HomeMy WebLinkAboutAdmin Order 58-92-01
ADMINISTRATIVE ORDER NO. 58-92-01
of the
City Manager of the City of Eugene
Procedures for Appealing Traffic Control
Administrative Actions Rule R-5.045
Pursuant to the authority contained in Section 2.019 of the Eugene Code, 1971, and
based on the findings hereinafter set forth, Emergency Rule R-5.045 adopted by me on
December 10, 1991 is hereby repealed, and permanent Procedures for Appealing Traffic
Control Administrative Actions Rule R-5.045 is hereby adopted to provide:
PROCEDURES FOR APPEALING TRAFFIC CONTROL
ADMINISTRATIVE ACTIONS EMERGENCY RULE R-5.04S
R-S.04S-A AUTHORI'IY.
These regulations are authorized by Section 2.019 of the Eugene Code, 1971, and
are established to implement the provisions of Section 5.045 of the Eugene Code, 1971.
R-S.045-B NOTICE OF ADMINISTRATIVE ACTION.
1. Notice to be Given. Except when the city traffic engineer determines prior
public notice is necessary, the city traffic engineer shall not give public notice prior to
implementing a traffic control administrative action. If the city traffic engineer determines
prior public notice is necessary then the city traffic engineer shall give such notice as is
reasonably calculated to notify persons impacted by the administrative action.
2. Timin!: and Contents of Notice. If the city traffic engineer determines prior
public notice is necessary, the notice shall be posted, mailed or published not later than
ten days after the issuance of the administrative action and shall contain:
2.1 A description of the administrative action to be implemented;
2.2 The street address or other easily understood geographical reference
to the traffic control area;
2.3 The date the administrative action is to be implemented. If the
administrative action requires emergency implementation, then the notice shall state
the reason for the emergency implementation;
Administrative Order - 1
2.4 A statement that any person aggrieved by the administrative decision
may appeal by filing an appeal with the office of the city traffic engineer;
2.5 The date by which the appeal must be filed;
2.6 A statement that the person will waive the right to appeal if the
person does not file a timely appeal; and
2.7 The name and phone number of the staff person to contact for more
information.
R-S.S4S-C APPEAL.
1. Content of Aoueal and How to File an Aoueal.
1.1 An appeal shall be in writing and shall identify the administrative
action to be reviewed, the specific relief sought. and the reasons the relief should
be granted.
1.2 The appeal shall be filed in the city traffic engineer's office within
thirty days after the issuance of the administrative action or after implementation
of the administrative action when no notice was given under R-5.045-B hereof.
The filing of the appeal is not complete until the appellant also deposits with the
city an appeal fee set by the City Manager pursuant to ~ 2.020, Eugene Code, 1971.
If the appeal is granted the deposit shall be returned to the appellant.
1.3 Upon receipt of a timely and properly filed appeal, the city traffic
engineer shall set a date for a hearing to be held within ninety days of the appeal
filing date.
Administrative Order - 2
2. Notice of Anneal Hearine.
2.1 Notice of an appeal hearing shall be given:
2.1.1 By first class mail or personally served upon the appellant; and
2.1.2 If notice was given prior to implementation of the administrative
action, in the same manner as notice of the administrative action was given;
or
2.1.3 If no notice was given prior to implementation of the
administrative action, by first class mail or personally served upon the
occupants and owners of record (if different than the occupants) of the
property within the traffic control area for the administrative action that is
the subject of the appeal. The identity of the owners of record shall be
determined from the most recent property tax assessment roll. The city
traffic engineer shall determine the property within the traffic control area.
2.2 The notice shall:
2.2.1 Explain the nature of the appeal and the specific relief sought
by the appeal;
2.2.2 Set forth the street address or other easily understood
geographical reference to the traffic control area;
2.2.3 State the date, time, and location of the hearing;
2.2.4 State when the staff report and a copy of the appeal and all
documents and evidence relied on by the appellant will be available for
inspection at no cost. The notice shall further state that copies of these
materials will be provided upon payment of the City's standard charges for
copies;
2.2.5 Identify a staff representative available to discuss the appeal,
and the telephone number where additional information may be obtained;
2.2.6 Include a general explanation of the requirements for submission
of oral or written testimony, and the procedure for the conduct of the
hearing; and
2.2.7 State that failure to raise an issue in the hearing, in person or
in writing, or failure to provide enough specificity to give the decision maker
Administrative Order - 3
an opportunity to respond to the issue, prevents appeal of the decision on
that issue to the city council or court.
