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HomeMy WebLinkAboutItem #2 Trainingw l i �+ 49, +c. .* dO �. ._- L Revi*ew of dmaking framework 7/21/21; 5/5/22 updated WWI r 00-01 " �" Quasi -Judicial vs Legislative Decisions Two types of decisions at local level • Quasi-judicial- similar to a court proceeding; acting like a judge when making decisions • Legislative- making broad policy Both are equally important in how decision -makers evaluate and make decisions. • They just have different requirements that needs to followed and considered Post -amendment (2010 -present) Not Subject to LLUPA Review Comprehensive plans (adoption or amendments) Comprehensive plan maps Moratoriums (issuance or lifting) Enforcement actions258 Annexations (annexations do not fall within LLUPA's judicial review provisions, but category B & C annexations are subject to IAPA review under a separate statute)259 Rezoning of large areas?261 Building permits261 Design review approval or denial262 Legislative Subject to LLUPA Review Initial zoning following annexation Rezoning of specific parcels or sites pursuant to section 67-6511 Conditional rezoning pursuant to section 67-651 IA Application for subdivision Application for variance Application for conditional use permit (aka special use permit) "Other similar applications required or authorized" under LLUPA. Planned unit developments263 Quasi -Judicial vs Legislative Decisions Quasi -Judicial: Action to decide how a general rule or regulation applies to a particular person, property, or interest. • Because these actions impact some members of the community more than the whole community, due process is significantly greater than in legislative. Requires: • Notice and opportunity to be heard • Opportunity to be present and rebut evidence • Impartial decision makers • A record of the proceedings • Adequate findings and conclusions Legislative: Action taken by a governing body which guides or directs the public by enacting rules, regulations, policies, and/or procedures. • Result from broad public input • Challengeable typically on grounds of being unreasonable, arbitrary, or capricious. In Idaho, this usually happens when a member of a governing board has a direct personal interest in the outcome. I Legislative Actions. 1. Has the input been broad? 2. Has the process been fair (and there is no conflict of interest)? 3. Has the process been public? 4. Have the established procedures been followed? 5. Has proper notice been given? Quasi -Judicial Actions. 1. Has the process been public (and there is no conflict of interest)? 2. Is the decision being made from information "on the record" (with no ex parte communications)? 3. Is the basis of the decision well reasoned and clear? 4. Has the governing body given the process due? 5. Is the decision clear, final and appealable? Things to remember for Quasi -Judicial - DUE PROCESS! • Ex -parte communications or fact finding must be disclosed at the meeting • Includes: • Speaking to member of the public about the application • Communicating with another decision -maker about the topic- cell, face-to-face, email, text, etc • Driving by a subject property to view it in context of the application • Process is critical • Follow public hearing resolution for order and type of testimony, including giving applicant opportunity to rebut • Need to be neutral • Sitting as a judge • Decisions need to be made based on the record • Staff reports provide great deal of facts • Ordinances, Comp Plan • Public testimony and input • Discussions at the open meeting and hearing • Decisions need to be based on the review criteria and be rational • Review criteria are given in code for quasi-judicial reviews (and sometimes for legislative reviews) I Quasi -Judicial • Every decision -maker on a board could make a motion to take an action based on reasons that were different than the other decision makers and the motion, if approved by the majority, would be upheld if it was reasonable, rational, and based on facts, the review criteria, and the record. 7 Quasi -Judicial- Best Practices Make disclosures before the public hearing begins. It is okay to drive by the site- you need to disclose in the meeting when you drove by and what you saw Refrain from speaking to members of the public about projects that you know that have made application or that will make application. Refrain from speaking to other decision makers about a project that you know that have made application or that will make application until the open meeting. If you know something about an application and that info doesn't come up during the hearing and you know that it will affect the basis for your decision, you should disclose it before the public input period begins. If you have questions, always CYA- Consult Your (the City's) Attorney Things to remember for Legislative Decisions • Legislative decisions are about setting policy for the city or broad area, generally. • Process must be followed: • Notices, Open Meeting Law, etc., as required by Idaho Code and City Code • You can: • Speak to members of the community without needing to make disclosures • Drive by a site without making disclosures • Do your own research without making disclosures • Come into the meeting without being impartial Best Practice: Because somethings like rezones lie in a fine area between quasi-judicial and legislative, it is generally recommended to abide by the best practices for quasi-judicial