Napa County Municipal Code Ch. 2.88 Appeals

Footnotes:

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Editor's note— Ord. No. 1358, § 2, adopted April 26, 2011, amended Ch. 2.88 in its entirety to read as herein set out. Former Ch. 2.88, §§ 2.88.010—2.88.110, pertained to the same subject matter, and derived from Ord. No. 1201, § 1 (part), adopted 2002; Ord. No. 1249, § 1, adopted 2004 and Ord. No. 1254, §§ 2, 3, adopted 2005.

The definitions contained in Title 18 of this code, as amended, shall be fully applicable to this chapter except as hereinafter otherwise defined. For purposes of this chapter, the following definitions shall apply:

A

"Appellant" means any interested person filing a notice of appeal under this chapter.

B. "Board" means the board of supervisors of Napa County.

C. "Clerk" means the clerk of the board of supervisors of Napa County.

D

"Decision maker" means the officer, director, agency, commission, subsidiary board of the county, department, board of appeals or other person or body to which decision-making authority was delegated and that made the decision being appealed.

E. "Decision" means a determination made by a decision maker, pursuant to authority vested in the decision maker by law or by delegation from the board of supervisors that is binding and/or final unless successfully appealed. For purposes of this chapter, "decision" means only those decisions that involve the exercise of discretion by the decision maker, and shall not include ministerial actions.

F. "Hearing" means any proceeding at which a person may attend and present testimony, including but not limited to, public hearings and noticed public hearings.

G. "Interested person" means:

1. For an appeal of a decision relating to real property, including discretionary land use permits, such as conditional use permits and modifications thereto, variances, rezonings and zoning text amendments, telecommunications permits, viewshed applications and certificates of legal nonconformity, "interested person" means any person who testified or offered evidence at a hearing or other proceeding at which the matter being appealed was considered, and all persons, including businesses, corporations or other public or private entities, shown on the last equalized assessment roll as owning real property within one thousand feet of any property which is the subject of the appeal.

2. For all other appeals, "interested person" means any person who testified or offered evidence at a hearing or other proceeding at which the matter being appealed was considered, if such a hearing was held. If no hearing was required for the decision, then "interested person" means any person whose pecuniary interests, civil rights, or property rights or interests are demonstrably affected by a decision, provided they offered comment on the decision or offered evidence, if given the opportunity to do so.

3. "Interested person" includes the permittee.

H. "Noticed public hearing" means a hearing that is noticed in accordance with Section 18.136.040 of this code, or any similar provision of law.

I. "Permit" means any permit, certificate, certification, license, approval or other entitlement allowing the use of real property, construction of structures thereon, or conduct of business or personal activities, which was issued, denied or made subject to conditions as a result of the decision being appealed. An appeal of a decision to issue a "permit" includes any environmental determination made pursuant to the California Environmental Quality Act (CEQA) and state or county guidelines or other regulations adopted to implement CEQA, in connection with final action taken on the permit to which the CEQA determination relates.

J. "Permittee" means the person or entity that has applied for the permit that is the subject of the appeal.

K. "Record on appeal" means all written materials, staff reports, statements, testimony, information and evidence that were considered by the decision maker, either directly or indirectly, in arriving at the decision being appealed. If a noticed public hearing was held, then the "record on appeal" includes either a certified transcript of the hearing prepared by a certified court reporter, if it already exists, or an audio-recording or video-recording of the hearing, which is available for purposes of preparing a certified transcript of the noticed public hearing for purposes of the appeal.

L. "Substantial evidence" means such facts:

1. That a reasonable mind would accept as adequate to support a conclusion, even if other conclusions might also be reached; and

2. That is reasonable in nature, credible, and of solid value.

M. "Working day" means a day when the office of the clerk of the board of supervisors is open for business. Weekends, county holidays, and days when the office is closed for regular business due to a declared or posted emergency do not constitute working days.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1395, § 1, 12-16-2014; Ord. No. 1465, § 1, 12-15-2020)

A. The procedures and standards of review provided in this chapter shall apply to all appeals brought before the board regarding any decision made by any decision maker to grant, deny or condition a permit; except that if a different procedure to appeal a determination has been established elsewhere in this code, by state or county guidelines or other regulations adopted to implement the California Environmental Quality Act, or by any state or federal law applicable to the permit, those procedures shall control.

