Loading...
HomeMy WebLinkAbout01 Building Board of Appeals ProcessITEM # 1 MEETING DATE TO: FROM: SUBJECT: AGENDA REPORT NOVEMBER 12, 2013 BOARD OF APPEALS COMMUNITY DEVELOPMENT DEPARTMENT BUILDING BOARD OF APPEALS PROCESS RECOMMENDATION: Receive and file. DISCUSSION: The purpose of this report is to familiarize the Planning Commission in their role as the Building Board of Appeals. The members of the Planning Commission hold membership on the Board of Appeals concurrently with their terms of service as Planning Commissioners (Ord. No. 1428). In this role, the Commission will act as the appeal hearing body for consideration of any appeal of a determination of the Building Official. The following provides: A. a brief description of the composition and purpose of the Board of Appeals; B. the scope of authority to affirm, reverse, or modify appealable items; and C. 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. 1428). 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 Standards Code, Related Model Codes with appendices, Uniform Code for the Abatement of Dangerous Buildings, Uniform Housing Code, etc.) collectively as referred to herein as the "Building Code" or "Code ". The Board of Appeals must adopt rules of procedure for conducting its business. Building Board of Appeals November 12, 2013 Page 2 B. Scope of Authority The Board of Appeals may consider an application for appeal based on the claim that there is evidence that is relevant to whether the true intent of the City of Tustin's adopted Building Codes or the rules adopted thereunder have been incorrectly interpreted or if the provision of such Code does not fully apply, or that an equally good or better form of construction is proposed. Pursuant to Section 112 of the City of Tustin's adopted Building Code (TCC Sec. 8101), the Board of Appeals may consider evidence supporting the Building Official's determination. The Board of Appeals can consider the use of materials or methods of construction which may be different from those specified in the Building Code and can render a determination that the Code was incorrectly interpreted. However, the Board should be aware that the Codes are State law, legal instruments governing the construction, use, and maintenance of buildings and structures. The Board of Appeals does not have authority to interpret the administrative provisions of the Tustin Building Code nor to waive basic standard requirements of such Codes. The Building Code identifies minimum requirements and does contain certain provisions which are somewhat flexible and in which discretion is given or implied. However, in the absence of such discretion, the Code must be followed to the letter. Granting relief from Code requirements would constitute an exception to State law, which is not within the scope of authority of the Board of Appeals. Appeal hearings can be complex and technical matters. To assist the Board of Appeals in their review of complex matters, TCC 8101 (o) 113.1 allows the Board of Appeals to appoint a hearing examiner or hearing officer ( "hearing officer ") to conduct the hearing should the matter dictate. The City has an ongoing contract which is regularly updated with experienced hearing officers who are familiar with the rules of evidence applicable to such hearings. As noted, the Building Board of Appeals may impose 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. Building Board of Appeals November 12, 2013 Page 3 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. The Building Official may have reasons for not allowing such incremental permits and may offer associated reasons or findings. The appellant also may provide reasons for why such incremental permits should be standard. 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. After consideration of the appeal and the evidence provided, the Board shall make a determination and issue an order either affirming, reversing, or modifying the determination of the Building Official. C. Appeal Hearing Procedure Section 113.1 of the 2013 California Building Code (applicable January 1, 2014) and Section 203.1 of the 1997 Uniform Housing Code (currently adopted), require the Board to adopt rules and procedure for conducting its business. Staff will be bringing a separate item for consideration and action by the Board of Appeals to adopt rules and procedures for conducting its business. Amy Stonich, AICP Senior Planner Elizabeth A. Binsack Community Development Director Building Board of Appeals November 12, 2013 Page 4 Attachment: Ordinance No. 1428 ATTACHMENT ORDINANCE NO. 1428 AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING ARTICLE 1 CHAPTER 1 AND ARTICLE 8 CHAPTER 1 AND CHAPTER 8 (CODE AMENDMENT 2013- 003) OF THE TUSTIN CITY CODE RELATING TO CODE ENFORCEMENT AND ADMINISTRATIVE CITATIONS. The City Council of the City of Tustin, California, ordains: SECTION 1. The City Council finds and determines as follows: A. On November 4, 2008, the Tustin City Council adopted Ordinance No. 1358 amending Article 1 of the Tustin City Code establishing an Administrative Citation Program for penalty provisions for administrative citations. B. That the City has initiated Code Amendment 2013 -003 to Article 1 and 8 of the Tustin City Code to establish Hearing Officer Guidelines, incorporate amendments that are consistent with State law, implement penalty fee provisions for non - payment of citations, update definitions and procedures, and to incorporate a fixed amount for compensation with a maximum overall amount per hearing to Hearing Officers. C. That the City of Tustin is proposing an amendment to the Tustin City Code as it pertains to code enforcement and administrative