A. Appeal; Request For Hearing:
1. Civil Violation: A person to whom a notice of civil violation is issued pursuant to section 1-13-6 of this title (the "appellant") may appeal such notice or order to the hearing examiner within ten (10) calendar days after the date the notice of civil violation is served as determined in accordance with section 1-13-3 of this title; provided that, a notice of civil violation issued for a violation of title 11, chapter 6, "Shoreline Master Program", of this code, or any rule or regulation adopted pursuant to title 11, chapter 6, "Shoreline Master Program", of this code, or any project permit or approval issued or granted pursuant to title 11, chapter 6, "Shoreline Master Program", of this code, may be appealed in accordance with the time period set forth in chapter 90.58 Revised Code Of Washington, as now or may hereafter be amended.
2. Civil Regulatory Order: A person to whom a civil regulatory order is issued pursuant to section 1-13-7 of this title (the "appellant") may appeal such notice or order to the hearing examiner within ten (10) calendar days after the date the notice of civil regulatory order is served as determined in accordance with section 1-13-3 of this code.
3. Final Determination Of Noncompliance: A person to whom a final determination of noncompliance has been issued pursuant to subsection 1-13-5D of this title (the "appellant") may appeal such determination within ten (10) calendar days after the date the notice of final determination of noncompliance is served as determined in accordance with section 1-13-3 of this title.
4. Other Notice, Order Of Decision: A person who has been served with a notice or order not listed above and for which monetary penalties may be imposed or for which the right to an appeal to the city hearing examiner is otherwise provided pursuant to this code (the "appellant"), and any person affected by an enforcement decision of a code enforcement officer for which the right to file an appeal to the city hearing examiner is otherwise provided pursuant to this code (the "appellant"), may appeal such notice or order within ten (10) calendar days after the date the notice or order is served or the decision being appealed becomes a final decision, unless another time period or procedure for appeal is set forth in this code, in which case such time period and procedures shall apply.
5. Failure To Timely File Complete Notice: The hearing examiner shall not have jurisdiction to hear an appeal that is not filed within the time periods set forth above or that is not signed as required in subsection B of this section. If the final day to file an appeal is on a weekend or holiday, the appeal will be timely if filed before the close of business on the next business day following the holiday or weekend. For purposes of this section, "holiday" shall mean those weekdays during which the city offices are closed for established holidays. The hearing examiner shall have jurisdiction to hear an appeal that does not otherwise meet the requirements of subsection B of this section, provided that, the appellant corrects the deficiencies in the notice of appeal and request for hearing prior to the conclusion of the hearing, or at such earlier time as ordered to do so by the hearing examiner. The city may seek an order from the hearing examiner compelling the appellant to correct the deficiencies in the notice of appeal prior to commencement of the hearing.
B. Content Of Notice; Filing:
1. Notice Of Civil Violation: A notice of appeal of a notice of civil violation and request for hearing shall be filed in writing with the city clerk, or designee, or the office of the city administrator, during regular business hours by the appellant or, in the case of a corporation, a duly authorized agent of the appellant. The written notice of appeal and request for hearing shall identify with specificity: a) the name of the appellant, b) the mailing address at which the appellant may receive notices related to the hearing, c) the notice of civil violation sought to be appealed, d) the violation or violations being appealed, and e) a statement identifying the relief the appellant is seeking from the hearing examiner. If the notice of civil violation is combined with a civil regulatory order, the notice of appeal and request for hearing must also comply with subsection B2 of this section. The notice of appeal must be signed by the person to whom the notice was issued. If the notice was issued to an entity, the notice must be signed by an officer or other person authorized to act for and on behalf of the entity.
2. Civil Regulatory Order: A notice of appeal of a civil regulatory order and request for hearing shall be filed in writing with the city clerk, or designee, or the office of the city administrator, during regular business hours by the appellant, or, in the case of a corporation, a duly authorized agent of the appellant. The written notice of appeal and request for hearing shall identify with specificity: a) the name of the appellant, b) the mailing address at which the appellant may receive notices related to the hearing, c) the civil regulatory order sought to be appealed, d) the portion of the order that the appellant alleges are in error, e) the error(s) of law and/or error(s) of fact that form the basis for the appeal, f) a separate and concise statement of each error alleged to have been committed, g) a concise statement of facts upon which the appellant relies to sustain the statement of error, and h) a statement identifying the relief the appellant is seeking from the hearing examiner. If the civil regulatory order is combined with notice of civil violation, the notice of appeal and request for hearing must also comply with subsection B1 of this section. The notice of appeal must be signed by the person to whom the notice was issued. If the notice was issued to an entity, the notice must be signed by an officer or other person authorized to act for and on behalf of the entity. The filing of such an appeal shall not alter the time for compliance unless modified by the hearing examiner following a hearing.
