Title
Public Hearing to Consider Introduction of an Ordinance Amending Alameda Municipal Code Section 30-25 Appeals or Calls for Review. (Community Development 209)
Body
To: Honorable Mayor and Members of the City Council
From: Jill Keimach, City Manager
Re: Public Hearing to Consider Introduction of an Ordinance Amending Alameda Municipal Code Section 30-25 Appeals or Calls for Review
BACKGROUND
On March 7, 2016, the City Council directed staff to prepare a Zoning Amendment to increase the threshold for a "call for review" by the City Council from one member to two members. The City Council-approved referral is attached as Exhibit 1.
On September 11, 2017, the Planning Board reviewed the draft Zoning Amendment prepared by staff and unanimously recommended the proposed amendments with a few modifications to improve the public process and avoid potential Brown Act conflicts. The recommended amendments and the Planning Board’s modifications are described below and included in the draft ordinance.
In addition to reviewing the draft amendments with the Planning Board, staff contacted a variety of other similarly sized East Bay cities to understand whether other cities have similar “call for review” provisions. As shown in Exhibit 2, there are a variety of different approaches taken the cities contacted by staff.
DISCUSSION
Currently, Section 30-25 of the Alameda Municipal Code (AMC) establishes the procedures for:
• An individual community member to appeal a decision by the Planning Director, Zoning Administrator, the Planning Board, or the Historical Advisory Board;
• A member of the Planning Board or Historical Advisory Board to call for review a decision of the Planning Director or the Zoning Administrator; and
• A City Council member to call for review a decision by the Planning Director, Zoning Administrator, the Planning Board, or the Historical Advisory Board.
Section 30-25 has five (5) subsections. Each subsection is described below with a brief description of the proposed amendments and the Planning Board’s modifications to the proposed amendment, if any, to that subsection.
Section 30-25.1 - Purpose and Authorization for Appeals and Calls for Review This subsection establishes the purpose of an appeal or call for review, which is to avoid or reverse a City decision that is "inconsistent with the purposes" of the Zoning Code. The current code does not explain where one might find the “purposes” of the Zoning Code. The proposed amendments to this section shown below add a reference to sub-section 30-1.2 of the Zoning Code, which is where the purposes of the Zoning Code are stated. The other amendments shown below update the terminology in the ordinance to reflect current titles and clarify the existing processes.
30-25.1 - Purpose and Authorization for Appeals and Calls for Review
a. Appeals. To avoid results inconsistent with the purposes of this chapter as stated in subsection 30-1.2, decisions of the Planning Community Development Director or Zoning Administrator may be appealed to the Planning Board and decisions of the Planning Board, Public Art Commission, or Historical Advisory Board may be appealed to the City Council by any person aggrieved or by any officer, agency or department of the City affected by any decision, determination or requirement.
b. Calls for Review. As an additional safeguard to avoid results inconsistent with the purposes of this chapter as stated in subsection 30-1.2, decisions of the Planning Community Development Director or Zoning Administrator may be called up for review to the Planning Board by a member of the Planning Board or by a member of the City Council for review by the Planning Board and decisions of the Planning Board, Public Art Commission, or Historical Advisory Board may be called up for review to the City Council by the City Council or a members of the City Council for review by the City Council.
Section 30-25.2 - Final Decisions Sub-sections a. and b. of subsection 25.2 establish how a member of the public may appeal a decision and how a member of the Planning Board, Historical Advisory Board or City Council may call a decision for review. The section also establishes the time limits for appeals and calls for review.
The changes to these subsections shown below:
• Increase the threshold for a City Council call for review from one member to two members, as requested by the City Council, when the final decision being called for review is a decision by the Planning Board, Historical Advisory Board, or Public Art Commission.
• At the Planning Board’s request staff added a provision to the draft ordinance that reads:
In the event, that the Community Development Department receives a call for review from a single City Council member within the ten (10) day call for review period, the Community Development Department will forward the call for review to the other four (4) City Council members. Upon circulation of the call for review to the other four City Council members, the ten (10) day call for review period shall be automatically extended if necessary to allow at least five (5) business days for a second City Council member to file a call for review. If the fifth day falls on a day that City Hall is closed, the five day deadline shall extend to the next regular business day.
The Planning Board suggested this provision so that a Council member filing a call for review would not feel the need to call other City Council members in an effort to generate a second call for review request. Calling more than one Council member to encourage a second call for review request would be a violation of the Brown Act. Calling a third party and asking him/her to call a third Council member would also be a violation of the Brown Act.
The Planning Board’s recommended provision requires that if staff receives a call for review request from a Council member during the ten day call for review period, staff sends the call for review to the other four Council members. This provision ensures that the other four Council members will have at least five (5) business days to investigate the decision being questioned and decide whether to submit a call for review, even if the first Council member submitted the initial call for review request on the tenth and final day of the call for review period. If the first Council member filed the initial call for review within the first few days of the call for review period and staff transmits the call by the fifth day of the period, the provision for an additional five days may not extend the initial 10-day period.
