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HomeMy WebLinkAbout02 Appeal Hearing ProdecuresITEM #2 TUSTIN DATE: OCTOBER 26, 2010 ` '" TO: FROM: PREPARED BY: SUBJECT: PLANNING COMMISSION/BOARD OF APPEALS ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR Y. HENRY HUANG, BUILDING OFFICIAL AMY THOMAS, AICP, SENIOR PLANNER APPEAL HEARING PROCEDURES REGARDING NOTICE AND ORDER BUILDWG OUR FUTURE HONORING OUR PAST RECOMMENDATION: Receive and file. DISCUSSION: An appeal hearing has been scheduled for Tuesday, October 26, 2010, at 7:00 p.m. to consider an appeal of a Notice and Order issued regarding violations of the California Building Code (adopted per Tustin City Code) and the Tustin Zoning Code. The purpose of this report is to familiarize the Planning Commission with the appeal hearing process and its role in considering an appeal of a Notice an Order involving the Building Code and Zoning Code. A separate staff report and two separate resolutions with findings are provided to address the specific issues and code sections involved in the appeal The appeal has been filed by the property owner for reconsideration of the Notice and Order which was filed on his property at 520 Pacific Street by the Enforcement Officer. The Notice and Order provided written notice of the existence of a public nuisance and required the correction of code violations related to structures constructed in violation of the Tustin Building Code and Zoning Codes. The Building Code violations were determined by the Building Official who applies and interprets the technical codes. The Enforcement Officer is defined in the Tustin City Code as "the Community Development Director or any other person or City officer as designated by the City Manager to enforce property maintenance, zoning and other nuisance abatement regulations and standards of the City". Therefore, in this report, the Enforcement Officer is the Community Development Director and/or designee. The Planning Commission has two roles in considering the appeal of both the Building Code and Zoning Code Sections indicated in the Notice and Order. The Planning Commission will act as: Planning Commission Report Building Board of Appeals October 26, 2010 Page 2 A. The Board of Appeals in considering Building Code violations identified in the Notice and Order; and, B. The appeal hearing body for consideration of the Zoning Code violations that were identified in the Notice and Order. The following report provides a brief description of the composition and purpose of the Board of Appeals and of the Planning Commission as the appeal hearing body; the scope of authority of the Commission to affirm, reverse, or modify appealable items in their respective roles; and the hearing procedures for appeal. A. BOARD OF APPEALS Composition and Purpose The members of the Planning Commission hold membership on the Board of Appeals concurrently with their terms of service as Planning Commissioners (see Attachment A, Tustin City Ordinance No. 1344). The purpose of the Board of Appeals is to hear and decide appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretations of the technical codes (i.e. the California Building, Housing, Electrical codes, etc.). Scope of Authority The Board of Appeals will consider evidence that is relevant to whether the true intent of the City of Tustin's adopted California Building Code or the rules adopted thereunder have been incorrectly interpreted or if the provision of such code does not fully apply. Pursuant to Section 112 of the City of Tustin's adopted California Building Code (TCC Sec. 8101), the Board of Appeals may consider evidence supporting the Enforcement Officer's determination that a public nuisance exists. The Board of Appeals shall not have authority to interpret the administrative provisions of the Tustin Building Code nor to waive requirements of such code. After consideration of the appeal and the evidence provided by the Enforcement Officer, the Board shall make a determination and issue an order either affirming, reversing, or modifying the Notice and Order. The Board of Appeals can consider the use of materials or methods of construction which may be different from those specified in the California Building Code and can render determination that the code was incorrectly interpreted. However, the Board should be aware that the codes are legal instruments governing the construction, use, and maintenance of buildings and structures. These codes contain certain provisions which are somewhat flexible and in which discretion is given or implied; therefore, in the absence of such discretion, the code must be followed to the letter. Granting relief from Planning Commission Report Building Board of Appeals October 26, 2010 Page 3 code requirements would constitute an exception, which is not within the scope of authority of the Board of Appeals. As noted, the Board may superimpose its judgment over the Building Official's actions only in a limited number of ways. The following examples are situations where the Board would and would not have authority to overturn a decision. Example 1: The Building Official has exercised his/her discretion and has imposed a requirement that a permit applicant feels is unwarranted. In this situation, the applicant may ask for the matter to be referred to the Appeals Board for adjudication. The Board of Appeals may review the claim and, after considering all evidence presented by staff and the appellant, the Board may determine that the interpretation of the Building Code section that was applied may have been incorrect or, if proposed by the appellant, that an alternative form of construction that is equal to or better than that required by the Building Code may be used in its place. Example 2: CBC Section 106.3 Phased approval, states: "The Building Official is authorized to