3.08.04 Appeal of an Administrative Decision (BOA Approval).
A. Procedures including initiation of appeals of administrative decisions are explained in Chapter
2.
B.
Effect of Appeal. All development activities permitted by the action being appealed, or any subsequent approval, must stop upon appeal, and remain inactive until the appeal is resolved. If the City Manager certifies in writing that such a cessation of activity would cause imminent peril to life and property, the development may proceed, unless a stop order is issued by the BOA, or a restraining order is issued by a competent court of record. The stop order or restraining order stopping development must indicate the reason for stopping the activity.
C. Alternative Dispute Resolution.
Prior to hearing or deciding an appeal of an administrative decision, the Chairperson of the Board of Adjustment (BOA) may request that the applicant and administrative official agree to mediation or other alternative form of resolution of the dispute prior to a public hearing.
1. If the applicant refuses to accept alternative resolution of the dispute, the appeal will be heard and acted upon by the BOA no later than its next meeting.
2. If the applicant and administrative official cannot agree on a format or mediator for the appeal within thirty (30) days, the Chairperson of the BOA may assign a mediator.
3. The mediator will coordinate the mediation or other alternative form of resolution with the parties, including the date, time, and place of meetings.
4. The mediator may invite any person, organization or governmental unit with relevant information to participate in the mediation. The parties may suggest persons, organizations or governmental units that should be requested to participate.
5. Both parties will equally share any costs associated with the alternative dispute resolution process, unless they agree otherwise in writing.
6. If no alternative resolution of the dispute can be agreed to by both parties, or if a party is not participating in good faith, the mediator may declare an impasse. The appeal will then be heard and decided at the next BOA meeting.
7. The Board of Adjustment (and/or City Council) must approve, in a public hearing, any alternative resolution of the appeal that involves a minimal change in development standards of this Code and consistent with all legal requirements.
D. Approval Criteria. The Board of Adjustment considers whether the City Manager’s or City Council’s official action was appropriate considering the facts of the case and the requirements contained in this Code. The Board will make its decision based on this Code and the information presented to the BOA by the applicant and the City Manager or other administrative official.
E. Basis for Appeal. An applicant may only appeal the specific reasons given for the administrative disapproval or denial. An applicant may not appeal the disapproval or denial without effectively establishing that the specific basis for the administrative disapproval or denial was incorrect.
F. Burden of Proof in Appeals. When an appeal is taken to the Board of Adjustment, the City Manager’s or other administrative official’s action is presumed to be valid. The applicant shall present sufficient evidence and have the burden to justify a reversal of the action being appealed. The City Manager may present evidence and argument to the contrary.
G. All findings and conclusions necessary to the permit or appeal decision (crucial findings) shall be based upon reliable evidence. Competent evidence will be preferred whenever reasonably available, but in no case may crucial findings be based solely upon incompetent evidence unless competent evidence is not reasonably available, the evidence in question appears to be particularly reliable, and the matter at issue is not seriously disputed.
H. The Board of Adjustment is responsible for final action.
