Chapter 1.24
APPEALS1
Sections:
1.24.020 Purpose and designation of appellate bodies.
1.24.060 Scheduling and noticing appeal for hearing.
1.24.070 Effect of failure to appeal.
1.24.080 Scope of hearing on appeal.
1.24.090 Staying of order under appeal.
1.24.130 Method and form of decision.
1.24.140 Procedural integrity.
1.24.010 Definitions.
(1) “Administrator” shall mean the city administrator of the city of Oak Harbor (city) or designee.
(2) “Appellant” shall mean the person entitled to an appeal pursuant to the Oak Harbor Municipal Code (OHMC).
(3) “Department head” means any department head or designee.
(4) “Reviewing agency” shall mean the city administrator, applicable department head, city council or hearing examiner with the jurisdiction to hear the appeal at issue as codified in the OHMC. (Ord. 1868 § 1, 2019).
1.24.020 Purpose and designation of appellate bodies.
(1) This chapter may be referenced by other ordinances of the city to provide appeal procedures as determined by such ordinance or adopted in part or whole by appellate bodies of the city if they so determine that they are appropriate for their use.
(2) When not otherwise provided by the Oak Harbor Municipal Code, authorized appeals from orders or notices required to be issued by the mayor or the city administrator shall lie before the city council or a hearing examiner appointed by the city council.
(3) When not otherwise provided by the Oak Harbor Municipal Code, authorized appeals from decisions of a department head or the designee of the mayor shall be to the city administrator or designee.
(4) When not otherwise provided by the Oak Harbor Municipal Code, authorized appeals from decisions by an employee within a department or a due process hearing within a department purview shall be to the department head or designee.
(5) This chapter shall not apply to OHMC Title 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 or 21. (Ord. 1868 § 1, 2019).
1.24.030 Form of appeal.
Unless otherwise specified, any person entitled to an appeal of a decision made by an official, agency or department of the city may appeal from the decision or order complained of by submitting a written appeal on the form provided by the city clerk’s office containing:
(1) Name, address, and contact information of the appellant and his/her interest in the matter;
(2) A brief statement explaining why the appellant believes the decision is wrong, identifying whether the perceived error is factual or legal in nature. If the appellant believes that the decision is legally erroneous, the appellant must clearly identify the legal errors, including citation to all applicable plans, codes and regulations, together with any written materials as support for the claim. No additional materials submitted after the appeals application will be accepted;
(3) The desired outcome or changes to the decision; and
(4) The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
The appeal shall be filed with the city clerk’s office within 10 days from the date of the decision. The appeal may only be received in person or via certified mail. (Ord. 1868 § 1, 2019).
1.24.040 Appeal filing fee.
(1) Reviewing Agency Fee. A fee pursuant to the master fee schedule adopted by resolution of the city council is imposed for filing an appeal subject to reviewing agencies under this chapter, except as provided in subsection (2) of this section. The appeal fee is nonrefundable and must be paid in full at the time the appeal is submitted.
(2) Hearing Examiner as Reviewing Agency Fee. If the city council appoints a hearing examiner to conduct the appeal pursuant to OHMC 1.24.020(2), a fee pursuant to the master fee schedule adopted by resolution of the city council is imposed for filing an appeal. (Ord. 1868 § 1, 2019).
1.24.050 Notice of appeal.
Upon receipt of any appeal filed pursuant to this section, the city clerk shall transmit the appeal application to the applicable reviewing agency and a copy to the city attorney. (Ord. 1868 § 1, 2019).
1.24.060 Scheduling and noticing appeal for hearing.
As soon as practicable after receiving the written appeal, the city clerk or department head shall set the matter for a hearing.
(1) The hearing will be scheduled at least 10 days after the date the appeal was received by the city, and no more than 60 days from the date that the appeal was received by the city.
(2) The city shall provide written notice of the hearing to the appellant at least 10 days prior to the date of the hearing by sending the notice to the address provided by the appellant.
(3) The written notice shall include the date, time and location of the hearing.
(4) The written notice shall be delivered to the appellant personally or by mailing a copy to the appellant at the address shown on the appeal application. (Ord. 1868 § 1, 2019).
1.24.070 Effect of failure to appeal.
Failure of any person to file an appeal in accordance with the provisions of this chapter shall constitute a waiver of his or her right to an administrative hearing and adjudication of the notice and order or to any portion thereof. (Ord. 1868 § 1, 2019).
1.24.080 Scope of hearing on appeal.
Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal. (Ord. 1868 § 1, 2019).
1.24.090 Staying of order under appeal.
(1) Upon application by an aggrieved party, enforcement of any notice and order issued subject to appeal under this chapter may be stayed by the city administrator during pendency of an administrative appeal which is properly and timely filed. If the appeal is to the city council, the mayor shall determine if a stay shall be issued.
(2) No stay is authorized hereby in a judicial appeal or review. (Ord. 1868 § 1, 2019).
