Chapter 21.93
ADMINISTRATIVE APPEALS
Sections:
21.93.020 Decisions subject to appeal.
21.93.100 General appeals procedure.
21.93.510 New evidence or changed circumstances.
21.93.520 Preparation of record.
21.93.550 Hearing officer decision.
21.93.700 Conflict of interest.
21.93.710 Ex parte communication prohibited.
21.93.010 Appeals, general.
This chapter governs administrative appeals to a hearing officer from actions and determinations taken under the Homer Zoning Code. [Ord. 21-44(S) § 2, 2021; Ord. 08-29, 2008].
21.93.020 Decisions subject to appeal.
a. The following final decisions made under this title by the City Manager, City Planner, City Planner’s designee may be appealed by a person with standing:
1. Approval or denial of a zoning permit.
2. Approval or denial of a sign permit.
3. Approval or denial of any other permit that is within the authority of the City Planner to approve or deny.
4. An enforcement order issued under HCC 21.90.060.
b. The following final decisions of the Commission may be appealed by a person with standing:
1. Grant or denial of a conditional use permit.
2. Grant or denial of a variance.
3. Grant or denial of formal recognition of a nonconforming use or structure, or a decision terminating a nonconforming use or structure.
4. Grant or denial of a conditional fence permit.
5. A decision by the Commission in a matter appealed to the Commission under HCC 21.93.020. [Ord. 22-31 § 1, 2022; Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 5, 2017; Ord. 08-29, 2008].
21.93.050 Standing.
a. Only the following have standing to appeal an appealable action or determination of the City Manager, City Planner, or City Planner’s designee to a hearing officer:
1. The applicant for the action or determination, or the owner of the property that is the subject of the action or determination.
2. The City Manager or City Planner or any governmental official, agency, or unit.
3. Any person aggrieved by the action or determination.
b. Only the following have standing to appeal an appealable action or determination of the Planning Commission to a hearing officer:
1. Applicant for the action or determination, or the owner of the property that is the subject of the action or determination under appeal.
2. The City Manager, the City Planner or the City Planner’s designee, or any governmental official, agency, or unit.
3. Any person who actively and substantively participated in the proceedings before the Commission and is aggrieved by the action or determination.
4. Any person who actively and substantively participated in the proceedings before the Commission and would be aggrieved if the action or determination being appealed were to be reversed on appeal. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 6, 2017; Ord. 14-45 § 1, 2014; Ord. 08-29, 2008].
21.93.070 Time for appeal.
An appeal must be filed within 15 days after the date of:
a. Distribution of the final decision of the City Manager, City Planner, or planning staff members to the applicant or other person whose property is the subject of the matter being appealed; or
b. Distribution of the final decision of the Planning Commission to the applicant and other parties, if any. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 7, 2017; Ord. 08-29, 2008].
21.93.080 Notice of appeal.
a. A notice of appeal from an action or determination of the City Planner or the Planning Commission shall be filed with the City Clerk and shall be accompanied by the planning appeal fee as established in the City of Homer Fee Schedule.
b. A notice of appeal shall be in writing, be signed by the appellant, and shall contain the following information:
1. The name and address of the appellant.
2. A description of the action or determination from which the appeal is sought and the date upon which the action or determination became final.
3. The street address and legal description of the property that is the subject of the action or determination being appealed, and the name and address of the owner(s) of that property.
4. Detailed and specific allegations of error, including reference to applicable provisions of the zoning code or other law.
5. A statement of whether the action or determination should be reversed, modified, or remanded for further proceedings, or any other desired relief.
6. Proof showing that the appellant is an aggrieved person with standing to appeal under HCC 21.93.050.
c. The City Clerk shall reject any notice of appeal that does not comply with HCC 21.93.070 and this section and notify the appellant of the reasons for the rejection. If a notice of appeal is rejected for reasons other than timeliness, a corrected notice of appeal that complies with this section will be accepted as timely if filed within seven days of the date on which the City Clerk mails the notice of rejection.
d. Within seven days of the date on which the City Clerk determines the notice of appeal complies with HCC 21.93.070, copies of the notice of appeal shall be mailed to the appellant, appellee, owner of the property that is the subject of the action or determination, and to owners of record on the Borough Assessor’s records of real property within a 300-foot periphery of the site that is the subject of the proposed action. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 8, 2017; Ord. 08-29, 2008].
