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HomeMy WebLinkAbout02 Building Board of Appeals ProceduresG1�Y O� AGENDA REPOR71 MEETING DATE: NOVEMBER 12, 2013 TO: BUILDING BOARD OF APPEALS FROM: COMMUNITY DEVELOPMENT DEPARTMENT ITEM # 2 SUBJECT: BUILDING BOARD OF APPEALS PROCEDURES FOR CONDUCTING BUSINESS RECOMMENDATION: Adopt Resolution No. 4236 for Building Board of Appeals procedures for conducting business (Attached). APPROVAL AUTHORITY: 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). The Building Board of Appeals shall adopt rules of procedure for conducting its business pursuant to Section 113.1 of the California Building Code and 203.1 of the Uniform Housing Code as adopted by Tustin City Code (TCC). DISCUSSION: Pursuant to State law, as subsequently adopted by the City of Tustin, the Board of Appeals must adopt rules and procedures for conducting its business. Board Rules and Procedures ('Rules and Procedures) have been prepared for consideration by the Tustin Building Board of Appeals for adoption for conducting its business in hearing appeals of a decision or order of the Building Official. The Rules and Procedures set forth general regulations as to the process, including: • The organization of the Board; • The application, including deadlines for submittal; • The rules, effect, and scope and order of appeal; • Order of procedures; • Rules of evidence; • Conduct of the hearing; • Record keeping and reporting; • Disposition of appeal. Building Board Procedures November 12, 2013 Page 2 The complete rules and procedures are attached to Resolution No. 4236 and have been reviewed and approved as to content and form by the City Attorney. Amy Stomc , AICP Senior Planner Dana Ogdon, AICP Assistant Director Elizabeth A. Binsack Community Development Director Attachment: Resolution No. 4236 S. \Cdd\PCREPORi\2013\Building Board of Appeals procedures.doc RESOLUTION NO. 4236 A RESOLUTION OF THE TUSTIN BUILDING BOARD OF APPEALS, ADOPTING BUILDING BOARD OF APPEALS PROCEDURES FOR CONDUCTING BUSINESS. The Building Board of Appeals of the City of Tustin does hereby resolve as follows: The Building Board of Appeals finds and determines as follows: A. That the Building Board of Appeals shall act as the appeal hearing body for consideration of any appeal of a determination of the Building Official; B. That the California Building Code (CBC) section 113.1 and 203.1 of the Uniform Housing Code as adopted by the City of Tustin, requires that the Building Board of Appeals adopt rules of procedure for conducting its business; C. That Board Rules and Procedures have been prepared which set forth procedures for organization, application, order of procedure, and final disposition of an appeal shall govern the procedures for any appeal of the Building Official; and D. That the Building Board of Appeals held a public meeting on November 12, 2013. II. That the Tustin Building Board of Appeals hereby adopts the Board Rules and Procedures for conducting business (attached hereto as Exhibit A). III. That the Building Board of Appeals authorizes the Community Development Director to update minor amendments to the Procedures from time to time as necessary. PASSED AND ADOPTED at a regular meeting of the Tustin Building Board of Appeals held on the 12th day of November, 2013. STEVE KOZAK Chairperson ELIZABETH A. BINSACK Community Development Director Resolution No. 4236 Board Rules and Procedures Page 2 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) CERTIFICATION FOR RESOLUTION NO. 4236 I, SCOTT FAZEKAS, the undersigned, hereby certify that I am the Building Board of Appeals Secretary of the City of Tustin, California; that Resolution No. 4236 was duly passed and adopted at a regular meeting of the Tustin Building Board of Appeals, held on the 12th day of November, 2013. SCOTT FAZEKAS Building Board of Appeals Secretary Exhibit A BOARD RULES AND PROCEDURES These Rules of Procedure are adopted pursuant to Section 113.1 of the 2013 California Building Code and Section 203.1 of the 1997 Uniform Housing Code, as amended (hereinafter referred to as the California Building Standards Code), for use by the Tustin Building Board of Appeals and the Housing Advisory and Appeals Board as the rules of procedure for conducting administrative appeals. ARTICLE I ORGANIZATION The Building Board of Appeals for the City of Tustin and the Housing Advisory and Appeal Board (collectively referred to herein as the "Board ") shall consist of five members, comprised of members of the Planning Commission. Said members shall hold their respective membership on said Boards 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. OFFICERS: The Officers of the Board shall consist of a Chairperson and a Chair Pro Tem, who shall be the Chairperson and Chair Pro -Tem of the Planning Commission. The Chairperson shall preside at hearings and meetings, and subject to these rules, shall decide all points of order. The Chair Pro Tem shall preside at Board hearings or meetings when the Chairperson is absent or unable to conduct said hearings or meetings. All references to the Chairperson in these Rules of Procedure shall include the Chair Pro Tem, where appropriate. All references to the Director shall mean the Director of Community Development or his /her assigns. OFFICE OF THE BOARD: The Director, under the direction of the Board, shall be responsible for, and shall conduct administrative duties of the office of the Board, including but not limited to the following: supervise in the arrangement of all cases and other matters that come before the Board; conduct all official correspondence; send out all notices required by these rules and orders of the Board; prepare all decisions of the Board; attend the meetings and hearings; keep the minutes of the Board's proceedings; compile the required records; maintain the necessary files and indexes and direct all the clerical and technical work of the Board; and in particular cases, make inspection of the buildings premises, land etc., connected with