ordinance (first reading) establishing a process for hearing appeals related to compliance with all...

8/12/2019 Ordinance (First Reading) Establishing a Process for Hearing Appeals Related to Compliance With All State and Fed

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To:From:Submitted by:Subject:

CITY OF CARMEL-BY-THE-SEACouncil ReportApril1 2014

Honorable Mayor and Members of the City CouncilJason Sti lwell, City AdministratorRob Mullane, AICP Community Planning and Building DirectorConsideration of an Ordinance (First Reading) Amending the Carmel-ByThe-Sea Municipal Code Making Revisions to the Building Board ofAppeals and Establishing a Process for Hearing Appeals related toCompliance with all State and Federal Disabled Access Requirements

Recommendation: Conduct first reading of the attached ordinance.Executive Summary: The City does not currently have seated a Building Board of Appeals, nor

does the City have a mechanism set up to hear appeals for mattersrelated to compliance with both State and Federal disabled accessrequirements. The City s Municipal Code sets forth the membershiprequirements of the Building Board of Appeals, as well as the process forhearing Building Code-related appeals. The current membershiprequirements are difficult for a City of Carmel s size to meet, and theappeal processes are not in keeping with the state of the industry. Theproposed ordinance would amend Chapter 15.04 of Title 15 of the City ofCarmel Municipal Code to address these issues.

Analysis Discussion: Background nd Role of the Building Board of ppealsA Building Board of Appeals is the board that hears appeals ofdeterminations made by the Building Official regarding building permitrequirements or interpretations of the Building Code. Sections 15.04.170through 15.04.240 set forth the membership, authority, and proceduresfor the Board of Appeals. The City s existing regulations for Sections15.04.170 through 15.04.240 are included as Attachment B. BuildingCode requirements tend to be clearly defined, but there are instanceswhere an interpretation is needed. The Board of Appeals provides anappeal body for decisions of the Building Official with which an owner orapplicant disagrees.

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In part because of the limited discretion in Building Code determinations,the City has not received a formal request to appeal a decision of theBuilding Official in the last several years. Nonetheless, the establishmentof such a board is required under the Municipal Code, and the City shouldhave such a board seated in the event that an appeal is received. Thisboard would also hear appeals related to compliance with disabledaccess requirements and actions required to abate dangerous or unsafebuildings as set forth in Section 15.04.240 of the Municipal Code.For the Board of Appeals to have the requisite expertise for mattersrelated to disabled access compliance, for any hearing on an disabledaccess-related matter, the board s membership should be augmented toinclude two members who are either disabled or qualified to addressdisabled access matters.

Issues wit xisting Provisions - MembershipThe existing Municipal Code sets forth the membership of the Board ofAppeals to include five members, of which four are regular members thathear all Building appeals brought forth The four regular members arerequired to have specific qualifications as follows: one architect, one civilor structural engineer, one general contractor, and one layman . The fifthmember is represented by one of three alternates each with their ownspecial qualifications: a qualified plumbing contractor or plumber, aqualified electrical contractor or electrician, and a qualified mechanicalcontractor. On general matters any one of the alternates sits on theboard; for matters that are field-specific (i.e., plumbing-, electrical-, ormechanical-re lated, the appropriately-qualified alternate sits on theboard. Section 15.04.180 also requires that four of the members of theboard be residents of the City. Such requirements, including theresidency requirement, present a challenge for a City the size of Carmel.Staff recommends revisions to the membership of the Board of Appeals.The Board of Appeals would still have five members with three coremembers sitting on all appeal matters and two disabled access membersor experts who would only participate on the board for matters relatedto disabled access compliance issues. The core members would have thefollowing qualifications: one architect or (civil or structural} engineer, onegeneral contractor, and a third member who may have expertise in theconstruction or building field or who may be a layperson.

