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Thursday, June 24, 2021

Hearing Process for Violations

 

The following rules will apply in all cases that come before the Yavapai County Hearing Officer for violations of the Yavapai County Planning and Zoning Ordinance or the Yavapai County Building Codes. Civil penalties may be set in accordance with Arizona State law for violations of the Yavapai County Planning and Zoning Ordinance (A.R.S. §11-815 D) and A.R.S. §11-866 for violations of the Building Codes.

Note:  Effective January 20, 2004, responsibility for the Hearing Office was transferred to the Development Services Department.

0. Definitions

  1. Attorney – an attorney (lawyer) licensed to practice law in the State of Arizona.
  2. Board – the Yavapai County Board of Supervisors.
  3. Chairman – the Chairman of the Yavapai County Board of Supervisors or, if the Chairman is not present, the person who is acting as Chairman.
  4. Civil Penalties – fines that may be imposed on a Defendant.
  5. Clerk of the Board – the Clerk of the Board of Supervisors.
  6. Clerk – the person who acts as the Clerk for the Hearing Officer.
  7. Comply or Compliance – meeting the requirements of the Yavapai County Planning and Zoning Ordinance or the Yavapai County Building Codes.
  8. Compliance Date – the date by which a property must meet the requirements of the Yavapai County Planning and Zoning Ordinance or the Yavapai County Building Codes.
  9. County – the Yavapai County Development Services Department.
  10. Default – not showing up for a hearing or failing to either admit or deny responsibility for a violation.
  11. Defendant – the alleged violator who has received a Notice of Violation.
  12. Hearing – the meeting with the Hearing Officer at which the Defendant and the County present their cases regarding the Notice of Violation.
  13. Hearing Officer – the person appointed by the Board of Supervisors to hear cases related to violations of the Yavapai County Planning and Zoning Ordinance or the Yavapai County Building Codes.
  14. Hearing Office – the Office of the Clerk of the Board of Supervisors.
  15. Inspector – the Yavapai County employee or other person authorized to inspect property or to deliver Notices of Violation.
  16. Judgment – the decision of the Hearing Officer in cases related to violations of the Yavapai County Planning and Zoning Ordinance or the Yavapai County Building Codes.
  17. Notice of Violation – a land use violation or building safety violation complaint.
  18. Party or Parties – the Defendant and/or the County.
  19. Pre-hearing Discovery – documents, witnesses or other evidence related to a case.
  20. Serve or Service – the act of delivering a Notice of Violation to a property owner.

1. Issuing a Notice of Violation

Important Notice

A case may be brought before the Hearing Officer for a violation of the Yavapai County Planning and Zoning Ordinance or Yavapai County Building Codes after a Notice of Violation has been issued to the alleged violator.

The Notice of Violation provided to the alleged violator will include the date, time and location of the hearing on the violation and a copy of the Yavapai County Hearing Officer Rules of Procedure for Land Use and Building Safety Violations. The Notice of Violation will also include a statement that the Defendant has the right to be represented by an Attorney provided that the Defendant or the Defendant’s Attorney notifies the Hearing Officer in writing at least 10 days before the hearing that he or she will be represented by an Attorney.

The Notice of Violation will be served to the alleged violator by the Inspector. If the Inspector is unable to personally serve the Notice of Violation, it may be served as provided for alternative methods of service in the Arizona Rules of Civil Procedure. If a Notice of Violation cannot be served personally by the Inspector, then it must be served by an alternative method at least 30 days before the hearing.

The Inspector is required to file a copy of the Notice of Violation and any other appropriate documentation related to the case with the Hearing Officer.

2. Changing the Notice of Violation

The Hearing Officer may allow a Notice of Violation to be changed by the County at any time before he makes a Judgment in the case, as long as the change does not include any additional or different violations and if the Hearing Officer determines that the rights of the Defendant are not harmed by making the change.

The Hearing Officer may allow a Notice of Violation to be changed at the hearing in order to make it consistent with evidence that is presented, as long as the change does not include any additional or different violations and if the Hearing Officer determines that the rights of the Defendant are not harmed by making the change.

