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HomeMy WebLinkAbout6.5 Mediation Muni Code c~rY Cl[ElR(~ fD~e #- D~[lJ[Q]c[Z]~ ) AGIE~DA SlArEMIE~T crrv COlll~C~l MlElEl~~G DA lIE JBlU1llUlBlUY 15, 2008 SlrnJECl' PublIc Heanng Ordmance Amendmg Chapter 1 04 and Chapter 8 136 ofthe Dubhn MunICIpal Code, Regardmg MedIatIOn Report Prepared by Richard Ambrose CIty Manager Ellzabeth H Stlver, CIty Attorney Jennifer E Faught, AssoclGte Attorney A 'f'f ACHMlENl'S Draft Ordmance Addmg SectIon 1 04 045 to the Dublin Municipal Code, and Amendmg SectIOn 1 04050 and SectIOn 8 136050 Relatmg to MedIatIOn RJECOMMJENDA 'fnON /7 A JlV; /( Vv~ ~ Receive Staff presentatIon, DelIberate, WaIve readmg and INTRODUCE Ordmance Addmg SectIOn 1 04 045 to the Dublm Mumclpal Code, and Amendmg SectIOn 1 04050 and SectIOn 8 136050 Relatmg to MedIatIon lFlNANCIlAlL S'fATEMENT None DESCRlIlP'TU)N At the October 17, 2006 City CounCIl meetmg, the CounCIl raIsed concerns that certam appeals were exceSSIvely tIme-consummg, and directed Staff to look mto optIons for requmng partIes to medIate before brmgmg theIr appeals to the CouncIl or to other Cltv offiCIals At the November 6, 2007 City CounCIl meetmg, the CounCIl had the opportumty to reVIew and conSIder several such optIOns The CounCIl expressed mterest III one of the optlOns and dIrected staff to draft an ordmance Scope of the Proposed Ordmance The proposed Ordmance reqUIres would-be appellants to propose medmtlOn to the successful apphcant or permittee before they may appeal to the City It applIes where the Dubhn Municipal Code allows appeals by a person other than the applIcant or permittee, such a person IS defined III the text of the Ordmance as a 'complaInIng party" The proposed Ordmance would not apply to appeals by an applIcant, a permIttee, or CIty offiCIals COPY 1'0: Page 1 of 4 lil'EM NO b 5 17 Procedure Under the proposed Ordmance, acceptance of the proposed medlatlOn IS voluntary The complainIng party must send a wntten proposal to mediate to the applIcant or permittee - by emml, fax, m person delIvery, or overmght mall - wlthm five days of the decIsIOn The complammg party can call CIty Staff for the contact mformatlOn of the applIcant or permIttee The applIcant or permIttee then has two days from the date of receIpt, or four days from the date of delIvery, to either accept or refuse medlatlOn m wntmg The applIcant or permIttee must also notify the CIty Clerk of the acceptance or refusal of the proposal to medIate wltlun ten days of the decISIon Thus, the proposed Ordmance allows a maximum of nIne days for the mterested parties to determme whether medIatIOn Will occur so that they can mform the City of theIr plans wlthm ten days ThIs mformatlOn allows the City to plan accordmgly (e g , not Issue permIts on subjects that are bemg mediated) More generally, the proposed Ordmance IS crafted to balance the Council's mterest m encouragmg mediatIOn, and the mterest m resolvmg all appeals promptly The tImeframes were chosen so that partIes would have enough tIme to commUnIcate theIr Illterest m mediation, and also so that the eXlstmg tlmeframes for the appellate process could largely be respected As mentIOned above, wntten commumcatlOn may be accomplIshed by emaIl, faCSimIle, m person delIvery, or overnight mail, except that notice to the City Clerk must be by emaIl, faCSimIle, or m person delIvery The failure to respond to a proposal to mediate Wlthm the tlmelIne IS deemed a refusal It should be noted that a complammg party loses the nght to appeal If he or she does not propose mediatIOn Wlthm the five-day time lImit Thus, the mediatIOn ordmance effectively shortens the amount of tIme a complammg party has to appeal, from ten days for deCISIOns made under the zomng ordmance (SectlOn 8 136 050), or fourteen days for all other Issues (SectIOn 1 04 050), to five days m both cases If the parties agree to medIate, they must choose a neutral third party to mediate their dispute The proposed Ordmance makes the complmmng party responsible for all costs of the medlatlOn, unless the parties agree to some other payment arrangement The proposed Ordmance states that the mediatIOn