City of Boise Municipal Code — Title 11: Development Codes
City of Boise 11-03-03: Procedures | Original here.
This section describes procedures for processing and reviewing applications for development.
1. Step 1: Pre-Application Meeting: A pre-application meeting with the Director is required for subdivisions over 40 lots, conditional use permits, annexations, variances, special exceptions, rezones, and land use map amendments.
A. Timing: A pre-application meeting shall be held not more than six months prior to the submission of an application and shall occur prior to notification or the holding of a neighborhood meeting.
B. Verification: A pre-application meeting verification form shall be submitted with the application.
C. Waiver: The Director may waive this step for projects that are not complex and have little potential to substantially impact neighboring properties.
2. Step 2: Neighborhood Meeting: The applicant shall hold a meeting allowing the public to review the proposed project only after a pre-application meeting has been held. A second meeting may be required by the Director if the application could have the potential to create measurable impacts including, but not limited to increased traffic or environmental concerns. The second meeting may occur before or after application submission but shall follow the noticing procedures of 11-03-03.4.
A. Timing And Location: A neighborhood meeting shall be held not more than six months nor less than 12 days prior to submission of the application, within two miles of the project site, Monday through Thursday, excluding holidays, and start between 6:00 P.M. and 8:00 P.M.
B. Notification: Notice shall be sent or delivered to residents and property owners within 300 feet of the site and to the registered neighborhood association. For variance applications, only adjacent (including across streets and alleys) residents and property owners need be notified. Mailed notices shall be postmarked at least ten days prior to the meeting. Hand-deliveries shall be allowed for variance applications only and must also be delivered at least ten days prior to the meeting.
C. Waiver: The Director may waive this step for projects that are not complex and have little potential to substantially impact neighborhood properties.
3. Step 3: Application Submittal: Applications shall be submitted on a prescribed form, accompanied by the appropriate filing.
A. Application Requirements: Application requirements shall be indicated on forms available in the Planning Division. Additional submittal requirements necessary to evaluate the application may be required, as determined by the Director.
B. Application Fees: The Director shall maintain a list of fees as established by the Council.
C. Conceptual Approval: Conceptual approval may be requested for planned development conditional use permits. A concept approval signifies that a general development plan including the general arrangement of uses, density, location of major streets, open spaces, utilities, etc. is acceptable. The effect is support for a general development plan without preparation of building plans. It provides the developer and the city with guidelines for the design of each phase of a project.
(1) When indicated in Section 11-03-04, Specific Procedures, an application may be submitted and processed as a conceptual approval.
(2) Submittal requirements are the same, except that detailed building plans are not required. Supporting information may be required for concept applications as determined by the Director.
(3) After concept approval, detailed approval is required through a new application, fee, and public hearing except concept approvals specifically authorized by the PZC may proceed to design review without a detailed approval. Otherwise development or building permits may not be issued on the basis of a conceptual approval without a detailed approval.
D. Application Resubmittal: Except as indicated in Section 11-03-04, no application that has been denied shall be resubmitted in substantially the same form – as determined by the Director – in less than one year unless approved to do so by the reviewing body.
4. Step 4: Notice:
A. Application Referrals: Applications requiring public hearings shall be referred to all political subdivisions providing services to the site, including school districts, and registered neighborhood associations for review and comment. Application referrals to the registered neighborhood association shall be in addition to, and not in lieu of, mailed public hearing notice.
B. Published Notice: At least 15 days prior to the hearing, notice of the time and place and a description of the proposal shall be published in the official newspaper of Boise City. A notice shall also be provided to other newspapers, radio, and television stations servicing the city for use as a public service announcement.
C. Mailed Notice: Notice shall be mailed to the applicant and to property owners, purchasers of record, residents, and registered neighborhood associations:
(1) Within the subject property;
(2) Within the following distances from the external boundaries of the subject property:
(a) For Boise River System permits, 500 feet upstream and 1,000 feet downstream from the project site;
(b) For comprehensive plan land use map amendments, rezones, special exceptions, subdivisions five acres or greater, and conditional use permits and planned unit developments greater than one acre or on a gateway street, 500 feet;
(c) For a height exception exceeding 100 feet, a distance that is three times the proposed height;
(d) For variances, adjacent properties;
(e) For all other applications, 300 feet.
