Cottleville Fire Protection District
Rules for Appeal
I. Initiation Of An Appeal
(A) An appeal of a decision of the code official shall be commenced by the filing with the Board of Directors of the District a writing by which the party instituting the proceeding seeks review of such decision after opportunity for hearing. No answering instrument shall be required unless the Board of Director's notice of initiation of the appeal states such requirement. Answering, intervening and amendatory writings and motions may be filed with the Board of Directors by interested parties in any appeal. Entries of appearance shall be permitted.
(B) Any writing filed appealing a decision of the code official shall state what relief is sought or proposed and the specific reason(s) for granting it, and shall not consist merely of statements or charges phrased in the language of a statute, rule, regulation, ordinance or code.
(C) Reasonable opportunity shall be given for the preparation and presentation of evidence bearing on any issue raised or decided or relief sought or granted. Where issues are tried without objection or by consent, such issues shall be deemed to have been properly before the Board of Directors. Any formality of procedure may be waived by mutual consent.
(D) Every writing seeking relief or answering any other writing, and any motion shall state the name and address of the attorney, if any, filing it; otherwise the name and address of the party filing it.
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- Each party filing writing with the Board of Directors shall furnish, in addition to the original of such writing, eight (8) copies for the use of the Board of Directors. The Board of Directors shall, without charge therefor, mail one copy of each such writing, as promptly as possible after it is filed, to every party or his attorney who has filed a writing or who has entered his appearance in the appeal, and who has not theretofore been furnished with a copy of such writing and shall have requested copies of the writings; provided that in any appeal where the parties are so numerous that the requirements of this subdivision would be unduly onerous, the Board of Directors may in lieu thereof (a) notify all parties of the fact of the filing of such writing, and (b) permit any party to copy such writing.
II. Notice
(A) The Board of Directors shall promptly mail a notice of initiation of an appeal to all necessary parties, if any, and to all persons designated by the party filing the appeal and to any other persons to whom the Board of Directors may determine that notice should be given. The Board of Directors shall keep a permanent record of the persons to whom such notice was sent and of the addresses to which sent and the time when sent. In any appeal where the name or address of any proper or designated party or person is not known to the Board of Directors, then notice by publication may be given in a time and manner fixed by the Board of Directors.
(B) The notice of initiation of an appeal to be mailed as provided in this section shall state in substance:
(1) The caption and number of the appeal;
(2) That a writing seeking relief has been filed in such appeal, the date it was filed, and the name of the party filing the same;
(3) A brief statement of the matter involved in the appeal, unless a copy of the writing seeking relief is attached to said notice;
(4) Whether an answer to the writing seeking relief is required, and if so the date when it must be filed;
(5) That a copy of the writing seeking relief may be obtained from the Board of Directors, giving the address to which application for such a copy may be made. This may be omitted if the notice is accompanied by a copy of such writing;
(6) A statement that the Board of Directors shall send a copy of these rules upon request.
(C) Unless the notice of hearing hereinafter provided for shall have been included in the notice of initiation of the appeal, the Board of Directors shall, as promptly as possible after the time and place of hearing have been determined, mail a notice of hearing to the appealing party and to all persons and parties to whom a notice of initiation of the appeal was required to be or was mailed, and also to any other persons who may thereafter have become or have been made parties to the proceeding. The notice of hearing shall state:
(1) The caption and number of the appeal;
(2) The time and place of hearing;
(D) No hearing shall be had, except by consent, until a notice of hearing shall have been given as substantially as provided in this section, and such notice shall in every appeal be given a reasonable time before the hearing. Such reasonable time shall be at least ten (10) days except in instances where the public health, safety or interest may make a shorter time reasonable.
III. Informal Disposition Of An Appeal By Stipulation
Any appeal of a determination of the code official may be informally resolved by consent agreement, consent order, stipulation, default, or by agreed settlement.
IV. Evidence
In any hearing regarding an appeal of a determination of the code official:
(A) Oral evidence shall be taken only on oath or affirmation;
(B) Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross‑examine opposing witnesses on any matter relevant to the issues even though that matter was not the subject of the direct examination, to impeach any witness regardless of which party first called him to testify, and to rebut the evidence against him;
(C) A party who does not testify in his own behalf may be called and examined as if under cross‑examination;
(D) The Board of Directors shall cause all proceedings in hearings before it to be suitably recorded and preserved. A copy of the transcript of such a proceeding shall be made available to any interested person upon the payment of a fee which shall in no case exceed the reasonable cost of preparation and supply.
(E) Records and documents of the District which are to be considered in the appeal shall be offered in evidence so as to become a part of the record, the same as any other evidence, but the records and documents may be considered as a part of the record by reference thereto when so offered;
(F) The Board of Directors shall take official notice of all matters of which the courts take judicial notice. They may also take official notice of technical or scientific facts, not judicially cognizable, within their competence, if they notify the parties, either during a hearing or in writing before a hearing, or before findings are made after hearing, of the facts of which they propose to take such notice and give the parties reasonable opportunity to contest such facts or otherwise show that it would not be proper for the Board of Directors to take such notice of them;
(G) The Chairman of the Board of Directors shall make all evidentiary rulings and shall otherwise preside over the Hearing. The Chairman and/or the Board of Directors may seek the advice and counsel of the District's attorney on all matters relating to these proceedings.
