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HomeMy WebLinkAboutOrdinance 95.28 Designating the procedures for appealing a dedication or exaction ORDINANCE NO. 95.28 ",'.-... AN ORDINANCE OF THE TOWN OF MARANA, ARIZONA, DESIGNATING THE PROCEDURES FOR APPEALING A DEDICATION OR EXACTION PLACED BY AN ADMINISTRATIVE AGENT OF THE TOWN OF MARANA AS A CONDIDON OF APPROVAL ON THE USE, IMPROVEMENT, OR DEVELOPMENT OF REAL PROPERTY. WHEREAS, the State of Arizona recently enacted H.B. 2229, now known as A.R.S. ~~ 9-500.12, and 500.13, requiring state municipalities larger than 2000 persons to take steps to inform the public of the appeal rights associated with the regulation of real property through zoning and other restrictions; and WHEREAS, the Town of Marana wishes to establish and maintain procedures for the appeal of dedication or exaction requirements placed by an administrative agent of the Town of Marana as a condition of approval on the use, improvement, or development of real property; and WHEREAS, the document which became a public document pursuant to Marana Resolution No. 95-61, and herein referred to as the "Real Property Administrative Appeals Procedures" meets the guidelines established in A.R.S. ~29-500.12 and 9-500.13, NOW, THEREFORE, BE IT ORDAINED by the Mayor and Council of the Town of Marana, Arizona, as follows; SECTION 1. That certain document entitled "Real Property Administrative Appeals Procedures", which was made a public document pursuant to Marana Resolution No. 95-61, is hereby adopted as the rules of procedure for appealing a dedication or exaction placed by an administrative agent of the Town of Marana as a condition of approval on the use, improvement, or development of real property. SECTION 2. The various Town offices and employees are authorized and directed to perform all acts necessary or desirable to give effect to this ordinance. SECTION 3. All ordinances, resolutions, or motions and parts of ordinances, resolutions, or motions of the council in conflict with the provisions of this ordinance are hereby repealed, effective as of the effective date of this ordinance. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof. Ordinance No. 95.28 Page I of2 ,,,,,,,,"", PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 7th day of November, 1995. Ordinance No. 95.28 Page 2 of2 ~ b1c~, Mayor ED H NEA -- REAL PROPERTY ADMINISTRATIVE APPEALS PROCEDURES A. DEFINITIONS. 1. " Appeal" means an appeal by a property owner of a dedication or exaction requirement imposed by an administrative agency or official of Marana as a condition on granting approval for the use, improvement, or development of the owner's real property in the Town of Marana. A decision or exaction required in a legislative act of the Town Council that gives no discretion to a town administrative agency or official to determine the nature or extent of the dedication or exaction is not subject to appeal under these procedures. 2. "Counsel" means an attorney licensed to practice law in the State of Arizona. 3. "Town" means the Town of Marana. 4. "Decision letter" means the dated document prepared by the hearing officer which includes the hearing officer's findings of fact and conclusions of law, and articulates the hearing officer's decision to affirm, modify, or delete the town's dedication or exaction requirement. 5. "Designated staff representative" means the town official designated to represent the town at an appeal hearing with regard to the subject matter of the appeal. - 6. "Determination Letter" means the dated documents sent by the town to the property owner, which informs the property owner of the town's final determination regarding the imposition of a dedication or exaction requirement as a condition on granting approval of the use, improvement, or development of the property owner's real property. 7. "Dedication" means the conveyance of a fee simple or easement interest in private real property to the town for public use. 8. "Exaction" means a requirement; a. to construct a public improvement or facility. b. to pay money in lieu of construction of a public improvement or facility. 9. "Other designated representative" means a person over eighteen years of age, other than an attorney, authorized by the property owner to represent the property owner in these proceedings. The written authorization must be sufficient to satisfy the hearing officer that the person has in fact been authorized to act on the property owner's behalf and that the property owner understands and agrees to be bound by actions taken by the other designated representative in proceedings before the hearing officer. 10. "Parties" means the property owner and the town. Page 1 of 3 B. APPLICABILITY. This section applies as specified by A.R.S. ~~ 9-500.12 and 9-500.13 when a dedication or exaction is required by an administrative agency or official of Marana as a condition of granting approval of a request to use, improve or develop real property. A development agreement or a dedication or exaction required in a legislative act of the town that does not give the discretion to a town administrative agency or official to determine the nature or extent of the dedication or exaction is not subject to appeal under these procedures. C. PROCEDURE. 1. The town manager or his designee is appointed as the hearing officer for these matters. 2. The appeal shall be in writing and filed with or mailed to the hearing officer as designated by the town within thirty days after the final determination is made. No fee shall be charged for filing the appeal. 3. After receipt of an appeal, the hearing officer shall schedule a time for the appeal to be heard not later than thirty days after receipt. The property owner shall be given at least ten days' notice of the time when the appeal will be heard unless the property owner agrees to a shorter time period. .