(3) Any additional area that may be impacted by the proposed change as determined by the Director when:
(a)The application could result in significant adverse traffic, environmental, aesthetic, noise, pollution, or population density impacts occurring outside the minimum notice area;
(b)The public interest would be better served by expanding the notification area.
D. Posted Notice: Notice shall be posted in a conspicuous place on the premises not less than 15 days prior to the hearing. The applicant shall be responsible for the timely posting of all sites and for the documentation of such postings, including appeals. The Director may require larger sized posting(s) or multiple notice(s) for applications that could result in significant adverse traffic, environmental, aesthetic, noise, pollution, or population density impacts.
(a) All notice(s) shall be a minimum of 11"x17" in size, unless otherwise required.
(b) Notice(s) 4’x4′ in size shall be required for: comprehensive plan land use map amendments, rezones, annexations, special exceptions, subdivisions five acres or greater, and conditional use permits and planned unit developments greater than one acre or on a gateway street.
(2) Content: The notice(s) shall utilize the template provided by the City.
(a) Notice(s) 11"x17" in size shall be in bright colored, laminated paper, or other similar material mounted to a rigid surface of equal size and attached to a Director approved support.
(b) Notice(s) 4’x4′ in size shall consist of plywood or other hard surface mounted on two 4"x4" posts, or attached to another Director approved support.
(4) Placement & Quantity:
(a) The notice(s) shall be posted perpendicularly along each roadway, excluding Interstate 84, adjacent to the subject property boundaries. The base of the notice shall be at least three feet above the ground.
(b) If the property has roadway frontage of 1,000 feet or more, a notice shall be placed at each end of the property roadway frontage.
(c) Notice(s) shall be located in the front yard on the property, with the notice oriented to oncoming traffic, outside of public right-of-way.
(d) If the notice(s) cannot be placed on the property and still be clearly visible, the notice(s) may be placed within the right-of-way if the applicant can obtain the consent of the owner of the right-of-way.
(5) Proof of Posting: Ten days prior to the public hearing, the applicant shall submit to the City a notarized statement and photograph of the posting attesting to where and when the notice(s) were posted. Unless the statement is received by such date, the hearing will be deferred.
(6) Removal: The notice(s) shall be removed no later than three days after the public hearing for which the notice(s) was posted.
E. Alternate Forms Of Notice: When mailed notice is required for 200 or more property owners, purchaser of record, or residents, an alternative form of notice may be provided as follows:
(1) In lieu of mailed notices, two additional newspaper notices as described in subsection B, Published Notice, above; and
(2) The general area may be posted with notice in lieu of posted notice on each premise.
F. Notice Of Material Change: Following the hearing, if the PZC recommends a material change to the application, it shall give notice and conduct another public hearing before sending a recommendation to Council.
G. Notice Of Continued Hearing: At any public hearing, the review body may order the hearing to be continued by publicly announcing the time and place of continuance. No further notice thereof shall be required.
5. Step 5: Application Processing: The Director shall review the application materials and prepare a report of findings, including a recommendation to the review body to approve, approve with modifications, or deny the application, based on the applicable criteria in this Code.
6. Step 6: Public Hearing:
A. Types Of Public Hearings:
(1) Legislative: Legislative hearings include hearings on amendments to, or enactments of, any ordinance or enactment. They also include revisions or amendments to the Boise City Comprehensive Plan, or applications to establish a new zoning or overlay district. In legislative hearings, the record is not limited to the record developed by the review body. Any and all new evidence may be received by Council during a legislative hearing regardless of whether the evidence was introduced in prior procedural steps.
(2) Quasi-Judicial: Quasi-judicial hearings are hearings in which the review bodies are making decisions on the development of a specific property.
B. Timing Of Public Hearings: The date for hearings shall be established by the Director based upon published cut-off and hearing dates, and as follows:
(1) The application shall be scheduled at the next available hearing.
(2) The Director may extend the review time for applications that are unusually large or complicated.
(3) Deferrals due to lack of quorum, lateness of the hour or a request by the applicant shall extend the time during which the hearing must be held.
