§ 158-65. Appeals.

(a)

Appeals from the decisions of administrative officials.

(1)

Who may appeal.

a.

For a decision by a city administrative official based on the tree protection ordinance regarding tree(s) on private property, an appeal may be made by any person who is aggrieved by the decision and who resides or owns property or a business either within 500 feet or within the NPU of the property on which the tree(s) at issue are located, except that appeals may not be made for decisions made by the city arborist pursuant to subsection 158-101(h) of this article. The appeal may be made only if the appellant is able to identify on the notice of appeal (as described in subsection 158-65(3)c.) the specific section of the tree protection ordinance that the appellant believes was misinterpreted or misapplied by the city administrative official, and the way in which the appellant believes the section should be interpreted or applied; and/or any facts material to the city administrative official's decision that the appellant believes were misinterpreted or misunderstood.

b.

For a decision by a city administrative official based on the tree protection ordinance regarding tree(s) on public property, an appeal may be made by any citizen of Atlanta, any owner of property or a business in Atlanta, and/or any civic association in the neighborhood planning unit in which the tree(s) at issue are located, who is aggrieved by the decision, except that appeals may not be made for decisions made by the city arborist pursuant to subsection 158-101(h) of this article. The appeal may be made only if the appellant is able to identify on the notice of appeal (as described in subsection 158-65(3)c. the specific section of the tree protection ordinance that the appellant believes was misinterpreted or misapplied by the city administrative official, and the way in which the appellant believes the section should be interpreted or applied; and/or any facts material to the city administrative official's decision that the appellant believes were misinterpreted or misunderstood.

(2)

Timing of appeal.

a.

Appeals regarding tree(s) on private property must be filed within five calendar days of the city arborist's preliminary decision regarding the tree(s) at issue. At the time that a permit application is filed with the city arborist regarding tree(s) on private property, the city arborist shall pre-post the property on which the tree(s) are located for a minimum of ten calendar days prior to making a preliminary decision. The pre-posting shall indicate to the public that a permit application has been filed. If and when the city arborist grants preliminary approval of the permit application, s/he shall post the property for five working days with a final posting, indicating to the public that preliminary approval has been granted.

b.

Appeals regarding tree(s) on public property must be filed within 15 calendar days of the city arborist's preliminary decision regarding the tree(s) at issue.

(3)

Appeal requirements.

a.

All appeals must be filed with the clerk of the tree conservation commission.

b.

An appeal shall not be deemed filed until the clerk receives a completed notice of appeal, along with either a $75.00 administrative fee used to help defray the administrative costs of the appeal or a hardship letter. The hardship letter must explain in detail why the appellant is unable to pay the fee and must be signed by the appellant. At its earliest convenience, but in no event later than at the appeal hearing, the tree conservation commission shall determine whether to waive the $75.00 fee.

c.

The notice of appeal shall state at a minimum: the name, address, phone number, and email address (if any) of the appellant, and whether the appellant is an Atlanta citizen; if the tree(s) at issue are located on public property and the appellant is not an Atlanta citizen, whether the appellant owns property or a business in Atlanta, and if so, the address; if the tree(s) at issue are located on public property, whether the appellant is a civic association in the neighborhood planning unit in which the tree(s) at issue are located; if the tree(s) at issue are located on private property, whether the appellant owns and/or resides on property or owns a business on property located within 500 feet from the property on which the tree(s) at issue are located; the date of the decision being appealed; the name of the person(s) who filed the permit application about which the appeal is made; the address of the subject property; the specific section of the tree protection ordinance that the appellant believes was misinterpreted or misapplied by the city administrative official, and the way in which the appellant believes the section should be interpreted or applied; and any facts material to the city administrative official's decision that the appellant believes were misinterpreted or misunderstood.

d.

An appeal may challenge the decisions regarding one property only.

(4)

After the appeal is filed.

a.

Once an appeal is filed, any activity authorized by the decision appealed shall be stayed automatically. Despite the authorization given by the decision appealed, no permits shall be issued, no trees cut, nor earth disturbed.

b.

The tree conservation commission shall fix a reasonable time for the hearing of the appeal and shall give public notice thereof as well as prompt notice in writing to the parties in interest. Public notice shall be given by the clerk of the tree conservation commission in such a manner as shall be provided for in the rules for appeals adopted by the tree conservation commission, but in no event shall such notice be given less than 15 calendar days before the date of the hearing.

c.

At least two weeks prior to the appeal hearing, each party shall submit to the clerk of the tree conservation commission and the other parties in interest a written summary of their argument and a copy of all documentary evidence supporting their argument. This requirement shall apply to any property owner or resident, on which the subject tree(s) is located, that is not a party to the appeal, and any other person wishing to present evidence at the hearing. The parties shall submit to the tree conservation commission and the other parties in interest all rebuttal arguments and rebuttal documentary evidence at least one week prior to the hearing. Submissions of new evidence at the appeal hearing will not be accepted or considered by the tree conservation commission unless a showing can be made and the tree conservation commission finds that the evidence was not available one week prior to the hearing.

