The Directors of Community Development and Public Works shall have the authority to adjust certain standards applicable to building and development that, if applied in a strict manner, would result in a deprivation of vested property rights due to the lack of a sufficient nexus between the condition to be imposed and the purpose of the project being proposed. This administrative discretion shall also apply to situations in which the condition of approval of the building or development exceeds the proportion of benefit received by the property owner in seeking the approval to such an extent that the imposition of the condition would amount to a legally compensable constitutional or statutory claim. This chapter shall apply to conditions of project approval found in Imperial Beach Municipal Code Sections 12.08.040 (Installation permit prerequisite to building permit) and 12.08.085 (Alley improvement required), Chapters 13.08 (Underground Utilities) and 15.44 (Sewage Construction Permits), and other sections in which specific findings can be made of probable compensable harm.
For conditions of a non-development or building-related permit, entitlement, fee or other requirement that is alleged to violate a statutory or constitutional requirement, this chapter shall provide a review process for any matter not otherwise provided for in this code or under other applicable laws. The initial determination of the department head with primary responsibility over the matter shall be subject to the appeal process established in this chapter.
(Ord. 2008-1076 § 2)
A. 
Any person who is an applicant for a permit, entitlement or license secured under this municipal code shall have the right to contest the application of a condition, fee or other licensing requirement (administrative determination) that the person claims exceeds statutory or constitutional requirements for which no other remedy is applicable under this municipal code. The applicant for a permit, entitlement or other right may contest that there is a legal right to require the condition, fee or other licensing requirement covered by this municipal code by completing a request for hearing form and returning it to the City Clerk within 15 days from receiving notice of the permit, entitlement or license containing the alleged invalid fee, condition or requirement. The "issuance date" of the condition being challenged shall be the date that the applicant receives written notice of the condition, fee or other licensing requirement from the City. The request for hearing shall be accompanied by a deposit in the amount established by the City's fee resolution for appeals or by a sworn declaration together with documentation demonstrating to the satisfaction of the City Manager the person's actual financial inability to deposit the amount of the deposit in advance of the hearing ("hardship waiver"). Any deposit shall be refunded within 10 days of a determination, after a hearing, that the person appealing hereunder was not responsible for the condition, fee or other licensing requirement. If the administrative determination is a partial modification of the condition, fee or other licensing requirement, the Hearing Officer shall determine whether the deposit shall be refunded, wholly or in part. If the permit, entitlement or license must be approved by the City Council or other City commission, the request for hearing must be filed within 15 days' notice of the written condition of approval is submitted by staff to the applicant for issues in which this code does not establish either an appeal process or authority for the City Council or commission to waive the requirement.
B. 
The City Manager or appointed Hearing Officer shall issue a letter to the person submitting a hardship waiver declaration granting or denying the waiver. If waiver is denied, the appeal shall be dismissed unless the deposit is made within five days of the date of the letter. The determination of the City Manager or appointed Hearing Officer shall be final and shall not be subject to appeal.
(Ord. 2008-1076 § 2)
The Imperial Beach City Manager shall designate the Hearing Officer for the administrative determination hearing. The City Manager shall serve as the Hearing Officer if no delegation is made. The City, if any, shall pay the compensation of the Hearing Officer. Compensation shall not be directly or indirectly conditioned upon whether or not conditions, fees or other licensing requirements are upheld by the Hearing Officer.
(Ord. 2008-1076 § 2)
A. 
No hearing to appeal an administrative determination shall be held unless and until a request for hearing form has been completed and submitted in accordance with the administrative policies established by the City Manager, and the deposit has been made or hardship waiver granted.
B. 
A hearing before the Hearing Officer shall be set for a date that is not sooner than 15 and not more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this chapter. If the appellant asserts that First Amendment rights are impaired by the administrative determination and requests an earlier hearing, the hearing shall be within five days from the date of such request. The appellant shall be notified of the time and place set for the hearing at least 10 days prior to the date of the hearing unless the hearing date has been expedited.
C. 