2.3 The notice shall be published, mailed or served at least ten days
before the hearing.
2.4 A person who receives notice of a hearing pursuant to this section
waives the right to protest the administrative action if the person fails to appear in
person or in writing at the hearing.
3. Aooellant's Evidence. Any physical evidence (including but not limited to
written material, photographs, video tapes, models, maps, visual aids) the appellant intends
to present at the hearing shall be filed with the city traffic engineer at least five days prior
to the hearing. Except for good cause shown, the failure to file such evidence in a timely
manner shall result in the evidence being excluded from consideration in the appeal. This
prohibition shall not apply to any rebuttal evidence the hearings official may allow.
4. Burden of Proof at the Hearin2. The burden of proof is upon the appellant.
A decision to resolve the issues presented shall be based upon reliable, probative and
substantial evidence in the whole record.
s. Conduct of Hearin2.
5.1 No person may be disorderly, abusive, or disruptive of the conduct of
the hearing. Disorderly conduct may result in prosecution under ORS 166.025.
5.2 No person may present evidence, argument or comment without first
being recognized by the hearings official.
5.3 All witnesses shall identify themselves and their place of residence.
5.4 Any employe, agent, or officer of the city shall disclose his or her
relationship to the city when commencing to testify.
5.5 Formal rules of evidence as used in courts of law shall not apply.
Evidence that is not reliable, probative and useful may be excluded at the discretion
of the hearings official.
5.6 Audience demonstrations such as applause, cheering, display of signs,
and other conduct disruptive of the hearing shall not be permitted. Any such
conduct may be cause for immediate suspension of the hearing or removal of
disruptive persons.
Administrative Order - 4
,. Hearin2s Omcial. The hearings official shall:
6.1 Regulate the course and decorum of the hearing.
6.2 Dispose of procedural requests or similar matters.
6.3 Rule on offers of proof and relevancy, reliability, competency or
usefulness of evidence and testimony.
6.4 Impose reasonable limitations on the number of witnesses to be heard
and set reasonable time limits for oral presentation, questioning of witnesses, and
rebuttal testimony.
6.5 Take other action appropriate for the orderly conduct of the hearing.
7. Order of Procedure at the Hearin2. The hearings official in the conduct of
the hearing shall:
7.1 Commence the Hearini. Announce the nature and purpose of the
hearing and summarize the rules for its conduct. The hearings official shall make
a statement to those in attendance that:
7.1.1 Lists the applicable substantive criteria;
7.1.2 States that testimony and evidence must be directed toward the
specified criteria or to other criteria in the traffic control ordinances or
regulations which the person believes to apply to the decision; and
7.1.3 States that failure to raise an issue with sufficient specificity to
afford the decision maker and the parties an opportunity to respond to the
issue precludes an appeal on that issue to a higher city hearings body or
court.
7.2 Receive Staff Notes and Reports. Staff notes and reports, that have
been delivered to the hearings official along with the appeal and supporting
materials prior to the hearing shall be made part of the record. The hearings
official shall then request that city staff summarize the nature of the proposed
administrative action, explain any graphic or pictorial displays which are part of the
record, and provide whatever other information is requested by the hearings official.
If the hearings official has visited the traffic control area for the device which is the
subject of the appeal as part of the preparation for the hearing, any observations
that the hearings official deems relevant to the decision shall be disclosed.
Administrative Order - 5
7.3 Coordination of Testimony. To the degree necessary to an orderly
process within available time, the hearings official may consolidate submissions by
participants or establish reasonable time limits for presentation of testimony. One
or more spokespersons for any group may be designated by the hearings official.
7.4 Appellant's Case. The appellant or appellant's representative shall
first be heard, and other persons or groups in favor of the appellant's position shall
next be heard.
7.5 Interested Persons. The hearing's official shall next allow other
interested persons to be heard.
7.6 City Staff Presentation and Recommendations. Appropriate city staff
members may then present the staffs own analysis, findings, and pertinent
recommendations.
