[Ord. No. 3521 §2, 6-25-2015]
As used in this Chapter, the following terms shall be defined
as follows:
- AGGRIEVED
- A person directly impacted by an action or decision of the City such that the person would have standing in a court of law to challenge the action.
- BOARD
- The Board of Administrative Review established herein.
- UNLAWFUL
- Any act or omission in violation of any applicable law or actions that are not authorized by any applicable law.
[Ord. No. 3521 §2, 6-25-2015]
The administrative review procedures set forth in this Chapter
shall apply to all final actions of any City Officer, employee, board,
commission, or the Board of Aldermen that are claimed by an aggrieved
party to be unlawful or an unconstitutional taking of property without
compensation; provided, however, that this Chapter shall not apply
to appeals of zoning decisions required to be reviewed by the Board
of Adjustment pursuant to Section 89.090, RSMo. The City shall not
intentionally take any action that is unlawful nor shall it unconstitutionally
deprive property owners of real property interests without just compensation.
This Chapter shall be construed to provide for the objective and fair
review of claims by aggrieved persons asserting unlawful actions of
the City or unconstitutional deprivation of vested real property rights
or interests, without just compensation. Nothing contained herein
shall be construed to limit the ability of the City to lawfully fulfill
its duties and functions.
[Ord. No. 3521 §2, 6-25-2015]
A.
There is hereby established the Administrative Review Board to review
petitions pursuant to this Code of Administrative Procedure. The Board
of Aldermen hereby designates the Board of Adjustment of the City
of Fenton to act as the Board of Administrative Review (hereinafter
referred to as "the Board") to hear and consider petitions within
the scope of this Code. The Board may establish additional procedures
to fulfill the purposes of this Chapter.
B.
Any aggrieved party shall petition to the Board for a review of any
final decision of any City Officer, employee, board, commission, or
the Board of Aldermen. To the fullest extent permitted by law, the
review procedures herein shall be exhausted before any action may
be filed in any court against the City or its officers, employees,
boards, officials or commissions.
[Ord. No. 3521 §2, 6-25-2015]
A.
The following procedures for review of a final action shall be followed:
1.
Final decision. The person petitioning for
review shall obtain a final decision before requesting review.
2.
Petition for review. Within ten (10) days from
the date of the final decision, the person requesting the review shall
file, in the office of the City Clerk, a written petition for review
of that decision. A copy shall also be filed with the City Attorney.
3.
Initial review of decision. The City Clerk,
in consultation with the City Attorney where appropriate, shall review
each petition and determine whether it seeks review authorized by
this Code. In the event that the petition does not allege a review
authorized by this Code, the petition shall be dismissed upon direction
of the City Clerk.
4.
Stay of final action. Upon request of the petitioner,
the Board may stay pending its review the final action of any decision,
other than a decision of the Board of Aldermen, upon a showing:
a.
The petitioner has a substantial likelihood of demonstrating
that the final action to be reviewed is unlawful or an unconstitutional
taking,
b.
Irreparable harm if such stay is not issued, and
c.
The public interest would not be harmed by issuance of such
stay. Where the final action is a decision of the Board of Aldermen,
the petitioner may seek such stay from the Board of Aldermen, whereupon
in its discretion, such stay may be granted pending review by the
Board.
5.
Hearing date. The Board shall set a time to
review the decision that gave rise to the petition as soon as reasonably
practical and shall provide public notice of such meeting. The Board
shall hear and consider the evidence related to and submitted by the
petitioner, the City or other interested parties in the discretion
of the Board. The hearing shall include written submittals.
6.
Hearing requirements. Unless a hearing or the
requirements herein are waived by petitioner, each hearing shall provide
a record of the proceedings (by audio, video, stenographic, or other
reliable means of recording capable of transcription) and shall permit
the parties to introduce evidence under oath, and shall provide for
cross-examination, when requested. The formal hearing requirements
herein shall be deemed waived if not affirmatively requested by petitioner
in its petition.
7.
Removal. The Board of Aldermen or the Mayor
may remove any matter directly to the Board for review by filing notice
with the Board to such effect.
8.
Exception. Nothing herein regarding hearing
requirements shall prevent summary decision on any petition where
there is no genuine dispute as to the relevant facts.
[Ord. No. 3521 §2, 6-25-2015]
In the event that the aggrieved party claims irreparable harm
will occur unless immediate review is granted, the party may request
expedited review, upon facts justifying such action alleged by affidavit,
whereupon the Board, if it determines it is appropriate, shall shorten
the time for submissions and review.
[Ord. No. 3521 §2, 6-25-2015]
A.
Initial Filing Information. With the petition for
review, or within seven (7) days prior to the date of hearing, the
petitioner shall submit the following by affidavit:
1.
