Division 10-20.80:
Procedures for Appeals
Sections:
10-20.80.010 Purpose
10-20.80.020 Appeals of Interpretations by the Zoning Code Administrator and Director
10-20.80.030 Appeals of Permits and Other Approvals
10-20.80.040 Appeals of Dedications and Exactions
10-20.80.010 Purpose
A. This division establishes the procedures for appeal of administrative and interpretative decisions of administrative officers and determinations rendered by the Zoning Code Administrator, Director, Historic Preservation Officer, Heritage Preservation Commission, and Planning Commission.
B. Table 10-20.80.010.A identifies the review authority responsible for reviewing and making decisions on each type of application required by this Zoning Code. Any action taken by the highest review authority as provided in Table 10-20.80.010.A, Review Authorities, can be appealed by special action to Superior Court in compliance with the Arizona Revised Statutes and the Arizona Rules of Procedure for Special Actions.
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Type of Action |
Code Chapter/Division or Section |
Role of Review Authority |
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|---|---|---|---|---|
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Staff Position |
Board or Commission(s) |
Higher Authority |
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Legislative Actions: |
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Amendments – Zoning Code Text |
10-20.50 |
Director – Recommend |
Planning – Recommend |
Council – Decision |
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Amendments – Zoning Map |
10-20.50 |
Director – Recommend |
Planning – Recommend |
Council – Decision |
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Dedication or Exaction |
Director, Planning, or Council Impose (depending on the level of application review) |
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Administrative Hearing Officer – Appeal |
Superior Court – Decision |
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Heritage Preservation designation |
10-30.30 |
Historic Preservation Officer (HPO) – Recommend |
Heritage Preservation and Planning – Recommend |
Council – Decision |
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Administrative Actions: |
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Completeness Review |
Director – Decision |
Community Development Director – Appeal |
-- |
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Interpretations |
Zoning Code Administrator – Decision |
Board of Adjustment – Appeal |
Superior Court – Appeal |
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Minor Modifications |
Director or Zoning Code Administrator – Decision |
Board of Adjustment – Appeal |
Superior Court – Appeal |
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Planning Permits and Approvals: |
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Certificate of Appropriateness |
10-30.30.060 |
HPO – Recommend |
Heritage Preservation – Decision |
Council – Appeal |
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Certificate of Economic Hardship |
10-30.30.060 |
HPO – Recommend |
Heritage Preservation – Decision |
Council – Appeal |
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Certificate of No Effect |
10-30.30.060 |
HPO – Recommend |
Heritage Preservation – Decision |
Council – Appeal |
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Conditional Use Permits |
Director – Recommend |
Planning – Decision |
Council – Appeal |
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|
Cultural Resource Studies (Letter Reports) |
10-30.30.050 |
HPO – Decision |
Heritage Preservation – Appeal |
Council – Appeal |
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Home Occupation Permits |
Zoning Code Administrator – Decision |
Board of Adjustment – Appeal |
Superior Court – Decision |
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Minor Improvement Permit |
Zoning Code Administrator – Decision |
Board of Adjustment – Appeal |
Superior Court – Appeal |
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Outdoor Lighting Permits |
Zoning Code Administrator – Decision |
Board of Adjustment – Appeal |
Superior Court – Decision |
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Sign Permits |
10-20.40.120 and 10‑20.40.130 |
Zoning Code Administrator – Decision |
Board of Adjustment – Appeal |
Superior Court – Decision |
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Site Plan Review – Development Regulations and Standards |
Director – Decision |
Board of Adjustment – Appeal |
Superior Court – Decision |
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|
Site Plan Review – Supplemental Guidelines |
Director – Decision |
Planning Commission – Appeal |
Council – Appeal |
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Temporary Use Permits |
Director – Decision |
Board of Adjustment – Appeal |
Superior Court – Decision |
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Variances |
10-20.70 |
Zoning Code Administrator – Recommend |
Board of Adjustment –Decision |
Superior Court – Appeal |
10-20.80.020 Appeals of Interpretations by the Zoning Code Administrator and Director
A. Purpose. This section establishes the procedures for appeals from decisions of administrative officers to ensure that these regulations are administered properly and consistently with the policies adopted by the City.
B. Decisions Which May Be Appealed. Appeals may be heard by the Board of Adjustment where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement of these regulations.
C. Filing of Appeal.
1. An appeal may be initiated by any person aggrieved by a decision of the Zoning Code Administrator in the enforcement of this Zoning Code or by any officer, department, board or bureau of the City affected by that decision. Appeals of dedications or exactions required as a condition of granting approval for the use, improvement or development of real property, however, shall follow the appeal procedures set forth in Section 10-20.80.040, Appeals of Dedications and Exactions.
