Chapter 1.18
TAX AND FEE APPEALS
Sections:
1.18.020 Conflict with other chapters of the Elk Grove Municipal Code.
1.18.030 Filing a request for appeal.
1.18.035 Approving authority for refunds of development services flat fees.
1.18.040 City’s rejection of request for appeal.
1.18.045 Appeals to City Council.
1.18.050 Setting hearing date, time and place.
1.18.070 Qualifications of Appeals Hearing Officers.
1.18.080 Disqualification of Appeals Hearing Officer(s).
1.18.090 Powers of Appeals Hearing Officers.
1.18.100 Procedures for conducting appeal hearings.
1.18.120 Failure to appear at appeal hearing.
1.18.130 Tax and fee appeal decision.
1.18.140 Effect of tax and fee appeal decision.
1.18.160 Failure to comply with tax and fee appeal decision.
1.18.010 Application.
This chapter is intended as the sole means of quasi-judicial appeal of a tax or fee assessment or denial of refund claim brought against the City, except as otherwise expressly provided by law or the Elk Grove Municipal Code. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.020 Conflict with other chapters of the Elk Grove Municipal Code.
To the extent this chapter conflicts with any quasi-judicial tax or fee appeal procedure already set out in the Elk Grove Municipal Code, the procedures in this chapter shall control. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.030 Filing a request for appeal.
A. Any person seeking to challenge a tax or fee assessment or the denial of a refund claim (hereinafter an “appellant”) shall file with the City Clerk a request for appeal within the time limits provided by law or by ordinance for the filing of such an appeal or, if none are otherwise specified, within fourteen (14) days of the mailing of the determination of the tax or fee due. The appellant’s request for appeal under this chapter shall be called a request for appeal.
B. The request for appeal shall specify the name, mailing address and telephone number of the appellant and such other information required by law or by ordinance to be provided with the appeal. The appellant shall also attach a written statement specifying in detail the grounds for appeal, supporting documentation, and a copy of the notice of tax or fee due or denial of tax or fee refund.
C. The request for appeal shall be accompanied by a fee in the amount established by resolution of the City Council, unless payment of the fee is deferred or waived in accordance with EGMC Section 1.11.170.
D. Pursuant to Article XIII, Section 32 of the California Constitution, the appellant shall pay any tax, interest and penalties due the City before filing a request for appeal and shall attach proof of payment to the request for appeal. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.035 Approving authority for refunds of development services flat fees.
A. Any party paying a building permit flat fee, planning process or permit flat fee and/or public works deposits and/or flat fee as established in Resolution 2011-106 may request a refund for such fees to the department head with oversight of the division administering the flat fee. The refund request shall be made by filing a written notice thereof with the City Clerk not later than fourteen (14) calendar days after paying such fees. The refund request shall state: amount of refund request, reasons for request, and any additional pertinent information. Additionally, proof of payment shall be attached to the request. The department head may approve, partially approve, or deny the request for a refund. The decision of the department head shall be in writing. The fee payer shall have the burden of proving by a preponderance of the evidence that the cost to the City was less than the amount charged to the party.
B. Any party requesting appeal of the department head’s decision shall submit a request in writing to the City Manager for review within seven (7) calendar days of receiving the department head’s decision. The City Manager may approve, partially approve, or deny the request for a refund. The decision of the City Manager shall be in writing. [Ord. 2-2012 §3, eff. 3-9-2012]
1.18.040 City’s rejection of request for appeal.
The City Clerk, or his or her designee, shall reject for filing any request for appeal that does not substantially comply with the requirements of EGMC Section 1.18.030, including but not limited to the payment of any required fee. The City Clerk, or his or her designee, shall mail a notice rejecting the appeal request to the appellant at the address specified in the request for appeal. This notice shall be called the “Notice Rejecting the Request for Appeal.” The notice rejecting the request for appeal shall specify the reason(s) for the rejection of the appeal. The appellant shall be afforded the opportunity to correct the identified defect(s) within twenty-one (21) days following the date the City mailed the notice rejecting appeal request. The corrected request for appeal must be received by the City Clerk on or before the twenty-first (21st) day, or the appeal deadline is deemed expired. In that event, the underlying departmental decision will be considered final. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.045 Appeals to City Council.
