(a) Members. The City Wastewater Appeals Board (CWAB) shall consist of the Chief Legal Officer, the City Risk Manager and the City Director. If there is a vacancy in any of these three offices, the City Administrator shall appoint an employee of the department or functional group where the vacancy occurred to serve as the CWAB member on a temporary basis until the vacancy is filled. If possible, the temporary appointee shall complete any pending appeals that arise during the duration of the temporary appointment. The Chief Legal Officer may designate an Assistant City Attorney to sit on the CWAB. If the City changes the title or function of the foregoing positions, then the CWAB will have as members the three City employees with functions most closely related to those positions. Each of those three members shall have one vote in any matter decided by the CWAB.
(b) Special expert members. At the request of a user or on its own initiative, the CWAB may retain a person with expertise in the general subject matter of the user’s appeal (“special expert member”) to provide advice to the CWAB. The special expert member shall have no vote in the proceedings. If the special expert member is requested by the user, the user may suggest one or more persons to serve as a special expert member and shall describe their qualifications, but the CWAB shall have sole discretion in choosing the special expert member. All costs, fees and expenses associated with choosing, selecting and retaining a special expert member requested by the user shall be paid by the user. The CWAB may require the user to pay these costs in advance. The City shall bear the cost of any special expert member retained on the initiative of the CWAB. The CWAB, at its discretion, may agree to share any percentage of the cost of retaining a special expert member. No person shall serve as a special expert member who has, within the preceding five years, been an employee of the user or the City, unless agreed to by both the user and the City.
(1) A user may appeal to the CWAB any notice of violation, order, compensatory charge, action on or regarding a use permit by the City, or 60-day inaction (but not a municipal civil infraction notice as defined in Chapter 1, § 1-12 of the ordinances of the City of Flint) by filing a written request with the CWPCS within 20 days after the later of:
a. Ten days after the completion of the informal conference; or
b. The date the notice of violation, order, notice of compensatory charge, action on or regarding a use permit by the City is served upon the user or upon the occurrence of the 60-day inaction.
(2) The written request shall describe the matter appealed, a summary of the user’s position, a copy of the notice or other document from the City upon which the appeal is based, and any request by the user for a special expert member. No appeal may be taken to the CWAB of any action or decision which is specified in this division as being within the sole discretion of the City Director, as stated in §§ 46-146(b)(12); 46-146(d); 46-146(f); 46-147; and 46-162(b).
(3) The CWPCS shall promptly forward the written request for appeal to the Chief Legal Officer who shall notify the other members of the CWAB. The CWAB may reject any written request for appeal which is not timely and does not conform to the requirements of this section. Upon receipt of a timely and conforming written request for appeal, the CWAB shall set a time for the City and the user to appear before the CWAB to present evidence and arguments in support of their positions. The user and the City may present witnesses and documentary evidence to the CWAB. Witnesses shall be sworn and shall be subject to cross-examination. The proceedings of the CWAB shall be recorded. The rules of evidence of the courts of the State of Michigan shall not be strictly applied by the CWAB but shall be a guide for the CWAB in determining which evidence to admit or exclude and what weight to give the evidence admitted. On receipt of a request for an appeal, the CWAB shall establish a timetable for the proceedings and shall promptly render a written decision stating its findings of fact and conclusions supporting its decision.
(d) Costs. If the user requests a transcript of the proceedings, the user shall pay the cost of preparing the transcript and shall provide a copy to the City. The user and the City shall pay their own costs of the CWAB proceeding, including but not limited to attorney fees, expert witnesses (except that the costs for special expert members shall be paid as set forth in subsection (a) of this section), other witnesses, documents and tests. The user requesting the appeal to the CWAB shall pay a fee as established from time to time by resolution of the City Council and kept on file by the City Clerk. If the CWAB finds that the user filed a frivolous appeal, or in bad faith, which has no reasonable basis in fact or law, the CWAB may assess the user for all of the costs of the CWAB and the City in connection with the appeal and the user shall pay the same within 30 days.
(e) Representatives of parties. The parties may be represented by attorneys in all proceedings before the CWAB.
(Ord. 3630, passed 12-13-2004; Ord. 3741, passed 11-19-2008)