§ 2-84. Special Magistrate procedures.

(a)

Hearing procedures.

(1)

If the violation is not corrected by the time specified for correction by the Code Compliance Officer, the case may be presented to the Special Magistrate, even if the violation has been corrected prior to the Special Magistrate hearing, and the notice shall so state.

(2)

At the time and place set for the hearing, the Special Magistrate shall hear and consider all testimony offered, and shall examine and consider all the evidence presented. After determining that there is a legally sufficient case to be presented, the Town Attorney, or the Code Compliance Officer shall present each case before the Special Magistrate. After the conclusion of the hearing, the Special Magistrate shall issue findings of fact and conclusions of law, in a written order, affording the proper relief consistent with the powers granted herein. Such order may command a violator to take whatever steps are necessary to bring a violation into compliance by the time announced at the hearing and subsequently placed in the order. The findings, conclusions and order of the Special Magistrate shall be announced orally at the Special Magistrate hearing, and shall be reduced to writing and mailed to the violator.

(3)

If the Code Compliance Officer determines that the violator has not brought the violation into compliance by the date provided for in the Special Magistrate Order, then the Code Compliance Officer shall notify the Special Magistrate Clerk, who shall schedule a hearing before the Special Magistrate in order to request that the Special Magistrate certify the applicable civil penalties and/or administrative costs against the violator.

(4)

No Special Magistrate shall act in any case in which that Special Magistrate has a conflict of interest. If the Special Magistrate has a conflict of interest with any case, he or she shall orally announce such at the scheduled hearing. However, if the Special Magistrate is aware of such conflict prior to the hearing, he or she shall notify the Special Magistrate Clerk, and that case shall be rescheduled for a hearing before another Special Magistrate.

(5)

All hearings of the Special Magistrate shall be open to the public, and any person whose interests may be affected by the matter before the Special Magistrate shall be given an opportunity to be heard. The record of all hearings, agendas, findings, determinations and final orders shall be maintained by the Special Magistrate Clerk.

(6)

Hearings shall be informal and need not be conducted according to technical rules relating to evidence and witnesses. Fundamental due process shall be observed and shall govern all hearings.

(7)

All relevant evidence shall be admitted if, in the opinion of the Special Magistrate, it is the type of evidence upon which reasonable and responsible persons would normally rely in the conduct of business affairs, regardless of the existence of any common law or statutory rule which might make such evidence inadmissible over objections in a civil action. The Special Magistrate may exclude irrelevant or unduly repetitious evidence.

(8)

Hearsay evidence may be accepted for the purpose of supplementing or explaining any direct evidence, but such hearsay evidence shall not in and of itself be considered sufficient to support a finding or decision, unless the evidence would be admissible over objections in a civil action.

(9)

Each party to the hearing shall have the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach witnesses and rebut evidence.

(10)

The alleged violator has the right, at his or her own expense, to be represented by an attorney at any Special Magistrate hearing.

(11)

All testimony before the Special Magistrate shall be under oath and shall be recorded. The alleged violator or the town may cause the proceedings to be recorded by a certified court reporter or by a certified recording instrument.

(12)

The burden of proof shall be with the Code Compliance Officer to show, by the greater weight of evidence, that a code violation exists and that the alleged violator committed, or was responsible for maintaining, the violation.

(13)

If written notice of the hearing has been provided to an alleged violator, a hearing may be conducted and an order rendered in the absence of the violator.

(14)

The Special Magistrate may, for good cause shown, postpone or continue a hearing.

(15)

Subsequent to a public hearing, the Special Magistrate shall make a written report, a final order of his or her decision, in accord with the rules and procedures set forth herein, and shall provide a copy of the final order to all parties of record and appropriate town staff.

(16)

The town shall record all proceedings.

(b)

Subpoena powers. The Code Compliance Officer, the Special Magistrate, the Code Prosecutor and the alleged violator may request that witnesses and records, including surveys, plats and other materials, be subpoenaed to any formal hearings. Subpoenas may be served by Officers of the Police Department of the town, police aides or other such persons authorized to deliver subpoenas. The Special Magistrate shall provide the Special Magistrate Clerk with sufficient signed and blank witness and document subpoenas to be provided to alleged violators and the Code Compliance Officer for the purpose of having witnesses and records subpoenaed. For each subpoena served, the violator shall pay to the town a fee that shall be set by resolution of the Town Council.

(c)

Calling of emergency hearings. The Special Magistrate may call an emergency Special Magistrate hearing. Written notice of any emergency hearing shall be given to an alleged violator, if circumstances permit, at least one day in advance of such hearing. The Special Magistrate may, at any hearing, set a future hearing date.

(Ord. No. C-372, § 16, 2-11-2014)