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AGENDA REPORT
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MEETING DATE: JANUARY 14, 2014
TO: BOARD OF APPEALS
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
ITEM # 2
SUBJECT: APPEAL OF SCHOOL FEE CALCULATION —THE IRVINE COMPANY
RECOMMENDATION:
Adopt Resolution No. 4243, affirming the Tustin Building Official's determination regarding the
calculation of required school fees for the Legacy Villas project at 16000 Legacy Road
(Government Code Section 65995(b)(1)) (Attachment 1).
APPEAL REQUEST:
On October 22, 2013, the Tustin Building Official forwarded correspondence to The Irvine
Company with a determination concerning the City of Tustin's interpretation of Government
Code Section 65995(b)(1). Specifically in question is the interpretation of the term "Assessable
Space" and the Building Division's standard practice in calculating a building's square footage
for the purpose of determining required school fees. A comparison of the disputed fee
calculation is provided as Attachment 2. On November 21, 2013, The Irvine Company filed an
appeal of this determination (Attachment 3).
SUMMARY OF FACTS:
To pay for the construction of school facilities necessitated by student population increases,
school districts are authorized to impose school impact fees for new residential construction.
The fees are subject to statutorily- defined maximum amounts for each square foot of new
residential construction. While the amount of the fee is established by the school district, the
square footage of development subject to the fee is determined by the building department of
the city or county in which the development is located.
In calculating the square footage of development subject to school impact fees (i.e., the
"Assessable Space") for the Legacy Villas development project (533 luxury apartments at Tustin
Legacy), the Tustin Building Division included: 1) interior corridors; and, 2) storage areas within
the buildings under covered roof areas serving the residential units (See Attachment 4). The
Building Division /Building Official further determined that such interior spaces do not qualify as
any one of the exclusions identified in Section 65995(b)(1), which for residential structures
includes carports, walkways, garages, overhangs, patios, enclosed patios, detached accessory
structure or similar areas.
Building Board of Appeals
January 14, 2014
Page 2
The Government Code stipulates that the Assessable Space be calculated in a manner
consistent with the way the Building Division determines the structural perimeter of a building, or
building area. The Building Official, as the official charged with interpreting the Government
Code, uses the California Building Code and nationally recognized commentaries and
handbooks to determine building area. It is the opinion of the Building Official that the
Government Code intends for Assessable Space to be determined as defined in the Building
Code. This would include all area within the boundary of the exterior walls; only exempting vent
shaft and courtyards which are open to the sky.
As part of its November 21, 2013 appeal, The Irvine Company submitted an application that
included an argument in favor of the appeal (Attachment 3). To summarize, The Irvine
Company believes that interior corridors and storage areas should be considered similar to
excluded areas (i.e. carport, walkway, garage, etc.) since they "share the essential attribute that
they are not livable areas." The Irvine Company argues that the areas should be excluded from
the calculation of Assessable Space for school fee purposes.
ARGUMENT IN SUPPORT OF THE BUILDING OFFICIAL'S DETERMINATION:
The Building Division uses the California Building Code as well as ICC Commentaries,
handbooks, etc., which are nationally recognized industry standards for interpreting the Code,
and as the methodology for determining building area. Again, the only exceptions to calculating
gross building area within the boundaries of the exterior walls are vent shafts and courts which
are open to the sky. Government Code Section 65995(b)(1), excerpts from the California
Building Standards Code; and, ]CC Commentaries to support the Building Official's opinion are
provided in Attachment 4.
1. A BUILDING'S AREA IS THE "FOOTPRINT" OF THE BUILDING
Building area is usually considered to include the outside face of the exterior walls of a
building. The only exceptions to calculating gross building areas within the boundaries of
the exterior walls are vent shafts and courtyards which are open to the sky.
• The 2009 International Building Code Commentary (Section 502.1) defines "Area,
Building" as "the area within the perimeter of the exterior walls," excluding areas
"open to the outside atmosphere above (i.e. a shaft or court). The Building Official
included the building's corridors and storage space since they are within the footprint
of the building. Consistent interpretation and application of the definition and
accurate calculation of building area is critical since allowable building height and
areas are determined through an accurate calculation of building area (International
Building Code, Table 503).
• The 2010 California Building Code (Section 1002.1) defines "Floor Area, Gross" as
"the floor area within the inside perimeter of the exterior walls of the
building... without deduction for corridors, stairways, closets, the thickness of interior
walls, columns or other features.
Building Board of Appeals
January 14, 2014
Page 3
2. ASSESSABLE SPACE IS ALL SQUARE FOOTAGE WITHIN THE PERIMETER OF A
RESIDENTIAL STRUCTURE.
For the purpose of calculating applicable School District fees, the Government Code uses
the term "Assessable Space" rather than the term "Building Area." It is the Building Official's
determination that the term "Assessable Space" is a synonym intended to clarify that the
building area calculated for the assessment of School fees is Assessable Space.
Government Code Section 65995(b)(1) defines Assessable Space as "all of the
square footage within the perimeter of a residential structure, not including any
carport, walkway, garage, overhang, patio, enclosed patio, detached accessory
structure, or similar area."
Government Code Section 65995(b)(1) identifies specific exceptions for the
calculation of Assessable Space that are not utilized for the calculation of gross floor
area. In determining the Assessable Space for projects in Tustin, the Building
Official has consistently interpreted the exception "patio" as applicable to outdoor
patios or decks, even when located within the footprint of the proposed building (see
Attachment 4). Residential units, corridors and storage areas are not listed as an
exception and have not been excluded.
3. CORRIDORS AND STORAGE AREAS ARE NOT TO BE EXCLUDED FROM THE
CALCULATION OF ASSESSABLE AREA.
The Building Official has determined that an interior corridor or hallway is not listed and does
not qualify as one of the specific items to be excluded from the calculation of Assessable
Area. Similarly, there is no specific exception for the numerous storage areas identified
within the floor plan.
The 2006 International Building Code (Chapter 2) defines a "Walkway, Pedestrian"
as providing "a connection between two buildings." In addition, Section 1107A.23W
of the 2010 California Building Code states that "a walk is a surface pedestrian way,
not contiguous to a street, used by the public." The corridors proposed with the
Legacy Villas development provide access to and egress from the proposed
apartment units, are located within the perimeter of the exterior walls, and are not
open to the atmosphere above. The listed exception for a walk or "walkway" is not
the same as an interior corridor.
The proposed storage areas are fully within the perimeter of the exterior walls, are
not open to the atmosphere above and not specifically listed as an exception in the
calculation of School Fees. Much like a closet or other interior storage area, the
proposed storage areas provide function and benefit to the residents. However, the
purpose and function of the proposed storage space does not alter the fact that the
space does not meet the criteria for qualifying as an exception. Whether inside or
outside of a residential unit, the Building Official has determined that the proposed
storage space should be considered part of the gross floor area and included in the
Assessable Space.
Building Board of Appeals
January 14, 2014
Page 4
4. INTERPRETATION AND APPLICATION OF THE BUILDING STANDARDS CODE,
APPENDICES, AND [CC COMMENTARY IS THE RESPONSIBILITY OF THE BUILDING
OFFICIAL
Government Code Section 65995(b)(1) specifically requires the Building Division to prepare
the calculation "in accordance with the standard practice" of the City of Tustin (Attachment
5).
It is the City of Tustin Building Division's standard practice to include any space
within the boundaries of exterior walls and under roof or floor above in the calculation
of Assessable Space (excluding eaves or projections). The Building Division's
standard practice is essentially ministerial in nature, since compliance with the codes
is obligatory and not discretionary. Scott Fazekas, Certified Building Official (CBO),
was appointed as the City's Building Official in 2013. He has been given the
authority to interpret and direct City staff in the application of the Building Standards
Code, Appendices, and ICC Commentary. Based upon the facts discussed in this
report, his experience and training, it is his determination that the proposed corridors
and storage areas shall be included in the calculation of Assessable Space, and that
outdoor patio areas shall be excluded from this calculation.
Past experiences or practices, or the experience or practices of other agencies may,
but need not be, considered in this determination since the calculation of Assessable
Space is to be done solely in accordance with the standard practice of the City of
Tustin. However, on December 16, 2013, a letter was received from the Tustin
Unified School District that provides the District's viewpoint in this matter (Attachment
6).
The City has previously exercised the Building Official's interpretation of calculating
Assessable Space. For example, on September 16, 2013, St. Anton Partners paid
$901,558 in school fess calculated for its 225 -unit project at Tustin Legacy utilizing
the City's standard practice for assessing school fees. Should the Building Official's
determination in this matter be overturned or modified to exclude corridors, storage
areas, or both, the Tustin Unified School District could be required to refund some of
the school fees previously collected for that project, as well as potentially any other
prior project assessed in a similar fashion.
DISCUSSION:
The following summarizes information contained in the Board of Appeals adopted Rules and
Procedures (Attachment 7).
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 interpretation 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 Standards Code" or "Code ".
Building Board of Appeals
January 14, 2014
Page 5
The Board of Appeals may consider evidence supporting or opposing the Building Official's
determination. However, only those matters or issues specifically raised by the appellant may
be considered in the hearing of the appeal. 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 the California Building Standards Code. The Board of Appeals 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.
ORDER OF PROCEDURE:
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.
RECOMMENDATION:
Staff recommends that the Building Board of Appeals conduct the hearing, consider the
evidence, and adopt Resolution No. 4243, affirming the Tustin Building Official's determination
re ding the calculation of required school fees (Government Code Section 65995(b)(1)).
tt Fazekas, AIA, NCARB, CBO Elizabeth A. Binsack
Building Official Community Development Director
Dana L. Ogdon, AI F
Assistant Director- uilding Division
Attachments: 1: Resolution No. 4243
2: Disputed Fee Calculation for Legacy Villas.
3: November 21, 2013 Irvine Company appeal
4: Government Code Section 65995(b)(1); Excerpts from California Building
Standards Code; and ICC Commentaries
5: Typical floor plan showing interior corridors, storage areas, and patios.
6: December 16, 2013 letter from TUSD.
7: Board of Appeals adopted Rules and Procedures.
Attachment 1
RESOLUTION NO. 4243
A RESOLUTION OF THE BUILDING BOARD OF APPEALS OF THE CITY
OF TUSTIN, AFFIRMING THE TUSTIN BUILDING OFFICIAL'S
DETERMINATION REGARDING THE CALCULATION OF REQUIRED
SCHOOL FEES AT THE LEGACY VILLAS PROJECT AT 16000 LEGACY
ROAD.
