HomeMy WebLinkAboutDonahoe Garage Appeal validation.pdf °L * Commission Memorandum
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REPORT TO: Honorable Mayor and City Commission
FROM: Tim McHarg, Director
Allyson Bristor, Associate Planner/Neighborhood Coordinator
Chris Kukulski, City Manager
SUBJECT: Appeal of Donohoe Garage Certificate of Appropriateness(COA)
Modifications(Z-10122B), 613 South 6`h Avenue
MEETING DATE: Monday,November 15,2010
AGENDA ITEM TYPE: Action Item
RECOMMENDATION: Determine that appeal is not valid since notice to appeal was not
submitted within four(4)business days of decision per Sec. 18.66.030.0 of the UDO.
BACKGROUND: In late September, Planning Staff was contacted by Mary Frost and Rick
Kerin, who own and reside at the property located at 609 South 6t"Avenue, which is
immediately adjacent to and shares a driveway with the subject property. Ms. Frost and Mr.
Kerin expressed concern with the mass and scale of the Donohoe garage,which was under
construction based upon approval of a COA and a building permit. After investigating the
concern, Planning Staff determined that the garage was not in compliance with the approved
COA. A stop work order was placed on the project.
On September 28, Pat Donohoe and his contractor met with Planning and Building Staff. At this
meeting, it was determined that the garage elevations that were submitted with the COA
application were not properly scaled. Mr. Donohoe submitted an application to modify the
approved COA on September 29.
As part of our review of the COA modification application, Planning and Building Staff met with
Ms. Frost and Mr. Kerin on October 7. Ms. Frost and Mr. Kerin expressed concerns with the
mass and scale of the Donohoe garage, as well as the review process for the COA modification.
Planning and Building Staff explained the process for review of the applicable UDO standards,
Design Guidelines,and building codes. Planning Staff also explained the appeal process and
provided Ms. Frost and Mr. Kerin with UDO sections regarding appeals,in the event they
believed that the Planning Department erred in the ultimate decision on the COA modification
application.
After extensive review and analysis,the Planning Department conditionally approved the
Donohoe Garage COA Modifications(Z-10122B)on October 21,2010,based on a
determination that the application complied with all applicable UDO standards and Design
Guidelines. On this same date, electronic copies of the Planning Department decision were
emailed to Mr. Donohoe and Ms. Frost/Mr. Kerin. Hard copies were sent on the same day by US
Mail.
See. 18.66.030 of the UDO outlines the procedures for appeals of administrative decisions. Sec.
Sec. 18.66.030.0 of the UDO states the following:
Filin-of'Notice ol'Appeal: An appeal shall he taken bvfiling with the Clerk of*the
Commission a notice of intent to appeal hi•$:00 pm on the fourth husiness dav,following
the final decision of the Planning Director-, and a documented appeal and appeal fee
ivithin seven business dams of the final decision of the Planning Director. Such notice of
intent to appeal shall include the following:
1. The action of the Planning Director which is the subject of the appeal:and
2. The date nfsuch action.
On October 28 at 2 pm, an electronic notice of intent to appeal from Ms. Frost and Mr. Kerin
was received via email by the City Clerk's office. A complete appeal application was hand
delivered to the City Clerk's office on October 29.
Pursuant to Sec. 18.66.030.0 of the UDO,the timeframe for submittal of a notice of intent to
appeal of the administrative decision on the Donohoe Garage COA Modifications expired at 5
pm on October 27. The notice of intent to appeal was submitted by Ms. Frost and Mr. Kerin on
October 28,which was after expiration of the four business day timeframe established by the
UDO.
Therefore,in Staffs analysis, the notice to appeal is not valid, which renders the appeal
application moot.
However,before Planning Staff rendered such a decision on the Frost/Kcrin appeal,we believed
it was appropriate to refer the issue to the Commission. The Commission has two alternatives
for action on this item:
1. The Commission could elect to allow the appeal application to move forward by
scheduling a hearing for December 6.
2. The Commission could determine that the appeal application is not valid based upon a
failure of the notice of intent to appeal to comply with Sec. 18.66.030.0 of the UDO.
The UDO procedures and timeframes for submittal of notices of intent to appeal and appeal
applications are intended to provide certainty and clarity for applicants and aggrieved parties.
However,waiving or varying the appeal procedures and timeframes are not only a matter of
certainty and fairness. Such action could expose the City to potential liability if a decision was
made on appeal that did not comply with the UDO procedures. Depending on the ultimate
decision,such liability could come from either the appellant or the applicant via a further appeal
to District Court.
Therefore, Staff recommends that the Commission determine that the Frost-Kerin appeal
application is not valid because of a failure to comply with the appeal procedures outlined in Sec.
18.66.030.0 of the UDO.
FISCAL EFFECTS: No immediate fiscal affects are anticipated from setting the date for
consideration of the appeal.
ALTERNATIVES: The City Commission has two alternatives for action on this item:
1. The Commission could elect to allow the appeal application to move forward by
scheduling a hearing for December 6.
2. The Commission could determine that the appeal application is not valid based upon a
failure of the notice of intent to appeal to comply with Sec. 18.66.030.0 of the UDO.
Either of the alternatives actions should be made by motion.
Attachments: None
Report compiled on: November 5, 2010