The Hearing Officer shall only consider evidence that is relevant to whether the condition, fee or licensing requirement exceeds the authority of the City under the authority granted to the City by the applicable legislation or by the minimum standards established in the United States and/or California Constitution. In the case of land use, building or subdivision exaction requirements, the administrative determination must demonstrate a lack of a direct nexus and or rough proportionality between the administrative determination and the burden placed on the public by the private action. In all other matters, the standard of review shall be based upon the statutory or constitutional requirements being asserted. Courtroom rules of evidence shall not apply. Relevant hearsay evidence and written reports may be admitted whether or not the speaker or author is present to testify if the Hearing Officer determines that the evidence is reliable. Admission of evidence and the conduct of the hearing shall be controlled by the Hearing Officer in accordance with the fundamentals of due process. The Hearing Officer may limit the total length of the hearing to one hour, and shall allow the appellant at least as much time to present its case as is allowed by the City.
D. 
The appellant shall be given the opportunity to testify and present witnesses and evidence concerning the administrative determination. The City's case shall be presented by the department head making the decision, his or her designee or by the City Attorney's office. Legal counsel may represent the appellant.
E. 
The failure of the appellant to appear at the hearing shall constitute a forfeiture of the deposit and a failure to exhaust administrative remedies.
F. 
The administrative determination and any additional documents prepared by the City in connection with the administrative determination(s) may be submitted by the enforcement officer and shall constitute prima facie evidence of the respective facts contained in those documents.
G. 
If the appellant so requests, the City shall provide to the appellant copies of all documents that it intends to introduce at the hearing. Such copies shall be provided to the appellant within five days of the request. If, after copies of documents have been provided to appellant, the City determines to submit to the Hearing Officer additional documents then, whenever possible, a copy of such documents shall be provided to the appellant prior to the hearing.
H. 
The Hearing Officer may continue the hearing and request additional information from the enforcement officer or the appellant prior to issuing a written decision.
(Ord. 2008-1076 § 2)
A. 
After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer may announce a decision orally, but in any event, shall prepare a written decision. The decision shall be provided to the parties within 10 days of the hearing and shall either affirm the issuance of the administrative determination as issued, modify or dismiss the administrative determination. The decision shall briefly state the reasons for the conclusion of the Hearing Officer. The City shall serve the decision on the appellant by mail. The written decision shall be mailed to the responsible person designated by the appellant to receive the decision by certified mail, postage prepaid with a requested return receipt. Simultaneously, the decision shall be sent by first class mail. If the decision is sent by certified mail and returned unsigned, then service shall be deemed effective pursuant to first class mail, provided the decision sent by first class mail is not returned. The decision of the Hearing Officer shall be final. If the Hearing Officer determines that First Amendment rights are involved, the decision shall be issued orally at the conclusion of the hearing and shall be effective immediately. A written decision shall thereafter be issued as provided herein below.
B. 
If the Hearing Officer affirms the administrative determination, then the City shall retain the deposit. If a hardship waiver was granted, the decision shall set forth a payment schedule for the hearing fee.
C. 
If the Hearing Officer dismisses the administrative determination, then the City shall promptly refund the deposit. If the Hearing Officer either reduces or modifies the administrative determination, the Hearing Officer shall determine if all or part of the deposit is to be returned to the appellant.
D. 
The decision of the Hearing Officer shall be final.
(Ord. 2008-1076 § 2)
The provisions of Section 1094.6 of the Code of Civil Procedure are applicable to all final administrative determinations made under the authority of the Imperial Beach Municipal Code. Notwithstanding the foregoing, all decisions related to First Amendment conduct shall be subject to the appeal process set out under Code of Civil Procedure Section 1094.8.
(Ord. 2008-1076 § 2)
Nothing herein shall prevent any person from seeking remedies under the Fee Mitigation Act (Government Code Sections 66000 through 66025, as amended). All remedies in this municipal code related to fees, conditions of approval and/or exactions for "development," including administrative appeal procedures set out under this chapter, shall be subject to applicable limitations of actions and claims procedures set out in Government Code Sections 66020 through 66025, as amended, upon any final action taken under this municipal code. The remedies in this municipal code are cumulative and do not supplant any other remedies under California law.
(Ord. 2008-1076 § 2)
The provisions of Section 1094.6 of the California Code of Civil Procedure, as amended, are applicable to the City of Imperial Beach. The time limits contained in Section 1094.6 of the California Code of Civil Procedure shall be applicable to decisions of the City Council or any other final decision rendered under the authority of this municipal code by any officer or body.
(Ord. 2008-1076 § 2)