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1 2.1 Requirement to hold a Public Hearing: The City's ordinance states that an appeal 2 hearing be held by the City Council (acting as the Board of Adjustments and Appeals) 3 consistent with the requirements and procedures of a Public Hearing (as defined in 4 Chapter 108 of the City Code). 5 The City Code reference to public hearings, however, seems to address Public Hearings 6 as required by State Statute. State Statute strictly regulates the circumstances and 7 process under which a Public Hearing must be held. An appeal of a land-use decision 8 (such as a variance) is not required by Minnesota Statutes. Staff's suggestion is that 9 while the intent may be to emulate the Public Hearing process, so naming the 10 consideration of an appeal may put undue legal burden and risk of litigation on the City. 11 Staff is recommending that the term "hearing" be replaced with "public meeting" and that 12 the reference to Chapter 108 be eliminated. 13 2.2 Notification: Currently, the language in the City Code related to a variance appeal states 14 that the notice requirements shall be consistent with the notice requirements for public 15 hearings. In addition to staff's conclusion that the consideration of the appeal should not 16 be required as a Public Hearing, another problem results from the language related to the 17 timing of consideration of the appeal being in conflict with noticing requirements legally 18 required of public hearings. 19 The Code requires that an appeal be filed within ten (10) days of the Variance Board's 20 ruling and subsequently heard by the City Council at its "next regular meeting." This 21 results in a case where the elapsed time between the filing of the appeal and the 22 designated City Council meeting can be as few as five business days. The public hearing 23 notice requirements, however, state that notice of the hearing be published in the 24 newspaper at least ten (10) days prior to the hearing — which would be an impossibility 25 under current requirements. Additionally, it would be difficult for staff to create, print 26 and mail a mailed notice in a manner that would provide neighbors with sufficient notice 27 in the time between the filing of an appeal and the City Council consideration. 28 Based on the discussions held by members of the Variance Board, Planning Commission 29 and City Council, staff has concluded that the desired policy would provide for 30 notification of a City Council consideration of an appeal in a manner that is not in conflict 31 with either the appeal process or with notification requirements. Based on this 32 conclusion, staff is recommending that two amendments be made to the process: first, 33 that the City Council consider an appeal within 30 days of the filing of an appeal (rather 34 than at its "next meeting") and; secondly, that mailed notification be provided to 35 members of the Variance Board (if applicable) and to those adjacent property owners 36 within 350 feet of the property. 37 2.3 Items to be considered in the appeal process: The ordinance regarding the appeal 38 process is silent as to whether the intent of the appeal process is for the City Council to 39 reexamine the exiting record of the Variance Board's or staff decision or whether the City 40 Council is to consider new evidence. Staff is of the opinion that the presence of 41 significant new information should result in the applicant submitting a new application PF3800_RCA_Variance_Appeal_042307_042307 Page 2 of 3