2. A notice of appeal shall be filed with the Zoning Code Administrator and with the Board of Adjustment within 10 calendar days of the date of the decision, determination or interpretation, specifying the grounds for such appeal. The notice of appeal shall be on a form prescribed for this purpose provided by the City. The Zoning Code Administrator may waive or extend this deadline only upon determining that the person filing the appeal received no actual or constructive form of notice of the order, requirement, decision or determination being appealed. The notice of appeal shall be accompanied by a nonrefundable filing fee as established in Appendix 2, Planning Fee Schedule. Failure to file the notice of appeal and fee in a timely manner shall constitute a waiver of any rights to appeal in compliance with this section.
3. Upon the filing of an appeal, the Zoning Code Administrator shall transmit all administrative papers, records and other information regarding the subject matter of the appeal to the Board of Adjustment.
4. Except as provided below, the filing of an appeal shall stay any proceedings in furtherance of the contested action. The Zoning Code Administrator may certify in writing to the Board of Adjustment that, because of facts stated in the certificate, a stay imposes an imminent peril to life or property. The Board of Adjustment shall then review such appeal application and may override the stay of further proceedings. Proceedings shall not be stayed if the appeal requests relief which has previously been denied by the Board of Adjustment except in compliance with a court order.
D. Review. An appeal authorized in compliance with the provisions of this section shall be submitted to the Zoning Code Administrator and shall be reviewed by the Board of Adjustment at a public hearing in compliance with the review schedule on file with Planning Division. The Zoning Code Administrator shall prepare a recommendation in the form of a staff report which shall be submitted to the Board of Adjustment prior to the scheduled public hearing. The staff report shall set forth whether the appeal should be granted or denied, and the grounds for such recommendation.
E. Notification. Public notification of an appeal of a decision of an administrative officer shall be provided in compliance with Section 10-20.30.080, Notice of Public Hearings.
F. Board of Adjustment Public Meeting. The Board of Adjustment shall conduct a public meeting on the requested appeal following the procedures set forth in the Rules of Procedure for the Board of Adjustment.
G. Board of Adjustment Decision. The Board of Adjustment shall review the application and the recommendation of the Zoning Code Administrator and following a public meeting, the Board of Adjustment shall reverse or modify the order, decision, determination or interpretation under appeal only upon finding an error in the application of these regulations on the part of the administrative officer rendering the order, decision, determination or interpretation. The Board of Adjustment shall grant the appeal, grant the appeal subject to specified conditions, or deny the appeal. In modifying the order, decision, determination, or interpretation, the Board of Adjustment shall have all the powers of the officer from whom the appeal is taken. The motion in support of denial of the appeal and the record of the public meeting shall state the reasons and findings of fact the Board of Adjustment used in reaching its decision. (Refer to Section 10-20.30.090, Findings Required).
H. Effect of Reversal or Modification of Administrative Decision. If the Board of Adjustment reverses or modifies an order, decision, determination, or interpretation of an administrative officer, the appellant shall be required to follow the procedures of this Zoning Code for the approval of any permits in order to proceed with the development of the subject property. All orders, decisions, determinations and interpretations made by the review authority as part of those procedures shall be consistent with the reversal or modification granted to the appellant.
I. Appeal from the Board of Adjustment. An appellant or any other person aggrieved by the decision of the Board of Adjustment, or a taxpayer, officer or department of the City affected by the decision, may appeal the decision directly to the Superior Court by filing a complaint for special action within 30 days after the Board of Adjustment has rendered its decision. Filing the complaint shall not automatically stay proceedings on the decision sought to be reviewed, but the Court may grant a stay on application. The Court shall affirm or reverse, in whole or in part, or modify the decision reviewed.
10-20.80.030 Appeals of Permits and Other Approvals
A. Purpose. This section establishes procedures for review of determinations rendered by the Zoning Code Administrator or Director regarding various permits and decisions on site plans, and determinations of the Planning Commission, Heritage Preservation Commission, or Historic Preservation Officer.
