Chapter 2.20
HEARING EXAMINER
Sections:
2.20.010 Hearing examiner authorized.
2.20.020 Appointments – Qualifications.
2.20.050 Appeal and council review of hearing examiner decision.
2.20.060 Hearing examiner decisions based on determinations of the building official.
2.20.010 Hearing examiner authorized.
There is created the office of hearing examiner as an independent office of the city for the conduct of hearings on matters delegated to the hearing examiner by ordinance. (Ord. 36 § 1, 1994).
2.20.020 Appointments – Qualifications.
A. The city manager shall appoint the hearing examiner. The city manager is also authorized to appoint hearing examiners pro tempore to serve on a day-to-day basis in the absence, unavailability, incapacity or disqualification of the hearing examiner.
B. The hearing examiner shall be experienced in land use and related matters. (Ord. 36 § 2, 1994).
2.20.030 Powers and duties.
The hearing examiner is authorized to:
A. Administer oaths and affirmations, examine witnesses, rule upon offers of proof, receive evidence and conduct discovery procedures which may include propounding interrogatories and taking oral depositions; provided, that no person shall be compelled to produce information which the person could not be compelled to produce in a court of law;
B. Upon the request of a city officer or any party, or upon the hearing examiner’s own volition, issue and witness subpoenas; provided, that any subpoena shall state the name and address of the witness sought, and if for the production of books, documents or things, shall specifically identify the requested item and the item’s relevance to the issues involved;
C. Regulate the course of the hearing in accordance with applicable ordinances and other laws;
D. Hold conferences for the settlement or simplification of the issues by consent of the parties;
E. Dispose of procedural requests or similar matters;
F. Make the decisions or recommendations contemplated herein and by other ordinances conferring jurisdiction on the hearing examiner;
G. Make rules for the conduct of hearings, notices, and other procedures not inconsistent with this chapter and other applicable ordinances. An audio or video record of the hearing proceedings shall be maintained and shall be made available for public review;
H. Make recommendations for revision of relevant codes and ordinances to clarify or otherwise improve the development review or hearings process;
I. Take any other action authorized by ordinance;
J. Consider requests for reconsideration submitted by the applicant, the appellant, or the city when submitted within 10 days of the date on which the decision is postmarked when the requesting party sets forth in writing the specific error(s) of law or fact, error in judgment, or new information (which could not reasonably be available at the previous hearing) which is the basis for the reconsideration. There shall be only one reconsideration per application. (Ord. 84 § 1, 1995; Ord. 36 § 3, 1994).
2.20.040 Procedures.
A. Each final decision of the hearing examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. Such findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the applicable criteria established by ordinance or law.
B. Each final decision of the hearing examiner, unless a longer period is mutually agreed to in writing by the applicant and the hearing examiner, shall be rendered within 10 working days following conclusion of all testimony and hearings. (Ord. 84 § 1, 1995; Ord. 36 § 4, 1994).
2.20.050 Appeal and council review of hearing examiner decision.
Decisions of the hearing examiner shall be final unless:
A. The decision is by ordinance given the effect of a recommendation to the city council;
B. An appeal to city council is provided for in city regulations authorizing the permit or approval and an aggrieved party files an appeal with the city clerk pursuant to applicable appeal procedures as set forth in NMC Title 19, Administrative Procedures. (Ord. 97-153 § 3; Ord. 84 § 1, 1995; Ord. 36 § 5, 1994).
2.20.060 Hearing examiner decisions based on determinations of the building official.
A. Qualifications. The hearing examiner shall be qualified by experience and training to make determinations on matters pertaining to building construction.
B. Appeals. The hearing examiner shall hear and determine appeals of orders, decisions, or determinations made by the building official relative to the application and interpretation of the construction codes as defined in NMC 15.05.101.2 and the Construction Administrative Code in Chapter 15.05 NMC following an open record hearing. Following review of evidence, the hearing examiner shall issue final decisions, including findings and conclusions, based on the issues and evidence in the record.
C. Final Decisions. The hearing examiner’s final decision shall be the final decision of the city on the appeal and shall be deemed final unless a timely appeal is properly commenced in superior court within the time period specified by state law.
D. Limitations on Authority. An application for appeal shall be based on a claim that the true intent of the construction codes as defined in NMC 15.05.101.2, the Construction Administrative Code in Chapter 15.05 NMC, or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of such codes or rules do not fully apply, or an equally good or better form of construction is proposed. The hearing examiner shall not have authority to waive requirements of such codes or rules. (Ord. 2021-622 § 5; Ord. 96C-104 § 1).