Explanation
This legislation amends Chapter 3118 of the Columbus City Codes, 1959, by enacting new Section 3118.041 which enables the Director of the Department of Development or his or her designee to appoint substitute members to the Board of Commission Appeals in the event of a conflict of interest of certain members that results in the Board being unable to hear a particular appeal due to that conflict. This ordinance will require the Director or his or her designee to maintain a list of qualified individuals for this purpose comprised of former members of architectural review commissions and former members of the Board of Commission Appeals. In addition, this legislation amends Section 3118.09 of this Chapter by clarifying the standard of review on appeal.
Fiscal Impact: None.
Emergency Designation: This legislation is being submitted as an emergency so that the Board of Commission Appeals may timely consider certain appeals that have been tabled due to no fault of the appellant because of conflicts of interest among various Board members.
Title
To amend Chapter 3118 of the Columbus City Codes, 1959, by enacting new Section 3118.041 which provides for the appointment of substitute members to the Board of Commission Appeals in the event of a conflict of interest and by amending Sections 3118.05 and 3118.09 to clarify the standard of review utilized by the Board of Commission Appeals in considering appeals before it; and to declare an emergency.
Body
WHEREAS, the Board of Commission Appeals is currently comprised of three members; and
WHEREAS, the Board has the responsibility to hear appeals of denials of certificates of appropriateness by architectural review commissions; and
WHEREAS, the Columbus City Codes, 1959, does not provide a remedy when members must recuse themselves because of a conflict of interest and such recusal results in an appellant not having a forum in which to argue his or her appeal; and
WHEREAS, Sections 3118.05 and 3118.09 of the City Code currently state that the standard of review for appeals before it is clear and convincing evidence; and
WHEREAS, it has been determined that this standard of review is inappropriate for this appellate process because it places an unreasonably high burden of proof upon the appellant; and
WHEREAS, an emergency exists in the usual daily operation of the Department of Development in that it is immediately necessary to enact the aforementioned code changes to enable appellants to be heard in a timely fashion when such conflicts exist and to provide clarity to the Board of Commission Appeals as to the appropriate standard of review and for the immediate preservation of the public peace, property, health, and safety of the citizens of the City of Columbus; now, therefore:
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS:
Section 1. That new Section 3118.041 of the Columbus City Codes, 1959, be and is hereby enacted and shall read as follows:
3118.041 Appointment of Substitute Board Members.
In the event that a member of the Board of Commission Appeals has a conflict of interest that renders him or her unable to participate in the appeal before the Board, the Director of Development or his or her designee shall appoint a substitute to hear the appeal in the place of said board member from a list of qualified individuals created and maintained by the Director or his or her designee. Such qualified individuals must be either a past member of an architectural review commission as defined in C.C. 3116.011 or a past member of the Board of Commission Appeals. An appointment under this section is temporary in nature and is only for the purpose of hearing an appeal in which a board member has a conflict of interest.
Section 2. That Section 3118.05 of the Columbus City Codes, 1959, be and is hereby amended and shall read as follows:
3118.05 Duties.
The board of commission appeals shall hear and decide, in compliance with the provisions of this chapter, all appeals from any commission's denial of an application for a certificate of appropriateness for proposed construction, alteration or demolition of a structure, appurtenance or architectural feature of a listed property or in a district.
The board shall review such appeals by determining whether the applicant can establish by clear and convincing sufficient evidence whether a commission decision to deny an application for a certificate of appropriateness was arbitrary, capricious and unreasonable.
The board shall also have the authority to review claims of unusual and compelling circumstances and/or substantial economic hardship that have been raised by an applicant pursuant to the rehearing process outlined in Chapter 3116.
The board shall consider appeals brought by persons affected by notice of violation citing a violation of this Planning and Platting Code or the Zoning Code relating to architectural review. (Ord. 1516-89 : Ord. 628-02 § 13.)
Section 3. That Section 3118.09 of the Columbus City Codes, 1959, be and is hereby amended and shall read as follows:
3118.09 Decision on appeal.
(A) In rendering its decision of an appeal related to the action of a commission as defined in C.C. 3116.012, the board of commission appeals shall consider whether clear and convincing sufficient evidence was presented by the application as to the following issues:
(1) That the denial of a certificate of appropriateness by the commission was arbitrary, capricious and unreasonable; or
(2) That the denial of a certificate of appropriateness results in a substantial economic hardship for applicant and/or applicant's unusual and compelling circumstances warrant granting such certificate; and
(3) That such hardship or circumstances outweigh any detriment to the public welfare or derogation from the intent of the district or listed property and the purposes as stated in the pertinent chapter that would result from approval of the application.
(B) The board shall rule on the appeal within ten (10) days of its hearing and shall send its written ruling to the applicant and the historic preservation officer. If the board rules for the applicant on either (A)(1) or (A)(2) and (A)(3) above, it shall instruct the commission from which the appeal was taken to issue a certificate of appropriateness. If the board does not rule for the applicant on either (A)(1) or (A)(2) and (A)(3) above, the commission's finding shall be upheld.
(C) After conducting a hearing related to a notice of violation or violations, the board of commission appeals shall determine whether appellant has violated any provision of the code and/or the rules and regulations adopted thereto. When the board of commission appeals affirms or modifies such notice, it shall be deemed to be an order.
(D) The board shall rule on the appeal within ten (10) days of its hearing and shall send its written ruling to the petitioner and the historic preservation officer.
(E) A decision of the board of commission appeals pursuant to this section is final and appealable to the Environmental Division of the Franklin County Municipal Court. The applicant may return to the commission for consideration of an alternative plan at any time. (Ord. 1354-93; Ord. 628-02 § 15.)
Section 4. That for the reasons stated in the preamble hereto, which is hereby made a part hereof, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval by the Mayor or ten days after its passage if the Mayor neither approves nor vetoes the same.