§ 9108.07

This Section establishes procedures for the appeal and calls for review of determinations and decisions of the Director or Commission.

9108.07.020 - Appeal Subjects and Jurisdiction.

A.

Code Administration and Interpretation. Any determination of the Director and/or Department staff on the meaning or applicability of the regulations contained in this Development Code that cannot be resolved with the Director, may be appealed to the Commission and then to the Council.

B.

Planning Permit Decisions.

1.

ARB or ARB Chairperson Decisions. Decisions of the ARB or ARB Chairperson on all matters specified in Section 9108.01.060 (Homeowners Association Architectural Review Board) and 9108.01.070 (Homeowners Association Architectural Review Board Chairperson) may be appealed to the Commission.

2.

Director's Decisions. Decisions of the Director on all matters specified in Section 9108.01.050 (Development Services Department Director) may be appealed to the Commission.

3.

Commission's Decisions. Any decision of the Commission may be appealed to the Council.

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

9108.07.030 - Calls for Review.

A.

Commission or Council Review.

1.

Commission. The Commission may call for a review of any determination or decision rendered by the Director, ARB, or Department staff.

2.

Council. The Council may call for a review of any determination or decision rendered by the Commission, Director, ARB, or Department staff.

3.

Majority Vote Required. A call for review may only be commenced by the affirmative vote of the majority of the members present of the applicable Review Authority.

B.

Process for Calling for a Review.

1.

Initiation by Commissioners. Any Commissioner may initiate a call for review of a Director's determination or decision by filing a written request with the Department before the effective date of the action, which means within 10 days following the date of the determination or decision.

2.

Initiation by Council Members.

a.

Any Council member may initiate a call for review of a Commission's, Director's, or ARB's determination or decision by filing a written request with the City Clerk before the effective date of the action, which means within 10 days following the date of the determination or decision.

b.

The Council may call for the review of a Director's or ARB's determination or decision directly, or may direct the Commission to first consider the matter and provide a written recommendation to the Council.

3.

Consideration of Call for Review. The Commission or Council, as applicable, shall consider the call for review at its next regularly scheduled meeting.

4.

Majority Vote by Review Authority. If the Commission or Council, as applicable, votes to review the determination or decision, a subsequent review hearing shall be scheduled to consider the merits of the review. Following a majority vote to proceed, the request shall be treated in compliance with Subsection 9108.07.040 (Filing and Processing of Appeals).

5.

Notice to Applicant. If the Review Authority is reviewing the decision of a discretionary application, the applicant shall be informed of the aspects of the application and the determination or decision that the Review Authority will consider.

6.

Effect of Call for Review.

a.

A request for a call for review by a member of a Review Authority shall stay the effective date of a determination or decision until the Review Authority can make a decision on the call for review request.

b.

The timely filing of a call for review does not extend the time in which an appeal of a determination or decision shall be filed. The normal appeal period shall continue to run in compliance with Subparagraph 9108.07.040 B. (Form and Timing of an Appeal), below.

c.

If the Review Authority decides to call for review of the subject determination or decision, then the previous determination or decision shall be stayed.

d.

If the Review Authority decides not to call for review the subject determination or decision, then the determination or decision shall become final unless the appeal period has not expired.

7.

Filing of an Appeal Pending a Call for Review.

a.

Right to File an Appeal. Any person may file a timely appeal in compliance with this Section even though a call for review has been filed in compliance with this Section.

b.

Effect of Filing an Appeal. The filing of the appeal shall serve to protect the rights of the appellant(s) in the event the call for review is subsequently withdrawn or rejected.

8.

Withdrawal or Failure of a Call for Review. If a request for a call for review is withdrawn after filing, or is rejected, the remaining days of the call for review period shall run until the original 10-day period has expired.

9.

Notice and Public Hearing.

a.

A call for review hearing shall be a public hearing if the original determination or decision required a public hearing.

b.

Notice of the public hearing shall be the same as the original determination or decision, in compliance with Section 9108.13 (Public Notices and Hearings).

c.

The public hearing shall be conducted in compliance with Section 9108.13 (Public Notices and Hearings).

10.

Fees Not Required. Fees shall not be required in conjunction with the filing of a call for review.

11.

Required Votes. The final action calling for review of a determination or decision shall require an affirmative majority vote of those members lawfully authorized to vote on the matter.

C.

Concurrent Commission Recommendations. When the Commission makes a recommendation to the Council on a legislative matter (e.g., development agreement, Development Code amendment, General Plan amendment, specific plan or amendment, or Zoning Map amendment), any concurrent companion decision(s) by the Commission on an approval, permit, or Variance, or other non-legislative land use permit application concerning, in whole or in part, the same parcel(s) shall also be deemed to be timely called up for review by the Council.

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

9108.07.040 - Filing and Processing of Appeals.

A.

Eligibility.

Eligible Appellants. An appeal in compliance with this Section may be filed by any interested person(s).

2.

