Chapter 1.10
APPEAL PROCEDURES1
Sections:
1.10.020 Applicability of appeal procedures to certain proceedings.
1.10.030 Hearing officers – Assignment.
1.10.040 Prompt judicial review for protected activities.
1.10.060 Advance deposit hardship waiver.
1.10.070 City council action not required.
1.10.010 Purpose.
The city council has determined that it is in the best interests of the city to establish uniform and impartial procedures for the appeal of administrative decisions. [Ord. 2010-126 § 1 (Exh. A)].
1.10.020 Applicability of appeal procedures to certain proceedings.
The procedures established by this chapter shall be applicable to those proceedings in this code which specifically reference this chapter. In addition, and notwithstanding anything to the contrary within this code or any other procedures provided for in this code, city officials may elect to have this chapter apply to any other proceeding. Such election may be made by the city official at the time he or she renders a decision which is subject to appeal. [Ord. 2010-126 § 1 (Exh. A)].
1.10.030 Hearing officers – Assignment.
The city manager shall select and maintain a panel of qualified persons to serve as hearing officers for matters appealed according to the procedures set forth in this chapter. “Qualified persons” shall be limited to individuals with an adequate background in the subject matter of the appeal or sufficient experience serving as a hearing officer. Hearing officers shall be assigned to matters on a rotating basis to ensure fair and impartial review and analysis of issues on appeal. [Ord. 2015-167 § 1; Ord. 2010-126 § 1 (Exh. A)].
1.10.040 Prompt judicial review for protected activities.
Nothing contained in this section shall be construed to prohibit any person from seeking prompt judicial review of a decision of a city official regarding an activity protected by the First Amendment of the United States Constitution, as applicable. The city shall comply with all requirements provided for by the California Government Code, California Code of Civil Procedure, or other applicable laws, rules or regulations necessary for prompt judicial review. [Ord. 2010-126 § 1 (Exh. A)].
1.10.050 Appeal procedures.
A. Notice of Appeal – Fee. Except for matters requiring prompt judicial review as described in AVMC 1.10.040, any person objecting to the administrative decision of a city official may, within 10 days, appeal such decision by filing a written notice of appeal with the city clerk, stating the grounds for why such decision is not proper and thus being contested. Any appeal shall be limited to such written grounds. Payment of any fee for appeal, which may be established by city council resolution, must be deposited with the notice.
B. Hearing Officer Assignment – Hearing Date. The city clerk shall forward the appeal for assignment to the next hearing officer in the rotation from the panel of qualified hearing officers maintained by the city, as provided for in AVMC 1.10.030. The hearing officer so assigned shall schedule a date for hearing within 10 days after the date of referral of the appeal by the city clerk; provided, however, that the hearing officer may take more than 10 calendar days if he or she reasonably determines that additional time is necessary or upon the mutual agreement of the parties. The hearing shall be held not more than 30 days from time of referral by the city clerk to the hearing officer; provided, however, that the hearing officer may schedule the hearing more than 30 calendar days out if he or she reasonably determines that additional time is necessary or upon the mutual agreement of the parties. .At least 10 days prior to the date of the hearing on the appeal, the hearing officer shall notify the appellant and city official of the time, date and place for the appeal hearing. To the extent that specific state statutes or city ordinances set forth additional notice provisions, the hearing officer shall also comply with such provisions. In addition, the hearing officer may continue the hearing date from time to time as he or she determines is reasonably necessary to allow a full and fair adjudication of the issues.
C. Stay of Decision. With respect to appeals regarding an activity protected by the First Amendment of the United States Constitution, a properly filed notice of appeal stays the city official’s decision until the hearing officer renders a decision on the appeal. With respect to all other appeals, nothing in this chapter shall impair a person’s right to seek temporary relief from a court of competent jurisdiction pending the hearing officer’s decision on the appeal; provided, however, that without a court order the city official’s decision shall not be stayed and nothing in this code shall be interpreted to require or support such temporary relief.
D. Rights of Hearing Officer. The hearing officer is authorized to issue subpoenas, to administer oaths and to conduct the hearing on the appeal. At such hearing, the appellant and the city official may present evidence relevant to the decision of the city official. The hearing officer shall have authority to receive evidence and shall rule on the admissibility of evidence and on questions of law. At the hearing, any person may present evidence in opposition to or in support of appellant’s case.
