evidence and submit a proposed decision,
together with findings, to the City Council within fifteen (15) days from the date of the
hearing. The City Council shall hear all decisions called for review. The City Council
shall render its decision within thirty (30) days from the date of the hearing, and the
decision of the City Council shall be final.
13.05.040 Appeal and Call for Review.
If any person is aggrieved by any decision of the City Manager in acting upon an
application for waiver, he may take an appeal to the City Council by filing a written
statement setting forth the grounds of appeal with the City Clerk. A member of the City
Council, in their official capacity, may call for review any decision of the City Manager in
acting upon an application for a waiver for the purpose of bringing the matter in front of
the entire body for review. A call for review shall be filed with the City Clerk on a form
Provided by the Clerk. The City Clerk shall notify the applicant of the time and place set
for the hearing by registered mail.
20 -67
The right to appeal or call for review a decision of the City Manager shall
terminate upon the expiration of fifteen (15) days following the deposit of a registered
letter in the United States Mail advising the applicant of the action of the City Manager
and of his right to appeal such action to the City Council.
13.06.060 Closure as Condition of Building Department Approval.
No final approval or certificate of occupancy shall be given by the Community
Development Department for the completion of any work involving the construction,
alteration, enlargement or demolition of any building on any lot or parcel of property until
all curb cuts and driveway approaches, which the Public Works Director has determined
are no longer needed or used for reasonable vehicular access to said property, are
altered or removed in accordance with the determination of the Public Works Director
and the City's Standard Plans and Specifications for Public Works. The foregoing
requirement may be satisfied by a written agreement to do any such work, executed by
the property owner or lessee and the Public Works Director, and secured by a bond,
letter of credit or other security, approved by the City Attorney. Any decision of the
Public Works Director made pursuant to this section may be appealed to the City
Council or called for review.
13.06.070 Right of Appeal and Call for Reviewte Gity CGunGil.
Any person who objects to or disagrees with any decision of the Public Works Director
which is made pursuant to this chapter shall have the right to appeal to the City Council
by filing written notice of appeal with the City Clerk within thirty (30) days after receiving
notice of the decision of the Public Works Director. A member of the City Council, in
their official capacity, may call for review any decision of the Public Works Director
which is made pursuant to this chapter by filing written notice of appeal with the City
Clerk within thirty (30) days after the decision of the Public Works Director. A call for
review shall be for the purpose of bringing the matter in front of the entire body for
review. Upon receiving such a notice of appeal or call for review, the City Clerk shall
set the appeal or call for review for hearing by the City Council at a meeting not more
than thirty (30) days thereafter, and shall advise the appellant i, f any, of the date, time
and place on which the appeal or call for review will be heard at least ten L101days prior
to such date. On the date of the hearing, the City Council shall proceed to hear and
pass upon the appeal or call for review, and its decision thereon shall be final and
conclusive. The City Clerk shall notify the property owner by mail of the decision of the
City Council.
13.07.040 Performance of Work by City.
Unless the work required by such notice to replace shall be commenced by the owner
within sixty (60) days after mailing said notice, and shall be diligently prosecuted to
completion, or in case of an appeal to the City Council or call for review within thirty (30)
days from the date of its decision on the appeal or call for review, unless such appeal or
call for review shall be resolved in favor of the property owner, the Public Works
Director shall cause said work to be done, in which case the cost and expense thereof
will be assessed against the property benefitted and become a lien upon such property.
However, if upon appeal to the City Council or call for review, the work required to be
done by the notice to replace is modified, the Public Works Director shall be governed
by such modification in performing the work.
13.07.070 Right of Appeal and Call for Reviewto City Council.
Any property owner who objects to or disagrees with any determination of the Public
Works Director rendered pursuant to Section 13.07.010 of this chapter shall have the
right to appeal to the City Council within fifteen (15) days from the date of mailing of the
notice to replace by the Public Works Director by filing a written notice of appeal with
the City Clerk. A member of the City Council, in their official capacity, may call for
review any determination of the Public Works Director rendered pursuant to Section
13.07.010 of this chapter within fifteen (15) days from the date of the mailing of the
notice to replace by the Public Works Director by filing a written notice with the City
Clerk. The call for review shall be for the purpose of bringing the matter in front of the
entire body for review. Upon receiving such notice of appeal or call for review, the City
Clerk shall set the appeal or call for review for hearing by the City Council at a meeting
not more than thirty (30) days thereafter and shall advise the appellant i, f any, of the
date, time and place on which the appeal or call for review will be heard, at least ten
(LOJ_days prior to such date. On the date of the hearing, the City Council shall proceed
to hear and pass upon the appeal or call for review, and its decision thereon shall be
20 -69
final and conclusive. The City Clerk shall notify the property owner of the decision of the
City Council in the same manner as provided in Section 13.07.050 of this chapter.
