Section 21.7 Appeal Hearing Officer
The Appeal Hearing Officer shall hear and decide requests for appeals of Town required dedications or exactions in accordance with A.R.S. Sections 9-500.12 and 9-500.13.
B. Powers and Duties
The Appeal Hearing Officer shall hear and decide appeals of required exactions or dedications, once an administrative agency or official makes a final determination that grants an approval, subject to a required exaction or dedication. The Appeal Hearing Officer shall not hear appeals to a dedication or exaction required in a legislative act of the Town that does not give future discretion to an administrative agency or official to determine the nature or extent of the dedication or exaction. The property owner may request an appeal of the exaction or dedication to the Appeal Hearing Officer, as set forth in subsection F of this section.
C. Meetings, Administration of Oaths and Compelling Attendance of Witnesses
All meetings of the Appeal Hearing Officer shall be held at the call of the Appeal Hearing Officer. All meetings of the Appeal Hearing Officer shall be open to the public. The Appeal Hearing Officer may administer oaths and compel the attendance of witnesses in accordance with the laws of the State of Arizona.
The Appeal Hearing Officer shall be an individual appointed by the Town Council.
Appointment is for a term of one (1) year each with no limit on the number of terms and shall serve at the pleasure of the Town Council.
Vacancies shall be filled for the unexpired portion of that term within a reasonable time period as provided for by appointments of the Town Council.
The Town Council has the authority to remove, by majority vote, an Appeal Hearing Officer for neglect of duty, inefficiency, or misconduct in office.
E. Transaction of Business
1. The Appeal Hearing Officer shall conduct his/her business in accordance with the Arizona Revised Statutes and applicable Town regulations and any rules and procedures as adopted by the Town Council.
2. The Town Clerk, or an appointed representative from the Town Clerk’s office, shall serve as the Executive Secretary for the Appeal Hearing Officer and the minutes and records of all proceedings will be kept and filed as public record in the files of the Town Clerk.
F. Appeals from Required Dedication and Exactions
Appeals may be taken to the Appeal Hearing Officer by a property owner aggrieved by a decision of an administrative agency or official, within thirty (30) days, by filing a written appeal with the Appeal Officer. The official from whom the appeal is taken shall forthwith transmit all papers constituting the record upon which the action appealed from was taken. Said appeal shall be filed on an appeal form provided by the Town.
Completed appeal forms shall be filed with the Town Clerk.
G. Hearing and Notice
Upon receipt in proper form of any such application, the Appeal Hearing Officer shall proceed to hold a public hearing upon said application not more than thirty (30) days from the receipt of the appeal. The property owner must be given notice of the hearing ten (10) days prior to the hearing.
The Appeal Hearing Officer shall cause one notice of such hearing to be published in a newspaper of general circulation in the Town of Oro Valley and one notice to be posted on the subject property, giving at least ten (10) days’ notice of said hearing, and the time and place where said hearing will be held. Said notice, both as published and posted, shall also show the nature of the appeal and state that anyone wanting to protest may appear in person or by writing.
H. Burden of Proof
In the appeal hearing, the Town has the burden of establishing that the applicable standards for requiring exactions and dedications have been met. These standards include the following:
1. That there is an essential relationship between the dedication or exaction and a legitimate governmental interest; and
2. That the proposed dedication or exaction is roughly proportional to the impact of the proposed use.
The Appeal Hearing Officer must decide the appeal within five (5) working days after the hearing, and must modify or delete the required exaction or dedication if the Town does not meet its burden or proof.
J. Appeal to Superior Court
1. A property owner may appeal an adverse decision of the Appeal Hearing Officer to Superior Court within thirty (30) days of the decision. [A.R.S. 9-500.13(E) and 11-810(E)].
2. Appeal is by complaint for a trial de novo on the facts and law regarding the issues of the condition or requirements of the exaction or dedication. [A.R.S. 9-500.13(E) and 11-810(E)].
K. Interim Remedies, Damages, and Attorney Fees
1. Consistent with the standard for preliminary injunctions, the court may exercise any legal or equitable interim remedies to permit the owner to proceed with the use or development of the property, but that would not render moot the proposed exaction.
2. The court may award damages to compensate for delay if it finds that the Town of Oro Valley acted in bad faith.
3. The court has the authority to award attorney fees for the appeal and trial to the prevailing party.