1.24.100 Standard of review.
During all appeal hearings subject to this chapter, the appellant shall carry the burden of proof. The reviewing agency shall reverse or modify the administrative decision at issue only upon the appellant demonstrating that the decision appealed was clearly erroneous and/or contrary to law. In making this decision, in reviewing discretionary decisions and issues of code interpretation and application, the reviewing agency shall accord substantial deference to the special expertise of the director as an official charged with administering city plans, ordinances and codes. (Ord. 1868 § 1, 2019).
1.24.110 Procedures.
(1) Hearing Examiners. In cases before the city council, the city council may appoint one or more hearing examiners or designate one or more of its members to serve as hearing examiners to conduct the hearings, or the council may hear the matter itself. The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted by her/him to the board for decision.
(2) Record. A record of the entire proceedings shall be made by written minutes, audio recording, or by any other means of permanent recording determined to be appropriate by the city administrator or department head.
(3) Continuances. The reviewing agency may grant continuances for good cause shown; however, when a hearing examiner has been assigned to such hearing, no continuances may be granted except by the hearing examiner for good cause shown as long as the matter has not been decided.
(4) Oaths – Certification. In any proceedings under this chapter, any member of the reviewing agency, the mayor, in cases before the city court, or a hearing examiner has the power to administer oaths and affirmations and to certify to official acts.
(5) Decision of the Reviewing Agency. During the hearing, the reviewing agency shall consider the record of the decision in dispute, together with any and all information relied upon by the employee or director in making its decision. The reviewing agency shall also consider testimony at the hearing and any other written submissions made at or prior to the appeal hearing. The decision being appealed may be affirmed, reversed, remanded or modified. (Ord. 1868 § 1, 2019).
1.24.120 Conduct of hearing.
(1) Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
(2) Oral Evidence. Oral evidence shall be taken only on oath or affirmation.
(3) Hearsay Evidence. 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 civil actions in courts of competent jurisdiction in this state.
(4) Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
(5) Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.
(6) Rights of Parties. Each party shall have these rights, among others:
(a) To call and examine witnesses on any matter relevant to the issues of the hearing;
(b) To introduce documentary and physical evidence;
(c) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
(d) To impeach any witness regardless of which party first called him/her to testify;
(e) To rebut the evidence against him/her;
(f) To represent himself/herself or to be represented by anyone of his/her choice who is lawfully permitted to do so.
(7) Official Notice – What May Be Noticed. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or of official records of the board or departments and ordinances of the city or rules and regulations of the board.
(8) Parties to Be Notified. Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein, or appended thereto.
(9) Opportunity to Refute. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of which refutation to be determined by the board or hearing examiner.
(10) Inspection of the Premises. The reviewing agency or the hearing examiner may inspect any premises involved in the appeal during the course of the hearing; provided, that:
(a) Notice of such inspection shall be given to the parties before the inspection is made;
(b) The parties are given an opportunity to be present during the inspection; and
(c) The reviewing agency or the hearing examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the board or hearing examiner. (Ord. 1868 § 1, 2019).
1.24.130 Method and form of decision.
(1) Hearing Before Board Itself. Where a contested case is heard before the reviewing agency itself, no member thereof who did not hear the evidence or has not read the entire record of the proceedings shall vote on or take part in the decision.
(2) Hearing Before Examiner. If a contested case is heard by a hearing examiner alone, he shall within a reasonable time (not to exceed 90 days from the date the hearing is closed) submit a written report to the board. Such report shall contain a brief summary of the evidence considered and state the examiner’s findings, conclusions and recommendations. The report also shall contain a proposed decision in such form that it may be adopted by the board as its decision in the case. All examiner’s reports filed with the board shall be matters of public record. A copy of each such report and proposed decision shall be mailed to each party on the date they are filed with the reviewing agency.
(3) The reviewing agency conducting the appeal shall render a decision based upon the record, including written materials and any tape recording or minutes of the previous proceedings, and on the criteria or standards applicable to the permit, license or action being considered. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with. A copy of the decision shall be delivered to the appellant personally or sent by certified mail to the address provided on the appeal application.
(4) Effective Date of Decision. The effective date of the decision shall be as stated therein. (Ord. 1868 § 1, 2019).
1.24.140 Procedural integrity.
No procedural irregularity or informality in the notice, consideration, hearing or other matter relating to the decision and/or appeal shall affect the final decision, or any other action leading to the final decision, unless substantial rights of a person with demonstrable beneficial interests are adversely affected and unless objection to any procedural irregularity is made to the city at the earliest possible time after discovery. (Ord. 1868 § 1, 2019).
1.24.150 Enforcement.
After a final order is issued pursuant to this chapter, the city administrator shall have the authority to enforce the order. (Ord. 1868 § 1, 2019).
1.24.160 Violations.
Violations of this chapter shall constitute a civil offense and shall be governed by the procedures of Chapter 1.28 OHMC. (Ord. 1868 § 1, 2019).
Prior legislation: Ords. 681, 806, 915 and 1496.