Chapter 1.19
ENFORCEMENT--APPEALS AND JUDICIAL REVIEW
Sections:
1.19.030 Conflict with other chapters of the city of Angels Municipal Code.
1.19.040 Appointment of administrative hearing officer.
1.19.050 Disqualification of hearing officer.
1.19.060 Impartiality of hearing officer.
1.19.070 Powers of hearing officer.
1.19.080 Filing a request for appeal.
1.19.090 City’s rejection of request for appeal.
1.19.100 Setting hearing date, time, and place.
1.19.120 Procedures for conducting appeal hearings.
1.19.130 Continuing jurisdiction.
1.19.140 Failure to appear at appeal hearing.
1.19.160 Appeal of the decision of the hearing officer.
1.19.170 Decisions made by city council.
1.19.180 Failure to comply with appeal decision.
1.19.190 Deferral or waiver of appeal fees.
1.19.210 Judicial review, ninety-day limit.
1.19.220 Record preparation--Costs.
1.19.010 Application.
This chapter is intended as the sole means to appeal, or seek judicial review of, the issuance of any administrative citation, notice and order to abate, notice of violation, or associated decision made or issued pursuant to Chapter 1.16, 1.17, or 1.18.
This chapter is intended to be used in conjunction with Chapter 1.16 (Enforcement--Violations, Process, Notice and Order to Abate, Remedies, and Penalties), Chapter 1.17 (Enforcement--Public Nuisances, Abatement, Recording Notices of Violation), Chapter 1.18 (Enforcement--Administrative Citations), Chapter 8.10 (Abatement of Weeds and Rubbish), Chapter 8.44 (Controlled Debris Burning), Chapter 15.06 (Dangerous Building Code, Enforcement) and all other code sections addressing enforcement. (Ord. 514 §1 (Att. D), 2021)
1.19.020 Reviewing authority.
A hearing officer, designated and appointed by the city administrator as set forth in this chapter, shall be the initial hearing body for all appeals in accordance with this chapter. The city council shall hear all appeals of a hearing officer’s decision pursuant to Section 1.19.160. (Ord. 514 §1 (Att. D), 2021)
1.19.030 Conflict with other chapters of the city of Angels Municipal Code.
To the extent this chapter conflicts with any quasi-judicial appeal procedure for any citation issued or decision made pursuant to Chapter 1.16, 1.17, or 1.18 already set out in the city of Angels Municipal Code, the procedures in this chapter shall control. (Ord. 514 §1 (Att. D), 2021)
1.19.040 Appointment of administrative hearing officer.
The city administrator, or his or her designee, shall designate and appoint a qualified person or persons capable of acting on behalf of the city as hearing officer(s). Hearing officer(s) shall not be city employees with supervisory powers over anyone in the city department which issued a citation or decision which is the subject of the appeal. If no city staff member can conduct the hearing, the city administrator may retain hearing officer(s) to preside at administrative hearings and may be compensated by the city. The city administrator may develop policies and procedures relating to the appointment and compensation of hearing officers. (Ord. 514 §1 (Att. D), 2021)
1.19.050 Disqualification of hearing officer.
Any person designated to serve as a hearing officer is subject to disqualification for bias, prejudice, interest, or for any other reason for which a judge may be disqualified in a court of law. Rules and procedures for the disqualification of a hearing officer may be promulgated by the city administrator. (Ord. 514 §1 (Att. D), 2021)
1.19.060 Impartiality of hearing officer.
A. The employment, performance evaluation, compensation, and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount of administrative citation penalties upheld by the hearing officer.
B. The hearing officer shall not transmit communications or otherwise use any electronic devices during a hearing, except in the case of exigent circumstances.
C. The hearing officer with any financial interest in the subject matter, or who would otherwise be finally impacted by the resolution of the appeal, shall recuse themselves from the appeal. (Ord. 514 §1 (Att. D), 2021)
1.19.070 Powers of hearing officer.
A. The hearing officer may continue a hearing based on good cause shown by one of the parties to the hearing or if the hearing officer independently determines that due process has not been adequately afforded.
B. The hearing officer, upon receipt of a written request which is submitted no later than five days before the hearing, 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 administrator may develop additional policies and procedures relating to the issuance of subpoenas in administrative hearings, including the form of the subpoena and related costs.
C. The hearing officer has continuing jurisdiction over the subject matter of an administrative hearing for the purposes of granting a continuance, ensuring compliance with an administrative order, modifying an administrative order, or where extraordinary circumstances exist, granting a new hearing.