The Building Board of Appeals of the City of Tustin does hereby resolve as follows:
The Building Board of Appeals hereby finds and determines as follows:
A. That on October 22, 2013, the Tustin Building Official forwarded
correspondence to The Irvine Company a determination concerning the City
of Tustin's interpretation of Government Code Section 65995(b)(1)
regarding the calculation of required school fees for the Legacy Villas
project at 16000 Legacy Road.
B. That on November 21, 2013, the Irvine Company filed an appeal of this
determination (Attachment 3). Specifically at question is the Building
Official's interpretation of the term "Assessable Space' and the Building
Division's standard practice of including interior corridors and storage areas
in calculating a building's square footage for the purpose of determining
required school fees.
C. That on January 14, 2014, the Building Board of Appeals conducted a
hearing on the matter.
D. That Government Code Section 65995(b)(1) defines "Assessable Space" as
"all of the square footage within the perimeter of a residential structure, not
including any carport, walkway, garage, overhang, patio, enclosed patio,
detached accessory structure, or similar area."
E. That Government Code Section 65995(b)(1) specifically requires the
Building Division to prepare the calculation "in accordance with the standard
practice" of the City."
F. That the Building Division /Building Official standard practice is that interior
corridors and storage spaces do not qualify as any one of the exclusions
identified in Section 65995(b)(1) which for residential structures includes
carports, walkways, garages, overhangs, patios, enclosed patios, detached
accessory structure or similar areas.
Resolution No. 4243
Page 2
G. The Building Official, as the official charged with interpreting the Code, uses
the California Building Code and nationally recognized commentaries and
handbooks to determine building area. It is the opinion of the Building
Official that the Government Code intends for assessable space to be
determined as defined in the Building Code. This would include all area
within the boundary of the exterior walls; only exempting vent shaft and
courts which are open to the sky.
II. NOW THEREFORE, the Building Board of Appeals does hereby affirm the Tustin
Building Official's interpretation of "Assessable Space" and the Building Division's
standard practice of including interior corridors and storage areas in calculating
the required school fees for the Legacy Villas project at 16000 Legacy Road.
PASSED AND ADOPTED by the Building Board of Appeals of the City of Tustin, at a
special meeting on the 14th day of January, 2014.
STEVE KOZAK
Chairperson
Scott Fazekas, AIA, NCARB, CBO, CASP, LEED AP
Secretary, Building Board of Appeals
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
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. 4243 was duly
passed and adopted at a meeting of the Tustin Building Board of Appeals, held on the
14th day of January, 2014.
Scott Fazekas, AIA, NCARB, CBO, CASP, LEED AP
Secretary, Building Board of Appeals
Attachment 2
PRODUCT 1- 19 DWELLING UNITS
City's Standard Practice
W /CORRIDOR
15T FLOOR LIVING
3,088
(SF)
15T FLOOR CORRIDOR
1,304
1ST FLOOR LIVING
3,088
2ND FLOOR CORRIDOR
1,124
2ND FLOOR LIVING
6,971
3RD FLOOR CORRIDOR
1,126
3RD FLOOR LIVING
6,971
TOTAL:
20,584
SCHOOL FEE MULTIPLIER TOTAL W /CORRIDOR
$3.20
$65,868.80
TOTAL FOR 3 BOGS:
$197,606.40
Irvine Company's Proposal
W/0 CORRIDOR
PRODUCT 1- 20 DWELLING UNITS
THREE OCCURANCES
W /CORRIDOR
(SF)
15T FLOOR LIVING
3,088
2ND FLOOR LIVING
6,971
3RD FLOOR LIVING
6,971
TOTAL:
17,030
SCHOOL FEE MULTIPLIER
TOTAL W/O CORRIDOR
$3.20
$54,496.00
TOTAL FOR 3 BOGS:
$163,488.00
PRODUCT 1- 20 DWELLING UNITS
THREE OCCURANCES
W /CORRIDOR
W/O CORRIDOR
ST FLOOR LIVING
(SF)
15T FLOOR CORRIDOR
1,598.43
1ST FLOOR LIVING
3,490.82
2ND FLOOR CORRIDOR
1,035.13
2ND FLOOR LIVING
7,068.01
3RD FLOOR CORRIDOR
968.52
3RD FLOOR LIVINIG
7,068.01
TOTAL:
21,228.92
SCHOOL FEE MULTIPLIER TOTAL W /CORRIDOR
$3.20
$67,932.54
TOTAL FOR 3 BOGS:
$203,797.63
PRODUCT S +- 52 DWELLING UNITS
cirurnrrt#RANrcc
W/O CORRIDOR
ST FLOOR LIVING
(SF)
1ST FLOOR LIVING
3,490.82
2ND FLOOR LIVING
7,068.01
3RD FLOOR LIVINIG
7,068.01
TOTAL:
17,626.84
SCHOOL FEE MULTIPLIER TOTAL W/O CORRIDOR
$3.20
$56,405.89
TOTAL FOR 3 BDGS:
$169,217.66
PRODUCT S +- 52 DWELLING UNITS
cirurnrrt#RANrcc
TOTAL FOR 8 BOGS: $1,806,767.36
PROJECT GRAND TOTALS:
W /CORRIDOR: $2,208,171.39
DIFFERENCE: $542,341.38
W/O CORRIDOR & STORAGE
(SF)
1ST FLOOR LIVING 5,370.63
2ND FLOOR LIVING 15,762.43
3RD FLOOR LIVING
(SF)
ST FLOOR LIVING
5,370.63
NO FLOOR CORRIDOR
3,645.90
NO FLOOR LIVING
15,762.43
NO FLOOR STORAGE
2,350.00
RD FLOOR CORRIDOR
3,782.38
RD FLOOR LIVING
15,452.61
RD FLOOR STORAGE
2,479.00
TH FLOOR CORRIDOR
3,797.40
TH FLOOR LIVING
15,489.50
TH FLOOR STORAGE
2,447.00
OTAL'
70,576.85
SCHOOL FEE MULTIPLIER
TOTAL W /CORR & STORAGE
$3.20
$225,845.92
TOTAL FOR 8 BOGS: $1,806,767.36
PROJECT GRAND TOTALS:
W /CORRIDOR: $2,208,171.39
DIFFERENCE: $542,341.38
W/O CORRIDOR & STORAGE
(SF)
1ST FLOOR LIVING 5,370.63
2ND FLOOR LIVING 15,762.43
3RD FLOOR LIVING
15,452.61
4TH FLOOR LIVING
15,489.50
TOTAL:
52,075.17
SCHOOL FEE MULTIPLIER TOTAL W/O CDR & STORAGE
$3.20 $166,640.54
W/O CORRIDOR /STORAGE $1,665,830.02
Attachment 3
") IRVINE COMPANY
Since 1864
November 21, 2013
City Clerk
City of Tustin
300 Centennial Way
Tustin, CA 92780
Subject: Appeal of School Fee Calculation for Legacy Villas Project, Tustin, California
Enclosed you will find our appeal materials in response to the "School Fee Calculation for the Legacy
Villas Project, Tustin, California" determination letter we received from the City's Building Official, Scott
Fazekas, on October 22, 2013.
Specifically enclosed are the following:
1. Executed and Notarized Appeal Application form,
2. Appeal document that includes Exhibit B, the City Determination
3. Executed Appeal Verification Form
4. Appeal fee of $250.00
We look forward to discussing our view with the Board of Appeals and appreciate the City's cooperation
as we move forward to resolve this matter.
Should you have questions or require more information please let me know at 949 - 720 -2724 or
baustlnCdirvinecompanv.com.
Thank you.
Since ly,
u, �- --�
Bryan s n
Vice President, Project Management
Legacy Villas LLC
550 Newport Center Drive
Newport Beach, CA 92660
Cc: Elizabeth Binsack
Scott Fazekas
Dana Ogdon
550 Newport Center Drive, Newport Beach, CA 92660 949.720.2000
TU ST1 N
Community Development Department • 300 Centennial Way • Tusn, CA 92780
Phone • 714.573.3140 • www.tusnca.org
..
Appeal Application Form
a ,
BUILD14C OUR rutu Rr
110NORINC OUR PA$T
Project Description: Legacy Villas Apartment Home -533 Apartment Homes being constructed at Tustin Legacy.
Assessor's Parcel Number 430 - 371 -34, 35. 36. & 37. 430. 371.49, 430- 371.53, 430. 371.75
Project Address 16000 Legacy Road
Zoning District Planning Area 13, Neighborhood D —MCAS Tustin Specific Plan (SP-11
Present Use of Property Apartment Site Under Construction
Proposed Use of Property 533 Apartment Homes, Leasing Office. Pool, Clubhouse
Existing Entitlement Affecting the Property DDA 2012 -001 -, DA 2012 -001 COED #1442). CP 2012 -002, DR 2012 -009, PM 2012 -136
Lot Size 21.8 AC.
Building Size: Existing: N/A Proposed: Approximately 750.0005.F.
Property Owner Information
Name Bryan Austin, Vice President
Company Legacy Villas LLC
Address 550 Newport Beach Center Drive
City, State, ZIP Newport Beach, CA 92620
Phone: 949/720 -2724 Cell Phone: 949 /697.8921
Fax: 949/720.2161 E -mail: baustinlalirvinecomoanv.com
Applicant /Appellant Information Of different)
Name
Company_
Address
City, State, ZIP
Phone:
Fax
Consultant or Contact Information (if different)
Name John P. Yeager
Company O'Neil LLP
Address 19900 MacArthur Blvd., Suite 1050
City, State, ZIP Irvine, CA 92612
Phone: 949/798-0722 Cell Phone! 949/275 -0369
Fax: 949/798 -0511 E-mail: iveager CMonel- 11p.com
Cell Phone:
E -mail:
Designation of Personfsl to whom notices should be sent Pursuant to Code of Civil Procedures Section 1094.6
Name Bryan Austin, Vice President, Legacy Villas LLC
Address 550 Newport Beach Center Drive
City, State, ZIP Newport Beach, CA 92620
E-mail: baustinPirvinecomoany.com
Legal Description of Property (Attach a separate sheet if necessary)
Lots 29.30.38.39. N and W WWW of Tract 17404 in the City of Tustin. County of Orange, State of California. as shown on a map filed
In Book 884, Pages 1 to 14 Official Records of Orange County, California.