NBMC Subsection 15.16.060(D)
D. Appeal or Call for Review. In case the applicant or any other person is not satisfied
with the action of the Planning Commission, he may within fifteen (15) days appeal in
writing to the City Council and shall be accompanied by a fee as established by
resolution of the City Council. A member of the City Council, in their official capacity,
may call for review any action of the Planning Commission within fifteen (15) days from
the Planning Commission's action by filing a written notice with the City Clerk. The call
for review shall be for the purpose of bringing the matter in front of the entire body for
review and shall be exempt from the oavment of a fee.
The City Council shall set a date for public hearing and give notice as required in
subsection (B). Notice shall be given to the Planning Commission of such appeal or call
for review and the Commission shall submit a report to the City Council setting forth the
reasons for the action taken by it, or shall be represented at the hearing.
The City Council shall render its decision within sixty (60) days after the filing of such
appeal or call for review.
NBMC Subsection 15.32.015(E)
E. Right of Appeal or Call for Review. Any person dissatisfied with the decision of the
Building Official may file a written statement, listing the reasons for the appeal with the
City Council. A member of the City Council, in their official capacity, may call for review
any decision of the Building Official for the purpose of bringing the matter in front of the
entire body for review. Said appeal or call for review shall be filed with the City Clerk
within fifteen (15) days after the decision of the Building Official is deposited in the mail.
The City Council may overrule, modify or affirm the decision of the Building Official.
NBMC Subsection 15.45.080(F)
F. Any interested party may appeal the Zoning Administrator's determination under
subsection (C) of this section to the City Council by filing an appeal with the City Clerk,
20 -70
on forms provided by the Clerk, within fourteen (14) days following the date the
determination was rendered. An appeal shall be accompanied by the filing fee identified
in the City's master fee schedule. A member of the City Council, in their official
capacity, may call for review the Zoning Administrator's determination under subsection
(C) of this section for the purpose of bringing the matter in front of the entire body for
review. A call for review is exempt from the payment of a fee and shall be filed with the
City Clerk, within fourteen (14) days following the date the determination was rendered,
on a form provided by the Clerk. The determination from which an appeal or 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 Community
Development Director shall refer the periodic review to the City Council, for de novo
review, in accordance with subsection (D) of this section.
NBMC Subsection 15.50.180(E)
E. Those aggrieved by the decision of the Building and Fire Board of Appeals may
appeal such decision to the City Council as provided in Title 20. A member of the City
Council may call for review any decision of the Building and Fire Board of Appeals
under this chapter as provided in Title 20.
NBMC Section 17.40.160 Appeal or Call for Review.
Appeals or calls for review to this chapter shall be made in accordance with Chapter
17.65.
NBMC Subsection 17.50.030(C)
C. Before issuing a permit for any work on oceanfront beaches or for any unusual type
of harbor structure, or for a structure on which the applicant proposes a use that is not
in keeping with the surrounding area, all property owners or long -term lessees within
three hundred (300) feet of the proposed work shall be notified in writing by the Harbor
Resources Division of the pending application. Notice will be sent ten (10) days prior to
a decision by the Harbor Resources Division, and after the department has rendered a
decision. The permit shall not be issued until the appeal or call for review period
provided in Chapter 17.65 expires.
20 -71
17.50.110 Appeal or Call for Review.
Appeals or calls for review to this chapter shall be made in accordance with Chapter
17.65.
NBMC Section 17.65.010 Authorization.
A. Decisions of the Harbor Resources Manager resulting from the Manager's
administration of this Code may be appealed to the Harbor Commission by any
interested person.
B Decisions of the Harbor Commission may be appealed to the City Council by any
interested person.
C. A member of the Harbor Commission, acting in their official capacity, may call for
review, to the Harbor Commission, decisions of the Harbor Resources Manager
resulting from the Manager's administration of this Code.
D. A member of the City Council, acting in their official capacity, may call for review,
to the Citv Council. decisions of the Harbor Commission. ^ ^` to the nrovosm ^n° o
NBMC Section 17.65.020 Time Limits.