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Staff also recommends that requirement for the majority of the Board tobe City residents be retained by applying this residency requirement tothe core board membership. However, because of the specialized natureof accessibility expertise, staff recommends that no residencyrequirement be applied to the two additional Board members whoparticipate in accessibility-related decisions. The Council, in appointingthese members, could take residency into consideration. Revisions toSection 15.04.180 of the City's Municipal Code have been drafted toaddress membership and purview of the Board of Appeals .Wh ile not an ex officio member of the board, the Building Official wouldparticipate in the hearing as would the appellant. The Building Official'sparticipation would provide technical expertise regarding the BuildingCode and disabled access compliance requirements as well as assistancein ensuring that the issue of dispute is correctly conveyed andunderstood.ssues with xisting Provisions Process

The Board of Appeals should include a majority of the members that aretechnical experts an d knowledgeable in building issues. This board wouldbe hearing appeals of the City's chief technical expert on building andsafety issues: the Building Official. The current version of Chapter 15.04includes the potential for the Planning Commission to sit as the Board ofAppeals when a conflict arises in the composition of the Board.Furthermore, Section 15.04.220 establishes a provision for appealing adecision of the Board of Appeals to the City Council. While the retentionof the Planning Commission as a potential substitute for the Board ofAppeals may be appropriate from a technical expertise perspective, theCity Council may not have this expertise. In addition, having either thePlanning Commission or the City Council involved in appeals of BuildingCode or disabled access compliance items takes issues that are technicalin nature and places them in the political arena.

ther cities have recognized this as a potential problem and omitted anappeal process that involves either the City Council or the PlanningCommission. Instead the Board of Appeals is the final City decisionmaking body for considering these techn ica l issues. An owner orapplicant who disagrees with the decision of the Board of Appeals wouldneed to seek remedy with the courts. In general, when such matters arebrought before the Superior Court, the court defers to the technical

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experts on the technical issues, and rather focuses on whether thecorrect procedural process was followed. Staff recommends removingthe Appeal to the City Council provisions in Sections 15.04.220 and15.04.230, as well as the role of the Planning Commission in Section15.04.180.

Environmental Determination

Alternatives

iscal Impact

The City determined th t the proposed action is not a project as definedby the California Environmental Quality Act {CEQA {CCR, Title 14Chapter 3 { CEQA Guidelines), Article 20 Section 15378). CEQAGuidelines Section 15061 includes the general rule th t CEQA applies onlyto activities which have the potential for causing a significant effect onthe environment. Where it can be seen with certainty th t there is nopossibility th t the activity in question may have a significant effect onthe environment, the activity is not subject to CEQA. Because theproposed action and this m tter have no potential to cause any effect onthe environment, and because it falls with in a category of activitiesexcluded as projects pursuant to CEQA Guidelines.The Council may direct changes to the proposed dr ft Ordinance, whichdepending on the extent of these revisions, may require re-introductionof the Ordinance at a future meeting. In addition, the Council could optnot to proceed with revisions to the existing regulations, in which case,should an appeal of the Building Official's determination be filed, thePlanning Commission could serve in th is capacity under a broadinterpret tion of Section 15.04.180. In the event of an appeal related toan disabled access compliance issue, the Planning Commission would notbe able to hear th is item due to the lack of disabled access expertise, andCity st ff would need to expeditiously convene the appropriate appealbody fter bringing forth an ordinance similar to the proposed ordinanceto establish such a board. The no -action alternative also retains the CityCouncil as th e final appeal body in the event of an appeal of the Board ofAppeals decision. As discussed above, having the City Council involved inappeals of Building Official determinations may be undesirable as th is canpoliticize an issue th t is technical in nature.No direct costs were incurred in the preparation of the ordinance; staffcosts are p rt of the City's normal workload. Once the board is seated,compensation for travel expenses related to board duties may result inadditional costs. However, no stipends or other compensation isproposed. Given th t this board is unlikely to meet more than once or


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twice a year, staff estimates that any travel costs would be less than1,000 per year.

