Loading...
HomeMy WebLinkAbout03 BBofA TRAINING ON FINDINGS IN DECISION MAKING AGENDA REPORT ITEM #3 MEETING DATE: MARCH 5, 2020 TO: TUSTIN BUILDING BOARD OF APPEALS FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: TRAINING ON FINDINGS IN DECISION MAKING RECOMMENDATION: Receive and file. BACKGROUND: The Tustin Building Board of Appeals (the Board) has been established to hear and decide appeals of orders, decisions or determinations made by the Tustin Building Official relative to the application and interpretation of the California Building Standards Code and/or the Uniform Housing Code. This report provides the Board with a brief explanation of the types of appeals typically fried for Board consideration and identifies the process of creating a permanent record of the Board's decision-making considerations through the preparation and adoption of findings, DISCUSSION: The Board is responsible for considering appeals of the Building Official's application and interpretation of the California Buiiding Standards Codes and Uniform Housing Code. City staff and the Building Official work very hard to address and resolve issues directly with architects, engineers, designers, construction contractor professionals, and property owners. Consequently, appeals of a Building Official determination do not occur very often. Tustin has only received three (3) appeals in the past 15 years. However, when appeals are received, they can be very complex. Prescriptive vs. Performance Codes Building and Housing Codes are regulations that govern the design, construction, alteration and occupancy of structures. The California Building Standards Code includes both prescriptive and performance-based codes. A prescriptive code identifies specific construction requirements and methods for meeting them. The table (shown on Page 2) is an example that identifies prescriptive Building Code requirements for the installation of insulation in a new residential home. The table tells the contractor/designer the exact type of insulation required to be placed in specific locations in the building, for different regions Building Board of Appeals March 5, 2020 Page 2 of the country, as determined by regional climate zone. Prescriptive codes are easy for a contractor to understand and implement, and are equally easy for a City inspector to check in the field. Insulation installed that complies with the listed minimum standard can be found to be compliant with the code, without any subjective consideration. TABLE R402.1.1 INSULATION AND FENESTRATION REQUIREMENTS BY COMPONENT' GLAZED WOOD MASS BASEMENT` SLAB' CRAWL CLIMATE FENESTRATION SKYLIGHT° CEILING FLOOR SPACE ZONE U-FACTOR" U•FACTOR FENESTRATION R-VALUE FRAME WALL WALL R-VALUE WALL R•VALUE WALL SHGC�• R-VALUE R-VALUE' R•VALUE &DEPTH R-VALUE I NR 075 0.25 30 13 :31.1 13 0 0 0 2 0.40 (1.65 0.25 38 13 4/6 13 0 0 0 3 0.35 0.55 0.25 39 20 or 13+5' 8113 19 5113' 0 5/13 4 except 035 0.55 0.40 A9 20 or 13+5° 8113 19 10113 t0.2 ft 10!1:1 Marine 5 and 0.32 0.55 NR 49 20 or 13+5' 13/17 30$ 15/19 10.2 ft I SI19 Marline 4 6 U 32 0.55 NR 49 20+5 ur 13+10" 15 121) 30A 15119 10.4 fl 1519 7 and 8 0,:32 0.55 NR 49 20+5 or 13+I0" 19121 38" 15119 10,4 Ft 15.'19 t t i..L.1 •�a�.N..,, . Prescriptive codes are not intended to prevent the installation of new materials or construction methods when they can be shown to be equally protective and/or superior, provided that the new material or method is reviewed and approved by the Building Official. New construction Building Board of Appeals March 5, 2020 Page 3 techniques and materials are encouraged and accommodated through performance codes. Performance codes define acceptable or tolerable/equitable levels/standards that provide a reliability not less than that expected under a prescriptive approach. Compliance typically requires modeling, documentation, or testing to evaluate/prove how building systems are likely to perform under a variety of conditions. The primary feature of performance codes is the flexibility they provide as opposed to the strict mandates of prescriptive codes. An example of performance-based compliance could be a proposed aluminum-framed residential construction, Residential homes are typically built with either concrete block, wood or steel framing. These types of construction have prescriptive requirements identified in the Building Code that direct how they are to be built, the materials that can be used (including the species of tree the wood is milled from), board sizes and lengths, spacing, nailing requirements, etc. Each material specified in the code has been previously tested and shown to be reliably safe for use in the construction of homes (e.g., conducted by the Underwriters Laboratory (UL) or the International Code Council (ICC). However, building designers or construction material manufacturers are constantly developing or identifying new or alternative material or methods for the construction of buildings. The building official is granted the authority under the code to accept an alternative materials and methods of construction not specifically prescribed by the code when convinced by modeling or testing results, documentation, etc., that the proposed material or method meets the intent of the code and that it is generally equivalent to the material or method it is to replace. 1 u Imo\ FW FAI FAN FAN F,ri\ II A 4 r. Building Board of Appeals March 5, 2020 Page 4 Ultimately, the Building Official is the person that decides if the proposed new material or method is in fact equivalent to the material or method specified in the prescriptive provisions of the code. Sometimes, the Building Official will find that the proposed alternative does not appear clearly equivalent and denies the request. In such cases, the applicant can either comply with the prescriptive code requirements, submit additional information supporting the use of the alternative material or method, or appeal the decision to the Board of Appeals. Appeals Disputes between the Building Official and a designer/contractor/owner that results in the fling of an appeal are scheduled to be heard by the Board. In some cases, the Building Official may convene the Board to assist him/her in evaluating the merits of a new material or method. Example: a unique, custom home was recently designed by a famous architect. The architect wanted to install a sink counter top made from a large, highly polished piece of rosewood. At that time, the Building Code did not permit the use of porous surfaces like wood near sources of water in order to prevent the growth of harmful