the cases before the Board, and report the result of the findings at the hearing and special investigations requested by the Board. MEETINGS: Board meetings shall be held as needed. All Board meetings shall be open to the public. Three (3) members of the Board shall constitute a quorum for the conduct of business. VOTING: The concurring vote of a majority of the members of the Board present shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the application any matter upon which the Board is required to pass by law. ARTICLE II APPLICATION GENERAL: Applications for appeal shall be filed with the Tustin City Clerk during regular business hours within 30 calendar days from the date the City provides notice of the order or action of the Building 965240.1 Board Rules and Procedures Page 2 Official, provided, however, that if the building or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property and is ordered vacated and is posted as such in accordance with the applicable law, such appeal shall be filed within 10 calendar days from the date of the service of the notice and order of the Building Official. The appellant shall complete the established City application form for an appeal hearing along with submittal of the required fee in the amount set by City Council Resolution. Applications for appeal shall be made in the name of the owner of the premises affected, or by an attorney or agent with proper authorization. The Director may require such authorization in writing from the owner. Each appeal shall contain all of the following information and data that is pertinent and applicable thereto: 1. The principal points upon which the appeal is made, based on the application for which the Building Official issued a refusal, order or decision. 2. Plan, or lot plots, drawn to scale, showing the actual shape and dimensions of the lot, of the buildings and accessory buildings existing, and lines within which the proposed building is to be erected or altered, the existing and intended use of each building or part of a building, the number of families or housekeeping units each building is designed to accommodate, and such other information with regard to the lot and neighboring lots as may be deemed necessary by the Director to properly provide for the hearing of the appeal. 3. A clear and accurate description of the proposed work or use. 4. Specific reference to the section or sections of the applicable law under which it is claimed the appeal may be granted. 5. All available pertinent information shall be furnished by the appellant. All consents secured by, and copies of all notices given by the appellant, shall be filed with the Director and forwarded by the Director to the Board. 6. The Director may require of the appellant such additional information and data as is deemed reasonably necessary to fully advise the Board with reference to the appeal. Refusal or failure to comply on the part of the appellant shall be grounds for the dismissal or denial of the application by the Board. SCHEDULING AND NOTICING: As soon as practicable after receiving the written appeal, the Director shall fix a date, time and place for the hearing of the appeal by the Board. Such date shall be not less than ten (10) calendar days or more than 60 calendar days from the date the appeal was filed with the City. Written notice of the time and place of the hearing shall be given at least 10 calendar days prior to the date of the hearing to the appellant. EFFECT OF FAILURE TO APPEAL: Failure by any person to file a timely appeal shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or to any portion thereof, and the notice or order shall be final and binding. SCOPE OF HEARING ON APPEAL: Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal. STAYING OF ORDER UNDER APPEAL: Except for vacation orders posted because of an immediately dangerous condition, and provided that the appellant timely complies with all reasonable requests for information from the Director or his /her designee so that the hearing of the appeal is not unduly delayed by the appellant, enforcement of a notice and order, determination, etc., of the Building Official shall be stayed during the time that a properly and timely filed appeal is being considered. Board Rules and Procedures Page 3 EFFECT OF DENIAL: No appeal to the Board which has been denied wholly or in part shall be resubmitted , except on the grounds of new evidence or proof of a change of conditions found to be valid by the Board or unless upon remand by a court. Applications for a Rehearing shall be in writing and subject to the same rules as an original hearing. All Board 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 Board is not appealable, and shall be immediately final and binding. ARTICLE III ORDER OF PROCEDURE ORDER OF PROCEDURE: The regular order of procedure of hearings shall be: 1. Presentation of the City's position by City staff. 2. Questioning, if any, of City staff by Board members. 3. Presentation of appellant's position by appellant or its designee. 4. Questioning, if any, of appellant by Board members. 5. Presentation of information by members of the public, if any, together with questioning, of any, by members of the Board. The appellant may request that the Chairperson direct one or more relevant questions to any member of the public who addresses the Board regarding an appeal. 6. Rebuttal, if any, by City staff. 