(A)   It shall be unlawful, and considered a public nuisance per se, to make use of any lot, parcel or piece of property in such a way as to conflict with the provisions of the code. Likewise, it shall be in violation of this zoning code to erect, construct, reconstruct, alter or use a building or any other structure, or to use real property that does not conform to the criteria set forth in this zoning code. The Tusayan Town Council, Town Attorney, Town Marshal, Town Clerk, Town Manager and all officials charged with the issuance of licenses or permits shall enforce the provisions of this zoning code. Any permit, certificate or license issued in conflict with the provisions of this zoning code shall be void. To provide for the enforcement of the zoning code, the town may withhold all building permits and/or conditional use permits for properties on which a use of the property, building or any other structure exists which does not meet the standards of this zoning code.

   (B)   A Zoning Enforcement Officer shall investigate and report on all notices of zoning violations. The Town Council shall appoint a Hearing Officer to hear and determine zoning violations. Individuals determined by the Hearing Officer to beviolating any provisions of this zoning code shall be responsible for a zoning violation that is punishable by a civil sanction not to exceed the equivalent of a maximum fine of a Class 2 misdemeanor for each violation pursuant to A.R.S. § 9-240.

(Ord. 2012-04, passed 12-5-2012)

   (A)   The Town Council shall periodically appoint a Hearing Officer to hear and determine zoning code and other code violations. The Hearing Officer shall not be a member of any town board or commission and shall not be an employee of the town in any other capacity, except if the town elects to employ a person to be the town’s Hearing Officer. The Hearing Officer may have other responsibilities pursuant to other sections of this code, but shall not be the Town Zoning Administrator.

   (B)   An administrative review of decisions of the Hearing Officer by the Town Council shall be available to any party to the hearing. Any appeal of the Town Council’s decision shall be filed in Coconino County Superior Court.

(Ord. 2012-04, passed 12-5-2012)

   (A)   ZONING ENFORCEMENT OFFICER shall mean the town’s Zoning Administrator or his or her designee.

   (B)   The Zoning Enforcement Officer shall review all reported violations of this zoning code.

   Upon receiving a report of a zoning violation, the Zoning Enforcement Officer shall inspect the site of the alleged violation. During an inspection, the Zoning Enforcement Officer shall take careful and comprehensive notes as to condition and existing uses of the subject property, location, property owner and address, and specific section(s) of the zoning code corresponding to the alleged violation.

   (C)   Should the Zoning Enforcement Officer determine that a violation is occurring on the subject property, he or she shall serve notice to the property owner/alleged violator of the violation. The notice of violation shall cite the nature of the violation, the section of the zoning code violated, information of possible penalties if violation has not ceased, steps necessary to bring the subject property into compliance with the zoning regulations, and a reasonable time frame in which all necessary actions should be completed to correct the noticed violation.

   (D)   Re-inspection shall occur after the given deadline. If the violation still exists at this time, a second notice shall be given to the property owner/alleged violator. The second notice of violation shall set a final deadline for compliance not to exceed two weeks. If the Zoning Enforcement Officer is convinced an attempt is being made in the correction of the violation, an additional extension not to exceed 30 days may be granted.

   (E)   If all reasonable attempts by town staff fail to resolve the violation within the time specified in the second notice, or by the deadline of any extension, a citation shall be issued for each specific section of the zoning code which has been violated. The town shall use reasonable efforts to personally serve the citation on the alleged violator by the Zoning Enforcement Officer at least 17 days prior to the hearing. If the Zoning Enforcement Officer is unable to personally serve the citation, the citation may be served in the same manner prescribed for alternative methods of service by the Arizona Rules of Civil Procedure. Violations for which citations are issued shall be scheduled for a hearing before the Town Hearing Officer. If a citation is served upon an alleged violator other than by personal service (i.e., certified mail with return receipt), the hearing shall be set for a date no sooner than 30 days from the date indicated on the certified mail receipt. A notification of the specific time and date by which the alleged violator must appear at the Hearing Office to submit a plea shall be enclosed with the citation.

(Ord. 2012-04, passed 12-5-2012)

   (A)   Commencement.

      (1)   Every action or proceeding brought before the Hearing Officer for a violation of the zoning code shall be commenced by the filing of a zoning violation citation by the Zoning Enforcement Officer. No notice shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific violation if the notice contains either a written description or reference to the applicable section of the zoning code.