bacteria, mold, mildew, etc. Although the Building Official recognized that the highly polished varnish applied to the rosewood counter top would repel water and prevent the hazardous condition intended by the code's prohibition, the prescriptive language of the code at that time prevented the approval of the wood sink as an alternative material to stone, tile, etc. Rather than deny it, the Building Official proactively brought the matter to the Building Board of Appeals to discuss, review and approve the use of the wood sink counter top as an alternative material and method. The Boards' adopted Rules and Procedures sets forth a quasi-judicial hearing process whereby an appellant may submit documentation, studies, exhibits, witness testimony and other evidence that supports the proposed alternative method or material. The Building Official sets forth similar types of evidence as to why he/she concluded the proposal is not supported in the code, possibly augmented by the written findings of a Board-appointed, objective, third-party Hearing Officer/Examiner. At the conclusion of the hearing(s) on the matter, the Board may reverse, affirm, vary or modify any Building Official order, requirement, decision or determination and the decision is final. However, the Board does not have the authority to waive requirements of the code. Findings The Boards' decisions may be challenged in a court of law by either the appellant or the City. Courts require an adequate record upon which to exercise judicial review. This Building Board of Appeals March 5, 2020 Page 5 means that the documentation supporting the approval or denial of a project must show that the Board considered the evidence when reaching its decision. The courts want to see the relevant sub-conclusions that expose the methods and reasoning when analyzing the facts and applying the code. Thus, the Board will adopt a Resolution when approving or denying an appeal that sets forth a written set of findings (or reasons) describing how it arrived at the decision. The California Supreme Court has laid down distinct, definitive principles of law detailing the need for findings when a public agency acts in a quasi-judicial role (Topanga Assn for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506 (9974)). The Topanga court outlined five (5) purposes for making findings; three (3) relate to the decision-making process, two (2) relate to judicial functions as follows: • To provide a framework for making principled decisions, thereby enhancing the integrity of the administrative process. • To facilitate orderly analysis and reduce the likelihood the agency will leap randomly from evidence to conclusions. • To serve a public relations function by helping to persuade parties that administrative decision-making is careful, reasoned, and equitable. • To enable the parties to determine whether and on what basis they should seek judicial review and remedies. • To apprise the reviewing court of the basis for the agency's decisions. The California Building Code and Uniform Housing Code provides the following guidance in this regard: • CBC Section 113.2 identifies the following limitations on the authority of the Board: An application for appeal shall be based on a claim that: ❖ the true intent of this code or the rules legally adopted there under have been incorrectly interpreted; or, ' ❖ the provisions of this code do not fully apply; or, ❖ an equally good or better form of construction is proposed; but, ❖ the Board shall not have authority to waive requirements of this code. Building Board of Appeals March 5, 2020 Page 6 UHC Section 203.2 adds: ❖ the housing advisory and the board shall have no authority relative to interpretation of the administrative provisions of this code; and, ❖ the board shall not be empowered to waive requirements of this code. Example: at the conclusion of a public hearing, the Building Board of Appeals approves an application to modify the California Building Code use classification for a housing facility for Alzheimer's residents that would lower the level of fire protection for the building. The City appealed the decision contending that the Board did not have the authority to modify the .Building Code use classification. The court held that the Board did not have the authority to modify the Building Code use classification. Pursuant to CBC Section 113.2 and UHC Section 203.2, the Board did not have the authority to waive requirements of the code. Any approval decision must show that the proposal is equally good or better than the requirement identified by the code. Staff will present the prepared findings as part of a Board Resolution approving or denying the request. During a public hearing, additional relevant facts, observations, or testimony may be given that should be included in the record as a finding. The following four-step process is used when drafting effective and relevant findings: 1. State the impact (either positive or negative) of the proposal. 2. Cite the source of the supporting evidence (e.g., exhibits, documentation, studies, testimony, or other information). 3. Refer to the relevant governing code, regulations, or ordinance. 4. Describe in detail why or how the proposal either meets or fails to meet the requirements included in the code (listed above). One of the simplest techniques to use in developing a finding is to use the word "because." It connects the reasoning to the legal principle. For example: © The proposed alternative material is. consistent with Section 113.2 of the California Building Code because-the proposed installation of a varnished wood sink counter is an equally good'or better form of construction to nonporous stone or tile counters, or, Building Board of Appeals March 5, 2020 Page 7 The proposed alternative material is inconsistent with Section 113.2 of the California Building Code because the proposed installation of a non-vamished, porous, wood sink counter is specifically prohibited by the code or is less protective than the code requires and the Board does not have authority to waive requirements of the code. Vacancy of a Decision If the information, evidence or data provided at the time of the Board's favorable decision to an appellant is determined to have been false or is no longer valid, staff will bring the matter back before the Board at a noticed hearing, to request that the decision approving the appeal be immediately vacated. 4�� Dana Ogdon, AIC , BO Elizabeth A. Binsack Assistant Director Community Development Director 4406�� Scott Fazek , AIA, CBO Building Official 2020"1 Lisim BuildinL,,L3uaid rel :Appeals do