The name of the petitioner requesting review;
2.
The precise final action to be reviewed, including the date,
the decision maker, and copies of all documentation of the decision;
3.
If injury to an interest relating to real property is claimed,
the legal description of the property and the name and business address
of the current owner of the property; the form of ownership, i.e.,
whether sole proprietorship, for-profit or not-for-profit corporation,
partnership, joint venture or other; and if owned by other than a
real person, the name and address of all partners or shareholders
owning ten percent (10%) or more of the outstanding shares;
4.
A detailed description of the factual and legal grounds for
the claim that the final action is unlawful or constitutes an unconstitutional
taking, without just compensation; and
5.
A description of the protectable right or property interest
claimed to be affected, including a statement of any claimed or threatened
damages and the basis for such computation.
B.
Supplemental Information. If the Board determines
that additional information is needed, the Board may further require
legal briefing or such other information to be submitted by affidavit
as may be deemed necessary for adequate and prompt review. With regard
to claims of unconstitutional takings, the Board also requests:
1.
The evidence and documentation as to the value of the property
interest claimed taken, including the date and cost at the date the
property was acquired. This material should include any evidence of
the value of that same property before and after the alleged unconstitutional
taking; the name of the party from whom purchased, including the relationship,
if any, between the person requesting a review; and the party from
whom the property was acquired;
2.
The terms, including sale price, of any previous purchase or
sale of a full or partial interest in the property during the three
(3) years prior to the date of application;
3.
All appraisals of the property prepared for any purpose, including
financing, offering for sale, or ad valorem taxation, within the three
(3) years prior to the date of application;
4.
The assessed value of, and ad valorem taxes on, the property
for the previous three (3) years;
5.
All information concerning current mortgages or other loans
secured by the property, including the name of the mortgagee or lender;
current interest rate, remaining loan balance and term of the loan
and other significant provisions, including, but not limited to, the
right of purchasers to assume the loan;
6.
All listings of the property for sale or rent, price asked and
offers received, if any, within the previous three (3) years;
7.
All studies commissioned by the petitioner or agents of the
petitioner within the previous three (3) years concerning feasibility
of development or utilization of the property;
8.
For income-producing property, itemized income and expense statements
from the property for the previous three (3) years;
9.
Information from a title policy or other source showing all
recorded liens or encumbrances affecting the property; and
10.
Such additional information reasonably necessary, in the Board's
opinion, to arrive at a conclusion concerning the nature of and the
value of the alleged unconstitutional taking.
[Ord. No. 3521 §2, 6-25-2015]
The Board shall review the facts and information presented by
the petitioner and determine if the final action is unlawful or constitutes
an unconstitutional taking without just compensation. In doing so,
the City Attorney shall serve as legal counsel and shall be consulted.
The Board shall review the facts in light of the applicable City,
State, and Federal law. An affirmative vote of four (4) of the five
(5) members of the Board shall be required to support any decision.
[Ord. No. 3521 §2, 6-25-2015]
If the Board fails to hear and decide the petition within thirty (30) days after the filing of the petition, the final action of the City Officer, employee, board, commission, or the Board of Aldermen shall be deemed to be submitted to the Board of Aldermen without recommendation pursuant to Section 160.080(A); provided, however, the Board may extend the time to reach a decision, not exceeding an additional one hundred twenty (120) days following the receipt of the information required pursuant to this Chapter, if prior to the expiration of the thirty-day period, the Board notifies the petitioner, in writing, of such extension.
[Ord. No. 3521 §2, 6-25-2015]
A.
After completing the review, the Board shall make a determination
regarding the petition and, if determined to be necessary and appropriate,
make a recommendation to the Board of Aldermen or the appropriate
officer, employee, board or commission. The evidence before the Board
shall be submitted to the Board of Aldermen for its determination.
B.
The Board of Aldermen shall have thirty (30) days to take action
on the petition or recommendation of the Board, unless extended by
the Board of Aldermen for cause. No petition shall become final for
purposes of judicial review of the action subject to review until
the effective date of Board of Aldermen action on the petition, or
upon expiration of the review period after the petition is submitted
to the Board of Aldermen.
[Ord. No. 3521 §2, 6-25-2015]
The decisions of the Board rendered pursuant to the provisions
of this Chapter are advisory, and shall not be construed to expand
or limit the scope of the City's liability for any claimed unlawful
action or unconstitutional taking of a vested property interest. The
decision of the Board rendered pursuant to the provisions of this
Chapter is not admissible in court for any purpose other than to demonstrate
that the petitioner has exhausted the requisite administrative remedies,
and in no event shall any recommended compensation be admissible into
evidence. The decision of the Board of Aldermen pursuant to the preceding
Section shall be deemed the final decision for purposes of judicial
review.