D. The hearing officer has the authority to require a responsible person to post a code enforcement performance bond, or equivalent, to ensure compliance with an administrative order (i.e., order issued by the hearing officer). (Ord. 514 §1 (Att. D), 2021)
1.19.080 Filing a request for appeal.
A. The appellant shall file with the city administrator, or their designee, a request for appeal within the time limits provided by law, by ordinance for the filing of such an appeal, or, if none are otherwise specified, within ten days after the city’s service of the final decision being appealed.
B. The request for appeal shall specify the name, mailing address, telephone number, and email address if available, 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 the appeal and attach a copy of the decision or order being appealed.
C. The request for appeal shall be accompanied by a fee which shall be the same as the appeal fee established for "Appeals to the City Council" as set forth in the city of Angels Master Fee Schedule under Planning Fees. (Ord. 514 §1 (Att. D), 2021)
1.19.090 City’s rejection of request for appeal.
The city administrator, or their designee, shall reject for filing any request for appeal that does not substantially comply with the requirements of Section 1.19.080, including, but not limited to, the payment of any required fee. The city administrator, or their designee, shall serve either by personal service or by first class certified mail, return receipt requested, a notice rejecting the appeal request to the appellant at the address specified in the request for appeal. The notice rejecting the appeal request 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 ten business days following the date the city mailed the notice rejecting the appeal request. The corrected request for appeal must be received by the city administrator or their designee on or before the tenth business day, or the appeal deadline is deemed expired. In such an event, the underlying departmental decision will be considered final, the alleged violations deemed admitted, and any accrued fines immediately due and payable. (Ord. 514 §1 (Att. D), 2021)
1.19.100 Setting hearing date, time, and place.
After the city administrator or their 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 days after such acceptance. (Ord. 514 §1 (Att. D), 2021)
1.19.110 Notice of hearing.
Notice indicating the time, place, and date of the administrative appeal hearing shall be served by the city administrator or 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 ten days prior to the hearing date. The notice, which shall be called the notice of hearing, shall include a list of alleged code violations and any procedures applicable to the hearing, including notice of when written testimony must be submitted to the hearing officer or city council. (Ord. 514 §1 (Att. D), 2021)
1.19.120 Procedures for conducting appeal hearings.
The hearing officer or city council is authorized to take testimony. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. However, each party 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 him, her or it. The city shall have the burden of proving the existence of the violation by a preponderance of evidence. The hearing officer or city council may promulgate by resolution additional rules and procedures for the conduct of appeal hearings. (Ord. 514 §1 (Att. D), 2021)
1.19.130 Continuing jurisdiction.
A continuance may be granted at the discretion of the hearing officer or city council. The hearing officer or city council shall continue to have jurisdiction over the subject matter of an administrative appeal for the purposes of granting a continuance, ensuring compliance with a quasi-judicial administrative appeal decision, modifying an administrative appeal decision, or, where extraordinary circumstances exist, granting a new hearing. The party requesting the continuance bears the burden of proof to demonstrate why a continuance should be granted, and the opposing party shall be given the opportunity to respond. (Ord. 514 §1 (Att. D), 2021)
1.19.140 Failure to appear at appeal hearing.
Failure of the appellant to either abate the conditions specified in the decision and/or citation(s) issued pursuant to Chapter 1.16, 1.17, or 1.18, and timely pay any accrued fines, 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 of the existence of the violations of the city of Angels Municipal Code as specified or referenced by the notice of hearing. In such an event, the underlying decision and/or allegations in the notice of violation and/or citation issued pursuant to Chapter 1.16, 1.17, or 1.18 become final. (Ord. 514 §1 (Att. D), 2021)
1.19.150 Appeal decision.
A. After considering all the testimony and evidence submitted at the appeal hearing, the hearing officer or city council shall issue a written appeal decision. The written appeal decision of the hearing officer or city council shall be issued as soon as practical and preferably within ten days of the close of the hearing.