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 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 wring from the owner. Each appeal shall contain all of the following Information and data that Is permanent 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 Director to the Board.
6. The Director may require of the appellant such additional information and data as Is deemed reasonably necessary to fully ad-
vise 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 dental of the application by the Board.
Signatures and Acknowl deements
I hereby certify that I am the owner of the real property described In this application. I hereby acknowledge that this application may not be
considered complete until I am notified by the Community Development Department consistent with State law. I hereby certify that all of
the Information contained in this application, Including all required plans, supplemental application forms, and other submission materials as
specified in the Information al handout provided to me by the Community Development Department has been submitted, and the Information is, to
the best of my knowledge and belief, true and correctly represented. Should any or all of the Information submitted be false or Incorrect, I hereby
agree to cl nd, indemnay, d hold the City of Tustin harmless from liability and loss by reason of Its reliance on any such Information. I hereby
grant ry the authp�t� lace a public hearing notice on the subjectAmperty If a public hearing Is required.
rope es Notahze gnature ?Print Name Date
D`
e4_7_ 57k^1 / -z /•/7
Applican s Iz dS nature Pry Name Date
If the signature Is by an agent, notarized, written authorization from the land ownermust be attached to this application. The
land owner's and /or agent's signatures on the written authorization also must be notarized.
.11.0, 1. .d
ACKNOWLEDGMENT
State of California
County of Orange
On November 21. 2013 before me, Catherine A. Gorgen, Notary Public, personally
appeared Bryan Austin who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/ere subscribed to the within instrument and acknowledged to me that
he h executed the same in hi0her/fheir authorized capacity(ies), and that by his/kenkheit
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
CATHERINE A: GORGEN
Comm. N1952161
Notary Public •California
Orange County
Comm. Esplres Sep 15, 2015
Notary Public S nature Notary Public Seal
BEFORE THE BOARD OF APPEALS OF THE CITY OF TUSTIN
RE: APPEAL OF LEGACY VILLAS LLC TO BUILDING OFFICIAL
SCOTT FAZEKAS' DETERMINATION OF ASSESSABLE SPACE
FOR THE LEGACY VILLAS PROJECT PURSUANT TO
GOVERNMENT CODE SECTION 65995(b)(1) ( "APPEAL ")
I.
Appellant Legacy Villas LLC ( "Legacy Villas ") owns the property described in
Exhibit A to this Appeal (the "Property"). The Property was sold to Legacy Villas by the City of
Tustin ( "City") in June 2013 pursuant to a "Disposition and Development Agreement for
Parcel 2A" between Legacy Villas and the City dated November 6, 2012 (the "DDA "). Legacy
Villas intends to construct a 533 -unit apartment project (the "Project") on the Property in
accordance with the DDA.
This Appeal relates generally to the amount of school facilities fees imposed
pursuant to Government Code Section 65995 et seq. to meet the school facilities needs of
children living in the fourteen apartment buildings within the Project. The amount of school fees
to be charged is based upon the apartment buildings' "assessable space," as that term is defined
in Government Code Section 65995(b)(1). In a letter from Building Official Scott Fazekas to
Bryan Austin dated October 22, 2013 (the "City Determination "), a copy of which is attached to
this Appeal as Exhibit B, the City incorrectly determined that the "assessable space" of the
apartment buildings should include any space within the perimeter of each building that is
"conditioned space or integral to the building (under the perimeter /roof etc....)." Specifically,
despite the fact that State law requires that every "walkway... or similar area" within the
structural perimeter of the apartment buildings be excluded from the calculation of the Project's
"assessable space," the City Determination incorrectly concludes that the apartment buildings'
"interior corridors serving the residential units should be included in the calculation of assessable
space...." If the City Determination is allowed to stand, Legacy Villas will be required to pay at
least $362,000 more in school fees than what is allowed under State law.
II. NATURE OF APPEAL
The City Determination is in direct conflict with Government Code
Section 65995(b)(1). For the reasons stated below, we respectfully request that the Board of
Appeals reverse the City Determination and direct the Building Official to calculate the
"assessable space" of each of the fourteen apartment buildings within the Project to exclude from
the total square footage within the structural perimeter of each building all garages, overhangs,
patios, decks, enclosed patios, storage and utility closets, walkways, interior corridors, stairwells
and similar areas outside of the individual apartment units. Calculated correctly, the "assessable
space" of the apartment buildings should be approximately 466,500 square feet.
IIl. ARGUMENT IN FAVOR OF APPEAL
A. The Project's Interior Corridors are Walkways or Similar Areas.
The City Determination is incorrect because it directly conflicts with the plain
meaning of the operative language of Government Code Section 65995(b)(1) quoted below:
"'assessable space,' for this purpose, means all of the square
footage within the perimeter of a residential structure, not
including any carport, walkway, garage, overhang, patio, enclosed
patio, detached accessory structure, or similar area." (Emphasis
added.)
The Project consists of fourteen apartment buildings, each of which includes interior corridors
that provide access to the individual apartment units. The interior corridors are not
air- conditioned. Each interior corridor is a "walkway ... or similar area" that is not "assessable
space" under Government Code Section 65995(b)(1). The Building Official incorrectly
concluded, however, that because the term "interior corridor" is not used specifically in the
statute, interior corridors providing public access to individual apartment units should be
2
considered "assessable space." The Building Official emphasizes in the City Determination:
"Please be advised that the only areas that will be excluded from the calculation are those areas
specifically provided for in the Government Code." The Building Officials error is that the
Legislature expressly did not limit the areas to be excluded from the "assessable space" of a
residential structure to those specified in the statute. Instead, Government Code
Section 65995(b)(1) expanded the excluded areas to also include any "similar area." The areas
specifically listed in the statute (i.e. carport, walkway, garage, overhang, patio, enclosed patio,
detached accessory structure) all have one thing in common - - they are not areas that people live
in. Any "similar area" should share that attribute. The "interior corridors" of the Project that the
City Determination concludes should be included in the calculation of "assessable space" clearly
share the essential attribute that they are not livable areas. People, and particularly school -age
children, will not be living in the Project's garages, patios or walkways... nor will they be living
in its corridors.
Of the areas listed in the statute, the interior corridors are probably most
functionally similar to a "walkway" in that they provide sheltered access to the apartment units.
The fact that the interior corridors are covered space and, to use the Building Official's statement
in the City Determination, perhaps even "integral to the building (under the perimeter /roof etc.,
...)," does not change that functional similarity to walkways. Moreover, the dictionary definition
of "walkway" further demonstrates its functional similarity to an interior corridor. Webster's
defines "walkway" as "a path, passage, etc. for pedestrians, esp. one that is sheltered."
( Webster's New World Dictionary, Third College Edition, 1988, p. 1502.) (Emphasis added.)
This begs the question of the City's Building Official: In what significant ways are the Project's
interior corridors not similar to the other areas specifically, but not exclusively, listed by the
Legislature in Government Code Section 65995(b)(1)? If the answer is they are "integral to the
3
building," that is a distinction without a difference for purposes of the statute because everything
the statute excludes from "assessable space" is within the structural perimeter of the building and
might be considered integral to the building.)
There is even further evidence in Government Code Section 65995 that enclosed
walkways and interior corridors are not "assessable space." Pursuant to Government Code
Section 65995(b)(2), non - residential development can be assessed a school fee based on the
development's "chargeable covered and enclosed space." The statute provides that any
"unenclosed walkway" is not to be considered `chargeable covered and enclosed space." This
suggests that the Legislature intended to distinguish a "walkway," as it used the term in
Section 65955(6)(1) with respect to an area not to be used to calculate residential school fees,
from an "unenclosed walkway," as it used that term in the same statute to describe an area not to
be used in calculating non - residential school fees. If the Legislature had intended to exclude
only unenclosed walkways from the "assessable space" of a residential structure, such as the
apartment buildings within the Project, it would have used that term in Govermnent Code
Section 65995(b)(1) as it did in Section 65995(b)(2). Instead, the Legislature used the term
"walkway," which suggests either that it must be enclosed or that it may be enclosed or
unenclosed. In either case, the interior corridors of the apartment buildings within the Project fit
within that description. To conclude, as the City's Building Official has, that the Project's
interior corridors are not identical to an enclosed walkway, or at the very least are not a "similar
area" to a "walkway," not only strains common sense but conflicts with both the Legislature's
clear choice of language and the very basic dictionary definition.
There are other areas within the Project's apartment buildings that are specifically listed in Government Code
Section 65995(b)(i) or are similar areas that we believe the Building Official agrees should be excluded from
the Project's "assessable space" such as the garages, patios, decks, utility and storage rooms and stairwells.
4
B. The City Determination Mischaracterizes the Relevance of its "Standard
Practice."
The City Determination also conflicts with the plain language of Government
Code Section 65995(b)(1) in suggesting that the City is permitted to rely on its "standard
practice" in applying the statutory definitions of areas that are to be excluded from the
"assessable space" of the Project.z Government Code Section 65995(b)(1) states:
"The amount of the square footage within the perimeter of a residential structure
shall be calculated by the building department of the city or county issuing the
building permit, in accordance with the standard practice of that city or county in
calculating structural perimeters."
The statute requires that, in accordance with its standard practice, the City must determine the
"amount of the square footage within the perimeter of a residential structure." That total amount
is to be calculated by the City in accordance with its standard practice in calculating structural
perimeters. The statute does not state, or even imply, however, that the area to be excluded from
the overall square footage of a residential structure is left to the City's discretion or standard
practice. Therefore, while it may be the City's standard practice to include all air conditioned or
"integral" space in determining the overall square footage of a residential structure, that does not
mean that the City is allowed to ignore those items that the statute requires be deducted from the
overall square footage in determining the "assessable space" of the Project for purposes of
Government Code Section 65995(b)(1). In other words, the City is to use its standard practice
only in calculating the perimeter of the residential structure. Government Code
Section 65995(b)(1) then is to be applied to deduct from that total square footage the square
footage of any carport, walkway, garage, overhang, patio, enclosed patio, detached accessory
structure, or similar area within the structural perimeter. In this step of the process, the City has
Z As stated by the Building Official: "When calculating the "assessable space" of a proposed structure, the City of
Tustin Building Divisions standard practice has been to include any space that is conditioned space or is integral
to the building (under the perimeter roof, etc....)." (City Determination, p. I, para. 3)
5
no discretion and cannot rely on its "standard practice" to misapply State law. It performs only
the ministerial function of
calculating the square footage of the areas the statute requires to be excluded from the overall
square footage for purposes of calculating the Project's "assessable space." The Project's
interior corridors are clearly areas to be excluded and the City's only task is to measure their
square footage.
