§ 98-586. Right to reconsideration, hearing, and appeal.
(a)
Reconsideration and Hearing.
(1)
Any person subject to a Compliance Order, a Remediation, Abatement, or Restoration Order, an Emergency Cease and Desist Order, or a Red Tag Order pursuant to Section 98-585, may petition the City Engineer to reconsider the basis for his order within fifteen (15) days of the affected person's notice of issuance of such an order.
(2)
Failure to submit a timely written petition for reconsideration shall be deemed to be a waiver of any further right to administrative reconsideration or review of the order.
(3)
In its petition, the petitioning party must indicate the provisions of the order objected to, the reasons for the objection(s), any facts that are contested, the evidence that supports the petitioner's view of the facts, any alternative terms of an order that the petitioner would accept, and whether the petitioning party requests a hearing on its petition.
(4)
The effect of any Compliance Order, Remediation, Abatement, or Restoration Order, and any Red Tag Order issued pursuant to Section 98-585, shall be stayed pending the City Engineer's reconsideration of the petition, and any hearing thereon, unless the City Engineer expressly makes a written determination to the contrary. An Emergency Cease and Desist Order shall not be stayed pending the City Engineer's reconsideration, or any hearing thereon, unless the City Engineer expressly and in writing stays his/her emergency order.
(5)
Within thirty (30) calendar days of the submittal of a petition for reconsideration, the City Engineer shall either (1) grant the petition and withdraw or modify the order accordingly; (2) deny the petition, without hearing if no material issue of fact is raised; or (3) if a hearing has been requested and a material issue of fact has been raised, set a hearing on the petition.
(6)
Written notice of any hearing set by the City Engineer shall be served on the petitioning party personally or by registered or certified mail (return receipt requested) at least ten (10) days prior to the hearing. Such notice may be served on any authorized representative of the petitioning party.
(7)
The City Engineer may conduct the hearing and take evidence, or he may designate any employee of the City or any specially-designated attorney or engineer to:
a.
Issue in the name of the City notices of hearing requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing;
b.
Take evidence; and
c.
If the City Engineer did not conduct the hearing, transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations to the City Engineer for action thereon.
At any hearing held pursuant to this Subsection, testimony taken shall be under oath and recorded. Any party is entitled to present his/her case or defense by oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. A transcript will be made available to any party to the hearing upon payment of the usual charges thereof.
(8)
After the City Engineer has reviewed the evidence, he shall either (1) grant the petition; (2) deny the petition; or (3) grant the petition in part and deny it in part. Notice of the City Engineers decision from the hearing shall be served on the petitioning party personally or by registered or certified mail. The City Engineer may modify his order as is appropriate based upon the evidence and arguments presented at the hearing and his action on the petition. Further orders and directives as are necessary and appropriate may be issued.
(a)
Appeal.
(1)
Any person whose petition for reconsideration by the City Engineer has not been granted in its entirety and who remains adversely affected by the City Engineer's order, or who is subject to an order of the City Engineer issued following a Show Cause Hearing under Section 98-585, may appeal the action of the City Engineer to the City Council by filing a written appeal with the City Council within fifteen (15) days of the date the City Engineer's adverse action on the petition for reconsideration is sent by registered or certified mail, or within fifteen (15) days of the date the notice of the issuance of the order following the Show Cause Hearing is sent by registered or certified mail, as the case may be.
(2)
Failure to submit a timely written appeal to the City Council shall be deemed to be a waiver of further administrative review.
(3)
In its written appeal to the City Council, the appealing party shall indicate the particular provisions of the order objected to, the particular determinations of the City Engineer that are contested, the reasons that the City Engineer's order and/or determinations are contested, and any alternative order that the appealing party would accept.
(4)
The effect of the City Engineer's order, as issued or modified, shall not be stayed pending the appeal to the City Council, unless the City Council expressly so states.
(5)
Within forty-five (45) days of the submittal of a written appeal to the City Council, the City Council shall hear and consider the appeal in open meeting. The appellant shall be notified at least five (5) days in advance of the date and time of the City Council meeting at which the appeal will be heard and considered.
(6)
The appellant shall have the right to public appearance before the City Council to present oral and written statements in support of his/her appeal. If the City Council wishes to consider testimony of witnesses or other evidence beyond that in the record of any hearing before the City Engineer the City Council may remand the matter to the City Engineer for the taking of additional testimony or other evidence.
(7)
Upon consideration of any written and oral statements made to the City Council, as well as the record made before the City Engineer, the City Council shall act on the appeal by affirming, vacating, or modifying the order of the City Engineer, and/or by remanding the matter to the City Engineer for further action.
(8)
Following final action by the City Council on the appeal, any adversely affected party may challenge such action by the City Council in an appropriate court of competent jurisdiction.
(Ord. No. O-2009-025-11, § 1, 11-16-09)