process begms when the deCISIOn IS made - that IS, when there has been a deCISIOn that IS subject to appeal under the Mumclpal Code by a person other than the applicant or permittee and that person Wishes to appeal the deCISIOn The entue mediatIOn process must be completed wlthm 30 days of the deCISIOn ThIs 30-day penod mcludes the mne days allowed to propose and accept or refuse mediatIOn If the parties use the full mne days, they would have 21 days left to schedule and complete the mediatIOn process If the parties choose to medIate, at the end of the 30-day penod, If mediatIOn has been completed and the complaInIng party IS not satisfied WIth the outcome, he or she may then appeal to the Planmng Commission or the City CouncIl Tms appeal must be filed wlthm three days of the date that the mediatIOn ended The regular appellate process then contmues Thus, If mediatIOn IS conducted, the mediation ordmance Will necessarIly lengthen the amount of tune It takes to obtaln a final deCISIOn from the Planmng CommiSSIOn or the City CounCil by 23 days (for deCISIons made under the zomng ordInance) or by 19 days (for all other deCISIons) If the parties choose not to medIate, the complammg party may file an appeal m conformance With the normal tIme limits for appeals found m the respective sectlOns That IS, the complammg party must file an appeal wlthm ten days of a deCISIon under the zomng ordmance, or wltmn fourteen days of a deCISIon subject to appeal under other MuniCipal Code sectIOns Page 2 of 4 Proposed Amendments to SectIon I 04 050 and SectIOn 8 136 050 The proposed Ordmance would amend SectIOns 1 04 050 and 8 136 050 to refer to the new SectIOn 1 04045 These amendments proVide that If SectlOn 1 04045 applIes and mediatIOn has been accepted, an appeal must be filed wlthm three days of the date the mediatIOn ends These amendments also provide that If SectIOn 1 04 045 applIes, the appellant must mclude along wIth the wntten notice of appeal venficatIon that mediatIOn was either conducted or attempted A copy of the proposal to mediate, along With a copy of either a letter from the mediator mdlcatmg that mediatIOn was conducted with the date the mediatIOn was conducted, or a copy of the refusal, IS sufficient In the case that wntten refusal was not obtamed wltlun the time lImits for whatever reason, the proposed Ordmance states that the wntten notIce of appeal must be submitted along with a copy of the proposal to mediate and a declaratlOn attestmg that the appellantfcomplammg party received no written response One Year Tnal Penod Staff proposes that CounCil adopt the Ordmance to remam m effect for one year after ItS effectIve date It IS not clear how often It Will be used and how It Will work m practice At the end of the year, the City CounCil could reevaluate the Ordmance to determme whether It should be reenacted, modified, or allowed to expue Example Tlmelme Where Parties Choose to Mediate - ZOnIng Code DeCISions DeCISion Propose Acceptance Notify Complete File Appeal Fmal MediatIOn City MediatIOn DeCISion Clerk August 1, by August 6 by August 10 by by August 31 by Sept 3 byNov 17 2007 (5 days from (max 4 days August (30 days (3 days from (75 days deCISion) from delIvery 11 from end of from filIng of proposal) (10 days deCISion) medlatlOn) appeal, see from 8 136060) deCISIOn) Example Tlmelme Where Party Refuses to Mediate - Zomng Code DeCISIons DeCISIon Propose Refusal Notify CIty File Appeal Fmal DeCISIon MediatIOn Clerk August 1, 2007 by August 6 by August 10 by August 11 by August 11 by October 25 (5 days from (max 4 days (10 days (10 days from (75 days from deCISIOn) from delIvery from deCISIOn) filmg appeal, of proposal) deCISIOn) see 8 136060) Page 3 of 4 Examr>le Ttmelme Where Parties Choose to Mediate - Other Appeals DeCISIOn Propose Acceptance Notify City Complete File Appeal MediatIOn Clerk MeditatIOn August 1, 2007 by August 6 by August 10 by August 11 by August 31 by Sept 3 (5 days from (max 4 days (10 days from (30 days from (3 days from deCISIon) from delIvery of deCISIon) declslOn) end of proposal) mediatIOn) Example TlmelIne Where Party Refuses to MedIate - Other Appeals DeCISion Propose