Chapter 1.26
UNIFORM ADMINISTRATIVE APPEALS
Sections:
1.26.005 Title, purpose and authority.
1.26.020 Applicability and scope of this chapter.
1.26.030 Initiation and scheduling of administrative appeal.
1.26.040 Procedures applicable to de novo hearings.
1.26.005 Title, purpose and authority.
A. This chapter shall be known and may be cited as the “uniform administrative appeals ordinance” and may also be referred to herein as “this chapter.”
B. The purpose of this chapter is to establish uniform appeal procedures for the conduct of due process hearings, including appeal hearings, which may be called for in various sections of the Lincoln City Municipal Code. This chapter will apply only when the code specifically references this chapter for the conduct of a hearing or appeal.
C. This chapter is enacted under the home rule charter authority of the city of Lincoln City. (Ord. 2013-04 § 1)
1.26.010 Definitions.
A. “City recorder” means the person holding the position of city recorder or any officer or employee of the city of Lincoln City delegated or assigned in writing any or all of the tasks of the city recorder herein.
B. “City” means the city of Lincoln City, Oregon.
C. “City council” or “council” means the city council for the city of Lincoln City, or council’s designee.
D. “Day” means calendar day, unless otherwise specified.
E. “Department head” means the person holding the position of department head for any department of the city of Lincoln City, or designee of the department head authorized to perform the duties of the department head by express written delegation.
F. “Hearing officer” means the city manager, municipal court judge, municipal court judge pro tem, contract hearing officer or other outside party not affiliated with the city of Lincoln City, that is hired or selected by the city council or city manager to conduct a hearing or other appeal proceeding. (Ord. 2013-04 § 1)
1.26.020 Applicability and scope of this chapter.
A. Any person aggrieved by the decision of the city manager or a department head may appeal such action to the city council through the following procedures if the Lincoln City Municipal Code chapter granting the city manager or department head authority to make the decision expressly authorizes an appeal (or a hearing), and the code specifically authorizes the use of this uniform administrative appeals ordinance. Land use decisions subject to LCMC Title 17 shall not be subject to the appeals process in this chapter.
B. The appeals covered by this chapter include only de novo appeals or hearings from administrative decisions made without a hearing. This chapter does not address “on the record” appeals from decisions made after a hearing.
C. The city council, in its sole discretion, may designate a hearing officer to conduct the hearing and make the decision in its entirety, or to conduct the hearing and prepare a recommended order for council consideration in deliberations. The council may specify use of a hearing officer for individual appeals, or for classes of appeals in a written order or resolution, in their sole discretion, with due consideration of budgeting. (Ord. 2013-04 § 1)
1.26.030 Initiation and scheduling of administrative appeal.
A. Where the LCMC authorizes an appeal, the specific appeal procedures, timeframes, fees and other requirements of the specific LCMC section authorizing the appeal shall control over the more general provisions of this section. Where the specific code sections are silent, the provisions of this chapter shall govern.
B. General procedures for initiation of an appeal are as follows:
1. Appeal Time. A person appealing a decision of the city manager or department head shall, within 10 days of such decision as measured from personal service of the decision, or 12 days of mailing of written notice of decision, file a written notice of appeal with the city recorder.
2. Notice of Appeal Contents. The written notice of appeal shall include the name and address of the appellant, a statement of the authority or jurisdiction for the appeal including specific LCMC sections authorizing the appeal, a statement of the appellant’ s standing or right to be heard, the nature of the decision being appealed, a copy of the decision being appealed, a short and plain narrative statement including the reason(s) the original decision is alleged to be incorrect, with reference to the particular sections of the Lincoln City Municipal Code involved, and the result the appellant desires on appeal.
3. Appeal Fee. The appellant shall pay a nonrefundable appeals fee to facilitate the appeal. Unless otherwise specified in the applicable code authorizing the appeal, appeal fees shall be $150.00 for each decision appealed, and may be adjusted by resolution of the Lincoln City council.
4. Jurisdictional Defect. Failure to strictly comply with the applicable appeal requirements, including, but not limited to, the required elements for the written notice of appeal, time for filing of the notice of appeal, and payment of the applicable appeal fee, shall constitute jurisdictional defects resulting in the summary dismissal of the appeal. All requirements shall be fully met prior to the appeal deadline.
5. Stay. Unless otherwise specifically provided for in the code, the action of the department head or director shall be stayed pending the outcome of an appeal properly filed pursuant to this section. A stay shall not remain in effect for more than 90 days unless the council or their designee consents to a longer stay.
C. Scheduling the Appeal Before the Council or Hearing Officer.
1. Filing. The city recorder shall accurately document the filing of receipt of appeal materials, including time-stamping the materials submitted.
2. Designated Hearing Officer. If the council has designated a hearing officer for a type or class of appeals, or otherwise delegated the subject matter to a hearing officer, the appeal materials shall be forwarded to the hearing officer. The hearing officer shall first determine whether the jurisdictional requirements for the appeal have been met.
a. If the hearing officer finds the requirements are not met, the hearing officer shall reduce such decision to writing and summarily dismiss the appeal; the final decision sought to be appealed shall stand as the final decision of the city.
b. If the hearing officer finds the requirements for the appeal are met, or does not respond within five days, the city recorder shall contact the hearing officer to set a hearing date not more than 30 days after the appeal has been filed. Nothing herein shall prejudice the hearing officer to later determine that there is no jurisdiction to hear the appeal.
