The City Council decided at the meeting on Tuesday, May 18 that, once an appeal of a Zoning Commission decision is made, it cannot be withdrawn without the approval of the City Council.
It is not known at this time whether or not appellants who attempt to withdraw their appeals will be brought to the City Council meeting by force to make their appeals – but at this point anything seems possible.
In one of the most bizarre votes this City Council has ever taken, Mayor Nancy Vaughan and Councilmembers Justin Outling, Sharon Hightower, Goldie Wells, Michelle Kennedy and Yvonne Johnson voted not to accept the withdrawal of an appeal of Zoning Commission approval for rezoning of 102 and 104 East Vandalia Road.
Councilmembers Nancy Hoffmann, Tammi Thurm and Marikay Abuzuaiter voted no on the motion to refuse to accept the withdrawal of the appeal.
The City Council agenda for item 22 states, “The appeal to the Zoning Commission has been withdrawn. No further action is required by City Council.”
Decisions by the Zoning Commission can be appealed to the City Council if done so in writing within 10 days of the Zoning Commission meeting. It is not unusual for someone to file an appeal and decide to withdraw the appeal before the City Council meeting and, every other time this has happened, that made the decision of the Zoning Commission final, but not in this case because Hightower opposed the rezoning.
So in this case, the City Council did take action, ignoring the advice of City Attorney Chuck Watts, who stated that the appeal had been withdrawn and unless their was evidence that the withdrawal was not done in good faith, it was final.
In speaking of the Zoning Commission approval of the rezoning request Watts said, “If it is not appealed it is final. Was the appeal appropriately withdrawn that is the question.”
Outling stated that there was “no policy, no procedure” on the City Council accepting the withdrawal of an appeal.
He said, “It is my belief that the decision can only be made by the City Council.”
So what Outling is saying is that only the City Council, not the person who made the appeal, can decide whether or not the appeal can be withdrawn.
Hoffmann said, “It is my concern that you are changing the rules. You are setting a precedent for every rezoning case.”
What makes the whole issue even more confusing is that the rezoning for a 96-unit multifamily development that the Zoning Commission approved was reportedly for affordable housing, which the City Council constantly states is one of its main priorities.
The City Council was told that the developer had already been notified that because there was no valid appeal in the 10-day time period set by ordinance that the decision by the Zoning Commission was final and the land was legally rezoned.
However, since Hightower opposes this affordable housing development and convinced five of her fellow councilmembers to invent a new rule that states that once an appeal of a decision by the Zoning Commission is made, it cannot be withdrawn without the approval of the City Council, it appears the rezoning is not final.
If that sounds bizarre, it is because it is bizarre. The City Council evidently plans to force the person who filed the appeal to appeal a Zoning Commission decision that he no longer wants to appeal. Since no other appeals were filed in the 10-day time period, no one else can legally file an appeal, or at least that’s the way the ordinance reads.
It is not the least bit surprising that Hightower would request that the City Council take action that appears to set the city up to be on the losing end of a lawsuit from the developer, but it is surprising that Hightower could convince five city councilmembers, including Outling who is an attorney, to invent a new procedure because following the long established procedure would not produce the outcome that Hightower desired.