(A) Issuance of a notice of violation, assessment of a civil penalty, cease and desist order and/or compliance order.
(1) The issuance of a notice of violation or notice of assessment of a civil penalty by the City of Locust shall entitle the person responsible for the violation of this chapter (“petitioner”) to a public hearing before the Stormwater Advisory Committee (“Committee”), if that person submits a written demand for a hearing to the clerk of the Committee (“clerk”) within 30 days of the receipt of the notice. The demand for a hearing filed with the clerk shall be accompanied by a filing fee as established by the Committee. In the demand for a hearing on a civil penalty assessment, the petitioner must state separately each reason why the penalty should not be assessed, or, if the petitioner contends that the civil penalty was assessed in an improper amount, each reason why the amount of the penalty is improper. Each assessment of a civil penalty that has been included in a demand for a hearing in accordance with this section is stayed and shall not take effect until the earliest occurrence of any one of the following circumstances: the assessment of the civil penalty is approved or is modified by the Committee; or the petitioner and the City of Locust agree on the assessment of the civil penalty. Failure to timely file the demand and fee shall constitute a waiver of any rights to appeal under this chapter, and the Committee shall have no jurisdiction to hear the appeal.
(2) The issuance of a cease and desist order and/or compliance order by the City of Locust shall entitle a petitioner to a public hearing before the Committee, if the petitioner submits written demand for a hearing to the clerk within the following schedule:
(a) Within ten days of the receipt of a cease and desist order issued pursuant to § 51.08(G);
(b) Within 20 days of the receipt of a compliance order issued pursuant to § 51.08(F).
(3) In the demand for a hearing on the issuance of such an order, the petitioner must identify separately each provision of the order that is improper and every basis for such contention. Each provision of an order that has been included in a demand for a hearing in accordance with this section is stayed and shall not take effect until the earliest occurrence of any one of the following circumstances: such provision is approved or is modified by the Committee; or the petitioner and the City of Locust agree on the terms of the order. This division shall not be construed to stay any section of this chapter or other applicable law.
(4) The demand for a hearing filed with the clerk shall be accompanied by a filing fee as established by the Committee. Failure to timely file the demand and fee shall constitute a waiver of any rights to appeal under this chapter, and the Committee shall have no jurisdiction to hear the appeal.
(5) Within five days of receiving the petitioner’s demand for a hearing, the clerk shall notify the chairman of the Committee (“chairman”) of the request for hearing. As soon as possible after the receipt of the notice, the chairman shall set a time and place for the hearing and notify the petitioner by mail of the date, time and place of the hearing. The time specified for the hearing shall be either at the next regularly scheduled meeting of the Committee from the submission of the notice, or as soon thereafter as practical, or at a special meeting. The hearing shall be conducted pursuant to the provisions of § 51.09(B) of this chapter.
(6) Any party aggrieved by the decision of the Committee with regard to the issuance of a notice of violation, notice of assessment of a civil penalty, cease and desist order or compliance order shall have 30 days from the receipt of the decision of the Committee to file a petition for review in the nature of certiorari in Superior Court with the Clerk of Stanly/Cabarrus County Superior Court.
(B) Hearing procedure. The following provisions shall be applicable to any hearing conducted by the Committee pursuant to § 51.09
(A).
(1) At the hearing, the petitioner and the City of Locust shall have the right to be present and to be heard, to be represented by counsel, and to present evidence through witnesses and competent testimony relevant to the issue(s) before the Committee.
(2) Rules of evidence shall not apply to a hearing conducted pursuant to this chapter, and the Committee may give probative effect to competent, substantial and material evidence.
(3) At least seven days before the hearing, the parties shall exchange a list of witnesses intended to be present at the hearing, and a copy of any documentary evidence intended to be presented. The parties shall submit a copy of this information to the clerk. Additional witnesses or documentary evidence may not be presented, except upon consent of both parties or upon a majority vote of the Committee.
(4) Witnesses shall testify under oath or affirmation to be administered by the court reporter or another duly authorized official.
(5) The procedure at the hearing shall be such as to permit and secure a full, fair and orderly hearing and to permit all relevant, competent, substantial and material evidence to be received therein. A full record shall be kept of all evidence taken or offered at the hearing. Both the representative for the City of Locust and for the petitioner shall have the right to cross-examine witnesses.
(6) At the conclusion of the hearing, the Committee shall render its decision on the evidence submitted at the hearing and not otherwise.
(a) If, after considering the evidence presented at the hearing, the Committee concludes by a preponderance of the evidence that the grounds for the City of Locust’s actions (including the amount assessed as a civil penalty), with regard to either issuing a notice of violation, assessing a civil penalty, issuing a cease and desist order, or issuing a compliance order, are true and substantiated, the Committee shall uphold the action on the part of the City of Locust.
(b) If, after considering the evidence presented at the hearing, the Committee concludes by a preponderance of the evidence that the grounds for the City of Locust’s actions (including the amount assessed as a civil penalty) are not true and substantiated, the Committee shall, as it sees fit, either reverse or modify any order, requirement, decision or determination of the City of Locust. The Committee will determine the number of concurring votes needed to reverse or modify any order, requirement, decision or determination of the City of Locust. If the Committee finds that the violation has occurred, but that, in setting the amount of a penalty or setting order directives, the City of Locust has not considered or given appropriate weight to either mitigating or aggravating factors, the Committee shall either decrease or increase the civil penalty per day within the range allowed by this chapter, or modify order directives, as appropriate to the case. Any decision of the Committee that modifies the amount of the civil penalty or an order directive shall include, as part of the findings of fact and conclusions of law, findings as to which mitigating or aggravating factors exist, and the appropriate weight that should have been given to such factors by the City of Locust in setting the amount of the civil penalty or in issuing orders.
(7) The Committee shall keep minutes of its proceedings, showing the vote of each member upon each question and the absence or failure of any member to vote. The decision of the Committee shall be based on findings of fact and conclusions of law to support its decision.
(8) The Committee shall send a copy of its findings and decision to the applicant/petitioner and City of Locust Stormwater. If either party contemplates an appeal to a court of law, the party may request and obtain, at that party’s own cost, a transcript of the proceedings.
(9) The decision of the Committee shall constitute a final decision.
(Ord. passed 10-8-2015)