Previous CouncilAction Decision History:

Attachment:

The current version of the Board of Appeals-related sections of Chapter15.04 were established by the City Council in 1989 (Ordinance 89-29),with minor amendments made in 2010 (Ordinance 2010-05). Firstreading of this ordinance was continued without discussion from theMarch 4, 2014 City Council meeting as part of agenda management.

Attachment Draft Ordinance ttachment B Excerpt of the Current Version of Sections 15.04.170 through 15.04.240

Reviewed byity dministrator City ttorney Administrative Services

Asst. City Admin. D Dir of CP Dir of Public Svcs DPublic Safety Dir D Library Dir D Other D

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ttachmentCITY OF CARMEL BY THE SEA

CI YCOUNCILORDINANCE NO. 2014

AN ORDINANCE AMENDING THE CARMEL-BY-THE-SEA MUNICIPAL CODEMAKING REVISIONS TO THE BUILDING BOARD OF APPEALS AND ESTABLISHING A

PROCESS FOR HEARING APPEALS RELATED TO COMPLIANCE WITH AMERICANSWITH DISABILITIES ACT REQUIREMENTS

WHEREAS, the City ofCarmel-by-the-Sea has adopted provisions in Chapter 15.04 ofTitle 15 of the City s Municipal Code for establishing a Building Board ofAppeals that providesan appeal body for decisions and determinations of the Building Official; and

WHEREAS, the Board ofAppeals as currently established does not meet requirementsfor review ofBuilding Official determinations related to compliance with requirements of theAmericans with Disabilities Act (ADA) of199 , as amended, (42 USC 12101, et seq.); and

WHEREAS, certain other revisions to Chapter 5 .04 are desirable to address membershipand procedures of the Board ofAppeals; and

WHEREAS, on April 1, 2014, the City Council conducted a duly-noticed public hearingfor first reading and introduction of this Ordinance and consider all public testimony, bothwritten and oral, received in conjunction with the public hearing; and

WHEREAS, on May 6, 2014, the City Council conducted a second reading of thisOrdinance; andWHEREAS, the City Council has determined that the proposed changes to the City s

Municipal Code set forth by this ordinance are exempt from the California EnvironmentalQuality Act (CEQA) pursuant to CEQA Guidelines Section 15061, which includes the generalrule that CEQA applies only to activities which have the potential for causing a significant effecton the environment.THEREFORE, THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOESORDAIN, AS FOLLOWS:

Section One. Title I 5 of the Municipal Code of the City ofCarmel-by-the-Sea is herebyamended as follows:Chapter 1 5.04 15.40.17 of he Carmel Municipal Code is hereby amended as follows :