B. Except as provided herein as to the board's procedures in considering appeals, none of the provisions of this chapter shall apply to any other final determination, decision or action of the board.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 2, 12-15-2020)

Unless otherwise provided in this code, an appeal may be filed by any interested person affected by any decision made by any decision maker.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 3, 12-15-2020)

A. An appeal is commenced by filing a notice of intent to appeal along with payment of the accompanying fees with the clerk within ten working days of the decision. Payment of fees, as established by the then current board resolution establishing fees for appeals, shall be made by check made payable to "Napa County," or any other manner acceptable to the clerk. For purposes of this section, the first day of the period within which the notice of appeal may be filed shall be as follows:

1. The first full calendar day following the decision maker's vote at a noticed public hearing or the public announcement of the decision being appealed if such an announcement was made at a noticed public hearing; or

2. If the decision, or the announcement of the decision, was not made at a noticed public hearing, five calendar days after the date a notice of decision is deposited in the U.S. mail by county staff and addressed to all persons or entities who are required by the applicable provision of this code or by the applicable provision of state or federal law to be notified of the decision.

B. The notice of intent to appeal must be filed with the clerk in writing, and may be submitted by personal delivery or by first class U.S. mail, but must be delivered, transmitted, or mailed in such a manner as to be received by the clerk by the close of business on the working day specified in this chapter. As a record of the date that the notice of intent is filed, the clerk shall note or stamp the date of receipt on the notice of intent to appeal. For purpose of this subsection, "close of business" shall mean 2:00 p.m. Pacific Time. The clerk is not authorized to change, waive, or postpone the deadline under any circumstances.

C. A notice of intent to appeal shall include a description, sufficient for reasonable identification of the subject of the appeal, of the name and nature of the permit that was the subject of the decision, the nature of the decision being appealed, the date of the decision being appealed, and the name, address, and telephone number of the appellant.

D. If no notice of intent to appeal is filed with the clerk with respect to a decision within the time period set forth in this Section 2.88.040, the decision shall be deemed final and conclusive upon expiration of such time period.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1369, § 1, 3-13-2012; Ord. No. 1465, § 4, 12-15-2020; Ord. No. 1483, § 1, 8-8-2023)

Editor's note— Ord. No. 1465, § 4, adopted Dec. 15, 2020, changed the title of § 2.88.040 from notice of intent to appeal—time and place for filing—fees to notice of intent to appeal.

A. If a notice of intent to appeal is timely filed, the appellant shall, no later than 2:00 p.m. on the tenth working day after the date of submission of the notice of intent to appeal:

1. Submit to the clerk a complete appeal packet meeting the requirements of this Section 2.88.050; and

2. Submit to the clerk payment of any fee(s) required for the filing and processing of appeals pursuant to the then current board resolution establishing fees or the then current policy manual for the applicable department, excluding any fees already paid with the notice of intent to appeal filed pursuant to Section 2.88.040. The amount of the fees shall be calculated and requested by the clerk at the time the appeal packet is submitted, subject to the clerk's right to provide a more precise statement and supplemental payment request later. Payment of any such fee(s) shall be made by check, made payable to "Napa County," or any other manner acceptable to the clerk.

B. An appeal packet must be delivered to the clerk in hard copy format, or in an electronic format on a digital storage device, by personal delivery or by first class U.S. mail. If any part of appeal packet is submitted in an electronic format on a digital storage device, the appellant shall provide to the clerk an original, wet signature on the appeal packet form, within the same period allowed for the filing of the appeal packet. If any part of the appeal packet is submitted in an electronic format on a digital storage device, the appellant is responsible for ensuring that the data is accessible to the clerk.

