AgdaPkt 2009-08-03 spc, clsd and jnt

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7A Zoning Qrdinance. The ordinance provides that: Page 3 "Every appeal must be made in wri�ing and fiied with the City C�erk within seven {7) days of tne finai decision or determination of the body or officia!whose action is being appeafed." Thus, the project app�icant has argued thaf as fhe decision of fhe P(anning Commission was made on May 19, 2449, and �he seven day appeal period under the Zoning Ordinance ended vn May 26, 2009 and the appeal was not filed unti� May 29, 2�09, the appeal is beyond the statutory deadline. Staff recommends that the City Council hear the appea( of #he F�nger Avenue Pride Committee because fihe Commit#ee has paid for their appeal and has in govd faith complied with the oral admoni#ion of staff at the conclusion of�he Planning Commission hearing, subsequent email transmissivns tv them, and the language �hat has �ong appeared on the City's website. Despite the language of the ordinance, ifi is reasonable to assume that the Committee relied upon those muitip#e admonitions. And, if a strict applicafion of the ordinance were to be imposed at this hour, the Committee would su€fer subs#antial detriment by being foreclosed from ever making their argumenfis as to fihe �a[idi�y of the mitigated negative declaration. For ali the abo�e reasons the Committee shouid be gi�en the oppor�unity to appeai the Planning Commission's decision because ofi their cammunity's interest in #he project, and the Committee in good faith followed the appeal direction by staff which is in line with many years of past practice. The Committee should not be penalized by complying with the wrong date. There is no doubt that the Commit�ee would ha�e filed the appea! earlier to meet the deadline, but for its reliance on information based on past practice, information that is not se#forth in the Municipal Gode. To staffs knowledge this is the first time there has ever been an issue with appeal periods based on NDA and decision dates. If this had ever been an issue before it would have been clarified and resolved. After consu(tation with the City Attorney, staff has revised its"appeal"forms on the web site and at the counter so that consistent information will be given to the pub[ic. More important#y, the Nofice of Official Actions wiI! make reference to the decision date as applicable far establishing the seven day period. Appeal of Adoptivn of�he Initial StudylMitigated Negative beclara#ion The Finger Avenue Pride Committee pro�ides essentially three reasons for its appeal of the lnitiai Study/Mitigated Negati�e Declaration4. These reasons along with staff responses are set fo�th: �. The Planning Commission failed ta recognlze the enfire record because if con�alned numerous facts and opinions supporfed by facts thaf supporf a "fair argumen�"for the potenfial for slgnifican�impacts resulting from fhe projec�; According to CEQA if there is substantial evidence in the whvle record to support a€air argumer�t that� prapased project may have a significant effect on the environrr�ent,then the lead agency shalf prepare an Environment lmpact Report e�en fihough it may aiso be presented with o�her substantial evidence that the project will not have a significant effect. The City does not have to resolve conflicts in the evidence but determines only �These reasons are taken directly from the appea{ letter dated May 28, 2009, which is attached.