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15 04 170 Board of Appeals CreatedIn order to determine the suitability of alternate materials, methods and types ofconstruction and to provide for reasonable interpretations of provisions of this title, aswell as compliance with the requirements and interpretations of the provisions of theAmericans with Disabilities Act of 1990, as amended, (42 USC 12101, et seq.), a BoardofAppeals is created, the members ofwhich shall be appointed by the Mayor, with theconsent of the City Council and shall serve at the Mayor's pleasure . The Board ofAppeals shall be the local appeals board, the housing appeals board, and the boardof appeals as those phrases are defined and used in the California Building Code or anyother code under this title as the same may apply to the City of Carmel-by-the-Sea eitherby express adoption or by opera6on oflaw. The Building OfficialCity Clerk or CityClerk's designee shall act as Secretary to the Board ofAppeals. (Ord. 89-29 1 1989;Code 1975 1115.0).15.04 15.4 0.180 of he Carmel Municipal Code is hereby amended as follows:15 04 180 Board of Appeals MembershipThe board shall be composed of fl.vethree core members , and two disabled accessmembers, with disabled access members attending the Board ofAppeals meeting only forappeals that relate to access to public accommodations by physically disabled persons.four ofwhom shall sit on all appeals and mayThe three core members shall be qualifiedas follows : one architect, or one {civil or structural} engineer, one general c o n t r c t o r ~ andone other who may have expertise in expertise in the construction or building field orwho may be a layperson. man, and three alternates each qualified by education orexperience in the field of plumbing, electrical or mechanical installations. When, in theopinion of the Building Official, a conflict arises in the composition ofthe Board thePla.r.ning Commission may be utilized for such matters of appeal. On general matters, anyone of the alternates may sit as a member, but on technical matters in their specific fieldthe specialist in that field of construction shall sit. At least three fem:-members of theboard shall be residents of he City. The board shall develop reasonable rules andregulations for conducting its business at each hearing and deliver a copy thereof to theSecretary and to the Building Official at the time of each hearing. Said rules andregulations should be available to the public. The board shall render its decision andfindings in writing and furnish a copy thereof to the appellant, Secretary, and BuildingOfficial. (Ord. 2010-05 1 (Exh. A) , 2010; Ord. 89-29 1, 1989; Code 19751115.0(a)).15.04 15.4 .190 o he Carmel Municipal Code is hereby amended as follows:15 04 190 Board of Appeals Hearing.The Board ofAppeals shall hear appeals from all decisions of the Building Official,including items related to compliance with ADA requirements, the denial of a variance


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from the provisions of this title or of the unifonn Building Code and related codes hereinadopted, and shall also hear requests for variances from any provision of this title or ofthe uniform Building Code and related codes herein adopted referred to it by the BuildingOfficial. Upon such reference, or upon appeal, it shall have the same power as theBuilding Official to grant such variances and impose conditions thereon. (Ord . 89-29 1,1989; Code 1975 1115.0(b)).15.04 15.40.200 o he Carmel Municipal Code is hereby amended as follows:15.04.200 Board ofAppeals Form of Procedure.Appeals to the Board of Appeals shall be in writing and shall be filed with its Secretarywithin 10 days after written notice of the decision of the Building Official has beenmailed to the applicant. The Board of Appeals shall hear appeals and applications forvariances referred to it by the SecretaryBuilding Official after not less than five daysnotice in writing to the Building Official and the appellant or applicant. (Ord. 89-29 11989; Code 1975 1115.0(c)).15.04 15.40.22 of he Carmel Municipal Code is hereby amended as follows :

.04.220 o Appeal to City Council Filing.The Board of Appeals is the final City decision-maker for items coming before theBoard.t\n appeal to the City Council from the action ofthe Board of Appeals may befiled by the applicant or by the Building Official. Such appeal shall be in writing and shallbe filed with the City Clerk and v rith the Board of Appeals \vithin 10 days after .vrittennotice of the decision of the Board ofAppeals has been mailed to the applicant. Anappeal shall set forth specifically the points at issue, the reasons fur the appeal, andwherein the appellant believes there was an error or abuse of discretion by the Board ofAppeals. (Ord. 9 29 1 1989; Code 1975 1115.l(a)).15.04 15.40.23 o he Carmel Municipal Code is hereby repealed in its entirety asfollows:15.04.230 Appeal te City Ceuneil Hearing.Upon receipt of such appeal the City Council shall set a date for public hearing thereon,giving at least five days notice thereofto the applicant and to the Bui lding Official. TheCity Council may reverse or affirm, wholly or partly, or may modify the order,requirement, decision, or determination appealed from. (Ord. 89 29 1 1989; Code 1975

1115.1(b)).15.04.240 1\ppeal from Actions to Abate Dangerous Buildings.Section Two. If any section, subsection, or part of this Ordinance is held to be invalid or

unenforceable, all other sections, subsections, or parts of subsections of this ordinance shallremain valid and enforceable.


