HomeMy WebLinkAbout01 BBOA Meeting MinutesMINUTES
SPECIAL CLOSED SESSION MEETING OF THE
BUILDING BOARD OF APPEALS
JANUARY 28, 2014
(Clifton C. Miller Community Center - 300 Centennial Way, Tustin)
4:41 p.m. CALL TO ORDER
ROLL CALL:
Present: Board Members — Kozak, Thompson, Lumbard, Smith
Absent: Board Member Altowaiji
Staff Present Elizabeth A. Binsack, Director of Community Development
Justina Willkom, Assistant Director of Community Development
Scott Fazekas, Building Official
Adrianne DiLeva- Johnson, Senior Management Assistant
Vera Tiscareno, Executive Secretary
4:34 p.m
6:00 p.m.
PUBLIC INPUT:
James Laird, President of Tustin School Board spoke against the
appeal. He asked that the Board reconsider denial of The Irvine
Company (TIC) appeal and the potential negative financial impact from
the Board's recommendation for TUSD.
Tony Soria, Chief Financial Officer for Tustin Unified School District
(TUSD), submitted comments to the Board and staff for the record. He
mentioned past similar projects (Coventry Court and Heritage Place).
Soria also referred to the Building Official's determination and the
Building Code and what he felt should be included in assessable
space.
There were no further speakers present. Kozak concluded the public
input portion of the meeting.
The meeting was recessed for conference with legal counsel.
Bobak clarified the conference with counsel is to discuss exposure to
litigation Government Code Section 54956.9 (b)(2).
SPECIAL MEETING OF THE BUILDING BOARD OF APPEALS
(City Council Chambers — 300 Centennial Way, Tustin)
Meeting reconvened.
Bobak stated there was no reportable action out of closed session.
Minutes for Special Closed Meeting of January 28, 2014 - Page 1 of 8
ITEM #1
INVOCATION /PLEDGE OF ALLEGIANCE: Commissioner Lumbard
ROLL CALL:
Present: Board Members - Altowaiji, Kozak, Lumbard, Smith,
Thompson
Staff Present Elizabeth A. Binsack, Director of Community Development
Dana L. Ogdon, Asst. Dir. of Comm. Dev. — Building Division
Justina Willkom, Asst. Dir. of Comm. Dev. — Planning Division
Lois Bobak, City Attorney
Scott Fazekas, Building Official
Adrianne DiLeva- Johnson, Sr. Management Assistant
Vera Tiscareno, Executive Secretary
None PUBLIC CONCERNS
CONSENT CALENDAR:
Approved the 1. APPROVAL OF MINUTES — JANUARY 14, 2014 BUILDING
January 14, BOARD OF APPEALS MEETING.
2014 minutes
as amended. RECOMMENDATION:
That the Board approve the minutes of the January 14, 2014
meeting as provided.
Motion: Approved the January 14, 2014 minutes as amended. It was moved
by Lumbard, seconded by Thompson as amended. Motion carried
5 -0.
None PUBLIC HEARINGS
REGULAR BUSINESS:
Adopted 2. APPEAL OF SCHOOL FEE CALCULATION — THE IRVINE
Resolution No. COMPANY
4251
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 will be provided.
On November 21, 2013, The Irvine Company filed an appeal
of this determination. Resolutions have been prepared for the
Board's consideration.
Minutes for Special Closed Meeting of January 28, 2014 - Page 2 of 8
RECOMMENDATION:
That the Board adopt Resolution No. 4251. The Board has no
further jurisdiction than determining the applicability of the
Building Code.
The appeal of The Irvine Company is remanded to the
Building Official for a determination of exemptions from
"Assessable Space" for the Legacy Villas project at 16000
Legacy Road in a manner consistent with this Resolution.
Binsack Provided a presentation of the item.
Binsack stated the item was a continuation of the following events then
she summarized:
On October 22, 2013, a determination was made concerning the City's
interpretation of Government Code Section 65995(b) regarding
calculation of required school fees for the Legacy Villas; at the
November 21, 2013 Building Board of Appeals meeting, The Irvine
Company filed an appeal of this determination, specifically "assessable
space'; and at the January 14, 2014 Building Board of Appeals
meeting, The Irvine Company appealed with the following actions
given by the Board:
• The Board upheld the appeal to exclude walkways and to
modify Building Division's standard practice in calculating the
buildings square footage for the purpose of determining
required school fees related to corridors in R -1 occupancies
leading to units regardless of type of construction. 3 -2 vote.
• The Board motioned to uphold the appeal to exclude storage
area from the assessable area. 2 -3 vote.
• The Board overturned the appeal, and upheld the Building
Official's determination to include storage in the assessable
area if within the perimeter walls of the building whether or not
within the dwelling units. 4 -1 vote.
