County takes input on appeals process

As it stands, only one party has the right to appeal county Planning and Zoning (P&Z) Commission denials on a major subdivision — the aggrieved applicants. Within county government, anyway, average citizens who feel aggrieved — by an approval, rather than by a denial — need to head straight for the court system.

As County Attorney James Griffin has noted, that can be rather costly — perhaps not so much for the filing fees as for the attorney’s fees most likely involved.

But Griffin actually first raised the issue as council fielded its first of several appeals (again, from the applicants), regarding P&Z’s ruling on their subdivisions — the ordinance wasn’t clear about just what council was supposed to be considering, he said.

“What was happening was council was basically holding a whole new hearing, sometimes lasting two hours or more,” Griffin pointed out. The draft ordinance would clarify that council consider only the record from the P&Z hearing, not new information.

For their part, P&Z Director Lawrence Lank reported attorney Vince Robertson’s opinions on the ordinance — according to Lank, Robertson had recommended a more straightforward process.

Again as it now stands, aggrieved parties (appellants, for the time being) ask council for permission to have another chance before the P&Z, and if they’re shot down again, they get to petition council for another hearing before the P&Z. Theoretically, the process might never reach the courts.

Robertson suggested wording to limit the back-and-forth.

Griffin said the idea was only to send the application back to the P&Z if council could determine there’d been a mistake or failure at the first public hearing before the P&Z. Or, council could affirm, or reverse, the P&Z’s decision. (Next stop: the courts.)

However, as Griffin noted, state law referenced a right to appeal from either an approval or a denial, and the county doesn’t provide that mechanism — at least internally.

The draft ordinance covered several other issues, including fees from the appeal ($500 was the suggestion) and a requirement that the appellant hire a court reporter to transcribe the proceedings from the P&Z (Lank suggested this could cost as little as $100, or up to a few hundred).

Griffin also built in some rational-reasonable checks for merit. County Administrator Bob Stickels suggested the ordinance needed to include some guidance regarding whether or not the developers could move forward, if an appeal might now be pending even after a favorable ruling from the P&Z.

Lank suggested a clarification that the appeals process needed to come after preliminary approval — not at final, at which point developers have already received all of their approvals from state agencies.

While the clarification would likely protect a parcel from site preparation, two land planners in attendance said the new appeals process could seriously affect them.

Pret Dyer, a developer from Ocean View, said his projects were frequently ready to go to settlement after P&Z gave the nod at preliminary.

“This could have a chilling and negative effect on the way, currently, I’m doing business,” Dyer said.

Mark Churra (Ocean Atlantic Associates) said he, too, was frequently ready to settle at the time of preliminary approval.

He said he commended council’s efforts to create an equitable appeals process, but from his perspective, equitable also meant timely.

Dyer, Churra and Frank Kea (Caldera Properties) suggested the required windows for filing for appeals, obtaining a transcription of the P&Z proceedings, and then council action, should be tightened up. Kea said subdivision appeals already took 18 months to complete, and this could add another six months to the process. He recommended 20 days to file for the appeal, 30 days for council to make ruling one way or the other.

As written, the ordinance would allow any aggrieved party 20 days to file the appeal, but then 45 days to hire the court reporter and obtain the transcript. There’s no reference to how soon council has to address the appeal.

Mabel Granke (Citizen’s Action Foundation) said she supported the proposed revisions to the appeals process, and said it seemed reasonable to go directly to the public record from the P&Z, rather than introducing new information.

“This levels the playing field, providing equal access to the citizens and the applicants,” Granke stated. “To put it bluntly, it’s a lot cheaper than going straight to a lawyer and straight to the courts.”