Appeal Code Changes Delynn Coldiron, City Clerk; Brad Yatabe, Legal June, 2019 Appeal Code Changes Here to provide some information on proposed changes to the appeals process and collect your thoughts/feedback about these items. Delynn Coldiron, City Clerk; Brad Yatabe, Legal

SUMMARY Changes are meant to: Clarify aspects of the appeals procedure Improve the appeals process

Changes – 2-46 Changes recommended under Section 2-46 – Definitions: Appellant clarified to include multiple parties-in interest New Evidence would now require any modifications of the record to be identified Party-in-Interest clarified to be those individuals with an ownership interest in a property instead of a leasehold, other categories of party-in-interest remain the same Appellant – Would now include multiple parties in interest versus single party in interest. Past appeals have included multiple parties-in-interest so this change is recommended to match actual practice. New Evidence – Would require any modifications to the record to be identified. This is expected to help discern new evidence from what already is contained in the record of the decision that is being appealed. Party-in-Interest Clarified to be those individuals with an ownership interest in a property; leaseholders are not automatically included in this. OTHER CATEGORIES OF PARTY-IN-INTEREST REMAIN THE SAME (anyone who received a notice, came to a hearing and spoke, etc.) Intent is to narrow the potential appellants to those with a more direct interest in the decision; hearing concerns.

Changes – Section 2-47 and 2-48(c) Change recommended under Section 2-47 – Certain appeals to be taken to City Council: Language added to clarify that any appeals allowed by City Code would be authorized under Chapter 2. Change recommended under Section 2-48 – Appeal of final decision permits; effect of appeal; grounds for appeal: Change to Section 2-48(c) to clarify the process for Councilmember-initiated appeals (submission of specific questions to be considered on appeal). Appeals to City Council – This clarifies that appeals to Council mentioned in City Code outside of Chapter 2, to be authorized under Chapter 2. Code is somewhat ambiguous; just trying to provide additional clarification. Building Review Board Fire Board of Appeals Landmark Preservation Commission A “decision maker” under the provisions of Section 2.2.12 of the LUC Water Board Zoning Board of Appeals Grounds for Appeals: Councilmembers Appeals - Requires them to submit specific questions/items they want considered on appeal. This replaces the current requirement for a general description of the issue. Intended to better identify the particular issues that are being raised.

Changes – 2-49 Changes recommended under Section 2-49 – Filing of notice of appeal; new evidence: New Subsection (b)(5) – requires any new evidence related to a fair hearing allegation be filed within seven days of the deadline for filing the notice of appeal. New Subsection (c) – clarifies what can be submitted to Council for consideration. New Subsection (d) – states how information for the appeal will be accessible. General clean up to make text more easily understood. New Subsection (b)(5) – Pertains to new evidence not contained in the record of the decision being appealed and associated with an allegation that a fair hearing was not conducted. Requires new evidence to be filed prior to the appeal hearing` Appellant deadline is 21 days after final decision (will post once received) Opposition deadline is 35 days after final decision (will post once received); gives additional time to respond to appellant’s new evidence Currently only need to describe in the notice of appeal and can be submitted to Council at the appeal hearing. New Subsection (c) - Clarifies what items can be submitted to Council for consideration. New Subsection (d) – States how information for the appeal will be accessible – (post on website and available for inspection)

Changes – Section 2-50 and 2-51 Change recommended under Section 2-50 – Fee for filing of appeal: Change in title. Clarifies that the $100 fee is a filing fee vs. cost of appeal. Change recommended under Section 2-51 – Record on appeal: Clarifies the information contained in the record that Council may rely on to make its decision. Fee for Filing – Title change from “Cost of Appeal” to “Fee for filing an appeal”. Clarifies that the $100 is a filing fee versus the cost of the appeal. Record on Appeal: Clarifies the information contained within the record that Council may rely on to make its decision. New language – Record would now include: New evidence Changes an outdated reference to video tape to video recording which would be included The notice of hearing and a list of those who received it.