E. Recording of Appeal Hearing. All hearings shall be recorded by a video or audio device. Any party to the appeal hearing may also, at its own expense, use a court reporter to record the proceeding. If a court reporter is not used, the city will make the video or audio tapes of the hearing available to any party. The city may charge a reasonable fee for reproducing the tapes. If a court reporter is used, a party to the hearing may obtain a copy of the transcript upon payment of any applicable fees or costs charged by the court reporter. The city may destroy such tapes or transcripts following the time during which any and all appeals of the administrative decision are required to be made pursuant to this chapter or following the time during which such tapes or transcripts are required to be retained by the city pursuant to state law, whichever is later.
F. Evidentiary Rules. The hearing need not be conducted in accordance with the technical rules of evidence. Each party shall have the right to call and examine witnesses, to introduce exhibits and to cross-examine opposing witnesses who have testified under direct examination. The hearing officer may call and examine any witness. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding, unless it would be admissible over objection in a civil action. The rules of privilege are applicable to the extent they are permitted in civil actions. Any relevant evidence may be admitted if it is the type on which reasonable persons are accustomed to rely in the conduct of their affairs, regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Oral evidence may be taken on oath or affirmation. Irrelevant collateral, undue or repetitious evidence shall be excluded.
G. Hearing Officer Decision. At the conclusion of the hearing, the hearing officer may uphold, modify or reverse, in any manner he or she deems justified pursuant to the evidence presented, the decision of the city official which is the subject of the appeal. The decision shall not, however, conflict with any substantive provisions of the applicable chapter(s) of this code. The hearing officer shall, within five calendar days of the conclusion of the hearing, file with the city clerk his or her written decision, along with written findings of fact and conclusions of law, and shall provide a copy of the decision to all parties; provided, however, that the hearing officer may take more than five calendar days if he or she reasonably determines that additional time is necessary or upon the mutual agreement of the parties. If any party is represented by an attorney, the attorney shall be served. The decision of the hearing officer is final when filed with the city clerk. The hearing officer shall also submit the original copies of the record to the city clerk.
H. Failure to Request Hearing. Failure to timely submit a notice of appeal and make the deposit required by subsection (A) of this section shall constitute a failure by the person who was entitled to appeal to exhaust his or her administrative remedies. [Ord. 2010-126 § 1 (Exh. A)].
1.10.060 Advance deposit hardship waiver.
A. Any person who desires to appeal an administrative decision of a city official and who is financially unable to make the advance deposit of any appeal fee or fine may file a request for an advance deposit hardship waiver form, available from the finance department. The director of financial services shall be authorized to establish a reasonable policy, including criteria, for determining financial ability to pay the appeal fee and/or fine.
B. The request shall be filed with the finance department within five days of the date of the issuance of the decision subject to appeal.
C. The requirement of depositing the full amount of the appeal fee and/or fine shall be stayed unless or until the financial services manager makes a determination not to issue the advance deposit hardship waiver.
D. The financial services manager may waive the requirement for the appeal fee and/or advance deposit of the fine only if the requesting party submits to the financial services manager a declaration under penalty of perjury supported by evidence that shows to the financial services manager’s reasonable satisfaction that such party is financially unable to deposit the total amount of the fine and appeal fee in advance of the hearing.
E. If the financial services manager determines not to issue an advance deposit hardship waiver, the requesting party shall remit the fine and appeal fee to the city within five days of the date of that decision or 15 days from the date of issuance of the decision subject to the appeal, whichever is later.
F. The financial services manager shall list his/her reasons for granting or not granting an advance deposit hardship waiver in writing and serve it on the requesting party. The financial services manager’s decision shall be final. [Amended during 2011 recodification; Ord. 2010-126 § 1 (Exh. A)].
1.10.070 City council action not required.
The decision of the hearing officer shall be the final city decision, and no action by the city council shall be required, unless city council action is otherwise specifically required or authorized by any provision of this code. [Ord. 2010-126 § 1 (Exh. A)].
1.10.080 Judicial review.
Any person aggrieved by the final decision on appeal may obtain review of the decision by filing with the court of competent jurisdiction over the matter, in accordance with the applicable provisions set forth in the California Government Code, California Code of Civil Procedure, or other applicable law. [Ord. 2010-126 § 1 (Exh. A)].
Cross-reference: zoning appeals and call-up review, AVMC 15.70.080.