By linking the time extension to the staff transmittal and not the submission of the initial call for review, the provision ensures that the other four Council members will have a full five days to consider the first call for review, even if staff is slow in transmitting the first call for review to the other Council members.
Section 30-25.2 - Final Decisions and Time Limits for Appeals and Calls for Review
a. Final Decision of the Community Development Director or Zoning Administrator. Any decision of the Community Development Director or Zoning Administrator shall be final on the date of the decision, unless any person aggrieved or any officer, agency, or department of the City affected by any decision of the Community Development Director or Zoning Administrator, files a Notice of Appeal with the Community Development Planning Department no later than ten (10) days following the decision or at least one (1) City councilmember or at least one (1) Planning Board member files a call for review with the Community Development Planning Department no later than ten (10) days following the decision. Decisions that are appealed or called for review shall not become effective until the appeal or call for review is resolved by the appropriate City body Planning Board. Decisions by the Planning Board to uphold, overturn, or modify a decision of the Community Development Director or Zoning Administrator are appealable to the City Council.
b. Final Decision of the Planning Board, Public Art Commission, or Historical Advisory Board. Any decision of the Planning Board, Public Art Commission, or Historical Advisory Board shall be final on the date of the decision, unless any person aggrieved or any officer, agency, or department of the City affected by any decision of the Planning Board, Public Art Commission, or Historical Advisory Board, files a Notice of Appeal with the Planning Community Development Department no later than ten (10) days following the decision or at least two (2) a City councilmembers files a call for review with the Planning Community Development Department no later than ten (10) days following the decision. In the event that the Community Development receives a call for review request from a single City Council member within the ten (10) day call for review period, the Community Development Department will forward the call for review request to the other four (4) City Council members. Upon circulation of the call for review request to the other four City Council members, the ten (10) day call for review period shall be automatically extended if necessary to allow at least five (5) business days for a second City Council member to file a call for review request`. If the fifth day falls on a day that City Hall is closed, the five day deadline shall extend to the next regular business day. Decisions that are appealed or called for review shall not become effective until the appeal or call for review is resolved by the appropriate City Council. body.
Section 30-25.3 Time Limits This existing subsection repeats all of the information regarding time limits, which are already stated above in Section 30-25.3.
Since the subsection simply repeats the process and time limits established above in subsection 30-25.2, the proposed changes delete this subsection to avoid any confusion or potential conflicting interpretations.
30-25.3 - Time Limits for appeals or Calls for Review.
a. Appeals of Actions of the Planning Board or Historical Advisory Board. Appeals to the City Council concerning actions of the Planning Board or Historical Advisory Board may be taken by any person aggrieved or by any officer, agency, or department of the City affected by any decision, determination or requirement of the Planning Board or Historical Advisory Board. Such appeal shall be filed no later than ten (10) days following the decision of the Planning Board or Historical Advisory Board.
b. Appeals of Actions of the Planning Board. Appeals to the City Council concerning actions of the Planning Board may be taken from any person aggrieved or from any officer, agency or department of the City affected by any decision, determination or requirement of the Planning Board. Such appeal shall be filed no later than ten (10) days following the decision of the Planning Board.
c. Calls For Review of Planning Director, Zoning Administrator, or Planning Board. Calls for review to the Planning Board concerning actions of the Zoning Administrator or Planning Director may be made by the Planning Board, City Council, or a member of either body. Such calls for review shall be filed no later than ten (10) days following the decision of the Planning Director or Zoning Administrator. Calls for review concerning decisions of the Planning Board may be taken from the City Council or member of the City Council. Such calls for review shall be filed no later than ten (10) days following the decision of the Planning Board
30-25.4 - Initiation of Appeals and Calls for Review. This section establishes the procedures and requirements that a person must follow to file an appeal or a Council member must follow to file a call for review. The section currently states that the cost of an appeal will be funded by the appellant. The proposed amendment to Section 30-25.4:
• Clarifies that any person may appeal a decision of the Community Development Director and/or the Zoning Administrator, which reflects current practice.
• Eliminates a redundant subsection.
• Clarifies that a call for review must be submitted in writing, must explain why the Council member is concerned that the decision may be in conflict with the purposes of the Zoning Code, and that the cost for a call for review of a decision by a Council member or a City Council-appointed Board member will be funded by the General Fund and not by the project applicant.