21.93.090 Representation.
a. A party to an appeal may be represented by an attorney or may be self-represented. An agency or entity is self-represented when acting through an authorized employee or officer.
b. A party represented by an attorney in the appeal shall file, or cause the attorney to file, and serve on the other parties a document that:
1. Identifies the attorney; and
2. Provides the address, telephone number, facsimile number, and electronic mail address for the attorney. [Ord. 21-44(S) § 2, 2021; Ord. 08-29, 2008].
21.93.100 General appeals procedure.
a. A hearing officer shall be appointed in accordance with HCC 21.91.100.
b. The City Clerk shall notify all parties by mail of the appointed hearing officer. All parties shall have 10 days from the date of mailing of the notice to object in writing to the hearing officer based upon conflicts of interest, personal bias or ex parte contacts. Failure to file an objection to the hearing officer within the 10 days shall waive any objection to the hearing officer.
c. All appeals must be heard and a decision rendered within 90 days after the appeal record has been prepared. The hearing officer may, for good cause shown, extend the time for hearing.
d. The hearing officer will hold a preconference hearing to develop a briefing schedule, set a hearing date, and address other matters as needed related to the appeal hearing.
e. The appellant, appellee, owner of the property that is the subject of the action or determination, and their representatives shall be provided not less than 15 days’ written notice of the time and place of the appeal hearing.
f. A notice of hearing shall be published at least once during the calendar week prior to the appeal hearing date and the notice shall contain:
1. A brief description of the proposal on which the public body is to act;
2. A legal or common description of the property involved and a street address;
3. Date, time and place of the public hearing;
4. A statement that the complete proposal is available for review, specifying the particular City office where the proposal may be examined.
Two weeks prior to the appeal hearing, the notice of hearing discussed in this subsection shall be mailed to owners of record on the Borough Assessor’s records of real property within a 300-foot periphery of the site that is the subject of the proposed action.
g. An electronic recording shall be kept of the entire proceeding. The electronic recording shall be preserved for one year unless required for further appeals. No recording or minutes shall be kept of deliberations that are not open to the public. [Ord. 22-31 § 2, 2022; Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 9, 2017; Ord. 10-41(A) § 1, 2010; Ord. 08-29, 2008].
21.93.110 Appeal decisions.
a. All final decisions on appeals shall be in writing.
b. A decision shall include an official written statement of factual findings and legal conclusions supporting the decision. This statement shall refer to specific evidence in the record and to the controlling sections of the zoning code. The hearing officer may adopt, as their statement of findings and reasons, those findings and reasons officially adopted by the body or officer below from which the appeal was taken.
c. Copies of the written decision shall be promptly mailed to the appellant, appellee, the owner of the property that is the subject of the action or determination, and their representatives. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 10, 2017; Ord. 10-41(A) § 2, 2010; Ord. 08-29, 2008].
21.93.510 New evidence or changed circumstances.
a. Except as provided in subsection (b) of this section, the hearing officer shall not consider allegations of new evidence or changed circumstances and shall make their decision based solely on the record. If new evidence or changed circumstances are alleged, the hearing officer may, in their discretion, either hear the appeal without considering the allegations or may remand the matter to the appropriate lower administrative body or official to rehear the matter, if necessary.
b. When the standing of a person is in issue, the hearing officer may take additional evidence for the limited purpose of making findings on the question of the person’s standing. No evidence received under this subsection shall be considered for purposes other than determining standing. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 12, 2017; Ord. 10-41(A) § 5, 2010; Ord. 08-29, 2008].
21.93.520 Preparation of record.
a. The appeal record shall be completed within 15 days after receipt of a timely and complete notice of appeal. The appeal record shall consist of the items, and shall be prepared in the manner, described in this subsection.
1. The Clerk will assemble and paginate all relevant documents involved in the original decision, including any staff reports, minutes, exhibits, notices, and other documents considered in making the original decision.
2. A party may elect to include a verbatim transcript of the testimony before the Planning Commission in the appeal record by making a written request to the City Clerk for a recording of the testimony within 14 days after the Clerk mails copies of the notice of appeal to the parties pursuant to HCC 21.93.080(d). The requesting party shall arrange and pay for the preparation of the transcript. Only a transcript prepared and certified as accurate by a qualified court reporter shall be accepted. The original transcript must be filed with the City Clerk to be provided to the hearing officer with the record on appeal.
b. The appellant, appellee, owner of the property that is the subject of the action or determination, or any person may obtain a copy of the record upon payment of the costs of reproduction and any applicable mailing costs. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 13, 2017; Ord. 10-41(A) § 6, 2010; Ord. 08-29, 2008].