Appeals or calls for review shall be initiated within fourteen (14) days of the decision.
NBMC Section 17.65.030 Initiation.
A. Filing of Appeals and Calls for Review. Appeals or calls for review of decisions of
the Harbor Resources Manager shall be made in writing to the Harbor Resources
Manager on forms provided by the Manager. Appeals or calls for review of decisions of
the Harbor Commission shall be made in writing to the City Clerk on forms provided by
the Clerk. The appeal shall state the facts and basis for the appeal. A call for review
initiated by a member of the Harbor Commission or City Council, in their official
capacity, shall be for the purpose of bringing the matter in front of the entire body for
review.
B. Fee. Appeals shall be accompanied by a fee as established by resolution of the
City Council. A call for review is exempt from the payment of a filing fee under Code
Section 3.36.030, or any successor provision.
C. Effect on Decisions. Decisions that are appealed or called for review shall not
become effective until the appeal or review is resolved.
NBMC Section 17.65.040 Procedures.
20 -72
A. Hearing Date. An appeal or call for review shall be scheduled for a hearing before
the appellate or review body within thirty (30) days of the filing of the appeal or review
unless both applicant and appellant or review body consent to a later date.
B. Notice and Public Hearing. An appeal or call for review hearing shall be a public
hearing if the decision being appealed or called for review required a public hearing.
Notice of public hearings shall be given in the manner required for the decision being
appealed or called for review.
C. Plans and Materials. At an appeal or review hearing, the decidingappeBate body
shall consider only the same application, plans and project - related materials that were
the subject of the original decision.
D. Hearing. At the hearing, the decidingappeNate body shall review the record of the
decision and hear testimony of the appellant, if any, the applicant and any other
interested party. An appeal or call for review shall be de novo.
E. Required Findings. At an appeal or review hearing, the decidingappeAate body
shall make the findings prescribed in the individual chapters of this Code when
affirming, modifying or reversing the original decision.
F. Decision and Notice. After the hearing, the appellate (or reviewing body) shall
affirm, modify or reverse the original decision. When a decision is modified or reversed,
the appellate (or reviewing) body shall state the specific reasons for modification or
reversal. Decisions on appeals shall be rendered within thirty (30) days of the close of
the hearing. The Harbor Resources Manager shall mail notice of a Harbor Commission
decision and the City Clerk shall mail a notice of a City Council decision. Such notice
shall be mailed within five (working days after the date of the decision to the applicant
and the appellant i, f any.
NBMC Section 17.65.050 Judicial Review of Citv Decision.
A person shall not seek judicial review of a City decision on any matter until all appeals
or calls for review, if applicable, to the Harbor Commission and City Council have been
first exhausted in compliance with this chapter.
NBMC Subsections 17.70.020(D) and (E)
D. Effective Date. The decision to revoke a permit shall become final fourteen (14)
days after the date of decision, unless appealed or called for review.
E. Rights of Appeal or Call for Review. Appeals or calls for review shall be as
prescribed by Chapter 17.65, or any successor chapter.; Appeals:
NBMC Subsection 19.04.070(B)
Appeals and Calls for Review. Any interpretation of the provisions of this Code by the
Community Development Director or the City Engineer may be appealed to the
20 -73
Planning Commission or called for review by a member of the Planning Commission
under the same procedures as set forth in Title 20.
NBMC Subsection 19.12.050(1)
Appeals and Calls for Review.
1. Initiation of an Appeal or Call for Review. b Aefe °ted °°T°^ ^. Any interested
person, ineluding a Gity Coune'' member, may appeal any action of the Planning
Commission regarding a tentative tract map to the City Council. A City Council member
may call for review any action of the Planning Commission regarding a tentative tract
map nny appeal filed by a Gity 6914 GO' ...hi Shnll RA-t ha (SaRlsidered an aggFieved
.. h..�...J .... th.. f-R- 61 that tt... Git.. GB URGil Fn mb8F filed the a ^4 Calls for review
may be initiated by a member of the 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.
2. Time Limits for Filing. Appeals or calls for review shall be filed with the City Clerk
within ten (10) days after the action of the Planning Commission upon a form provided
by the City Clerk. Upon the filing of an appeal or call for review, the original decision
shall be stayed and the matter shall be set for public hearing.
