A. Grounds: Any person receiving an administrative notice may appeal the administrative notice to the hearing officer. Only the following issues may be appealed to the hearing officer:
1. The person charged is not the responsible person.
2. The condition described as a nuisance in the administrative notice is not a nuisance as defined by this chapter.
3. The method required by the administrative notice to abate the nuisance is inappropriate or is not the most cost effective method of effectively correcting or abating the nuisance.
4. The time period given to abate the nuisance in the administrative notice is unreasonable.
5. The monetary fine set forth in the administrative notice is unreasonable.
6. The city designated representative refused to approve a corrective action that met the requirements of the administrative notice.
7. The responsible person claims that the requirement(s) of the administrative notice violates their constitutional rights.
B. Filing: The person desiring to appeal must file a notice of appeal with the city within ten (10) days of receipt of the administrative notice (within 15 days of the mailing date if the administrative notice is mailed).
C. Hearing: The hearing before the hearing officer shall be informal according to rules and procedures established by the hearing officer. The appellant may, but is not required to, bring an attorney or other representative to assist him or her. The appellant and the city designated representative may each call witnesses at the hearing. The hearing officer may, with or without the parties present, visit the site of the alleged nuisance. If the hearing officer allows the parties at the site visit, both parties must be given the opportunity to be present. The hearing shall be scheduled by the hearing officer within thirty (30) days of when the notice of appeal is filed with the city.
D. Burden Of Proof: The appellant shall have the burden of proof to demonstrate by a preponderance of the evidence that they had legitimate grounds for an appeal. The determination of the city designated representative as to the need for the required corrective action shall be accorded substantial weight by the hearing officer in determining the reasonableness of the corrective action.
E. Authority Of Hearing Officer: The hearing officer shall have authority to affirm or vacate the administrative notice, or to modify or waive specific provisions of the administrative notice. If the appellant fails to attend the hearing, the hearing officer shall affirm the administrative notice. The hearing officer shall not vacate the administrative notice unless they find that no nuisance exists. The hearing officer shall modify the administrative notice if they find that a nuisance exists, but that one or more of the requirements of the administrative notice is improper or inappropriate. A requirement is improper if it is contrary to this chapter. A requirement is inappropriate if the hearing officer finds that there is a better means of resolving the problem or that the proposed solution is inappropriate given the nature or severity of the problem. When determining whether to waive or modify a requirement of the administrative notice, the hearing officer may also consider:
1. Whether the appellant responded to the city designated representative's attempts to contact the appellant and cooperated with efforts to correct the nuisance;
2. Whether the appellant has shown due diligence and/or substantial progress in correcting the nuisance;
3. The financial ability of the appellant and the amount, if any, that the appellant has benefited financially by maintaining the nuisance;
4. Any other relevant factors.
If the appellant appeals the city designated representative's refusal to approve appellant's corrective action, the hearing officer shall visit the site and determine if the appellant complied with the requirements of the administrative notice.
F. Order: The hearing officer shall issue a written order to the appellant and the city notifying them of their decision. The order shall include the hearing officer's findings of fact conclusion of law, and an ultimate decision. If the hearing officer modifies or waives provisions of the administrative notice, the order shall specify which portions are modified and how they are modified. The hearing officer shall mail a copy of the order to the appellant and the city within five (5) working days of the close of the hearing.
G. Appeal To District Court: Either the city or the appellant may appeal the hearing officer's order by filing a petition for review of the order. The petition must be filed in the district court within thirty (30) calendar days from the date the hearing officer's order was mailed to the appellant. In the petition, the plaintiff may only allege that the hearing officer's order was arbitrary, capricious, or illegal. The hearing officer shall transmit to the reviewing court the record of its proceedings, including any minutes, findings, orders and, if available, a true and correct transcript of its proceedings. If, in the opinion of the district court, there is a sufficient record to review the hearing officer's order, the court's review is limited to the record provided by the hearing officer. The district court may not accept or consider any evidence outside of the hearing officer's record unless the evidence was offered to the hearing officer and the court determines that it was improperly excluded by the hearing officer. If, in the opinion of the district court, there is not a sufficient record to review the hearing officer's order, the court may call witnesses and take evidence. No petition or appeal may be filed in district court unless the responsible person first appeals to the hearing officer pursuant to the terms set forth in this chapter. (Ord. 04-11, 3-3-2004)