Chapter 1.44
APPEALS

Sections:

1.44.010    Purpose.

1.44.020    Definitions.

1.44.030    City council review requests.

1.44.040    Procedure for appeal.

1.44.050    Procedure for rehearing.

1.44.060    Time limitations for appeals, rehearings, and reviews.

1.44.070    Time limitation for issuance of permits.

1.44.080    Fees.

1.44.090    Notice of appeal, rehearing or review.

1.44.100    Person or body to hear an appeal or review a decision.

1.44.110    Exhaustion of administrative remedies.

1.44.120    Exclusive procedures.

1.44.130    Accrual of certain claims.

1.44.140    Limitations on judicial review.

1.44.010 Purpose.

The purpose of this chapter is to provide an orderly and fair method of appeal, rehearing and review of decisions in order to avoid results inconsistent with the rules and regulations governing the decisions. Decisions of the staff, committees, commissions and council of the city may be appealed, reheard or reviewed in accordance with this chapter. (Ord. 07-11 § 2).

1.44.020 Definitions.

As used in this chapter, the following terms shall have the meanings set forth herein below:

“Appeal” means reconsideration, by a higher authority, of the specific facts and circumstances of any final decision made by the city, any of its employees, committees or commissions.

“Applicant” means the person who applied for or requested the decision or action which is the subject of the appeal, rehearing or review.

“Decision” means any final decision, finding, ruling, order or action.

“Interested person” means any person, including the applicant, any city staff member, committee, or commission who has an interest in the matter at issue or whose health, safety, or welfare may be affected by the decision.

“Permit,” as used in BMC 1.44.070, means anything referred to elsewhere in this code as being a “permit” or “license.”

“Rehearing” means reconsideration of a decision by the person or body having made the decision.

“Review” means reconsideration of the decision of any city employee, committee, or commission requested by the city council, on its own motion, or upon request of any council member, in order to consider the decision and any broad legislative and policy factors involved. (Ord. 07-11 § 2).

1.44.030 City council review requests.

Within the time limits set forth in BMC 1.44.060, the city council or any council member may request that a decision, pertaining to BMC Title 17, of any city employee, committee, or commission be reviewed by filing an application with the city clerk stating the reasons for the requested review. Said review will be conducted according to the procedures specified in BMC 1.44.040 and 1.44.100. The person or body to hear the review will be designated in the application by the person or body seeking such review and shall be as specified in BMC 1.44.100, unless the council as a whole specifies a higher level of review in the first instance. (Ord. 07-11 § 2).

1.44.040 Procedure for appeal.

A. Any interested person may, within the time limits set forth in BMC 1.44.060, file an application for appeal with the city clerk. Said application shall contain sufficient information to identify the party, its interest in the matter, and the reasons for requesting an appeal.

B. If the appeal is to be heard by a person or body which conducts regularly scheduled meetings, the appeal shall be considered at the first regular meeting which follows receipt of the application by 14 or more days, and which allows sufficient time for the giving of notice as required by BMC 1.44.090.

C. If the appeal is to be heard by an individual or body which does not conduct regularly scheduled meetings, the appeal shall be considered not more than 14 days following receipt of the application; provided, that the time period may be extended if necessary to allow the giving of notice as required by BMC 1.44.090.

D. An appeal hearing shall consist of a new (i.e., de novo) hearing on the matter by the person or body specified in BMC 1.44.100. The appeal hearing shall be based on the following evidence:

1. Any relevant evidence, including staff reports, etc., submitted at the time of the prior decision and at the appeal hearing, and

2. Findings, if any, and decision of the person or body whose decision is being appealed.

E. If the original decision being appealed involved issuance of any permit, license, or other entitlement or approval or requested some action by the city, the applicant for the original decision shall have the burden of proof to support the granting of the requested issuance, approval, or action at the appeal.

F. The time limits in this section may be extended if the applicant(s) and appellant(s) agree.

G. At the hearing, the appellate body shall review the record and hear testimony of the appellant, the applicant, and any other interested party. Any interested party may appear in person or by agent or attorney to provide testimony.

H. After the hearing, the appellate body shall affirm, modify, or reverse, in whole or in part, the original decision and may make such order, requirement, decision or determination as is appropriate. A copy of the decision shall be mailed to the applicant, the appellant, and any other party requesting such notice. (Ord. 07-27 § 1; Ord. 07-11 § 2).

1.44.050 Procedure for rehearing.

A. Any interested person, or the city council or any council member, may within the time limits set forth in BMC 1.44.060 file an application for rehearing with the city clerk. The application shall contain sufficient information to identify the party, its interest in the matter, and the reasons for requesting a rehearing.

B. The application shall be considered at the first regular meeting which follows filing of the application by 14 or more days, or shall be considered within 14 days if the person or body to whom the application is made does not hold regular meetings.

C. To justify a rehearing the applicant must show in the application that there is new, relevant evidence which, in the exercise of reasonable diligence, could not have been produced, or which was improperly excluded, at the earlier hearing, or that the person or body failed to comply with the law, which contention was not asserted at the earlier hearing. The person or body may in its discretion decide whether to hear additional evidence than what is contained in the application. The decision whether to grant the rehearing is final and may not be appealed or reheard.

D. If the person or body concludes the applicant has met the burden of justifying the rehearing, the rehearing will be scheduled for the next regular meeting which allows sufficient time for the giving of notice as required by BMC 1.44.090.