3. Fees. Any appeal filed by an interested person otheF than a r-^„^^" ...... beF shall
be accompanied by a filing fee set by resolution of the City Council pursuant to Section
66451.2 of the Government Code, or any successor statute. A call for review is exempt
from the payment of a filing fee under Code Section 3.36.030, or any successor
provision.
4. Hearing and Action. A public hearing shall be noticed and held prior to action on a
tentative tract map appeal or call for review. The appeal or review hearing shall be
noticed in accordance with Sections 65090, 65091 and 66451.3 of the Government
Code, or any successor statutes, and shall be held within thirty (30) days after filing of
the appeal or call for review. Within ten (10) days following the conclusion of the
hearing, the City Council shall render its decision on the appeal or call for review.
5. Effect of Inaction. If the City Council does not make a decision on an appeal or call
for review within the time limits specified, the tentative tract map, insofar as it complies
with the Subdivision Map Act and this title, shall be deemed to be approved or
conditionally approved as last approved or conditionally approved, and it shall be the
duty of the City Clerk to certify or state that approval.
NBMC Subsections 19.12.060(6) & (C)
B. Appeal or Call for Review of Zoning Administrator Action.
1. Initiation of Appeal or Call for Review by InteFested Persen. Any interested person;
nGI61diRg a PIaR. iRg G,,,, M;GSOe eF 9F Gity r-,,,,RGO! M MIDW may appeal any action of
the Zoning Administrator regarding a tentative parcel map to the Planning Commission.
20 -74
Calls for review of any action of the Zoning Administrator regarding a tentative parcel
map may be initiated by a member of the Planning Commission, to the Planning
Commission, 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. Calls for review of any action
of the Planning Commission regarding a tentative parcel map may be initiated by a
member of the City Council, to the 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. In accordance with Government Code Section 66463.5, or any succesor
statute, an appeal of a denial of a tentative parcel map extension shall be heard by the
City Council.
2. Time Limits for Filing. Appeals or calls for review to the Planning Commission shall
be filed with the Community Development DirectorPaaeaiAg DiFeetef within ten (10) days
after the action of the Zoning Administrator on a form provided by the Community
Development Director. Appeals or calls for review to the City Council shall be filed with
the City Clerk within ten (10) days after the action of the Planning Commission on a
form provided by the City Clerk. An appeal of a denial of a tentative parcel map
extension shall be filed with the City Clerk and heard by City Council accordance with
Government Code Section 66463.5, or any successor statute. The time limit for filing
appeals on denials of a tentative parcel map extension shall be fifteen (15) days after
the action of the Zoning Administrator. Upon the filing of an appeal or call for review, the
original decision shall be stayed and the matter shall be set for public hearing.
3. Fees. Any appeal filed by an interested person etheF than ^ Gaunei' membeF OF
P'aR 'Rg r,,..,,,,;^^ie —ner shall be accompanied by a fee set by resolution of the City
Council. A call for review is exempt from the payment of a filing fee under Code Section
3.36.030, or any successor provision.
C. Further Appeal or Call for Review. Any action by the Planning Commission, when
acting as the Appeal Board, or any decision affirmed by the City Clerk due to Planning
Commission inaction within the specified time limits in Sections 19.12.050(D) and (E)
may in turn be appealed or called for review to the r;'„ r^y ^ ^' in accordance with the
procedures and time limits set forth in Section 19.12.050.
NBMC Subsection 19.68.030(K)
K. Effective Date, Appeals, and Calls for Review. Decisions on lot mergers shall
not become effective for ten (10) days after being granted. Appeals or calls for review
shall be made in accordance with the provisions for appeal of tentative parcel maps, as
set forth in Section 19.12.060(6). Upon the filing of an appeal or call for review, the
original decision shall be stayed and the matter shall be set for public hearing.
NBMC Subsection 19.76.020(L)
L. Effective Date,—,aad Appeals, and Calls for Review. Decisions on lot line
adjustments shall not become effective for ten (10) days after being granted. Appeals or
calls for review shall be made in accordance with the provisions for appeal or call for
20 -75
review of tentative parcels maps, as set forth in Section 19.12.060. Upon the filing of an
appeal or call for review, the original decision shall be stayed and the matter shall be set
for public hearing. The lot line adjustment shall only become effective when the lot line
adjustment instrument specifying the owners of the fee interest and particularly
describing the real property is approved by the City in writing and the instrument is filed
for recordation with the County Recorder.