decision-making. Staff and the City Attorney can help educate you if you have questions to let you know how to best proceed for your reviews. i Findings of Fact & Conclusions of Law • Required by Idaho Code 67-6519(5): • Application approvals or denials must specify: • The ordinance and standards used in evaluating the application • The reasons for the approval or denial. Where facts are contested with regards to any standards for approval, the motions needs to be specific about why or why not burdens of proof were met. • The actions, if any, that the applicant could take to obtain approval (if denied) MOVING FORWARD, EVERY DECISION MADE BY THE COMMISSION OR COUNCIL WILL BE DONE BY APPROVING A WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW WHICH ADDRESSES EACH OF THE ABOVE ELEMENT AND THE FACTS OF THE PETITION. 18.28.020: CONDITIONAL USE PERMITS (CUP) PROCEDURES: A. Applicability. Conditional or special use permits (CUPs) are those which are not allowed outright within a zone but nay be allowed only if certain conditions of approval are satisfied. The purpose of this section is to prescribe the procedure for the accommodation of uses with special site or design requirements, operating characteristics, or potential adverse effects on surroundings. This procedure shall apply to all proposals for which a CUP is required by city code. B. Design Review Committee Review to Occur Prior to Making Application: Prior to making application for a CUP, where a design review approval is required by Chapter 18.16 or elsewhere in City Code, the applicant shall first obtain a design review clearance of the project such that the Committee may review and relay technical details of the project as they relate to this or other titles of City code. A design review approval does not constitute approval of the use and LUDC may attach more stringent requirements upon a CUP than the Design Review Committee. C. General Requirements and Procedures: 1. Authority to Apply: Any person who owns or has a contractual interest in real property governed by this title may apply for a CUP. A CUP is issued to authorize development or use of the property for the use specified in the permit and subject to any conditions imposed upon the use. The PWD may require the submission of special studies related to the social, economic, fiscal, and environmental effects and any aviation hazard as defined in Idaho Code section 21-501(2) along with the application. 2. Deadline for Complete Applications is Twenty -Eight (28) Days before Hearing: Complete applications containing the required information and, in the format prescribed by the PWD and all fees as established by resolution of the Council shall be submitted to the PWD at least twenty-eight (28) calendar days before the desired hearing. In the event that an application is deemed incomplete and additional information is required from the applicant, the PWD may remove the item from the desired meeting's agenda. If upon review the PWD determines that an application is of such unusual complexity that more time is needed to thoroughly review and analyze an application in order to make findings and a recommendation to LUDC, the PWD may cause the application to be heard no later than I regularly scheduled meeting after the originally anticipated meeting. 3. Notification Requirements: Notices for the public hearing shall be provided in accordance with Section 18.28.010 C. 4. Public Hearing: A public hearing shall be held by LUDC in accordance with procedures adopted by Council resolution. At the public hearing, LUDC shall receive pertinent evidence concerning the proposed use and the proposed conditions under which it would be operated or maintained, particularly with respect to the standards of approval in Section 18.28.020 C.5. 5. Standards for Approving a CUP: A CUP may only be approved if LUDC makes affirmative findings of fact on each of the following standards: 0 The proposed use is conditionally permitted in the subject zoning district and complies with all of the applicable provisions of city code unless modified through the conditional use permit process. 0 The proposed use is generally not in conflict with the goals, objectives, and policies of the adopted Comprehensive Plan. The proposed use is compatible with other existing and permitted uses in the general vicinity. The proposed use is harmonious in scale, mass, coverage, density, and intensity with all adjacent permi ted land uses. 0 The proposed use would not place an undue burden on transportation, police, fire and EMS protection, water/sewer, schools, and other public facilities or agencies, in the vicinity. 0 The proposed use, if it complies with all conditions imposed, will not adversely affect other properties or the environment in the vicinity to a materially greater extent than would uses permitted outright by this Code. --- 6. Conditions of Approval: It is not the intent of this section to restrict or specify the design proposed or to specify the exterior detail or design, color, or materials of a project, except when such detail is of a magnitude affecting the general appearance and compatibility of the development with its surroundings. To make affirmative findings relating to the standards established in section 18.28.020 C.5, LUDC may condition approval of the permit on compliance, including but not limited to, the following: a. Conformity to approved plans and specifications. b. Provision of open spaces, pathways, buffer strips, walls, fences, landscaping, and lighting. c. Minimizing adverse impact on other development. d. Controlling the sequence and timing of development. e. Assuring that development is maintained properly. f. Designating the provision of on-site or off-site public facilities or services. g. Requiring more restrictive standards than those generally required by the Code; and h. Requiring the mitigation of effects of the proposed development upon service delivery to the property by any political subdivision, including school districts. 