citations. The proposed amendment will update the Tustin City Code for amendments to definitions and procedures relating to the administrative hearing process for Hearing Officers. Hearing Officer Guidelines have been drafted for use in the administrative hearing process and procedures. D. That on April 16, 2013, a meeting was duly noticed, called, and held before the City Council concerning Ordinance No. 1428. SECTION 2. Section 1112 of the Tustin City Code is hereby amended by adding or amending the following definitions to the Tustin City Code: Appellant. Any person challenging an administrative citation or other administrative decision or determination for which an appeal is available pursuant to the provisions of this Code. Hearing Examiner. Whenever in this Code, or any of the uniform codes adopted by this Code, the term "Hearing Examiner' is used it shall be deemed to have the same meaning as and shall be interchangeable with the term "Hearing Officer". Ordinance No. 1428 Page 1 of 9 Hearing Officer. The term "Hearing Officer" means an individual who is appointed by the City Manager as set forth in Section 1167 of the Tustin City Code to conduct administrative hearings and take action in administrative proceedings as specified therein. SECTION 3. Section 1121f of the Tustin City Code is hereby amended by adding the following to read: f. Should a citation not be paid by the responsible party in the time specified therein, a penalty shall be assessed upon any administrative citation as follows: 30 days from the date of issuance, a penalty assessment shall assessed in addition to the original amount by fifty percent (50 %); should the responsible party not pay the citation and penalty after another 30 days, said citation shall increase by an additional fifty percent (50 %). SECTION 4. Section 1166a and 1166b of the Tustin City Code are amended to read: a. Any recipient of an administrative citation may contest that there was a violation of the Tustin City Code or that he or she is the Responsible Person or the amount of any fine imposed by completing a Request for Hearing form and returning it to the City Clerk within ten (10) days from the date of the administrative citation, together with an advanced deposit of the fine imposed. Any administrative citation fine which has been deposited by that Responsible Person /Appellant shall be refunded if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation(s) or that there was no violation(s) as charged in the administrative citation. If the Hearing Officer determines that a lower fine should have been imposed, the amount paid in excess of the fine determined by the Hearing Officer shall be refunded. b. Failure of any Responsible Person /Appellant to file an appeal in accordance with the provisions of this section shall constitute a waiver of that Responsible Person's /Appellant's rights to administrative determination of the merits of the administrative citation and the amount of the penalty. If no appeal is filed, the appeal is filed without the deposit of fine imposed, or if the appeal is abandoned in writing or by failure to appear at a hearing without being excused, the administrative citation shall be deemed a final administrative order and the person to whom the administrative citation was issued shall be deemed to have failed to exhaust his or her administrative remedies. SECTION 5. Section 1167 of the Tustin City Code is amended to read: 1167 Hearing Officer. a. The Tustin City Manager shall be responsible for designation of a Hearing Officer to hear appeals governed by this Code. The Hearing Officer shall not be a Tustin City employee. The employment, performance evaluation, compensation and benefits of No Ordinance No. 1426 Page 2 of 9 the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the amount of administrative citation fines upheld, reduced or overturned by the Hearing Officer. Each Hearing Officer shall be subject to the provisions of the Political Reform Act of 1974 and all other laws, ordinances, or regulations of the state or the city relating to conflicts of interest. b. The City Manager and /or designee shall establish all appropriate administrative regulations for implementing this Part, including appointment of Hearing Officers, the conduct of hearings, and rendering decisions as set forth in the Hearing Officer Guidelines as adopted by City Council resolution, which shall be available for review in the office of the City Clerk and which may be amended administratively by the City Manager and /or his or her designee from time to time. SECTION 6. Section 1168 of the Tustin City Code is amended to read: 1168 Hearing Procedure. a. No hearing to contest an administrative citation or other administrative decision governed by this part before a Hearing Officer shall be held unless and until a request for hearing form has been completed and submitted, and the fine has been deposited in advance. b. A hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) days and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this Part. