The office of Code Hearings Officer is hereby created. The Code Hearings Officer shall act on behalf of the Council in considering and applying regulatory enactments and policies pertaining to the matters set forth in other sections of this chapter. The Code Hearings Officer shall be appointed by the City Manager. The appointment of a Code Hearings Officer may be for a specific term, for a particular proceeding, or for a group of proceedings.
(Ord. 2083, passed 4-26-04)
The Code Hearings Officer shall have jurisdiction over all cases submitted in accordance with the procedures and under the conditions set forth in this code.
(Ord. 2083, passed 4-26-04)
For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
(1) The City of Hermiston.
(2) Any person named by the city as a respondent in the complaint.
(3) Any person requesting and entitled to an appeal hearing pursuant to § 136.10.
(Ord. 2083, passed 4-26-04)
(A) The city may institute appropriate suit or legal action, in law or equity, in any court of competent jurisdiction to enforce the provisions of any order of the Code Hearings Officer, including, but not limited to, a suit or action to obtain judgment for any civil penalty imposed by an order of the Code Hearings Officer pursuant to § 136.23(A)(5) and/or any assessment for costs or penalties imposed pursuant to § 136.24(C).
(B) Unless authorized by the Code Hearing Officer, it is unlawful for any person to knowingly enter or remain in any building or structure that the Code Hearings Officer has ordered vacated pursuant to § 136.23(C)(2). In addition to any civil penalties imposed pursuant to § 136.23(A)(5), any person knowingly entering or remaining in such building or structure shall upon conviction be punished by a fine of not more than $500, or by imprisonment not exceeding six months, or both.
(Ord. 2083, passed 4-26-04)
(A) A proceeding before the Code Hearings Officer may be initiated only as specifically authorized elsewhere in the code
(B) Except as provided in § 136.32, a proceeding before the Code Hearings Officer shall be initiated only by the city filing a compliant with the office of the Code Hearings Officer on forms provided by that office. The complaint shall contain:
(1) The name of the respondent.
(2) The address or location at which the violation is alleged to have occurred.
(3) A short and plain statement of the alleged violations, including a reference to the particular statutes, rules, or regulations involved.
(4) The nature of the relief sought by the city.
(5) The name, title, and signature of the person initiating the proceeding on behalf of the city.
(Ord. 2083, passed 4-26-04)
(A) Upon filing of a complaint, the Code Hearings Officer shall specify a time, date, and place for a public hearing on the complaint and the matters alleged therein.
(B) The date set for hearing shall be not less than 14 days nor more than 30 days after the date the complaint is filed, except that the Code Hearings Officer may specify a date for hearing less than 14 days after the complaint is filed where it appears that the alleged violation poses an immediate and serious hazard to the public health, safety, or welfare or to the life, health, safety, welfare, or property of any person.
(C) The Code Hearings Officer may postpone, continue, set over, or reschedule any hearing with the consent of all parties or on the motion of any party for good cause shown.
(Ord. 2083, passed 4-26-04)
(A) The City shall give notice of the hearing, together with a copy of the complaint, to the respondent and all other parties not less than five calendar days prior to the date set for hearing except that the Code Hearings Officer may set a shorter period when it appears that the alleged violation poses an immediate and serious hazard to the public health, safety, or welfare or the life, health, safety, welfare, or property of any person.
(B) The notice of hearing shall specify the time, date, and place set for the hearing.
(C) Notice may be given by any method or combination of methods which, under the circumstances, is reasonably likely to apprise the parties of the hearing. Notice may be given by:
(1) Personally delivering the notice to the party, or
(2) Mailing the notice by United States mail, postage prepaid, and addressed to the residence or business address of the party, or
(3) Any method authorized by the Oregon Rules of Civil Procedure for the service of summons, or
(4) Any other method authorized by the hearings officer, by rule or otherwise. If notice is given by mail, such notice shall be deemed given and received three days (Sundays and holidays not included) after the notice is deposited in the United States mail.