      (2)   Pursuant to § 7.2 of this zoning code, the alleged violator or his or her attorney shall appear in front of the Hearing Officer by the date and time specified in the notice accompanying the zoning citation, and may admit responsibility by appearing in person or by mailing to the Hearing Office an appearance form provided by the Hearing Officer or in lieu of such form, a short statement signed by the alleged violator or his or her attorney, admitting the allegations of the notice. Once a formal admission of responsibility is received by the Hearing Officer, the Hearing Officer shall set a time and place for the determination of the penalty for the violation. At the Hearing Officer’s meeting, both the alleged violator and Zoning Enforcement Officer shall be given an opportunity to state their positions on the amount of the penalty to be imposed by the Hearing Officer.

   (B)   Counsel.

      (1)   Pursuant to § 7.2 of this zoning code, the alleged violator or his or her attorney shall appear at the Hearing Office by the date specified in the notice accompanying the zoning citation and may deny responsibility by appearing in person or by mailing to the Hearing Officer an appearance form provided by the Hearing Officer, or in lieu of such form, a denial signed by the alleged violator or his or her attorney. Once a formal denial is received by the Hearing Officer, the Hearing Officer shall schedule the matter for hearing and notify the alleged violator, or his or her attorney, of the date, time and place for the hearing.

      (2)   Upon appearance, it shall be the responsibility of the alleged violator or his or her attorney to notify the Hearing Officer of an incorrect address or any different address than what is set forth on the zoning citation.

         (a)   After the submittal of formal denial, the Hearing Officer shall promptly notify the alleged violator of his or her right to be represented by counsel. The alleged violator must notify the Hearing Officer in writing at least ten days prior to the hearing date of his or her choice to be represented by counsel. The Hearing Officer may move to continue a hearing if the alleged violator does not make notification of his or her decision to secure counsel within the aforementioned time frame.

         (b)   If the alleged violator fails to appear by the date and time specified in the  notice accompanying the zoning citation, the allegations filed against the alleged violator shall be deemed admitted, and the Hearing Officer shall enter judgment for the town and impose a penalty, subject to this zoning code.

         (c)   The town does not need to be represented by counsel at the Hearing Officer’s meeting. Should the town elect to secure counsel, the town must, in writing, notify the Hearing Officer and the alleged violator at least ten days prior to the hearing of the town’s decision to be represented by counsel.

         (d)   Within ten days prior to the hearing, both parties shall produce for inspection by the opposing party a list of all witnesses and any prepared exhibits to be on file at the Hearing Office. Failure to comply with this provision may result in the granting of a continuance to permit such inspection or denial of the admission of the evidence, at the Hearing Officer’s discretion.

   (C)   Hearing Officer meeting.

      (1)   The order of the Hearing Officer proceeding shall be as follows:

         (a)   The Hearing Officer shall call the case and briefly describe the procedures to be followed;

         (b)   Town’s statement;

         (c)   Testimony of the town’s witnesses;

         (d)   Respondent’s statement;

         (e)   Testimony of the respondent’s witnesses;

         (f)   Testimony of other attendees, at the discretion of the Hearing Officer;

         (g)   Respondent’s rebuttal;

         (h)   Town’s rebuttal;

         (i)   Cross-examination of witnesses shall be strictly limited to subjects or evidence elicited during direct testimony;

         (j)   Closing statement of the parties or their counsel; and

         (k)   Ruling by the Hearing Officer. At the conclusion of the hearing, the Hearing Officer shall determine whether a zoning violation exists and, if a violation is found to exist, may impose civil penalties in accordance with this zoning code. A ruling shall include the findings, conclusions and opinions of the Hearing Officer.

      (2)   At the discretion of the Hearing Officer, a hearing may be continued for a period not exceeding 60 days if it appears that the interests of justice sorequire. The Hearing Officer shall not continue a hearing without first giving notice to both parties. The Hearing Officer shall notify both parties in writing of the new hearing date.

      (3)   The Hearing Officer may question witnesses or representatives of either party.

      (4)   The Arizona Rules of Evidence shall not apply before a Hearing Officer. Any evidence offered may be admitted, subject to a determination by the Hearing Officer that the offered evidence is relevant.

      (5)   Audio recordings of the hearing shall be made and kept on record at the Hearing Office for a period of one year. In addition, a record of the proceedings may be made by a court reporter if requested by the alleged violator at the alleged violator’s expense.

      (6)   If the alleged violator fails to appear at the time set for the hearing, the alleged violator shall be found to be in violation of the zoning code, and the allegations filed against the violator shall be deemed admitted, and the Hearing Officer shall enter finding for the town and may impose civil sanction and report such judgment to the Zoning Enforcement Officer.

      (7)   If no witness for the town, excluding the alleged violator, appears at the set time for the hearing, the Hearing Officer shall dismiss the citation unless the Hearing Officer, for good cause shown, continues the hearing to another date.

      (8)   At any time, the Hearing Officer may set aside a finding entered upon a failure to appear if it is deemed by the Hearing Officer that the alleged violator was not served a citation, or for any other reason where necessary to prevent an injustice.