3. Final Determination Of Noncompliance: A notice of appeal of a final determination of noncompliance and request for hearing shall be filed in writing with the city clerk, or designee, or the office of the city administrator, during regular business hours by the appellant, or, in the case of a corporation, a duly authorized agent of the appellant. The written notice of appeal and request for hearing shall identify with specificity: a) the name of the appellant, b) the mailing address at which the appellant may receive notices related to the hearing, c) the final determination of noncompliance sought to be appealed, d) the error(s) of law and/or error(s) of fact that form the basis for the appeal, and e) a statement identifying the relief the appellant is seeking from the hearing examiner. The notice of appeal must be signed by the person to whom the notice was issued. If the notice was issued to an entity, the notice must be signed by an officer or other person authorized to act for and on behalf of the entity.
4. Other Orders Or Notices: The following applies to appeal of a notice, order or enforcement decision that is not a notice of violation or civil regulatory order but for which an appeal is provided for under this chapter. A notice of appeal of issuance of a notice of violation shall include the information required for appeal of a notice of civil violation. A notice of appeal of issuance of an order or other enforcement decision for which there is a right to an appeal shall include the information required for appeal of a civil regulatory order. The notice of appeal must be signed by the person to whom the notice was issued. If the notice was issued to an entity, the notice must be signed by an officer or other person authorized to act for and on behalf of the entity.
C. Hearing To Be Scheduled: The city clerk, or designee, or the office of the city administrator, will schedule a hearing before the hearing examiner not less than ten (10) days but no more than forty five (45) days after the notice of appeal and request for hearing is filed with the city in accordance with subsection B of this section. Extensions may be granted by the hearing examiner for good cause shown or when there is mutual agreement of the parties. The failure to schedule or commence a hearing within the above stated time period shall not be grounds for granting the relief requested by the appellant.
D. Type Of Hearing: An appeal of a notice of violation shall be considered a type A adjudicative contested hearing. An appeal of a civil regulatory order or a final determination of noncompliance or an enforcement decision of a code enforcement officer shall be considered a type B hearing. The fact that a civil regulatory order and a notice of violation have been combined shall not alter the type of hearing or procedures that apply; provided however that, the hearing examiner shall have broad discretion to establish additional procedures that will enable the fair, efficient and orderly conduct of the two (2) hearing types.
1. Type A Hearing; Procedure: A type A hearing is a hearing to contest the existence and/or responsibility for the violation or violations that are subject to the appeal.
The hearing examiner shall conduct an adjudicative hearing on the appeal pursuant to the rules of procedure of the hearing examiner. The city and the appellant shall be the parties in the hearing and each party may call witnesses and may be represented by legal counsel. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that violation or violations that are the subject of the appeal has or have occurred and that the appellant is the person responsible for compliance.
2. Type B Hearing; Procedure: A type B hearing is a hearing to determine whether or not the civil regulatory order or a final determination of noncompliance or enforcement decision was issued in error based upon one or more of the following:
a. Issued in excess of the authority or jurisdiction of the city or code enforcement officer; or
b. Made upon unlawful procedure; or
c. Affected by material error of law or fact; or
d. Clearly erroneous in view of the entire record as submitted; or
e. Order or determination was arbitrary or capricious.
The city and the appellant shall be the parties in the hearing and each party may call witnesses and may be represented by legal counsel. The appellant shall have the burden of proof to demonstrate by a preponderance of the evidence the claimed errors of law and/or errors of fact. The hearing examiner shall give substantial weight to any discretionary decision, or any construction of this code, rendered by the code enforcement officer or department director pursuant to this chapter/title.