issue a permit for the construction of foundations or any part of a building or structure before the construction documents for the whole building or structure have been submitted ..." If the Building Official refused to issue a permit under the provisions of this section, this "discretionary" decision could be appealed to the Board. However, where there is no discretion, the question of appeal is very different. See Example 3. Example 3 CBC Section 505.1.1 of the U.B.C. states: "Thresholds at doorways shall not exceed 0.75 inch (19.1 mm) in height for sliding doors serving dwelling units or 0.5 inch (12.7 mm) for other doors..." In this example, the Board of Appeals has no authority to modify this section because it is a specific requirement of the code. Exceptions to the codes cannot be granted by the Board of Appeals. Planning Commission Report Building Board of Appeals October 26, 2010 Page 4 B. PLANNING COMMISSION AS THE APPEAL HEARING BODY Composition and Purpose Pursuant to Section 9294 of the Tustin City Code, any decision of the Community Development Director (or Enforcement Officer as defined as the Community Development Director) may be appealed to the Planning Commission by any person. The applicant may appeal the specific action or seek relief in the appeal, and provide reasons why the action taken by the Community Development Director should be modified or reversed. Upon receipt of an appeal, a public hearing is set before the Planning Commission in their role as the appeal hearing body for consideration of the matter (see Attachment B, TCC 9294 Appeals) Scope of Authority The Planning Commission, as the appeal hearing body, may consider evidence supporting the City's determination that a dangerous condition exists at the subject property due to the present violation of the Zoning Code. After consideration of such evidence, the Commission shall make a determination and issue an order affirming or reversing the matter in accordance with the Tustin City Code, or modifying the Notice and Order in accordance with or direction of the Planning Commission. APPEAL HEARING PROCEDURE The appeal hearing is conducted in a manner similar to a public hearing before the Planning Commission. The meeting is called to order by the Chairperson. The Chairperson states, "The Planning Commission and Board of Appeals of the City of Tustin is now in session." The recording secretary then conducts roll call by calling each Planning Commissioner/Board of Appeals member by name. Roll call is followed by the announcement of all members present or the acknowledgement of the member(s) absent. Following roll call, the Chairperson instructs the Community Development Director or other staff member to provide a report. The Community Development Director or a staff member will then present information to the Board regarding the action of the Building Official or Enforcement Officer which is the subject of the appeal. Staff may provide the Board with copies of relevant code sections or other technical data. The Building Official, Community Development Director, or other staff person will then respond to any questions from the Board. The appellant will be introduced to the Board and may present testimony. The Board may then ask the appellant questions. Planning Commission Report Building Board of Appeals October 26, 2010 Page 5 The Chairperson shall ask if there are any persons in the audience who wish to speak at the public hearing regarding the appeal. When the evidence has been presented and testimony taken, the Chairperson should close the hearing, and the matter should be given to the Commission/Board for discussion and resolution. If necessary, the Chairperson may reopen the hearing, with the concurrence of the Commission/Board. In its deliberations, the Planning Commission/Board of Appeals should make "findings," which are based on the evidence presented and the sworn testimony given, that support affirmation, reversal, or any modification of the appeal. The results of the Planning Commission/Board of Appeals' decision be rendered in writing to the Community Development Director wit provided to the appellant. The Board of Appeals action is final Commission is appealable to City Council pursuant to TCC 9294. ~ ______ Amy Thomas, AICP Senior Planner Y. Henry Huang, P ., C.B.O. uilding Official Elizabeth A. Binsack Community Development Director Attachments: A. Tustin City Ordinance No. 1344 (in part) B. Tustin City Code Sec. 9294, Appeals and findings shall h a duplicate copy and the Planning S:\Cdd\PCREPORl12010\Board of Appeals Memo.doc ATTACHMENT A Tustin City Ordinance No. 1344 (in part) Ordinance No. 1344 Page 15 required by the building permit is completed." (t) Section A110.1 of Appendix Chapter 1 of the 2007 California Building Code is amended by the addition of the second paragraph to read: "A change in the use or occupancy of any existing building or structure shall comply with the provisions of Section 3406 of the Building Code." (u) Section A112.1 of Appendix Chapter 1 of the 2007 California Building Code is deleted and amended to read: "A112.1 General. The Board of Appeals for the City of Tustin shall consist of five members, comprised of members of the Planning Commission. Said members shall hold their respective membership on said Board of Appeals by reason of, and concurrently with their terms of service as Planning Commissioners and shall cease to be such members upon their ceasing to be such Commissioners. The Building Official shall be the Secretary of the Board. The Board of Appeals may adapt reasonable rules and regulations for conducting its investigations and shall render its decisions and findings on contested matters, in writing to the Building Official, with a duplicate copy thereof to any appellant or contestant affected by any such decision or findings, and may