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ttachmentB

Chapter 15.04ADMINISTRATION O BUILDING CODES

15.04.170 Board of Appeals Created.In order to determine the suitability of alternate materials, methods and types of construction and to provide forreasonable interpretations of provisions of this title, a Board of Appeals is created, the members of which shallbe appointed by the Mayor, with the consent of the City Council and shall serve at the Mayor s pleasure. TheBuilding Official shall act as Secretary to the Board of Appeals. (Ord. 89-29 1, 1989; Code 1975 1115.0).15 .04.180 Board of Appeals Membership.The board shall be composed of five members, four of whom shall sit on all appeals and may be qualified asfollows: one architect, one civil or structural engineer, one general contractor and one layman, and threealternates each qualified by education or experience in the field of plumbing, electrical or mechanicalinstallations. When, in the opinion of the Building Official , a conflict arises in the composition of the Board thePlanning Commission may be utilized for such matters of appeal. On general matters, any one of the alternatesmay sit as a member, but on technical matters in their specific field the specialist in that field of constructionshall sit. t least four members of the board shall be residents of the City. The board shall develop reasonablerules and regulations for conducting its business at each hearing and deliver a copy thereof to the BuildingOfficial at the time of each hearing. Said rules and regulations should be available to the public. The board shallrender its decision and findings in writing and furnish a copy thereof to the appellant and Building Official. (Ord.2010-05 1 (Exh. A), 201 0; Ord. 89-29 1, 1989; Code 1975 1115.0(a)).15.04.190 Board ofAppeals Hearing.The Board of Appeals shall hear appeals from all decisions of the Building Official , including the denial of avariance from the provisions of this title or of the uniform codes herein adopted, and shall also hear requests forvariances from any provision of this title or of the uniform codes herein adopted referred to it by the BuildingOfficial. Upon such reference, or upon appeal, it shall have the same power as the Building Official to grantsuch variances and impose conditions thereon. (Ord. 89-29 1, 1989; Code 1975 1115.0(b .15.04.200 Board ofAppeals Form ofProcedure.Appeals to the Board of Appeals shall be in writing and shall be filed with its Secretary within 10 days afterwritten notice of the decision of the Building Official has been mailed to the applicant. The Board of Appealsshall hear appeals and applications for variances referred to it by the Building Official after not less than five


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days notice in writing to the Building Official and the appellant or applicant. (Ord. 89-29 1 1989; Code 19751115.0(c)).15 .04.210 Board ofAppeals Compensation.Members of the Board of Appeals shall serve without compensation, but shall receive their actual andnecessary travel expenses in the performance of their duties. (Ord. 89-29 1, 1989; Code 1975 11 15.0(d)).15.04.220 Appeal to City Council Filing.An appeal to the City Council from the action of the Board of Appeals may be filed by the applicant or by theBuilding Official. Such appeal shall be in writing and shall be filed with the City Clerk and with the Board ofAppeals within 10 days after written notice of the decision of the Board of Appeals has been mailed to theapplicant. An appeal shall set forth specifically the points at issue, the reasons for the appeal, and wherein theappellant believes there was an error or abuse of discretion by the Board of Appeals. (Ord. 89-29 1, 1989;Code 1975 1115.1(a)).15.04.230 Appeal to City Council Hearing.Upon receipt of such appeal the City Council shall set a date for public hearing thereon, giving at least fivedays notice thereof to the applicant and to the Building Official. The City Council may reverse or affirm, whollyor partly, or may modify the order, requirement, decision, or determination appealed from. Ord . 89-29 1,1989; Code 1975 1115.1(b)).15.04.240 Appeal from Actions to Abate Dangerous Buildings.The appeal provisions for the Abatement of Dangerous Buildings under the California Building Code, asadopted, may be followed where they conflict with or expand upon the appeal provisions of CMC 15.04.170through 15.04.240. (Ord. 2010-05 1 (Exh. A), 201 0; Ord. 89-29 1, 1989; Code 1975 111 5.2).

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