IV. CONCLUSION
We request that the Board of Appeal overturn the City's Determination and direct
the Building Official to determine that the "assessable space" of the Project is the total square
footage within the structural perimeter of the apartment buildings within the Project, as
calculated in accordance with the City's standard practice, less the square footage of all carports,
walkways, garages, overhangs, patios, enclosed patios, decks, detached accessory structures,
storage and utility rooms, interior corridors, stairwells and similar areas. We believe this should
result in the determination that the assessable space is approximately 466,500 square feet.
H
EXHIBIT A
DESCRIPTION OF THE PROPERTY
Lots 29, 30, 38, 39, N and WWWW of Tract 17404 in the City of Tustin, County of Orange,
State of California, as shown on a map filed in Book 884, Pages I to 14 Official Records of
Orange County, California.
A -1
1W41II:TYlIi3
CITY DETERNIINATION
[ATTACHED]
L.lt
Community Development Department
October 22, 2013
Bryan Austin, Vice President,
The Irvine Company
550 Newport Center Drive
Newport Beach, California, 92614
TUSTIN
BUILDING OUR FUTURE
HONORING OUR PAST
SUBJECT: SCHOOL FEE CALCULATION FOR LEGACY VILLAS PROJECT, TUSTIN
CALIFORNIA
Dear Mr. Austin:
This letter Is prepared in response to your request for a determination concerning the City of
Tustin's interpretation of Government Code Section 65995(1). Specifically at question is the
interpretation of the tern "Assessable Space" and the Building Division's practice in calculating a
building's square footage for the purpose of determining required school fees You requested
several areas be excluded for the purposes of school fee calculation.
Government Code Section 65995(1) defines "Assessable Space" as "all of the square footage
within the perimeter of a residential structure, not including any carport, walkway, garage,
overhang, patio, enclosed patio, detached accessory structure, or similar area." The Code
specifically requires the Building Division to prepare the calculation "in accordance with the
standard practice" of the City.
When calculating the assessable space of a proposed structure, the City of Tustin Building
Division's standard practice has been to Include any space that Is conditioned space or Is Integral
to the building (under the perimeter /roof, etc....). In review of the Legacy Villas project interior
corridors serving the residential units shall be included in the calculation of assessable space
pursuant to our Interpretation and application of Government Code Section 65995(1). It is also
our determination that such Interior spaces do not quality as any one of the exclusions identified in
Section 65995(1) ( "carport, walkway, garage, overhang, patio, enclosed patio, detached structure,
or similar area "). Please be advised that the only areas that will be excluded from the calculation
are those areas specificall provided for in the Government Code.
Pursuant to Section 1201 of the 1997 Uniform Housing Code, you may appeal this matter to the
Building Board of Appeals by submitting the following Items within 30 calendar days of the date of
this letter,
1. A signed, original letter delivered to the City Clerk of the City of Tustin by no later than
5.00 p.m., November 21, 2013. Pursuant to Section 1201.1, the letter of appeal must
contain all of the following:
a) A heading in the words: "Before the Board of Appeals of the City of Tustin,"
300 Ccntcnmal Way, Tustin CA 92780 • P X 7141 5733100 • F X714) 573 31 I3 • WW%y tMUrICa ory
Bryan Austin
October 22, 2013
Page 2
b) A caption reading "Appeals of......" giving the names of all appellants In the
bullding or land Involved in the appeal
C) A brief statement setting forth the legal interest of each of the appellants in the
building or land Involved in the notice and order.
d) A brief statement In ordinary and concise language of that specific order or action
protested, together with any material fads claimed to support the contentions of
the appellant.
C) A brief statement in ordinary and concise language of the relief sought and the
reasons why it is claimed the protested order or action should be reversed,
modified or otherwise set aside.
The signatures of all parties named as appellants and their official mailing
addresses.
g) The verification (by declaration under penalty of perjury) of at least one appellant
as to the truth of the matters stated in the appeal.
2, Payment of a $250 appeal fee.
Failure to file an appeal in accordance with the provisions stated above shall constitute a waiver of
the right to an administrative hearing and adjudication of this matter.
Please contact Elizabeth Binsack, Community Development Director, if you have any questions or
concerns regarding this matter at (714) 573 -3031.
Sincerely,
i
Scott Fazekas, A A, NCARB, CBO, CASP, LEED AP
Building Official
cc. Elizabeth A. Binsack, Community Development Director
Dana Ogdon, Assistant Director
10
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24,
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VERIFICATION
STATE OF CALIFORNIA, COUNTY OF ORANGE
I have read the foregoing Appeal of Legacy Villas LLC to Building Official Scott
Fazekas' Determination of Assessable Space for the Legacy Villas Project pursuant to
Government Code Section 65995 (b)(i) and know its contents.
I am an employee of Legacy Villas LLC, a party to this action, and am authorized to
make this verification for and on its behalf, and I make this verification for that reason. I
am informed and believe and on that ground allege that the matters stated in the foregoing
document are true.
Executed on November 20, 2013, at Newport Beach, California.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
g!! ` fo✓ AS-r1-'V1
Print ame of Sianator
134120 v I
i LSr
/9'enatur
Irvine Company CITY OF TUSTIN
550 Newport Center Drive 1005290
Newport Beach, CA92660
A.CAMPOS TO PIU X3217
Check Date Check Numher
11/20/2013 1000588363
'iNVOIOE NUMBER'.
INVOICE 'DAT
VENDOR'S REFERENCE
AMOUNT
DISCOUNT
NET AMOUNT
25000CROD
11120/2013
'ASSESSABLE AREA APPEAL FOR LE
GACY VILLAS
25000
0.00
250,00
Total
$250.00
$0.00
$250.00
S DOCUMENT HAS A COLORED SECURM BACKGROUND. DO NOT CASH IFTHEWORD "VOID "IS VISIeLE,THIS PAPER HAS AN ARTIFICIAL WATERMARK ON REVERSE SIDE AND IS ALTERATION PROTECTED.,
Irvine Company Wells Fargo Bank, N.A.
550 Newport Center Drive 115 Hospital Drive 56.3821412 1000588363
Newport Beach,CA92660 Van Wert, OH 45691
ISSUED. CHECK AMOUNT
11/20/2013
....... $250.00
PAY Two hundred fifty and 00 /100 Dollars
THE
N
vV
OR DER
W ✓
OF: CITY OF TUSTIN
PO BOX 466
TUSTIN CA 92680 USA
AUTHORIZED SIGNATURE
n1100 0588363116 1:0412038241: 960004977SIl1
Attachment 4
Government Code - GOV
TITLE 7. PLANNING AND LAND USE [65000 - 66499.581
( Heading of Title 7 amended by Stats. 1974, Ch. 1536. J
DIVISION 1. PLANNING AND ZONING 165000 - 66103]
( Heading of Division 1 added by Stats. 1974, Ch. 1536. J
CHAPTER 4.9. Payment of Fees, Charges, Dedications, or Other Requirements Against a Development
Project [65995 - 65998]
( Chapter 4.9 added by Stats. 1986, Ch. 887, Sec. 11. )
65995.
(a) Except for a fee, charge, dedication, or other requirement authorized under Section 17620 of the
Education Code, or pursuant to Chapter 4.7 (commencing with Section 65970), a fee, charge, dedication,
or other requirement for the construction or reconstruction of school facilities may not be levied or
imposed in connection with, or made a condition of, any legislative or adjudicative act, or both, by any
state or local agency involving, but not limited to, the planning, use, or development of real property, or
any change in governmental organization or reorganization, as defined in Section 56021 or 56073.
(b) Except as provided in Sections 65995.5 and 65995.7, the amount of any fees, charges, dedications, or
other requirements authorized under Section 17620 of the Education Code, or pursuant to Chapter 4.7
(commencing with Section 65970), or both, may not exceed the following:
(1) In the case of residential construction, including the location, installation, or occupancy of
manufactured homes and mobilehomes, one dollar and ninety -three cents ($1.93) per square foot of
assessable space. "Assessable space," for this purpose, means all of the square footage within the
perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio,
enclosed patio, detached accessory structure, or similar area. The amount of the square footage within
the perimeter of a residential structure shall be calculated by the building department of the city or
county issuing the building permit, in accordance with the standard practice of that city or county in
calculating structural perimeters. "Manufactured home" and " mobilehome" have the meanings set forth
in subdivision (f) of Section 17625 of the Education Code. The application of any fee, charge, dedication,
or other form of requirement to the location, installation, or occupancy of manufactured homes and
mobilehomes is subject to Section 17625 of the Education Code.
(2) In the case of any commercial or industrial construction, thirty -one cents ($0.31) per square foot of
chargeable covered and enclosed space. "Chargeable covered and enclosed space," for this purpose,
means the covered and enclosed space determined to be within the perimeter of a commercial or
industrial structure, not including any storage areas incidental to the principal use of the construction,
garage, parking structure, unenclosed walkway, or utility or disposal area. The determination of the
chargeable covered and enclosed space within the perimeter of a commercial or industrial structure
shall be made by the building department of the city or county issuing the building permit, in
accordance with the building standards of that city or county. For the determination of chargeable fees
to be paid to the appropriate school district in connection with any commercial or industrial
construction under the jurisdiction of the Office of Statewide Health Planning and Development, the
architect of record shall determine the chargeable covered and enclosed space within the perimeter of a
commercial or industrial structure.
(3) The amount of the limits set forth in paragraphs (1) and (2) shall be increased in 2000, and every two
years thereafter, according to the adjustment for inflation set forth in the statewide cost index for class
B construction, as determined by the State Allocation Board at its January meeting, which increase shall
be effective as of the date of that meeting.
(c) (1) Notwithstanding any other provision of law, during the term of a contract entered into between a
subdivider or builder and a school district, city, county, or city and county, whether general law or
chartered, on or before January 1, 1987, that requires the payment of a fee, charge, or dedication for
the construction of school facilities as a condition to the approval of residential construction, neither
Section 17620 of the Education Code nor this chapter applies to that residential construction.
