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A. Grounds: Any person receiving an administrative citation may appeal the administrative citation to the hearing officer. Only the following issues may be appealed to the hearing officer:
1. The person charged in the administrative citation as the responsible person is not the "responsible person" as defined by this chapter.
2. The condition described as a nuisance in the administrative citation is not a "nuisance" as defined by this chapter.
3. The method required by the administrative citation to abate the nuisance is inappropriate or is not the most cost effective method of effectively correcting or abating the nuisance.
4. The time period given to abate the nuisance in the administrative citation is unreasonable.
5. The monetary fine set forth in the administrative citation is not consistent with the provisions of subsection 4-2-10B of this chapter.
6. The zoning administrator refused to approve a corrective action that met the requirements of the administrative citation.
7. The responsible person claims that the requirement(s) of the administrative citation violates his/her constitutional rights.
B. Filing: The person desiring to appeal must file a notice with the city manager within ten (10) days of receipt of the administrative citation (within 15 days of the mailing date if the administrative citation is mailed). Failure to request an appeal hearing as provided shall constitute a waiver to such hearing and a waiver of the right to appeal.
C. Hearing: The hearing before the hearing officer shall be informal according to rules and procedures established by the hearing officer. The appellant may, but is not required to, bring an attorney or other representative to assist him or her. The appellant and the zoning administrator may each call witnesses at the hearing. The hearing officer may, with or without the parties present, visit the site of the alleged nuisance. If the hearing officer allows the parties at the site visit, both parties must be given the opportunity to be present. The hearing shall be scheduled by the hearing officer within thirty (30) days from the date the notice of appeal is filed with the city.
D. Burden Of Proof: The appellant shall have the burden of proof to demonstrate by a preponderance of the evidence that he/she had legitimate grounds for an appeal. The determination of the zoning administrator as to the need for the required corrective action shall be accorded substantial weight by the hearing officer in determining the reasonableness of the corrective action.
E. Authority Of Hearing Officer: The hearing officer shall have authority to affirm or vacate the administrative citation, or to modify or waive specific provisions of the administrative citation. If the appellant fails to attend the hearing, the hearing officer shall affirm the administrative citation. The hearing officer shall not vacate the administrative citation unless he/she finds that no nuisance exists. The hearing officer shall modify the administrative citation if he/she finds that a nuisance exists, but that one or more of the requirements of the administrative citation is improper or inappropriate. A requirement is improper if it is contrary to this chapter. A requirement is inappropriate if the hearing officer finds that there is a better means of resolving the problem or that the proposed solution is inappropriate given the nature or severity of the problem. When determining whether to waive or modify a requirement of the administrative citation, the hearing officer may also consider:
1. Whether the appellant responded to the zoning administrator's attempts to contact the appellant and cooperated with efforts to correct the nuisance;
2. Whether the appellant has shown due diligence and/or substantial progress in correcting the nuisance;
3. The financial ability of the appellant and the amount, if any, that the appellant has benefited financially by maintaining the nuisance;
4. Any other relevant factors.
If the appellant appeals the zoning administrator's refusal to approve appellant's corrective action, the hearing officer shall visit the site and determine if the appellant complied with the requirements of the administrative citation.
F. Order: The hearing officer shall issue a written order to the appellant and the city notifying them of his/her decision. The order shall include the hearing officer's findings of fact and ultimate decision. If the hearing officer modifies or waives provisions of the administrative citation, the order shall specify which portions are modified and how they are modified. The hearing officer shall mail a copy of the order to the appellant and the city within five (5) working days of the close of the hearing.
G. Appeal To District Court: Either the city or the appellant may appeal the hearing officer's order by filing a petition for review of the order. The petition must be filed in the 4th district court within thirty (30) calendar days from the date the hearing officer's order was mailed to the appellant. In the petition, the plaintiff may only allege that the hearing officer's order was arbitrary, capricious, or illegal. The hearing officer shall transmit to the reviewing court the record of its proceedings, including any minutes, findings, orders and, if available, a true and correct transcript of its proceedings. If, in the opinion of the district court, there is a sufficient record to review the hearing officer's order, the court's review is limited to the record provided by the hearing officer. The district court may not accept or consider any evidence outside of the hearing officer's record unless the evidence was offered to the hearing officer and the court determines that it was improperly excluded by the hearing officer. If, in the opinion of the district court, there is not a sufficient record to review the hearing officer's order, the court may call witnesses and take evidence. No petition or appeal may be filed in district court unless the responsible person first appeals to the hearing officer pursuant to the terms set forth in this chapter. (Ord. 04-02-2013A, 4-2-2013)