22.03.040 Appeal hearing.
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A. Nature and scope of appeal hearings. Except on good cause shown, all hearings before the hearings examiner shall be open to the public. The appellant, the appellant’s representative, the city official and any person whose interests are effected shall be given an opportunity to be heard. The scope of review in an appeal hearing is de novo, except that the hearings examiner shall defer to the city official’s legal interpretation of the code, unless the city official’s interpretation is arbitrary and capricious or clearly erroneous.
B. Special provisions for hearings concerning nuisance vehicles.
1. The owner of the land on which a nuisance vehicle is located may appear in person at the hearing or present a written statement in time for consideration at the hearing and deny responsibility for the presence of the nuisance vehicle on the owner’s land.
2. The city may offer evidence to rebut the owner’s denial.
3. If the hearings examiner determines after hearing that the vehicle was placed on the owner’s land without the landowner’s consent and that the landowner did not subsequently acquiesce in its presence, then the city shall not be authorized to assess costs of administration or removal of the nuisance vehicle against the property upon which the nuisance vehicle is located or otherwise attempt to collect the cost from the landowner.
C. Burden of proof. The city has the burden of proof in appeal hearings. The city must prove by a preponderance of evidence that a violation occurred and that the required corrective action, if applicable, conforms to the code.
D. Evidence. The formal rules of evidence do not apply to hearings under this title. The hearings examiner shall admit all evidence that is offered, unless a party timely objects to the evidence, and the hearings examiner finds the disputed evidence is not relevant or is untimely.
1. Relevant evidence. Relevant evidence means evidence having any tendency to make the existent of any material fact that is of consequence to the hearing more probable or less probable than it would be without the evidence.
2. Prejudicial evidence. Prejudicial Evidence means evidence where the probative value of such evidence is outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
3. Untimely evidence. Untimely Evidence means written testimony or other evidence that was not timely filed with the city pursuant to the timelines established by VMC 22.03.030. The hearings examiner may admit untimely evidence into the hearing record if the evidence is relevant; provided the hearings examiner shall keep the official hearing record open for fourteen (14) calendar days to allow the opposing party to file a written response.
4. Judicial notice. The hearings examiner may take official notice of judicially recognized facts and law including, but not limited to, city ordinances, resolutions, court cases, and in addition, may take notice of general technical or scientific facts accepted as such within the relevant scientific community.
E. Inspection of premises. The hearings examiner may inspect any vehicle, building, structure, land, personal property or premises involved in the appeal during the course of the hearing, provided that:
1. Notice of such inspection shall be given to the appellant before the inspection is made; and
2. The appellant is given an opportunity to be present during the inspection; and
3. The hearings examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn there from; and
4. The appellant then shall have a right to rebut or explain the matters so stated by the hearings examiner.
5. Unless good cause is shown, the appellant's refusal to allow an inspection shall result in the dismissal of the appellant's appeal.
F. Testimony. Both the city and the appellant have the right to elicit testimony from witnesses at the hearing. This can be done in the form of oral testimony or written testimony.
1. Oral Testimony. Oral testimony shall be taken only on oath or affirmation.
2. Written Testimony. Written testimony shall be taken by sworn affidavit or a certification conforming to RCW 9A.72.085.
G. Hearing Procedure. The hearings examiner generally shall conduct the appeal hearing in the following order:
1. Preliminary motions;
2. City’s case in chief. After each witness the appellant has the right to cross – examine;
3. Appellant’s case in chief. After each witness the city has the right to cross-examine;
4. Presentation of rebuttal evidence by either party;
5. City’s closing argument;
6. Appellant’s closing argument;
7. City's rebuttal argument.
H. Place of hearing. Appeal hearings under this title shall be conducted at a place specified in the notice of hearing.
I. Record. A record of the entire appeal hearing shall be made by the city by a video or tape recording.
J. Continuances and open records. The hearings examiner may continue a hearing or hold open the public record after the conclusion of the hearing. If the hearings examiner continues a hearing to a date, time and place certain, in the presence of the parties, no additional written notice of the continued hearing is required. (Ord. M-3857 §12, 2007; Ord. M-3638, 2003)