C. The appeal packet shall include all of the following:

1. The name and address of the permittee or the person, organization, or entity whose use of property or activities were the subject of the decision being appealed;

2. The name and address of the appellant, if different, and a statement of (1) the nature of the appellant as a person or entity; and (2) the basis for the appellant's qualification as an interested person;

3. The names, addresses, telephone numbers, and email addresses of each person who shall be (a) the primary point of contact for appellant, and (b) the designated representative(s) of the appellant at the mandatory prehearing conference on the appeal and who has authority to speak for appellant on the procedural and evidentiary issues that will be discussed at the prehearing conference;

4. A description, sufficient for reasonable identification of the subject matter of the appeal, of the name of the permit or other matter that was the subject of the decision, the nature of the decision, and the date of the decision being appealed;

5. Identification and description of the specific factual or legal determination(s) made as part of the decision that are the focus of the appeal; and

6. A description of all asserted grounds for the appeal and all arguments, contentions and facts that the appellant believes support the appeal and/or show that the decision was in some manner erroneous. If the basis of the appeal is, in whole or in part, an allegation that the decision maker committed a prejudicial abuse of discretion or that there was a lack of a fair and impartial hearing, such grounds of appeal and the factual and legal bases for such assertions must be expressly stated in the appeal packet. Any grounds of appeal, assertions, or legal or factual arguments that are not set forth in the appeal packet shall be waived.

D. In addition to the requirements stated above, if the decision pertains to or affected use of, interests in, or activities upon real property the appeal packet shall also contain the following:

1. A report prepared by a title company, engineer, architect, radius search service, or ownership listing service, which identifies by name, address, and assessor's parcel number, the owners of all real property located within one thousand feet of any and all portions of the real property that is the subject of the appeal and which certifies by affidavit that the information contained in the report is accurate, complete, and current as of a date no earlier than six months prior to the date of the decision being appealed; and

2. A copy of the assessor's map book pages current as of the date of the decision being appealed that shows all real property which is the subject of the appeal and all properties to which the list of property owners described in subsection (D)(1) of this Section 2.88.050 pertains.

E. It shall be appellant's sole responsibility to ensure that all required items and information required to be submitted as part of the appeal packet are submitted to the clerk before the deadline. The clerk and/or county staff have been directed not to comment on or advise the appellant as to the completeness of the appeal packet. Therefore, the appellant shall not rely on statements made by the clerk or county staff.

F. Receipt of the appeal packet by the clerk and/or county staff does not constitute a representation that the appeal packet is accepted as complete. The clerk may take a reasonable amount of time to determine whether the appeal packet is complete in accordance with this Section.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1395, § 2, 12-16-2014; Ord. No. 1465, § 5, 12-15-2020; Ord. No. 1483, § 2, 8-8-2023)

Editor's note— Ord. No. 1465, § 5, adopted Dec. 15, 2020, changed the title of § 2.88.050 from appeal packet—information to be submitted to appeal packet and payment of fees and costs—time and manner of submissions.

A. Automatic Withdrawal. An appeal filed pursuant to this chapter shall be deemed withdrawn and the decision of the decision maker shall be final and conclusive if any of the following occur:

1. The appellant fails to timely file a complete appeal packet with the clerk;

2. The appellant fails to timely post any required fee(s), including any supplemental fee requested by the clerk, pursuant to Section 2.88.100, below. This includes any failure of payment, such as a check that is denied for insufficient funds or a declined transaction;

3. The appellant fails to timely post any required transcript preparation costs, pursuant to Section 2.88.100, below;

4. The appellant fails to attend the mandatory prehearing conference without good cause as determined in the chair's sole discretion, or fails to comply with the requirements established at the prehearing conference or as set forth in Section 2.88.085.

B. Withdrawal by Appellant. The appellant may withdraw the appeal at any time by filing with the clerk a signed and written request to withdraw. Such a withdrawal is effective upon receipt by the clerk of the written request.