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. C. The Hearing Officer shall only consider evidence that is relevant to whether the violation(s) occurred or administrative decision should be upheld, whether the Responsible Person /Appellant has caused or maintained the violation(s) of the Tustin City Code on the date(s) specified in the administrative citation, and regarding the amount of the fine imposed, if any. d. The Responsible Person /Appellant contesting the administrative citation or other administrative decision shall be given the opportunity to testify and present witnesses and evidence concerning the administrative citation or administrative decision. e. The failure of any Responsible Person /Appellant to appear at the administrative hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies. f. The administrative citation or notice of administrative decision and any additional documents submitted by the Enforcement Officer shall constitute prima facie evidence of the respective facts contained in those documents. Ordinance No. 1428 Page 3 of 9 g. At least ten (10) days prior to the hearing, copies of the citations, reports and other documents submitted or relied upon by the Enforcement Officer shall be delivered to the to the recipient of the administrative citation. No other discovery is permitted. Formal rules of evidence shall not apply. h. If the Enforcement Officer or his or her designee, or the Appellant submits an additional written report concerning the administrative citation or administrative decision to the Hearing Officer for consideration at the hearing, then a copy of this material also shall be provided to the other party in a manner reasonably calculated to ensure receipt of the material at least 72 hours prior to the date of the hearing. L The Hearing Officer may continue the hearing and request additional information from the Enforcement Officer or the Appellant prior to issuing a written decision. j. Hearing Procedures shall be subject to the Hearing Officer Guidelines established by Resolution of the City Council and as amended by the City Manager or his designee from time to time. SECTION 7. Section 8101 of the Tustin City Code is hereby amended to read: (o) Section 113.1 General of Chapter 1, Division II of the 2010 California Building Code is hereby replaced as follows: 113.1 General. The Building 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 Building 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 Building Board of Appeals ( "Board ") may appoint one or more Hearing Examiners or Hearing Officers ( "Hearing Officer" or "Hearing Officers ") or designate one or more of its members to serve as hearing officer(s) to conduct the hearing. The Hearing Officer hearing the case shall exercise all powers relating to the conduct of a hearing until it is submitted to the Board for decision. Ordinance No. 1428 Page 4 of 9 Whenever used in this Code or by any other code referenced by this Code, the terms Hearing Officer and Hearing Examiner shall have the same meaning and may be used interchangeably. Whenever the Board elects to appoint a Hearing Officer, said Hearing Officer shall be selected pursuant to, and shall be subject to, the Hearing Officer Guidelines established by TCC section 1167. The Building Board of Appeals may adopt 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. All Building 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. The order of the Building Board of Appeals shall be immediately final. 113. 1.1 Application. Applicants for a hearing before the Building Board of Appeals shall pay a fee in the amount set by City Council resolution prior to administrative 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 Building 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. SECTION 8. Section 8107 of the Tustin City Code is repealed and replaced to read: 8107 ADOPTION OF UNIFORM CODE FOR THE ABATEMENT OF DANGEROUS BUILDINGS The Uniform Code for the Abatement of Dangerous Buildings, 1997 Edition, as published by the International Code Council, shall be and become the Code of the City of Tustin, providing regulations for requirements for the repair, vacate, or demolition of buildings or structures which from any cause endanger the life, limb, health, moral, property, safety, or welfare of the general public or their occupants. The Uniform Code for the Abatement of Dangerous Buildings is on file for public examination in the office of the Building Official. Chapter 6, Procedures for Conduct of Hearing Appeals, is hereby amended as follows: a) Section 601.1 Hearing Examiners /Hearing Officers. The Board may appoint one or more Hearing Examiners or Hearing Officers or designate one or more of Ordinance No. 1428 Page 5 of 9 its members to serve as hearing examiners to conduct the hearings. The Examiner /Officer hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the board for decision. b) Section 601.1.1 Whenever used in this Code or by any other code referenced by this Code, the terms Hearing Officer and Hearing Examiner shall have the same meaning and may be used interchangeably. a) Section 601.1.2 Whenever the Board elects to appoint a Hearing Examiner or Hearing Officer pursuant to Section 601.1, said Examiner /Officer shall be selected pursuant to, and shall be subject to, the guidelines established by TCC section 1167. b) Section 604.8 In addition to the provisions of Sections 604.1 through 604.7, hearings conducted before a Hearing Officer or Hearing Examiner shall be subject to the provisions of TCC section 1168. c) Section 605.2 Where a case is heard by a Hearing Examiner or Hearing Officer the Examiner /Officer shall submit a written report to the Board consistent with the hearing officer guidelines established by TCC section 1168 for consideration by the Board. SECTION 9. Section 8700 of the Tustin City Code is repealed and replaced to read: 8700 - ADOPTION OF 1997 EDITION OF THE UNIFORM HOUSING CODE Except as provided in this chapter, that certain housing code known and designated as the Uniform Housing Code, 1997 Edition, published by the International Conference of Building Officials, shall become the Housing Code of the city, regulating and controlling the use and occupancy, location and maintenance of all residential buildings and