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HomeMy WebLinkAboutSS2 - Appeal Process and Fees0 �EW�R> CITY OF °� m= NEWPORT BEACH C9�/Fp0.N`P City Council Staff Report Agenda Item No. SS2 November 22, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, AICP, Director 949 - 644 -3226, kbrandt @newportbeachca.gov PREPARED BY: Brenda Wisneski, AICP, Deputy Community Development Director APPROVED: TITLE: Overview of Zoning Code Chapter 20.64 Appeal Process and Fees ABSTRACT: Per Mayor Henn's request made at the October 25, 2011 meeting of the City Council, the following overview of the current appeal process, related fees and examples of other jurisdictions is provided for the City Council's review. RECOMMENDATION: Review the current appeal process and fee structure and direct staff to return at a regular City Council meeting for formal Council direction. DISCUSSION: The City's Zoning Code establishes the procedures for allowing interested parties to appeal discretionary decisions made by the Community Development Director, Zoning Administrator, Hearing Officer, and Planning Commission pursuant to the hierarchy of decision - making, shown in Table 1. Per Chapter 20.64 of the Zoning Code, appeals may be initiated by any interested party provided they do so within 14 days of the decision date. All requests must be submitted in writing detailing the basis for appeal and be accompanied by the appropriate filing fee. Table 1 Appeal Bodies & Fees Review Authority Appellate Body Director Planning Commission Zoning Administrator Planning Commission Hearing Officer City Council Planning Commission City Council 14 Overview of Zoning Code Chapter 20.64 Appeal Process and Fees November 22, 2011 Page 2 A survey of surrounding jurisdictions was conducted to compare appeal processes and fees. The results indicated that an appeal process that follows a decision - making hierarchy is standard practice among the jurisdictions surveyed. The survey details are provided as Attachment A. The City of Newport Beach Zoning Code does not specifically address the process for members of the Planning Commission or Council to call up items for review. Therefore, the members are subject to the same provisions as other interested parties would follow except the fee payment is not required as a matter of practice. However, it shall be noted that some jurisdictions do not require such appeals by the Planning Commission and City Council to be in writing. Instead, the request to call up a previous decision can be made verbally at a regular meeting during the appeal period. It should be noted that adoption of the 2010 Zoning Code resulted in the following changes to the appeal procedures: 1. Deletion of an explicit fee exemption for the Planning Commission and City Council. 2. Deletion of the following timeframe in favor of a consistent process for all types of public hearings: 1) schedule hearing within 60 days of appeal, unless consented to by appellant and applicant; 2) appellate body shall render decision within 30 days after public hearing is closed; and 3) notice to be mailed to applicant and appellant within 5 days after the date of decision. Exempting the Planning Commission and City Council from the appeal filing fees was explicitly set forth in the prior Zoning Code, but is not referenced in the 2010 Zoning Code. It was the intent of the 2010 Code update to include the fee exemption in the Master Fee Schedule, not remove it. The Planning Commission reviewed this issue on March 17, 2011, and recommended the Code be amended to revert back to the language from the old Code. With the exception of needing clarification regarding the fee exemption, the other Code administrative revisions listed above have not posed any issues in implementing the appeal provisions since Chapter 20.62 describes the public hearing process. Appeal Fee The appeal filing fee established by the City has been modified in the recent years, as shown in Table 2. The most significant increase occurred as a result of a 2006 User Fee Study and 2008 Citywide Cost of Services Fee Study. Because the increase was significant it was phased over a three -year period (2008, 2009, 2010). N Overview of Zoning Code Chapter 20.64 Appeal