Los Gatos Municipal Code Div. 10 Hearing Procedure

In any hearing under this article, all parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any witnesses against them. Any hearing under this article may be continued by the person conducting the hearing for a reasonable time for the convenience of a party or a witness.

(Code 1968, § 35.110.005)

All notices required by this division shall be sent by certified mail, postage prepaid, to the applicant or permittee at the address given for purposes of notice on the application or permit or delivered to the permittee personally.

(Code 1968, § 35.110.010)

(a) Review. Any responsible party aggrieved by any order issued under this article, specifically including any order issued pursuant to section 13.20.560(a), may request a hearing before the Town Council to review such order. A written request for review must be filed with the Town Clerk within ten (10) days from the date of personal service of the order. The request shall include the responsible party's address to which all notices shall be sent. If a request for review is not received within ten (10) days from the date of service, the order, including any order issued under section 13.20.560(a) which has been stayed, shall become final and binding.

(b) Hearing Officer. The Town Council shall appoint a Hearing Officer who will hear all objections to orders and make a report to the Town Council of proposed findings of facts, conclusions of law and recommendations with regard to the order.

(c) Notice of hearing. The Hearing Officer shall send notice of the time and place of hearing to the Enforcing Officer and all parties who request review at least twenty-one (21) days prior to the hearing. The notice shall be substantially in the following form but may include other including a schedule for submission of briefs and evidence:

You are hereby notified that the requested hearing will be held before the Hearing Officer (here insert place of hearing) on the _____day of ________, 19___, at the hour of _____, on the order of the Enforcement Officer dated ________ and which was served on you on ________. A statement of the grounds upon which the order was issued is enclosed herewith. You may be present at the hearing. You have the right to be represented by an attorney at your own expense. You are not entitled to the appointment of an attorney to represent you at public expense.You are entitled to represent yourself without legal counsel. You may present any relevant evidence, and will be given full opportunity to cross examine all witnesses testifying against you. You may apply to the Hearing Officer for the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things.

(d) Issuance of subpoena. The Hearing Officer upon application by the Enforcing Officer or any responsible parties named in the order may issue subpoenas in the name of the Town Council to compel attendance of persons or production of documents which the Hearing Officer determines to be reasonably related to a party's ability to adduce relevant admissible evidence on material issues in the hearing.

(e) Statement of issues and positions. Not later than fifteen (15) days prior to the hearing date, the party who requested the hearing shall submit to the Town Clerk and serve upon the Enforcing Officer a brief written statement identifying: (1) the requested modification(s) of the order; and (2) a summary of the issues, facts, and legal authorities to be raised at the hearing. Not less than seven (7) days prior to the hearing, the Enforcing Officer may submit a brief written statement in response to the Town Clerk and serve it upon the party requesting review.

(f) Conduct of hearing.

(1) Oral evidence shall be taken only on oath or affirmation.

(2) Each party may call and examine witnesses, introduce exhibits, cross examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination, impeach any witness regardless of which party first called the witness to testify, and rebut adverse evidence.

(3) The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil judicial actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a necessary finding unless it would be admissible over objection in civil judicial actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.

(4) Review of the order by the Hearing Officer shall be De Novo. The Enforcing Officer shall have the initial burden of producing prima facie evidence of the facts supporting the findings set forth in the order. Upon such a showing, the responsible party has the burden of proving that the Enforcing Officer committed a prejudicial abuse of discretion in issuing the order. An abuse of discretion is shown only where the Enforcement Officer failed to proceed in the manner required by law or where the issuance of the order was arbitrary, capricious or without any reasonable basis.

(5) The Hearing Officer shall have authority to control the course of proceeding, the conduct of argument and rule on admission of evidence. Any contempt of the Hearing Officer shall be punished as contempt of the Town Council as may be authorized by law.

(g) Decision. Within thirty (30) days after the hearing is concluded, the Hearing Officer shall prepare a written decision which shall contain findings of fact, a determination of the issues presented and the disposition of the order on review. Copies of the decision shall be delivered in the manner set forth in section 13.20.885. The decision shall become final and binding on the tenth calendar day following service of the report, unless the Enforcing Officer or any party timely files with the Town Clerk a request for hearing before the Town Council.

(h) Objections to Hearing Officer's report. The Enforcing Officer or any party aggrieved by the decision of the Hearing Officer may, within ten (10) days from the date of service of such decision, request review by the Town Council. Any request for a hearing shall be filed in writing with the Town Clerk and shall include the address of the person making the request to which all notices shall be sent. The objection shall specifically state whether the party requests an opportunity to present oral argument to the Town Council and an estimate of the time necessary to do so.

(i) Determination on objections. If any party has requested oral argument, the Town Council shall set the time and place of hearing and notify all parties at least twenty-one (21) days prior to the hearing unless all objecting parties agree to a shorter time. The notice to the responsible party shall be substantially in the following form but may include other information:

You are hereby notified that the requested hearing on the record before the Hearing Officer will be held before the Town Council at (here insert place of hearing) on the _____ day of ________, 19___, at the hour of _____, on the report of the Hearing Officer dated ________ and which was served on you on ________. You have the right to be represented by an attorney at your own expense. You are not entitled to the appointment of an attorney to represent you at public expense. You are entitled to represent yourself without legal counsel.

(j) Statement of issues and positions. Not later than fifteen (15) days prior to the hearing date, the party who requested the hearing shall submit to the Town Clerk and serve upon the Enforcing Officer a brief written statement identifying: (1) the requested modification(s) of the order and the hearing officer's decision; and (2) a summary of the issues, facts, and legal authorities to be raised at the hearing. Not less than seven (7) days prior to the hearing, the Enforcing Officer may submit a brief written statement in response to the Town Clerk and serve it upon the party requesting review.

(k) Conduct on review of decision. The hearing before the Town Council shall be upon the record of proceedings and evidence presented to the Hearing Officer. No new evidence may be introduced except upon written notice filed three (3) days before the hearing demonstrating that the new evidence was (i) not reasonably available or known of at the time of hearing before the Hearing Officer, or (ii) substantial justice or fundamental fairness requires consideration of such evidence and good cause is shown why such evidence was not introduced at the hearing before the Hearing Officer.

(i) Decision. Within thirty (30) days or after the hearing is concluded, the Town Council shall prepare a written decision which shall contain rulings on the objections to the order and hearing officer's decision. Copies of the Town Council decision shall be delivered as required by section 13.20.885.

(Ord. No. 1889, § III, 2-18-92; Ord. No. 1891, § XXI, 3-2-92; Ord. No. 2320, § III, 9-7-21)