HomeMy WebLinkAboutRES NO 4236RESOLUTION 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.
&Elk @PZAK
Chairperson
SCOTT FAZEKAS
Building Board of Appeals Secretary
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
TO RESOLUTION NO. 4236
Board Rules and Procedures
Page 2
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.
A. 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.
B. 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.
C. 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.
D. 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.
Board Rules and Procedures
Page 3
ARTICLE II
APPLICATION
A. 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 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 30 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.
S. 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 Directorto 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.
B. 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.
C. 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.
Board Rules and Procedures
Page 4
D. SCOPE OF HEARING ON APPEAL: Only those matters or issues specifically raised by the
appellant shall be considered in the hearing of the appeal.
E. 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.
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
A. 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.
B. 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.
Board Rules and Procedures
Page 5
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.
C. 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.
D. 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 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.
E. 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.
F. 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.
G. 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
Board Rules and Procedures
Page 6
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.
H. 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.
I. 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.