B. Permits Issued and Approvals Granted by the Zoning Code Administrator or Director. A decision of the Zoning Code Administrator or Director regarding any of the following may be appealed to the Board of Adjustment in compliance with the appeal procedures established in Section 10-20.80.020, Appeals of Interpretations by the Zoning Code Administrator and Director:
1. Home occupation permit;
2. Minor improvement permit;
3. Outdoor lighting permit;
4. Sign permit (temporary or permanent); and
5. Temporary use permit.
C. Appeal of a Decision by the Director.
1. A decision of the Director regarding the application or interpretation of a regulation or standard of this Zoning Code may be appealed to the Board of Adjustment in compliance with the appeal procedures established in Section 10-20.80.020, Appeals of Interpretations by the Zoning Code Administrator.
2. A decision of the Director regarding the interpretation or application of a design guideline (See Appendix 1.1, Design Guidelines) provided in this Zoning Code, may be appealed to the Planning Commission in compliance with the appeal procedures established in this section.
3. A decision of the Director regarding the completeness of a development application may be appealed in writing to the Director.
D. Appeal of a Decision by the Historic Preservation Officer. Any decision of the Historic Preservation Officer may be appealed by any person aggrieved by such decision to the Heritage Preservation Commission in compliance with the appeal procedures established in this section.
E. Appeal of a Decision by the Heritage Preservation Commission. Any decision of the Heritage Preservation Commission may be appealed by any person aggrieved by such decision to the Council in compliance with the appeal procedures established in this section.
F. Appeal of a Decision by the Planning Commission.
1. A decision of the Planning Commission on a conditional use permit may be appealed to the Council by any person aggrieved by such decision pursuant to subsection (H) of this section.
2. The City Council may elect to review a decision of the Planning Commission on a conditional use permit pursuant to subsection (G) of this section.
3. A recommendation of the Planning Commission to the Council may not be appealed.
G. City Council Review of Conditional Use Permit.
1. Within 10 calendar days of the date of the Planning Commission’s decision, any Councilmember may request of the City Manager that an action item to consider review of the decision be brought before the Council. Upon receipt of a request to consider review, the City Manager shall place the item on the next regular or special Council meeting agenda for consideration. If Council elects to review the decision by a majority vote of a quorum of the City Council, the Planning Commission’s decision is stayed and such review will be treated as an appeal under this section and a hearing and decision must be rendered by City Council no later than 30 calendar days following the election to review.
2. City Council reviews the decision of the Planning Commission de novo and has the authority, after a hearing, to affirm, reverse, or modify conditions of the conditional use permit. Once Council decides to review a decision of the Planning Commission, any action on the associated development is suspended until the appeal is processed and a final decision is rendered, unless otherwise specified in the Zoning Code.
H. Timing and Form of Appeal. An appeal shall be submitted in writing and shall specifically state the pertinent facts and the basis for the appeal.
1. The pertinent facts and the basis for the appeal shall include, at a minimum, the specific grounds for the appeal, what is the alleged error or abuse of discretion by the previous Review Authority (e.g., the Planning Commission, Heritage Preservation Commission, Director, or Historic Preservation Officer) in the consideration and action on the matter being appealed, and/or where the decision was not supported by the evidence on the record.
2. The appeal shall be filed with the Director or City Clerk, as applicable, within 10 days following the actual date the decision was rendered.
a. Appeals addressed to the Council shall be filed with the City Clerk;
b. Appeals addressed to the Board of Adjustment shall be filed with the Zoning Code Administrator;
c. Appeals addressed to the Heritage Preservation Commission shall be filed with the Historic Preservation Officer; and
d. Appeals addressed to the Planning Commission shall be filed with the Director.
3. The appeal shall be accompanied by a non-refundable filing fee identified in Appendix 2, Planning Fee Schedule.
4. Once an appeal is filed by an aggrieved person, any action on the associated development is suspended until the appeal is processed and a final decision is rendered by the applicable review authority unless otherwise specified in this Zoning Code.
I. Report and Scheduling of Hearing.
1. When an appeal has been filed, the Director, Zoning Code Administrator or as applicable the Historic Preservation Officer, shall prepare a report on the matter, including all of the application materials in question and schedule the matter for a public hearing by the appropriate review authority, identified in Table 10-20.80.010.A, Review Authorities, above.
2. Notice of the hearing by the review authority shall be provided in compliance with Section 10-20.30.080, Notice of Public Hearings.
3. Any interested party may appear and be heard regarding the appeal.
J. Decision.
1. In deciding an appeal, the review authority considering the appeal shall use the same standards for decision-making required for the original decision, and shall not hear or consider any evidence of any kind other than the evidence received from the previous review authority, or any argument on the merits of the case other than that contained in the notice of appeal, unless it sets the matter for hearing before itself, as provided in this division, and gives the same notice of hearing as is required in compliance with Section 10-20.30.080, Notice of Public Hearings.