Process and Fees November 22, 2011 Page 3 Table 2 Appeal Fee History Year Appeals to Planning Commission Appeals to City Council 2005 $600 $340 2008 $1,810 $1,550 2009 $3,070 $2,800 2010 $4,280 $4,010 2011 $4,333 $4,062 The fees collected today equate to 50 to 53 staff hours based on an hourly rate of $162 and a 50 percent cost recovery rate. Staff estimates that appeal applications processed within the past year have required far fewer staff hours. A survey of seven jurisdictions indicated a significant variation in appeal fees ranging from $250 to $2,501. Based on the detailed comparison provided as Attachment A, it appears policy decisions were made in some cases to adjust the fees based on the whether the appellant is the applicant or a third party and the type of project. Fees which are significantly low may be intentionally set at a level that would not be deterrent to appealing a project, but are high enough that appeals are not submitted without serious consideration. Appeal History Table 3 provides a summary of the type of appeals filed since 2008. A detailed list of the appeals applications is provided as Attachment B. Table 3 Appeal History 1 Year # of Appeals Decision Appealed Appellant Considered 1 ZA Decision 4 Applicant 2008 8 7 PC Decision 2 Councilmember 2 Neighbor 1 ZA Decision 2009 4 1 Hearing Officer 4 Applicant 2 PC Decision 4 ZA Decision 5 Applicant 2010 9 1 Hearing Officer 1 Planning Commissioner 4 PC Decision 3 City Councilmember 4 ZA Decision 2 Neighbor 2011 12 8 Planning Commission 3 Planning Commissioner 7 Councilmember Average 8.5 /year 2.5 ZA Appeals/Year 5.8 PC Appeals/Year 1 Does not include app eal applications which were withdrawn. 3 Overview of Zoning Code Chapter 20.64 Appeal Process and Fees November 22, 2011 Page 4 Potential Next Steps It is requested that the City Council review the appeal process and provide direction at a regular City Council meeting. Potentia next ster may include: 1. Reconsider appeal fee: a. As part of the next update to the Community Development Fees and the Master Fee Schedule which would occur in 2012, or b. As a separate update to the Master Fee Schedule. 2. Clarify the appeal fee exemption for the Planning Commission and Council: a. In the rext update to the Master Fee Schedule, b. As a separate update to the Master Fee Schedule, or c. As an update to the 2010 Zoning Code. 3. Consider amendments to the appeal process. Submitted by: Kimberly Brandt, AICP Director Attachments: A. Jurisdiction A ppea Fee Comrarison B. Detailed Appeal History W City Council Attachment A Jurisdiction Appeal Fee Comparison 5 0 Fee Comparison City Description Fee Carlsbad Appeal — City Council (+ noticing costs) — fee is refundable $1,011 if appeal is won Appeal — Planning Commission (+ noticing costs) — fee is $620 refundable if appeal is won Costa Mesa Appeal to Planning Commission $690 Appeal to City Council $1,220 Dana Point Appeal of Community Development Director Decision: Single Family $250 Other $500 Appeal of Planning Commission Decision: Single Family $250 Other $500 Huntington Beach Appeal to Planning Commission: Single family owner appealing decision of own property $1,917 Others $2,501 Appeal of Director's Decision (PC Public Hearing) $494 Appeal of Director's Interpretation (PC Non - Public) $416 Appeal to City Council Single family owner appealing decision of own property $1763 Others $3383 Irvine Appeal of a Decision to the City Council or Planning $245 deposit Commission $128 per hour Laguna Beach Appeal Fee to City Council $650 Appeal from an Administrative Decision to City Council $650 Oceanside Appeal of City Planner's Decision $1,750 Appeal of Planning Commission Decision to City Council $1,750 San Clemente Appeal by Applicant $1056.04 +$26 Appeal by Public imagining fee $432.48 7 ON City Council Attachment B Detailed Appeal History wool Appeal History # Project Project Title Appellant Reviewing Date of Status Number Body Action 1 PA2007 -063 Panini Cafe Councilmember PC to CC March 25, Approved 2008 8 PA2008 -009 311 Fernleaf Neighbor ZA to PC April 3, 2008 Denied 9 PA2008 -029 Tommy Bahamas Applicant PC to CC May 13, 2008 Approved 6 PA2007 -219 Bay Burger Applicant PC to CC May 27, 2008 Approved 3 PA2007 -100 