7.7 Ouestionini of Witnesses. The questioning of witnesses is a matter
solely within the discretion of the hearings official. The hearings official may permit
the questioning of witnesses by staff and other interested persons at the conclusion
of the witness's presentation. All questions to witnesses shall be submitted to the
witness through the hearings official unless the hearings official expressly permits the
submission of questions directly to a witness.
7.8 Rebuttal Evidence. The hearings official next shall allow appellant to
offer additional evidence and testimony, which shall be confined to rebutting the
evidence and testimony offered by interested persons and the city staff.
7.9 Raising Issues. An issue which may be the basis for an appeal shall
be raised not later than the close of the record at or following the final evidentiary
hearing on the appeal. Such issues shall be raised with sufficient specificity so as
to afford the hearings official and participants in the hearing an adequate
opportunity to respond to each issue.
7.10 Continuance of Hearing. The hearings official may continue the
hearing or keep the record open following oral testimony for any reason deemed
appropriate.
7.11 Close the Hearing. Subsequent to rebuttal by the appellants, the
hearings official shall close the hearing unless the hearing is to be continued or the
record kept open to a date certain. All actions taken by the hearings official
pursuant to this section shall be made a part of the record.
8. Hearin2s OMcial Decision. Not more than 90 days after an appeal is filed
Administrative Order - 6
the hearings official shall render the official's decision in writing, based on the criteria in
Section 5.055 of the Eugene Code, 1971. The decision shall be filed with the City
Recorder and a copy thereof mailed to the appellant and all persons who testified orally
or in writing at the hearing. When the decision concerns traffic diverters or permanent
street closure the decision shall also be distributed to the City Council at the time it is filed
with the City Recorder. Unless the matter appealed requires City Council action, the
decision of the hearings official shall be final when filed with the City Recorder. Decisions
that require City Council action shall be forwarded to the City Manager for inclusion on
a Council agenda.
9. Record of Hearin2 Proceedin2s.
9.1 A written record of the hearing shall be prepared but a verbatim record
is not required. To assist in the preparation of the record, the proceedings may be
stenographically or electronically recorded, but the record need not set forth
evidence verbatim.
9.2 Where practicable, the hearings official shall cause all presented physical
and documentary evidence to be received and to be marked to show the identity
of the person offering the evidence and to indicate whether it is presented on behalf
of the appellant, the city, or an interested party. If evidence is not capable of being
incorporated in the record, it shall not be included. All exhibits received into
evidence shall be retained by the staff until the time to appeal the hearings official's
decision or City Council's decision has lapsed, at which time the exhibits may be
released upon written demand to the person identified thereon as having offered
it, disposed of or, retained for future use.
10. Review bv City Council. Within 30 days from the date a decision of the
hearings official concerning traffic diverters or permanent street closure is filed with the
City Recorder a Councilor may file with the City Manager a written request that at its next
scheduled meeting the Council consider whether to review the decision. If a determination
to review is made, implementation of the hearings official's decision shall be suspended
pending a decision by the council. The time, date and place of the hearing shall be
established, and at least ten days prior written notice thereof shall be mailed to or
otherwise delivered to all persons who appeared before the hearings official. At the
hearing the Council shall consider the record before the hearings official and any additional
evidence it wishes to hear. At the conclusion thereof the Council may affirm, modify, or
reverse the hearings official's decision, based on the standards in Section 5.055 of the
Eugene Code, 1971. The decision of the Council is final, and shall be filed with the City
Recorder and mailed to all persons to whom notice of the hearing before the Council was
given.
This Rule is adopted after giving public notice by publication thereof on December
Administrative Order - 7
21, 22, 23, 24, 25, 1991 in the Register Guard, a newspaper of general circulation within
the City that I intended to adopt as a permanent rule the Procedures for Appealing Traffic
Control Administrative Actions Emergency Rule R-5.045 adopted by me on December 10,
1991, and by making copies thereof available to interested persons at the office of the City
Engineer, 858 Pearl Street, Eugene, Oregon. The Notice advised that an opportunity for
written comment thereon would be provided for a period of 15 days from the first date
of publication. No comments or objections thereto have been received within the time and
in the manner prescribed in the Notice, and the Procedures for Appealing Traffic Control
Administrative Actions Rule R-5.045 as contained herein is therefor adopted as proposed,
to be effective as indicated below.
j t.1-rtv
Dated and effective this .!!:::2. day of January, 1992.
~
Administrative Order - 8