Loading...
HomeMy WebLinkAbout02-14-11 CDC MinutesDUBLIN CITY COUNCIL COMMUNITY DEVELOPMENT COMMITTEE OF THE WHOLE Monday, February 14, 2011 Minutes of Meeting Mr. Reiner, Chair, called the meeting to order at 6:16 p.m. in Council Chambers. Council members present were Mr. Reiner, Vice Mayor Salay, Mrs. Boring, Ms. Chinnici- Zuercher, Mr. Keenan, Mr. Gerber and Mayor Lecklider. Staff members present were: Ms. Grigsby, Mr. Smith and Ms. Readler. Mr. Reiner, Community Development Committee Chair, stated that the purpose of the meeting is to review a proposed Appeal Process to City Council for Planning and Zoning Commission (PZC) administrative decisions. He asked Ms. Readler, Assistant Law Director, to present the background. Background Ms. Readler stated that Council has had previous discussions concerning implementation of an appeal venue for administrative decisions by PZC. The Law Director's office has prepared a draft ordinance. One reason an appeals process is being explored relates to the cost of litigation and the potential exposure the City could face from PZC decisions taken to court for appeal. Chapter 2506 of the Ohio Revised Code (ORC) relates to Administrative Appeals. Legal staff is seeking policy direction regarding certain policy matters related to this process. Overview of Process Ms. Readler presented a brief overview of the draft ordinance, which has been provided in Council's packet. There are three types of applications that could come to Council — conditional uses, final development plans, and amended final development plans. These constitute the majority of PZC cases that have been appealed. The process envisioned is as follows: The applicant files a written appeal with the Clerk of Council within 14 days of a PZC vote; Legal counsel would provide for a stay of PZC's Record of Action until Council has determined whether or not they will hear an appeal, which ensures an applicant of his /her 2506 appeals opportunities available from the PZC decision; Council would then decide in a public meeting by motion whether or not to hear the appeal. This decision is totally discretionary. If Council decides to hear an appeal, a full hearing would be set for 30 days later. A staff and an applicant presentation would be provided at that hearing, in addition to the staff report provided to the Planning and Zoning Commission. No new evidence would be presented at that hearing, which is consistent with what is available to an applicant in a 2506 appeal to court. However, new evidence could be presented if it is in response to an issue that was raised at the Commission hearing. The criteria that Council would use on each of the three applications would be the same criteria that the Code provides for PZC to use. A simple majority vote of the Council members present would be required to approve, approve with modifications, or disapprove the application. Community Development Committee of the Whole February 14, 2011 Page 2 of 7 Policy Issues • Mandatory or Discretionary to Hear Appeal The first policy issue is whether the appeal should be mandatory, in that the applicant is entitled to take the appeal to Council, or discretionary. The proposed language provides for discretionary review to encourage the applicant to make their best effort at the PZC level, and not use the proposed process as a bypass, but rather as a safety valve. What is Council's preference? Ms. Chinnici - Zuercher requested clarification of the desire to make the process discretionary. Ms. Readler responded that it is not desirable to provide a mechanism whereby an applicant is automatically entitled to an appeal to City Council. It could be perceived as PZC not making the final decision, and therefore the applicant could merely undergo the PZC hearing in order to have the entire hearing before City Council. Ms. Chinnici - Zuercher inquired if the discretion is available to Council. Ms. Readler confirmed that would be the case. Mrs. Boring inquired if a policy decision regarding even having such an appeals process is being discussed tonight, or is it assumed that all of Council is in agreement with providing an appeals process? Mayor Lecklider responded that he assumes the intent tonight is to obtain Council feedback for a draft ordinance to be considered at a later meeting. Mr. Smith affirmed that is the case. After Council's input is obtained, the proposed ordinance would be heard by PZC, then ultimately come back to Council for a final vote. Legal has developed this draft ordinance for consideration, based on previous Council direction. Mr. Reiner referred to the statement "no new evidence, unless to address issues raised at PZC hearing. Wouldn't that lead the applicant to present new evidence in response to the concern and negative vote of PZC, and essentially obtain a new hearing? Mr. Smith stated that the applicant does not have a right to a Council hearing. Mr. Reiner stated that he understands that, but he is concerned it would be a process whereby an applicant can improve the application they provided to PZC and obtain essentially a new hearing by Council. The applicant should instead focus on improving their application for the PZC hearing. Ms. Readler stated that it would be possible to limit the hearing to "the record below," which is consistent with the court standard for a 2506 appeal. The proposed ordinance is a practical approach, as many times issues are raised that could be easily clarified at a new hearing. The language only contemplates additional evidence in response to staff or PZC concerns that were raised at PZC. Community Development Committee of the Whole February 14, 2011 Page 3 of 7 Mrs. Boring stated that she is concerned with that aspect as well. She agrees that the additional evidence would address an issue previously raised, but Council is not sure how PZC would want that issue to be addressed. She shares Mr. Reiner's concern. Mr. Gerber stated that if Council would hear the appeal in lieu of the county court, then the same rules should apply in regard to new evidence. He would prefer not to waiver from that standard. Mayor Lecklider stated that is how he understands the ordinance as drafted — that it must be related evidence presented solely for the purpose of clarifying something that was presented at the PZC hearing. Mr. Smith noted that is correct. It would be only to clarify -- no new evidence would be presented. Mayor Lecklider stated that he does not believe that an applicant would not make their best effort at a PZC hearing, as the appeal to Council is discretionary. Council could choose not to hear the appeal. The language in the ordinance states that, "In considering the appeal, City Council shall only consider such evidence as was presented in the original hearing." It goes on to say, "City Council may consider new evidence..." That language indicates it is at Council's discretion. Mr. Smith concurred. Mr. Gerber stated Council would have the discretion not only of whether to hear the appeal, but also the discretion of whether they will permit any additional evidence to provide clarification of the facts. Council consensus was that the appeal be discretionary. • Who Can File An Appeal Ms. Readler stated that the next policy issue is that, as the ordinance is drafted, only the applicant can file the appeal. The applicant could include the City of Dublin. If the City is the applicant, theoretically, the City Manager could file the appeal. In a 2506 appeal, there is a broader definition of who can file an appeal. Included are people who are affected negatively by the decision, which could be adjacent property owners. Legal staff did not want to open the appeal process to residents or other developers, and therefore the proposed language provides for only the applicant to be able to file an appeal. There are some examples from other cities of City Councils being able to file an appeal. In that case, if PZC approved an application that Council disagreed with, a Council member could file an appeal. Legal staff is not advocating that, but it is an option. Vice Mayor Salay recalled a previous situation in which a neighborhood filed an appeal with the court. In that case, then, as in other cases, it is Council's view that the appeal would be better decided by Council than in the court. If Council has the discretion whether to hear an appeal, why wouldn't Council want to permit City residents or a developer to submit an appeal? Council has the discretion of whether or not to hear it. It would keep these kinds of cases local versus being filed in court. Community Development Committee of the Whole February 14, 2011 Page 4 of 7 Ms. Readler responded that Legal staff attempted to draft the language more narrowly. The primary objective was to avoid litigation. It is a rare situation in which a neighborhood pursues an appeal. The language would cover the majority of cases; however, the list can certainly be expanded to include other interested parties. Mr. Gerber inquired how an appeal hearing would be conducted before Council. Mr. Smith responded that rules would be drafted to address the hearing process. However, it is anticipated Council would be provided with the existing staff report; staff would highlight the facts of the case; the applicant would be permitted to do the same; Council would have an opportunity to ask questions; and a Council vote would be taken. Mr. Gerber inquired if Council is qualified /prepared to handle the multiple issues involved in such an appeal. Mr. Smith responded that various courts handle appeals differently. However, in this case, tighter rules would be written. He would not anticipate that there would be more than one or two such cases heard per year. Mr. Gerber indicated that he has somewhat conflicting opinions regarding who can file the appeal, because in some rare cases, Council might want to permit someone other than the applicant to do so. Ms. Chinnici - Zuercher stated that she would be interested only in hearing appeals from an applicant. There is a public venue at P &Z in which everyone else can provide their comments and attempt to convince the Commission of their position. It is the applicant who would typically invest the money for an appeal. It is not wise to open the door for anyone to file an appeal. She perceived this process to be an option provided to the party who would typically be filing in court. Mrs. Boring concurred with Mr. Gerber. PZC is appointed by Council, so it could become quite political. How do other cities handle the issue of other interested parties who want to file an appeal? Ms. Readler responded that the City Code she is aware of permits only the City Council, the developer and the landowner to file appeals. It may also permit adjacent property owners to file, but does not extend the right to other interested parties. Mr. Reiner, Mr. Gerber and Mr. Keenan expressed support for limiting the right to file an appeal to the applicant only. Vice Mayor Salay stated that the City had this type of situation occur several years ago; the applicant eventually filed an appeal. The site was at the corner of Woerner Temple and Emerald Parkway — Emerald Town Center, which is now beginning to be developed. The outcome at this point is a nice neighborhood center. Had the adjacent property owners not been able to file that appeal, the City would now have a 10 -12 pump gas station on that corner. The neighborhood's ability to "massage the plan" resulted in a much better project. It can become political, but Council Members are elected officials, so that is to be expected. Community Development Committee of the Whole February 14, 2011 Page 5 of 7 This is Council's ultimate responsibility. The appeal process is discretionary, so Council is able to decide whether or not to hear an appeal. Ms. Chinnici - Zuercher commented that therein lies the problem. What are the criteria that an elected body could legitimately use to deny hearing one appeal and agree to hear another? That type of situation is very difficult. In her view, with the example just provided, the City's current process should have been used to manage the case more effectively to result in the ultimate outcome. The Planning staff and Planning & Zoning Commission should have engaged those members of the public who "massaged" the project before the Commission approved