Milpitas Municipal Code Ch. 20 Standard Procedures

This Chapter is intended to provide:

1.01-1 A standard, but optional, method of giving of notice (Section 2).

1.01-2 A general, optional, guide to hearing procedure (Section 3).

1.01-3 A standard method of abatement of nuisance, application except where otherwise provided by law (Section 4).

1.01-4 A standard, but optional, method of appeal (Section 5).

(Ord. 121 (part), 2/2/65)

The provisions of this Chapter as to the manner of giving notice shall apply to those ordinances of the City of Milpitas, Chapters of the Milpitas Municipal Code and resolutions or regulations of the City of Milpitas which declare that notices shall be given in the manner prescribed by this Chapter.

(Ord. 121 (part), 2/2/65)

Unless otherwise required by law, notice given by mail of the time and place of hearing shall be given by depositing the same in the United States mail, postage prepaid, at Milpitas, California, at least ten days prior to the hearing, in an envelope addressed to the person entitled to said notices at:

(a) The address shown on the document (if one be given) requesting the hearing, or

(b) The address shown on any City application, permit, license or other document which said hearing concerns, or

(c) The address shown on the last equalized assessment roll of the County of Santa Clara, California, or

(d) The address as is known to the City Manager of the City, or

(e) If said address cannot be ascertained from any of the preceding sources, a copy of said notice shall be posted in a conspicuous place at City Hall at least ten days prior to said hearing and a copy shall be mailed, addressed to the person entitled to said notice c/o General Delivery, Milpitas, California.

(Ord. 121 (part), 2/2/65)

Unless otherwise required by law, notice by mail need not be given by certified or registered mail, but may be given by regular mail in the discretion of the City official giving said notice.

(Ord. 121 (part), 2/2/65)

Unless otherwise provided by law, notice of hearing given by posting (where said notice is required) shall be given by posting said notice in a conspicuous place at City Hall at least ten days prior to said hearing date.

(Ord. 121 (part), 2/2/65)

Unless otherwise provided by law, notice of hearing given by publication (where said notice by publication is required) shall be given by publishing said notice in a newspaper of general circulation in the City of Milpitas at least ten days prior to said hearing date.

(Ord. 121 (part), 2/2/65)

The person giving notice on behalf of the City of Milpitas shall file with the City Manager an affidavit of service, mailing, posting or publishing of said notice. Unless otherwise required by law, in lieu of an affidavit of mailing, the person giving notice by mail may file any certified or registered mail return receipt cards which may have been returned to him in acknowledgement of receipt of notice provided, however, that nothing herein contained shall be construed to require the use of certified or registered mail. Failure of any person to provide proof of notice as herein required shall not affect in any manner the validity of any proceedings taken.

(Ord. 121 (part), 2/2/65)

The City Council of the City of Milpitas declares that it recognizes hearings before a City Council, board, commission or officer cannot proceed with the same degree of formality or the same adherence to technical rules as proceedings before a judicial body. Municipal hearings are conducted by laymen, rather than by lawyers and judges. The provisions of this Chapter as to hearings are intended to be only a general guide to those who conduct hearings before the Council or any City board, commission or officer. The provisions of this Chapter are, therefore, directory and not mandatory. Failure of the Council, board, commission or officer to comply with any provision hereof shall not invalidate any proceedings or action taken.

(Ord. 121 (part), 2/2/65)

The provisions of this Chapter as to the manner of conducting hearings shall apply only to those ordinances of the City of Milpitas, Chapters of the Milpitas Municipal Code and resolutions or regulations of the City of Milpitas which declare that hearings shall be held in the manner prescribed by this Chapter.

(Ord. 121 (part), 2/2/65)

The person before whom the hearing is conducted or the chairman of the Board or Commission before whom the hearing is conducted or the presiding Councilman of the City Council (hereafter called the "hearing officer") shall open the hearing.

(Ord. 121 (part), 2/2/65)

The hearing officer shall regulate the order of proof at the hearing. He shall maintain order at said hearing and shall be entitled to summon the assistance of a police officer if the same becomes necessary to maintain order. Any disorderly person may be expelled from said hearing upon order of the hearing officer or at the discretion of any police officer in attendance.

(Ord. 121 (part), 2/2/65)

The oral testimony of witnesses may be recorded on magnetic tape, and the magnetic tape shall be retained by the City for a period of one year following the date of decision upon said hearing, and may thereafter be destroyed or otherwise disposed of in the discretion of the City Manager.

(Ord. 121 (part), 2/2/65)

Persons wishing to speak or ask questions at said hearing shall be first recognized by the hearing officer. Persons wishing to speak or to ask questions shall, upon recognition by the hearing officer, give their name and address. Witnesses shall be required to approach a microphone or the podium before testifying.

