18.40.220 Appeals
Purpose: this section provides a way for applicants to request the review and correction of decisions by approving agencies that they believe are in error.
A. Applicability
This section applies to the appeal of decisions by approving agencies, where permitted by this chapter. There are two (2) types of appeals, as provided below:
|
Type of Appeal |
Description |
Appellate Agency |
|---|---|---|
|
Development design appeals |
City staff (such as the Planning Official, City Engineer) decisions applying adopted policies, design guidelines, design manuals, and site design and building design stipulations or conditions of approval of site development plans. Decisions of the Planning Commission are final unless appealed to the Governing Body. Decisions of the Governing Body are final. |
• Planning Commission • Governing Body, on appeal from the Planning Commission • City Manager, where specifically provided |
|
All other appeals |
Appeal of any decision of the Planning Official, building official, or other official that applies or interprets this title, except as provided above. These include but are not limited to items such as: • Definitions; • Height and area regulations; • Development and performance standards; • Parking and loading; • Signs; • Landscaping and screening; • Storage; • Nonconforming situation and vested rights; • Subdivision regulations. |
Board of Zoning Appeals (BZA) |
B. Initiation
1. Development Design Appeal
a. A notice of appeal from the Planning Official’s decision shall be filed with the Planning Official within thirty (30) days of the date of that decision.
b. An application for appeal of a Planning Commission decision shall be filed with the Planning Official within fifteen (15) days of the date of their decision.
2. All Other Appeals
A notice of appeal to the Board of Zoning Appeals may be filed by any person aggrieved, or by any officer of the City, or any governmental agency or body affected by any decision of an official administering this title. The notice of appeal shall be filed with the Planning Official within thirty (30) days of the date of the decision by the officer administering this title which is being appealed. A copy of the notice of appeal shall be served on the official or agency whose decision is being appealed.
⇔ Cross-Reference: Section 18.40.020 (Preapplication)
C. Completeness Review
See Section 18.40.040, Completeness Review.
D. Decision
1. Development Design Appeal
a. The Planning Official shall prepare and transmit to the Planning Commission a complete record of all proceedings related to the appeal of development design issues. The Planning Commission shall consider the appeal without a public hearing, unless the applicant requests a public hearing. The Planning Commission may:
(i) Reverse the Planning Official’s decision; or
(ii) Affirm the Planning Official’s decision; or
(iii) Render its own decision, with or without conditions; or
(iv) Remand the application to the Planning Official.
b. If the applicant, Planning Official, or an aggrieved party appeals the Planning Commission’s decision, the Planning Official shall prepare and transmit to the Governing Body a complete record of all proceedings related to the appeal of the Planning Commission’s decision. The Governing Body shall consider the appeal without a public hearing, unless the applicant requests a public hearing. The Governing Body may:
(i) Reverse the Planning Commission’s decision; or
(ii) Affirm the Planning Commission’s decision; or
(iii) Render its own decision, with or without conditions; or
(iv) Remand the application to the Planning Commission or the Planning Official.
2. All Other Appeals (Board of Zoning Appeals (BZA))
a. The officer whose decision is being appealed shall prepare and transmit to the secretary of the Board of Zoning Appeals a complete record of all proceedings related to the appeal of the provisions of this ordinance.
b. The Board of Zoning Appeals shall consider the appeal at a public hearing, following publication and notice to surrounding property owners.
c. The Board of Appeals may:
(i) Reverse the decision in whole or in part;
(ii) Affirm in whole or in part;
(iii) Modify the order, requirement, decision, or determination;
(iv) Attach appropriate conditions to its decision; and
(v) Issue or direct the issuance of a permit.
E. Approval Criteria
The appellate agency may approve the appeal if the decision subject to the appeal:
1. Is the result of an incorrect interpretation of this title; or
2. Would violate Kansas or federal statutes; or
3. Would violate the applicant’s state or federal constitutional rights.
F. Subsequent Applications
There is no limit on subsequent appeals. However, findings of fact from prior appeals for the same application that were not reversed by a higher tribunal (such as on appeal to a court with subject matter jurisdiction) are binding on successive appeals.
G. Scope of Approval
If the appeal is approved, the applicant may apply for any permits or approvals required for development or establishment of the use, as provided in this chapter.
H. Appeal to Courts
Except where this title provides for an appeal to another quasi-judicial or administrative body, any person, official or agency aggrieved by a final decision on an application provided for in this ordinance desiring to appeal said decision shall file the appeal in the district court of Johnson County with thirty (30) days of the making of the decision.
I. Recordkeeping
The Planning Official will maintain a file of the final decision on appeal. The applicant must maintain a copy of the final decision on appeal, including any attachments. (Ord. 19-56 § 7, 2019; Ord. 15-16 §3, 2015)