21.93.530 Prehearing conference.
Repealed by Ord. 22-31. [Ord. 21-44(S) § 2, 2021; Ord. 10-41(A) § 7, 2010; Ord. 08-29, 2008].
21.93.540 Appeal hearing.
Unless otherwise established in the prehearing conference an appeal to a hearing officer will be conducted as follows:
a. Preliminary matters.
b. Oral arguments – 20 minutes each for appellant and appellee. The appellant may reserve a portion of their time for rebuttal or closing comments.
c. The hearing officer may question each of the parties.
d. Adjourn for deliberative purposes. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 14, 2017; Ord. 10-41(A) § 8, 2010; Ord. 08-29, 2008].
21.93.550 Hearing officer decision.
The hearing officer may affirm or reverse the decision of the lower administrative body in whole or in part. A decision affirming, reversing, or modifying the decision appealed from shall be in a form that finally disposes of the case on appeal, except where the case is remanded for further proceedings. A decision by the hearing officer is a final administrative decision appealable under HCC 21.91.130 and is not subject to reconsideration. [Ord. 22-31 § 3, 2022; Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 15, 2017; Ord. 08-29, 2008].
21.93.560 Remand.
a. The hearing officer may remand the appeal to the lower administrative body when the hearing officer determines that:
1. There is insufficient evidence in the record on an issue material to the decision of the case;
2. There has been a substantial procedural error that requires further consideration by the lower administrative body; or
3. There is other cause requiring further proceedings by the lower administrative body.
b. A decision remanding a case shall describe any issue upon which further evidence should be taken, and shall set forth any further directions the hearing officer deems appropriate for the guidance of the lower administrative body.
c. The lower administrative body shall promptly act on the case upon remand in accordance with the decision of the hearing officer. A case on remand has priority on the agenda of the lower administrative body, except cases remanded under HCC 21.93.510(a) are not entitled to priority. The applicant or owner of the property in question may waive the priority given by this subsection. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 16, 2017; Ord. 08-29, 2008].
21.93.570 Other procedures.
If no specific procedure is prescribed by the code, the hearing officer may proceed in an administrative appeal in any lawful manner not inconsistent with this title, statutes, and the Constitution. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 17, 2017; Ord. 08-29, 2008].
21.93.700 Conflict of interest.
A hearing officer or administrative law judge shall refrain from hearing or otherwise deciding a case presenting a conflict of interest. A conflict of interest may arise from a financial or other personal interest of the hearing officer or administrative law judge, or of an immediate family member. A conflict of interest exists if:
a. The financial or other personal interest reasonably could be perceived to influence the official action of the hearing officer; or
b. A hearing officer previously represented or provided legal advice to a party on a specific subject before the hearing officer or administrative law judge. [Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 18, 2017; Ord. 08-29, 2008].
21.93.710 Ex parte communication prohibited.
a. The hearing officer appointed to review a decision issued by the Commission shall not have ex parte communication with any person. “Ex parte communication” means to communicate, directly or indirectly, with the appellant, other parties or persons affected by the appeal, or members of the public concerning an appeal or issues specifically presented in the notice of appeal, either before the appeal hearing or during any period of time the matter is under consideration, without notice and opportunity for all parties to participate in the communication.
b. This section does not prohibit:
1. Communications between municipal staff and Commission or the hearing officer where:
a. Such staff members are not themselves parties to the appeal; and
b. Such communications do not furnish, augment, diminish, or modify the evidence in the record on appeal.
2. Communications between the Commission and its legal counsel.
c. Repealed by Ord. 21-44(S).
d. Repealed by Ord. 21-44(S).
e. Repealed by Ord. 21-44(S).
f. It is a violation, subject to penalties and other enforcement remedies under this title:
1. For any person to knowingly have or attempt to have ex parte communication with a hearing officer in violation of subsection (a) of this section.
2. For the hearing officer to knowingly receive an ex parte communication in violation of subsection (a) of this section.
3. For the hearing examiner to knowingly fail to place on the record any matter that is an ex parte contact. [Ord. 22-31 § 4, 2022; Ord. 21-44(S) § 2, 2021; Ord. 17-07(S-3)(A) § 19, 2017; Ord. 08-29, 2008].