30-25.4 - Initiation of Appeals and Calls for Review
a. Appeals of Actions of the Planning Community Development Director or Zoning Administrator. An appeal to the Planning Board concerning actions of a Planning Community Development Director or the Zoning Administrator decision shall be filed in writing with the Planning Community Development Department and shall be accompanied by the required fees. In filing an appeal, the appellant shall specifically state the reasons or justification for an appeal.
b. Appeals of Actions of the Zoning Administrator. An appeal to the Planning Board concerning actions of the Zoning Administrator shall be filed in writing with the Planning Department and shall be accompanied by the required fees. In filing an appeal, the appellant shall specifically state the reasons or justification for an appeal.
c. Appeals of Actions of the Planning Board, Historical Advisory Board or Public Art Commission. An appeal to the City Council concerning actions of the Planning Board or Historical Advisory Board decision shall be filed in writing with the Planning Community Development Department and shall be accompanied by the required fees. In filing an appeal, the applicant shall specifically state the reasons or justification for an appeal.
d. Calls for Review. A call for review shall be filed with the Planning Department by the Planning Board, the City Council, or a member of either body by stating the reasons or justification for the review. No fee shall be required for a call for review. A call for review shall be filed in writing with the Community Development Department and shall specifically state the reasons or justification for the call for review. All City of Alameda costs associated with the call for review, including staff time, technical assistance, and noticing the public hearing shall be funded by the General Fund and shall not be charged to the project applicant.
30-25.5 - Procedures for Appeals and Calls for Review. This subsection establishes the time limits and procedures for the appeal or call for review. The proposed revisions establish conformity with the prior sections and other sections of the Code.
a. Hearing Date. Appeals or calls for review shall be scheduled for public hearing and decision by the Planning Board, or Historical Advisory Board no later than the second regularly scheduled and held meeting following submittal of the appeal or call for review. Appeals or calls for review shall be scheduled for public hearing and decision by the City Council no later than the third regularly scheduled and held meeting following submittal of the appeal or call for review. An alternative date for the hearing may be selected by mutual agreement of the original applicant, the City and appellant.
e. Decision and Notice. The Planning Board or City Council may, so long as such action is in conformity with the terms of these regulations, reverse or affirm, in whole or in part, or may modify the order, requirement, decision, or determination of the Planning Community Development Director or Zoning Administrator or Planning Board, Public Art Commission, or Historical Advisory Board and may make such order, requirement, decision, or determination as is appropriate.
Conclusions and Additional Planning Board Recommendations
In conclusion, staff believes the proposed amendment reflects the City Council’s request as articulated in the 2016 referral and provides an appropriate balance between the due process rights of individual property owners and the obligations of the City to protect the health, safety, and general welfare of the community through thoughtful and appropriate land use regulations and processes.
In addition to the Planning Board recommendations described above, the Planning Board made two additional recommendations that are not included in the above analysis:
1. The City Council should consider a provision stating that if a property owner or interested party files an appeal with the required appeal fee of a City decision, and the Planning Board or City Council overturns the decision of the City in favor of the appellant, then the appellant should be refunded his/her appeal fee from the General Fund. Staff did not include the proposal in the amendment for two reasons: 1) it was not included in the Council referral, and 2) it is not clear how the provision would be implemented in cases where the proposal was simply modified or partially amended.
2. The City Council should ensure a consistent Call for Review process for all City Boards and Commissions. The ordinance amendment described in this staff report establishes the procedures for those Boards, Commissions, and officers that implement the Zoning Code. Actions by the Transportation Commission and the Recreation and Parks Commission may also be called for review by the City Council. Although not within its purview, the Planning Board suggested that the City Council might want to ensure that a single call for review process be implemented for all City Board and Commission decisions. (City records indicate that two decisions of the Transportation Commission have been called for review by the City Council since creation of the Transportation Commission approximately ten years ago.)
FINANCIAL IMPACT
The proposed amendment would not have a significant financial impact on the General Fund. The amendment clarifies that calls for review are funded by the General Fund. The ultimate impact on the General Fund will be determined by the number of calls for review received on an annual basis. With the proposed changes to the ordinance, it can be estimated that the annual number of calls for review will decrease as a result of the proposed amendment.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The proposed amendment represent a minor adjustment to existing General Plan and AMC provisions designed to ensure a balance between the rights of individual property owners and the obligations of the City to protect the health, safety, and general welfare of the community through land use regulations and processes.
ENVIRONMENTAL REVIEW
The proposed Zoning text amendment is exempt from review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061 subsection b.3., which is the general rule that CEQA does not apply to a proposed action which does not have the potential for causing a significant effect on the environment. The proposed amendment pertain to procedures for additional review of decisions that have already been reviewed for impacts on the environment.
RECOMMENDATION
Hold a public hearing to consider introduction of an Ordinance amending Alameda Municipal Code Section 30-25 Appeals or Calls for Review.
Respectfully submitted,
Debbie Potter, Community Development Director
By,
Andrew Thomas, Assistant Community Development Director
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibits:
1. City Council Referral
2. “Call for Review” Procedures in Other Cities