§ 46-23. Hearings; waiver.

(a)

Request for hearing . A property owner may request a hearing before the special magistrate upon receipt of a declaration of chronic nuisance property. A request for hearing shall be filed with the village and shall:

(1)

Be in writing;

(2)

Provide a short, plain statement identifying the factual, procedural or legal error upon which the request for hearing is based; and

(3)

Include a copy of the declaration of chronic nuisance property or otherwise provide the owner's name and mailing address and the address of the property that has been declared a chronic nuisance.

(b)

Time for filing a request for hearing . A request for hearing shall be filed with the village within 15 days from the date of the declaration of chronic nuisance property.

(c)

Waiver of right to contest . If the owner of a chronic nuisance property fails to file a timely request for hearing, the property owner shall be deemed to have waived the right to contest the declaration of chronic nuisance property.

(d)

Hearing by the special magistrate . Upon receipt of a timely request or upon notice that a notice of violation has not been complied with, the village shall schedule a hearing before the special magistrate. A hearing to challenge a declaration of chronic nuisance property shall be limited to the issue of whether or not a pattern of nuisance activity exists upon the subject property and what action plan shall be required, if any. A hearing to challenge a notice of violation regarding the action plan shall be limited to whether or not the action plan is adequate to curtail or eliminate the re-occurrence of nuisance activities on the property and/or whether the action plan was properly and timely implemented. Hearings shall be conducted as follows:

(1)

The special magistrate shall adopt rules, as necessary, for the conduct of the hearings. All hearings and proceedings shall be open to the public and minutes shall be kept. All testimony shall be taken under oath and shall be recorded.

(2)

Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. The special magistrate may consider any relevant evidence. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a state court.

(3)

Each party shall have the following rights:

a.

To call and examine witnesses.

b.

To introduce documentary evidence, exhibits, or physical evidence.

c.

To cross examine opposing witnesses on any relevant matter.

d.

To impeach any witness.

e.

To submit rebuttal evidence.

f.

To be represented by counsel.

(4)

All findings of the special magistrate shall be based on a preponderance of the evidence. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible in a civil action.

(5)

At the conclusion of the hearing, the special magistrate shall issue findings of fact and conclusions of law with respect to the issues before it.

(e)

Decision of the special magistrate . After reviewing the testimony and evidence presented, the special magistrate shall either uphold or reject the declaration of chronic nuisance property or notice of violation, as appropriate. The decision of the special magistrate shall be in writing and shall be deemed final. If the special magistrate upholds the declaration of chronic nuisance property, the special magistrate shall enter an order establishing the requirements of the action plan, providing a reasonable time to implement the action plan, and setting a hearing date and time to consider the entry of a chronic nuisance service order if the action plan is not timely implemented. If the special magistrate upholds the notice of violation, the special magistrate shall immediately enter a chronic nuisance service order in accordance with section 46-24. If the special magistrate rejects either the declaration of chronic nuisance property or the notice of violation, the special magistrate shall identify the factual, procedural or legal error upon which the decision is based.

(Ord. No. 2015-20, § 2, 5-14-2015)