ARTICLE XIII.
APPEALS OF ADMINISTRATIVELY IMPOSED DEDICATIONS OR EXACTIONS
DIVISION 1. GENERALLY
Sec. 2-246 Hearing officer established.
The hearing officer for the appeals of administrative exactions and dedications is hereby established, and one (1) or more hearing officers appointed by the mayor and common council is hereby authorized. The planning and zoning director is hereby directed to forward for possible designation by the council the names of not less than three candidates for designation as hearing officer. These persons shall be knowledgeable in American Planning Law and the laws, statutes and ordinances of the state and the city and shall be familiar with the process for the development of land in the community.
(Ord. No. 1060, § 1, 10-16-95)
Secs. 2-247—2-260. Reserved.
DIVISION 2. RULES OF PROCEDURE
Sec. 2-261 Scope.
These rules shall apply in all cases involving the decision of appeals of dedication or exaction requirements before the hearing officer for exaction appeals (“hearing officer”), as established pursuant to Section 9-500.12, Arizona Revised Statutes, and the policy set forth in the city of Kingman Zoning Ordinance, Section 31.000 and designated by the common council of the City of Kingman. A dedication or exaction required in a legislative act of the common council that does not give discretion to a city administrative agency or official to determine the nature or extent of the dedication or exaction is not subject to appeal under these procedures.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-262 Definitions.
Appeal means an appeal by a property owner of a dedication or exaction requirement imposed by an administrative agency or official of the City of Kingman as a condition on granting approval for the use, improvement, or development of the owner’s real property in the City of Kingman, Arizona. Pursuant to Section 2-272 of these rules of procedure only, “appeal” means appeal of the hearing officer’s decision to the superior court of Mohave County.
Counsel means an attorney licensed to practice law in the state.
City means City of Kingman.
Dedication means the conveyance of a fee simple or easement interest in private real property to the city for public use.
Decision letter means the written and dated document prepared by the hearing officer which includes the hearing officer’s findings of fact and conclusions of law, and articulates the hearing officer’s decision to affirm, modify, or delete the city’s dedication or exaction requirement.
Designated staff representative means the city official designated to represent the position of the city at an appeal hearing with regard to the subject matter of the appeal.
Determination letter means the written and dated document, sent by the city via first class mail to the property owner or personally obtained from the city by the property owner or owner’s representative, which document officially informs the property owner of the city’s final determination regarding the imposition of a dedication or exaction requirement as a condition on granting approval of the use, improvement, or development of the property owner’s real property.
Exaction means a requirement to:
(1) Construct a public improvement facility.
(2) Pay money in lieu of construction of a public improvement or facility.
Other designated representative means a person over eighteen (18) years of age, other than an attorney, authorized in writing by the property owner to represent the property owner in proceedings before the hearing officer. The written authorization shall be in a form sufficient to satisfy the hearing officer that the person has in fact been authorized to act on the property owner’s behalf and that the property owner understands and agrees to be bound by actions taken by the other designated representative in proceedings before the hearing officer.
Parties means the property owner and the city.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-263 Commencement of appeal.
Every appeal brought before the hearing officer shall be in writing and filed with or mailed to the hearing officer within thirty (30) days after receipt by the property owner of the determination letter. The appeal shall state with particularity the dedication or exaction requirement that is being appealed. No fee shall be charged for filing the appeal. After receipt of an appeal, the hearing officer shall schedule an appeal hearing within thirty (30) days after receipt. The parties shall be given at least ten (10) days prior written notice of the date and time of the appeal hearing unless the party not provided such notice agrees to a shorter notice period.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-264 Representation at the appeal hearing.
The property owner shall have the right to be represented by counsel or by an other designated representative at the appeal hearing. In addition to the city’s designated staff representative, the city shall have the right to be represented by counsel at the appeal hearing. The parties waive the right to be represented by counsel, or other designated representative in the case of a property owner, at the appeal hearing unless actual written notice of such representation is provided to the hearing officer and to the other party at least five (5) working days prior to the appeal hearing.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-265 Discovery.
Pre-hearing discovery shall be limited to exchange of each party’s list of witnesses, copies of the exhibits and written reports or recorded statements by any witness proposed to be heard or examined by either party at the hearing. Said exchange shall occur not less than five (5) working days prior to the hearing. Failure to comply with this rule may result, at the hearing officer’s discretion, in the granting of a recess or continuance to permit such inspection, or denying admission of the evidence not so exchanged.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-266 Continuance.
Upon the hearing officer’s own motion or a motion by either party, the hearing officer may continue the appeal hearing for a period not to exceed thirty (30) days, if it appears that the interests of justice so require. In the event that continuance is granted, the hearing officer shall notify the parties in writing of the new appeal hearing date.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-267 Oath.
All testimony at the appeal hearing shall be given under oath or affirmation.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-268 Questioning of witness.
On the hearing officer’s own motion, the hearing officer may call and examine witnesses, including the property owner. Each party shall have the right to examine their respective witnesses and opposing witnesses.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-269 Rules of evidence.
The Arizona Rules of Evidence shall not apply before the hearing officer. Any evidence offered may be admitted subject to a determination by the hearing officer that the offered evidence is relevant and material and has some probative value to a fact at issue. Nothing in this rule is to be construed as abrogating any statute or law relating to privileged communications.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-270 Essential nexus and rough proportionality.
The city has the burden of establishing an essential nexus between the dedication or exaction and a legitimate governmental interest, and that the dedication or exaction is roughly proportional to the impact of the proposed use, improvement, or development of the real property in question. If the city established such essential nexus and rough proportionality, the hearing officer shall affirm the requirement of dedication or exaction in question. If the city fails to establish an essential nexus and rough proportionality, the hearing official shall modify or delete the requirement of the dedication or exaction. If more than a single parcel is involved, the burden of establishing an essential nexus and rough proportionality applies to the entire property that is subject to the approval.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-271 Order of proceedings.
The order of proceedings at an appeal hearing shall be as follows:
(1) Testimony of the property owner’s witnesses.
(2) Testimony of the city’s witnesses.
(3) Testimony of the property owner’s rebuttal witnesses, if any.
(4) Testimony of the city’s surrebuttal witnesses, if any.
(5) Argument of the parties or their counsel or other designated representative, if permitted by the hearing officer.
(6) Decision by the hearing officer.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-272 Decision by the hearing officer; time period for appeal.
The hearing officer shall issue a decision letter to the parties within five (5) working days after the appeal hearing. An aggrieved property owner shall have thirty (30) days to appeal an adverse decision to the Superior Court of Mohave County.
(Ord. No. 1060, § 2, 10-16-95)
Sec. 2-273 Record.
All appeal hearing proceedings shall be recorded by audiotape. A record of the appeal hearing may be made by a court reporter, if provided by the property owner at the property owner’s expense.
(Ord. No. 1060, § 2, 10-16-95)