(Ord. 121 (part), 2/2/65)

Any written reports, maps, charts, photographs, letters, petitions or other documents (or true copies thereof) presented at the hearing or used by witnesses in testifying at the hearing shall be introduced into evidence and shall be deemed to be a part of the hearing record. They shall be open to reasonable inspection by any interested party. They shall be retained by the City for a period of one year following the date of decision on said hearing and may thereafter be destroyed or otherwise disposed of in the discretion of the City Manager.

3.07-1 Provided, however, that blackboard sketches need not be made a part of the record unless prompt request is made therefor by an interested party who shall photograph said sketches at his expense at the time said sketches are made and before the hearing is adjourned or closed and shall within five days thereafter provide the hearing officer with three true copies of said photograph.

A reasonable opportunity shall be afforded to any interested party to ask questions of any witness provided:

3.08-1 Said questions shall be asked through the hearing officer for resubmission to the witness.

3.08-2 Said questions shall be relevant to the issues under consideration and asked for the purpose of eliciting information.

3.08-3 Said questions shall not be speeches in the guise of questions not shall be argumentative, unintelligible, insulting or compound.

3.08-4 The hearing officer may disallow any question which he determines in his discretion to violate any of the foregoing requirements.

(Ord. 121 (part), 2/2/65)

The hearing officer shall be the judge of the relevancy and materiality of all evidence offered. Only such weight need be given evidence offered as those hearing said evidence shall deem it entitled to receive. Conformity to the legal rules of evidence shall not be required.

(Ord. 121 (part), 2/2/65)

Before the close of the hearing, a reasonable opportunity shall be given any interested party to set forth his position on the matter under consideration and his opinion on the evidence submitted. The hearing officer may impose reasonable limits on the time therefor.

(Ord. 121 (part), 2/2/65)

The hearing officer may, in his discretion, adjourn the hearing from time to time and from place to place by oral announcement. The hearing shall be closed by the hearing officer by oral or written statement after the reception of evidence, cross-examination of witnesses and argument as hereinabove provided.

(Ord. 121 (part), 2/2/65)

3.12-1 The board, commission or City Council before whom a hearing was held (or, if the hearing was held before a hearing officer, then the City Council) may, on its own motion, by a vote of 3/5ths of all of the members of said board, commission or City Council (whichever shall be applicable), reopen any hearing:

(a) provided that no hearing shall be reopened by motion made at any time later than 20 days following the close of the hearing.

3.12-2 If the board, commission or Council shall reopen a hearing, notice of the reopening of the hearing shall be given in the same manner as the original hearing.

3.12-3 The decision of the board, commission or Council to grant or deny a request to reopen a hearing is final and not subject to appeal.

3.12-4 Failure of the board, commission or Council to take action on said request at its next regular meeting shall be deemed to be a denial of said request.

3.12-5 If the board, commission or Council shall reopen a hearing, notice of the reopening of the hearing shall be given in the same manner as the original hearing.

3.12-6 As a rule, the reopening of hearings, once closed, is disfavored; hearings will be reopened only for compelling reasons such as the introduction of newly discovered evidence, not known to the applicant at the time of the hearing, of such an important character as might bear on the result of the hearing.

3.12-7 The decision of the board, commission, or Council to grant or deny a request to reopen a hearing is final and not subject to appeal.

(Ord. 121 (part), 2/25/65)

The decision upon the hearing shall be based only on evidence presented at the hearing and prior to its close.

(Ord. 121 (part), 2/25/65)

No officer, board member, commissioner or councilman, and shall participate in the decision upon any hearing who was not present during the entire hearing from the time of its opening to the time of its close.

(Ord. 121 (part), 2/25/65)

All decisions shall be entered on the written minutes of the proceedings or shall be declared in writing.

(Ord. 121 (part), 2/25/65)

Unless otherwise required by law, the hearing officer, board, commission or council shall not be required to give reasons for his or its decision nor shall be or it be required to make findings; any decision shall be deemed to be supported by and to include implied findings in support thereof. Where findings are required by law (and unless more specifically required), a statement that the finding has been made (e.g., "the Council finds...") or a statement of the reasons for the decision or conclusions upon which the decision is based (whether made in the magnetic tape recording, the minutes of the proceedings, a resolution, an ordinance or any other document) shall constitute sufficient finding in support of any decision.

(Ord. 121 (part), 2/25/65)

A decision shall be made within sixty days of the date of the close of the hearing

(Ord. 121 (part), 2/25/65)

Section 4. - Abatement of Nuisances

The provisions of subsection I-20-5.02 of this Section shall apply only to those ordinances of the City of Milpitas and Chapters of the Milpitas Municipal Code which declares that an appeal may be had to the City Council subject to the rights and limitations of this Section 5 of this Chapter.