Changes – 2-52 Changes recommended under Section 2-52 – Scheduling of the hearing/no ex-parte contacts: Subsection (a) - adjusts scheduling and notice provisions to provide parties-in-interest more advance notice. New Subsection (b) – defaults to the standard practice of consolidating multiple appeals of the same decision. New Subsection (c) – allows City Manager to request an extension of time to hear an appeal. New Subsection (d) – moves ex parte contacts here. Subsection (a) – Adjusts the scheduling and notice provisions to parties-in-interest: Scheduling Currently – hearings scheduled no less than 28 days and nor more than 75 days after a notice of appeal is filed. Proposing – 77 days to be consistent with other code deadlines. Trying to move dates to increments of 7; hoping avoid many deadlines falling on weekends. Have made a lot of this changes with the election codes. Hearings with new evidence scheduled no less than 49 days after final decision to provide adequate submission time for new evidence. Hearings without new evidence could be scheduled no less than 35 days after final decision. Notice provisions: Proposing written notice to the appellant and parities-of-interest not less than 21 days prior to the date of hearing (currently 10 days) Provides a little more advance notice Provides additional time for preparation New Subsection (b) - Defaults to a standard practice of consolidating multiple appeals on the same decision – UNLESS COUNCIL DECIDES OTHERWISE. Has been our experience that Council wants to consider appeals at the same time. Provide time for all parties involved to present their information, etc. New Subsection (c) – Enables the City Manager to request an extension of time for Council to hear an appeal beyond the current 75-day time period (would be 77-days if requested change is approve). New Subsection (d) – Moves language on ex parte contacts to this Section (from Section 2.53).

Changes – Section 2-53 and 2-54 Change recommended under Section 2-53 – Site inspection: Clarifies the intent of the site visit is for Councilmembers to gain a better understanding of the physical characteristics of the property. Change recommended under Section 2-54 – Procedures at the hearing: Clarifies the staff presentation. Clarifies how procedural issues are addressed. Site Inspection – This clarifies the intent of the site visit is for Councilmembers to gain a better understanding of the physical characteristics of the property. Language is being removed about the purpose of gaining a better understanding of the issues on appeal; this is best addressed at the appeal hearing itself Councilmembers and parties-in-interest are present to hear the information and can respond or discuss things as allowed Ex parte language was removed and added to the section before. Section 2-54: Clarifies the staff presentation and how procedural issues are addressed.

Changes – 2-55 Changes recommended under Section 2-55 – Written materials; new evidence: Subsection (a) – clarifies the information Council can consider. Subsection (b) – specifies new information that can be considered. Subsection (c) – specifies that City staff will prepare record; and that Council determines the new evidence that can be admitted. Subsection (d) – sets the submittal deadline for materials. Moves Subsections (e), (f) and (g) to Section 2-56 – Council decision Subsection (a) – Clarifies the information Council can consider Includes the addition of New evidence (gives specifics around the type of new evidence that can be submitted Offered by an appellant and provided within 21 days after the final decision (1 week after the appeal deadline). Offered by a party-in-interest in opposition to appeal in response to appeal allegations in Section 2-48(b)(2)c, d or e Must be provided to the City Clerk’s office within 35 days of final decision (5 weeks); gives additional time to respond to new evidence submitted by appellant(s). Relevant provisions of other applicable legal authorities (in addition to City Code and Charter) Subsection (b) - Specifies the new information that can be considered Subsection (c) – Specifies that City staff will prepare the record Includes agenda item summary, presentation materials, notice of appeal and all attachments, new evidence submitted Specifies that Council will determine what new evidence can be submitted. Subsection (d) – Sets the submittal deadline for presentation materials Noon on the day of the appeal hearing or 4:00 p.m. the business day prior If providing hard copies, must provide 20 copies along with digital presentation Moves Subsections (e), (f) and (g) to next Section.