   (D)   Finding of responsibility/civil sanctions.

      (1)   If the alleged violator, after the hearing, is found responsible for the zoning violation, the Hearing Officer shall enter a finding for the town, and may impose a civil sanction not to exceed the equivalent of a maximum fine not to exceed $750 per violation, per day.

      (2)   The Hearing Officer shall levy an initial fine reflecting a penalty for the existing violation situation. The Hearing Officer has the option of suspending the initial fine should extenuating circumstances exist.

      (3)   A non-compliance and daily penalty schedule shall be outlined in the judgment to accrue should the violation not be abated by the compliance date specified by the Hearing Officer.

      (4)   The Hearing Officer may attach a penalty for “recurrence” to a parcel for maximum of two years from the hearing date. Said penalty shall be levied if a violation of the same section of the ordinance, as addressed in the Hearing Officer’s proceedings, occurs within the specified time period. A recall notice shall be served and the alleged violator shall be scheduled to appear at the earliest possible hearing date.

      (5)   The following guidelines shall be utilized when assessing penalties:

 

      (6)   Should the daily penalty balance exceed $1,500 for agricultural/residential use, or $10,500 for commercial/industrial use, the matter shall be forwarded to the Town Attorney for further legal action.

      (7)   The alleged violator, if found responsible for the zoning violation and penalized with a civil sanction, shall not be relieved from the responsibility of correcting any prohibited condition. Unless an administrative review with the Town Council is scheduled within seven days from the date of the hearing, the defendant shall correct the zoning violation within 30 days from the date of the hearing.

(Ord. 2012-04, passed 12-5-2012)

   (A)   Any party may apply for an administrative review to the Town Council for the final finding of the Hearing Officer. A written notice of the administrative review shall be filed with the Hearing Officer within seven days after the Hearing Officer’s finding.

   (B)   The notice of administrative review shall identify the finding(s) that are to be reviewed. It shall be signed by the requestor or the requestor’s counsel, and shall contain the names, addresses and telephone numbers of all parties and their attorneys. When a party requests an administrative review, the Hearing Officer shall send a copy of the notice of administrative review to the other party or his or her attorney.

   (C)   Administrative reviews shall be limited to the record of the proceeding before the Hearing Officer, and no new evidence may be introduced. The record of the proceedings shall include all materials in the Hearing Officer’s file, all evidence admitted at the hearing, and the official record as per § 7.3(C)(5) of this zoning code.

   (D)   Upon receiving the notice request for administrative review, the Hearing Officer shall, within 30 days, prepare and transmit the record and schedule the administrative review before the Town Council.

   (E)   The parties may stipulate that the administrative review may be heard on less than a complete record or upon stipulated facts. The designation of the stipulated record shall be in writing, filed with the Hearing Officer within 15 days after the notice of administrative review.

   (F)   Upon sending the record to the Town Council, the Hearing Officer shall notify both parties that they have five days from the date of the letter to submit a memorandum stating the party’s position to be submitted at the Town Counsel’s hearing. The memorandum shall be submitted to the Town Clerk and shall not exceed five pages in length.

   (G)   A notice of administrative review before the Town Council shall be posted at least 24 hours prior to the administrative review. The Hearing Officer shall mail a notice of the administrative review to both parties not less than five days prior to the meeting.

   (H)   The Mayor shall preside at the administrative review and shall decide on all questions pertaining to procedure. Final decisions on the merits of the case shall be made upon motion and majority vote of the quorum.

   (I)   At the Town Council’s administrative review, arguments on appeal shall be limited to five minutes for each party unless extended by the Mayor.

   (J)   After consideration of the merits of an administrative review, the Town Council may increase, decrease or modify any sanction imposed by the Hearing Officer and may:

      (1)   Affirm the action of the Hearing Officer;

      (2)   Affirm in part and reverse in part and, if necessary, remand for further proceedings; or

      (3)   Reverse the action of the Hearing Officer and, if necessary, remand for further proceedings.

(Ord. 2012-04, passed 12-5-2012)

   (A)   Recall of a case may occur when the conditions and/or compliance time frame have not been met by the alleged violator. The Hearing Officer’s case is considered to be an open case until complete compliance has been reached as outlined in the Hearing Officer’s judgment.

   (B)   In the event that there is a penalty for recurrence, a recall notice may be served in accordance with the procedures indicated in division (C) below, only if the term of the recurrence penalty has not expired.

   (C)   Service of the recall notice shall be completed in person, by certified mail, or alternate methods of service as prescribed in the Arizona Rules of Civil Procedure, not less than 14 days prior to the hearing date.

(Ord. 2012-04, passed 12-5-2012)