7. Comments, final questions and decision by the Board. HEARING OFFICER OR EXAMINER: The 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 appeal shall exercise all powers relating to the conduct of a hearing until it is submitted to the Board for decision. Whenever used in these procedures, 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 Tustin City Code Section 1167 or such other procedures that may hereafter be adopted by the City Council. When completed, the Board shall fix a time, date and place to consider the Hearing Officer's report and proposed decision. The decision of the Board shall be based on the evidence presented to the Hearing Officer and the Hearing Officer's report. WITNESSES: Testimony shall be given under oath or affirmation. Testimony of witnesses may be by question and answer methods or, at the Chairperson's discretion, in statement form. EXHIBITS: The Director shall make sure all exhibits are marked for identification and they are offered in an orderly fashion. To the extent they are available before the hearing, copies of all exhibits shall be made available for examination by any interested person, including members of the public. Leave to file post- hearing exhibits or information may be sought at the hearing, or thereafter in writing, which may Board Rules and Procedures Page 4 be granted by the Chairperson. In the event leave to file post- hearing exhibits or information is granted, copies shall be served upon interested parties or representatives in person or by United States mail, postage prepaid, and a signed statement that this rule has been complied with, shall be attached to or shall accompany such document submitted. If post- hearing exhibits are filed, any member of the Board may request that the Board meeting be re- opened for the purpose of asking questions about or discussing the new exhibit(s). Any such hearing shall be scheduled within 30 calendar days of the request. To the extent reasonably possible, all exhibits to be presented at the hearing shall be presented to the Director at least seven (7) calendar days before the scheduled hearing date. The Director shall examine, mark and distribute the exhibits to the Board members and the appellant at least two (2) calendar days before the hearing. If the Board determines that exhibits that could reasonably have been presented in accordance with this provision were not timely presented, the Board may, in its sole discretion, refuse to consider such exhibits. EVIDENCE: Hearings shall be conducted in such a way as is calculated to result in a just and lawful determination of the issues as promptly as circumstances permit. All relevant evidence may be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule that might make the admission of such evidence improper in judicial proceedings. Irrelevant and unduly repetitious evidence shall be excluded. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in a California Superior Court. The Board shall be the judge of the relevance and materiality of evidence, including evidence that is deemed to be unduly repetitious or cumulative. The Board may require a preliminary statement of the nature of the evidence proposed to be elicited from any witness. CONTINUANCES: The appellant may request no more than one 30 day continuance of an appeal hearing. Any request for a continuance not made at the hearing shall be made in writing. A request for a continuance shall include a reasonable basis for the request. The Board shall decide whether to grant a request for a continuance. ADVISEMENTS: The Board may choose to take an appeal under advisement after all testimony has been given, so that absent Board members can read the Transcript and participate in the voting. If such action is taken, the hearing shall be continued after the presentation of all of the evidence. When the hearing is reconvened, the hearing shall recommence with the discussion and decision of the Board. The Board member(s) relying on the transcript shall not communicate with the appellant, City staff or other Board members regarding the substance of the appeal before the hearing is reconvened. SUBPOENAS: The Board may issue subpoenas to compel the attendance and testimony of witnesses or the production of documents to the extent otherwise permitted by law. Upon failure of any witness to appear or party to produce documents, the Board may apply for a court order compelling the attendance of said witness, the giving of testimony before the Board, and the production of said document, making refusal subject to such sanctions as the court may deem appropriate. Board Rules and Procedures Page 5 BRIEFS AND ORAL ARGUMENT: The Board may call for briefs, oral arguments, or both, at the conclusion of the hearing or thereafter. The Board may identify specific issues to be addressed in post hearing briefs. Copies of briefs and of replies thereto shall be served upon all parties. A signed original and four (4) conformed copies shall be filed with the Board. In the event of oral argument, all parties shall be notified and be heard, if they so desire. ARTICLE IV FINAL DISPOSITION OF AN APPEAL The Board may dismiss an appeal for lack of jurisdiction or prosecution, or may reverse, affirm, vary or modify any order, requirement, decision or determination as in its opinion ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. The final decision of any appeal shall be in writing in the form of a resolution either granting with or without conditions, modifying, or denying the application. The failure by the appellant to receive the affirmative votes of at least three (3) members of the Board to reverse or modify the appealed decision shall constitute a denial of the appeal and an affirmance of the appealed decision. A copy of the resolution containing the decision of the Board shall be mailed to the appellant. Copies of the decision shall also be mailed to any other person or organization who has made a written request for a copy and who has provided a legal mailing address. An appellant, with the consent of the Board, may withdraw his /her appeal at any time prior to the hearing of the matter. If an appeal is withdrawn prior to a decision by the Board, the appealed decision shall become final and binding. Any decision of the Board favorable to the appellant shall remain valid only as long as the information or data relating thereto are correct, and that the conditions upon which the resolution was based are maintained. Any decision of the Board may be challenged in a court of competent jurisdiction within the timeframes and subject to the procedures established by California law.