Refusal Notify City FIle Appeal MedIation Clerk August 1, 2007 by August 6 by August 10 by August 11 by August 15 (5 days from (max 4 days (10 days (14 days from declslOn) from delIvery from deCISIOn) of proposal) deCISIOn) RlECOMMlENDA 'In ON Staff recommends that the City CounCil 1) receive Staff presentatIOn, 2) delIberate, 3) WaIve readmg and INTRODUCE the OrdInance Addmg SectIOn 1 04 045 to the DublIn MuniCipal Code, and Amendmg SectIOn 1 04 050 and SeCtion 8 136 050 Relatmg to MediatIOn (Attachment 1) Page 4 of 4 ORDINANCE NO XX - 08 '1.1 AN ORDINANCE OF THE CITY COUNCnL OIF THE Cnl'Y OF DUBLIN ******""** ADDING SEC'fnON 1 04 0415 TO THE ][)lUBLIN MUNICIlP AlL CO][)lE, AN][)l AMENDnNG SECTION]I. 041 050 AND SECl'ION 8136 050 RElLA'flING 1'0 MEDIA 1'KON RECITALS WHEREAS, from time to tIme, the DublIn CIty CounCIl, the City Manager, and the Plannmg CommissIOn hear appeals from partIes affected by decIsions of CIty OffiCialS, and W1HJ:EREAS, the CIty CounCil supports alternative dIspute resolution methods, and finds that mediatIOn can sometimes resolve disputes III a more effiCient and effective manner than formal admImstratlve actIOn or lItIgatiOn, and W1HJ:EREAS, the City Wishes to mclude a process by whIch affected partIes may settle theIr disputes before appealIng to the City NOW, 'I H KRElF ORE, the CIty CounCil of the CIty of Dublm does hereby ordam as follows Section 1 SectIOn 1 04045 of the DublIn MuniCipal Code IS hereby added to read as follows Section 1 041 045 Mediation A The CIty CouncIl declares that mediatIOn can be an effectIve techmque to aVOid appeals by developmg consensus The City CouncIl also finds that medIatIOn can sometimes resolve dIsputes m a more effiCIent and effectIve manner than an appeal B Before a' complammg party," that IS, a person, other than an applIcant or a permIttee, may appeal a deCISIon of a CIty offiCial, Planmng CommiSSIOn, or City CounCil, he or she must delIver wlthm five (5) days of the deCISion a wntten proposal to medIate to the applIcant or permIttee as a means to settle the dispute DelIvery means sendmg an emaIl, faCSImIle, In person delIvery, or depOSIt m overnIght maIl The applIcant or permIttee shall eIther accept or refuse the proposal to mediate m wntmg wltlun two (2) days of the date the proposal to mediate was received, or four (4) days after It was delIvered, whIchever IS sooner By the tenth day after the appealable deCISIon, the applIcant or permIttee must notIfy the City Clerk by emaIl, fax, or III person, of the deCISIon whether the proposal to medIate was accepted or refused The faIlure of the applIcant or permIttee to respond Wlthm these tlmelmes shall be deemed a refusal to mediate C If mediatIOn IS elected, the parties shall agree upon a neutral thIrd party mediator The complammg party shall be responsible for all costs, If any, of the mediatIon, unless the partIes agree to another payment arrangement D The mediatIOn process begms when the deCISIon IS made If the proposal to medIate IS accepted, the entue medIatIOn process shall be completed wlthm thIrty (30) days of the declSlon r1-~it=G,~ IIIS'/~ tQ\ 1"1r A <C I}{l [iVi] ~ lNl ir JI. Page 1 of 3 Ord No XX-08 Adopted _ 2008 Item No JO;y3 E This SectIOn shall not apply to appeals by City officials, pursuant to SectIOn 8 136 040, or to appeals by applIcants or permittees SectIOn 2 SectIOn 1 04050 of the DublIn Mumclpal Code IS hereby revised as follows, With addItions mdlcated m underlIne 1 041 050 Appeal to City Manager or City CouncIl A Any person exceptmg to the demal, suspenSlOn or revocation of a permit or lIcense applIed for or held by hIm pursuant to any of the provISIons of tlus code, or to any admtnIstratIve decIsIOn made by any official of the City pursuant to any of the prOVISIOns of thIS code may appeal to the City Manager or City CouncIl, as the case may be, when the nght to appeal IS specIfically so proVided m trus code by reference to tlus section, by filIng a WrItten notice of appeal With the City Clerk, settmg forth the speCific grounds thereof IfSectlOn 1 04045 applIes, the WrItten notIce shall be accompanIed by a copy of the proposal to medIate, and a letter