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HomeMy WebLinkAbout08-27-1990 COUNCIL AGENDA STAFF REPORTSSARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. �q 3 AGENDA ITEM g� MEETING DATE: C) CITY MGR. APPROVAL ORIGINATING DEPT: City Manager SUBJECT: Appeals to City Council Recommended Motion: proposed ordinance. Approval of Negative Declaration and adoption of Report Summary: Pursuant to a recommendation by the City Manager, an ordinance has been prepared amending the appeal provisions of the City Code to establish a process for Council- initiated reviews. The proposed ordinance is explained in more detail in the Memorandum from the City Attorney submitted herewith. The ordinance was considered by the Planning Commission at its regular meeting on May 9, 1990, at which time the Commission recommended that: (a) The ordinance not be adopted; (b) If adopted, the ordinance be changed to require the concurrence of two Councilmembers in order to initiate a review. Fiscal Impacts: Minimal. Some reduction in receipt of appeal fees is possible if reviews are initiated by the City Council where an appeal would have been filed by the applicant or an interested party. Attachments: (a) Memorandum from City Attorney to City Council. (b) Memorandum from City Attorney to Planning Commission. (c) Proposed Ordinance. (d) Minutes of Planning Commission meeting on May 9, 1990. (e) Negative Declaration. Motion and Vote: /Z'7 ATKINSON • FARASYN ATTORNEYS AT LAW PAUL B. SMITH 660 WEST DANA STREET J. M. ATKINSON (1892 -1982) LEONARD J. SIEGAL P.O. BOX 279 L. M. FARASYN (1915-1979) HAROLD S. TOPPEL ROBERT K. BOOTH. JR. MOUNTAIN VIEW, CALIFORNIA 94042 STEVEN G. BAIRD (415) 967 -6941 MEMORANDUM TO: Saratoga City Council FROM: Hal Toppel, City Attorney RE: Appeals to the City Council AZO -90 -002 DATE: June 21, 1990 Under the existing provisions of the City Code, administrative decisions and decisions by the Planning Commission on project applications will be final unless appealed to the City Council. An appeal can be initiated by either the applicant or any interested person, but there is no procedure for the City Council to "call-up" a matter for review in the absence of an appeal being filed. Thus, on one occasion where a Councilmember had strong feelings about an approval which had been granted by the Commission, the Councilmember himself filed a notice of appeal and thereby became the appellant. (He lost the appeal). As noted in my Memorandum to the Planning Commission dated April 16, 1990, a copy of which is submitted herewith, a provision for Council- initiated review was added to the City Code during the early 801s, but shortly thereafter was repealed. During the time the procedure was on the books, it was never used. Unlike the proposed ordinance, the former procedure required a vote by the entire Council on whether a matter should be reviewed. This approach would now be rather difficult to follow under the current restraints of the Brown Act, as explained in my Memo to the Planning Commission. The proposed ordinance would allow any single Councilmember to initiate review of an administrative or Planning Commission decision by communicating a request for such review during any Council meeting conducted within 15 days after the decision is rendered. In order to provide sufficient time for the Councilmembers to become aware of a decision and initiate a review, the appeal period must be extended from 10 to 15 days. The extended time would also be available to any other person who desires to file a notice of appeal. While the Planning Commission certainly recognized the right of the City Council to review any and all decisions the Commission may render, the Commission felt that the proposed ordinance should not be adopted. The Commission was primarily concerned that the ordinance would result in pressure to initiate a review being placed upon individual Councilmembers by their own constituents. Where a request is made by a friend or political supporter, the Commissioners believed it would be -1- uncomfortable, at the least, for any Councilmember to say no. The ordinance was therefore perceived as creating a risk of politicizing the appeal process and subjecting the Councilmembers to additional burdens in their dealings with the public. If the Council decides to adopt the ordinance notwithstanding the negative recommendation from the Planning Commission, the Commission strongly suggests that the ordinance be revised to require the concurrence of two Councilmembers in order to initiate any review. The Commission felt that the need for a second "vote" would serve to mitigate the potential pressures upon individual Councilmembers. It might also serve to limit the number of Council- initiated reviews by requiring at least one other Councilmember to share the opinion that a review is necessary. The proposed ordinance would have no effect upon the right of the applicant or any interested person to file a notice of appea). -2- ATKINSON • FAEASYN ATTORNEYS AT LAW PAUL B. SMITH 660 WEST DANA STREET LEONARD J. SIEGAL R.O. BOX 279 ..AROLD S. TOP PEL ROBERT K. BOOT.., JR. MOUNTAIN VIEW, CALIFORNIA 84048 STEVEN G. BAIRD 14151 967 -6941 M E M O R A N D U M TO: SARATOGA PLANNING COMMISSION FROM: HAROLD S. TOPPEL City Attorney DATE: April 16, 1990 RE:- Appeals to City Council.. AZo -o- va I,- AGENDA ITEM 10 J. M. ATKINSON 11892-9821 L. M, FARASYN 0915 -19791 The.City Manager has recently proposed 26 administrative and legislative changes to strengthen the development review process. One of these changes is to restore a mechanism for the City Council to initiate its own review of - an administrative or Planning Commission decision. The provision for a Council "call - up" was adopted during the early 80's but later was repealed because the procedure was never used.