§ 47-338. Appeals.

(a)

A property owner who has made proper application under the terms of this article and is dissatisfied with a decision of the director on the application concerning:

(1)

The issuance or recognition of a reservation of wastewater capacity;

(2)

The applicability, amount or time of payment of capital recovery charges;

(3)

The conversion of one type of reservation of wastewater capacity into another type; or

(4)

The transfer of reserved wastewater capacity from one tract to another;

may appeal to the board in accordance with the provisions of this section.

(b)

In order to appeal to the board a property owner must, within 15 days after receiving written notice of the director's decision, pay the applicable fee and file with the director a notice of appeal containing the following:

(1)

A clear reference to the decision from which the property owner wishes to appeal.

(2)

A short statement of the grounds for the appeal.

(3)

A specific description of the action the property owner desires the board to take.

(4)

The signature of the property owner.

(c)

The director shall forward the notice of appeal to the board. During the ten days immediately following receipt of the notice of appeal, the director shall be authorized to modify the decision in question. If, pursuant to this authority, the director modifies his initial decision in such a manner as to grant to the property owner the relief requested, then in that event the board shall dismiss the appeal without action thereon.

(d)

The board shall, upon receipt of a substantially complete notice of appeal, schedule a hearing on the matter and give reasonable notice of the time and location of the hearing. The hearing shall be held no earlier than ten days and no later than 40 days after receipt of the notice of appeal. A decision must be rendered within days after the hearing. The final decision of the board shall be in writing and shall either sustain the director's decision or grant all or a portion of the relief requested by the property owner.

(e)

The board, in considering an appeal, may ascertain the relevant facts and may interpret the applicable provisions of this article, but may not grant exceptions to or variances from the provisions of this article except as provided in (f), below.

(f)

(1)
The board may order the director to issue a wastewater capacity reservation or restricted wastewater capacity reservation for a proposed development which would not otherwise qualify under the provision of this article, if the applicant files an application with the board prior to October 24, 1985, and can demonstrate that, prior to the effective date:

a.

City officials represented to the applicant or his agents that wastewater capacity was reserved to serve the applicant's proposed development or that certain expenditures by the applicant would be credited against, or accepted in lieu of, any applicable charges for connecting to the system;

b.

The applicant, in reasonable reliance upon such representation, incurred substantial expense in going forward with the proposed development and did not apply for issuance or renewal of a utility commitment letter for which the applicant's proposed development would have qualified; and

c.

In view of the nature and extent of the city officials' representation and the actions taken by the property owner in reliance thereon it would be inequitable to require the property owner to comply with the provisions of this article.

(2)

A reservation of wastewater capacity issued under authority of this subsection (f) may be conditioned in accordance with the circumstances under which it is issued and may provide for:

a.

Restrictions against transfer;

b.

Reduction or elimination of the capital recovery charge;

c.

A change in the time at which the capital recovery charge is payable;

d.

An amount of reserved wastewater capacity less than that applied for;

e.

Such other restrictions, conditions or exceptions as may be appropriate.

(3)

In no event shall the board order the director to issue a wastewater capacity reservation or restricted wastewater capacity reservation in wastewater facilities which are already fully loaded or reserved. In such circumstances the board may order the director to grant the appellant priority in the reservation of capacity in any new or expanded wastewater facilities which may be constructed in the future.

(g)

The time limits prescribed for actions of the board are directory in nature and the board's failure to act within such limits shall not effect the validity of its actions. The time limit prescribed for the filing of a notice of appeal and payment of the applicable fee is mandatory and the failure of the property owner to act within such time limits shall extinguish the right of appeal. All notices required or authorized by this article must be in writing and must either be hand delivered or mailed by United States mail. A notice delivered by mail shall be deemed to be received on the earlier of the date it is actually received, or the third day following the date upon which the notice was deposited, properly addressed and with proper postage attached, in custody of the U.S. Postal Service.

(Code 1968, § 49-738; Ord. No. 83-650, § 1, 5-3-83; Ord. No. 84-1673, § 4, 10-24-84)