Interested Person(s). For purposes of this Section an interested person(s) is a person who informed the City of his or her concerns about an application for a permit or approval at a public hearing, either in person or through a representative, or by other appropriate means (e.g., in writing), or was unable to do so for good cause and pays the applicable fee in compliance with the Fee Schedule; and

a.

Objects to the action taken on the permit or approval;

b.

Completes the required City appeal form completely and accurately. The appeal will not be deemed complete and timely filed until all information on the appeal form is verified by the office receiving the appeal form; and

c.

Wishes to appeal any appealable action to a higher Review Authority.

3.

Appeals by Councilmember or Commissioner. Any action or decision by the Commission, Director, ARB, ARB Chairperson, or Department staff rendered in compliance with this Development Code may be appealed by a Councilmember or Commissioner acting as an individual, in compliance with the requirements of the Fair Political Practices Act.

4.

Shall Not Be Authorized to Participate. Any Councilmember or Commissioner filing an appeal as an individual shall not be authorized to participate in any decision concerning that action or decision.

B.

Form and Timing of Appeal. An appeal shall be submitted in writing and shall specifically state the pertinent facts and the basis for the appeal.

1.

Pertinent Facts and the Basis for the Appeal. The pertinent facts and the basis for the appeal shall include, at a minimum, the specific grounds for the appeal, where there was an error or abuse of discretion by the previous Review Authority (e.g., Commission, Director, ARB, ARB Chairperson, or other City official) in the consideration and action on the matter being appealed, and/or where the decision was not supported by the evidence on the record. Appeals filed by a City official, a Commissioner, or a Councilmember shall be exempt from the requirements of this Subparagraph.

Shall be Filed within 10 Days. The appeal shall be filed with the Department within 10 days following the actual date the decision was rendered.

a.

Appeals addressed to the Council shall be filed with Planning Services.

3.

Accompanied by Filing Fee. The appeal shall be accompanied by the filing fee identified in the Fee Schedule.

4.

Suspension of Action. Once an appeal is filed, any action on the associated project is suspended until the appeal is processed and a final decision is rendered by the applicable Review Authority.

C.

Scope of Planning Permit Appeals. An appeal of a decision on any planning permit specified in Division 7 (Permit Processing Procedures) shall be de novo, and shall not be limited to issues raised at the public hearing, or in writing before the hearing, or information that was not known at the time of the decision that is being appealed.

D.

Report and Scheduling of Hearing.

1.

When an appeal 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 Subsection 9108.07.020 (Appeal Subjects and Jurisdiction), above.

2.

Notice of the hearing shall be provided, and the hearing shall be conducted, in compliance with Section 9108.13 (Public Notice and Hearings).

3.

Any interested party may appear and be heard regarding the appeal.

E.

Decision.

1.

During the appeal hearing, the Review Authority may:

a.

Affirm, affirm in part, modify, or reverse the action, determination, or decision that is the subject of the appeal, based upon findings of fact about the particular case. The findings shall identify the reasons for the action on the appeal, and verify the compliance or noncompliance of the subject of the appeal with this Development Code;

b.

Adopt additional or different project aspects or conditions of approval, that may address issues or concerns other than the subject of the appeal;

c.

Deny the planning permit approved by the previous Review Authority, even where the appellant only requested a modification or elimination of one or more project aspects or conditions of approval; or

d.

If new or different evidence is presented on appeal, the Review Authority may refer the matter to the Director or Commission, as applicable, for further consideration.

e.

The decision of the Council shall be final.

2.

Within 60 days following the initial public hearing, the Review Authority shall render its decision on the appeal, unless it is continued for good cause.

3.

In the event of a tie vote by the Review Authority on an appeal, the decision being appealed shall stand.

F.

Provision of Notice of Decision.

1.

Following the final decision on an appeal of a permit or other approval required by this Development Code, the City shall provide notice of its final decision to the appellant, applicant, property owner or owner's representative, and to any person who specifically requested notice of the City's final decision.

2.

The notice of the final decision shall contain applicable findings, conditions of approval, and the reporting/monitoring requirements deemed necessary to mitigate any impacts and protect the public convenience, health, interest, safety, or general welfare of the City.

G.

Effective Date of Appeal Decision. No permit or license shall be issued for any use involved in an appeal until the final decision on the application shall have become final in the following manner:

1.

Commission's Decision. A decision by the Commission is final and effective after the end of the business day on the 10th day following the actual date the final decision is rendered, if no appeal to the decision has been filed with the Council or called up by the Council.

2.

Council's Decision.

a.

Adopted by Ordinance. A decision of the Council adopted by ordinance is final and shall become effective on the 31[st ] day following the date the ordinance is actually adopted by the Council, unless otherwise provided in the adopting ordinance.

b.

Adopted by Resolution. A decision of the Council adopted by resolution is final and shall be effective on the date the decision is rendered.

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

No person shall seek judicial review of a City decision on a planning permit or other matter in compliance with this Development Code unless and until all available appeals to the Commission and Council have been first exhausted in compliance with this Section.

Section 9108.09 - Permit Modifications and Revocations