Any party dissatisfied by the decision rendered by the City Manager under EGMC Section 1.18.035(B) may appeal the decision to the City Council in accordance with this chapter. The appeal shall be made by filing a written notice thereof with the City Clerk not later than fourteen (14) calendar days after the date of mailing or personal delivery of the notice of the decision of the City Manager. Should the appellant succeed in their appeal, whatever funds so ordered shall be returned to the appellant. The City Council shall hold a hearing on the appeal and its decision thereon shall be final. Instead of hearing the appeal itself, the City Council may refer the matter to a Hearing Officer pursuant to this chapter. The Hearing Officer’s decision shall be in writing. The Hearing Officer’s decision shall have the effect specified in EGMC Section 1.18.130, and judicial review shall be governed by EGMC Section 1.18.150. [Ord. 2-2012 §3, eff. 3-9-2012]
1.18.050 Setting hearing date, time and place.
After the City Clerk, or his or her designee, accepts a request for appeal that meets the requirements of this chapter, he or she shall set the date, time, and place for the hearing to take place no later than thirty (30) days after such acceptance. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.060 Notice of hearing.
Notice indicating the time, place and date of the appeal hearing shall be served by the City Clerk, or his or her designee, upon the appellant either personally or by delivering a copy by first class certified mail, return receipt requested, or such other delivery method that is reasonably calculated to provide actual notice to the appellant, not less than fourteen (14) days prior to the hearing date. The notice, which shall be called the “Notice of Hearing,” shall include the amount of tax assessed, the name(s) of the Appeals Hearing Officer(s) selected to hear the matter, the procedures for disqualification of an Appeals Hearing Officer, and any procedures applicable to the hearing, including notice of when written testimony must be submitted to the Appeals Hearing Officer. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.070 Qualifications of Appeals Hearing Officers.
After the City Clerk receives a request for appeal, the City Manager, or his or her designee, shall appoint an Appeals Hearing Officer.
The officers selected to hear appeals shall be known as “Appeals Hearing Officers.” An Appeals Hearing Officer shall be an impartial person, such as: A) a City employee from a department which has no involvement in code enforcement, B) someone selected randomly from a panel of law students and/or local attorneys willing to volunteer as a hearing officer, or C) someone hired from an organization which provides hearing officers, in which case the cost will be shared equally by the City and the appellant(s). Appeals Hearing Officers presiding at administrative hearings may be compensated by the City Manager or his or her designee. The employment, performance evaluation, compensation and benefits of any Appeals Hearing Officers shall not be directly or indirectly conditioned upon the amount of administrative citation fines or other compensation upheld by the Appeals Hearing Officers. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.080 Disqualification of Appeals Hearing Officer(s).
A. An Appeals Hearing Officer shall disqualify himself or herself from serving as Appeals Hearing Officer in a particular matter where he or she has a conflict of interest within the meaning of the Political Reform Act (Section 87100 et seq. of the Government Code) and shall otherwise comply with the disqualification provisions of Canon 3(E) of the Code of Judicial Ethics.
B. Each party shall have the right to make one (1) preemptory challenge to disqualify an Appeals Hearing Officer without having to demonstrate actual bias, prejudice, interest, or other cause for disqualification. This challenge shall be filed in writing to the City Clerk no later than seven (7) days after the date of the notice of hearing. This challenge shall include the names of the parties to the hearing, the name of the Appeals Hearing Officer, and the date of the scheduled hearing, and shall be signed and dated by the challenging party.
C. Any person designated to serve as an Appeals Hearing Officer is subject to disqualification at any time for bias, prejudice, conflict of interest, or for any other reason for which a judge may be disqualified in a court of law. Any party may petition the City Manager, or his or her designee, to disqualify an Appeals Hearing Officer on the aforementioned basis. The petition shall be filed in writing with the City Clerk and shall include the names of the parties to the hearing, the name of the Appeals Hearing Officer, and the date of the scheduled hearing, and shall be signed and dated by the challenging party.
D. The City Manager, or his or her designee, shall determine whether to grant the petition for disqualification. A written statement of the facts and reasons for the determination shall be incorporated into the administrative record for the hearing.
E. If a substitute is required for an Appeals Hearing Officer due to disqualification or unavailability, a substitute shall be appointed by the City Manager, or his or her designee, in accordance with these rules and regulations. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.090 Powers of Appeals Hearing Officers.