(2) Notwithstanding any other provision of state or local law, construction that is subject to a contract
entered into between a person and a school district, city, county, or city and county, whether general
law or chartered, after January 1, 1987, and before the operative date of the act that adds paragraph (3)
that requires the payment of a fee, charge, or dedication for the construction of school facilities as a
condition to the approval of construction, may not be affected by the act that adds paragraph (3).
(3) Notwithstanding any other provision of state or local law, until January 1, 2000, any construction not
subject to a contract as described in paragraph (2) that is carried out on real property for which
residential development was made subject to a condition relating to school facilities imposed by a state
or local agency in connection with a legislative act approving or authorizing the residential development
of that property after January 1, 1987, and before the operative date of the act adding this paragraph,
shall be required to comply with that condition.
Notwithstanding any other provision of state or local law, on and after January 1, 2000, any construction
not subject to a contract as described in paragraph (2) that is carried out on real property for which
residential development was made subject to a condition relating to school facilities imposed by a state
or local agency in connection with a legislative act approving or authorizing the residential development
of that property after January 1, 1987, and before the operative date of the act adding this paragraph,
may not be subject to a fee, charge, dedication, or other requirement exceeding the amount specified in
paragraphs (1) and (2) of subdivision (b), or, if a district has increased the limit specified in paragraph (1)
of subdivision (b) pursuant to either Section 65995.5 or 65995.7, that increased amount.
(4) Any construction that is not subject to a contract as described in paragraph (2), or to paragraph (3),
and that satisfies both of the requirements of this paragraph, may not be subject to any increased fee,
charge, dedication, or other requirement authorized by the act that adds this paragraph beyond the
amount specified in paragraphs (1) and (2) of subdivision (b).
(A) A tentative map, development permit, or conditional use permit was approved before the operative
date of the act that amends this subdivision.
(B) A building permit is issued before January 1, 2000.
(d) For purposes of this chapter, "construction" means new construction and reconstruction of existing
building for residential, commercial, or industrial. "Residential, commercial, or industrial construction"
does not include any facility used exclusively for religious purposes that is thereby exempt from
property taxation under the laws of this state, any facility used exclusively as a private full -time day
school as described in Section 48222 of the Education Code, or any facility that is owned and occupied
by one or more agencies of federal, state, or local government. In addition, "commercial or industrial
construction" includes, but is not limited to, any hotel, inn, motel, tourist home, or other lodging for
which the maximum term of occupancy for guests does not exceed 30 days, but does not include any
residential hotel, as defined in paragraph (1) of subdivision (b) of Section 50519 of the Health and Safety
Code.
(e) The Legislature finds and declares that the financing of school facilities and the mitigation of the
impacts of land use approvals, whether legislative or adjudicative, or both, on the need for school
facilities are matters of statewide concern. For this reason, the Legislature hereby occupies the subject
matter of requirements related to school facilities levied or imposed in connection with, or made a
condition of, any land use approval, whether legislative or adjudicative act, or both, and the mitigation
of the impacts of land use approvals, whether legislative or adjudicative, or both, on the need for school
facilities, to the exclusion of all other measures, financial or nonfinancial, on the subjects. For purposes
of this subdivision, "school facilities" means any school - related consideration relating to a school
district's ability to accommodate enrollment.
(f) Nothing in this section shall be interpreted to limit or prohibit the use of Chapter 2.5 (commencing
with Section 53311) of Division 2 of Title 5 to finance the construction or reconstruction of school
facilities. However, the use of Chapter 2.5 (commencing with Section 53311) of Division 2 of Title 5 may
not be required as a condition of approval of any legislative or adjudicative act, or both, if the purpose of
the community facilities district is to finance school facilities.
(g) (1) The refusal of a person to agree to undertake or cause to be undertaken an act relating to
Chapter 2.5 (commencing with Section 53311) of Division 2 of Title 5, including formation of, or
annexation to, a community facilities district, voting to levy a special tax, or authorizing another to vote
to levy a special tax, may not be a factor when considering the approval of a legislative or adjudicative
act, or both, involving, but not limited to, the planning, use, or development of real property, or any
change in governmental organization or reorganization, as defined in Section 56021 or 56073, if the
purpose of the community facilities district is to finance school facilities.
(2) If a person voluntarily elects to establish, or annex into, a community facilities district and levy a
special tax approved by landowner vote to finance school facilities, the present value of the special tax
specified in the resolution of formation shall be calculated as an amount per square foot of assessable
space and that amount shall be a credit against any applicable fee, charge, dedication, or other
requirement for the construction or reconstruction of school facilities. For purposes of this paragraph,
the calculation of present value shall use the interest rate paid on the United States Treasury's 30 -year
bond on the date of the formation of, or annexation to, the community facilities district, as the
capitalization rate.
(3) For purposes of subdivisions (f), (h), and (i), and this subdivision, "school facilities" means any school -
related consideration relating to a school district's ability to accommodate enrollment.
(h) The payment or satisfaction of a fee, charge, or other requirement levied or imposed pursuant to
Section 17620 of the Education Code in the amount specified in Section 65995 and, if applicable, any
amounts specified in Section 65995.5 or 65995.7 are hereby deemed to be full and complete mitigation
of the impacts of any legislative or adjudicative act, or both, involving, but not limited to, the planning,
use, or development of real property, or any change in governmental organization or reorganization as
defined in Section 56021 or 56073, on the provision of adequate school facilities.
(1) A state or local agency may not deny or refuse to approve a legislative or adjudicative act, or both,
involving, but not limited to, the planning, use, or development of real property, or any change in
governmental organization or reorganization as defined in Section 56021 or 56073 on the basis of a
person's refusal to provide school facilities mitigation that exceeds the amounts authorized pursuant to
this section or pursuant to Section 65995.5 or 65995.7, as applicable.
(Amended byStats. 2010, Ch. 541, Sec. 3. Effective January 1, 2011.)
CHAPTERS
GENERAL BUILDING HEIGHTS AND AREAS
SECTION 501
GENERAL
501.1 Scope. The provisions of this chapter control the height
and area of structures hereafter erected and additions to exist-
ing structures.
[F] 501.2 Address identification. New and existing buildings
shall be provided with approved address numbers or letters.
Each character shall be a minimum 4 inches (102 mm) high and
a minimum of 0.5 inch (12.7 mm) wide. They shall be installed
on a contrasting background and be plainly visible from the
street or road fronting the property. Where access is by means
of a private road and the building address cannot be viewed
from the public way, a monument, pole or other approved sign
or means shall be used to identify the structure.
SECTION 502
DEFINITIONS
502.1 Definitions. The following words and terms shall, for the
purposes of this chapter and as used elsewhere in this code,
have the meanings shown herein.
—� AREA, BUILDING. The area included within surrounding
exterior wall t (or exterior walls and fire walls) exclusive of
vent shafts and courts. Areas of the building not provt�' ed wi fr
surroundi— ng walls shwa I be included in the building area if such
areas are included within the horizontal projection of the roof
or floor above.
BASEMENT. A story that is not a story above grade plane (see
"Story above grade plane" in Section 202).
The definition of "Basement" does not apply to the provi-
sions of Section 1612 for flood loads (see "Basemen in Sec-
tion 1612.2).
EQUIPMENT PLATFORM. An unoccupied, elevated plat-
form used exclusively for mechanical systems or industrial
process equipment, including the associated elevated walk;
ways, stairs, alternating tread devices and ladders necessary to
access the platform (see Section 505.5).
GRADE PLANE. A reference plane representing the average
of finished ground level adjoining the building at exterior
walls. Where the finished ground level slopes away from the
exterior walls, the reference plane shall be established by the
lowest points within the area between the building and the lot
line or, where the lot line is more than 6 feet (1829 mm) from
the building, between the building and a point 6 feet (1829 mm)
from the building.
HEIGHT, BUILDING. The vertical distance from grade
plane to the average height of the highest roof surface.
~ MEZZANINE. An intermediate level or levels between the
floor and ceiling of any story and in accordance with Section
505.
SECTION 503
GENERAL BUILDING HEIGHT AND
AREA LIMITATIONS
503.1 General. The building height and area shall not exceed
the limits specified in Table 503 based on the type of construc-
tion as determined by Section 602 and the occupancies as
determined by Section 302 except as modified hereafter. Each
portion of a building separated by one or more fire walls com-
plying with Section 706 shall be considered to be a separate
building.
Exception: [HCD 11 Limited - densiry owner -built rural
dwellings may be of any type of construction which will pro-
vide for a sound structural condition. Structural hazards
which result in an unsound condition and which may consti-
tute a substandard building are delineated by Section
17920.3 of the Health and Safety Code.
503.1.1 Special Industrial occupancies. Buildings and
structures designed to house special industrial processes
that require large areas and unusual building heights to
accommodate craneways or special machinery and equip-
ment, including, among others, rolling mills; structural
metal fabrication shops and foundries; or the production
and distribution of electric, gas or steam power, shall be
exempt from the building height and area limitations of
Table 503.
503.1.2 Buildings on same lot. Two or more buildings on
the same lot shall be regulated as separate buildings or shall
be considered as portions of one building if the building
height of each building and the aggregate building area of
the buildings are within the limitations of Table 503 as mod-
ified by Sections 504 and 506. The provisions of this code
applicable to the aggregate building shall be applicable to
each building.
503.1.3 Type I construction. Buildings of Type I construc-
tion permitted to be of unlimited tabular building heights
and areas are not subject to the special requirements that
allow unlimited area buildings in Section 507 or unlimited
building height in Sections 503.1.1 and 504.3 or increased
building heights and areas for other types of construction.
SECTION 504
BUILDING HEIGHT
504.1 General. The building height permitted by Table 503
shall be increased in accordance with this section.
Exception: The building height of one -story aircraft han-
gars, aircraft paint hangars and buildings used for the manu-
facturing of aircraft shall not be limited if the building is
provided with an automatic fire - extinguishing system in
accordance with Chapter 9 and is entirely surrounded by
public ways or yards not less in width than one and one -half
dines the building height.
