8-10-9: APPEAL HEARING PROCEDURES:
   A.    Notice Of Appeal: A person who is aggrieved by action may appeal the action as provided in the applicable provisions of this code. Such appeal shall be made by serving a written notice of appeal specifically setting forth the grounds of appeal. The aggrieved person shall appeal any action within twenty eight (28) days of the official action or signed order of decision to be in compliance with this title.
   B.    Setting Date Of Hearing; Notice: Upon receipt of the notice of appeal, the code administrator shall inform the appropriate hearing body of the appeal and set a date for a hearing on the appeal. They shall provide written notice of the time and place of the hearing to the hearing body, to the appellant, and to any persons who have lodged verbal or written complaints in the matter who have indicated that they wished to receive such notice at least twenty eight (28) days prior to the hearing.
   C.    Standard Of Review; Burden Of Proof: Appeals shall be based upon the grounds set forth in the written notice of appeal and shall be heard and acted upon by the hearing body in a de novo proceeding. The burden of proof shall fall upon the appellant to establish, by a preponderance of the evidence, that the action was erroneous.
   D.    Conduct Of Hearing: The following rules shall govern the conduct of all hearings of appeals of an administrative decision or the issuance of a notice of violation:
      1.    Appeal hearings shall be open to the public according to the provisions of the Idaho open meetings law, Idaho Code section 67-2340 et seq., but shall not be considered "public hearings" under the local land use planning act, Idaho Code section 67-6501 et seq., and this chapter.
      2.    The appeal hearing shall be informal and the Idaho rules of evidence shall not apply. The appellant may be represented by counsel and present testimony and evidence at the hearing, except that submission of new evidence not presented during the application process shall be admitted only at the discretion of the appeals body. The planning commission or mayor shall regulate the course of the proceedings to assure that there is a full disclosure of known relevant facts and issues.
      3.    Testimony and submission of evidence shall be limited to the appellant, representatives of the appellant, and other affected persons as defined in section 8-1-3 of this title. As a general rule, the following order of presentation should be observed:
         a.    Introduction of appeal by staff;
         b.    Appellant's case in chief;
         c.    Testimony and/or evidence in support of the appellant;
         d.    City's case in chief;
         e.    Testimony and/or evidence in support of the city;
         f.    Affected persons' case in chief; and
         g.    Appellant's rebuttal.
      4.    A transcribable record of the appeal hearing in its entirety shall be made by mechanical, electronic or other means. Any party may cause additional recordings to be made during the hearing if the making of the additional recording does not cause distraction or disruption. Any party may request preparation of a transcript of the hearing. Any transcript prepared at the request of the council or the planning commission shall be at city expense. Any transcript prepared at the request of any other party shall be at that party's expense. Expenses for any transcript prepared for purposes of judicial review shall be paid in accordance with rule 84 of the Idaho rules of civil procedure.
      5.    At the close of the appeal hearing, the hearing body may take action on the appeal, or may take the appeal under advisement for a period not to exceed fourteen (14) days. If the appeal is taken under advisement by the planning commission, the planning commission shall issue a written recommendation to the council within fourteen (14) days after the conclusion of the hearing. If the appeal is taken under advisement by the council, the council shall issue a written decision within fourteen (14) days after the conclusion of the hearing.
   E.    Action On Appeal:
      1.    The planning commission may recommend that the action be affirmed, reversed or modified based on substantial and competent evidence presented at the hearing.
      2.    After receiving a recommendation from the planning commission, the final decision on the appeal shall be made by the council. The council may summarily issue a final decision approving the recommendation from the planning commission after conducting deliberations on the matter, or may conduct an additional de novo appeal hearing prior to making a final decision.
      3.    If an additional hearing is held before the council, the council may affirm, reverse or modify the action based on substantial and competent evidence presented at the hearings held before the planning commission and the council. In the event the council finds that the action was erroneous, it may reverse or modify the action, or it may remand the matter to the code administrator or planning commission for further proceedings, as may be appropriate.
      4.    The recommendation to the council by the planning commission, and the decision of the council on appeal, shall be in writing, shall include a concise and explicit statement of the underlying facts of record, and shall include a reasoned statement in support of the decision. All parties to the appeal shall be provided with a copy of the recommendation and/or decision.
      5.    The decision of the council on appeal shall be binding upon the applicant/appellant. If the action is reversed, the code administrator shall comply with the decision of the council upon expiration of the time for filing of a petition for judicial review with the district court, or such longer period as the council may permit.
      6.    If the council remands the matter to the code administrator or planning commission for further proceedings, the decision of the council shall specify the actions to be taken by the code administrator or planning commission on remand. (Ord. 159, 6-9-2010)