Any changes to a Notice of Violation are considered to have been included in the original Notice of Violation as of the date it was issued.

3. Dismissing the Notice of Violation

The Hearing Officer will dismiss a Notice of Violation when a request for dismissal is received from the County, or from the County Attorney. A request to dismiss a Notice of Violation may be made on or before the date of the hearing.

If a Notice of Violation is dismissed, the hearing will not be held.  The Hearing Office will notify the Defendant and the County that the Notice of Violation has been dismissed and that the hearing has been cancelled.

A Notice of Violation that has been dismissed by the Hearing Officer may be re-filed with the Hearing Officer at a later date as a new violation.

4. Respond to the Notice of Violation: Default; Right to an Attorney

Defendant’s Rights and Responsibilities

The Defendant may either admit or deny responsibility for the violation(s) by appearing at the hearing or by mailing to the Hearing Office no less than 10 days before the hearing a short statement signed by the Defendant or by the Defendant’s attorney admitting to or denying the violation(s) listed in the Notice of Violation.

If the Defendant admits responsibility for the violation(s), the hearing will not be held. Instead, the Hearing Officer will enter a Judgment for the County and will provide to both the Defendant and the County a Judgment notice explaining what the Defendant must do to comply with the Yavapai County Planning and Zoning Ordinance or Yavapai County Building Codes, including the date by which the Defendant must be in compliance. The notice will also include information about civil penalties that will be set if the Defendant does not come into compliance by the date listed in the notice. If the Defendant wishes to have a hearing on the conditions set out in the Judgment notice, he or she must request a hearing in writing within 15 days after the Judgment notice is signed.

If the Defendant denies responsibility for the violation(s), the hearing will be held on the date and time listed in the Notice of Violation.

If the Defendant does not respond to the Notice of Violation in writing and fails to appear at the hearing, the Hearing Officer will find the Defendant to be in Default, will enter a Judgment for the County, and will set civil penalties. A Judgment notice will be provided to the Defendant and to the County explaining what the Defendant must do to comply with the Yavapai County Planning and Zoning Ordinance or Yavapai County Building Codes, including the date by which the Defendant must be in compliance and the amount of the civil penalties. The Hearing Officer may set aside a Default Judgment if the Defendant makes such a request in writing within 20 days after the Judgment is signed, and if the Hearing Officer believes there is a good reason to set aside the Default Judgment.

If a Defendant or the Defendant’s Attorney does not notify the Hearing Office of his or her plan to be represented by an Attorney at least 10 days before the hearing, the right to representation by an Attorney is considered to be waived. If the Defendant can show a good reason why he or she did not notify the Hearing Office of his or her plan to be represented by an Attorney, the Hearing Officer may reinstate the Defendant’s right to representation by an Attorney but may also grant a recess or continue the hearing to a later date in order to give the County additional time to prepare its case.

In most cases the County will not be represented by an Attorney unless the Defendant has provided notice of his or her intent to be represented by an Attorney. However, the County reserves the right to be represented by an Attorney in any case if it appears that it is in the best interests of the County to do so.

5. Subpoenas; Discovery; Disclosure of Evidence

At the request of either the Defendant or the County, the Hearing Officer may issue a subpoena to any person who is not involved in the case and who is 18 years of age or older, requiring that person to attend the hearing. A person who has been subpoenaed will receive a witness fee for each day of appearance at a hearing, plus reimbursement for mileage at the County’s current reimbursement rate. The party requesting the subpoena pays the witness fee and mileage.

No Pre-hearing Discovery is allowed unless, in the opinion of the Hearing Officer, extraordinary circumstances exist.

At the hearing, the Defendant and the County will provide to each other a list of witnesses, prepared exhibits and written or recorded statements. Upon request, the Hearing Officer may grant a recess or continue the hearing to a later date in order to provide the Defendant and the County time to inspect the evidence. The Hearing Officer may also prohibit the introduction of any evidence deemed irrelevant or otherwise inappropriate.