C. Public Hearings By The City Council: Council hearing dates shall be established at a Council meeting.
7. Step 7: Decision: The decision body shall approve, approve with modifications, or deny an application based upon the applicable standards and criteria in this Code and the Boise City Comprehensive Plan. The decision shall be deemed to have been made on the date that the review body adopts a reasoned statement. A decision is final unless appealed.
A. Timing Of Decision:
(1) Administrative Approval: Within 15 calendar days after receipt of a complete application the Director shall approve, approve with modifications, or deny the application and shall notify the applicant, in writing, of the decision and the reasons for modification or denial.
(2) Review Body Or City Council Approval: A review body shall take action within 60 days from the date of the initial hearing unless the applicant agrees to a deferral for a longer period of time, or unless otherwise provided in this Code.
(3) Extended Review: The Director may extend the review/processing period for large planned development applications up to 66 days from date prior the application was submitted. This extended review period is to allow for adequate staff research and analysis, agency review and comment, coordination with other city departments, and coordination with the applicant.
B. Reason Statement: The approval or denial of an application shall be in writing and accompanied by a statement that explains the applicable criteria and standards, states the relevant facts relied upon, and explains the rationale for the decision based on the applicable provisions of the Boise City Comprehensive Plan, relevant and statutory provisions, pertinent constitutional principles, and factual information contained in the record.
C. Criteria: A decision body authorized to act under this Code shall base a decision on the following criteria and any additional criteria indicated in Section 11-03-04, Specific Procedures:
(1) The approval is consistent with the policies of the adopted Boise City Comprehensive Plan;
(2) The approval is consistent with the general purpose of this Code stated in Section 11-01-03; and
(3) The approval shall not confer a special privilege on the property owner.
D. Conditions: A decision body authorized to act under this Code may impose conditions as needed to ensure that the approval is consistent with the purposes of the Boise City Comprehensive Plan and the general purpose of this Code stated in Section 11-01-03.
E. Effective Date Of Approval: An approval shall become final upon the issuance of a written decision and after ten days have elapsed from the date following the decision, provided however, that such effective date shall be stayed by the filing of an appeal. ORDINANCES SHALL BE EFFECTIVE UPON PUBLICATION.
F. Notice Of Public Review Body Decisions: The Director shall mail notice of each decision and of the appeal deadline to the applicant, appellant, and registered neighborhood association within three business days. The notice shall indicate that a reason statement can be reviewed in the Planning and Development Services Department and that the landowner can request a taking analysis.
G. Reconsiderations Of Review Body Decisions:
(1) Purpose: To minimize the number of appeals, prevent new information from being presented on appeals, and resolve disputes at the lowest possible level.
(2) Applicability: Upon request the review body may reconsider a decision for good cause. Good cause includes:
(a) The party requesting reconsideration has relevant information;
(b) The relevant information was not brought up at the previous hearing; and
(c) The information was not previously available.
(a) A request for reconsideration shall include supporting information and shall be made prior to the deadline for filing an appeal.
(b) A decision on a reconsideration is not appealable.
(c) If reconsideration is granted, the time to appeal and any pending appeal shall be stayed. If reconsideration is granted and the appeal is withdrawn, the appeal fee shall be refunded in its entirety.
(d) If the applicant has modified the application, the review body shall determine if the revised application shall be reconsidered or if a new application is required.
8. Step 8: Modification: For some procedures, as indicated in Section 11-03-04, the holder of an approval may request modification.
A. Notice Of Approval: A letter stating the nature of a conditional use modification approval and findings of fact on which the approval was based shall be provided by mail to the applicant. A notice, stating the nature of the modification shall be provided by mail to the property owners, purchasers of record, and residents within a 300-foot radius of the external boundaries of the subject property.
9. Step 9: Appeal:
A. Appeals, Generally: A decision of the Director or a review body may be appealed.
(1) Appeals to the City Council can only be made by a party of record. Administrative appeals can be made by anyone.
(2) Appeals must be in writing, accompanied by the appropriate fee, and prior to the established deadlines or the next working day thereafter if the appeal deadline falls on a weekend or holiday.