5.01-1 Provided, however, that the provisions of subsection I-20-5.02 shall not apply in any event to any of the following:

(a) To any case where a decision is declared expressly not subject to appeal by any statute or ordinance.

(b) To any case where any statute of the State of California provides a different procedure which is mandatory upon the City.

(Ord. 121 (part), 2/25/65)

Any person aggrieved by any final decision of any, board, commission, or department head to the City of Milpitas may appeal the decision to the City Council by filing written notice of the appeal with the City Clerk within twelve (12) calendar days of the date of said decision and paying the required fee. This time limit shall be strictly enforced.

(Ord. 121.9 (part), 5/21/96: Ord. 121.4, 1/16/79: Ord. 121 (part), 2/25/65)

As part of any appeal form a decision by a City board, commission, or department head, the appellant shall pay to the City at the time of filing the notice of appeal the sum adopted or amended by resolution of the Milpitas City Council. The purpose of the payment is to help defray the administrative costs.

(Ord. 121.9 (part), 5/21/96: Ord. 121 (part), 2/25/65)

Said notice of appeal shall state:

5.04-1 The name and address of the appellant or appellants,

5.04-2 The decision appeal from, the date of the decision and the name of the officer, board, commission or department rendering the decision,

5.04-3 The specific relief which the appellant seeks,

5.04-4 A summary of the reasons why the appellant claims he is entitled to the relief sought.

Said notice shall be signed by the appellant or appellants.

(Ord. 121 (part), 2/25/65)

A notice of appeal shall not be effective unless said notice shall be filed and, where required, the fee adopted or amended by resolution of the Milpitas City Council paid within the time herein required.

(Ord. 54.24 (1), 5/17/05: Ord. 121 (part), 2/2/65)

If the decision appealed from was one rendered upon public hearing before said officer, board, commission or department, the City Manager shall cause a hearing to be set before the Council within sixty days of the filing of said notice of appeal. Notice of said hearing shall be given in the same manner as was required to be given upon the original hearing before said officer, board, commission or department.

(Ord. 121 (part), 2/25/65)

Notice shall be given to the appellant or appellants by mail in accordance with Section I-20-2.02 of this Chapter.

(Ord. 121 (part), 2/25/65)

The Council shall hold a hearing upon said appeal in accordance with the provisions of Section I-20-3.02 of this Chapter. The Council may hear and consider evidence presented at the hearing below and may also hear and consider new evidence. The Council may also consider the decision of the officer, board, commission or department and the reasons, if any, assigned therefor.

(Ord. 121, 2/25/65)

The Council shall render its decision by majority vote within sixty days of the close of the hearing on appeal. The decision of the City Council shall be final.

(Ord. 121.5, 2/6/79)

The provisions of this section I-20-6.00 shall be applicable to any appeal to the City Council authorized by any ordinance of the City of Milpitas or the Milpitas Municipal Code (whether said appeal is taken pursuant to this Chapter or otherwise). It shall control over anything to the contrary contained in or inferable from any ordinance of the City or the Milpitas Municipal Code.

(Ord. 121 (part), 2/25/65)

When an appeal from any decision of any City Officer, board, commission or department to the Council is authorized by ordinance of the City or by the Milpitas Municipal Code, the Council shall be empowered to hear new evidence upon said appeal and to:

(i) sustain said decision, or

(ii) reverse and remand said decision for further consideration, or

(iii) reverse said decision (without remand) and reach an opposite decision, or

(iv) modify said decision, or

(v) sustain, reverse or modify said decision subject to such new or additional conditions as are imposed by the Council, provided, however, that the City Council shall not modify a decision or sustain, reverse or modify said decision subject to new or additional conditions without first giving the same notice and opportunity for hearing that was required by law for the original decision of the officer, board, commission or department appealed from.

(Ord. 121.5, 2/6/79)

The City Manager, City Council or any member of the City Council is empowered to appeal any decision of any officer, board, commission or department of the City of Milpitas within the time limits allowed by law and without fee. Unless otherwise stated, said appeal shall be deemed to be upon the ground that the matter appealed from is one which should be reviewed and decided by the City Council in the interest of the City. Said appeal may be made by writing, by minute action, by resolution, or (in the case of the City Manager) by scheduling the same upon the Council Agenda. No further formality in the case of appeals under this section need be met, and the requirements of Section I-20-5.03 and I-20-5.04 are specifically declared to be inapplicable to an appeal under this section.

The filing of an appeal under this section (in and of itself) shall not preclude any Council member from commenting or taking action or voting on the subject matter of said appeal. The purpose of an appeal under this section is not adversary but intended to bring the matter before the entire Council for its consideration.

(Ord. 121.6, 7/7/81)