CITY OF CARMEL-BY-THE-SEA Council Report March 4, 2014

To: From: Submitted by: Subject:

Honorable Mayor and Members of the City Council Jason Stilwell, City Administrator Rob Mullane, AICP, Community Planning and Building Director Consideration of an Ordinance (First Reading) Amending the Carmel-ByThe-Sea Municipal Code Making Revisions to the Building Board of Appeals and Establishing a Process for Hearing Appeals related to Compl 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 matters related to compliance with both State and Federal disabled access requirements. The City's Municipal Code sets forth the membership The current membership requirements of the Building Board of Appeals, as well as the process for hearing Building Code-related appeals. requirements are difficult for a City of Carmel's size to meet, and the appeal processes are not in keeping with the state of the industry. The proposed ordinance would amend Chapter 15.04 of Title 15 of the City of Carmel Municipal Code to address these issues.
Analysis /Discussion: Background and Role of the Building Board of Appeals

A Building Board of Appeals is the board that hears appeals of determinations made by the Building Official regarding building permit requirements or interpretations of the Building Code. Sections 15.04.170 through 15.04.240 set forth the membership, authority, and procedures for the Board of Appeals. The City's existing regulations for Sections 15.04.170 through 15.04.240 are included as Attachment B. Building Code requirements tend to be clearly defined, but there are instances where an interpretation is needed. The Board of Appeals provides an appeal body for decisions of the Building Official with which an owner or applicant 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 the Building Official in the last several years. Nonetheless, the establishment of such a board is required under the Municipal Code, and the City should have such a board seated in the event that an appeal is received. This board would also hear appeals related to compliance with disabled access requirements and actions required to abate dangerous or unsafe buildings as set forth in Section 15.04.240 of the Municipal Code. For the Board of Appeals to have the requisite expertise for matters related to disabled access compliance, for any hearing on an disabled access-related matter, the board's membership should be augmented to include two members who are either disabled or qualified to address disabled access matters.
Issues with Existing Provisions - Membership

The existing Municipal Code sets forth the membership of the Board of Appeals to include five members, of which four are regular members that hear all Building appeals brought forth . The four regular members are required to have specific qualifications as follows: one architect, one civil or structu ral engineer, on general contractor, and one layman. The fifth member is represented by one of three alternates each with their own special qualifications: a qualified plumbing contractor or plumber, a qualified electrical contractor or electrician, and a qualified mechanical contractor. On general matters, any one of the alternates sits on the board; for matters that are f ield-specific (i.e., plumbing-, electrical-, or mechanical-related, the appropriately-qualified alternate sits on the board. Section 15.04.180 also requires that four of the members of the board be residents of the City. Such requirements, including the residency 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 core members sitti ng on all appeal matters and two disabled access members or experts who would only participate on the board for matters related to disabled access compliance issues. The core members wou ld have the following qualifications: one architect or (civil or structural) engineer, one general contractor, and a third member who may have expertise in the constr uction or building field or who may be a layperson.

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Staff also recommends that the residency requirement be revised. The staff-recommended change would still maintain a requirement that the majority of the core board members be City residents. address membership and purview of the Board of Appeals. While not an ex officio member of the board, the Building Official would participate in the hearing as would the appellant. The Building Official's participation would provide technical expertise regarding the Building Code and disabled access compliance requirements as well as assistance in ensuring that the issue of dispute is correctly conveyed and understood.
Issues with Existing Provisions - Process

Revisions to

Section 15.04.180 of the City's Municipal Code have been drafted to

The Board of Appeals should include a majority of the members that are technical experts and knowledgeable in building issues. This board would be hearing appeals of the City's chief technical expert on building and safety issues: the Building Official. The current version of Chapter 15.04 includes the potential for the Planning Commission to sit as the Board of Appeals when "a conflict arises in the composition of the Board." Furthermore, Section 15.04.220 establishes a provision for appealing a decision of the Board of Appeals to the City Council. While the retention of the Planning Commission as a potential substitute for the Board of Appeals may be appropriate from a technical expertise perspective, the City Council may not have this expertise. In addition, having either the Planning Commission or the City Council involved in appeals of Building Code or disabled access compliance items takes issues that are technical in nature and places them in the political arena. Other cities have recognized this as a potential problem and omitted an appeal process that involves either the City Council or the Planning Commission. Instead, the Board of Appeals is the final City decisionAn owner or making body for considering these technical issues.

applicant who disagrees with the decision of the Board of Appeals would need to seek remedy with the courts. In general, when such matters are brought before the Superior Court, the court defers to the technical experts on the technical issues, and rather focuses on whether the correct procedural process was followed . Staff recommends removing the 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 Section 15.04.180.