(3) Appeals must specify the issues, items, or conditions that are being appealed.
B. Appeal Of Administrative Decisions:
(1) Types Of Appeals Of Administrative Decisions:
(a) Interpretation Of Code And Administrative Design Review Decisions: A person aggrieved by the Director’s interpretation of this Code or by an Administrative Design Review decision may file an appeal with the Director. The appeal shall be submitted within ten days of the decision. Upon receipt, the Director shall schedule the hearing before the appropriate review body at the next available public hearing.
(b) Other Administrative Level Decisions: A person aggrieved by a decision on administrative level applications other than design review, or by a decision of the DRC, may appeal to the PZC, or in cases involving historic review to the HPC, within ten days of the decision. Upon receipt of the appeal, the Director shall establish a hearing and shall notify the appellant, applicant, registered neighborhood association, and property owners and residents within 300 feet of the property. The review body may sustain, deny, or modify the decision and conditions.
(2) Acceptance Of Filed Appeal: The Director shall transmit to the appeal body the record of the subject hearing.The filing of an appeal stays further action (subdivision, design review, conditional use, etc.) unless the Director determines that a stay would cause imminent peril to life or property.
(3) Timing: The appeal shall be heard at the next available public hearing. Notice for the public hearing shall be as in Step 5, Notice.
(4) Open Record On Appeal Of Administrative Decisions: A review may consider any evidence, regardless of whether it was presented previously. The decision is accorded weight to the extent it is the result of the application of special administrative and technical expertise. The record shall be fully developed at the commission level.
(5) Waiver Of Appeal Period: The Director may waive the appeal period upon receipt of a written request accompanied by the signatures of adjacent property owners indicating no objection to the approval.
C. Appeals Of Review Body Decisions (Quasi-Judicial): Review body decisions may be appealed to the Council in accordance with the following:
(1) Appeal Procedures:
(a) Standing To Appeal: A final decision of a review body may be appealed by the applicant, the owner, those who have testified orally or in writing at the hearing, and those who sign up to testify. Such persons shall be deemed parties of record, as shall any person who had a right to notice, but did not receive it. The City Clerk’s and Director’s proof of publication, mailing, and posting shall constitute proof of notice.
(b) Timing Of Appeal: The appealing party shall file a signed appeal form and fee within ten days of the review body decision and adoption of a reason statement.
(c) Notice Of Filed Appeal(s): The Director shall mail notice that an appeal has been received to the parties of record and the registered neighborhood association. Failure of delivery or delay of receipt of the notice shall not extend the appeal period or be grounds for appeal. The mailed notice shall include instructions on submitted and reviewing memoranda.
(d) Scheduling Of Appeal To City Council: The application for appeal shall be forwarded to the City Clerk and Council shall set a date for a public hearing. The hearing date shall not be sooner than 28 days after the appeal is filed to allow for submission of memoranda. Notice shall be in accordance with the requirements of this Code.
(e) Supplemental Documents: For the purposes of this section, staff reports to the City Council are not considered memoranda.
i. The parties to the appeal and the Director may file written arguments (memoranda) within 14 days after the appeal deadline.
ii. Replies to memoranda must be filed within 21 days of the appeal deadline.
iii. Memoranda and responses may not contain new facts or evidence or discuss matters outside the record but rather are limited to why the record does or does not support the decision.
iv. The Council may modify the schedule if the hearing date on the appeal is deferred.
(2) Standards Of Review For Appeals:
(a) Because the review bodies are recognized as having expertise in their substantive areas, the Council shall give due consideration to their decisions.
i. The Council may find error on the following grounds:
ii. The decision is in violation of constitutional, state, or city law. An example would be that the review body’s decision would be a taking.
iii. The review body’s decision exceeds its statutory authority.
iv. The decision is made upon unlawful procedure. An example would be if notice of a required public hearing was inadequate. In such cases, the matter may be remanded to correct the error.
v. The decision is arbitrary, capricious or an abuse of discretion in that it was made without rational basis, or in disregard of the facts and circumstances presented. Where there is room for two opinions, action is not arbitrary and capricious when exercised honestly and upon due consideration.
vi. The decision is not supported by substantial evidence.