C. No Refund of Fees. In the event of a withdrawal, any fees, including the filing fee, processing fees, and transcript costs incurred by the County, paid shall not be refunded to the appellant.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 6, 12-15-2020)

Any appeal of a decision for which a notice of appeal has been filed in the manner required by this chapter shall be heard by the board unless withdrawn pursuant to Section 2.88.060. At the discretion of the board chair, multiple appeals of the same decision or related decisions may be consolidated for processing and hearing before the board.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 7, 12-15-2020)

Editor's note— Ord. No. 1465, § 7, adopted Dec. 15, 2020, changed the title of § 2.88.070 from hearing by the board of supervisors to hearing by the board.

A. When a timely notice of appeal has been filed and when a complete appeal packet and all required fees have been timely submitted and posted with the clerk, the clerk shall schedule a hearing on the appeal at a regular or special meeting of the board held not less than twenty-five calendar days and not more than ninety calendar days after receipt of the complete appeal packet, as required by Section 2.88.050, above. The board may, in its sole discretion, open and continue the hearing to a date outside of the ninety-day period to ensure the availability and convenience of the board, county staff, and all parties to the appeal. If the appeal is required by state or federal law, or county regulations other than this chapter, to be held within a shorter period, the ninety-day period shall be reduced to the maximum number of days that may expire under such law or regulation before the appeal must be heard.

B. Unless a different requirement for giving notice of the appeal and board hearing or of the mandatory prehearing conference is specified by this code or by any applicable state or federal law or regulation, the clerk shall give notice of the appeal and of the date, time, and place of the hearing on the appeal at least nineteen calendar days before the hearing or the mandatory prehearing conference. Notice shall be by first class U.S. mail (postage paid), or by email, addressed to the parties below, and shall be effective when deposited in the mail or sent by email. Notice shall be provided to the following parties:

1. The appellant(s) and any person identified as the primary point of contact for the appellant or as the designated representative of the appellant, as set forth in Section 2.88.050(C)(3);

2. The applicant(s) or any beneficiary of the underlying permit or decision that is the subject of the appeal, if different than the appellant;

3. Any persons who have requested in writing that they be given notice of an appeal relating to the underlying permit or decision, if such persons have paid any fee imposed by resolution of the board to cover the cost of such notification; and

4. For any appeal pertaining to or affecting use of, interests in or activities upon real property, the owners of all real property located within one thousand feet of any real property that is the subject of the decision being appealed, using the report provided by the appellant pursuant to Section 2.88.050(D), above.

C. In addition to the notice of hearing on the appeal given pursuant to subsection (B), the clerk shall give notice to the decision maker and each county officer or department head who may be concerned with the permit or other action.

D. The county counsel, or their designee, shall arrange a mandatory prehearing conference, as required by Section 2.88.085 of this code and County Policy Manual, Part I, Section 8B, Rule 14.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 8, 12-15-2020; Ord. No. 1483, § 3, 8-8-2023)

Editor's note— Ord. No. 1465, § 8, adopted Dec. 15, 2020, changed the title of § 2.88.080 from scheduling and notice of the hearing to scheduling and notice of the hearing; prehearing conference.

A mandatory prehearing conference shall be conducted in accordance with County Policy Manual, Part I, Section 8B, Rule 14. The prehearing conference will be held among the board chair or designee, clerk of the board or designee, county counsel or designee, one person designated by each appellant to attend the prehearing conference with authority to speak for that appellant, and, if different from the appellant, the applicant on the underlying subject of the decision being appealed. If an appellant fails to appear at the prehearing conference, without good cause as determined by the chair, in the chair's sole discretion, or if an appellant fails to comply with the requirements established at the prehearing conference or set forth in the County Policy Manual, Part I, Section 8B, Rule 14, then the appeal shall be deemed withdrawn, pursuant to Section 2.88.060, above, and the decision of the decision maker shall be final and conclusive.

