Bethel City Zoning Code
18.70 Appeals
of Planning Department Decisions
18.70.010 Definitions.
In this chapter, the following words and phrases shall have the meanings set forth in this section:
“Administrative hearing officer” means a person that is appointed as an administrative hearing officer to hear appeals related to a planning commission decision.
“Appellant” means a person who files an appeal application pursuant to BMC 18.70.040.
“Applicant” means the applicant for the permit, variance, conditional use, or other quasi-judicial zoning and land use determination that is the subject of an appeal under this chapter.
“Interested party” means any of the following with respect to a planning commission decision under the BMC:
1. The applicant;
2. Each record owner of the property that is the subject of the decision;
3. Each record owner of property adjacent to the property that is the subject of the decision;
4. Any governmental agency; and
5. The city. [Ord. 22-17 § 4, 2022.]
18.70.020 Appeal of a planning department decision.
A. A decision of the planning department is final unless appealed in accordance with this chapter.
B. Any party with ownership or possessory interest in property affected by a decision of the planning department may file with the planning commission an appeal of that decision. Grounds for granting such appeal shall be limited to the improper application of law by a city administrative official. All such appeals shall be filed in writing with the planning department within ten (10) business days of the date of said decision and shall contain all of the following information:
1. The name, email address, phone number, and mailing address of the applicant and/or the applicant’s attorney or representative;
2. Statement specifying the grounds for the appeal and the action and findings of the department that are being disputed;
3. The applicant’s interest in the matter being appealed and a statement of the action or relief sought;
4. An appeal fee as established in the current fee and rate schedule;
5. The specific reasons why the applicant believes the decision to be wrong. The applicant shall bear the burden of proving the decision is wrong; and
C. Upon receipt of a complete appeal, the planning director shall schedule the appeal for consideration by the planning commission at a date no more than fifty (50) calendar days after the appeal was received. [Ord. 22-17 § 4, 2022.]
18.70.030 Stay.
An appeal to the planning commission stays the effectiveness of the decision or order of the city planner until the planning commission finally decides the appeal; provided, that the planning commission may vacate the stay if doing so is necessary to avoid immediate danger to public health and safety. [Ord. 22-17 § 4, 2022.]
18.70.040 Notices.
A. Within five (5) business days from the filing of a written notice of appeal, meeting the standards in BMC 18.70.020, the planning department shall deliver notice of the acceptance of written notice of appeal to all adjoining property owners of the property associated with the appeal and the planning commission members. The notice shall include:
1. The appellant’s notice of appeal;
2. The decision of the planning department being appealed;
3. Notice of opportunity to submit written comments within fifteen (15) days prior to the hearing date, or give oral testimony at a hearing before the commission;
4. Notice of the hearing material filing deadline, which shall be at least fifteen (15) days prior to the hearing date. Material filing may include written arguments and exhibits; submissions shall become part of the record;
5. Notice of witness list and requests for subpoenas submission deadline for the parties, which shall be at least fifteen (15) days prior to the hearing date. The notice shall inform the parties of their obligation to summon their witnesses;
6. Notice that any hearing material not filed by the material filing deadline shall not be accepted by the planning department. Evidence may be submitted at the time of the hearing if the commission chair determines that the evidence was not discovered or could not have been obtained prior to the material filing deadline, or if the evidence is relevant and it is in the interests of justice that it be considered.
B. Within five (5) business days after receipt of the witness list or request for subpoenas, the planning department shall provide the list to the parties. Upon request by a party, the chair, on the commission’s behalf, may issue subpoenas as follows:
1. The parties may summon witnesses and request the production of records, by the issuance of subpoenas;
2. Subpoenas shall be served as prescribed by Rule 45 of the Alaska Rules of Civil Procedure. Failure of any person to comply with a subpoena or order issued by the commission chair is a violation of city code. Remedies, enforcement action and penalties for such violations shall be consistent with the terms of Chapter 1.06 BMC. Such remedies are not exclusive, and the city may pursue any and all legal and equitable remedies available under law necessary to enforce such subpoenas and orders, including application to Superior Court.
C. At least ten (10) business days before the hearing, the planning department shall post the notice of hearing to the public, deliver notice of the hearing to interested parties, and the commission members. The notice shall include:
1. The name of the owner of the parcel that is the subject of the appeal and the name of the person who made the application if not the owner;
2. A description of the action or relief sought in the appeal;
3. The address (if applicable) and the legal description of the subject parcel;
4. The date, time and place of the hearing; and
5. The date on which the record on appeal will be available and the web address where the record can be found.
D. At least ten (10) business days before the hearing, the planning department shall post the hearing record on the city of Bethel website. [Ord. 22-17 § 4, 2022.]
18.70.050 Ex parte contact.
A planning commissioner shall be impartial in all decisions, both in fact and in appearance. No planning commissioner may engage in ex parte contact with any interested party concerning the appeal either before or after the appeal hearing. [Ord. 22-17 § 4, 2022.]