6. Postponement of Hearing

The Hearing Officer may postpone a hearing for a period not to exceed 60 days if requested to do so by either the Defendant or the County, or if the Hearing Officer believes it is appropriate to do so.

If a hearing is postponed, the Hearing Office will provide notice of the new hearing date to both Parties. Notice to the Defendant will be by United States Postal Service first-class mail.

7. Compliance Before the Hearing

If the violation(s) listed in the Notice of Violation is corrected before the hearing, the Inspector may provide to the Hearing Officer a statement of compliance. The Hearing Officer will then cancel the hearing and provide written notice to both parties that the Defendant’s hearing has been cancelled. If a hearing is cancelled, it is unnecessary for either the Defendant or the County to attend the hearing.

8. Conduct of the Hearing

The Arizona Rules of Evidence will not apply in cases coming before the Hearing Officer. Any evidence that is offered may be included if the Hearing Officer believes that the evidence is important to the case.

The County will present its case first, and then the Defendant will present his or her case. After initial presentations, each Party may present witnesses and rebuttal testimony.

All testimony will be given under oath or affirmation.

An audiotape record of the hearing will be made and maintained by the Hearing Office for a period of one year from the date of the hearing. A copy of the recorded hearing may be purchased upon request.

9. Failure to Appear; Default Judgment

If neither the Defendant Nor the Defendant’s Attorney appears at any hearing, the Hearing Officer will find the Defendant to have committed the violation(s), enter a Judgment for the County, and set civil penalties in accordance with the Yavapai County Planning and Zoning Ordinance or Yavapai County Building Codes. The Hearing Officer will also set a nonrefundable minimum $100 fine that is due and payable as of the date and time set for the hearing. The Judgment will include information about what the Defendant must do to be in compliance with the Planning and Zoning Ordinance or the Yavapai County Building Codes, including the date by which the Defendant must be in compliance, information about the civil penalties that have been set, and what will happen if the Defendant is not in compliance by the date given in the Judgment. A Judgment notice will be sent to the Defendant and to the County, with the notice to the Defendant being sent by first-class mail.

If the County fails to appear at any hearing, the Hearing Officer will dismiss the Notice of Violation.

The Hearing Officer may set aside a Default Judgment if a written request from the Defendant is received within 20 days of the date the Judgment is made. The County will receive a copy of the request and will have 15 days from the date the copy is sent in which to send its response to the Hearing Officer. At any time, the Hearing Officer may set aside a Judgment if the County fails to respond.

The Hearing Officer may also set a hearing at which the only issue is whether or not the County’s failure to respond or the Defendant’s failure to appear at a hearing was justifiable or excusable. A notice of this hearing will be sent to the Defendant and to the County, with the notice to the Defendant being sent by United States Postal Service first-class mail.

10. Determination of Responsibility

If the Hearing Officer determines that the Defendant is responsible for any or all of the land use or building safety violation(s) listed in the Notice of Violation, whether it is the original Notice of Violation or one that has been changed, the Hearing Officer will enter a Judgment for the County and set civil penalties in accordance with the Yavapai County Planning and Zoning Ordinance or Yavapai County Building Codes. The Hearing Officer will also set a nonrefundable minimum $100 fine that is due and payable at the time of the hearing. The Hearing Officer may waive the minimum $100 fine if it is determined that the physical, mental or financial situation of the Defendant is such that imposing the fine would result in an unreasonable hardship. The Judgment will include information about what the Defendant must do to be in compliance with the Planning and Zoning Ordinance or the Yavapai County Building Codes, including the date by which the Defendant must be in compliance, information about the civil penalties that have been set, and what will happen if the Defendant is not in compliance by the date given in the Judgment. If the Defendant comes into compliance by the date listed in the Judgment, the Hearing Officer may set aside the civil penalties, except that civil penalties set and payable for a previous case or cases for the same violation(s) cannot be set aside.