(5)

The appeal hearing.

a.

At the hearing, any party may appear in person or by an agent or by an attorney.

b.

At least three members of the tree conservation commission must preside over each hearing. The decision on any appeal shall be determined by a majority vote of the tree conservation commission members present and voting on the particular appeal.

c.

The tree conservation commission shall decide the appeal within a reasonable time. All appeals to the tree conservation commission must be concluded or resolved within two months of the initial hearing. If the appeal is not concluded or resolved within that time, the tree conservation commission will issue an "appeal approved" or "appeal denied" final ruling no later than the two month deadline.

(6)

Tree conservation commission's ruling.

a.

The tree conservation commission shall sustain an appeal upon an express finding that the administrative official's action was based upon an erroneous finding of a material fact or upon an erroneous application of law. If no such finding is made, the tree conservation commission shall deny the appeal. The tree conservation commission shall have the authority to reverse, affirm, wholly or partly, or modify the administrative official's decision being appealed, and to that end shall have all of the powers of the administrative official. These powers shall include, where applicable, the power to direct the issuance of a permit, provided that all requirements imposed by this article and all other applicable laws are met.

b.

In the event that the tree conservation commission rules that recompense and/or a fine should be assessed, but also finds that the amount of recompense owed or fine assessed cannot be paid as a result of financial hardship, the commission shall have the authority to reduce the fine or recompense. The commission shall create written guidelines by which to determine whether and to what extent financial hardship exists. These guidelines shall include a requirement that the person requesting a finding of financial hardship make a written request and provide documentary evidence of such hardship. The specific documents to be provided shall be determined by the commission and listed in the guidelines. The commission shall apply these guidelines consistently any time that a hardship request is made. Where the commission finds, based upon the hardship request, the supporting documentation, and the guidelines, that a financial hardship exists, the commission shall have the authority to reduce or completely eliminate the amount of recompense and/or fine owed, as long as said decision is consistent with the guidelines. The commission shall issue a written decision regarding the financial hardship request and shall provide in writing the basis for that decision.

c.

Any person desiring to appeal a decision of the tree conservation commission under subsection 158-65(b) shall notify the clerk of the commission, in writing, of such intent within six working days of the date of the written decision of the commission. Barring such notice of intent, the stay on the activity that was the basis for the decision appealed shall be lifted, within the constraints imposed by the commission's ruling.

(b)

Appeals from decisions of the tree conservation commission. Any person aggrieved by a decision of the tree conservation commission, or any city official, bureau, office, department or board affected by such decision, may appeal such decision through a writ of certiorari to the Superior Court of Fulton County, pursuant to the procedures set forth by Georgia law. The filing of an appeal in the superior court from any decision of the commission shall not ipso facto act as a supersedes, but the city shall abide by any supersedes granted by Fulton County Superior Court.

(c)

Frivolous appeals. An appeal may be dismissed as frivolous by a vote of the commission in advance of the time that would be set for hearing. In such instances, the members of the commission may be polled without meeting. An appeal is frivolous if it clearly appears from the face of the notice of the appeal and the justification set forth, that no facts could be brought forth at a hearing that could sustain such an appeal as a matter of law. In the event that an appeal is dismissed as frivolous, all parties shall be notified in writing by the clerk, and the clerk shall also give immediate notice by telephone, e-mail, or facsimile transmission to the appellant, advising the appellant of his or her right to appeal. Any person desiring to appeal a decision of the commission under subsection 158-65(c) shall notify the clerk of the commission in writing of such intent within three working days of the written decision of the commission. Barring such notice of intent the stay on the activity appealed from shall be lifted.

(d)

Appeals of cash recompense. An appeal whose sole purpose is to request an adjustment in cash recompense shall not prohibit the issuance of the arborist's final approval of a plan if the appellant submits with the appeal, a bank certified check, or a money order payable to the City of Atlanta in the amount of the calculated recompense that occasions the appeal. The check or money order shall be retained by the clerk of the tree conservation commission until such time as the appeal is decided. If recompense relief is granted and the arborist has receipt of recompense paid to the City of Atlanta in the recompense amount determined by the appeal, the clerk shall surrender the check or money order to the appellant.

(Code 1977, § 10-2039; Ord. No. 2000-21, § II, 4-12-00; Ord. No. 2000-26, § III, 5-23-00; Ord. No. 2001-102, § 2, 12-11-01; Ord. No. 2003-03, §§ 1, 2, 1-13-03; Ord. No. 2007-32(07-O-0362), § 7, 6-12-07; Ord. No. 2008-25(08-O-0486), § 1, 4-28-08)