20 -76
Attachment No. CC 4
Planning Commission Resolution
20 -77
RESOLUTION NO. 1974
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.
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.
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
( "CEQK) 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.
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.
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.
The recommended code amendment codifies the call for review process for Planning
Commissioners and City Council Members.
PION -1
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 51" DAY OF MARCH, 2015.
AYES: Brown, Hillgren, Koetting, Kramer, Lawler, Myers and Tucker
NOES:
ABSTAIN:
ABSENT:
BY: �- --
Larr Tucker, Chairman
BY: Gl /
a Byer , Secretary
P082VA]
Exhibit A
Code Amendment No. CA2015 -001
PC Recommended changes shown in underline /etrleat
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.
(A)'h E ;taR char of F , f.. . eal of n Hewing Of G r de hall be
ll�� „yam
Subsection 20.52.030(F)(2)
Decisions of the review authority GA-innil in may be appealed or called for review tA the
compliance with Cha• .
appeal f
Of fl�n r" ..
..
..
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 star,
aPA th 1�� �P- v4hPtne =thp. fiR n ^yam made l' the WeaF!Rg Q �iGGF @Fe
y
Chapter 20.64
APPEALS AND CALLS FOR REVIEW
20.64.010 Purpose.
The purpose of this chapter is tc
review of determinations and decisions
Officers, and Rd ° „g-- Commission
provide procedures for the appeal or call for
of the Director, Zoning Administrator, Hearing
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.
MON -1i]
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 Rlanning Commission.
B. Zoning Administrator. Decisions of the Zoning Administrator may be
appealed or called for review to the Planning Commission.
C. Hearing Officer. Decisions of a Hearing Officer may be appealed or called
for review to the Planning Commission CA, insil.
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 sele- 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 seie-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.
NON-31
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).
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 -e+ Commission, or the Director. including Director interpretations shall be
de novo.
the deGiGiGR of the GeMMOSSiOR F Hearing Off' d the matter [ f ,+I, OF
GORsiderra4'n ....h'sh r and shall 'RG! de either 6pprift iss-Hes 4 be id d or a
dir etiGR fn. a Re., heaFiRg.
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:
f'I/II3sl
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 action E)athe appeal;
b. Adopt additional conditions of approval tothatrnay address issues or
concerns raised during the hearing^ +her tha;; these that th° basis of the l; 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 City Council 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 be' g 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 Cilty
Council have been first exhausted in compliance with this chapter.
FIZON -B]
Attachment No. CC 5
March 5, 2015 Planning Commission
Minutes
Off-11
NEWPORT BEACH PLANNING COMMISSION MINUTES
3/5/15
Deputy Community Development Director Wisneski confirmed that the matter of on- street parking would be
under the purview of the City Council.
Motion made by Secretary Myers and seconded by Commissioner Koetting to adopt Resolution No. 1973
approving Conditional Use Permit No. UP2015 -001.
AYES:
Brown, Hillgren, Koetting, Kramer, Lawler, Myers and Tucker
NOES:
None
ABSTENTIONS:
None
ABSENT:
None
ITEM NO. 5 APPEAL AND CALL FOR REVIEW PROCEDURES CODE AMENDMENT (PA2015 -029)
Citywide
Deputy Community Development Director Wisneski presented details of the staff report addressing a recent
court decision regarding the matter, clarification of procedures and consistency with City Council policy.
In reply to Vice Chair Kramer's inquiry, Assistant City Attorney Torres reported that the amendment submitted
addresses the bias issue by limiting the reason of the call for review by Commissioners or City Council Members
to an item so that the entire body has an opportunity to review it.
In response to Commissioner Koetting's inquiry, Assistant City Attorney Torres reported that a Commissioner or
Council Member could call for a review. He added there is not a filing fee related to calls for review but if a
Commissioner or Council Member, acting as interested parties, appeal a project, they would pay the fee out of
their own pocket.
Responding to Commissioner Hillgren's question, Assistant City Attorney Torres confirmed that a call for review
would be a de novo hearing. Additionally, he explained the difference between a Zoning Administrator and a
Hearing Officer. He reported that the subject code amendment is specific to the Planning Commission but staff
is in the process of amending other sections of the code so that other commissions could call for review or
appeal cases.
Chair Tucker opened the Public Hearing.