Appeal Timeline Appeal Deadline remains 14 days after final decision. Appeal deadline: 14 days after final decision. Notice of Appeal will be posted. Site visit request deadline: 10 days after Appeal received New evidence from appellant deadline: 21 days after final decision. New evidence will be posted. New evidence from party-in-interest opposed to the appeal deadline: 35 days after final decision. New evidence will be posted. Notice of Hearing deadline: Minimum of 21 days prior to hearing. First date the hearing can be scheduled: 49 days after final decision if there is new evidence; 35 days after appeal deadline if no new evidence. Last date the hearing can be scheduled: 77 days after appeal is filed (91 days after decision). Presentation materials due by noon on the date of an appeal, or by 4:00 p.m. the business day prior to a Council meeting that starts earlier than 6 pm Appeal Deadline remains 14 days after final decision. Will be posted once received. Request for Site Visit Must be requested within 10 days after appeal is received Deadline for new evidence (when allowed) from appellant Within 21 days after the final decision (3 weeks). New evidence will be posted once received. Deadline for new evidence from parties-in-interest opposed to the appeal 35 days after the final decision (5 weeks). Gives additional time to respond to appellant’s new evidence. Written notice of date of appeal hearing deadline No less than 21 days prior to the hearing (currently 10) Notice of Site visit required to be sent no later than 5 days prior to site inspection (we generally try to send at the time the Appeal Notice is sent to avoid duplicate mailings). First date the hearing can be scheduled 49 days after notice of appeal deadline (if new evidence is allowed) 35 days after notice of appeal deadline (if no new evidence is allowed) Last date the hearing can be scheduled 77 days after the appeal is received – proposed (currently 75) Also a new provision that City Manager can request an extension Presentation materials Due by noon the day of an appeal OR Due by 4 pm the business day prior to a Council meeting that starts earlier than 6 pm

New Section – 2-56 New Section 2-56 – Council decision on appeal: Subsections (e), (f) and (g) moved from previous Section. Now includes a provision allowing remand to a different decision maker if fair hearing issue found, as circumstances warrant. Subsection (d) – adds a procedure for Council to amend adopted Resolutions. Subsection (d) – also allows Council to modify a decision to resolve a legal dispute or comply with applicable law. New Section Subsection (e), (f) and (g) – Added from previous Section – Show up as (a), (b) and (c) of this item Subsection (b) Includes a provision allowing Council to remand the item to a different decision-maker if a fair hearing issue was found. Subsection (d) - Adds a procedure for Council to amend adopted Resolutions (to clarify or correct) OR To modify a decision to resolve a legal dispute or comply with applicable law (Mennonite locker case) For Council to make a change to an adopted Resolution, Notice would be sent to the appellant, applicant and persons who appeared at the appeal hearing (at least 14 days prior to consideration of the revisions) Those individuals would have opportunity to provide comment on the proposed changes at the time Council considers them.

Next Steps Meeting for applicants - Today Meeting for appellants – Thursday, June 6, 6:00 p.m. Meeting for public – Thursday, June 12, 6:00 p.m. Planning and Zoning Board – July 18th City Council – August 20th Subsection (a) – Clarifies the information Council can consider Includes the addition of New evidence (gives specifics around the type of new evidence that can be submitted Offered by an appellant and provided within 21 days after the final decision (1 week after the appeal deadline). Offered by a party-in-interest in opposition to appeal in response to appeal allegations in Section 2-48(b)(2)c, d or e Must be provided to the City Clerk’s office within 35 days of final decision (5 weeks); gives additional time to respond to new evidence submitted by appellant(s). Relevant provisions of other applicable legal authorities (in addition to City Code and Charter) Subsection (b) - Specifies the new information that can be considered Subsection (c) – Specifies that City staff will prepare the record Includes agenda item summary, presentation materials, notice of appeal and all attachments, new evidence submitted Specifies that Council will determine what new evidence can be submitted. Subsection (d) – Sets the submittal deadline for presentation materials Noon on the day of the appeal hearing or 4:00 p.m. the business day prior If providing hard copies, must provide 20 copies along with digital presentation Moves Subsections (e), (f) and (g) to next Section.

THANK YOU!