(Ord. No. 1465, § 9, 12-15-2020)

A. Standard of Review. The board shall exercise its independent judgment, based on substantial evidence on the record on appeal, or such extrinsic evidence as may be allowed pursuant to this section, in determining whether to grant or deny the appeal, or remand the matter, in whole or in part, to the decision maker.

B. Scope of Oral and Written Evidence to be Considered. If the appeal pertains to a decision for which a record on appeal exists, the board, in hearing the appeal, shall base its consideration of the appeal on the record on appeal and any extrinsic evidence submitted by the parties and allowed by the chair for good cause shown. "Good cause" means that the proposed evidence, in the exercise of reasonable diligence, could not have been produced to, or was improperly withheld or excluded from, the decision maker. At the beginning of the hearing on the appeal, prior to opening the public hearing and allowing statements from the parties or other interested persons, the chair shall announce any decision regarding the introduction of such extrinsic evidence to the record. The whole board, by majority vote, may overrule any such decision upon request by an appellant or the permittee, if different.

If no record on appeal exists, or if a de novo appeal is required by other provisions of this code or of state or federal law, then the board shall hear, accept and consider all materials, arguments, information, and evidence (including summaries of expert testimony, reports or opinions to be offered at the hearing) that are presented by the appellant, the applicant or any other person orally at the public hearing on the appeal, or in writing if submitted in a timely manner as governed by the County Policy Manual, Part I, Section 8B, Rule 14, or by the following timing:

1. For all appeals in which a prehearing conference is held, the deadline on submissions and the number of copies of evidence, written arguments and materials (including summaries of expert testimony, reports, or opinions to be offered at the hearing) that must be submitted is governed by County Policy Manual, Part I, Section 8B, Rule 14.

2. For all appeals in which no prehearing conference is held, or as to persons who are not among the categories of participants in the prehearing conference as set forth in Section 2.88.085, all evidence, written arguments, and materials that any person wishes to have the board consider on the appeal (including summaries of expert testimony, reports, or opinions to be offered at the hearing) must be submitted to the clerk no later than five calendar days before the board hearing date, as may be continued from time to time. As to any materials and evidence submitted to the clerk five days or more prior to the scheduled board hearing date, only one copy of such materials and evidence need be provided to the clerk.

3. If the person or party that proffers evidence or materials for consideration by the board did not provide the clerk with copies in a timely manner pursuant to this provision, the clerk shall exclude any such evidence or materials from consideration by the board and from the administrative record for the project, but shall retain the evidence or materials as part of the record of the meeting.

C. Procedure for tentative decision, preparation of findings, and final decision. After the close of the public hearing and after board discussion of the appeal, or, if applicable, after remand to staff or to the decision maker for preparation of an advisory report and return of the appeal to the board for decision, the board shall either (a) issue a tentative decision on the appeal to affirm, reverse, or modify the decision being appealed and refer the matter to County Counsel for preparation of a proposed resolution of findings of fact and decision on appeal, or (b) vote to waive the preparation of findings and to make a final decision to either affirm, reverse or modify the decision being appealed without a referral to county counsel. Upon the board's issuance of a tentative decision and referral to county counsel, the clerk shall continue the board item on the appeal for the sole purpose of the board's consideration of whether the resolution prepared by county counsel accurately reflects the board's intent in rendering the tentative decision and for the purpose of the board's rendition of a final decision on the appeal. The date for the board's consideration of the resolution shall be no later than sixty days after the board's announcement of its tentative decision, unless that period is extended by the board for good cause.

D. Finality of decision and notification of decision on appeal. The board's decision shall be final immediately upon adoption of a resolution of findings of fact and decision on appeal, or if the board waives the preparation of findings, immediately upon the final decision on the appeal. The clerk shall provide the resolution of findings of fact and decision on appeal, or the minutes of the board's action if the preparation of findings of fact was waived, by e-mail and first class U.S. mail (postage paid) to the applicant(s) or designee, to all appellants or their designees, and to all persons who have requested in writing that they be given notice of the decision, if such persons have paid any fee imposed by resolution of the board of supervisors to cover the cost of such notification. The resolution, together with the minutes of the meeting and action, shall also be posted online and shall be made available for viewing in the clerk of the board's office.