E. No application for rehearing is required to be filed by any member of the city council to allow the council to take any new or different action on an item of city policy or a purely legislative function or decision, which does not involve a specific property owner, application, license or permit. The city council may establish reasonable rules to restrict the number of times a particular policy or legislative decision may be considered by the city council. (Ord. 07-11 § 2).

1.44.060 Time limitations for appeals, rehearings, and reviews.

A. All applications for appeals, rehearings, and reviews must be filed, in writing, during regular business hours of 8:30 a.m. to 5:00 p.m., Monday through Friday, except holidays, and within 10 business days from the date of the final decision subject to appeal, rehearing or review.

B. For all matters requiring approval by the city, its employees, committees, commissions or council, the time limits for all applications shall begin on the date of the final decision by the city, its employees, committees, commissions or council.

C. If the final day for filing an application for appeal, rehearing or review falls on a holiday or weekend day when City Hall is closed, the application shall be filed no later than the next business day. (Ord. 07-11 § 2).

1.44.070 Time limitation for issuance of permits.

A. Where a permit is sought and its issuance is contingent upon obtaining a prerequisite permit, the permit sought shall not be issued until the expiration of the time limit for seeking an appeal, rehearing, or review specified in BMC 1.44.060 applied to the prerequisite permit; provided, however, that if an application for appeal, rehearing, or review of the prerequisite permit is filed within the specified time limits, the permit sought shall not be issued until seven days following the final decision on the appeal, rehearing, or review. Any permit issued in violation of the provisions of this section shall be void.

B. This section does not apply to building, electrical, mechanical, and plumbing permits. An applicant, however, proceeds at his or her own risk prior to the expiration of any appeal, rehearing or review time. (Ord. 07-11 § 2).

1.44.080 Fees.

Each application for appeal or rehearing shall be accompanied by a processing fee in an amount determined by resolution of the city council. (Ord. 17-10 § 1; Ord. 07-11 § 2).

1.44.090 Notice of appeal, rehearing or review.

Notice of the hearing for the appeal, rehearing, or review shall be given in the same manner as any required notice for the hearing at which the decision subject to the appeal, rehearing, or review was made. In all cases for the hearing for an appeal, rehearing, or review, written notice of the date, time, and place shall be given to the original applicant, if any, any prior applicant for appeal or rehearing regarding the same matter, and for appeals and rehearings the person requesting the current appeal or rehearing. (Ord. 07-11 § 2).

1.44.100 Person or body to hear an appeal or review a decision.

The person or body to hear an appeal or review a decision shall be the following:

A. From a decision of the city staff to the department head;

B. From a decision of the department head to the city manager; except that (1) an appeal from a decision of the community development director on planning matters pursuant to BMC Title 17 shall be made to the planning commission; (2) an appeal from a decision of the building official on building matters pursuant to BMC Title 15 or the fire chief on the fire prevention and life safety code shall be to the building board of appeals; (3) an appeal from the decision of the license collector or tax administrator pursuant to Chapter 3.24 BMC or BMC Title 5 shall be to the city council; (4) an appeal from the decision of the chief of police regarding card room matters pursuant to Chapter 5.08 BMC shall be to the city council; (5) an appeal of the decision on trees shall be to the parks, recreation and cemetery commission; and (6) an appeal of the decision on complaints concerning library materials shall be to the board of library trustees.

1. Decisions of the fire chief regarding a notice to abate weeds or rubbish are final and not appealable to the city manager or city council;

2. Decisions of the hearing officer regarding BMC 8.38.121 on recovery of funds related to graffiti are final and not appealable to the city manager or city council;

C. From a decision of the city manager to the city council;

D. From a decision of any city committee or commission to the city council, except:

1. Decisions of the historic preservation review commission shall be to the planning commission;

2. Decisions of the parks, recreation and cemetery commission on tree appeals are final and not appealable to the city council; and

3. Decisions of the board of library trustees in all book and materials selection and retention decisions are final and not appealable to the city council. (Ord. 16-04 §§ 1, 2; Ord. 13-09 § 2; Ord. 09-14 § 1; Ord. 07-11 § 2).

1.44.110 Exhaustion of administrative remedies.

Unless appealed, reheard, or reviewed as provided herein, any decision becomes final for all purposes when made. To constitute the exhaustion of administrative remedies and as a condition precedent to filing any court action thereon, there must be filed and considered an application for rehearing of the council action in any case where any of the factors set forth in BMC 1.44.050(C) are contended to exist. If an application for rehearing a council decision is filed, the council’s decision becomes final when either (A) the application is denied, or (B) a decision is made at the rehearing. (Ord. 07-11 § 2).

1.44.120 Exclusive procedures.

The procedures set forth in this chapter are the exclusive methods by which appeals, rehearings and reviews may be pursued and none of the steps set forth herein may be waived or omitted. (Ord. 07-11 § 2).

1.44.130 Accrual of certain claims.

No claim for violation of constitutional rights for deprivation of economic use of property shall arise until and unless a claimant has secured a final decision on a permit application for a plan of development and on a request for a variance or similar relief from the zone or other development standard for a plan of development as specified in BMC Title 17. (Ord. 07-11 § 2).

1.44.140 Limitations on judicial review.

Notwithstanding any provision in this code to the contrary, no court action or proceeding to attack, review, set aside, void or annul any decision or procedure of the city of Benicia, its council, commissions, boards or officers, which has become administratively final shall be maintained by any aggrieved person unless duly commenced in a court of competent jurisdiction within 90 days, as provided in California Code of Civil Procedure, Section 1094.6, incorporated herein by reference, and/or as provided in California Government Code Section 65009, or any shorter statute of limitations provided by law. (Ord. 07-11 § 2).