(H) Evidence to which an objection is sustained shall, at the request of the party seeking to introduce the same, or at the instance of the Board of Directors, nevertheless be heard and preserved in the record, together with any cross‑examination with respect thereto and any rebuttal thereof, unless it is wholly irrelevant, repetitious, privileged, or unduly long.
(I) Any evidence received without objection which has probative value shall be considered by the Board of Directors along with the other evidence in the appeal. The rules of privilege shall be effective to the same extent that they are now or may hereafter be in civil actions. Irrelevant and unduly repetitious evidence shall be excluded.
(J) Copies of writings, documents and records shall be admissible without proof that the originals thereof cannot be produced, if it shall appear by testimony or otherwise that the copy offered is a true copy of the original, but the Board of Directors may, nevertheless, if it believes the interests of justice so require, sustain any objection to such evidence which would be sustained were the proffered evidence offered in a civil action in the circuit court, but if it does sustain such an objection, it shall give the party offering such evidence reasonable opportunity and, if necessary, opportunity at a later date, to establish by evidence the facts sought to be proved by the evidence to which such objection is sustained.
(K) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of an act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of such evidence, but such showing shall not affect its admissibility. The term "business" shall include business, profession, occupation and calling of every kind.
(L) The results of statistical examinations or studies, or of audits, compilations of figures, or surveys, involving interviews with many persons, or examination of many records, or of long or complicated accounts, or of a large number of figures, or involving the ascertainment of many related facts, shall be admissible as evidence of such results, if it shall appear that such examination, study, audit, compilation of figures, or survey was made by or under the supervision of a witness, who is present at the hearing, who testifies to the accuracy of such results, and who is subject to cross‑examination, and if it shall further appear by evidence adduced that the witness making or under whose supervision such examination, study, audit, compilation of figures, or survey was made was basically qualified to make it. All the circumstances relating to the making of such an examination, study, audit, compilation of figures or survey, including the nature and extent of the qualifications of the maker, may be shown to affect the weight of such evidence but such showing shall not affect its admissibility.
(M) The Board of Directors, or any party desiring to introduce an affidavit in evidence at a hearing in an appeal, may serve on all other parties (including the Board of Directors) copies of such affidavit in the manner hereinafter provided, at any time before the hearing, or at such later time as may be stipulated. Not later than seven days after such service, or at such later time as may be stipulated, any other party (or the Board of Directors) may serve on the party (or the Board of Directors) who served such affidavit an objection to the use of the affidavit or some designated portion or portions thereof on the ground that it is in the form of an affidavit; provided, however, that if such affidavit shall have been served less than eight days before the hearing such objection may be served at any time before the hearing or may be made orally at the hearing. If such objection is so served, the affidavit or the part thereof to which objection was made, may not be used except in ways that would have been permissible in the absence of this subdivision; provided, however, that such objection may be waived by the party (or the Board of Directors) making the same. Failure to serve an objection as aforesaid, based on the ground aforesaid, shall constitute a waiver of all objections to the introduction of such affidavit, or of the parts thereof with respect to which no such objection was so served, on the ground that it is in the form of an affidavit, or that it constitutes or contains hearsay evidence, or that it is not, or contains matters which are not, the best evidence, but any and all other objections may be made at the hearing. Nothing herein contained shall prevent the cross‑examination of the affiant if he is present in obedience to a subpoena or otherwise and if he is present, he may be called for cross‑examination during the case of the party who introduced the affidavit in evidence. If the affidavit is admissible in part only, it shall be admitted as to such part, without the necessity of preparing a new affidavit. The manner of service of such affidavit and of such objection shall be by delivering or mailing copies thereof to the attorneys of record of the parties being served, if any, otherwise, to such parties, and service shall be deemed complete upon mailing; provided, however, that when the parties are so numerous as to make service of copies of the affidavit on all of them unduly onerous, the Board of Directors may make an order specifying on what parties service of copies of such affidavit shall be made, and in that case a copy of such affidavit shall be filed with the Board of Directors and kept available for inspection and copying. Nothing in this subdivision shall prevent any use of affidavits that would be proper in the absence of this subdivision.
V. THE FILING OF BRIEFS
(A) Each party to an appeal shall be entitled to present oral arguments or written briefs at or after the hearing, which shall be heard or read by each member of the Board of Directors who renders or joins in rendering the final decision.
(B) Each member of the Board of Directors who renders or joins in rendering a final decision shall, prior to such final decision, either hear all the evidence, read the full record including all the evidence, or personally consider the portions of the record cited or referred to in the arguments or briefs. The parties to an appeal may by written stipulation or by oral stipulation in the record at a hearing waive compliance with the provisions of this section.