(b) If error is found, the review body decision may be reversed or modified.
(c) If no error is found the appeal shall be denied and the decision upheld.
(3) Administrative Record Review And Correction:
(a) The Director and City Clerk shall make the full administrative record available to the public.
(b) If a party believes that information has been omitted from the administrative record, it shall bring it to the attention of the Director no later than ten days prior to the date for the appeal hearing. If information has been omitted from the record, the Director shall determine if the information was presented to the review body and, if so, shall include it in the record provided to the Council.
(4) City Council Deliberation On Appeal; Contents Of Decision:
(a) Following the close of the appeal hearing, the Council shall deliberate in public to a decision. The decision shall be based on the standards of review set forth in Subsection (4), above.
(b) The Council shall adopt a written reason statement in support of its decision and shall identify:
i. The ordinance, standards, and criteria set forth in the Comprehensive Plan and this Code used in evaluating the application;
ii. The reasons for approval or denial; and
iii. The actions, if any, that the applicant could take to obtain a permit.
(5) Notice Of Decision On Appeal: The Director shall mail to the applicant, the appellant, and the registered neighborhood association notice of the decision together with the reason statement and a notification of the right to seek judicial review.
10. Step 10: Term Of Approval:
A. Term Of Approval:
(1) Unless otherwise indicated in Section 11-03-04, Specific Procedures, the term of an approval shall not exceed 2 years. The approval shall lapse if the holder of the permit has not completed one or more of the following actions:
(a) Acquired construction permits and commenced placement of permanent footings and structures. (structures include sewer lines, water lines, streets, and building foundations); or
(b) Commenced the use; or
(c) For conceptual conditional use permits, submitted an application for a detailed conditional use permit; or
(d) For projects that require platting, recorded a subdivision plat.
(2) The Commission may set a term within which the project must be completed. That term shall not be less than 6 years.
B. Extension Of Approval Term:
(1) The Commission may grant up to 2 two-year time extension to an unexpired conditional use permit. Extensions to conditional use permits shall also extend any associated zoning approvals such as variances and design review approvals. The Commission shall hold a public hearing to decide the extension request if:
(a) There have been significant amendments to the Comprehensive Plan or Zoning Ordinance which will affect the conditional use permit; or
(b) There have been significant land use changes in the vicinity which would adversely impact the project or be adversely impacted by the project; or
(c) There are hazardous situations which have developed or have been discovered in the area.
(2) If a hearing is required, notice shall be provided as per Section 11-03-03.4. A new application and fee are required and shall be reviewed for compliance with current plans and ordinance.
11. Mediation: A mediation option is available, in accordance with Section 67-6510 of the Idaho Code.
A. Timing Of Mediation Request: Mediation may occur at any point during the decision making process or after a final decision has been made. If a mediated resolution is agreed to by the participating parties after a final decision has been made, the revisions resulting from such resolution shall be the subject of a new public hearing before the decision-making body. However, the mediation record shall not be part of the official record for the application.
B. Written Request Required: Mediation may be requested by the PZC, the Council, the applicant, or any affected person by submission of a written request to the Director. An affected person is one having an interest in real property which may be adversely affected by the issuance or denial of a permit. The request shall include a statement of concerns and issues and the desired outcome of the mediation.
C. Notification Of Willingness To Participate: The Director shall forward the request to the applicant or affected persons on the other side of the issue. These parties shall be notified that they have seven days to notify the city as to whether or not they will participate in mediation. The Director shall determine the appropriate parties to notify.
D. Participation: The parties shall participate in at least one mediation session if requested by the PZC or Council. If the applicant or affected person declines to participate in mediation and the Council declines to direct mediation, the mediation process and the tolling of time limits are ended.
E. Expenses Of Mediation: The Council shall select and pay the expenses of the Mediator for the first session. Any additional sessions shall be paid for by participating parties.
F. Tolling Of Time Limits: Once mediation is agreed to, all time limits related to hearings, and appeals are tolled (i.e., delayed). Such tolling of time shall cease when:
(1) All parties on one side of an issue decline further participation in the mediation process; or
(2) No mediation session is scheduled for a period of 28 days from the date the request for mediation is received.
