Chapter 1.22
APPEALS

Sections:

1.22.010    Right to appeal.

1.22.020    Appeal application.

1.22.030    Hearings.

1.22.040    Final decision.

1.22.050    Judicial review.

1.22.010 Right to appeal.

Except where an appeals procedure is otherwise specifically set forth in this code, or is otherwise required by state or federal law, any person objecting to a decision made by an enforcement officer or employee involving the exercise of discretion may appeal the decision to the City Manager for review by filing an appeal application with the city clerk setting forth the specific grounds of the appeal. No such appeal may be taken to any such decision, unless such decision has first been taken to the department head concerned as set forth in the authorizing ordinance. No right of appeal shall exist when such decision is ministerial and thus does not involve the exercise of administrative discretion or personal judgment. This chapter shall not be a means of appeal from the decision of any board or commission of the City, including, but not limited to, the Planning Commission, where state law requires the appeal to be heard by the City Council or another agency. (Ord. 2065 § 1(A), 2018; Ord. 2052 § 1(A) (Exh. A), 2017)

1.22.020 Appeal application.

A. Standing. Only a person who has an existing legal interest in the property, right, or entitlement subject to the City decision sought to be appealed from has standing and a right to appeal under this chapter. An appeal application that fails to allege standing may be rejected as incomplete.

B. Form of Appeal Application. An appeal application shall be in writing and shall contain the following information provided under penalty of perjury that the facts stated in the appeal are true and correct to the best of appellant’s own knowledge:

1. Name(s) of appellant(s);

2. Brief statement of the specific items protested, together with any material facts claimed to support the contentions of the appellant;

3. Statement of the relief sought;

4. Brief statement of the reasons why the decision should be rescinded, modified, or otherwise set aside;

5. Signatures of all parties named as appellants and their mailing addresses.

Any appeal application filed that fails to provide all of the information required by this section shall be deemed incomplete.

C. Time Limit for Filing. An appeal application must be filed with the city clerk within 10 calendar days after the date the decision was made.

D. Fee. An appeal application shall not be considered filed until the appellant has paid an application fee in the amount set forth in the fee schedule adopted by the City Council. The filing fee shall be subject to refund in the event the appeal results in the reversal of the appealed decision.

E. Incomplete Applications for Appeal. If an appeal application is deemed incomplete for failure to meet the requirements of this section, the city clerk shall provide written notice to the appellant within 10 calendar days after the appeal application is presented, stating with particularity the defects or omissions in the application. Failure of the appellant to file an amended appeal application within 10 calendar days from the date of notice from the city clerk shall constitute waiver of the appeal. (Ord. 2065 § 1(A), 2018; Ord. 2052 § 1(A) (Exh. A), 2017)

1.22.030 Hearings.

A. Scheduling. Upon receipt of a complete appeal application, a hearing shall be scheduled within 30 days after the appeal application was received, or such later date as mutually agreed to by the parties. The city clerk shall provide a written notice of the hearing to the appellant no less than five calendar days prior to such hearing, unless such notice is waived in writing by the appellant. In the event that a hearing cannot be timely scheduled, the appeal application is deemed denied.

B. Hearing Officer.

1. The City Manager, or his or her designee, shall designate a hearing officer for the appeal hearing. The hearing officer shall be an impartial person such as:

a. A city employee from a department other than the department that issued the decision being appealed; or

b. A volunteer law student, local attorney, or employee from another agency or organization.

2. Should the person seeking the hearing reject the designated hearing officer, then the City shall retain the services of a hearing officer from an organization which provides such hearing officer services and the cost of the services shall be shared equally by the City and the appellant.

3. The employment, performance evaluation, compensation, and benefits of the hearing officer shall not be directly or indirectly conditioned upon or affected by the decision rendered or the amount of fines upheld by the hearing officer, if any.

C. Conduct of Hearing. At the hearing required by the provisions of this chapter, the appellant must show cause on the grounds set forth in the appeal application why the action appealed from should not be approved. Failure of the appellant to appear at the hearing shall constitute waiver of the appeal.

D. Evidence. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of his or her case. The City bears the burden of proof to establish the validity of the decision under appeal. The decision itself and/or any additional reports submitted by the enforcement officer or employee involving the exercise of discretion shall constitute prima facie evidence of the facts contained in those documents. In the discretion of the hearing officer, the evidence submitted in the hearing before the hearing officer may be either in the form of written declarations or by way of oral testimony. The enforcement officer who issued the citation is not required to attend or participate. All written declarations shall be made under penalty of perjury in compliance with Section 2015.5 of the California Code of Civil Procedure. The appellant may bring an interpreter to the hearing provided there is no expense to the City therefor. The evidentiary standard to be used by the hearing officer in ruling on the validity of the decision or of any fact at issue in the hearing is the preponderance of evidence standard.

E. Fines. If a fine was levied in connection with the action being challenged on appeal, such as a fine levied pursuant to Chapter 1.20 LMC, and the administrative citation is upheld, then the fine amount shall be paid within five working days to the City. If the citation is dismissed, the City shall promptly refund the amount of any fine already deposited. (Ord. 2065 § 1(A), 2018; Ord. 2052 § 1(A) (Exh. A), 2017)

1.22.040 Final decision.

If requested by the appellant, the hearing officer shall provide a written decision to the appellant within 14 days after the appeal hearing. The hearing officer’s decision shall be final and conclusive on the matter. (Ord. 2052 § 1(A) (Exh. A), 2017)

1.22.050 Judicial review.

A person aggrieved by the hearing officer’s decision may obtain review of the decision by filing a petition for review with the Alameda County Superior Court within 20 days after service of the final decision in accordance with the timelines and provisions set forth in California Government Code Section 53069.4. (Ord. 2052 § 1(A) (Exh. A), 2017)