Jim Mosher spoke regarding the City's intent to have a mechanism for avoiding appeal fees. He stated that the
Planning Commission and City Council exist as bodies, in the aggregate, and they act in the aggregate. He
opined that it is improper to empower any individual member to do something, entirely on their own. Additionally,
he stated that it is a fundamental principle of law that one cannot sit as a judge in their own cause. He added
that anyone calling an item up for review, would not be doing so if they did not believe there was something
wrong with the original outcome. He believed this matter is setting the City up for potential litigation. He
suggested that it be part of the mechanism that the person calling up the item, recuse themselves from hearing
it. He suggested that staff think of another mechanism for avoiding appeals fees.
Chair Tucker closed the Public Hearing.
Chair Tucker commented on the current appeals process and stated that the concept of having the fee waived is
a political matter and that it is at the prerogative of City Council. He added that the biggest problem was that the
City did not follow its own rules. He did not agree with Mr. Mosher's suggestion that the person bringing the
matter up for review needs to recuse themselves and stated that the way that it is written, fits within the City's
political system.
Vice Chair Kramer agreed with Chair Tucker's comments and addressed prior appeals considered by the
Planning Commission. He requested a review of the Commission's authority to appeal.
Assistant City Attorney Torres referenced Section 20.64.020 within the Municipal Code, adding that it gives the
authority for what items may be called up for review by the Planning Commission. He provided an example of a
Page 4 of 8
20 -85
NEWPORT BEACH PLANNING COMMISSION MINUTES
3/5/15
Zoning Director interpretation that could be called up for review. He reiterated that the item being considered
addresses the bias issue, head on.
Deputy Community Development Director Wisneski added that the Hearing Officer referenced in the code, is
used very sparingly and she provided examples of proceedings where one would be necessary.
Vice Chair Kramer stated that if a matter is a planning issue, the body that reviews it should be the Planning
Commission,
Assistant City Attorney Torres stated that the Commission may make that part of the motion at this time.
Commissioner Koetting stated that other cities call such matters "reconsideration ", rather than a call for review.
Assistant City Attorney Torres noted that a motion to reconsider would be different than a call for review. He
added that the idea of the call for review is not that the person making the call does not like the project.
Chair Tucker noted that once a call for review is concluded at the Council level; that would be the final
determination.
Motion made by Vice Chair Kramer and seconded by Chair Tucker to adopt Resolution No. 1974
recommending City Council adoption of Code Amendment No. CA2015 -001 amending the appeal and call
for review procedures in Title 20, changing Section 20.64.020 (C) stating, "The decision of the Hearing
Officer shall be appealed or called for review to the Planning Commission" and as amended by Chair Tucker.
AYES:
Brown, Hillgren, Koetting, Kramer, Lawler, Myers and Tucker
NOES:
None
ABSTENTIONS:
None
ABSENT:
None
VIII. CURRENT BUSINESS
ITEM NO. 6 GENERAL PLAN AND HOUSING ELEMENT ANNUAL REPORT (PA2007 -195)
Citywide
Assistant Planner Melinda Whelan provided a staff report explaining the annual report on the General Plan
including a Housing Element report which is required by the state. The format provided meets requirements by
the state to provide a status on the implementation of the general plan programs including a more detailed report
on the housing element and implementation of its programs. She addressed Regional Housing Needs
Assessment (RHNA), other state requirements, and implementation of programs and offered to respond to
questions from the Planning Commission.
In response to Chair Tucker's inquiry, Assistant Planner Whelan explained that the annual General Plan status
report including the Housing Element report provides a status for the Calendar Year 2014,
Assistant Planner Whelan provided a summary of the City's status in implementing the Housing Element
programs as well as an update on affordable housing. She added that the City is currently working on an
Request For Proposals (RFP) to spend the in -lieu housing fund.
Commissioner Hillgren commented positively on the report and asked regarding General Plan Implementation
programs in terms of updating the General Plan to reflect the Citys vision. Assistant Planner Whelan stated that
the report would include General Plan amendments that impacted the entire City's vision overall and not
individual General Plan amendments.
Vice Chair Kramer commented on efforts and money spent on improving the General Plan and stated that at
some point, he would like the Planning Commission to recommend to Council, that the majority of updates to the
General Plan be approved.
Page 5 of 8
:.
Attachment No. CC 6
Planning Commission Staff Report
20 -87
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
Amendment No. CA2015 -001 amending the
procedures in Title 20 (Attachment No. PC 1).