The Defendant is not relieved of responsibility for correcting violations simply because the Hearing Officer sets civil penalties.

If the Hearing Officer finds the Defendant to be in violation of the Planning and Zoning Ordinance or the Yavapai County Building Codes and enters a Judgment for the County, the Defendant will be advised of his or her right to appeal the Hearing Officer’s decision to the Board of Supervisors. The Judgment notice, along with a summary of the right to appeal procedure, will be sent to the Defendant by first-class mail.

Unless the Defendant appeals the decision of the Hearing Officer within 15 days of the date the Judgment notice is signed, the Defendant will be required to correct the violation(s) in accordance with the provisions of the Judgment.

11. Failure to Comply With the Judgment; Civil Penalties

If the Defendant fails to correct the violation(s) by the compliance date listed in the Judgment notice, any civil penalties set by the Hearing Officer will become immediately due and payable. If you believe that the determination of the Non-Compliance is incorrect you have 10 days from the date of this Order to request a hearing. The request must be submitted in writing. Failure of the Defendant to pay the civil penalties will result in the County turning collection of the civil penalties over to a collection agency and the addition of another 25% of the total amount of the civil penalties. In addition, the Inspector may refer the case to the County Attorney for further action. The Hearing Office will be notified in writing of any cases referred to the County Attorney.

In the case of an appeal to the Board of Supervisors the civil penalties will become due and payable by the compliance date or by the date of the Board of Supervisors’ ruling whichever is later

12. Appeals to the Board of Supervisors

Right to Appeal

Both the Defendant and the County have the right to appeal the initial Judgment of the Hearing Officer to the Board of Supervisors. In order to appeal, a written notice of appeal must be filed with the Hearing Office within 15 days from the date the Judgment is signed, in accordance with Yavapai County Development Services Fee Schedule, a request for review will not be processed unless it is accompanied by the required payment.

When the Hearing Office receives the notice of appeal, notice will be sent to the Defendant and to the County providing information about the date, time and location of the Board’s review of the Hearing Officer’s decision and giving a date by which appeal memorandums must be received. An appeal memorandum can be no longer than 5 pages, and cannot raise issues or include information that was not presented to the Hearing Officer. In addition to filing appeal memorandums with the Hearing Office, each party shall send to the other party a copy of their appeal memorandum no less than 10 days prior to the date the Board is scheduled to review the Hearing Officer’s decision.

The Board of Supervisors’ review of the Hearing Officer’s decision will be to determine whether the decision of the Hearing Officer was reached in a fair and impartial manner. The Board’s review will be limited to the information presented to the Hearing Officer during the case, along with appeal memorandums from the Defendant and the County. No new evidence will be allowed. The Chairman of the Board of Supervisors will preside at the meeting, and may allow Board members to direct questions to the Defendant and the County regarding the record of the hearing. After considering the appeal, the Board may:

  1. Uphold all or part of the Hearing Officer’s decision.
  2. Reverse all or part of the Hearing Officer’s decision.
  3. Send the matter back to the Hearing Officer for further consideration.
  4. Increase, decrease or modify any of the civil penalties set by the Hearing Officer.
  5. Extend, shorten or modify the date set for compliance.

The Board will make a decision regarding the appeal within 15 days from the date it reviews the Hearing Officer’s decision, unless a majority of the Board votes to extend the time frame to 30 days. The Clerk of the Board will provide written notice of the Board’s ruling to both the Defendant and the County within 10 days of the Board’s decision. The notice to the Defendant will be sent by first-class mail. The Board’s ruling is considered a final decision with regard to the administrative review of Notices of Violations.

Director of Development Services

David Williams

Director

 
Prescott Office:
1120 Commerce Drive
Prescott, AZ 86305
Phone: (928) 771-3214
Fax: (928) 771-3242
Assistant Director Development Services

Jeremy Dye

Assistant Director

 
Cottonwood Office:
10 S. 6th Street
Cottonwood, AZ 86326
Phone: (928) 639-8151
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