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THE ZONING REPORT Page Eight I I I I I I I I I I I' I I I I I I courts. A few codes file appeals with the CPC, then the elected board for rezonings and to the I~ZA for varianceS. Some codes authorize the BZA to hear all appeals, then to the elect- ed board. The code sets forth the time within which the appeal must be ~iled, typically 10-20 days after the decision. The maximum time period for filing an appeal With the courts is specified or is set forth in the~state's rules of civil pro- cedure. If no appea~ is filed within the time period, all parties With interest in the case waive their right of ~ppeals and the decision is final. The code specifies~ with whom the appeal is filed and identifies i the body reviewing and deciding the appeal. !The appeal is submitted in writing and is limite~ to a description of alleg- ed errors in facts or~p~ocess in the case, ({mis- sions from the recor~d and new information not previously heard. Appeals bodies c~n hear new testimony or accept new exhibitd but only if it could not reasonably have bee~ known or made available at the hearing bef~)re the hearing examiner with prudent and r~asonable effort. The peals body must vot~ to accept hearing alleged new testimony and ~vidence. The appeals body can affirm, modify ~r reverse the decision of the hearing examiner or remand the case to the examiner either~to rehear it in its entirety or to review or re}~ear the appealed errors or new information. Many codes allo~ the elected board to ap- peal any case on it,$ own motion. If two mem- bers file for hearint within the time frame at- lowed for appeals, ~he case can be reviewed by the board aceordir~g to the rules of appeals. Codes also might a]~jlow appeals by the planning director not based ~n alleged errors but based on a difference of !interpretation by the hear- ing examiner on th~ ~oning code or comprehen- sive plan. Appeals stay all ~roceedings in a case unless the examiner certifies that a stay creates a danger to public h~alth or safety or unless a~n unlawful temporar~f event scheduled to take place prior to its a~peal would make it moot. Section 10. Enforcement and refusal to corn- ply.-- The decisions of the hearing examiner are enforceable as law. Decisions of the heav- ing examiner approving rezonings that previ- ously had been enacted as ordinances by the elected board might be certified as changes on the official zoning map by the pubhc clerk of the community. The examiner's decisions must be accepted as law if specifically provided by state statutes or by local home rule charter. Since the elected board usually can review examiner decisions on its own motion, acquies- cence by the elected board might be construed as an action to affirm the decision of the hearing examiner. Refusal to comply with a decision of the hearing examiner after appeals are exhausted is unlawful. It is subject to prosecution and penalties provided generally for violations of the zoning code. Section 11. Revised duties of the CPC.-- Many codes retain the CPC, perhaps renaming it af- ter its rezoning powers are deleted. It takes on a stronger more detailed comprehensive plan- ning role and overview. It re%ains its powers to conduct public hearings to enact or submit rec- ommendations on comprehensive plans, area plans, public renewal plans, function plans such as the transportation plan, the CIP and the official map. Some codes authorize the CPC to hear com- prehensive rezonings initiated by the locality in response to recent and timely adoption of comprehensive plans. The code must clarify jurisdiction with the examiner in hearing them. We make every effort to present accurate in- formation and sound opinion in this report. However, we do not guarantee results, accu- racy, or assume liability for errors, omissions, or for information you may act upon. This pub- lication'does not purport to be engaged in the practice of law or give legal advice, but is the opinion of the editor and publisher solely as a professional urban planner. January 7, 1994 issue