structures within this City. The Uniform Housing Code will be on file for public examination in the Community Development Department. Chapter 2, Enforcement, is hereby amended as follows: Section 203 — Housing Advisory and Appeals Board /Building Board of Appeals a) Section 203.1 General. In order to hear and decide appeals of orders, decisions or determinations made by the Building Official relative to the application and interpretations of this code, there shall be and is hereby created a Housing Advisory and Appeals Board /Building Board of Appeals for the City of Tustin ('Board of Appeals ") as set forth in 2010 CBC section 113.1 as amended by TCC section 8101 who are qualified by experience and training to pass upon matters pertaining to building construction and who are not employees of the jurisdiction. The Building Official shall be an ex officio member and shall act as secretary to said Board but shall have no vote upon any matter before the Board. The Board Ordinance No. 1428 Page 6 of 9 of Appeals shall be appointed by the governing body and shall hold office at its pleasure. The board shall adopt rules of procedure for conducting its business and shall render all decisions and findings in writing to the appellant with a duplicate copy to the Building Official. Appeals to the Board shall be processed in accordance with the provisions contained in Section 1201 of this code. Copies of all rules of procedure adopted by the Board shall be delivered to the Building Official, who shall make them accessible to the public. b) 203.2 Limitations of Authority. The Board of Appeals shall have no authority relative to interpretation of the administrative provision of this code and the Board shall not be empowered to waive requirements of this code. Chapter 13, Procedures for Conduct of Hearing Appeals, is hereby amended as follows: a) Section 1301.1 Hearing Examiners /Hearing Officers. The Board may appoint one or more Hearing Examiners or Hearing Officers or designate one or more of its members to serve as hearing examiners to conduct the hearings. The Examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the board for decision. b) Section 1301.1.1 Whenever used in this Code or by any other code referenced by this Code, the terms Hearing Examiner and Hearing Officer shall have the same meaning and may be used interchangeably. c) Section 1301.1.2 Whenever the Board elects to appoint a Hearing Examiner or Hearing Officer pursuant to Section 1301.1, said Examiner /Officer shall be selected pursuant to and shall be subject to the guidelines established by TCC section 1167. d) Section 1304.8 In addition to the provisions of Sections 1304.1 through 1304.7, hearings conducted before a Hearing Examiner or Hearing Officer shall be subject to the provisions of TCC section 1168. e) Section 1305.2 Where a case is heard by a Hearing Examiner or Hearing Officer the Examiner /Officer shall submit a written report to the Board consistent with the Hearing Officer Guidelines established by TCC section 1168 for consideration by the Board. SECTION 10. Section 8800 of the Tustin City Code is hereby amended as follows: CHAPTER EDITOR'S NOTE: Ord. No. 1091, Sec. 8, adopted July 6, 1992, repealed Section 8 of Article 8 in its entirety and added in place thereof a new Ch. 8 to read as herein set out. Prior to repeal, former Ch. 8, 8800 and 8801, were derived from Ord. No. 1043, Sec. 8, adopted Feb. 5, 1990. A duplicate of the Adoption of Uniform Code for the Abatement of Ordinance No. 1428 Page 7 of 9 Dangerous Buildings was added to section 8107 (Ord. No. 1386, Section 15, 12 -7 -10) Therefore, this section and any reference hereto shall indicate TCC section 8107. SECTION 11. Section 8914 of the Tustin City Code is amended to read: 8914 —APPEALS Any applicant for a grading permit, permittee, or other person who was aggrieved by any decision to deny or grant a grading permit, issued a stop work order, or who was aggrieved by any decision to revoke or suspend a grading permit may appeal said action to the Board of Appeals by filing with the Community Development Department a written notice thereof within seven (7) days from the date of mailing or receipt of notice of such action by the City, whichever occurs first. The aggrieved person shall be given a hearing before the Board of Appeals, after which the Board of Appeals shall have discretion to grant or deny the appeal or modify the decision of the Building Official and the decision of the Board of Appeals shall be final. The Board of Appeals may elect to have a Hearing Officer take evidence and submit a written report/proposed decision to the Board. The hearing, when conducted by a Hearing Officer, shall be subject to the Hearing Officer Guidelines adopted set forth in TCC section 1167. SECTION 12. This Ordinance shall become effective at 12:01 a.m. on the thirty -first day after passage. SECTION 13. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause, and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional. PASSED, APPROVED, AND ADOPTED this 7TH day of May, 2013. Ordinance No. 1428 Page 8 of 9 ATTEST: jEVFqIjYP1 PARKER, ORDINANCE CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) ORDINANCE NO. 1428 I, Jeffrey C. Parker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1428 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 16th day of April, 2013, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on 7th day of May, 2013, by the following vote: COUNCILPERSONS AYES: Murray, Puckett, Nielsen, Gomez, Bernstein (5) COUNCILPERSONS NOES: None (0) COUNCILPERSONS ABSTAINED: None (0) COUNCILPERSONS ABSENT: None (0) J F E C. PARKER, Ci e Ordinance No. 1428 Page 9 of 9