TO: Mayor and Assembly DATE: September 11, 1995
FROM: David R. Palmer
City and Borough Manager
SUBJECT: Manager's Report - Regular Mtg. No. 95-35
intage Park. As part of approval of the conditional use permit, the Planning Commission allowed the restaurant and the existing Carr Gottstein grocery store to share parking. On August 28, 1995, BBS Enterprises, an owner of adjacent property, appealed the Commission's approval of a joint use parking agreement to the Assembly.
The Statement of Appeal, the Notice of Decision on the CU-50-95, the staff report to the Commission, and pertinent minutes of the August 8 Planning Commission meeting are in your packet. Janet in CDD to provide NOD & minutes
The Assembly is the appeal agency for this appeal, and its actions throughout the appeal process are governed by CBJ 01.50, the Appellate Code. The Code requires that upon receiving an appeal, the Assembly, must first decide whether to accept or reject it. The standards applicable to this decision are set out at CBJ 01.50.030(e):
(e) Action by Appeal Agency Upon Receipt of a Notice of Appeal.
(l) Within thirty days of receipt of a notice of appeal by the appeal agency, the appeal agency shall notify the appellant of the acceptance or rejection of the appeal and, if rejected, the reasons for the rejection.
(2) The notice of appeal shall be liberally construed in order to preserve the rights of the appellant. The appeal agency may reject the appeal for failure to comply with these rules or if the notice of appeal does not state grounds upon which any of the relief requested may be granted.
BBS Enterprises, Carr Gottstein, the Community Development Department, and the Planning Commission have been advised that this matter is before the Assembly. In general, the Department and the Commission, have no objection to acceptance of the appeal, although they reserve the right to object to Assembly consideration of some of the issues included in the notice of appeal.
The Law Department has not been significantly involved in this case, and will not represent the municipal parties. Accordingly, the City Attorney is free to act as the Assembly's legal advisor.
The following procedural issues should be decided:
1. Will the Assembly accept the appeal?
2. Will the Assembly hear the appeals itself or assign to a hearing officer?
3. If the Assembly hears the appeal itself, will the Mayor preside, or will he designate a member as presiding officer?
This matter is before the Assembly sitting in its quasi-judicial capacity. Accordingly, members should avoid discussing the case outside the hearing process. With respect to this issue, the Appellate Code provides as follows:
CBJ 01.50.230 IMPARTIALITY. The functions of hearing officers and those appeal agency members participating in decisions shall be conducted in an impartial manner with due regard for the rights of all parties and the facts and the law, and consistent with the orderly and prompt dispatch of proceedings. Hearing officers and appeal agency members, except to the extent required for the disposition of ex parte matters authorized by law, shall not engage in interviews concerning the appeal with, or receive evidence or argument on the appeal from, a party, directly or indirectly, except upon opportunity for all other parties to be present. Copies of all communications with a hearing officer or appeal agency member concerning the appeal shall be served upon all parties.
Because this is an appeal, I have no recommendation on whether or how the Assembly should hear the appeal. After the Assembly has made its decisions on these issues, the Clerk will contact the parties and the presiding or hearing officer to notify them of the Assembly's decision and to arrange for a pre-hearing conference or other proceedings.
ADMINISTRATIVE REPORTS ON NON-AGENDA ITEMS:
A. Manager's Report - Action Item:
B. Manager's Report - Information Items:
1. Back Loop Sewer - Mary Wilson Complaint
2. Glaser Training - Post Report
3. Request for Proposals Report: July - August, 1995
At the Assembly's request, your packet includes the request for proposals report for the period July - August, 1995.
C. Attorney's Report:
1. Report on Litigation regarding Hedland, Fleischer, Friedman, Brennan & Cooke
Our URL is www.juneau.lib.ak.us