18.70.060 Preparation of record.
The planning department shall complete the record on appeal at least ten (10) businesses days before the hearing. The record shall include:
A. The applicant’s notice of appeal;
B. The decision of the planning department being appealed;
C. Material filings and witness lists submitted by interested parties and/or the planning department;
D. Written comments submitted in accordance with BMC 18.70.040(A)(4);
E. Listing of relevant Bethel Municipal Code provisions. [Ord. 22-17 § 4, 2022.]
18.70.070 Appeal hearing.
The planning commission shall hold an appeal hearing to receive evidence pertinent to the granting or denial of said application. The hearing shall be limited to those issues raised on appeal, and the evidence shall be limited to a review of the record which may include oral arguments and testimony received at the hearing.
A. The commission chair shall preside over the hearing and shall make all rulings on issues of procedure, continuances, form and conduct of the hearing and admissibility of evidence.
B. At the hearing, testimony shall be under oath and subject to the following order and time limitations, unless the planning commission, for good cause shown, permits a change in the order or an extension of time:
1. City planner or representative, ten (10) minutes to present the city position and to set forth the evidence and reasons relied upon for the decision.
2. Appellant or representative, ten (10) minutes.
3. Each interested party supporting or opposing the appeal, five (5) minutes.
4. Appellant, for rebuttal, five (5) minutes.
5. Commission members may ask questions from those that presented oral arguments.
C. Technical rules of evidence do not apply, but the commission’s findings shall be based upon a preponderance of the evidence. All testimony and other evidence taken at the hearing shall be recorded.
D. The appellant bears the burden of proof by a preponderance of the evidence.
E. The planning commission may move into a closed deliberative session following the submission of evidence.
F. If, at the hearing, the planning commission determines that it needs additional information, it may recess for a period of not more than thirty-two (32) days to obtain and evaluate that information. [Ord. 22-17 § 4, 2022.]
18.70.080 Decision.
A. Within forty-five (45) days of the hearing, the planning commission may affirm, reverse, or modify the decision or order of the city planner in whole or in part. The planning commission shall base the decision upon the record and argument presented at the hearing.
B. The planning commission’s decision shall be by resolution and shall state that it is a final decision, include the planning commission’s findings of fact and conclusions of law, and notify the parties of their right to appeal under Chapter 18.75 BMC.
C. Within ten (10) business days after the planning commission’s final written decision, the city planner shall provide a copy of that decision to the appellant and each interested party that submitted written testimony at the hearing. [Ord. 22-17 § 4, 2022.]
18.70.010 Definitions.
In this chapter, the following words and phrases shall have the meanings set forth in this section:
“Administrative hearing officer” means a person that is appointed as an administrative hearing officer to hear appeals related to a planning commission decision.
“Appellant” means a person who files an appeal application pursuant to BMC 18.70.040.
“Applicant” means the applicant for the permit, variance, conditional use, or other quasi-judicial zoning and land use determination that is the subject of an appeal under this chapter.
“Interested party” means any of the following with respect to a planning commission decision under the BMC:
1. The applicant;
2. Each record owner of the property that is the subject of the decision;
3. Each record owner of property adjacent to the property that is the subject of the decision;
4. Any governmental agency; and
5. The city. [Ord. 22-17 § 4, 2022.]
18.70.020 Appeal of a planning department decision.
A. A decision of the planning department is final unless appealed in accordance with this chapter.
B. Any party with ownership or possessory interest in property affected by a decision of the planning department may file with the planning commission an appeal of that decision. Grounds for granting such appeal shall be limited to the improper application of law by a city administrative official. All such appeals shall be filed in writing with the planning department within ten (10) business days of the date of said decision and shall contain all of the following information:
1. The name, email address, phone number, and mailing address of the applicant and/or the applicant’s attorney or representative;
2. Statement specifying the grounds for the appeal and the action and findings of the department that are being disputed;
3. The applicant’s interest in the matter being appealed and a statement of the action or relief sought;
4. An appeal fee as established in the current fee and rate schedule;
5. The specific reasons why the applicant believes the decision to be wrong. The applicant shall bear the burden of proving the decision is wrong; and
C. Upon receipt of a complete appeal, the planning director shall schedule the appeal for consideration by the planning commission at a date no more than fifty (50) calendar days after the appeal was received. [Ord. 22-17 § 4, 2022.]
18.70.030 Stay.
An appeal to the planning commission stays the effectiveness of the decision or order of the city planner until the planning commission finally decides the appeal; provided, that the planning commission may vacate the stay if doing so is necessary to avoid immediate danger to public health and safety. [Ord. 22-17 § 4, 2022.]