G. Mediation Not Part Of The Application Record: The mediation process shall not be part of the official application or project record, and shall not be disclosed or used in any subsequent city hearings on the application or appeal of a decision on such application, except that any resolution resulting from mediation shall be subject to a new public hearing.
12. Taking Analysis: Notice to an applicant of a final decision rendered by City Council concerning a site-specific land use request shall include notice of the right to request a regulatory taking analysis.
A. Procedure: A request for a regulatory taking analysis must be submitted to the Director within 28 days from the date of the final decision.
(1) Upon request, the City shall prepare a written taking analysis of any decision or condition(s) of approval on any site specific zoning or development application. The regulatory taking analysis shall comply with the process set forth in this Code including use of the most current guidelines developed by the Idaho Attorney General and be provided to the real property owner within 42 days of the request. The request for a taking analysis and the analysis shall be part of the application record. During the preparation of a taking analysis, any time limitations related to the application or action shall be tolled (i.e., delayed).
(2) If the taking analysis concludes that a taking occurred, Council shall take corrective action.
(3) The decision being challenged is voidable if a written taking analysis is not prepared after a request has been made pursuant to this Section. Where the city fails to prepare a required requested taking analysis pursuant to this Section, a private real property owner whose land is the subject of city action and is affected by the city’s action may seek judicial determination of the validity of the governmental action by initiating a declaratory judgment action or other appropriate legal procedure. A suit seeking to invalidate a city action for noncompliance with paragraph (2) of this section must be filed in a district court in the county in which the private property owner’s affect real property is located.
B. Guidelines: The City shall use the most current regulatory taking guidelines of the Idaho Attorney General to prepare the takings analysis. The following guidelines are current as of the adoption date of this Code:
(1) Does the regulation or action result in a permanent or temporary physical occupation of private property?
(2) Does the regulation or action require a property owner to dedicate a portion of property or to grant an easement?
(3) Does the regulation deprive the owner of all economically viable uses of the property?
(4) Does the regulation have a significant impact on the landowner’s economic interest?
(5) Does the regulation deny a fundamental attribute of ownership?
(6) Does the regulation serve the same purpose that would be served by directly prohibiting the use or action; and does the condition imposed substantially advance that purpose?
13. Conduct Of Hearings Before Review Bodies: The following provisions govern the conduct of hearings before a review body. Except where limited to a specific review body, this section applies to the following review bodies: Hearing Examiner; the Planning and Zoning Commission; the Design Review Committee and the Historic Preservation Commission.
(1) Sign-In Roster: A sign-in roster shall be kept at the entrance to the hearing room for all persons who wish to testify at the hearing on a particular application or issue.
(2) Allotted Time: In order to accommodate all participants, the Chair may determine the time allotted to each speaker within the parameters set forth in this section.
(3) Recordation: All proceedings shall be recorded and all material presented shall be maintained by the City. The record shall be made and maintained in a manner such that the hearing record may be transcribed.
(4) Disclosure And Inquiry: Review body members shall disclose any comments received or observations they have made, or discussions they have had regarding the application. Disclosure shall be on the record prior to the time for testimony to allow parties of record to address them. Disclosure shall include from whom the comments were received, with whom the person making the comments is affiliated and the nature of the comments, as well as any documents related thereto.
(5) Order Of Presentation:
(a) In the case of an appeal, the order of presentation before the review body shall be staff, appellant, applicant (unless the appellant is the applicant) and then the other parties to the appeal and the general public. Questions by the review body shall be held until after the staff report and the presentations by the appellant(s) and/or applicant. The appellant, the applicant and the registered neighborhood association representative may each be given up to 30 minutes for their presentation. The other parties to the appeal and the general public shall be given 3 minutes to testify. Following the close of public testimony the applicant and appellant shall be allowed up to 5 minutes each for rebuttal, with the appellant providing the last rebuttal.
(b) In the case of an initial review body hearing, the order of presentation shall be staff, applicant, the designated neighborhood association if it chooses to testify, and then the general public. The applicant may be given up to 30 minutes for her/his presentation. The designated neighborhood association shall have an equal amount of time as the applicant to testify if requested. The general public may be limited to 3 minutes each. The applicant shall be allowed up to 5 minutes for rebuttal following public testimony.