it. Vice Mayor Salay concurred, but noted that the City currently has a Planning & Zoning Commission that does not like to engage the residents. Commission members have indicated to Council that they do not want to speak with the residents. Her preference is to permit adjacent property owners the right to an appeal. Mayor Lecklider asked for clarification. Is she stating that if the adjacent property owner in the example given would have had the right to an appeal, it would have come before the Council, and the City would have avoided the 2506 appeal that occurred? Vice Mayor Salay responded that would have been a possibility. She believes it was an unsatisfactory hearing with the PZC. The residents had information they wanted to present, but the meeting process was altered. The neighborhood made the decision that they absolutely could not accept the PZC's decision. They had no alternative but to file an appeal. A liquor option was involved. The residents spent a significant amount of money on the appeal. It was a difficult process experienced by the residents, which, in a city such as Dublin, should not have been necessary. Mayor Lecklider stated that he supports limiting the appeal to the applicant. He believes it would be an extraordinary situation in which Council would decide to hear an applicant's appeal. That would not foreclose anyone else from pursuing a 2506 appeal to the court. It is hoped that there are no other situations in the future for which a neighborhood must resort to the appeal process. Mr. Smith stated that in the example referenced, the neighborhood filed a 2506 appeal, and the City funded the attorney to appeal for them. It was the only time he recalls that ever occurred, and it was an extraordinary case. The City was involved in the appeal. Vice Mayor Salay stated that the neighborhood's position was that they had the ability to affect the liquor license permit for the gas station /convenience store. In response to their position, the applicant, UDF, withdrew their request. Mr. Reiner summarized that the majority of Council members support limiting the right to file an appeal to the applicant. • Should Council Have the Right to Appeal P &Z Decision Ms. Readler stated that another issue for discussion is whether City Council should have the right of appeal. Community Development Committee of the Whole February 14, 2011 Page 6 of 7 Mrs. Boring inquired if Council would hear its own appeal. Mr. Smith responded affirmatively. An example of a situation Council might want to appeal would be for a sign that involves a large corporation. Council may want to avoid a year -long delay for a judge to hear the case. Mr. Gerber stated that, several years ago, Council considered this issue in a discussion regarding PUDs. Their position at the time was that they wanted the applicants to present the best case possible, Council would trust PZC to make the right decision, and support their decision. He is fearful this process could begin to erode the confidence in that process. Mr. Smith responded that the draft language does not provide Council the ability to file an appeal. Legal staff is requesting Council's input on this. Council consensus was that Council not be permitted to file an appeal. • Evidence Presented at Hearing Ms. Readler asked if the record should be limited to the testimony at the PZC hearing, and that any additional evidence must be related to comments and concerns raised at that hearing. Mr. Smith suggested the language be revised to indicate any additional evidence must be limited to clarification of points raised in the record. Is that the consensus of Council? Council concurred. Ms. Readler noted that the language would be tightened accordingly. • Maiority versus Super Maiority Vote Requirement Mr. Readler stated that the draft ordinance provision for Council's vote is that on both the motion of whether to hear an appeal and the motion to approve or disapprove modifications, a simple majority is necessary. Would Council prefer to make that a super majority in either instance? A simple majority is the majority of Council members present. A super majority is a requirement for five votes, regardless of how many are present. Council consensus was for a simple majority to suffice in both cases. • Filing Fee Requirement Mr. Gerber stated that he supports a filing fee be required. Ms. Readler inquired if the fee would also be required for initially filing for consideration. Mr. Smith stated that his recommendation would be that there would be a fee imposed only if Council decides to hear the appeal. Council concurred. Ms. Readler inquired if Council members have any other issues to raise regarding the legislation. Recommendation Mr. Reiner inquired Council members' interest in pursuing this type of legislation. Community Development Committee of the Whole February 14, 2011 Page 7 of 7 Mr. Gerber stated that the previous discussion and position of Council was to be supportive of the PZC's decisions. However, in recent years, there seems to be a growing trend for applicant appeals. So perhaps this legislation is necessary. Mr. Smith noted that he envisions the process would be used rarely. This legislation would provide Council the option. Council can still refuse to hear an appeal and allow the case to proceed to court. Council members expressed unanimous support for pursuing the legislation. Mr. Reiner requested that the language be revised per tonight's discussion and provided to Council for review. Mr. Smith stated that the revised ordinance would be provided to Council in an interim packet. It can be reviewed at the next Council meeting, and then forwarded to PZC for review and a recommendation to Council. Ms. Chinnici - Zuercher stated that her recommendation is that when the legislation is heard by PZC, the Commission should engage in a thorough discussion in one evening, then forward a recommendation to Council without delay to avoid the potential for more court cases. Mr. Smith noted that there are a couple of developers who are monitoring the status of this proposed legislation in relation to pending cases. The meeting was adjourned at 6:50 p.m. Clerk of Council