(A) Payment of appeal fee.
(1) Any person, corporation, or entity seeking to appeal a notice and order shall be required to pay to the city, at the time the appeal is requested, a nonrefundable appeal fee to be set by resolution of the City Council. The appeal fee is intended to cover the costs, expenses, and city employees' time incurred by the city in processing, preparing for, and hearing of the appeal. No appeal request is valid unless accompanied by the appeal fee or a city hardship waiver is granted.
(2) Hardship waiver. If the appealing party establishes to the satisfaction of the Director of Finance or designee, by means of tax returns, pay stubs or other similar documentary evidence, and submits a declaration under penalty of perjury that paying the appeal fee would cause undue financial hardship to the appealing party, the Director of Finance may grant a waiver of the appeal fee. The Director of Finance's determination is not appealable and shall be final as to the hardship waiver request.
(B) Hearing body. The appeal shall be heard by an Appeals Board. The Planning Commission, in accordance with § 32.35(F) of this Code of Ordinances, shall act as the Appeals Board. Members of the Appeals Board shall not have had any responsibility for the investigation, prosecution or enforcement of nuisances under this chapter and shall not have had any personal involvement in the appeal to be heard within the past 12 months.
(C) Setting appeal hearing. The Appeal Board hearing shall be set in accordance with the regularly scheduled Planning Commission meeting, but shall be opened as a separate and distinct body. The notice of the appeal hearing shall be sent to the appellant by first class mail at the address provided with the written appeal request. The appeal hearing shall be set for a date no sooner than 20 days following a request for an appeal hearing. Notice of the appeal hearing shall be mailed at least 15 days before the date set for hearing.
(D) Conduct of appeal hearing.
(1) Testimony at the hearing. At the time set for the appeal hearing, the Appeals Board shall proceed to hear testimony from the representative of the city, the appellant, and any other competent persons with respect to the determination of a violation and nuisance or the imposition of an administrative penalty.
(2) Record of oral evidence at hearing. The proceedings at the hearing shall be reported by a tape recording. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the requesting party's own expense.
(3) Continuances. The Chairperson of the Appeals Board may, upon request of the person, corporation, or entity against whom a penalty is to be imposed, or upon request of the city, grant continuances from time to time for extreme or unusual cause shown, or upon the Appeals Board's own motion.
(4) Oaths; certification. The Chairperson of the Appeals Board or certified shorthand reporter shall administer the oath or affirmation.
(5) Evidence rules. Cal. Gov't Code § 11513(a), (b), and (c) shall apply to all administrative hearings. At the Appeals Board Chairperson's sole discretion, other relevant evidence may be admissible and hearsay evidence may be used for the purpose of supplementing and explaining other evidence.
(6) Burden of proof. The accuracy of the notice and order containing the description of the violations and/or public nuisance and the actions required to abate such nuisance or violation is deemed a rebuttable presumption and the burden is on the appellant to provide such facts and information to overcome such presumption by a preponderance of the evidence.
(7) Rights of parties.
(a) Each party shall have the following rights among others: To call and examine witnesses on any matter relevant to the issues of the hearing; to introduce documentary and physical evidence; to cross-examine opposing witnesses on any matter relevant to the issues of the hearing; to impeach any witness regardless of which party first called that witness to testify; to rebut the evidence against him or her; to represent himself or herself or to be represented by anyone of his or her choice.
(b) If a party does not proficiently speak or understand the English language, that party may provide an interpreter, at that party's own cost, to translate for the party. An interpreter shall not have been a resident of the premises or have had any personal relationship with or involvement in the parties or issues of the case prior to the hearing.
(8) Official notice. In reaching a decision, the Appeals Board may take official notice, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or which may appear in any of the official records of the city or county or any of their departments.
(9) Inspection of the premises.
(a) An Appeals Board member may inspect the premises involved in the hearing prior to, during, or after the hearing, provided that: Notice of such inspection shall be given to the parties before the inspection is made; the parties consent and are given an opportunity to be present during the inspection; and the Appeals Board member shall state for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, upon completion of the inspection, the material facts observed and the conclusions drawn there from.
(b) Each party shall then have a right to rebut or explain the matters so stated by the Appeals Board member either for the record during the hearing or by filing a written statement after the hearing for inclusion in the hearing record.
(c) Notice to the parties or the owners' consent to inspect the building and surrounding properties is not required if the property can be inspected from areas in which the general public has access or with permission of the other persons authorized to provide access to the property on which the building is located.
(E) Form and contents of the decision; finality of decision.
(1) Format of Appeals Board decision. The Appeals Board shall issue a written decision containing findings of fact and a determination of the issues presented. The Appeals Board may affirm or reverse the notice of violation or the notice and order imposed by the city. The Appeals Board may not reduce, waive or conditionally reduce the fines established by the city.
(2) Contents of Appeals Board's decision. If it is shown by a preponderance of all the evidence that the condition of the premises constitutes a violation of the Riverbank Code of Ordinances or is a public nuisance as defined in this chapter, the decision shall declare the premises to be a public nuisance and shall order and require the appellant to abate the nuisance not later than ten calendar days after the issuance of the decision or, if ten calendar days is insufficient to abate the nuisance, within such other time as specified by the Appeals Board not to exceed 60 days. The decision shall inform the appellant that if the nuisance is not abated within the time specified, the nuisance may be abated by the city in such manner as may be ordered by the department head and the expense thereof made a special assessment lien upon the property involved. This is in addition to any other legal remedies that the city may choose to compel compliance.
(3) Service of the Appeals Board's decision. Upon issuance of the decision, the city shall serve a copy on the appellant by first class mail to the address provided by appellant in the written notice of appeal. The Appeals Board's decision shall be deemed served three days after the date it is mailed to the address provided by the appellant.
(4) Finality of appeal's decision. The decision of the Appeals Board on an appeal of a notice and order may be appealed to the City Council pursuant to § 153.218(B) of this Code of Ordinances.
(Ord. 2008-016, passed 1-12-09)