- There were also some complaints from applicants over the extension of the appeal period from 10 to 15 days, thereby delaying the issuance of permits. The proposed ordinance will amend the general appeal provisions set forth in Section 2- 05.030 of the City Code, together with the appeal provisions contained in Article '14 -85 of the subdivision regulations and Article 15 -90 of the zoning regulations. The changes are indicated by handwritten notations on the ordinance. In order to accommodate the process for Council review, the appeal period would be extended from 10 to 15 days (as in the case of the earlier procedure). The existing 10 -day period does not allow sufficient time for the Council to become aware of a decision and to react by initiating its own review. There are several possible ways in which a review could be initiated by the City Council. One method would be to require that a formal vote be taken to "call up" an administrative decision or a decision by the Planning Commission. The problem I see with this approach is that those Councilmembers who are not familiar with the particular decision may not feel adequately informed to cast a vote on the necessity for an appeal. In addition, a majority vote by the Council may tend to suggest a predisposition in a certain direction before the Council has received the l cojo ail administrative record and conducted a public hearing on the appeal. Finally, a formal vote would constitute an "action" by the Council which would have to be placed on the agenda under the current Brown Act. A two step process would therefore be required: first, a directive to place the matter on the agenda for the next Council meeting, and second, a vote at the next Council meeting on whether to initiate the appeal. This process could not be accomplished in 15 days. An alternative method might be to require the concurrence of at least two Councilmembers, but not a majority vote. Although it can be argued that a "call -up" at the request of two Councilmembers is not an action by the City Council as a whole, the necessity to obtain a second Councilmember to support the appeal may lead to the same type of discusion as would have occurred if a majority vote was required. A third alternative, and the one adopted by the proposed ordinance, is to allow any single Councilmember to initiate a review by communicating a request for such review to the City Clerk during any Council meeting conducted within 15 days after the decision is rendered. The requirement for such request to be made during the course of a Council meeting will serve to inform the other Councilmembers and the public that a review has been initiated. - The proposed ordinance would in no way affect the right of either the applicant or any other person to file a notice of appeal, except that a longer 15 -day period is now provided in which to do so. The hearing conducted by the City Council, the scope of review and the possible action taken by the Council would be the same whether the appeal was initiated through the filing of a ,-.notice or in response to a request from a 4uncilmember. Saratoga City Attorney 2 G00©51 ORDINANCE NO. 71. AN ORDINANCE OF THE CITY OF SARATOGA AMENDING SECTION 2 -05.030, ARTICLE 14 -85 AND ARTICLE 15 -90 OF THE CITY CODE CONCERNING APPEALS TO THE CITY COUNCIL The City Council of the City of Saratoga hereby ordains as follows: SECTION 1: Section 2- 05.030 in Article 2 -05 of the City Code is amended to read as follows: "S2 -05.030 Appeals (a) Right to appeaL Except where an appeals procedure is otherwise specifically set forth in this Code, any interested person objecting to the whole or any portion of an administrative determination or decision made by a commission, committee or an official of the City, where such determination or decision involves the exercise of administrative discretion or personal judgment pursuant to any of the provisions of this Code, may appeal to the City Council by filing with the City Clerk a notice of appeal clearly identifying the determination or decision from which the appeal is taken and stating the grounds for the appeal. The notice of appeal shall be accompanied by the payment of a filing fee in such amount as established from time to time by resolution of the City Council. (b) No appeal from ministerial acts. No right of appeal to the City Council shall exist when the decision or action is ministerial and does not involve the exercise of administrative discretion or personal judgment pursuant to any of the provisions of this Code. (c) Time limit on notice of appeal The appellant shall file the notice of appeal with the City Clerk and pay the filing fee thereon within fifteen days after the date on which the determination or decision is rendered. -� (d) Appeal upon initiative of City Councilmember. Regardless of whether a notice of appeal is filed, any member of the City Council may initiate proceedings for review by the City Council of any administrative determination or decision which is appealable pursuant to this Section. A request for such review shall be communicated by the Councilmember to the City Clerk during any regular or adjourned meeting of the City Council held within fifteen days after the date on which the determination or decision is rendered. Upon a review being initiated by a Councilmember, the same procedure shall thereafter be followed as set forth in this Section and the City Council may take any action as provided in Paragraph (g) hereof. (e) Schedule of hearing; notice. Upon the filing of the notice of appeal and payment of the appeal fee, or upon an appeal being initiated by a member of the City Council. the City Clerk shall schedule the matter for hearing at the next