Visalia City Council to Allow Members to Appeal Planning Commission Decisions

On January 5, the Visalia City Council voted to allow council members to appeal planning commission decisions that involve project maps. The vote reverses a 2010 ordinance prohibiting council members from appealing those decisions. Council members Amy Shuklian, Warren Gubbler, and Greg Collins voted to remove the restrictions, while Mayor Steve Nelsen and member Bob Link voted to keep the restrictions in place. The new ordinance still needs to come back to the city council two times before it is officially on the books.

Alex Peltzer, city attorney, presented three options to the council: One; it could vote to retain the 2010 ordinance, which states that if a council member seeks to appeal a planning commission decision they would have to pay a $467 fee and then recuse themselves from voting the appeal. Two; the council could adopt the 2007 ordinance that allows city council members to appeal planning commission decisions concerning project maps, and conditional use permits, if they were approved in conjunction with a map. The third choice was to allow the city council to appeal any decision by the planning commission.

Peltzer pointed out that any changes to the general plan or zoning voted on by the planning commission must be approved by the city council. Most other votes taken by the planning commission are final unless a citizen files an appeal.

During the three and a half years from 2007-2010, when the council could appeal a decision based on project maps, Collins did so twice. One appeal was a multi-family residential development, while the second concerned a neighborhood retail development on Demaree and Goshen. Both appeals failed.

In 2010, a vote was taken to restrict the ability of the city council to appeal planning commission decisions on project maps. The city council voted that if a council member wanted to appeal a planning commission decision they had to pay a fee and recuse themselves from voting on the appeal. This was consistent with what the public is required to do if wishing to appeal a planning commission decision.

Mayor Nelsen said he felt that city council members should not be given preferential treatment over the public when appealing a decision. He also felt that the council should not be second-guessing the planning commission.

Collins inquired what would happen if the planning commission made a decision that is inconsistent with a community in question or makes a decision that gets the city into “hot water.”

“Do we just hope we don’t get sued?” said Collins.

Peltzer responded that attorneys advise the planning commission and legal assistance is available at all planning commission meetings, so that Visalia cannot get sued.

Shuklian said her concern was that when her constituents call she wants to be accountable for any decision made by the city. She felt like she was elected to make these decisions and supported option three.

Collins agreed with Shuklian, that “the buck stops here with the council.” How a development is managed and how it holds up over time is up to the city council. Collins expressed his support for option number two.

Councilmember Link disagreed with Collins and Shuklian. He said, the city staff reports any inconsistencies between the development and general plan to the planning commission before a vote is taken.

“The planning commission members are very knowledgeable about the different communities,” Link said.

He also said, developers will see this as one more step in the process of getting their development approved and it may discourage them from building in Visalia. Link pointed out that Visalia may have a new council in four years and one of them may pull all decisions. He supported the status quo.

Gubler originally voted for the 2010 restrictions, but “was weighing both sides.” He said, he felt option number three would open the floodgates and was too broad. He said, he did see the need for council members being able to appeal planning commission decisions, citing the recently approved development at Plaza Drive. Though zoned as Business Research Park, Gubler said he was having a hard time wrapping his head around the fact that a small residential development would be built.

“I still think that’s not what the city wanted to do out there,” he said.

For this reason, and the fact there were only two appeals during a three-year time period, he was leaning towards repealing the 2010 ordinance. Gubler also added that the development community had not called, so maybe it did not view this as a problem.

“They have been completely silent on the issue,” he said.

Nelsen supported upholding the 2010 ordinance. He said he believed that in second-guessing the planning commission the city council can make mistakes. Both he and Link indicated that, with a new council in four years, any single member might file several appeals on a whim or do so because of some personal vendetta.

Nelsen stated that repealing the restrictions will create uncertainty in the development community.

The developer will have to hold their breath every time they get a decision from the planning commission, waiting to see if a council member will appeal. The developers do not want to deal with this extra step, not least because it costs them money.

“The City of Porterville does not have a planning commission and I will leave it at that,” said Nelsen.

“We have a system that has been proven over time. The citizens are happy and the developers are happy. A council member trigger slows the process down and effectively delays the decision-making process.”

Even though Nelsen commended Collins on how he conducted his appeals, Collins objected to Nelsen’s use of the word whim.

“Taking out an appeal is policy-based; it doesn’t happen on a whim. There are checks and balances in our system and we are the executive arm,” Collins said.

Collins added, it is the council that ensures that the planning commission is on the right track in terms of policy decisions, “which is not whimsical.”

Nelsen responded, the planning commission takes policy to heart when it make its decisions, and if the city council insists on continually second-guessing it, “then why have a planning commission?”

Nelsen and Link’s argument about the uncertainty of future councils was unsuccessful in getting Shuklian and Collins to think outside the now. Whereas Collins has a long career in city planning and brings legitimate concerns to his appeals, it is extremely naïve for the two of them to believe this will always be the case, they said.

After the debate, Link motioned to maintain the restrictions which failed, 3-2. Shuklian then motioned to adopt the second choice that allows council members to appeal when the decision involves a project map. That motion passed 3-2. The ordinance needs two additional reading before it can be made official. During those readings, the ordinance can be adjusted or rejected altogether. Dates have not been set for those readings.

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