7. Requiring Special Studies: Prior to making a decision or as a condition of approval, the LUDC may require the submission of special studies related to the social, economic, fiscal, and environmental effects and any aviation hazard as defined in Idaho Code section 21-501(2). 8. Variance or Waiver to Development Standards Included in Permit: Pursuant to Idaho Code section 67-6512(f), LUDC may approve, in accordance with notice and approval criteria in Section 18.28.030, a change from required standards located in this Title. The application must specify the changes being requested and address the approval criteria via narrative. When an application contains both requests, only the fee for a conditional use permit shall apply. 9. Effective Date: The decision of LUDC shall be effective ten (10) calendar days from the date that the findings of fact and conclusions of law is signed and approved by the Chair. 10. Application Resubmittal: No application for a conditional use permit that has been denied by LUDC or Council shall be resubmitted in either the same or substantially same form less than one (1) year from the date of the final action, unless specifically authorized by the granting body during the final action decision. 11. Regulatory Taking: Denial of a CUP or approval of the same with conditions unacceptable to the landowner may be subject to a regulatory taking analysis provided for by Idaho Code section 67-8003, consistent with requirements established thereby. D. Modifications to Approved CUPS: Modifications or amendments to approved CUPs may be approved by LUDC only after following the application submission, fee payment, public notice, and public hearing requirements and procedures established by Chapter. If upon review the change is deemed technically substantive enough by the PWD such that it could impact the delivery of services or infrastructure by the City, the PWD may require that the modifications be reviewed and approved by the Design Review Committee prior to being scheduled with LUDC. Upon review by LUDC, requirements and standards of sections 18.28.020 C.5. - 11. shall be considered, and affirmative findings be made for each standard. E. Regulatory Takings Analysis: Denial of a CUP or modification request or approval of the same with conditions unacceptable to the landowner or applicant may be subject to a regulatory takings analysis provided for by Idaho Code section 67-8003, consistent with the requirements established thereby. F. Term of Approval: Unless a longer time shall be specifically established as a condition or allowance of approval, a conditional use permit shall lapse and become automatically void one ("1 1) calendar year following the date on which such permit became effective, unless prior to expiration, the use has commenced, and all conditions of the permit are satisfied. G. Extension: A CUP subject to lapse may be renewed by the PWD one (1) time for up to additional two (2) years provided that prior to the expiration date, a written petition is filed at least thirty (30) days prior to lapse with the PWD and that the same finds that none of the following circumstances exist; in the event that the PWD finds that any of the following exist, the extension request shall be denied and the applicant may appeal through the usual appeals process or may apply for a new conditional use permit: 1. There have been significant amendments to the Comprehensive Plan or Land Use ordinance which will affect the CUP authorization. 2. There have been significant land use changes in the vicinity which would adversely impact the project, or which would be adversely impacted by the project. 3. There are hazardous situations which have developed or have been discovered in the area. H. Approval is Non -Transferrable and Runs with the Land: A CUP is non -transferable from one (1) parcel of land to another and shall run with the land and continue to be valid upon a change of ownership of the site or structure, providing however, that the new owner complies with the terms of the permit. I. Revocation of Permits: CUPs may be revoked by the PWD at any time if it is determined that any condition of the CUP or any other city code is being violated. Prior to revocation, the applicant shall be afforded thirty (30) days after the date of notification of noncompliance/intent to revoke to become compliant. Additionally, prior to revocation, the applicant shall be afforded an opportunity for a hearing before LUDO; said hearing must be requested within ten (10) calendar days of the date of notification of noncompliance/intent to revoke the conditional use permit. Failure to come into compliance within thirty (30) days of the notification of noncompliance and failure to request such a hearing will result in immediate revocation of the approved CUP and may constitute a violation of this title. (Ord. 755, 2016; Ord. 832, 2021)