Section 485-A:40 Reconsideration and Appeal Procedure.
If any person submitting plans and specifications to the department for its approval is aggrieved or dissatisfied with its decision, he may file a motion for reconsideration and shall have a right of appeal from the decision of the department in the following manner:
I. Within 20 days after any decision of the department, any person whose rights may be directly affected may apply to the department for reconsideration of any matter determined by the department in its decision, specifying in the motion for reconsideration the grounds therefor, and the department may reconsider and revise its decision if in the opinion of the department good reason therefor is stated in said motion.
II. Such motion shall set forth fully every ground upon which it is claimed that the decision of the department is unlawful or unreasonable. No appeal from any decision of the department shall be taken unless the appellant shall have made application for reconsideration as provided in this section, and when such application shall have been made, no ground not set forth in such application shall be urged, relied on, or given any consideration by the court, unless the court for good cause shown shall allow the appellant to specify additional grounds.
III. Upon the filing of a motion for reconsideration, the department shall within 30 days either grant or deny the motion, and, at the same time, shall affirm, modify or reverse its decision.
IV. Within 30 days after the application for reconsideration is denied, or if the application is granted, then within 30 days after the decision on such reconsideration, the applicant may appeal by petition to the superior court.
V. Upon the hearing, the burden of proof shall be upon the party seeking to set aside the decision of the department to show that the same is unreasonable or unlawful, and all findings of the department upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that the decision is unjust or unreasonable.
VI. Any person whose rights may be directly affected by said appeal may appear and become a party, or the court may order such persons to be joined as parties as justice may require.
VII. Upon the filing of an appeal, the clerk of court shall issue an order of notice requiring a certified copy of the record appealed from to be filed with the court. The filing of an appeal shall not suspend the decision appealed from, unless the court, on application and for good cause shown, shall grant a restraining order.
VIII. All evidence transferred by the department shall be, and all additional evidence received may be, considered by the court regardless of any technical rules which might have rendered the same inadmissible if originally offered in the trial of an action at law.
IX. The final judgment upon every appeal shall be a decree dismissing the appeal, or vacating the decision complained of in whole or in part, as the case may be; but in case such decision is wholly or partly vacated the court may also, in its discretion, remand the matter to the department for such further proceedings, not inconsistent with the decree, as justice may require.
X. An order of court to send up the record may be complied with by filing either the original papers or duly certified copies, or of such portions of such papers, as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.
XI. The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law.
XII. Costs shall not be allowed against the department unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.
XIII. All proceedings under this chapter shall be entitled to a speedy hearing. If such hearing cannot be had within 30 days after the filing of the appeal, upon request of the appellant the matter shall be referred to a master.
Source. 1989, 339:1. 1996, 228:106, eff. July 1, 1996.