3. Council Ad Hoc Hearing Officer Decision. If the council has not designated a hearing officer for this type or class of appeals, the council, after consultation with legal counsel, shall first determine whether the jurisdictional requirements for the appeal have been met. If the council finds the requirements are not met, the council shall reduce this decision to writing and summarily dismiss the appeal; the final decision sought to be appealed shall stand as the final decision of the city.
a. If the council finds the requirements for the appeal are met, the council shall determine by majority vote, and after review of the complexity of the matter, whether to conduct the hearing before the council or to refer the matter to a hearing officer, in whole, or in part (i.e., for hearing and decision, or for hearing and preparation of a recommended order).
b. Thereafter, the city recorder shall set the hearing before the council or contact the hearing officer to set a hearing date not more than 30 days after the appeal has been filed.
4. Public Notice.
a. The city recorder shall notify the parties in writing of the time fixed for hearing. Such written notice shall not be less than 10 days prior to the date of the hearing unless the appellant and the city department head agree to a shorter time.
b. Public notice of the appeal hearing shall be as provided in the specific code section creating authority for the appeal. (Ord. 2013-04 § 1)
1.26.040 Procedures applicable to de novo hearings.
The term “council” in this section includes a delegated hearing officer.
A. The intent of the hearing is to provide the parties with reasonable notice and a meaningful opportunity to be heard. The procedures herein may be varied by the hearing officer in order to best afford the parties procedural due process.
B. The parties shall be entitled to appear personally or by legal counsel. When appearing by counsel, reasonable notice to the city recorder, with copy to the city attorney, is required.
C. The decision of the council shall be the final decision of the city, and it shall be issued in writing and supported by findings of fact as well as competent substantial evidence in the record.
D. The council shall provide procedural due process and shall at a minimum do the following:
1. At the commencement of the hearing, the council shall announce the matter to be heard, the applicable criteria for the decision, the relevant issues involved in the hearing, a summary of applicable procedures, and the burden of proof.
2. At the commencement of the hearing the council shall place on the record the substance of any written or oral ex parte communications concerning any relevant and material fact in issue at the hearing which was made to the council outside the official proceedings during the pendency of the proceeding. The parties shall be notified of the substance of the communication and the right to rebut the communication. Notwithstanding the above, the parties are prohibited from engaging in ex parte communications with the council.
3. Bias challenges made by the parties must be in writing submitted prior to the commencement of the hearing, and must be supported by competent substantial evidence of actual bias.
4. Testimony may be taken upon oath or affirmation of the witnesses. Evidence provided under oath will be given more weight than evidence which is unsworn.
5. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of their serious affairs, regardless of the existence of any law or rule that might make improper the admission of such evidence over objection in civil action in courts of competent jurisdiction in this state. Evidence of past transactions and occurrences shall not be excluded solely on the basis of having occurred in the past and may be relied upon by the council in making its recommendation. However, irrelevant and unduly repetitious evidence shall be excluded.
6. The order of proceedings may be varied by the council in order to best afford the parties procedural due process. Generally the order of proceedings shall be as follows:
a. Staff will present the staff report. The staff presentation shall address the applicable criteria for the decision, introduce the relevant and material facts related to the criteria, discuss the application of the facts to the law, and offer a conclusion of compliance or noncompliance.
b. The appellant (applicant below) will present their case and may present such facts, evidence and arguments as may tend to support the appellant’s positions on appeal.
c. Interested members of the public shall be given an opportunity to present evidence or testimony bearing upon the application, whether such evidence is supportive or adverse to the application.
d. The applicant shall be afforded an opportunity to rebut evidence presented in opposition to the application.
e. The council may ask questions of participants, during the participant’s presentations.
7. The council shall ensure that the record developed at the hearing shows a full and fair inquiry into the relevant and material facts for consideration for the issues properly before the council.
8. A verbatim, written or mechanical record shall be made of all motions, rulings and testimony. The record need not be transcribed unless requested for purposes of rehearing or court review. The city shall require a deposit for costs of transcription or a copy of such transcription.
9. Written testimony may be submitted under penalty of perjury and false swearing for entry into the record. All written evidence shall be filed with the city recorder no less than five working days before the date of the hearing. Written evidence may be introduced at the hearing at the discretion of the council, upon demonstration that such evidence was unavailable by the deadline.
10. Informal disposition may be made of any case by stipulation, agreed settlement, consent order or default. (Ord. 2013-04 § 1)
1.26.050 Costs for frivolous appeals.
If the appellant loses on appeal, and the council in a written finding determines that the appeal was entirely without merit, the appellant will be held financially responsible for the full cost to the city of Lincoln City for the appeal proceeding, including, but not limited to, the cost of hiring an independent hearing officer. (Ord. 2013-04 § 1)