Binsack's comments generally included: Questions raised as to
whether or not the Board had jurisdiction; the proper conduct that the
Board may have taken at its Board meeting; she submitted to the
Board correspondence from Bowie, Arneson, Wiles & Giannone,
representing TUSD, along with correspondence from John Yeager,
O'Neil Attorneys at Law, representing TIC; she then summarized
resolutions presented at the January 14, 2014 meeting providing staff
direction - Draft Resolutions Nos. 4249 & 4250; Binsack presented to
the Board, for their consideration, Resolution No. 4243, which would
affirm the Building Official's determination with regard to the calculation
Minutes for Special Closed Meeting of January 28, 2014 - Page 3 of 8
of required school fees; she provided a brief summary of the
recommended Draft Resolution No. 4251, which states that the Board
would find that the Building Code would not apply the determination of
the exemptions for the term "assessable space" as identified in the
Government Code; she stated the Board has no jurisdiction other than
determining the applicability of the Building Code to determine what
the area or perimeter of the building would be; and the appeal of TIC
would be remanded to the Building Official for a determination of
exemptions of assessable space for the Legacy Villas project in a
matter consistent with the resolution.
Bobak Bobak's comments regarding "jurisdictional issue" generally included:
she stated that under the TCC, most decisions made from a member
of the Planning staff is appealable to "some body" (i.e. Zoning
Administrator, Planning Commission, and City Council); Bobak stated
that under the Building Code, most decisions of the Building Official
are appealable to the Board; the Building Official relied on the Building
Code to determine both what the structural perimeter of the subject
buildings were and then applied the exemptions in the Government
Code for purposes of determining assessable space; the decision was
then looked at as "appealable'; staff should have looked at what the
jurisdiction of the Board was as set forth in Section 113.2 of the
California Building Code, which the City Council adopted; and this
authority jurisdiction was created by the City Council by adoption of this
section and defines what the scope of the authority of the Board is.
Bobak discussed Section 113.2 of the Building Code which generally
included: The Board has jurisdiction to determine whether or not the
provisions of the code, rules and regulations legally adopted have
been correctly or incorrectly interpreted; whether the provisions of the
code apply in any given situation or whether there are equally good or
better forms of construction of a code provision available; in this case,
the Building Official went through two basic steps: 1) determined basic
square footage of what the structural perimeter was to determine
assessable space relying on the City's standard practice (Building
Code definition of what "building area" is) 2) removed square footage
of the structure based on the exemptions of the Building Code and
how the exemptions applied; the Board agreed and disagreed in part
with the Building Official in that "walkways" should be excluded and
"storage spaces" should not; and if the determination by the Board
was that the Building Code did not apply to the exemption, then that
determination ends the jurisdiction that the City Council has granted to
the Board.
Bobak's comments generally included: If the Board agreed that the
Building Code properly applies to determining what the exemptions
are, then the Board has jurisdiction interpreting and applying to the
Building Code and not the Government Code; the issue of jurisdiction
did not come up at the January 14, 2014 meeting; she shared
Minutes for Special Closed Meeting of January 28, 2014 - Page 4 of 8
suggestions in correspondence received from TIC; the time to
challenge jurisdiction has passed; Bobak's opinion, and staffs opinion
is that the Board has not made a final decision therefore the
jurisdictional issue was properly raised and issues can be raised at any
time if a court action were filed against whatever action the Board
takes; she explained the proper time to correct the jurisdictional error
would be before final action is taken; and Bobak responded to TIC's
counsel, with reference to the Rules and Procedures that the Board
adopted, and how the appeal process works.
Bobak stated that the Rules & Procedures assume that the Board has
jurisdiction to take any particular action or hear any particular appeal.
Once the Board has jurisdiction to hear an appeal, the Board can
reverse, affirm or change action when in any way they deem
appropriate. Counsel for TIC also stated in their correspondence that
they disagreed with the application of the Building Code in the nature
of the appeal, which the staff agreed and that the Building Code does
not apply to that determination.
Bobak also stated TUSD's counsel mentioned in their correspondence
that the Board violated "Due Process" at the January 14, 2014 meeting
due to conversations the Board had with TIC before the meeting and
that they did not disclose the conversations for the record. However,
the record did reflect some information was included in the record.
Note: Altowaiji stated the presentation given to him by TIC was similar
to the presentation given at the Board meeting. Bobak reminded the
Board final action has not been taken therefore she encouraged those
Board members who met with TIC to explain their decision - making
process and note it for the record.
Bobak agreed with the assertion in the letter from TUSD's counsel that
the Board does not have jurisdiction to define terms in the Government
Code, to the extent that the Board believes the Building Code does not
apply. If the Building Code does not apply, the Board should not
interpret the Government Code. If using the Building Code to define
terms of the Government Code, then it would be acceptable.
Per Bobak, and as raised by TUSD's counsel was the admissibility of a
2009 letter referenced in the presentation by TIC at the January 14,
2014 meeting. The letter was later included in the record. Bobak
stated it is a hearing not a trial and the letter is not inadmissible or
bound by the rules of evidence. The Board is free to consider as
deemed appropriate. She reminded the Board that at the January 14,
2014 meeting, Binsack provided them with an alternative resolution,
which staff believed was an appropriate response to the jurisdictional
issue raised, and the Board did not believe that the Building Code was
the proper tool to look at with regards to defining the exemptions of
assessable space in the Government Code. At the meeting, staff
prepared a draft resolution and provided copies to the Board as well as
Minutes for Special Closed Meeting of January 28, 2014 - Page 5 of 8
to representatives of TIC and TUSD regarding the Board's
jurisdictional limits which provides the background of how the issue
came to the Board. Bobak stated the jurisdictional limits of the Board,
the Board's finding that relies on the Building Code and the
determination of the applicability of the Building Code ends the
jurisdiction of the Board and the matter is remanded to the Building
Official to make a determination of assessable space without relying on
the Building Code for determining the exemptions in the Government
Code.