from the mediator mdlcatmg that medIation was conducted and the date the medIatIOn was conducted, or, If there was no medlatlOn, a copy of the refusal In the event that no wntten response to the proposal to mediate was made, the wntten notice of appeal shall be accompanied by a copy of the proposal to mediate, and a declaratIOn Signed under penalty of perJury attestmg that the complammg party received no response to the proposal to mediate B NotIce of such appeal shall be filed With the City Clerk wltrun fourteen (14) calendar days after the date WrItten notice of such actIon appealed from was mailed or personally delIvered to the appellant, but m no event later than twenty (20) calendar days after the date of such actIon, proVided, however, that If Section 1 04045 applIes and medIatIOn has been accepted, any appeal must be filed Wlthm three (3) days of the date that the mediatIOn ended C The City Clerk shall forthwith set a date for heanng before either the City Councilor City Manager, as the case may be, and shall gIve the appellant at least five (5) calendar days' notIce of the time and place of said heanng D At such heanng the appellant shall show cause on the grounds speCified m the notIce of appeal why the actIOn excepted to should not be approved The City Manager or City CounCil, as the case may be, may contmue the heanng from time to time The findmgs on the appeal shall be final and conclUSive m the matter SectIOn 3 SectIOn 8 136050 of the DublIn Mumclpal Code IS hereby reVised as follows, With additIOns mdlcated m underlIne 8 136 050 FIlmg Appeals A AppeallPerlOds An appeal must be filed wlthm ten (10) days of the actIOn which IS the subJect of the appeal Appeals filed beyond ten (10) days shall not be accepted, except that If SectlOn 1 04 045 applIes and mediatIOn has been accepted, any appeal must be filed wltrun three (3) days of the date that the medIatIOn ended B Form of appeal An appeal shall be m wntmg, shall reference any Plannmg ApplIcatIOn number, shall fully state the extent ofthe appeal and the reasons and grounds for appeal, shall mclude any mformatlOn reqUITed by the Director of Community Development, and may mclude any explanatory Ord No XX 08, Adopted _, 2008 Item No Page 2 of3 3~3 matenals the appellant wishes to furmsh The appeal shall be accompanted by the filIng fee establIshed by the City CouncIl If SectIOn 1 04 045 apphes, the wntten appeal shall also be accompanted by a copy of the mediatIOn proposal, and a letter from the mediator mdlcatmg that medIation was conducted and the date the mediatIOn was conducted, or, If there was no medIatIon, a copy of the refusal In the event that no WrItten response to the proposal to mediate was made, the WrItten notice of appeal shall be accompanied by a copy ofthe proposal to mediate, and a declaratIOn signed under penalty of perJury attestmg that the complmmng party receIved no response to the proposal to medIate C lFIIed with City Clerk An appeal shall be filed With the City Clerk D Effect of filmg In the event of an appeal, the deCISion bemg appealed shall not be effective untIl final actIOn by the appeal body Section 4 Severablhty The proVISIOns of thiS OrdInance are severable and If any prOVISIOn, clause, sentence, word or part thereof IS held Illegal, mvalId, unconstItutIOnal, or mapphcable to any person or Circumstances, such Illegahty, mvahdlty, unconstltutlOnahty, or mapphcablhty shall not affect or Impair any of the remalmng prOVISIOns, clauses, sentences, sectIons, words or parts thereof of the ordmance or theu apphcablhty to other persons or circumstances Section 5 EffectIve Date ThiS Ordmance shall take effect and be enforced trnrty (30) days follOWing ItS adoptIOn and shall remam In effect for one (1) year from ItS effective date SectIOn 6 Postmg The City Clerk of the City of DublIn shall cause thiS Ordmance to be posted m at least three (3) publIc places In the City of Dublm m accordance With SectIOn 36933 of the Government Code of the State of CalIforma PASSED, APPROVlED AND ADOPTED thIS 15th day of January, 2008 AYES NOES ABSENT ABSTAIN Mayor ATTEST Deputy City Clerk Ord No XX 08, Adopted _, 2008 Item No Page 3 of3