(c) Only the representative of such registered neighborhood association who has been authorized by the association in accordance with such association’s established procedures to represent the association in the matter before the review body shall be allowed the amount of time identified above. Any other member of such association shall be limited to 3 minutes.
(6) Submission Of Written Documents And Evidence To A Review Body:
(a) Every document referred to by any person during testimony (including charts, maps, photographic evidence or any other evidence) shall be identified and entered into the record of the proceeding. Such exhibits shall be maintained in the Planning and Development Services Department. In most cases, a decision will be made at the end of the hearing; therefore it is strongly encouraged that documents be given to the Planning and Development Services Staff as early as possible before the hearing so that all evidence will be adequately reviewed by staff and the decision maker.
(b) A review body cannot review substantial written documents handed to them during the hearing while listening to verbal testimony. Further, the submission of such documents does not allow other parties time to address the material. Therefore, the submission of substantial written information to a review body is restricted as set forth below.
i. Written testimony may be accepted to the extent that it is a copy of the testifying party’s oral testimony presented to the review body.
ii. All other written testimony and documents must be submitted to the Planning Director by 5:00 P.M. on the Thursday preceding the review body hearing in order to be printed and included in the printed record presented to the review body.
iii. Written testimony submitted to the review body during the hearing shall be accompanied by a one-page summary of the document, a statement of why the testimony or document could not be submitted by the Thursday deadline, and a request that such testimony or document be accepted for the record. The review body shall have the options of rejecting the information, reviewing the information during the hearing, taking a recess to review the information, or deferring the hearing and/or action until the testimony or document can be reviewed. The action to be taken on such request shall be by a majority vote of the review body membership. In deciding whether or not to accept the information the review body shall consider prejudice to other parties if the information is accepted.
iv. The information submitted, and the review body’s decision on whether to accept or reject it, shall be forwarded with an appeal. The appeal review body may add the document or testimony at issue to the record if it determines the initial review body erred in rejecting it.
v. Nothing in this ordinance shall prevent a citizen from presenting a verbal summary of substantial documents, in accordance with the hearing procedures and time limits for oral testimony.
(7) Public Testimony:
(a) Following the staff report and the presentations by the applicant and/or appellant, the review body may ask questions of the staff, applicant or appellant. Following any such questions and responses, the Chair shall open the hearing for public testimony and shall invite the public to address the review body in the order of names found on the sign-in roster. A roster shall be maintained at the podium or similar suitable place for anyone who was not included on the sign-in roster, but who wishes to become a party of record, to provide in writing her or his name and address.
(b) The Chair may limit public testimony to three minutes for each member of the public. The applicant, including an applicant’s representative(s), appellant, and representatives of the registered neighborhood association within which the applicant’s project is located, may not be allowed more than 30 minutes each for their presentations. Neighborhood associations who demonstrate a substantial impact from an application, even though their association is outside the application boundaries, shall be given equivalent time as those associations within the boundaries, but such associations together shall be limited to no more than the amount of time allowed for the applicant. Only the representative of such registered neighborhood association who has been authorized by the association in accordance with such association’s established procedures to represent the association in the matter before the review body shall be allowed the amount of time identified above. Any other member of such association shall be limited to 3 minutes.
(c) Each person testifying before the review body shall state, for the record, her or his full name and address.
(d) Before the close of the public testimony, in a hearing before the initial decision maker, the Chair shall ask if any persons attending the hearing who did not sign the roster wish to be heard and any such person shall be given the opportunity to testify.
(e) Members of the review body may question any person who has finished testifying or may, upon unanimous consent of the members present, recall a person for further testimony.
(8) Final Comments:
(a) If the review body is conducting a hearing where it will make the initial decision, at the close of public testimony, the Chair may solicit comments from staff for additional facts or clarifications. After comments from staff, any member of the public who wishes to do so may address those additional facts and comments. The applicant shall be given an opportunity to address any additional facts or comments during rebuttal.
(b) If the review body is hearing an appeal, the appellant shall be given an opportunity to make final statements to the review body. The Chair shall re-open testimony to allow the applicant, neighborhood association, or public participants to address any additional matters raised by the review body’s questions. The applicant and appellant shall address such additional matters during rebuttal.