available regular meeting of the City Council to be held within thirty days after the date on which th4Xappeal is filed or initiated. The City Clerk shall give notice of -1- G0+)05Z the date, time and place of the hearing to the appellant, and to the applicant if other than the appellant, not less than ten days prior to the hearing, unless such notice has been waived by the party entitled to receive the same. If a public hearing is conducted on the appeal, notice thereof shall also be published once at least ten days prior to the hearing in a newspaper having general circulation in the City and mailed or delivered at least ten days prior to the hearing to any other persons who were entitled under the provisions of this Code to receive notice of the proceedings at which the administrative determination or decision was made. (f) Conduct of hearing by City Council. The City Council shall conduct a de novo review on the appeal, but no public hearing shall be required unless the determination or decision was made in connection with a proceeding which required a public hearing; provided, however, that nothing herein shall prevent the City Council, in its discretion, from receiving testimony or other evidence from any person pertaining to the subject matter of the appeal. Decision by City Council. The City Council may affirm, reverse or modify the determination or decision which is the subject of the appeal, and may refer the matter back to the original maker of the determination or decision for such further action as may be directed by the Council. Where an appeal has been filed pertaining to only a portion of a determination or decision, the City Council shall have authority to review the entire matter and may affirm, reverse or modify all or any other portion of the determination or decision notwithstanding the fact that no appeal has been taken therefrom. (h) Time limitati on for judicial review. Any action or proceeding to attack, review, set aside, void or annul a decision by the City Council on an appeal taken pursuant to this Section, or any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall be commenced within ninety days after the date such decision is rendered by the City Council." SECTION 2: Section 14- 85.020 in Article 14 -85 of the City Code is amended to read as follows: "514- 85.020 Time limit on notice of appeal The appellant shall file the notice of appeal with the City Clerk and pay the filing fee thereon within fifteen days after the date on which the determination or decision by the advisory agency is rendered. SECTION 3: A new section 14- 85.025 is added to Article 14 -85 of the City Code, to read as follows: "514 - 85.025 Appeal upon initiative of City Councilmember \ Regardless of whether a notice of appeal is filed pursuant to Section 14- D�,o 85.020, any member of the City Council may initiate proceedings for review by the i` City Council of any determination or decision of the advisory agency which is appealable under this Article. A request for such review shall be communicated by -2- GO3053 the -)uncilmember to the City Clerk during any regular or adjourned meeting of the City Council held within fifteen days after the date on which the determination or \off, decision is rendered. Upon a review being initiated by a Councilmember, the same procedure shall thereafter be followed as set forth in this Article and the City Council may take any action as proviaed in Section 14- 85.050." r SECTION 4: Section 14- 85.030 in Article 14 -85 of the City Code is amended to read as follows: "S14- 85.030 Schedule of hearing; notice Upon the filing of the notice of appeal and payment of the appeal fee, or upon an appeal being initiated. by a member of the City Council, the City Clerk shall schedule the matter for hearing at the next available regular meeting of the City Council to be held within thirty days after the date on which theAappeal is filed or initiated. The City Clerk shall give notice of the date, time and place of the hearing the appellant, and to the applicant if other than the appellant, not less than ten days prior to the hearing, unless such notice has been waived by the party entitled to receive the same. If a public hearing is conducted on the appeal, notice shall be given in accordance with Section 14- 20.060 of this Chapter." SECTION 5: Section 14- 85.050 in Article 14 -85 of the City Code is amended to read as follows: "514- 85.050 Decision by City Council Where the appeal has been filed by the applicant, the Council shall render its decision within ten days after the conclusion of the hearing; where the appeal has been filed by an interested person or initiated by a Councilmember, the Council shall render its decision within seven days after the conclusion of the hearing. The Council may affirm, reverse or modify the determination or decision of the advisory agency, and may refer the matter back to the advisory agency for such further action as may be directed by the Council. If the appeal relates to any matters covered by the provisions of Sections 66473, 66473.5 or 66474 of the Government Code, the decision by the City Council shall include any findings as may be required by such sections. Where an appeal has been filed pertaining to only a portion of a determination or decision by the advisory agency, the City Council shall have authority to review the entire matter and may affirm, reverse or modify all or any other portion of the determination or decision notwithstanding the fact that no appeal has been taken therefrom." SECTION 6: Section 15- 90.050 in Article 15 -90 of the City Code is amended to read as follows: "515- 90.050 Time limit on notice of appeal (a) The notice of an appeal to the Planning Commission shall be together with payment of the filing