Bobak then asked the Board if they had any questions, which there
were none.
PUBLIC COMMENTS:
John Yeager, O'Neil Attorneys at Law, spoke representing TIC. His
comments generally included: Commended Bobak for her explanation
of events; he felt the Board had jurisdiction to consider the appeal;
asked if the appeal was appropriately filed; he referred to the Rules
and Procedures and the appeal taken by the Building Official regarding
assessable space; he asked what "body" appeals if the parties do not
agree with the Building Official's determination; the issue of violating
the TUSD's due process; TIC met with TUSD prior to the appeal and
provided documents that were presented to the Board; lack of
jurisdictional issue; and he felt the letter in question was properly
accepted at the January 14, 2014 meeting.
Bobak Bobak's responses generally included: The Board had jurisdiction to
decide whether or not they have jurisdiction and whether or not the
Building Code applies to the determination of what the exemptions
under the Government Code mean; in summary, the Board had
jurisdiction at the January 14, 2014 meeting to decide whether or not
the Building Code applied; the appeal may have been dealt with
differently had the jurisdiction issue been addressed then; on remand
no administrative appeal of the decision of the Building Official; would
be a final administrative decision from the City; and subject to judicial
review.
Wendy Wiles, representing TUSD, comments generally included the
following: Jurisdictional issue — responded to Yeager's comment —
referred the Board to Section 113.2 - limitation on the authority of the
BBOA is to look to the true intent of what the Building Code is; that the
rules are correctly interpreted; to review whether the provisions of the
Building Code do or do not apply; if there is an equally good or better
form of construction of the proposed Building Code; agreed with Bobak
that the Board does not have the authority to go beyond the limited
issue; the question as to whether or not it is appropriate to interpret the
Government Code is appropriate whenever a jurisdictional issue has
been identified; the due process issue; avoiding litigation is preferred;
Minutes for Special Closed Meeting of January 28, 2014 - Page 6 of 8
and TUSD felt they were not given the opportunity to understand or
provide responses to assist with the analysis discussed between TIC
and the Board.
6:30 p.m. CLOSED PUBLIC HEARING
Kozak Kozak's comments generally included: Commended comments made
by both representatives for TUSD and TIC; jurisdictional issue needs to
be resolved; clarified the telephone call he had with TIC — information
shared with him was similar to what was shared with the Board at the
January 14, 2014 meeting; the research he had conducted on his own
time — preparing for the BBOA meeting; and specifically focused on
assessable space in his Google Search and found nothing.
Thompson Thompson clarified for Wiles that he did meet with TIC and staff which
was consistent with the presentation heard and the staff report
received at the January 14, 2014 meeting; he mentioned one variation
of the discussion — staff mentioned they were going to appeal space
that had to do with interior walls which was not in the presentation or
the appeal; made a statement that TUSD does have a Board and
operates similarly to the BBOA and is more privy to the way a board
operates.
Altowaiji Altowaiji clarified he had met with TIC and Staff and that he did
research other agencies regarding school fee calculations; he
discovered most of the agencies refer to their school district, which he
stated is contrary to what is in the Government Code; many variations
created confusion; that the Board made their decision based on
presentations; and he stated the Building Code is for "technical"
purposes.
Kozak Kozak suggested the Board discuss and act on Resolution No. 4251
since it is consistent with the jurisdictional limitations of the BBOA.
Thompson Thompson's comments, referring to the January 14, 2014 meeting,
generally included: Discussion regarding assessable space and
exemptions; reiterated his decision was not based on fees, amount,
but based upon a conflict between the Government Code and Building
Code; walkways was mentioned; limit of the Board's authority; and he
recommended the Board support Resolution No. 4251.
Lumbard Lumbard's comments generally included: The Government Code
Section 65995 (b)(1) which refers to structural perimeters; he then
asked Staff for an explanation of what the City's "standard practice" is;
responded to Fazekas' response about the Building Code and felt it
was interpreted correctly; and all exceptions are defined by the
Building Code, by standard of practice (perimeter, square footage of
the building and the exceptions, etc.).
Minutes for Special Closed Meeting of January 28, 2014 - Page 7 of 8
Fazekas In response to Lumbard's question regarding "standard practice"
Fazekas' stated he looks at the area within the perimeter of the exterior
walls, looks for exclusions (i.e. vents, open areas), then looks to the
Government Code on what the exclusions are, then removes those
areas from the square footage.
Motion: The item was moved by Thompson, seconded by Altowaiji to adopt
Resolution No. 4251. Lumbard dissented. Motion carried 4 -1.
7:05 p.m. ADJOURNMENT
Minutes for Special Closed Meeting of January 28, 2014 - Page 8 of 8