(D) Notice of the hearing and a copy of the complaint shall also be given to:
(1) The tenants, residents, and lessees of any building, property, or structure if the city has requested in the complaint the vacation, closure, or demolition of the building, property, or structure or if the Code Hearings Officer determines that such vacation, closure, or demolition is a reasonably possible outcome of the proceeding.
(2) Any other person who reasonably appears to have an interest in the property involved or who reasonably appears may be adversely affected by any determination, decision, or order of the Code Hearings Officer.
(E) The failure of any person to receive actual notice of the proceeding shall not invalidate the hearing or any determination, decision, or order of the Code Hearings Officer.
(Ord. 2083, passed 4-26-04)
(A) Prior to the commencement of a contested hearing, the Code Hearings Officer shall inform each party to the hearing of the following matters:
(1) A general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections may be made, and an explanation of the burdens of proof or burdens going forward with the evidence.
(2) That a record will be made of the proceedings and the manner of making the record and its availability to the parties.
(3) The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the Code Hearings Officer.
(4) Whether an Attorney will represent the city in the matters to be heard and whether the parties ordinarily and customarily are represented by an Attorney.
(5) The Title and function of the Code Hearings Officer, including the effect and authority of the Code Hearings Officer’s determination.
(6) In the event a party is not represented by an attorney, whether the party may, during the course of proceedings, request a recess if at that point the party determines that representation by an attorney is necessary to the protection of the party’s rights.
(7) Whether there exists an opportunity for an adjournment at the end of the case and the party then determines that additional evidence should be brought to the attention of the Code Hearings Officer and the hearing is reopened.
(8) Whether there exists an opportunity after the hearing and prior to the final determination or order of the Code Hearings Officer to review and object to any proposed findings of fact, conclusions of law, summary of evidence, or order of the Code Hearings Officer.
(9) A description of the appeal or judicial review process from the determination or order of the Code Hearings Officer.
(B) The information required to be given to a party to a hearing under division (A) of this section may be given in writing or orally before commencement of the hearing.
(C) The failure to give notice of any item specified in division (A) of this section shall not invalidate any determination or order of the Code Hearings Officer unless on appeal from or review of the determination or order a court finds that the failure affects the substantive rights of the complaining party. In the event of such a finding, the court shall remand the matter to the Code Hearings Officer for a reopening of the hearing and shall direct the Code Hearings Officer as to what steps shall be taken to remedy the prejudice to the rights of the complaining party.
(Ord. 2083, passed 4-26-04)
(A) Unless precluded by law, informal disposition of any proceeding may be made, with or without a hearing by stipulation, consent order, agreed settlement, or default. However, after issuance of notice of hearing, no building occupied as a residential structure may be vacated based on an informal disposition unless approved by the Code Hearings Officer.
(B) Parties may elect to be represented by counsel and to respond to and present evidence and argument on all issues involved.
(C) An order adverse to a party may be issued upon default only upon a prima facie case made on the record before the Code Hearings Officer.
(D) Testimony shall be taken upon oath or affirmation of the witness from whom received. The Code Hearings Officer may administer oaths or affirmations to witnesses.
(E) The Code Hearings Officer shall place on the record a statement of the substance of any written or oral ex parte communications made to the Code Hearings Officer on a fact in issue during the pendency of the proceedings. The Code Hearings Officer shall notify the parties of the communication and of their right to rebut such communications.
(F) The record in a proceeding before the Code Hearings Officer shall include:
(1) All pleadings, motions, and intermediate rulings;
(2) Evidence received or considered;
(3) Stipulations;
(4) A statement of matters officially noticed;
(5) Questions and offers of proof, objections, and rulings thereon;
(6) A statement of any ex parte communications on a fact in issue made to the Code Hearings Officer during the pendency of the proceedings;
(7) Proposed findings and exceptions; and
(8) Any proposed, intermediate, or final order prepared by the Code Hearings Officer.