- 4. In all proceedings under this section the agency or official of the town has the burden to establish that there is an essential nexus between the dedication or exaction and a legitimate governmental 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 that is subject to the approval. 5. The hearing officer shall decide the appeal within five working days after the appeal is heard. If the agency of the city or town does not meet its burden, the hearing officer shall modify or delete the requirement of the dedication or exaction. 6. The property owner shall have the right to be represented by counselor by an other designated representative at the appeal hearing. In addition to the town's designated staff representative, the town shall have the right to be represented by counsel at the appeal hearing. The parties waive the right to be represented by counsel, or other designated representative in the case of a property owner, at the appeal hearing unless actual written notice of such representation is provided to the hearing officer and to the other party at least five (5) working days prior to the appeal hearing. 7. No pre-hearing discovery shall be permitted absent extraordinary circumstances. Immediately prior to the appeal hearing, the parties shall produce for inspection by the opposing Party any prepared exhibits and written or recorded statements of any witness which may be offered at the hearing. Failure to comply with this rule may result, at the ",~ Page 2 of 3 hearing officer's discretion, in the granting of a recess or continuance to permit such inspection, or denying admission of the evidence not so exchanged. 8. All testimony at the appeal hearing shall be given under oath or affirmation. 9. On the hearing officer's own motion, the hearing officer may call and examine witnesses, including the property owner. No witness may be examined at an appeal hearing except by the hearing officer, the property owner, the property owner's counselor other designated representative, the designated staff representative, or the town's counsel. 10. The Arizona Rules of Evidence shall not apply before the hearing officer. Any evidence offered may be admitted subject to a determination by the hearing officer that the offered evidence is relevant and material and has some probative value to a fact at issue. Nothing in this rule is to construed as abrogating any statutory provision relating to privileged communications. 11. The order of proceedings at an appeal hearing shall be as follows: a. Testimony of the property owner's witnesses. b. Testimony of the town's witnesses. c. Testimony of the property owner's rebuttal witnesses, if any. d. Testimony of the town's surrebuttal witnesses, if any. e. Argument of the parties or their counselor other designated representative, if permitted by the hearing officer. f. Decision by the hearing officer. ,- D. DECISION BY THE HEARING OFFICER; TIME PERIOD FOR APPEAL: If the hearing officer decides the appeal in the presence of the parties immediately after the conclusion of the appeal hearing, such decision shall also be provided to the parties in the for of a decision letter as soon as practicable after the appeal hearing. In such cases, an aggrieved property owner's thirty (30) day time period for appealing the hearing officer's decision to Superior Court pursuant to A.R.S. ~ 9-500 (G), shall begin on the first working day after the date of the appeal hearing. If the hearing officer delays decision of the appeal by taking the matter under advisement, the hearing officer shall issue a decision letter to the parties within five (5) working days after the appeal hearing. In such decision shall begin on the first working day after the date of the decision letter. ,........-... Page 3 of 3 ~--~ MARANA ~/ i '" TOWN OF MARANA Town of Marana REPORT ON APPEAlS PROCESS REGARDING DEVELOPMENT REGULATION This report documents the planned and implemented procedures for dealing with House Bill 2229 (A.R.S. ~~ 9-500.12 and 9-500.13) so as to comply with the connectivity and proportionality requirements of the U.S. Supreme Court cases of Nollan v. California Coastal Commission and Dolan v. Qty of Tigard. Marana is a Town in Pima County of slightly more than 5000 people. All rezoning and variance requests are currently required to go to the town council for approval, effectively exempting Marana from many of the concerns addressed by this new legislation. However, anticipating that the town will soon desire to handle such matters administratively, the following actions have been taken. ,..''''- MEETINGS AND BRIEFINGS: The town attorney met with Jerry Flannery, head of the town's planning department, many times from July through October" to determine the various procedures and'processes"used'by-the'town" which may be affected by this new legislation, and on October 3; the town attorney met with Cindy Ruiz, Planner II, to implement proper posting of appeals procedures for all decisions of the planning and zoning department. The most recent meeting with Mr. Flannery was on October 17 to make sure all key appeals processes were in effect and posted. Of the 9 people in the engineering, planning and zoning, and development departments, only 3 have any authority which would allow the possibility of requiring exactions or dedications. The legal department is aware of the requirements of A.R.S. ~~ 9-500.12 and 9-500.13, and has met with the responsible parties to assure that no administrative level demands occur. The town building inspector just returned from a protracted illness which left him out of the discussions, but he was updated by contact and memo on October 19. EDUCATIONAL SEMINARS The town attorney and the lead planner attended the state bar seminar on June 9, 1995, on this issue. The town attorney also attended the seminar put on by the NBI on August 16, and the September 13-15 seminar sponsored by the league of cities and towns. The attorney then met in sessions with the town manager, the head of planning and zoning, and various administrative heads of the town to inform them of the requirements of this new legislation. IMPLEMENTATION The town already posts and distributes the relevant appeals processes, and is completing a revised development code for consideration by the town council. The code is a major project 13251 N. LON ADAMS ROAD - MARANA, ARIZONA 85653 . 