18.70.040 Notices.
A. Within five (5) business days from the filing of a written notice of appeal, meeting the standards in BMC 18.70.020, the planning department shall deliver notice of the acceptance of written notice of appeal to all adjoining property owners of the property associated with the appeal and the planning commission members. The notice shall include:
1. The appellant’s notice of appeal;
2. The decision of the planning department being appealed;
3. Notice of opportunity to submit written comments within fifteen (15) days prior to the hearing date, or give oral testimony at a hearing before the commission;
4. Notice of the hearing material filing deadline, which shall be at least fifteen (15) days prior to the hearing date. Material filing may include written arguments and exhibits; submissions shall become part of the record;
5. Notice of witness list and requests for subpoenas submission deadline for the parties, which shall be at least fifteen (15) days prior to the hearing date. The notice shall inform the parties of their obligation to summon their witnesses;
6. Notice that any hearing material not filed by the material filing deadline shall not be accepted by the planning department. Evidence may be submitted at the time of the hearing if the commission chair determines that the evidence was not discovered or could not have been obtained prior to the material filing deadline, or if the evidence is relevant and it is in the interests of justice that it be considered.
B. Within five (5) business days after receipt of the witness list or request for subpoenas, the planning department shall provide the list to the parties. Upon request by a party, the chair, on the commission’s behalf, may issue subpoenas as follows:
1. The parties may summon witnesses and request the production of records, by the issuance of subpoenas;
2. Subpoenas shall be served as prescribed by Rule 45 of the Alaska Rules of Civil Procedure. Failure of any person to comply with a subpoena or order issued by the commission chair is a violation of city code. Remedies, enforcement action and penalties for such violations shall be consistent with the terms of Chapter 1.06 BMC. Such remedies are not exclusive, and the city may pursue any and all legal and equitable remedies available under law necessary to enforce such subpoenas and orders, including application to Superior Court.
C. At least ten (10) business days before the hearing, the planning department shall post the notice of hearing to the public, deliver notice of the hearing to interested parties, and the commission members. The notice shall include:
1. The name of the owner of the parcel that is the subject of the appeal and the name of the person who made the application if not the owner;
2. A description of the action or relief sought in the appeal;
3. The address (if applicable) and the legal description of the subject parcel;
4. The date, time and place of the hearing; and
5. The date on which the record on appeal will be available and the web address where the record can be found.
D. At least ten (10) business days before the hearing, the planning department shall post the hearing record on the city of Bethel website. [Ord. 22-17 § 4, 2022.]
18.70.050 Ex parte contact.
A planning commissioner shall be impartial in all decisions, both in fact and in appearance. No planning commissioner may engage in ex parte contact with any interested party concerning the appeal either before or after the appeal hearing. [Ord. 22-17 § 4, 2022.]
18.70.060 Preparation of record.
The planning department shall complete the record on appeal at least ten (10) businesses days before the hearing. The record shall include:
A. The applicant’s notice of appeal;
B. The decision of the planning department being appealed;
C. Material filings and witness lists submitted by interested parties and/or the planning department;
D. Written comments submitted in accordance with BMC 18.70.040(A)(4);
E. Listing of relevant Bethel Municipal Code provisions. [Ord. 22-17 § 4, 2022.]
18.70.070 Appeal hearing.
The planning commission shall hold an appeal hearing to receive evidence pertinent to the granting or denial of said application. The hearing shall be limited to those issues raised on appeal, and the evidence shall be limited to a review of the record which may include oral arguments and testimony received at the hearing.
A. The commission chair shall preside over the hearing and shall make all rulings on issues of procedure, continuances, form and conduct of the hearing and admissibility of evidence.
B. At the hearing, testimony shall be under oath and subject to the following order and time limitations, unless the planning commission, for good cause shown, permits a change in the order or an extension of time:
1. City planner or representative, ten (10) minutes to present the city position and to set forth the evidence and reasons relied upon for the decision.
2. Appellant or representative, ten (10) minutes.
3. Each interested party supporting or opposing the appeal, five (5) minutes.
4. Appellant, for rebuttal, five (5) minutes.
5. Commission members may ask questions from those that presented oral arguments.
C. Technical rules of evidence do not apply, but the commission’s findings shall be based upon a preponderance of the evidence. All testimony and other evidence taken at the hearing shall be recorded.
D. The appellant bears the burden of proof by a preponderance of the evidence.
E. The planning commission may move into a closed deliberative session following the submission of evidence.
F. If, at the hearing, the planning commission determines that it needs additional information, it may recess for a period of not more than thirty-two (32) days to obtain and evaluate that information. [Ord. 22-17 § 4, 2022.]
18.70.080 Decision.
A. Within forty-five (45) days of the hearing, the planning commission may affirm, reverse, or modify the decision or order of the city planner in whole or in part. The planning commission shall base the decision upon the record and argument presented at the hearing.
B. The planning commission’s decision shall be by resolution and shall state that it is a final decision, include the planning commission’s findings of fact and conclusions of law, and notify the parties of their right to appeal under Chapter 18.75 BMC.
C. Within ten (10) business days after the planning commission’s final written decision, the city planner shall provide a copy of that decision to the appellant and each interested party that submitted written testimony at the hearing. [Ord. 22-17 § 4, 2022.]