(G) A verbatim, written, mechanical, or electronic record shall be made on all motions, rulings, and testimony. A party may request transcription of the record for the purposes of court review pursuant to § 136.22 upon payment of the reasonable costs of preparing the transcript. If the party prevails on such review, the reasonable costs of preparing the transcript shall be allowed as a part of that party’s costs in such action. The City Council may determine the reasonable costs of preparing a transcript by Council resolution.
(Ord. 2083, passed 4-26-04)
(A) The Code Hearings Officer shall issue subpoenas to any party upon showing of general relevance and reasonable scope of the evidence sought. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the city, shall receive fees and mileage as prescribed by law for witnesses in civil actions.
(B) If any person fails to comply with any subpoena so issued or any party or witness refuses to testify on any matters on which he may be lawfully interrogated, the judge of the Circuit Court of any county, on the application of the Code Hearings Officer, or of a designated representative of the Code Hearings Officer or of the party requesting the issuance of the subpoena, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of subpoena issued from such court or a refusal to testify therein.
(Ord. 2083, passed 4-26-04)
(A) On petition of any party and a showing of the general relevance of the documents or things sought, the Code Hearings Officer may enter an order directing any party to produce and make available to the petitioning party to inspect and copy any documents or to inspect and copy, test, or sample any things which are in the possession of a party.
(B) The order directing a party to produce and make available documents or things may require the petitioning party to pay the party producing documents and things that party’s reasonable costs associated with such production.
(C) The Code Hearings Officer shall not enter an order requiring a party to produce any document or thing which is privileged under the rules of privilege recognized by law or which is exempt from disclosure under the Oregon Public Records Law.
(Ord. 2083, passed 4-26-04)
(A) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. Erroneous rulings on evidence shall not preclude action by the Code Hearings Officer on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible. The Code Hearings Officer shall give effect to the rules of privilege recognized by law. Objections to evidence may be received in written form.
(B) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in division (D) of this section, no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies of excerpts, or by incorporation by reference.
The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.
(C) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence.
(D) The Code Hearings Officer may take notice of judicially recognizable facts, and the Code Hearings Officer may take official notice of general, technical, or scientific facts within the specialized knowledge of city employees. Parties shall be notified at any time during the proceeding, but in any event prior to the final decision, of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed.
(E) No sanction shall be imposed or order be issued except upon consideration of the whole record as supported by, and in accordance with reliable, probative, and substantial evidence.
(Ord. 2083, passed 4-26-04)
After issuance of a notice of hearing, and until such time as the Code Hearings Officer issues a final decision, neither the respondent nor the city shall take any action that results in the vacation of a building used for residential occupancy without the permission of the Code Hearings Officer, except that in cases where buildings are found to be imminently hazardous, the building official or Chief Fire Marshal may order the building vacated if no other means are available to eliminate the imminent hazard.
(Ord. 2083, passed 4-26-04)
The Code Hearings Officer shall prepare and mail to all parties, a proposed order including findings of fact and conclusions of law. The proposed order shall become final on the date specified in the order, which date shall not be less than 14 days after such mailing, unless the Code Hearings Officer finds that an existing violation is imminently dangerous to the health, safety, or property of any person or of the public, in which case the order may specify an earlier date.
(Ord. 2083, passed 4-26-04)
(A) Every order adverse to a party to the proceeding shall be in writing or stated in the record and may be accompanied by an opinion.
(B) Unless otherwise stipulated, a final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the Code Hearings Officer’s order.
(C) The Code Hearings Officer shall notify the parties to a proceeding of a final order by delivering or mailing a copy of the order and any accompanying findings and conclusions to each party or, if applicable, the party’s attorney of record.
(D) Every final order shall include a citation of the ordinances under which the order may be judicially reviewed.
(Ord. 2083, passed 4-26-04)
(A) A party may file a petition for reconsideration or rehearing on a final order with the Code Hearings Officer within 30 days after the order is mailed.
(B) The petition shall set forth the specific ground or grounds for requesting the reconsideration or rehearing. The petition may be supported by written argument.
(C) The Code Hearings Officer may grant a request for reconsideration if good and sufficient reason therefor appears. If the petition is granted, an amended order shall be issued.