2010 CALIFORNIA BUILDING CODE 149
GENERAL BUILDING HEIGHTS AND AREAS
k,
SECTION 501
street. When several structures are remotely located
GENERAL
on a site or set back into a property, or at IOCBtlons
501.1 Scope. The provisions of this chapter control the height
where multiple addresses are provided (e.g., strip
and area of structures hereafter erected and additions to exist-
malls), where the address is not readily visible from the
ing structures.
public way, an approved method of identification will
Chapter 5 is applicable to all new and existing struc-
also be required, which will have characters posted in
a location that will help in an emergency. The primary
tures that are to be enlarged. Allowable height and
concern is for emergency personnel to locate the
area are evaluated on the basis of occupancy classifi-
building without going through a lengthy search proce-
cation, type of construction, location on the property
dure. In the case of a strip mall, identification would be
relative to lot lines and other structures and the pres-
provided for the backs of buildings that face alleys or
ence of an automatic sprinkler system.
roads since the emergency response unit may often
In the case of additions to existing buildings that are
be directed to the back entrance.
not separated by fire walls, the designer and plan re-
viewer must evaluate the entire building, including the
addition, as if it were a new structure for purposes of
SECTION 502
determining allowable area and height. For instance, if
DEFINITIONS
an existing Type IIB building Is to have an addition, the
aggregate area of the new building (existing plus the
502.1 Deflnitions. The following words and terms shall, for the
addition) must be within the limits established by Table
purposes of this chapter and as used elsewhere in this code,
503 for the allowable area and height of a Type IIB
have the meanings shown herein.
building, taking into account area and height modifica-
: Deflnitions of terms can help in the understanding and
tions for open frontage and sprinklers.
application of the code requirements. The purpose for
If the aggregate area of the existing building and the
including these definitions within this chapter is to pro -
addition exceeds the allowable area for Type 118 con-
vide more convenient access to them without having
struction In Table 503, the addition is not permitted un-
to refer back to Chapter 2. For convenience, these
less something Is done to solve the allowable area
terms are also listed in Chapter 2 with a cross
problem. The solution could either be adding sprin-
reference to this section.
klers to the building to get an allowable area increase
AREA, BUELDING. The area included within surrounding
in accordance with Section 506.3, providing a fire wall
Vexterior walls (or exterior walls and fire walls) exclusive of
between the addition and the existing building or treat-
vent shafts and courts. Areas of the building not provided with
ing two buildings In accordance with Section 503.1. If a
surrounding walls shall be included in the building area if such
fire wall is used, the designer must check the allow -
areas are included within the horizontal projection of die roof
able area of the existing building again because the
or floor above.
perimeter conditions have changed. Specifically, if the
allowable area of the existing building results from an
;Allowable building areas (as established by the provi-
increase due to open frontage (see Section 506.2),
sions of Chapter 5 and Table 503) are a function of the
then the following question must be answered: With
otential fire hazard and the level of fire endurance of
the reduced open perimeter (there is no longer anf
Apes building's structural elements, as defined by the
open per meter where the fire wall and adjacent build-
l" Ypes of construction in Chapter 6. A buildingi area is
"footprint" of the building; that is, the area mee-
ing will be located), does the existing building exceed
the
the area limitations of Table 503 based on its use and
sure w thin the perimeter formed y the inside Sur-
construction type? If so, another solution must by
lace of the axle or walls. This excludes spaces that
0?
found.
are inside this perimeter and open to the outside atmo-
s here at the top such as o en shafts and courts see
[T] SDl Address identification. New and existi n bui]din s
g
action hen a portion o e building has no
shall be provided with approved address numbers or letters.
exterior walls, the area regulated by Chapter 5 is de-
Each character shall be a minimum 4 inches (102 mm) high and
fined by the projection of the roof or floor above [see
a minimum of 0.5 inch (12.7 mm) wide. They shall be installed
Figure 502.1(1)]. The roof overhang on portions of a
on a contrasting background and be plainly visible from tite
building where there are exterior enclosure walls does
street or road fronting the property. Where access is by means
not add to the building area because the area is de-
of a private road and the building address cannot be viewed
fined by exterior walls.
from thepublic way, a monument, pole or other approved sign
or means shall be used to identify the structure.
BASEME NT. A story that is not a story above gradepimre (see
"Story above grade plane" in Section 202).
:• Identifying buildings, both new and existing, during an
emergency (i.e., fire department, ambulances, medi-
The definition of "Basement" does not apply to the provi-
cal, police) is greatly aided by the proper placement of
sions of Section 1612 for flood loads (sec "Basement" in Sec -
I.
address identification. In other than emergencies, the
tion 1612.2).
t'
address identification serves as a convenience for
:• Unlike previous editions of the International Codeso
people attempting to locate a building. The size and
(I- Codes®) where a story would be defined as a base-
color criteria are intended -to -aid- visibility- from - the
--- ment- if-any- portion-of the story was below grade, a
5-2
2009 INTERNATIONAL BUILDING CODO COMMENTARY
k,
II
II
II
GENERAL BUILDING HEIGHTS AND AREAS
TABLE 503
ALLOWABLE BUILDING HEIGHTS AND AREAS-
Building height limitations shown in feet above grade plane. Story Ilmltationa shown as atorles eti R_orada plane.
BUlldino area limitations shown In smart I., loo dnlerminnd s u
_
- _ �__._ .__-• _ __._.......__
_, ................. ., ...oa,..u19u11i9, 1pur story
n
STORIES(S)
GROUP
ARE k A
A -1
500
2
101
3
14,000
2
8,500
2 -
9,500
7
15000
3
15,0M
2
11,500
2
11,500
1
5,500
I
A -2
2
9100
3
14DOO
A -3
2
9,500
3
14,00
2
9,500
2
9,500
3
15,000
3
15,000
2
11,500
2
11,500
A Mn
1
6,000
1,
A-4
MULI
2
9500
3
14,000
A -5
UL
In
UL
tit
UL
In
UL
UL
UL
Ul
6,ligo
UL
LTL
17 IM
3
23,000
5
28.50
3
19,000
5
36.ODD
72
mooll
in
E
S
UL
5
3
2
3
2
3
I
9,000
1
F -I
S
A
UL
In
j1I
4
2
15,500
3
19,000
2
17,000
4
13,"o
2
14M)
1
F -2
S
A
UL
M
5
3
21000
4
28,500
3
IBM()
5
50500
3
2L000
MOD
2
H -I
S
1
1
I
I
I
I
1
I
13,0W
NP
H -2d
S
20
71
3
&5m
2
Ilffln
1
2
4
1
7.000
2
2
In SM
4
1
7,500
2
1
3pee
1
H -ld
S
20
6
4
2
H4
S
A
20
UL
7
UL
5
37,500
3
17 SM
5
751 qM
3
17,500
5
36,000
3
1&
2
Aim
H -5
S
A
4
UL
4
UL
3
37,500
3
73,000
3
28,500
3
19000
3
36,000
I
12,000
3
18,000
I
9500
2
9 Mr,
NP
NP
1- 2114.1f
S
A
UL
UI
4
UL
2
15,000
1
1 LOW
1
12,000
NP
NP
1.3'
S
UL
2
NP
NP
NP
NP
NP
NP
NP
14
S
UL
5
3
2
3
2
3
1
1
L
S
10
6
60"
5
37 SM
3
17 IM
5
26,500
3
I75M
5
M"
3
I&Q00
2
6,500
.. M
S
UL
UL
11
UL
4
21,500
2
17 im
4
19 IM
2
12,50D
4
20,500
3
1
R -I
S
UL
11
4
4
4
4
4
7
2:
UL
UL
24,00D
16,000
24,000
16,000
2a.500
17
17
f
R -2
S
UL
11
4
4
4
4
4
3
2
R -2.J
S
A
UL
UL
6'
55,0M
38
19,000
NP
NP
31
16,500
NP
NP
NP
NP
38
10,500
NP
NP
R- 3/R -3.1
S
UL
11
4
4
4
4
4
3
3
Rd
S
UL
Its
4e
4'
qe
41
4'
31
2t
S -1
S
A
UL
UL
it
48.00
4
26,0m
2 ',
17500
3
26,000
2
17,500
4
3
14 MQ
1
S -lac
S
UL
11
5
3
4
3
.5QQ
5
1
2
Ur
S
UL
5
4
2
3
2
4
2
1
A
UL
--JjNL-
19,000
81500
14,000
For51: 1 four =304.2 tnm, 1 square foot =0.0929 ms.
A = building mm, per story, S = stories above grade plane, UL= Unlimited, NP = Not pertained.
a. See the following sections for general exceptions to 7hble 503:
1. Section 504.2, Allowable building height and story increase due to automatic sptinuer system Installation.
2. Section 506.2, Allowable building area increase due to stmt frontage.
3. Section 506.3, Allowable building uea Increase due to automatic sprinkler system immllation,
4. Section 507, Unlimited arcs buildings.
It. For open parking suucmras, m Section 406.3.
c. For private garages, see Section 406.1.
d. See Section 415.5 for limitations.
a ISFM /See Section 40&J.] for specificuceptiansfor one- story $pe 11A. Type 111A or Type VA construction.
f Restraint shall not be permitted In any building except In Oraup 1-3 accupancles combuctedfor such use free Section 402.1.1).
g. Nanambu/alory, persons shall be limited to theflrsi ran stories.
h. Nonambularory persons shall be limited to rhefrrstflve stories.
1. Nonombu/mory elderly clients an nor permitted In buildings afdiese types ufcummclion. See Secrfanr425.333and 425.3.4.
150 2010 CALIFORNIA BUILDING CODE
CHAPTER 10
MEANS OF EGRESS
SECTION 1001
ADMINISTRATION
1001.1 General. Buildings or portions thereof shall be pro-
vided with a means ofegress system as required by this chapter.
The provisions of this chapter shall control the design, con-
struction and arrangement of means of egress components
required to provide an approved means of egress from struc-
tures and portions thereof.
1001.2 Minimum requirements. It shall be unlawful to alter a
building or structure in a manner that will reduce the number of
exits or the capacity of the means ofegress to less than required
by this code.
M 1001.3 Maintenance. Means ofegress shall be maintained
in accordance with the California Fire Code.
SECTION 1002
DEFINITIONS
1002.1 Definitions. The following words and terms shall, for
the purposes of this chapter and as used elsewhere in this code,
have the meanings shown herein.
ACCESSHILE MEANS OF EGRESS. A continuous and
unobstructed way of egress travel from any accessible point in
a building or facility to a public way.