Seashore Village Neighbor PC to CC June 10, 2008 Approved 2 PA2007 -063 Panini Cafe Councilmember PC to CC June 23, 2008 Approved 7 PA2007 -243 Pavilions Wine Applicant PC to CC July 22, 2008 Approved Tasting 16 PA2008 -123 The Shore House Applicant PC to CC Nov. 25, 2008 Denied Cafe 20 PA2009 -030 Westcliff Storage Applicant Director to February 24, Withdrawn PC 2009 19 PA2009 -017 Hoag Healthcare Applicant ZA to PC March 25, Approved Center 2009 10 PA2008 -080 Duda Parcel Map & Applicant PC to CC July 14, 2009 Denied' Code Amend 21 PA2009 -050 Chronic Tacos Applicant PC to CC Sept. 22, 2009 Denied 17 PA2008 -181 Pacific Shores Applicant Hearing Nov. 10, 2009 Approved Recovery Officer to CC 4 PA2007 -133 Megonigal Councilmember PC to CC Jan. 12, 2010 Approved Residence 12 PA2008 -105 Yellowstone Applicant Hearing Jan. 26, 2010 Denied to -1083 Women's First Step Officer to CC 18 PA2008 -207 Moriarty Parcel Applicant ZA to PC Feb. 4, 2010 Approved Map 22 PA2009 -059 Ong Temporary Councilmember PC to CC March 23, Approved Parking Waiver 2010 23 PA2009 -149 Cagnolo Residence Applicant ZA to PC May 20, 2010 Denied 25 PA2010 -040 4500 Seashore Commissioner ZA to PC May 20, 2010 Approved Condo 26 PA2010 -043 20442 Santa Ana Applicant ZA to PC July 22, 2010 Approved Ave Mod 24 PA2009 -149 Cagnolo Residence Applicant PC to CC July 27, 2010 Denied 28 PA2010 -102 Bella Cara Applicant PC to CC October 21, Withdrawn Dermatology 2010 11 PA2008 -104 Newport Coast Applicant Hearing Oct. 27, 2010 Withdrawn Recovery, LLC Officer to CC 27 PA2010 -082 China Palace Live Councilmember PC to CC Nov. 23, 2010 Approved Entertainment 33 PA2010 -155 Crow Burger I Commissioner ZA to PC March 3, 1 Approveds 1 The appeal was withdrawn by the applicant. 2 The modification permit application was referred to Planning Commission. 3 This application was for multiple addresses with separate activity numbers assigned. 4 City Council reconsidered action and approved the project on October 12, 2010. 1191 # Project Project Title Appellant Reviewing Date of Status Number Body Action I 2011 3S PA2010 -172 Malarky's Irish Pub Councilmember PC to CC March 17, Withdrawn 2011 34 PA2010 -155 Crow Burger Councilmember PC to CC March 22, Approved 2011 36 PA2011 -013 Broadmoor Pacific Councilmember PC to CC March 29, Approved View Setbacks 2011 37 PA2011 -041 3- Thirty -3 Councilmember PC to CC June 28, 2011 Approved Waterfront 31 PA2010 -114 Mariner's Pointe Councilmember PC to CC July 1, 2011 Approved 29 PA2010 -105 Whitacre Commissioner ZA to PC July 7, 2011 Denied Residence 30 PA2010 -105 Whitacre Councilmember PC to CC Sept. 13, 2011 Approved Residence 32 PA2010 -135 MacArthur at Councilmember PC to CC October 3, Approved Dolphin Striker 2011 39 PA2011 -139 Pizzeria Mozza Commissioner ZA to PC October 20, Approved 2011 40 PA2011 -141 Ocean Blvd Lot Neighbor ZA to PC October 20, Approved Merger 2011 38 PA2011 -062 Bubbles Restaurant Neighbor PC to CC October 25, Approved 2011 41 PA2011 -141 Ocean Blvd Lot Applicant PC to CC TBD Pending Merger 5 Planning Commission added limitations to hours of outdoor dining patio. 6 City Council extended hours of outdoor dining patio. 12 r4l .0 Appeal Process & Fees 0tI`o�ri City Council Study Session November 22, 2011 In Presented by BRENDA WISNESKI Deputy Director Community Development Presentation Outline Process Fees Other jurisdictions Potential Next Steps Appeal Process P Decision Hierarchy Director Zoning Administrator Hearing Officer Planning Commission Planning Commission Planning Commission City Council City Council Appeal Process Filing Requirements i . Initiated by any interested party 2. Within 14 days of decision 3. Submitted in writing detailing basis for appeal 4. Filing Fees (not required for PC or CC) 0 39--momm 2005 $600 $340 2008 $1,810 2009 $3,070 2010 $4,280 2011 $4,333 ➢Based on 50 percent cost recovery ➢Other jurisdictions - $250 to $2,501 $1,550 $2,800 $4,010 $4,062 Potential Next steps Reconsider Appeal Fee Include PC & CC Appeal Fee Exemption in Master Fee Schedule Consider Amendment to Appeal Process r4l .0 Appeal Process & Fees 0tI`o�ri City Council Study Session November 22, 2011 In Presented by BRENDA WISNESKI Deputy Director Community Development