(D) The Code Hearing Officer may grant a rehearing petition if good and sufficient reason therefor appears. The rehearing may be limited by the Code Hearings Officer to specific matters. If a rehearing is held, an amended order may be issued.
(E) The Code Hearings Officer, at any time, and upon a showing of due diligence, may set aside, modify, vacate, or stay any final order, or re-open any proceeding for additional hearing when necessary to prevent a clear and manifest injustice to a party or other person adversely affected by such order.
(Ord. 2083, passed 4-26-04)
Review of the final order of a Code Hearings Officer under this chapter by any aggrieved party, including the city, shall be by writ of review to the Circuit Court of Umatilla County, Oregon, as provided in ORS 34.010 through 34.100.
(Ord. 2083, passed 4-26-04)
(A) The Code Hearings Officer may order a party found in violation of the code of the city or any applicable rule or regulation issued thereunder to comply with the provisions of the code or the applicable rule or regulation within such time as the Code Hearings Officer may by order allow. The order may require such party to do any and all of the following:
(1) Make any and all necessary repairs, modifications, and/or improvements to the structure, real property, or equipment involved;
(2) Abate or remove any nuisance;
(3) Change the use of the building, structure, or real property involved;
(4) Install any equipment necessary to achieve compliance;
(5) Pay to the city a civil penalty of up to $1,000 per day or such greater amount as may be authorized by this code or any resolutions adopted thereunder.
(6) Undertake any other action reasonably necessary to correct the violation or mitigate the effects thereof.
(B) In the event any party fails to comply with any provision of an order of the Code Hearings Officer, except a provision requiring the payment of a civil penalty only, the Code Hearings Officer may authorize the city to undertake such actions as the Code Hearings Officer may determine are reasonably necessary to correct the violation and/or eliminate or mitigate the effects thereof. The city’s reasonable costs of such actions may be made a lien against the affected real property pursuant to § 136.24.
(C) Where the Code Hearings Officer finds that there is a violation of any of the provisions of Chapters 134 or135, the Code Hearings Officer, in addition to the powers set out in divisions (A) and (B) above, may:
(1) Authorize the Code Enforcement Officer to act pursuant to §§ 135.050 to 135.053;
(2) Provided notice has been given to tenants, residents, and lessees as required by § 136.12(D), order a building or structure vacated or demolished when it reasonably appears that such measures are reasonably required to protect the health, safety, or property of the general public, the residents of the structure, or that of adjacent landowners and residents. Where vacation or demolition is ordered, the Code Hearings Officer may direct that the person found in violation of the code undertake any and all interim measures as may be necessary;
(3) Act as the Building Code Board of Appeals in a case already before him and which requires interpretation of Chapter 135;
(4) Require the party found in violation of this code to prepare a cost estimate of the repairs made necessary to achieve compliance with the code and the impact of these repairs will have on the cost of doing business and, if applicable, future rent levels. In assessing the cost estimate under this section the Code Hearings Officer may require the person found in violation to contact public and private agencies, institutions, and other sources of property improvement funds to determine the availability of funds needed for repairs.
(Ord. 2083, passed 4-26-04)
(A) Costs incurred by the city for any actions authorized by the Code Hearings Officer pursuant to § 136.23(B) and (C) and any civil penalty imposed as a result of an order of the Code Hearings Officer shall be an assessment lien upon the property subject to the order.
(B) If a residential structure is ordered vacated pursuant to §§ 136.23(C)(2) or 135.076 and the city relocates the tenants of such property, then the cost incurred by the city for relocating the tenants as provided by ORS 90.450 shall be an assessment lien upon the property vacated and from which the tenants are relocated.
(C) The city shall furnish a statement of such costs on the owner, in person or by United States Mail, postage prepaid and addressed to the owner at the owner residence or place of business, and shall file a copy of such statement for the Code Hearings Officer with proof of service attached. If no objection to such statement is filed with the office of the Code Hearings Officer within 15 days from the date of service or mailing, the Code Hearings Officer shall certify such statement and forward the same to the City Recorder/Finance Officer who shall forthwith enter the same in the city lien docket.