recommend to the City Council such new legislation, if any, as is consistent therewith. Three members of the Board of Appeals shall constitute a quorum. The Chairperson of the Planning Commission shall be the presiding officer of the Board and in the Chairpersons' absence the Vice Chairperson of the Commission shall serve as the presiding officer. Notices of meetings of the Board of Appeals shall be given by at least three days notice delivered to each member personal)y or by registered mail; provided, however, that any meeting of the Board of Appeals shall be legal for any purpose if the written consent of all of the members of the Board of Appeals to such meeting is executed and filed in the records of the Board of Appeals. The Board of Appeals shall hold meetings at its pleasure. The Board of Appeals shall have the right, subject to such limits as the Building Official may prescribe, to employ at the cost and expense of the City, such qualified individuals as the Board of Appeals, in its discretion, may deem reasonably necessary to assist in its investigations and in making findings and decisions." The Board of Appeals shall render decisions by majority vote in response to city staff reports. Minutes of all proceedings shall be maintained by City staff. All Board of Appeals decisions and findings shall be transmitted in writing to the appellant. The Building Official shall maintain a full set of records for each case. A112.1.1 Application. Applicants for a hearing before the Board of Appeals •,~ shall pay a fee in the amount set by City Council resolution prior to administrative Ordinance No. 1344 Page 16 processing for any proceedings. The applicant shall complete the established City application form for an appeals hearing along with submittal of required fees. Applicants for a Board of Appeals hearing shall be notified at least one (1) week prior to any hearing or proceedings concerning their case. The applicant shall be given the opportunity to present his/her case at any proceedings involving their applications." (v) Section A112.2 of Appendix Chapter 1 of the 2007 California Building Code is deleted and amended to read: A112.2 Limitations on authority. An application for appeal shall be based on a claim that the true intent of this code or rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply or an equally good or better form of construction is proposed. The board shall have no authority relative to interpretation of the administrative provisions of this code or to waive requirements of this code." (w) Section A113.1 of Appendix Chapter 1 of the 2007 Califomia Building Code is deleted and amended to read: "A113.1 Unlawful acts. It shall be unlawful for any person, firm or corporation to erect, construct, alter, extend, repair, move, remove, demolish or occupy any building, structure or equipment regulated by this code, or cause same to be done, in conflict with or in violation of any of the provisions of the codes and ordinances adopted by the City of Tustin." (x) Section A113.4 of Appendix Chapter 1 of the 2007 California Building Code is deleted and amended to read: "A113.4 Violation Penalties. No person, firm, or corporation shall violate any provision, or fail to comply with any of the provisions of this Code, or of any Code adopted herein by reference. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this Code, or any Code adopted by reference herein, unless othenrvise specked in this Code, shall be guilty of an infraction or misdemeanor as set forth in Part 2 of Chapter 1 of Article 1 of the Tustin City Code, entitled Penalty Provisions. Each such person, firm, or corporation violating any provision or failing to comply with any of the requirements shall be guilty of a separate offense, and each day during any portion of which any violation of any provision of this Code, or any Code adopted by reference herein, is committed, continued or permitted by such person, shall constitute a separate offense, and shall be punishable accordingly. Provided further that each such person violating a provision which limits the time an act may ~.s~ be permitted or continued, each such period or portion thereof of which any violation of such provision is committed, continued or permitted by such person shall constitute a separate offense, and shall be punishable accordingly. Ordinance No. 1344 Page 17 In addition to the penalties hereinabove provided, any condition caused or permitted to exist in violation of any of the provisions of this Code, or of any Code adopted by reference herein, may be deemed a public nuisance and may be summarily abated as such by the City, and each day such condition continues shall be regarded as a new and separate nuisance and offense." (y) Sections A115.1, A115.2, A115.3, A115.4 and A115.5 of Appendix Chapter 1 of the 2007 California Building Code are deleted and amended, and Sections 115.6 through 115.11 are added to read: "A115.1 Unsafe buildings, structures, equipment and nuisances. All buildings, structures or existing equipment which are structurally unsafe, unsanitary or deficient because of inadequate means of egress facilities, inadequate light and ventilation, or which constitute a fire hazard, or are otherwise dangerous to human life or the public welfare, or that involve illegal or improper occupancy or inadequate maintenance, constitute a hazard to safety or health, or public welfare, by reason of inadequate maintenance, dilapidation, specified in statute, are, obsolescence, fire hazard or abandonment, as this division or in any other effective ordinance or for the purpose of this section, unsafe buildings, structures or equipment and constitute an unsafe condition. All such unsafe conditions or buildings or structures or equipment are hereby declared to be public nuisances and may be abated by repair, rehabilitation, improvement, removal, demolition, in