DISCUSSION
Background
City Council adoption of Code
appeal and call for review
A recent State of California Appellate Court decision determined the City's Municipal
Code 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.
1
20 -88
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 /stfikeeat
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:
2
20 -89
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:
Gregg R ry irez
Senior Planner
ATTACHMENTS
PC 1 Draft Resolution
Submitted by:
, Deputy Director
3
20 -90
�
QP
V
O�
4 20 -91
Attachment No. PC 1
Draft PC Resolution
5
20 -92
�
QP
V
O�
MI
20 -93
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.
7 20 -94
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 5"' DAY OF MARCH, 2015.
AYES:
NOES:
ABSTAIN
ABSENT:
BY:
Larry Tucker, Chairman
BY:
Jay Myers, Secretary
8
20 -95
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.
Subsection 20.52.030(F)(2)
Decisions of the review authority may be appealed or
Qa--nGil in compliance
On
ON III
..
..
RGIUde eitheF SpeGifiG- - be -• - - - - - de •- - heaFiRg.
Subsection 20.52.070(D)(1)(b)
The reasonable . ... .
notice, review, approval, call for review, and appeal procedures identified for any other
..
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 Pgig 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 20 -96
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
20 -97
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._
f'Rd'nec Fnade by the Clearing Offieer a suppeFted by substantial eviddenee n ented the GGURGil may sustain, FeYeFse, OF FnOd4y
the .eeisiee of the !'`AFAF.issiee e. Mea.i �
ae Of hGe. .d e the FRatte.
�l fe. f,,.+L....
eens to be
dirs0ion fora new hearing.
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 en the eal;
b. Adopt additional conditions of approval to## at address issues or
concerns raised during the hearingether than these that we.e 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 City Council may refer the matter to the previous review authority for
further consideration.
12
20 -98
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
20 -99
r 6
Planning Commission - March 5, 2015
Item No. 5a: Additional Materials Received
Appeal and Call for Review Procedure �Y�}�p��nt (PA2015 -029)
COMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Center Drive
Newport Beach, California 92660
949 6443200
newportbeachca.gov/communitydevelopment
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 Amendment(( d. i c c
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
g ra m i re z(cD n e wp o rt b e a c h ca . g ov
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.
Subsection 20.52.030(F)(2)
Decisions of the review aut• .. • or called for
Cp--nni' in compliance with Chapter 20.64 (Appeals). Revieoi fn—r Rn appeal frem a
..
..
..
..
• de eitheFspeGifir- - - •• • - 9F R - -• - de -• - heaFiRg.
Subsection 20.52.070(D)(1)(b)
The reasonable accommodation
notice, review, approval, call for review, and appeal procedures identified for any other
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 °gig 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.
20 -101
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 P1aRRlRgCommission.
B. Zoning Administrator. Decisions of the Zoning Administrator may be
appealed or called for review to the P!aRR+Rg 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 sale- 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 sale- 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.
20 -102
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,-or Commission, or the Director, including Director interpretations, shall be
de novo. Rey1ew Of a appeal fmm a denisien of a Heari a Offlner shall he ,.,hot..or the
findings made by the Hearing Offi . �d by substantial evideRGe PFese
daring the evidentiary heaping. On Fevievy }he Gou.nnil may sustain reverse or madify
the denicien of the (`gnat ssien er Hearing Offiner, eF remand the matter for fiirtF.e.r
GGRS
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 action ea the appeal;
20 -103
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 tot#� address issues or
concerns raised during the hearing ; or
c. Deny the permit approved by the previous review authority, even where the
appellant if 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 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 or calls for review, if applicable, to the Commission and City
Council have been first exhausted in compliance with this chapter.
20 -104
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@vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 - 6229).
Item No. 5. APPEAL AND CALL FOR REVIEW PROCEDURES CODE
AMENDMENT (PA2015 -029)
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 GO( 50155).
2. In considering the propriety of staffs 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.AppAth 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 lone city council
member might have validly appealed if such an appeal had "complied with the municipal
code" (Cohan, supra, 30 Cal.AppAth 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,
20 -105
Planning Commission - March 5, 2015
Item No. 5b: Additional Materials Received
March 5, 2015, PC agenda it p8%S gn;all f9Fn%Xj % )yrProcedures Cocig."Sprent (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.
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 Tern 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
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Item No. 5b: Additional Materials Received
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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.
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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,"
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