E. Stay Of Action Pending Appeal: An appellant may request the hearing examiner to stay or suspend an action by the city to implement the decision under review pending the outcome of the administrative appeal. The request must set forth a statement of grounds for the stay and the factual basis for the request. The hearing examiner may grant a stay only if the hearing examiner finds that:
1. The party requesting the stay is likely to prevail on the merits;
2. Without the stay the party requesting it will suffer irreparable harm;
3. The grant of a stay will not substantially harm other parties to the proceedings; and
4. The request for the stay is timely in light of the circumstances of the case.
The hearing examiner may grant the request for a stay upon such terms and conditions, including the filing of security, as are necessary to prevent harm to other parties by the stay.
F. Decision Of The Hearing Examiner:
1. Determination; Type A: The hearing examiner shall determine whether the city has established by a preponderance of the evidence that the violation or violations subject to the appeal has or have occurred and shall affirm or vacate the city's decision regarding such violation or violations. If the hearing examiner affirms the decision of the city, the hearing examiner shall impose the penalties as set forth in the notice of violation, or such other penalties as the hearing examiner determines are reasonable and just and in conformance with this chapter.
2. Determination; Type B: The hearing examiner shall determine whether the appellant has established by a preponderance of the evidence that the city committed one or more errors under subsections D2a through D2e of this section. The examiner may: a) affirm the decision of the code enforcement officer, b) remand the matter back to the code enforcement officer for further action consistent with the decision of the hearing examiner, c) reverse the order or determination if the substantial rights of the appellant may have been prejudiced because the order or determination was in violation of one or more factors set forth in subsections D2a through D2e of this section, or d) modify the order or decision to the extent necessary to correct the error.
3. Need For Corrective Action: The determination of the applicable code enforcement officer and/or department director as to the need for the required corrective action shall be accorded substantial weight by the hearing examiner in determining the reasonableness of the required corrective action.
4. Issue Order: The hearing examiner shall issue an order to the parties which contains the following information:
a. The decision regarding the matter being appealed including findings of fact and conclusions based thereon in support of the decision; and/or
b. The required corrective action; and/or
c. The date and time by which the correction must be completed; and/or
d. The monetary penalties assessed.
5. Notice Of Decision: The hearing examiner shall mail a copy of the decision to the appellant and the applicable city official within ten (10) working days of the hearing.
G. Failure To Appear: If the appellant fails to appear at the scheduled hearing, the examiner shall enter an order of dismissal of the appeal.
H. Failure To Comply: It shall be unlawful to fail to comply with a final nonappealable decision of the hearing examiner. For purposes of this section, nonappealable means that all administrative and judicial appeals have been exhausted.
I. Appeal:
1. Final Decision: Except as provided below, the decision of the hearing examiner shall be a final decision. A party aggrieved by a decision of the hearing examiner may appeal or seek review of the decision in accordance with applicable law.
2. City Council Review: The decision of the hearing examiner upon an appeal of a notice of civil violation issued for a violation of title 11, chapter 6 of this code, or any rule or regulation adopted pursuant to title 11, chapter 6 of this code, or any project permit or approval issued or granted pursuant to title 11, chapter 6 of this code, may be appealed to the city council. The notice of appeal and hearing on appeal shall be governed by the procedures set forth herein for a type B appeal. The city council shall be the hearing body and shall determine whether or not the appellant has established by a preponderance of the evidence that the decision of the hearing examiner was issued in error based upon one or more factors under subsections D2a through D2e of this section. The city council may: a) affirm the decision of the hearing examiner, b) remand the matter back to the hearing examiner or code enforcement officer for further action consistent with the decision of the city council, c) reverse the order or determination of the hearing examiner if the substantial rights of the appellant may have been prejudiced because the order or determination was in violation of one or more factors set forth in subsections D2a through D2e of this section, or d) modify the order or decision of the hearing examiner to the extent necessary to correct the error.
J. Subsequent Repeat Violation; Failure To Abate; Misdemeanor: The commission of a subsequent violation or the failure or refusal to abate a violation pursuant to an order of the hearing examiner after receipt of written notice of such order shall constitute a misdemeanor. The city attorney, or his or her designee, shall, at his or her discretion, have authority to file a subsequent violation as either a civil violation pursuant to this chapter, or a civil infraction or a misdemeanor. (Ord. 912, 9-14-2011)