fee within ten days after the date on wh1 administrative determination or decision is rendered- -3- 003054 'ti) The notice of an ap_ eal to the City Council shall be filed, together with gvmrnt of the filing fee, within fifteen days &` ter the date on which the decision v tf7e Plannina Commision is rendered." SECTION 7: A new Section 15- 90.065 is added to Article 15 -90 of the City Code, to read as follows: "S 15- 90.065 Appeal upon initiative of City Councilmember Regardless of whether a notice of appeal is filed pursuant to Subsections 15- ` 90.040(b) and 15- 90.050(b), any member of the City Council may initiate proceedings for review by the City Council of any decision made by the Planning Commission which is appealable under this Article. A request for such review shall be communicated by the Councilmember to the City Clerk during any regular or adjourned meeting of the City Council held within fifteen days after the date on which the decision is rendered. Upon a review being initiated by a Councilmember, the same procedure shall thereafter be followed as set forth in this Article and the City Council may take any action as provided in Subsection 15- 90.070(c)." SECTION 8: Paragraph (a) of Section 15- 90.070 in Article 15 -90 of the City Code is amended to read as follows: "(a) Schedule of hearing; notice. Upon receipt of the notice of appeal and payment of the filing fee, or upon an appeal being initiated by a member of the Cit Council the City Clerk shall schedule the matter for hearing at the next available reg ar meeting of the City Council to be held within thirty days after the date on which the notice of appeal is filed. The City Clerk shall give notice of the date, time and place of the hearing to the appellant, and to the applicant if other than the appellant, not less than ten days prior to the hearing, unless such notice is waived by the party entitled to receive the same. If a public hearing is conducted on the appeal, notice shall be given in accordance with Section 65091 of the Government Code, except that such notice shall be mailed or delivered to all persons shown on the latest available assessment roll as owning any real property within five hundred feet of the real property that is the subject of the hearing." SECTION 9: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Saratoga hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases may be held invalid or unconstitutional. SECTION 10: This Ordinance shall be in full force and effect thirty days after its passage and adoption. -4- 0131 4) 0 5off s s s s s s The above and foregoing Ordinance was regularly introduced and after the waiting time required by law, was thereafter passed and adopted at a regular meeting of the City Council of the City of Saratoga held on the day of , 1990, by the following vote: A YES: N OES: ABSENT: ATTEST: CITY CLERK -5- MAYOR C03051u PLANNING COMMISSION MEETING May 9, 1990 PUBLIC HEARINGS Continued 10. AZO -90 -002 City of Saratoga, Planning Commission review of amendment to City Code to permit Council review of Planning Commission decisions. ----------------------------------------------------------------- City Attorney Toppel reviewed the Memorandum dated April 16, 1990 and discussed the suggested alternatives by which the City Council could initiate a review of a Planning Commission decision. The Public Hearing was opened at 10:11 p.m. There was no one present who wished to address the Planning ,Commission on this item. BURGER /SIEGFRIED MOVED TO CLOSE THE PUBLIC HEARING AT 10:11 P.M. Passed 5 -0. Commissioner Siegfried commented he would favor the alternative requiring the concurrence of two Councilmembers. Commissioner Tappan stated his feeling was the Council could do what it pleases. However, he would recommend not adopting this ordinance as it would be in the best interest of the Council. Commissioner Burger said she felt the Council might be subject to pressure. Commissioner Siegfried indicated that individual Councilmembers could be put in a difficult position if only one Councilmember could bring an item up, particularly since people are charged for filing appeals. Commissioner Moran said it was a question of how much responsibility the Planning Commission feels comfortable with. She indicated she is happy to serve on a Planning Commission in which the decisions stand firm unless they are appealed to the City Council. She felt the Council would be signalling that it wants to pay closer attention to Planning Commission decisions and wants to take more responsibility for land use and policy implementation. This is a tool that would allow the Council to take a stronger and more decisive leadership position. If that is what the Council has in mind it should go forward with this new structure. Commissioner Moran stated she would be happy either way and felt the Planning Commissioners would take their responsibility.as seriously either way. She agreed with Commissioner Siegfried that two Councilmembers should concur in bringing a matter up. Commissioner Burger stated her recommendation would be that the Council not adopt the change in the ordinance. SIEGFRIED /TAPPAN MOVED TO RECOMMEND THAT THE COUNCIL NOT ADOPT THE CHANGE IN THE ORDINANCE. Passed 5 -0. Commissioner Siegfried requested the Minutes reflect the Planning Commission's consensus that if the Council goes forward with the ordinance the two Councilmember concurrence alternative would be better than the one Councilmember alternative. Commissioner Tappan stated as things are now there is sufficient protection for all concerned. He said he felt the Council would be ill advised to recommend an amendment because it politicizes their position. Commissioner Kolstad said he felt the appeal process is adequate and seems to work.