Building Board of Appeals 03-04-14.pdf

8/12/2019 Building Board of Appeals 03-04-14.pdf

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To:From:ubmitted by:

Subject:

CITY OF CARMEL-BY-THE-SEACouncil ReportMarch 4 2014

Honorable ayor and Members of the City CouncilJason Stilwell, City Administ ratorRob 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 toCompl iance 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 ity 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 ofAppealsA 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 fficial 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, on 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. n general matters, any one of the alternates sits on theboard; for matters that are f ield-specific (i.e., plumbing-, electrical-, ormechanical-related, 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 requi rement, 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 wou ld 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 the residency requirement be revised. Thestaff-recommended change would still maintain a requirement that themajority of the core board members be City residents. Revisions toSection 15.04.180 of the City's Municipal Code have been drafted toaddress membership and purview of the Board of Appeals.While 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.Issues wit xisting Provisions - Process

The Board of Appeals should include a majority of the members that aretechnical experts and 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 conflic t 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. n 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 technical issues. An owner orapplicant who disagrees with the decision of the Board of Appeals wouldneed to seek remedy with the courts. n general, when such matters arebrought before the Superior Court, the court defers to the technicalexperts 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 and


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15.04.230, 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 14,Chapter 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 within 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 this 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 this 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 the 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 determinat ions may be undesirable as this canpoliticize an issue th t is technical in nature.No direct costs were incurred in the preparation of the ordinance; st ffcosts 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 ortwice a year, st ff estimates th t any travel costs would be less than$1,000 per year.


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Previous CouncilAction Decision History:

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).

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

Reviewed byCity dministrator r City ttorney dministrative ServicesAsst. City dmin . Dir of CP Dir of Public SvcsPublic Safety Dir Library Dir Other

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adopted, 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 of he Carmel Municipal ode is hereby amended as follows:15.04.200 Board o Appeals Form o 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 1,1989; Code 1975 1115.0(c)).15. 04 15. 40.220 o he Carmel Municipal Code is hereby amended as follows:15.04.220 No Appeal to City Council Filing.The Board of Appeals is the final City decision-maker for items com ing before theBoard.J\n appeal to the Cit) Council from the action of the Board ofAppeals may befiled by the applicant or by the Building Official. Such appeal shall be in writing and shallbe filed with the City Clerk and .vith the Board of Appeals within 10 days after >vrittennotice of the dedsion of the Board of Appeals has been mailed to the applicant. Anappeal shall set forth specifically the points at issue, the reasons for the appeal, andwherein the appellant believes there was an error or abuse of discretion by the Board ofAppeals. (Ord. 89 29 1, 1989; Code 1975 1115.l(a)).15. 04 15.40.230 of he Carmel Municipal Code is hereby repealed in its entirety asfollows :15.04.230 A.ppeal te City Ceuneil HeaFing.Upon receipt of such appeal the City Council shall set a date for public hearing thereon,giving at least five days notice thereof to the applicant and to the Building 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.l (b)). l5 .04.240 Appeal from Actions to Abate Dangerous Buildings.Section Two. If any section subsection, or part of this Ordinance is held to be in\ alid or

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

Section Three. Effective Date. This Ordinance shall become effective on the thirty-first3


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Documents

Building Board of Appeals 03-04-14.pdf