Any person aggrieved by a notice of violation, order, final decision, final determination, or other final action taken by the Director under this chapter may request an informal review and reconsideration of the action by the Director as provided by this section. Following the Director's informal review and reconsideration, the person aggrieved may appeal the Director's final decision to the Wastewater Board of Appeals (WBA) as provided by this section. The person requesting the appeal shall pay an appeal fee in the amount determined from time to time by the City. The appeal fee shall be paid at the time that the request for informal review/reconsideration or appeal is requested. If a request for informal review and reconsideration by the Director or an appeal to the WBA is not properly and timely requested, including payment in full of the appeal fee and submission of all required supporting documents and information as provided by this section, the right to request a review and/appeal shall be deemed waived and the action shall be deemed final.
A request for a review and reconsideration by the Director of an action taken by the Director shall be made in writing within 10 calendar days from the date of the Director's action in question. The request shall state the reasons for the review and shall include all supporting documents and dates. A hearing on the request shall be scheduled at the earliest practicable date as determined by the Director, as applicable. The hearing shall be conducted by the Director on an informal basis at the KWRP or at another location designated by the Director. Following the informal hearing, the Director may affirm or reverse, in whole or in part, the action appealed from, or may make any order, requirement, determination, or decision (these actions by the Director are hereinafter collectively referred to as the Director's "final decision") that in the Director's opinion ought to be made in the case under consideration. The aggrieved person shall be notified of the Director's final decision within 30 calendar days of the hearing. The Director may request additional information and extend the time for the final decision by up to an additional 30 calendar days following the submission of all of the additional requested information. The Director's final decision may be appealed to the WBA as provided by § 28-18.03. All supporting documentation and information shall be provided solely by the person requesting the appeal (the "appellant"), at the appellant's sole cost.
A.
The WBA shall consider appeals from final decisions of the Director (and other appeals as expressly provided by this chapter).
B.
The WBA shall be comprised of five members appointed from time to time by the City Commission. The members of the WBA shall have the technical expertise and backgrounds sufficient to enable them to consider and decide the matters brought before them consistent with good utility practices. At least one of the members of the WBA shall be a Michigan licensed engineer. No member of the WBA shall be an employee of the City's Public Services Department.
C.
A member of the WBA with a conflict of interest (direct or indirect; personal, professional, or financial) with respect to the matter on appeal shall not participate in any hearing, any discussion, or any decision on that matter. Before participating in a hearing, any discussion, or any decision on a matter on which a member may reasonably be considered to have a conflict of interest, the member shall disclose the potential conflict of interest to the City Manager. If a member is uncertain regarding a potential conflict of interest, the City Attorney shall make a determination prior to the hearing of the matter and communicate that determination to the member and the City Manager. If it is determined that one or more of the current WBA members has a conflict of interest, the City Manager shall appoint alternate members that do not have conflicts of interest to hear the appeal in question.
D.
The WBA may adopt its own rules of procedure, and shall keep a record of its proceedings, showing findings of fact, the action of the Board, and the vote of each member upon each question considered. The presence of three members of the WBA shall be necessary to constitute a quorum. All decisions of the WBA shall require a majority vote of those members present at a scheduled meeting for which a quorum exists.
E.
The following provisions shall govern appeals of final decisions of the Director made to the WBA under this chapter:
(1)
A request for an informal review and reconsideration leading to a final decision of the Director as provided by § 28-18.02 shall be required before an appeal of any action of the Director may be made to the WBA as provided by this section.
(2)
An appeal from any final decision of the Director shall be made to the WBA within 10 calendar days from the date of the Director's final decision being appealed. The appeal may be taken by any person aggrieved by the Director's final decision. The appellant shall file a written notice of appeal with the WBA. The notice of appeal shall specify in detail the grounds for the appeal and shall be accompanied by a nonrefundable appeal fee in the amount set from time to time by the City.
(3)
Prior to a hearing before the WBA regarding an appeal, the Director shall transmit to the WBA a written summary of all previous action taken in connection with the final decision being appealed. The WBA may, at the WBA's discretion, request the Director to provide further information regarding the final decision that is the subject of the appeal and may require the appellant to submit further documents and information in support of the appeal.
(4)
The WBA shall fix a reasonable time for the hearing of the appeal. Notice of the hearing shall be provided to the appellant at least 10 calendar days in advance of the hearing to require the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing. The appellant shall submit an exhibit and witness list to the WBA at least five calendar days before the hearing or as otherwise directed by the WBA.
(5)
The WBA shall conduct the hearing. At the hearing, attorneys may represent the WBA and the appellant and they may file briefs, present evidence, and call, examine and cross-examine witnesses (provided that no party to the hearing shall be required to be represented by an attorney, and may represent himself/herself). Any testimony taken at the hearing shall be under oath and recorded unless the oath or recording are waived by agreement of the WBA and appellant. A copy of the transcript of the hearing (and/or a recording, if made) shall be made available at cost to any person upon payment of applicable charges for the transcription or recording.
(6)
The WBA shall admit all testimony having reasonable probative value and shall exclude irrelevant or unduly repetitious testimony, as determined by the WBA. The WBA shall not be bound by common law or statutory rules of evidence. The appellant shall have the burden of proof and persuasion for showing that the decision being appealed was clearly erroneous.
(7)
Within 30 days after the completion of the hearing, the WBA shall mail or otherwise deliver to the appellant a written decision granting, denying or modifying the final decision of the Director that was the subject of the appeal. The decision of the WBA on the matter shall be final, and shall be a final determination for purposes of judicial review.
All service charges, penalties, fines, fees, surcharges, costs or expenses outstanding during any appeal process shall be due and payable to the City, as applicable. Further, if the Director's decision that was reviewed or appealed is upheld, the person that requested the review and/or appeal shall pay all of the costs incurred by the City in conducting the review and/or appeal, including, but not limited to, any applicable sampling and analytical costs, legal and engineering consultant costs, and costs of transcription and recording. If the Director's decision is only partially upheld or reversed, upon resolution of the review and/or appeal, any amounts due and payable to the City shall be equitably adjusted accordingly, provided that any refunds of any amounts already paid to the City by the appellant shall be retroactive to the previous four monthly billings only. In no case shall any portion of the appeal fee be refunded. The POTW may terminate wastewater treatment services if a corrective course of action is not taken or if service charges, penalties, fines, fees, surcharges, costs, or expenses are not paid by a user.
If a review or appeal is not demanded as provided by this article within the periods specified by this article, the Director's action shall be deemed final. If a review or appeal is properly demanded, the action in question shall be suspended until a final determination has been made by the Director or WBA, as applicable, except for orders to immediately cease and desist discharge; orders to terminate sewer services; other emergency orders or actions where a suspension or delay might endanger human health, the environment, or the POTW; and as otherwise expressly provided by this chapter (such as for permit appeals, § 28-07.14).
Appeals from a final determination of the WBA may be made to a court of competent jurisdiction as provided by law. All findings of fact made by the WBA, if supported by the evidence, shall be deemed conclusive.