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City Council Meeting — August 7, 2007 <br />Zone Text Amendment, DAP -000-653 <br />Page 9 of 11 <br />3. Upon receipt of a written appeal, the clerk of the city council shall advise the secretary <br />of the planning commission who shall transmit to the clerk the planning commission's <br />complete record of the case. <br />4. Within forty days following receipt of the filing of a written appeal, the city council shall <br />conduct a duly advertised public hearing on the matter, or shall appoint a neutral hearing <br />officer, as further specified in section 18.58. 101 below, to conduct a duly advertised public <br />hearing on the matter, public notice of which shall be given. <br />5. The city council shall announce its findings and decision by formal resolution not more <br />than forty days following the hearing, and the resolution shall recite, among other things, <br />the facts and reasons which, in the opinion of the city council, make the approval or denial <br />of the application necessary to carry out the general purpose of this title. <br />6. The action by the city council shall be by a majority vote of the entire membership of the <br />council and shall be final and conclusive. <br />7. Any two members of the city council may, within seven calendar days after mailing of <br />the notice, appeal such decision. Such notice must be mailed within two calendar days <br />after such determination by the planning commission to the members of the city council. <br />8. In the event of an appeal as provided above, the action of the commission in the matter <br />shall forthwith be void and of no force or effect. Thereafter, the powers and duties of the <br />commission shall be exercised by the council. <br />EXPLANATION OF PROPOSED TEXT CHANGE <br />Section 18.58. 101 Appointment of Neutral Hearing Officer <br />The proposed change is to add a new section that sets forth the procedure for selection of <br />and payment for a neutral hearing officer. The purpose of adding this new section, and <br />the provisions allowing referral of land use entitlement decisions by the Planning <br />Commission and the City Council to a neutral hearing officer, is to address the trend in <br />California judicial decisions to expand due process rights in certain administrative <br />hearings. In Nightlife Partners, Ltd. v. City of Beverly Hills, the appellate court held that <br />plaintiffs' due process rights were violated where the same assistant city attorney <br />represented the City in discussions with the plaintiffs and advised the hearing officer in the <br />subsequent administrative appeal. Further, in Quintero v. City of Santa Ana, another <br />appellate court found a due process violation where the deputy city attorney represented <br />the City before the personnel board which the attorney had advised in the past. In both <br />Nightlife and Quintero, the analysis focused on the potential for bias due to the different <br />roles attorneys can play in the administrative hearing process. In Haas v. County of San <br />Bernardino, the California Supreme Court upheld a due process challenge to the County's <br />practice of selecting temporary administrative hearing officers on an ad hoc basis, as this <br />created the risk that favorable decisions would be rewarded with future remunerative work. <br />According to the above cases, there are potential issues to address for some land use <br />entitlement decisions in terms of legal representation for staff and for the hearing body or <br />