B. The administrative appeal decision shall become final on the date the city administrator and/or his designee serves the appeal decision. The city administrator, or their designee, shall serve one copy on the appellant. The city administrator, or their designee, shall file a copy of the appeal decision with the person(s) whose decision is the subject of appeal. The appeal decision shall be served either by personal service or by first class certified mail, return receipt requested. (Ord. 514 §1 (Att. D), 2021)
1.19.160 Appeal of the decision of the hearing officer.
Any person aggrieved by a decision of a hearing officer made pursuant to this chapter may obtain review of the administrative decision by filing an appeal with the city council. The appeal shall follow the requirements and procedures set forth in this chapter. (Ord. 514 §1 (Att. D), 2021)
1.19.170 Decisions made by city council.
The procedures set forth under this chapter shall not apply to decisions made by city council. Decisions made by the city council are final and shall not be subject to appeal, except as otherwise provided in this code, state law, or by judicial proceedings in accordance with applicable law. (Ord. 514 §1 (Att. D), 2021)
1.19.180 Failure to comply with appeal decision.
A. After the hearing officer or city council issues an appeal decision, the code enforcement officer shall monitor violations and determine compliance.
B. Upon the failure of a party to comply with the terms and deadlines set forth in the appeal decision, the code enforcement officer may use all appropriate legal means to recover all civil penalties and administrative costs and to obtain compliance with the administrative appeal decision, which includes seeking an injunction. (Ord. 514 §1 (Att. D), 2021)
1.19.190 Deferral or waiver of appeal fees.
A. The city administrator, or his or her designee, may defer or waive the payment of a fee required for filing an appeal as specified in Section 1.19.080.
B. Any person who willfully provides the city administrator, or their designee, with false statements of material facts in an application for a fee deferral is guilty of a misdemeanor which shall be enforced pursuant to the provisions of Chapter 1.16, 1.17, or 1.18, as appropriate.
C. The decision of the city administrator, or his or her designee, on the deferral or waiver of fees shall be final and conclusive, and there shall be no appeal from this decision. (Ord. 514 §1 (Att. D), 2021)
1.19.200 Record of hearings.
The hearing officer or city council 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. 514 §1 (Att. D), 2021)
1.19.210 Judicial review, ninety-day limit.
A. Once an order becomes final as provided in this chapter, any person directly aggrieved by the appeal decision must first pay the full amount owed to the city plus any applicable penalties and interest. The aggrieved individual then may seek judicial review of the decision by filing a petition for review with the Calaveras County Superior Court.
B. Judicial review of any decision that is subject to the provisions of this chapter and Code of Civil Procedure Section 1094.6 may be had only if the petition for judicial review is filed within ninety days after the decision becomes final; provided, that pursuant to the provisions of Code of Civil Procedure Section 1094.6(d), if the petitioner files a request for the record within ten days after the date the decision becomes final, the time within which a petition for judicial review may be filed shall be extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed by first class certified mail, return receipt requested, to the petitioner or his attorney of record, as applicable. (Ord. 514 §1 (Att. D), 2021)
1.19.220 Record preparation--Costs.
A. As provided in Code of Civil Procedure Section 1094.6, any person who requests preparation of the administrative record shall be responsible for payment of the actual costs of transcribing or otherwise preparing the record. Actual costs shall include, but not be limited to, the salary and fringe benefit rates of pay by the city to personnel for time consumed in typing a transcript and reproducing, assembling and compiling the transcript and exhibits; the unit cost (including prorated rental) of equipment utilized in reproduction; the cost of materials and supplies; and the cost to the city of having a transcript typed when testimony has been recorded by a court reporter.
B. Before commencing preparation of a transcript or other record, the officer or employee responsible for preparation shall estimate the actual total cost. Preparation of the record shall not be commenced until the person requesting preparation of the record has deposited the full amount of the cost estimate.
C. If the deposit exceeds the actual cost, the difference shall be refunded. If the actual cost exceeds the estimate, the difference shall be paid when the record is delivered.
D. The limitations of action period shall not be extended, pursuant to the provisions of Code of Civil Procedure Section 1094.6(d) or this section, beyond ninety days after the decision becomes final, unless the petitioner deposits pursuant to the provisions of subsection B of this section the estimated actual total cost of preparing the transcript within ten days after he has been furnished with the written estimate of such cost. (Ord. 514 §1 (Att. D), 2021)
1.19.230 Severability.
If any section, subsection, sentence, clause, phrase or other part of this chapter is for any reason held to be unconstitutional or otherwise invalid such decision shall not affect the validity of the remaining portions of this chapter. The city of Angels city council declares that it would have enacted this chapter and each section, subsection, sentence, clause and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases or other parts be declared unconstitutional or otherwise invalid. (Ord. 514 §1 (Att. D), 2021)