AISLE. An unenclosed exit access component that defines and
provides a path of egress travel.
AISLE ACCESSWAY. That portion of an exit access that
leads to an aisle.
ALTERNATING TREAD DEVICE. A device that has a
series of steps between 50 and 70 degrees (0.87 and 1.22 rad)
from horizontal, usually attached to a center support rail in an
alternating manner so that the user does not have both feet on
the same level at the same time.
AREA OF REFUGE. An area where persons unable to use
stairways can remain temporarily to await instructions or assis-
tance during emergency evacuation.
BLEACHERS. Tiered seating supported on a dedicated struc-
tural system and two or more rows high and is not a building
element (see "Grandstands ").
COMMON PATH OF EGRESS TRAVEL. That portion of
exit access which the occupants are required to traverse before
two separate and distinct paths of egress travel to two exits are
available. Paths that merge are common paths of travel. Com-
mon paths of egress travel shall be included within the permit-
ted travel distance.
CORRIDOR. An enclosed exit access component that defines
and provides a path of egress travel to an exit.
DOOR, BALANCED. A door equipped with double - pivoted
hardware so designed as to cause a semicounter balanced
swing action when opening.
EGRESS COURT. A court or yard which provides access to a
public way for one or more exits.
EMERGENCY ESCAPE AND RESCUE OPENING. An
operable window, door or other similar device that provides for
a means of escape and access for rescue in the event of an emer-
gency.
EXIT. That portion of a means of egress system which is sepa-
rated from other interior spaces of a building or structure by
fire- resistance -rated construction and opening protectives as
required to provide a protected path of egress travel between
the exit access and the exitdischarge. Exits include exterior exit
doors at the level of exit discharge, vertical exit enclosures, exit
passageways, exterior exit stairways, exterior exit ramps and
horizontal exits.
EXIT ACCESS. That portion of a means ofegress system that
leads from any occupied portion of a building or structure to an
exit.
EXIT ACCESS DOORWAY. A door or access point along the
path of egress travel from an occupied room, area or space
where the path of egress enters an intervening room, corridor,
unenclosed exit access stair or unenclosed exit access ramp.
EXIT DISCHARGE. That portion of a means of egress sys-
tem between the termination of an exit and a public way.
EXIT DISCHARGE, LEVEL OF. The story at the point at
which an exit terminates and an exit discharge begins.
EXIT ENCLOSURE. An exit component that is separated
from other interior spaces of a building or structure by
fire- resistance -rated construction and opening protectives, and
provides for a protected path of egress travel in a vertical or hor-
izontal direction to the exit discharge or the public way.
EXIT, HORIZONTAL. A path of egress travel from one
building to an area in another building on approximately the
same level, or a path of egress travel through or around a wall or
partition to an area on approximately the same level in the same
building, which affords safety from fire and smoke from the
area of incidence and areas communicating therewith.
EXIT PASSAGEWAY. An exit component that is separated
from other interior spaces of a building or structure by
fire-resistance-rated construction and opening protectives, and
provides for a protected path of egress travel in a horizontal
direction to the exit discharge or the public way.
FIRE EXIT HARDWARE. Panic hardware that is listed for
use on fire door assemblies.
FLIGHT. A continuous run of rectangular treads, winders or
combination thereof from one landing to another.
FLOOR AREA, GROSS. The floor area within the inside,"",
imeter of the exteriorwalls of the building under consideration,
exclusive of vent shafts and courts, without deduction forcorri-
ors, stairways, closets, the— chess of interior walls, col-
_umns -or- other - features. The floor area of a building, or portion
2010 CALIFORNIA BUILDING CODE JULY 1, 2012 SUPPLEMENT 325
DEFINITIONS
The definitions in Chapter 5 of the Code are
cross - referenced from the list of definitions in
Chapter 2. As with other similar definitions,
they apply throughout the code, not just within
Chapter 5. The definitions have very specific
code - related criteria that may be different from
the colloquial meanings of the terms. They
should be studied carefully for applicability
when determining allowable heights and areas.
Height limitations for buildings contained in
planning and zoning regulations do not neces-
sarily use the same definitions or criteria for
determining heights. The definitions in the code
are developed to facilitate uniform application
of regulations. Read the documents that pertain
to the regulations in question. Do not ever apply
building -code criteria to planning issues, or vice
versa.
Building Area is usually considered to include
the outside face of the exterior walls of a
building. This is based on the language "area
inc ude within surrounding exterior walls." The
word "included" implies that the wall is part of
the area to be considered, as opposed to using
the word enclosed, which would imply the area
begins at the inside face of the exterior wall.
Another real- estate term often used for this
area is "gross bm mg area." The safest way
to calculate building area is to measure from
outside face of wall to outside face of wall. This
generates the most building area, and is the
conservative way to determine a building's area
when nearing the upper limit of allowable area.
The definitions of Basement, Grade Plane and
Building Height are correlated and are based
upon the relationship of building parts below or
above the grade plane as it is defined. Note that
building height as measured in feet, takes roof
profiles into account Building heights are mea-
sured to the average height of the highest roof,
thus allowing for pitched roofs, varying parapet
heights and rooftop equipment enclosures. The
height is calculated using different criteria than
those used to determine the height of a building
in stories. "Story" is intended to mean occupi-
able or usable space located inside the building
contained by a floor below and a plane (next
story or roof) above. This definhion has been
moved to Chapter 2 in the new code:
44 / BUILDING CODES ILLUSTRATED
enclosed by surrounding walls, are included
in Building Area.
Basement is the portion of a building that
is partly or wholly below the Grade Plane.
(See facing page for an explanation of Grade
Plans,)
If the finished surface of the floor above
the basement is more than 6' 118291 above
the grade plane or above the ground level
formore than 50% of the total building
perimeter, or if it is more than 12'(36581
above grade at any point then thebasement
is considered to be a "story above grade
plane."
i
i.9
MEANS OF EGRESS
thereof, not provided with surrounding exterior walls shall be
the usable azea under the horizontal projection of the roof or
floor above. The gross floor area shall not include shafts with
no openings or interior courts.
FLOOR AREA, NET. The actual occupied area not including
unoccupied accessory areas such as corridors, stairways, toilet
rooms, mechanical rooms and closets.
FOLDING AND TELESCOPIC SEATING. Tiered seating
having an overall shape and size that is capable of being
reduced for purposes of moving or storing and is not a building
element.
GRANDSTAND. Tiered seating supported on a dedicated
structural system and two or more rows high and is not a build-
ing element (see "Bleachers ").
GUARD f[DSA -AC, HCD 1 & HCD 21 or GUARDRAIL). A
building component or a system of building components
located at or near the open sides of elevated walking surfaces
that minimizes the possibility of a fall from the walking surface
to a lower level.
HANDRAIL. A horizontal or sloping rail intended for grasp-
ing by the hand for guidance or support.
MEANS OF EGRESS. A continuous and unobstructed path
of vertical and horizontal egress travel from any occupied por-
tion of a building or structure to a public way. A means of
egress consists of three separate and distinct parts: the exit
access, the exit and the exit discharge.
MERCHANDISE PAD. A merchandise pad is an area for dis-
play of merchandise surrounded by aisles, permanent fixtures
or walls. Merchandise pads contain elements such as nonftxed
and moveable fixtures, cases, racks, counters and partitions as
indicated in Section 105.2 from which customers browse or
shop.
NOSING. The leading edge of treads of stairs and of landings
at the top of stairway flights.
OCCUPANT LOAD. The number of persons for which the
means of egress of a building or portion thereof is designed,
PANIC HARDWARE. A door - latching assembly incorporat-
ing a device that releases the latch upon the application of a
force in the direction of egress travel.
PHOTOLUMiNESCENT. Having the property of emitting
light that continues for a length of time after excitation by visi-
ble or invisible light has been removed.
PUBLIC WAY. A street, alley or other parcel of land open to
the outside air leading to a street, that has been deeded, dedi-
cated or otherwise permanently appropriated to the public for
public use and which has a clear width and height of not less
than 10 feet (3048 mm).
RAMP. A walking surface that has a running slope steeper than
one unit vertical in 20 units horizontal (5- percent slope).
SCISSOR STAIR. Two interlocking stairways providing two
separate paths of egress located within one stairwell enclosure.
SELF - LUMINOUS. Illuminated by a self - contained power
source, other than batteries, and operated independently of
external power sources.
SMOKE - PROTECTED ASSEMBLY SEATING. Seating
served by means of egress that is not subject to smoke accumu-
lation within or under a structure.
STAIR. A change in elevation, consisting of one or more ris-
ers.
STAIRWAY. One or more flights of stairs, either exterior or
interior, with the necessary landings and platforms connecting
them, to form a continuous and uninterrupted passage from one
level to another.
STAIRWAY, EXTERIOR. A stairway that is open on at least
one side, except for required structural columns, beams, hand-
rails and guards. The adjoining open areas shall be either
yards, courts or public ways. The other sides of the exterior
stairway need not be open.
STAIRWAY, INTERIOR. A stairway not meeting the defuii-
tion of an exterior stairway.
STAIRWAY, SPIRAL. A stairway having a closed circular
form in its plan view with uniform section- shaped treads
attached to and radiating from a minimum- diametersupporting
column.
SUITE. A group of patient treatment rooms or patient sleeping
rooms within Group I -2 occupancies where staff are in atten-
dance within the suite, for supervision of all patients within the
suite and the suite is in compliance with the requirements of
Sections 1014.2.2 through 1014.2.7.
WINDER. A tread with nonparallel edges.
SECTION 1003
GENERAL MEANS OF EGRESS
1003.1 Applicability. The general requirements specified in
Sections 1003 through 1013 shall apply to all three elements of
the means of egress system, in addition to those specific
requirements for the exit access, the exit and the exit discharge
detailed elsewhere in this chapter.
Exception: Exiting requirements for Fixed Guideway
Transit Systems shall be as per Section 433.3.
[DSA -AC & HCD I -AC/ 1n addition to the requirement
of this chapter, means of egress, which provide access to,
or egress from, buildings orfacilities where accessibility
is required for applications listed in Section 1.8.2.1.2
regulated by the Department of Housing and Community
Development, or Section 1.9.1 regulated by the Division
of the State Architect- Access Compliance, shall also
comply with Chapter IIA or Chapter II B, as applicable.