(9) Closing Of Public Hearing: After all testimony, the Chair shall declare the public hearing closed and shall bring the matter before the review body for discussion and action.
B. Review Body Consent Agenda:
(1) Criteria For Consent Agenda: Routine, uncontested applications may be placed on a consent agenda in accordance with the procedures set forth herein. Based upon a recommendation from the Planning Staff, the Chair, at the beginning of the public hearing, shall identify all items proposed for the consent agenda. Only applications that meet the following criteria shall be considered for the consent agenda:
(a) There has not been any written or oral opposition to the application.
(b) The Planning Staff and the applicant are in agreement on the findings and conclusions and recommended conditions of approval.
(c) The application complies with the City Comprehensive Plan and Zoning Ordinance as proposed or as it will be modified by conditions of approval.
(d) The review body has no concerns with the application.
(2) Questions To Consider For Consent Agenda: To make a determination on whether or not the application should be placed on the consent agenda, the Chair shall ask the following questions:
(a) Does the review body have any questions on the application (provide agenda number and applicant’s name)?
(b) Is there anyone present who has adverse testimony related to the application (provide agenda number, applicant’s name, and location of site)?
(c) Is the applicant or a representative of the applicant present?
(d) Is the applicant in agreement with the Staff recommendation, findings and conclusions, and conditions of approval?
(3) Opposition To Consent Agenda: If there is any opposition from any party or member of the public, regarding an application, or if no-one is present to testify, but written testimony was provided, that item shall not be placed on the consent agenda. Once the consent agenda is established, the review body may approve all items on the consent agenda with one motion.
C. Review Body Deferral Procedure:
(1) Deferral Allowed: Applications that have been placed on the review body public hearing agenda may be deferred for a no more than 60 days unless the applicant agrees to a longer period.
(2) Lack Of Quorum Or Lateness Of Hour: If the review body makes a specific finding at the public hearing that a limited delay is necessary due to the lack of a quorum or the lateness of the hour, then a delay can be granted to the next scheduled meeting of the review body. A request for deferral may be initiated by a member of the review body, the applicant, the Planning Staff or the public. Scheduled agenda items shall only be deferred by the review body and only during the public hearing.
(3) Guidelines: Pursuant to the following guidelines, requests for deferral submitted prior to or at the start of the public hearing must be ruled upon by the review body:
(a) If the applicant and the Planning Staff are in agreement on the deferral, including the requested length of deferral, and there is no public opposition, the review body may consider the request to be routine. Such requests should be deferred to a date specific when possible to avoid the requirement for re-advertising.
(b) The review body shall act on requests for deferral only after soliciting input from the applicant, staff and any concerned public. If a deferral is granted, any member of the public who cannot or will not return for a deferral hearing shall be provided an opportunity to testify.
(4) Considerations: In addition to the testimony on the issue the review body shall consider the following:
(c) Have there been previous deferrals?
(d) Are additional studies, redesign or other development alternatives being considered for which the time to complete cannot be accurately estimated?
(e) The number of citizens present to testify and their input on a date specific deferral.
(f) Does the review body have before it a written deferral request from the applicant?
(5) Deferral Process:
(g) Indefinite Deferral Process: When action on an application has been deferred indefinitely at the applicant’s request, the applicant shall pay an additional fee to cover the cost of re-advertising before the application is scheduled for a public hearing. Such fee shall be determined by the Planning Director.
(h) Deferrals For Sexually Oriented Business Applications: Unless the applicant agrees to a deferral, applications for Sexually Oriented Businesses and Bikini Bars must be decided within 45 days following the public hearing. Failure of the Commission to decide such application within 45 days following the hearing shall result in its approval.
D. Inclusion On Agenda: An application shall be considered as being on the agenda upon the mailing of radius notices to impacted property owners and residents. Prior to the placement of an application on the public hearing agenda, the applicant may submit a request for rescheduling to the Planning Staff. The Planning Director may reschedule the hearing to an appropriate date if the applicant has requested rescheduling or if there are procedural or logistical reasons that justify rescheduling.