9723 - PHONE 682.3401 - FAX 682.2654 underway by the town attorney, and will be completed before year-end. On November 7, 1995 the town will consider an ordinance that mirrors the language of this legislation, adopting the appeals process in advance of the revised development code. This action is only to mitigate problems in the case of an unforeseen act by an administrative level employee. . The revised development code will probably include a 2 tier system of administrative requirements allowing the planners to implement basic necessary dedications with the appropriate analysis and weighing of proportionality and connectivity, while referring more complex issues to the town council for a vote. EFFECT ON DEVELOPMENT Developers in Marana still rely mainly on development agreements for their negotiations with the town. The council will continue to act in good faith on developer requests, resulting in efficient plans largely immune to the effects of this legislation. There is the future possibility that plans previously handled and negotiated in good faith to now be denied if there is the possibility of an apPealable issue, as the funds necessary to litigate are not available to a town of this size. Charging developers a fee for litigation costs is one alternative being considered. Development fees could increase proportionately, as the only way to assure funding for the appeals process. The approval process may slow down based on greater involvement by the legal department and issues repeatedly going to the town council. Last, all possible exactions and dedications will be specified in the development code, effectively erasing the administrative- level discretion needed to negotiate a successful development.. .-- EFFECT ON CmZENS Most of the impact should be negligible in the eyes of the public,butthe citizens of the town may notice. a difference in long-term appearance or facilities: of new' subdivisions; If health~ welfare or safety were affected at some time in the future, the town would take steps to remedy the situation. There is a small possibility of a lack of facilities that would previously have been required at the onset of the submission of a development plan. The town will most likely spend more time justifying the imposition of requirements, resulting in minimal differences to the citizens. CONCLUSION The Town of Marana intends to continue to provide efficient service to the community as a whole, and to follow Arizona law as well as U.S. Supreme Court case law. In the spirit of good community leadership, the town will follow the requirements of A.R.S. ~~ 9-500.12 and 9- 500.13 by implementing and publishing an apPeals process that mirrors the applicable portions. Marana will keep most of its property use changes on a level that does not allow administrative decisions without an affirming council vote. When the time comes for Marana to delegate its planning and zoning decisions to its administrators, it will have complete guidelines for assessing and imposing whatever restrictions are necessary. MARANA NOTICE OF RIGHT OF APPEAL ADMINISTRATIVELY REQUIRED DEDICATIONS OR EXACTIONS RIGHTS OF PROPERTY OWNER In addition to other rights granted to you by the United States and Arizona Constitution, federal and state law and Marana's own ordinances or regulations, you are hereby notified of your right to appeal any dedication or exaction which is required of you by an administrative agency or official of Marana as a condition of granting approval of your request to use, improve or develop your property. A dedication or exaction required in a legislative act of the Marana Town Council that does not give the discretion to a town administrative agency or official to determine the nature or extent of the dedication or exaction is not subject to appeal under these procedures. DEFINITIONS "Dedication" means the conveyance of a fee simple or easement interest in private real property to Marana for public use. "Exaction" means a requirement (a) to construct a public improvement or facility, or (b) to pay money in lieu of construction of a public improvement or facility. APPEAL PROCEDURE If you wish to appeal, the following procedures will apply to your appeal: The appeal must be in writing and filed with or mailed to the Hearing Officer for Exaction Appeals withing 30 days after the administrative agency or official has made the determination requiring the - dedication or exaction. The address of the hearing officer is as follows: Town Manager or designee Town Of Marana 13251 North Lon Adams Road Marana, Arizona 85653 No fee will be charged for filing. Your hearing will be scheduled before a hearing officer within 30 days of receipt of your request by the town manager. The town will bear the burden of proving that the dedications or exactions to be imposed on your property there is an essential nexus between the requirement and a legitimate governmental interest and that the proposed dedication or exaction is roughly proportional to the impact of the use, improvement or development proposed by you. Ten days notice will be given to you of the date, time and place of the hearing unless you indicate to the hearing officer in your request that less notice is acceptable to you. The hearing officer must render a decision within five working days after the appeal is heard. The hearing officer can affirm the dedication or exaction, modify it or delete the requirement. - If you are dissatisfied with the decision of the hearing officer you may file a complaint for a trial de novo with the Superior Court within 30 days of the hearing officer decision.