E. Issuance of ministerial permits based on decision on appeal. No building, environmental management or other ministerial permit shall be issued for the purpose of authorizing construction that is allowed to go forward as a result of the board's decision on an appeal until the date the board's decision becomes final and effective pursuant to the provisions of subsection (F) of this Section 2.88.090, above.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 10, 12-15-2020)

A. The record on appeal shall be prepared in the manner determined by the clerk in consultation with county counsel. The staff of the decision maker whose decision is the subject of the appeal shall assist the clerk as necessary in preparation and forwarding of the record on appeal to the clerk for presentation to the board prior to the hearing on the appeal. This shall include preparation of a transcript of any hearing held before the decisionmaker if it was audio-recorded or video-recorded.

B. The actual cost incurred by the county in preparing the record on appeal shall be borne by the appellant, or, if there are multiple appellants, either (1) shared in equal proportion by the appellants, or, (2) if a reasonable basis exists for allocation of the costs to the separate appeals on some basis other than a simple division of the costs in equal shares, then borne by each appellant in shares that correspond to the costs incurred by the county in connection with each appeal. The multiple appellants shall be jointly and severally liable for such costs, and the clerk shall not be responsible for determining the allocation among such appellants. If any party requests accelerated preparation of transcripts of proceedings recorded by a certified court reporter, that person shall pay the additional fee required by resolution of the board for such expedited preparation.

C. Payment of the costs of preparing the transcript of the hearing on the decision being appealed (if decision was made at a public hearing) will be paid to the clerk, by check made payable to "Napa County", or by any other manner acceptable to the clerk, and shall be due upon completion of transcripts within fifteen days of written notification by the clerk, but no later than thirty days before the hearing on the appeal, whichever is earlier. Any supplemental request for payment of hourly fees will be due within fifteen days of the date of such a request, but no later than thirty days before the hearing on the appeal. If appellant has not paid such costs when they become due, the appeal shall be deemed withdrawn, pursuant to Section 2.88.060, above. Notwithstanding such withdrawal, the appellant shall remain liable for the excess cost of preparing the record. If such amount is not paid within thirty days following notification to appellant of the excess amount, the amount shall become a debt of appellant to the county which shall be enforceable by the county by civil action in a court of law.

D. If the actual cost of the accelerated preparation requested by an interested person other than the appellant exceeds the estimated additional cost, such actual additional cost shall, if not paid within thirty days of notification to such person, become a debt of such interested person to the county which shall be enforceable by the county by civil action in a court of law.

E. Nothing contained in this chapter shall be deemed to require any commission, board or other agency of the county to record any hearing, and nothing herein shall be deemed to prevent any person from using the services of a certified court reporter to produce a transcript of any proceedings before an agency of the county.

(Ord. No. 1358, § 2, 4-26-2011; Ord. No. 1465, § 11, 12-15-2020; Ord. No. 1483, § 4, 8-8-2023)

Editor's note— Ord. No. 1465, § 11, adopted Dec. 15, 2020, changed the title of § 2.88.100 from record on appeal—costs to payment of certain costs in connection with appeals.

Editor's note— Ord. No. 1465, § 12, adopted Dec. 15, 2020, repealed § 2.88.110, which pertained to reconsideration of decision—fees, and derived from Ord. No. 1358, § 2, adopted Apr. 26, 2011.

Editor's note— Ord. No. 1465, § 13, adopted Dec. 15, 2020, repealed § 2.88.120, which pertained to fees for filing appeals, and derived from Ord. No. 1358, § 2, adopted Apr. 26, 2011; and Ord. No. 1379, § 9, adopted Jan. 29, 2013.