Environmental Determination:

The City determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CCR, Title 14, Chapter 3 ("CEQA Guidelines}, Article 20, Section 15378}. CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, and because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines.
Alternatives:

The Council may direct changes to the proposed draft Ordinance, which depending on the extent of these revisions, may require re-introduction of the Ordinance at a future meeting. In addition, the Council could opt not to proceed with revisions to the existing regulations, in which case, should an appeal of the Building Official's determination be filed, the Planning Commission could serve in this capacity under a broad interpretation of Section 15.04.180. In the event of an appeal related to an disabled access compliance issue, the Planning Commission would not be able to hear this item due to the lack of disabled access expertise, and City staff would need to expeditiously convene the appropriate appeal body after bringing forth an ordinance similar to the proposed ordinance to establish such a board. The no-action alternative also retains the City Council as the final appeal body in the event of an appeal of the Board of Appeals decision. As discussed above, having the City Council involved in appeals of Building Official determinations may be undesirable as this can politicize an issue that is technical in nature.

Fiscal Impact:

No direct costs were incurred in the preparation of the ordinance; staff costs are part of the City's normal workload. Once the board is seated, compensation for travel expenses related to board duties may result in additional costs. However, no stipends or other compensation is proposed. Given that this board is unlikely to meet more than once or twice a year, staff estimates that any travel costs would be less than $1,000 per year.
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Previous Council Action/Decision History:

The current version of the Board of Appeals-related sections of Chapter 15.04 were established by the City Council in 1989 (Ordinance 89-29), with minor amendments made in 2010 (Ordinance 2010-05).
Attachment:

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

Reviewed by:
City Administrator Asst. City Admin. Public Safety Dir

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City Attorney Dir of CPB Library Dir

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Administrative Services Dir of Public Svcs Other

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Attachment A
CITY OF CARMEL-BY-THE-SEA CITY COUNCIL ORDINANCE NO. 2014-

AN ORDINANCE AMENDING THE CARMEL-BY-THE-SEA MUNICIPAL CODE MAKING REVISIONS T O THE BUILDING BOARD OF APPEALS AND ESTABLISHING A PROCESS FOR HEARING APPEALS RELATED TO COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT REQUIREMENTS WHEREAS, the City of Carmel-by-the-Sea has adopted provisions in Chapter 15.04 of Title 15 of the City's Municipal Code for establishing a Building Board of Appeals that provides an appeal body for decisions and determinations of the Building Official; and WHEREAS, the Board of Appeals as currently established does not meet requirements for review of Building Official determinations related to compliance with requirements of the Americans with Disabilities Act (ADA) of 1990, as amended, (42 USC 12101, et seq.); and WHEREAS, certain other revisions to Chapter 15.04 are desirable to address membership and procedures of the Board of Appeals; and WHEREAS, on March 4, 20 14, the City Council conducted a duly-noticed public hearing for first reading and introduction of this Ordinance and consider all public testimony, both written and oral, received in conjunction with the public hearing; and WHEREAS, on April 1, 20 14, the City Council conducted a second reading of this Ordinance; and WHEREAS , 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 Environmental Quality Act (CEQA) pursuant to CEQA GuiJelines Section 15061, which includes the general rule that CEQA applies only to activities which have the potential for causing a signif1cant effect on the environment. THEREFORE, THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES ORDAIN, AS FOLLOWS: Section One. Title 15 ofthe Municipal Code ofthe City of Carmel-by-the-Sea is hereby amended as follows:
Chapter 15.04, 15.40.1 70 of the Carmel Municipal Code is hereby amended as follows:

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15.04.170 Board of Appeals- Created.

