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Home My WebLink About16-3865 CC ExB PC information To: Chair Thiesse and Planning Commission Members Jessica Loftus, City Administrator From: Jeremy Barnhart, Community Development Director Date: September 19, 2016 Subject: #16‐3865, City of Orono, Text Amendment: Appeals Public Hearing List of Exhibits Exhibit A. Draft Ordinance Background Among the priorities for amendments to the city ordinances was the need to clarify the appeal process. An appeal of a decision is one of the fundamental rights a resident has, and the avenue in which to make this appeal, and resolve it in a timely manner required clarification. Currently, references to appeals are located throughout the code, and pertain to administrative decisions made by staff and officials, (2‐41), false alarm penalties (42‐168) permit revocations (18‐111), violations of tobacco regulations (50‐32), Special event permits (66‐225), nuisance abatement (Chapter 70), zoning decisions (Chapter 78), and subdivisions (Chapter 82). Section 1 of the draft ordinance consolidates the appeal process for decisions made by the city administrator or any other city official. This includes alarms, special event permits, site plan process, and vegetative alterations. In all cases, an appeal must be submitted within 10 days of the decision being appealed, to avoid a person requesting an appeal 6 months after a decision was made and acted on. 10 days is a standard appeal timeline. Sections 2‐9, 12, 14 of the draft ordinance amend the various sections of the code which reference administrative type decisions. Section 10 notes that Zoning Board of Appeals (ZBA) decisions on appeals are binding, though they may be appealed to the City Council. ZBA decisions on variances are advisory, the Council makes the final decisions. Section 13 relates to floodplain regulations, and is mandated by the National Flood Insurance Program. Application Summary: The proposed ordinance formally consolidates and clarifies the appeal process for a number of decisions made by city staff, the Board of Appeals, and the City Council. Staff Recommendation: Planning Department Staff recommends approval of the ordinance as drafted. Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7] FILE # 16-3865 September 19, 2016 Page 2 of 2 Section 15 names the Zoning Board of Appeals established for zoning variances is the board for appeals from the administration of the subdivision ordinance. The Zoning board of Appeals in Orono is currently the Planning Commission. Staff Recommendation Staff recommends approval of the ordinance as written. Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7] 1 ORDINANCE NO. ___, THIRD SERIES 1 2 CITY OF ORONO 3 HENNEPIN COUNTY, MINNESOTA 4 5 AN ORDINANCE AMENDING THE CITY ORDINANCE 6 PERTAINING TO FILING OF 7 ADMINISTRATIVE, ZONING, AND SUBDIVISION APPEALS 8 9 10 THE CITY COUNCIL OF ORONO ORDAINS: 11 12 SECTION 1. Section 2‐41 Right to administrative appeal is hereby amended to read as follows: 13 14 Except as otherwise provided, if any person shall be aggrieved by any administrative decision of 15 the city administrator or any other city official, or any board or commission not having within its 16 structure an established review schedule or an appellate procedure, such aggrieved person is 17 entitled to a full hearing before the council upon serving a written request upon the mayor and 18 city clerk at least seven days prior to any regular council meeting. Such request shall contain a 19 general statement setting forth the administrative decision to be challenged by the appellant. 20 An appeal under this section shall be served no later than 10 days following the decision. A 21 hearing on the appeal shall occur at the next regularly scheduled council meeting that is at least 22 seven days after the appeal is served. At such hearing, the appellant may present any 23 evidence he deems pertinent to the appeal; but the city shall not be required to keep a 24 verbatim record of the proceedings. The mayor, or other officer presiding at the hearing, may, 25 in the interest of justice or to comply with time requirements and on the mayor's own motion 26 or the motion of the appellant, the city clerk, or a member of the council, adjourn the hearing 27 to a more convenient time or place; but such time or place shall be fixed and determined before 28 adjournment so as to avoid the necessity for formal notice of reconvening. An employee of the 29 city who is aggrieved by an action or decision of another city employee that relates to their 30 employment shall exhaust the grievance procedures set forth in the administrative and 31 personnel policy before requesting a hearing before the city council. The city council's 32 decision on appeal may only be appealed to the Minnesota Court of Appeals. This Section shall 33 not apply to hearing officer decisions under Section 50‐32; decisions of an administrative officer 34 under Chapter 78; decisions of an administrative officer under Chapter 82; or decisions of the 35 planning director under Section 78‐1604. 36 37 SECTION 2. Section 18‐111 Revocation Subsection (e) is hereby amended to read as follows: 38 39 (e) [Purposely left blank] Any person whose permit is revoked may appeal that revocation to 40 the city council by filing notice of such appeal with the city clerk within ten days of the 41 date the revocation was mailed or delivered. 