(1) If an objection to the statement is received within the 15-day period, the Code Hearings Officer shall schedule and hold an appeal hearing pursuant to §§ 136.32 to 136.35. After the hearing, the Code Hearing Officer shall certify such statement, or so much of it as he determines is correct and proper, and forward it to the City Recorder/Finance Officer who shall enter it into the city lien docket.
(2) The Code Hearings Officer shall certify to the City Recorder/Finance Officer the amount of any civil penalty imposed under any order of the Code Hearings Officer, and the City Recorder/Finance Officer shall enter it into the city lien docket. The lien imposed for the civil penalty shall be in addition to any lien imposed for costs actually incurred by the city.
(3) The city may file separate statements for the costs and services furnished as each is incurred or provided.
(4) Liens imposed pursuant to this chapter shall be collected in all respects as provided by law.
(D) In addition to the lien imposed under this section, any person found to be in violation of the code shall be personally liable for costs incurred by the city pursuant to § 136.23(B) and (C) and for any civil penalty imposed by order of the Code Hearings Officer. In cases of person found to be in violation of the code as owners of property, the persons shall be personally liable hereunder only if they have control of the property, the legal authority to correct the violation, and knowingly have committed the violation.
(Ord. 2083, passed 4-26-04)
For the purpose of this chapter, the following definition will apply unless the context clearly indicates a different meaning:
(Ord. 2083, passed 4-26-04)
(A) Whenever, pursuant to any portion of this code, a person has the right of appeal to the Code Hearings Officer from any city decision or determination, such appeal shall be in accordance with the procedures and under the conditions set forth in this chapter.
(B) No person shall have a right of appeal to the Code Hearings Officer unless the right of appeal is expressly provided for in this code.
(Ord. 2083, passed 4-26-04)
(A) Unless otherwise specified in this code, a request for an appeal hearing shall be filed within ten days after the date of the decision or determination. The Code Hearings Officer may waive this requirement for good cause shown.
(B) The request for an appeal hearing shall be in writing and shall contain either a copy of, or a full and complete description of, the decision or determination appealed from and a statement of grounds upon which it is contended that the decision or determination is invalid, unauthorized, or otherwise improper, together with such other information as the Code Hearings Officer may by rule require. The Code Hearings Officer may specify and provide hearing request forms to be used by persons requesting hearings.
(Ord. 2083, passed 4-26-04)
(A) Upon receipt of a request for hearing, the Code Hearings Officer shall schedule and hold an appeal hearing within 30 days after the receipt of such request.
(B) Notice of the time, date, and place of hearing shall be given to the person requesting the hearing and to the city whose decision or determination is being appealed. Notice shall also be given to any person who reasonably appears may be adversely affected should the decision or determination not be sustained after hearing. The Code Hearings Officer may provide by rule for the manner of providing notice to such persons.
(C) The time for hearing may be extended by the Code Hearings Officer for good cause shown, upon such terms and conditions as the Code Hearings Officer shall deem just and appropriate.
(Ord. 2083, passed 4-26-04)
(A) Hearings shall be conducted in accordance with the procedures set forth in §§ 136.13 through 136.21.
(B) With the consent of all parties, the Code Hearings Officer may determine the matter without hearing upon the record.
(C) The Code Hearings Officer may sustain, modify, reverse, or annul the decision or determination appealed from or the Code Hearings Officer may remand the decision or determination to the city for such reconsideration, additional consideration, or further action as the Code Hearings Officer may direct.
(D) The decision or determination appealed from shall be reviewed de novo by the Code Hearings Officer.
(Ord. 2083, passed 4-26-04)
The determination of the Code Hearings Officer is a quasi-judicial decision and is not appealable to Council; appeals from any determination by the Code Hearings Officer shall be by writ of review to the Circuit Court of Umatilla County, Oregon, as provided in ORS 34.010 through 34.100.
(Ord. 2083, passed 4-26-04)