04/08/2003 Minutes - Laserfiche WebLink

Home Browse Search

">t" ' A _ . • Memo to Planning Commission From Bryan P. O'Malley Re: Ord. No. 2003-36 - BZA Appeals the City to exercise such appellate rights. As it is now, the City is arguably precluded by law to file an appeal and this legislation simply provides the City with that option. The longer analysis of the Ord. 2003-36 can be addressed in several sections. First, unlike most administrative proceedings before the Planning Commission, the BZA is and performs a quasi judicial function, somewhat akin a to court. The proceedings are more adversarial in character, with the applicant undertaking to demonstrate grounds for a variance and where neighboring property owners can oppose a request or the Building Commissioner can defend the application of the Code. Unlike the Planning Commission, which is conducting a review on behalf of the City, the BZA is rendering its independent determination based on a preponderance of the evidence. The City may advocate a position before the BZA, much as other advocates before it, relying on the Building Official's considerable knowledge of the Code. Unlike the Planning Commission, which is making recommendations for City administrative approval, the BZA is rendering a decision which may be adverse to the City's interest. Second, the Planning Commission may want to examine the nature and character of the different deternunations rendered by the BZA pursuant to § 1123.10, 1123.11, 1123.12, and as provided by Charter. The Charter speaks to the jurisdiction of the BZA to grant variances from and exceptions to the zoning code at Article VII, Section 4(b) and further as provided by ordinance. § 1123.10, commonly known as a Like or Similar Use Pernut, being distinct from a variances request, has been and remains subject to Council review, in which case the City would not require an appeal to court. § 1123.11 has and continues to grant limited jurisdiction to the BZA to grant Special Pernuts, which are most often required to allow the expansion of a nonconfornung building. One category of special pernuts, additions to nonconforming buildings in Single Family, would be subject to appellate review under this legislation. The bulk of the BZA deternunations are rendered under § 1123.12, entitled Appeal Conditions. This section provides for an appeal from the decision of the Building Official and is most commonly described as a Use or an Area`variance. For example, the applicant's application for a building permit is technically denied due to a structure proposed within a required setback, resulting in an appeal to allow a variance from the strict imposition of the code. The legislation is primarily designed to provide the City the right to appeal from a BZA judgment or interpretation of the zoning code that was, in the City's opinion, adverse to the spirit and intent or proper administration of the zoning code. The proposed legislation was researched, prepared by and is recommended by the Director of Law as within Council's authority and preserving the City's appellate rights. It is recommended that the Planning Commission vote to support it. 2