42 43 SECTION 3. Section 42‐168 User fee sub paragraph (b) is hereby amended to read as follows: 44 45 (b) Any alarm user required by the city to pay a user fee as the result of a false alarm may 46 make a written appeal of the false alarm charge to the chief of police within ten days of 47 notice from the city of the false alarm charge. Following review and determination by the 48 chief of police, such decision may be appealed to the city administrator, who will have the 49 PC Exhibit A Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7] 2 authority to make a final determination as to whether the appellant is to be charged with 50 a fee for a false alarm. 51 52 SECTION 4. Section 50‐32 Violations Subsection (b) is hereby amended to read as follows: 53 54 (a) Hearings. If a person accused of violating this article so requests within 10 days of receipt 55 of a citation, a hearing shall be scheduled, the time and place of which shall be published 56 and provided to the accused violator. 57 58 SECTION 5. Section 66‐225 Denial of permit Subsection (b) is hereby amended to read as 59 follows: 60 61 (b) The city administrator or designee shall act promptly upon a timely filed application for a 62 parade or special event permit, but in no event shall grant or deny a permit less than 48 63 hours prior to the parade or special event and shall include reasons for denial. Any 64 applicant shall have the right to appeal the denial of a parade or special event permit to 65 the city council. The appeal shall be filed within five days after receipt of the denial to the 66 city clerk. The city council shall act upon the appeal at the next scheduled meeting 67 following receipt of the notice of appeal. 68 69 SECTION 6. Section 70‐5 Abatement procedure Subsection (b) is hereby amended to read as 70 follows: 71 72 (b) Summary abatement. The city administrator or designee may provide for abating a public 73 nuisance without following the procedure required in paragraph (a) above when: 74 (1) There is an immediate threat to the public health or safety; 75 (2) There is an immediate threat of serious property damage; or 76 (3) A public nuisance has been caused by private parties on public property. 77 If the city administrator or designee abates the nuisance under this section, he must 78 reasonably attempt to notify the owner, occupant, or other responsible party of the intended 79 action and the right to appeal the abatement and any cost recovery at the next regularly 80 scheduled city council meeting. 81 82 SECTION 7. Section 70‐129 Approval is hereby amended to read as follows: 83 84 All permits are subject to the approval of the city administrator upon recommendation of 85 the chief of police. Appeals of denials of permits are subject to council review. 86 87 SECTION 8. Section 70‐131 Notice to owners of surrounding property is hereby amended to 88 read as follows: 89 90 An annual permit shall require notice to be given to surrounding property owners and an 91 opportunity for them to object prior to issuance of a permit under this subdivision, but such 92 objections shall not require the permit to be withheld. Any person may appeal the denial of a 93 permit to the council. 94 SECTION 9. Section 78‐96 Board established Subsection (a) is hereby amended to read as 95 follows: 96 97 Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7] 3 (a) A zoning board of appeals and adjustments is established. The planning commission is 98 constituted as the board of appeals and adjustments. The decisions of the board are advisory to 99 the council. The board shall have the following powers: 100 (1) To hear and decide appeals from any affected person where it is alleged that there is an 101 error in any order, requirement, decision or determination made by an administrative officer in 102 the enforcement of this chapter. 103 (2) To hear requests for variances in accordance with this chapter. 104 (3) To exercise other functions as provided in this chapter. 105 106 SECTION 10. Section 78‐99 Appeals procedures is hereby amended to read as follows: 107 108 The decisions of the board on requests for variances are advisory and will automatically proceed 109 to the council for review. The decisions of the board on appeals are binding. The applicant or 110 other person or officers of the city affected may appeal a binding decision of the board to the 111 council by filing a written notice stating the action appealed from and stating the specific 112 grounds upon which the appeal is made. The notice shall be accompanied by a fee in the 113 amount prescribed by the current city fee schedule payable to the city, which fee shall not be 114 refundable. An appeal under this section shall be filed no later than 10 days following the 115 decision of the board. 116 117 SECTION 11. Section 78‐100 Subdivisions is hereby amended to read as follows: 118 119 [Purposely left blank] Appeals to the board of appeals and adjustments may be taken by any 120 affected person upon compliance with any reasonable conditions imposed by the subdivision 121 regulations. The board has the following powers with respect to the subdivision regulations: 122 123 (1) To hear and decide appeals where it is alleged that there is an error in any order, 124 requirement, decision or determination made by an administrative officer in the 125 enforcement of chapter 82. 