2. If new or different evidence is presented on the appeal, the new information shall be included with a revised submittal and presented to the original review authority for further review and consideration.
3. In addition, the review authority may remand the matter to the original review authority for reconsideration, for additional information or to cure a deficiency in the record or proceeding. The review authority shall render its decision within 30 days of the date the hearing is closed unless State law requires a shorter deadline.
4. In the event of a tie vote by the review authority on an appeal, the decision being appealed shall stand.
5. Provision of Notice of Decision.
a. A notice of the review authority’s final decision to the appellant and to any person who specifically requested notice of the review authority’s final action.
b. The notice of the final decision shall contain applicable findings, conditions of approval, and the reporting/monitoring requirements deemed necessary to mitigate any impacts and protect the public convenience, health, interest, safety, or general welfare of the City.
K. Effective Date of Review Authority’s Decision on an Appeal. A decision of the review authority is final and effective after 5:00 p.m. on the fifteenth day following the actual date the decision is rendered (except as provided in Section 10-20.80.020(I)), when no appeal to the decision has been filed in compliance with this division.
L. Judicial Review. No person shall seek judicial review of a City decision on a planning permit or other matter in compliance with this Zoning Code until all appeals to appropriate review authorities have first been exhausted in compliance with this division.
(Ord. 2018-21, Amended, 6/19/2018)
10-20.80.040 Appeals of Dedications and Exactions
A. Right to Appeal. An applicant may appeal the following actions to an administrative hearing officer designated in compliance with subsection (C) of this section.
1. A dedication or exaction required as a discretionary administrative, but not legislative, condition of granting approval for the use, improvement or development of real property.
2. The adoption or amendment of a zoning regulation that creates a taking of property in violation of A.R.S. § 9-500.13.
B. Notice of Right to Appeal Administrative Decision. The City official, whose decision to require a dedication or exaction is appealable in compliance with subsection (A) of this section, shall give written notice of the final decision and of the right of the applicant to an appeal of the requirement. The City shall not request the applicant to waive the right of appeal or trial de novo at any time during the consideration of the applicant’s request.
C. Appointment of Hearing Officer. The City Manager, in consultation with the City Attorney, shall designate hearing officers to hear appeals required by A.R.S. § 9-500.12. The hearing officer shall not be employed in the same department as the City official whose decision is being appealed.
D. Appeal Procedures.
1. Filing of the Appeal. The applicant who intends to exercise their right to contest the requirement of a dedication or exaction, as provided in this section, shall file or mail a written request for appeal to the Director, who will transmit the request for appeal to the designated hearing officer. The appeal request shall be mailed or filed within 30 days after notice is given of the final determination of the development or exaction requirement in compliance with subsection (B) of this section. The request for appeal may be in the form of a letter or other written communication, but shall give reasonable notice that the applicant requests an appeal of a dedication or exaction requirement and of the particular dedication or exaction being appealed.
2. Time for Hearing – Notice. After receipt of an appeal in compliance with this section, the hearing officer shall schedule a time for the appeal to be heard not later than 30 days after receipt, unless the applicant consents to an extension of time. The applicant shall be given at least 10 days’ notice of the time when the appeal will be heard unless the applicant agrees to a shorter time period.
3. Conduct of Hearing. In all proceedings in compliance with this section, the City has the burden of establishing an essential nexus between the dedication or exaction and a legitimate government interest and that the proposed dedication or exaction is roughly proportional to the impact of the proposed use, improvement, or development. If more than a single parcel is involved this requirement applies to the entire property.
4. Hearing Procedures. The hearing officer shall hear such testimony and consider such evidence as is relevant to the determination of such issues. The hearing officer shall not be bound by technical rules of evidence or procedures in conducting the hearing.
5. Hearing Officer’s Decision. The hearing officer shall decide the appeal within five working days after the appeal is heard. If the City does not meet its burden in compliance with subsection (D)(3) of this section, the hearing officer shall either:
a. Modify or delete the requirement of the dedication or exaction appealed in compliance with subsection (A)(1) of this section; or
b. In the case of a zoning regulation appealed in compliance with subsection (A)(2) of this section, the hearing officer shall transmit a recommendation to the Council. The Council may accept, modify or deny the recommendation of the hearing officer.
E. Appeal to Superior Court. If the hearing officer modifies or affirms the requirement of the dedication or exaction, an applicant aggrieved by the decision of the hearing officer may appeal the decision to the Superior Court, at any time within 30 days after the hearing officer has rendered a decision, by following the procedures set forth in the Arizona Revised Statutes.