1003.1.1 Means of egress for hospiwis, skilled nursing
facilities, and intermediate carefaci lities and correctional
treatment centers. [OSHPD l & 41 See Section 3417A. I<I
326 JULY 1, 2012 SUPPLEMENT 2010 CALIFORNIA BUILDING CODE
Definitions
SLEEPING UNIT. The single required characteristic of a sleeping unit is that it is used as
the primary location for sleeping purposes. The room or space that has sleeping facilities
may also provide for eating and living activities. It could have a bathroom or a kitchen but
not both, as this would qualify it as a dwelling unit. Guestrooms of Group R -1 hotels and
motels would typically be considered sleeping units. Sleeping units are also commonly
found in dormitories, sorority houses and fraternity houses, and regulated as Group R -2
occupancies.
Group R occupancies are not the only types of uses where sleeping units are located.
Several of the varied uses classified as Group I occupancies also contain resident or patient
sleeping units. The proper designation of these spaces as sleeping units is important in-the
application of Section 419 mandating the separation, of sleeping units in Group I -1
occupancies, as well as addressing the appropriate accessibility provisions of Chapter 11.
STORY. Although seemingly quite obvious, the definition of a story is that portion of a
building from a floor surface to the floor surface or roof above. In the case of the topmost
story, the height of a story is measured from the floor surface to the top of the ceiling joists,
or to the top of the roof rafters where a ceiling is not present. The critical part of the
definition of a story involves the definition of story above grade plane as described in the
following discussion.
STORY ABOVE GRADE PLANE. Throughout the code, the number of qualifying stories
in a building is a contributing factor to the proper application of the provisions. As an
example, a building's allowable types of construction are based partly on the limits in story
height placed on various occupancy groups. In this case, the code is limiting construction
type based on the number of stories above grade plane. The code defines a story above grade
plane as any story having its finished floor surface entirely above grade. However, floor
levels partially below the grade at the building's exterior (basements) may also fall under
this terminology. The critical part of the definition involves whether or not abasement is to
be considered a story above grade plane. There are two criteria that are important to the
determination if a given floor level is to be considered a story above grade plane:
1. If the finished floor level above the level under consideration is more than 6 feet
(1829 mm) above the grade plane as defined in Section 502.1, the level under
consideration is a story above grade plane, or
2. If the finished floor level above the level under consideration is more than 12 feet
(3658 mm) above the finished ground level at any point, the floor level under
consideration shall be considered a story above grade plane.
Where either one of these two conditions exists, the level under consideration is to be
considered a story above grade plane.
Conversely, if the finished floor level above the level under consideration is 6 feet (1829
mm) or less above the grade plane, and does not exceed 12 feet (3658 mm) at any point, the
floor level under consideration is not considered a story above grade plane. Figures 202 -2
and 202 -3 illustrate the definitions of story, basement and story above grade plane,
Although the criteria for establishing the first story above grade plane in Item #2
indicates that such a condition occurs where the 12 -foot limitation is exceeded, the
application of this provision is not that simple. It is not the intent of the code to classify a
story that is completely below grade except for a small entrance ramp or loading dock as a
story above grade plane, provided there is no adverse effect on fire department access and
staging. An analysis of the impact of such limited elevation differences is necessary to more
appropriately apply the code's intended result.
WALKWAY, PEDESTRIAN. Described as a walkway used exclusively as a pedestrian
trafficway, a pedestrian walkway provides a connection between buildings. A pedestrian
walkway may be located at grade, as well as above ground level (bridge) or below grade
.(tunnel). The provisions addressing pedestrian walkways are optional in nature and utilized
primarily to allow for the consideration of the connected buildings as separate structures.
Regulations for pedestrian walkways and tunnels are found in Section 3104.
20 2006 IBC Handbook
Attachment 5
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Attachment 6
Unified School Distnict A Legacy of Excellence in Education
300 South C Street, Tustin, CA 92780 -3695 • (714) 730 -7301 • FAX (714) 731 -5399 • wwwtustin.k12.ca.us
December 16, 2013
HAND DELIVERED
Ms. Elizabeth Binsack
Director of Community Development
City of Tustin
300 Centennial Way
Tustin, California 92780
Re: Tustin Legacy Irllas Development Project
Dear Ms. Binsack:
This letter serves as the Tustin Unified School District's ( "District ") response to the
November 21, 2013, Appeal Application from Bryan Austin, Vice President of Project Management,
Irvine Company ( "Company "), regarding the payment of developer fees for the Legacy Villas in the
Tustin Legacy project ( "Project "). The Project comprises approximately 533 apartments contained in
approximately 14 multi - family buildings.
The Company's letter argues that certain areas in each of the buildings should labeled as
"walkways" or a "similar area," which are exempt from school district developer fees under
Government Code Section 65995 ( "Section 65995 "). Similarly, some of the proposed buildings in
the Project will contain storage areas that the Company suggests should be excluded from developer
fees.
The so- called "walkways" are enclosed by two walls (on the right and the left) and a roof. It
appears that the ends of the "walkways" lead to the outside with no enclosed door, but the
"walkways" may have security gates. The so- called storage areas are smaller rooms located wholly
on the inside of the apartment buildings, but which are inaccessible from inside the individual
apartments.
The Company's interpretation of these "walkways" and storage areas appears to be incorrect.
Instead, the "walkways," for all intents and purposes, function as hallways. The storage areas
function similarly to closets. Both spaces exist within the interior perimeter of each apartment
building and are therefore not exempt under Section 65995. Accordingly, the City should include the
square footage of all of these areas in its calculation of "assessable space" under Section 65995.
BOARD OF EDUCATION
Jonathan Abelove • Tammie Bullard • Lynn Davis • James Laird • Francine Scinto
Ms. Elizabeth Binsack
December 16, 2013
Page 2
The "Walkways" Function As "Hallways"
Section 65995(b)(1) establishes that school district developer fees may only be levied on
"assessable space" within residential construction projects. Section 65995(b)(1) defines
"assessable space ":
"`Assessable space,' for this purpose, means all of the square footage within the
perimeter of a residential structure, not including any carport, walkway, garage,
overhang, patio, enclosed patio, detached accessory structure; or similar area."
First, the Company argues that the above - listed areas share the common attribute that
they "are not areas that people live in" and, therefore, the Legislature intended that all non-
livable areas should be excluded from "assessable space." This is incorrect. If that was truly the
Legislature's intention, it could have easily defined "assessable space" to mean the spaces people
lived in. Instead, the Legislature listed specific areas to be excluded. In looking at the types of
areas excluded from the definition of "assessable space," you can see that the Legislature
intended to exclude areas typically outside of the residential structure (i.e. patios, carports, etc.).
Here, the "walkways" are inside the residential structure.
Second, the Company argues that the Legislature's exclusion of " unenclosed walkways"
from the calculation of square footage for commercial /industrial construction under Section
65595(b)(2) indicates that the Legislature intended to exclude all types of "walkways" in
residential construction. This argument is incorrect because it ignores the fact that the analysis
for calculating chargeable space for residential construction is critically different from
commercial/industrial construction.
The critical language for analyzing commercial /industrial construction is determining the
"chargeable covered and enclosed space." It is true that Section 65995(b)(2) excludes
"unenclosed walkways" because to not do so would otherwise lead to an absurdity given that the
critical language for assessing chargeable industrial /commercial fees is "covered and enclosed
space."
The critical language for analyzing residential construction is determining "assessable
space" that is included "within the perimeter of a residential structure." The dissimilar analytical
schemes demonstrate that the Legislature intended for them to be interpreted differently. The
comparison between the two terms, therefore, is unjustified.
That leads us to determine what the term "walkway" commonly means. Neither Section
65995 nor any other developer fee statute defines the term "walkway." Oxford Dictionary
defines "walkway" to mean "a passage or path for walking along, especially a raised passageway
connecting different sections of a building or a wide path in a park or garden." (Oxford
Dictionaries, Oxford University Press, n.d. Web. 12 December 20131.) A published court case
affirmed this usage of "walkway" as "`a path for pedestrians esp[ecially] in a garden or park."
' See htt o: / /www.oxforddictionaries.com/us
Ms. Elizabeth Binsack
December 16, 2013
Page 3
(See Amberger- Warren v. City of Piedmont (2006) 143 Cal. App. 4" 1074, 1082.) These
definitions strongly indicate that the term "walkway" is commonly used to define an outside path
open to the public.
The areas the Company attempts to pass off as "walkways" should be labeled as
"hallways" and, therefore, should be included in the City's calculation of "assessable space."
Merriam - Webster's Dictionary defines the term "hallway" as a "corridor." (Merriam- Webster,
n.d. Web. 12 Dec. 20132.) A "corridor" is defined by the same as "a passageway (as in a hotel or
office building) into which compartments or rooms open." (Merriam- Webster, n.d. Web. 12 Dec.
2013.)
Here, the so- called "walkways" are not fully exposed to the outside, but are enclosed by a
roof and two walls and are within the perimeter of the residential structure. They are, in
actuality, hallways because they are the passageways through which the residents can enter into
their apartments.
The District respectfully requests that the City of Tustin includes these hallways in its
calculation of "assessable space" under Section 65995.
The Storaee Units are Not Excluded From the Definition of "Assessable Snace"
The Company has also incorrectly suggested that various storage areas inside the
apartment buildings are exempt from developer fees. Please note that the Company's own
architectural plans label these areas as "storage." As seen above, Section 65995's definition of
"assessable space" does not exclude storage areas located within the perimeter of a residential
structure. In fact, the definition under Section 65995(b)(1) fails to mention the word "storage"
entirely.
The District believes the separate storage areas have enabled the Company to construct
more apartment units within the perimeter of the residential structure with the option of renting
additional space for storage, where needed. These additional storage areas within the perimeter
of the apartment development will appeal to families with children, will affect schools within the
District, and, therefore, should be subject to developer fees.
Conclusion
The subject of "assessable space" within the perimeter of an apartment building
potentially has far - reaching implications beyond this particular development. Already, the
District has received a notice of appeal from another apartment builder /developer questioning the
same issue.
The District believes that all builders /developers should pay their legal share of developer
fees to mitigate the impacts of their development by providing schools for students generated
from the development.
a See htti)://www.merriam-webster.co
Attachment 7
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 Tern, 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 Tern, 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.
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 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.
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.
F. 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 maybe
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.
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.