126 (2) To hear requests for varying the regulations as they apply to specific properties where an 127 unusual hardship on the land exists, but variances may be granted only upon the specific 128 grounds set forth in the subdivision regulations. Unusual hardship includes but is not 129 limited to inadequate access to direct sunlight for solar energy systems. 130 131 SECTION 12. Section 78‐143 Review process Subsection (2) is hereby amended as to read 132 follows: 133 134 (2) Planning and zoning coordinator. The planning and zoning coordinator shall make a 135 decision on site plans reviews to change the use of a building or parcel of land; to modify 136 the interior or exterior of a building or site or land feature in any manner that results in a 137 different site design or intensity of use, including the requirement for additional parking 138 or to enlarge a building by less than ten percent of its gross floor area. The planning and 139 zoning coordinator shall have the authority to refer an administrative site plan review to 140 the city council for decision. The owner may appeal the decision of the planning and 141 zoning coordinator to the city council. 142 143 SECTION 13. Section 78‐1134 Subdivisions Subsection (b) is hereby amended to read as 144 follows: 145 146 (b) Administrative review. The city council shall hear and decide appeals where it is 147 Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7] 4 alleged there is error in any order, requirement, decision, or determination made by 148 an administrative official in the enforcement or administration of this article. An 149 appeal must be filed within 10 days of the administrative official’s order, 150 requirement, decision, or determination. 151 152 SECTION 14. Section 78‐1285 Vegetation alterations Subsection (a) is hereby amended to read 153 as follows: 154 155 (a) No live tree within 75 feet of the shoreline or within the bluff impact zone with a 156 diameter of six inches or more (or 19 inches in circumference or greater) measured three 157 feet above the ground may be removed without first obtaining a permit from the city 158 staff, provided that at least the equivalent number of replacement trees of a size and 159 nature found acceptable to the staff are planted at the same setback from the shoreline 160 as those removed. Appeals of staff determinations as to type, size and quality of the trees 161 to be replaced will be to the council. Removal of trees that are dead shall not require a 162 permit, but such trees must be inspected by city staff prior to their removal. 163 164 SECTION 15. Chapter 82 Article II is hereby amended by the addition of the following Section 165 82‐51: 166 167 Sec 82‐51. – Appeals. 168 The zoning board of appeals and adjustments established in Section 78‐96 shall also serve as 169 the subdivision board of appeals and adjustments. The board has the following powers with 170 respect to the subdivision regulations: 171 (1) To hear and decide appeals where it is alleged that there is an error in any 172 order, requirement, decision or determination made by an administrative 173 officer in the enforcement of chapter 82. An appeal under this section shall 174 be filed no later than 10 days following the order, requirement, decision or 175 determination. Appeals to the board of appeals and adjustments may be 176 taken by any affected person upon compliance with any reasonable 177 conditions imposed by the subdivision regulations. 178 (2) To hear requests for varying the regulations as they apply to specific 179 properties where an unusual hardship on the land exists, but variances may 180 be granted only upon the specific grounds set forth in the subdivision 181 regulations. Unusual hardship includes but is not limited to inadequate access 182 to direct sunlight for solar energy systems. 183 The procedures set forth in Sections 78‐97 through 78‐99 apply to determinations of the 184 subdivision board of appeals and adjustments. 185 186 SECTION 16. Section 82‐85 Appeal to the council Subsection (d)(3) is hereby amended to read as 187 follows: 188 189 [Purposely left blank] Appeal to the council. Should any subdivider wish to appeal a 190 recommendation of the planning commission to the council, the subdivider shall, within ten 191 days of the action by the planning commission, file a written appeal with the zoning 192 administrator and pay an appeal fee. Upon filing of an appeal, the zoning administrator shall 193 have ten days to prepare a report and place the appeal on the agenda of the next regularly 194 scheduled council meeting. The council shall review the report and appeal and may concur with 195 the planning commission or may instruct the planning commission to reconsider the 196 application. 197 Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7] 5 198 SECTION 17. EFFECTIVE DATE: This ordinance shall take effect immediately upon its passage and 199 publication. 200 201 ADOPTED this _____ day of _____, 2016 on a vote of __ ayes and __ nays by the City Council 202 of Orono, Minnesota. 203 204 ATTEST: 205 206 207 208 ______________________________ _____________________________ 209 Diane Tiegs, City Clerk Lili Tod McMillan, Mayor 210 211 212 Ordinance published in The Laker and The Pioneer newspapers the week of ________, 2016. 213 Item #09 - PC Agenda - 09/19/2016 File #16-3865 [Total Pages 7]