§ 12.06.04. Appellate hearing.

When a decision is appealed to the town council, a hearing panel or officer assigned to hear the appeal shall conduct the hearing in compliance with the following procedures as supplemented where necessary:

(1)

Scope of review.

a.

The hearing officer's review shall be limited to the record and applicable law.

b.

The hearing officer shall have the authority to review questions of law only, including interpretations of this Land Development Code, and any constitution, ordinance, statute, law, or other rule or regulation of binding legal force. For this purpose, an allegation that a decision of the decision-maker is not supported by competent substantial evidence in the record as a whole is deemed to be a question of law. The hearing officer may not re-weigh the evidence, but must decide only whether any reasonable construction of the evidence supports the decision under review.

(2)

Authority of hearing officer or board. A hearing officer shall have the authority:

a.

To request briefs to be filed on behalf of any party and prescribe filing and service requirements.

b.

To hear oral argument on behalf of any party.

c.

To adjourn, continue or grant extensions of time for compliance with these rules, either on his own motion or upon application of the party, provided no requirement of law is violated.

d.

To dispose of procedural requests or similar matters, including motions to amend and motions to consolidate.

e.

To keep a record of all persons requesting notice of the decision in each case.

(3)

Improper influence.

a.

No person who is a party, nor a person who is reasonable likely to become a party in the near future, nor anyone appearing on behalf of a party, shall communicate ex parte, i.e., outside a hearing, with a hearing officer concerning any application pending or proposed; provided, however, a hearing officer may consider requests regarding scheduling of hearings when made in writing.

b.

A person who accepts an appointment as a hearing officer is, for a period of two years from the date of termination as a hearing officer, hereby expressly prohibited from acting as agent or attorney in any proceeding, application or other matter before any proceeding, application or other matter before any commission, board, agent or office of town government, involving property which was the subject of an application which was pending during the person's term as a hearing officer.

c.

A hearing officer shall neither initiate nor consider ex parte, i.e., outside a hearing, communications concerning a pending or impending proceeding. A hearing officer, however, may obtain the advice of a disinterested expert on law, planning or other subject applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

(4)

Decision of hearing officer or panel and final action.

a.

The hearing officer must affirm each contested decision or find it to be in error. The hearing officer shall prepare a written opinion stating the legal basis for each ruling.

b.

When the hearing officer affirms a contested decision pertaining to a final action of a decision-maker, that action shall be deemed to be the final action of the decision-maker and shall be subjected to no further review under this Land Development Code. The hearing officer shall submit the opinion to the decision-maker, the parties and the town.

c.

When the hearing officer finds any decision to be in error, that decision shall be referred back to the decision-maker for reconsideration in light of the hearing officer's opinion. If the decision-maker reaffirms the original decision, it shall be deemed to be the final action of the decision-maker and shall be submitted to no further review under this Land Development Code. Revised decisions of the decision-maker shall also be deemed to be final action of the decision-maker and shall be submitted to no further review under this Land Development Code, unless the revised decision raises issues of law not considered in the initial appellate hearing, in which case it may be appealed pursuant to the procedures in this division. If the decision-maker takes no action within 15 days of the hearing officer's decision the original decision of the decision-maker shall be deemed reaffirmed.

(5)

Custody of books and papers. The town clerk shall be the custodian of all documents including the application, the hearing officer's decision, and the record of the proceedings.

(Ord. No. 91-6, § 3(12.06.04), 2-11-1992)