The Appeals Hearing Officer has the authority to do the following:
A. Administer oaths;
B. Conduct a prehearing conference to deal with such matters as exploration of a settlement, preparation or stipulations, clarification of issues, and other matters;
C. Continue a hearing based on good cause shown by one (1) of the parties to the hearing or if the Appeals Hearing Officer independently determines that due process has not been adequately afforded;
D. Issue subpoenas in accordance with this section. Upon receipt of a written request which is submitted no later than seven (7) days before the hearing, the Appeals Hearing Officer shall subpoena witnesses, documents, and other evidence where the attendance of the witness or the admission of evidence is deemed necessary to decide the issues at the hearing. All costs related to the subpoena, including witness and mileage fees, shall be borne by the party requesting the subpoena. The City Attorney shall develop policies and procedures relating to the issuance of subpoenas in administrative hearings, including the form of the subpoena and related costs;
E. Approve any settlement voluntarily entered into by the parties. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.100 Procedures for conducting appeal hearings.
Appeal hearings are intended to be informal in nature. The Appeals Hearing Officer is authorized to take testimony. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. However, the appellant shall have the right to present testimony and documentary and physical evidence on his/her/its behalf and shall have the right to examine any witnesses and rebut any evidence presented against the appellant. The City, by Department Director or his or her designee, shall have the burden of proving the tax assessment by a preponderance of evidence. The City Council may promulgate by resolution additional rules and procedures for the conduct of appeal hearings. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.120 Failure to appear at appeal hearing.
Failure of the appellant to either pay the tax, fee, interest and penalties due, or to appear at the hearing after notice of hearing has been served, shall be deemed a waiver of the right to a hearing and an admission by such owner or responsible party that the tax or fee assessed or denial of refund is appropriate. In that event, the underlying notice of tax or fee assessment or denial of refund shall become final and any tax, fee, interest and penalties shall immediately become due and payable. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.130 Tax and fee appeal decision.
A. After considering all of the testimony and evidence submitted at the appeal hearing, the Appeals Hearing Officer shall issue a written appeal decision. The written appeal decision of the Appeals Hearing Officer shall be issued as soon as practical and preferably within seven (7) days of the conclusion of the hearing.
B. The appeal decision shall become final on the date the Appeals Hearing Officer serves the appeal decision. The Appeals Hearing Officer shall serve one (1) copy of the appeal decision on the respondent by forwarding the appeal decision to the City Clerk for the City of Elk Grove and one (1) copy on the appellant. The City Clerk shall file a copy of the appeal decision with the appropriate department director. The appeal decision shall be served either by personal service or by first class certified mail, return receipt requested. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.140 Effect of tax and fee appeal decision.
An appeal decision of an Appeals Hearing Officer shall be final and no appeal may be made to the City Council. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.150 Judicial review.
A. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the City, or an officer thereof, to prevent or enjoin the collection of taxes and fees sought to be collected pursuant to the EGMC, and payment of any and all such taxes and fees, including any applicable interest and penalties, shall be required as a condition precedent to seeking judicial review, redetermination or appeal of any liability to pay such taxes and/or fees.
B. Once an appeal decision becomes final as provided in this chapter, any person directly aggrieved by the decision must, in addition to paying the taxes and fees as required in this section, file a claim against the City as specified in EGMC Chapter 1.15. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.160 Failure to comply with tax and fee appeal decision.
A. After the Appeals Hearing Officer issues an appeal decision, the Department Director or his or her designee shall take appropriate steps to collect the tax, fee, interest and penalties due.
B. Upon the failure of a party to comply with the terms and deadlines set forth in the appeal decision, the Department Director or his or her designee may use all appropriate legal means to recover all tax, fee, interest and penalties due including other costs and fees that are authorized by the Elk Grove Municipal Code or law.
C. Failure to comply with an appeal decision constitutes a misdemeanor pursuant to California Penal Code Section 428. [Ord. 5-2011 §2, eff. 3-11-2011]
1.18.170 Record of hearings.
The Appeals Hearing Officer shall cause all testimony to be tape-recorded and/or otherwise documented. A certified court reporter will not normally be provided. Any party may provide for a certified court reporter and obtain a transcript of the proceedings at his/her/its own expense. If such a court reporter is provided, any other party has the right to obtain a copy of the transcript of the proceedings from the court reporter at the requesting party’s expense. [Ord. 5-2011 §2, eff. 3-11-2011]