whole or part, in accordance with the procedures specified in this section or by any other legal means. A115.2 Inspection. The Building Official shall examine or cause to be examined every building or structure or equipment or portion thereof or other condition reported as unsafe, dangerous, damaged or otherwise constituting a hazard as set forth in the Tustin City Code enforced by the Building Division. Said inspection shall be conducted in accordance with the provisions of Tustin City Code, other applicable statutes, and the ordinances, rules and regulations of State of California and City of Tustin. A115.3 Notice of defects; time and place of hearing. In any case where this section is made applicable by reference, or if any building or structure or equipment, in whole or part, is found to be an unsafe building, structure or equipment as defined in this section, the Building Official shall give notice setting forth the defects found to the owner, other responsible person or authorized representative, hereinafter referred to as "owner," of such building or structure or equipment. The notice shall set forth the right of the owner to be present at the hearing, at the owner's option, and introduce such relevant evidence on the issues as the owner desires. The notice shall also set forth the requirements of commencement and completion of work and the effect of failure to do so as set forth in this Code. ATTACHMENT B Tustin City Code Sec. 9294, Appeals PART 9 -ADMINISTRATION 9294 -APPEALS Page 1 of 1 a Appeal of Decisions of the Director of Community Development or Zoning Administrator Any decision of the Director of Community Development or the Zoning Administrator may be appealed to the Planning Commission by any person. All appeals shall be filed with the City Clerk during normal business hours within ten (10) calendar days of the date of the decision and be accompanied by a deposit or fee as required by City Council resolution or ordinance. All appeals shall be made in writing and shall specify the decision appealed from, the specific action or relief sought by the appellant in the appeal, and reasons why the action taken by the Director of Community Development or the Zoning Administrator should be modified or reversed. Timely filing of a written appeal shall automatically stay all actions and put in abeyance all approvals or permits which may have been granted; and neither the applicant nor any enforcing agency may rely upon the decision, approval, or denial or other action appealed from, until the appeal has been resolved. A public hearing date shall be set within sixty (60) calendar days of filing of the appeal for Planning Commission consideration of the matter. The hearing shall be de novo and the Planning Commission may approve, approve with conditions, or disapprove the matter in accordance with this Code or remand the matter to the Director of Community Development or the Zoning Administrator for further proceedings in accordance with directions of the Planning Commission. b Appeal of Planning Commission Any decision of the Planning Commission may be appealed to the City Council by any person. All appeals shall be filed with the City Clerk during normal business hours within ten (10) calendar days of the date of the decision and accompanied by a deposit or fee as required by City Council resolution or ordinance. All appeals shall be made in writing and shall specify the decision appealed from, the specific action or relief sought by the appellant in the appeal, and the reasons why the action taken by the Planning Commission should be modified or reversed. Timely filing of a written appeal shall automatically stay all actions and put in abeyance all approvals or permits which may have been granted; and neither the applicant nor any enforcing agency may rely upon the decision, approval, or denial or other action appealed from, until the appeal has been resolved. A public hearing date shall be set within sixty (60) calendar days of filing of the appeal for City Council consideration of the matter. The hearing shall be de novo and the City Council shall approve, approve with conditions, or disapprove the matter in accordance with this Code or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. A decision of the City Council on such appeal shall be final. c Request for Hearing by a Member of the City Council In lieu of the provisions of subsection b of this Section, any decision of the Planning Commission may be set for public hearing at the request of a member of the City Council. A Request for Hearing shall be filed with the City Clerk during normal business hours within the (10) calendar days of the date of the decision. The Request for Hearing shall be made in writing and shall specify the affected decision and the reason for the Request for a Hearing. Timely filing of a Request for Hearing shall automatically stay all actions and put in abeyance all approvals or permits which may have been granted; and neither the applicant nor any enforcing agency may rely upon the decision, approval, or denial or other action appealed from, until the hearing has been conducted and the City Council takes action on the matter. The City Clerk shall set a public hearing date within sixty (60) calendar days of filing the Request for Hearing. The hearing shall be de novo and the City Council may approve, approve with conditions, or disapprove the matter in accordance with this Code or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. A decision of the City Council at the conclusion of hearing pursuant to this subsection shall be final. (Ord. No. 157, Secs. 8.1, 8.3; Ord. No. 201; Ord. No. 457, Sec. 10; Ord. No. 874, Sec. 2, 11-1-82; Ord. No.1366, Sec_ 20, 11-17- 09) http://library.municode.com/HTML/11307/level3/ART9LAUS CH2Z0 PT9AD.htm1 10/19/2010