In order to determine the suitability of alternate materials, methods and types of construction and to provide for reasonable interpretations of provisions of this title, as well as compliance with the requirements and interpretations of the provisions of the Americans with Disabilities Act of 1990, as amended, ( 42 USC 1210 L et seq.), a Board of Appeals is created, the members of which shall be appointed by the Mayor, with the consent of the City Council and shall serve at the Mayor's pleasure. The Board of Appeals shall be the "local appeals board," the "housing appeals board," and the "board of appeals" as those phrases are defined and used in the California Building Code or any other code under this title as the same may apply to the City of Carmel-by-the-Sea either by express adoption or by operation of law. The Building OfficialCity Clerk or City Clerk' s designee shall act as Secretary to the Board of Appeals. (Ord. 89-29 1, 1989; Code 1975 1115.0).

15. 04, 15. 40. I 80 of the Carmel Municipal Code is hereby amended as follows:

15.04.180 Board of Appeals- Membership.

The board shall be composed of !Wethree core members, and two disabled access members, v.ith disabled access members attending the Board of Appeals meeting only for appeals that relate to access to public accommodations by physically disabled persons. four of>.vhom shall sit on all appeals and mayThe three core members shall be qualified as follows: one architect, or one {civil or structural} engineer, one general contractor, and one other who may have expertise in expertise in the construction or building field or who may be a layperson. man, and three alternates each qualified by education or e>cperience in the field of plumbing, electrical or mechanical installations. When, in the opinion of the Building Official, a conflict arises in the composition of the Board the Planning Commission may be utilized for such matters of appeal. On general matters, any one of the alternates may sit as a member, but on technical matters in their specific field the specialist in that field of construction shall sit. At least three feur...members of the board shall be residents of the City. The board shall develop reasonable rules and regulations for conducting its business at each hearing and deliver a copy thereof to the Secretary and to the Building Official at the time of each hearing. Said rules and regulations should be available to the public. The board shall render its decision and findings in writing and furnish a copy thereof to the appellant, Secretary, and Building Official. (Ord. 2010-05 1 (Exh. A), 20 10; Ord. 89-29 1, 1989; Code 1975 1115.0(a)).

I 5. 04, I 5. 40. I 90 of the Carmel Municipal Code is hereby amended as follows:

15.04.190 Board of Appeals- Hearing.

The Board of Appeals shall hear appeals from all decisions of the Building Official, including items related to compliance with ADA requirements, the denial of a variance from the provisions of this title or of the uniform Building Code and related codes herein

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adopted, and shall also hear requests for variances from any provision of this title or of the uniform Building Code and related codes herein adopted referred to it by the Building Official. Upon such reference, or upon appeal, it shall have the same power as the Building 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 the Carmel Municipal Code is hereby amended as follows:

15.04.200 Board of Appeals - Form of Procedure.

Appeals to the Board of Appeals shall be in writing and shall be filed with its Secretary within 10 days after written notice of the decision of the Building Official has been mailed to the applicant. The Board of Appeals shall hear appeals and applications for variances referred to it by the SecretaryBuilding Official after not less than five days' notice 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 of the 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 the Board.J\n appeal to the Cit)' Council from the action of the Board ofAppeals may be filed by the applicant or by the Building Official. Such appeal shall be in writing and shall be filed with the City Clerk and .vith the Board of Appeals within 10 days after '>vritten notice of the dedsion of the Board of Appeals has been mailed to the applicant. An appeal shall set forth specifically the points at issue, the reasons for the appeal, and wherein the appellant believes there was an error or abuse of discretion by the Board of Appeals. (Ord. 89 29 1, 1989; Code 1975 1115.l(a)).

15. 04, 15. 40.230 of the Carmel Municipal Code is hereby repealed in its entirety as follows :

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. The City 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 shall remain valid and enforceab le. Section Three. Effective Date. This Ordinance shall become effective on the thirty-first

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(31st) day after its adoption.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THESEA this_ day of _ _ 2014, by the following roll call vote:

AYES: NOES: ABSENT: ABSTAIN:

COUNCILMEMBERS: COUNCIL MEMBERS: COUNCIL MEMBERS: COUNCIL MEMBERS:

SIGNED: ATTEST: Jason Burnett, MAYOR Daryl Betancur, CMC Deputy City Clerk

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