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HomeMy WebLinkAbout04-21 2021- CBOA AgendaCity of San Luis Obispo, Agenda, Planning Commission Agenda CONSTRUCTION BOARD OF APPEALS Wednesday, April 21, 2021 Based on the threat of COVID-19 as reflected in the Proclamations of Emergency issued by both the Governor of the State of California, the San Luis Obispo County Emergency Services Director and the City Council of the City of San Luis Obispo as well as the Governor’s Executive Order N-29-20 issued on March 17, 2020, relating to the convening of public meetings in response to the COVID-19 pandemic, the City of San Luis Obispo will be holding all public meetings via teleconference. There will be no physical location for the Public to view the meeting. Below are instructions on how to view the meeting remotely and how to leave public comment. Additionally, members of the Construction Board of Appeals (CBOA) are allowed to attend the meeting via teleconference and participate in the meeting to the same extent as if they were present. Using the most rapid means of communication available at this time, members of the public are encouraged to participate in CBOA meetings in the following ways: 1. Remote Viewing - Members of the public who wish to watch the meeting can view: ➢ Please click the link below to join the meeting: https://slocity-org.zoom.us/j/95508042688?pwd=K0RDV1NidytJZzBwajdlbU43bkxxZz09 ➢ Or Telephone Dial: +1 669 900 6833 Meeting ID: 955 0804 2688 Passcode: 781151 2. Public Comment - The Construction Board of Appeals will still be accepting public comment for items within their purview. Public comment can be submitted in the following ways: • Mail or Email Public Comment ➢ Received by 8:00 AM on the day of meeting - Can be submitted via email to advisorybodies@slocity.org or U.S. Mail to City Clerk at: 990 Palm St. San Luis Obispo, CA 93401. All correspondence will be archived/distributed to members of the Advisory Body, however, submissions after 8:00 AM on the day of the meeting may not be archived/distributed until the following day. Emails will not be read aloud during the meeting. • Verbal Public Comment ➢ In Advance of the Meeting - Call (805) 781-7164: state and spell your name, the agenda item number you are calling about and leave your comment. The verbal comments must be limited to 3 minutes. All voicemails will be forwarded to Advisory Body Members and saved as Agenda Correspondence. Voicemails will not be played during the meeting. ➢ During the meeting – Join the webinar (instructions above). Once public comment for the item you would like to speak on is called, please raise your virtual hand, your name will be called, and your microphone will be unmuted. If you have questions, contact the office of the City Clerk at cityclerk@slocity.org or (805) 781-7100. Construction Board of Appeals Agenda for April 21, 2021 Page 2 10:00 a.m. SPECIAL MEETING TELECONFERENCE Broadcasted via Webinar CALL TO ORDER Vice Chair Gresham Eckrich OATH OF OFFICE: City Clerk to administer oaths of office to Nick Graves and Christopher Wiedeman ROLL CALL : Board Members Amando Garza, Denise Martinez, Nick Graves, Christopher Wiedeman, Robert Vessely, Vice Chair Gresham Eckrich, and Chair Niel Dilworth BUSINESS ITEMS 1. Orientation and Training: Assistant City Attorney Jorgensen, Advisor to the Board, will present information on the Brown Act and Conflict of Interest awareness. Temporary Assistant City Attorney Amberg, Advisor to City Code Enforcement, will provide an overview of citation procedure. ADJOURNMENT The City of San Luis Obispo wishes to make all of its public meetings accessible to the public. Upon request, this agenda will be made available in appropriate alternative formats to persons with disabilities. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such request to the Community Development Department at (805) 781-7180 at least 48 hours before the meeting, if possible. Telecommunications Device for the Deaf (805) 781-7107. Meeting audio recordings can be found at the following web address: http://opengov.slocity.org/WebLink/Browse.aspx?id=60969&dbid=0&repo=CityClerk Advisory Body Training Presented by Markie Jorgensen, Assistant City Attorney Mark Amberg, Temporary Assistant City Attorney April 21, 2021 Welcome and Introduction Welcome Roles of Your Staff Liaison and Chairs CBOA Hearing Procedures Purview of Advisory Bodies Mechanics Brown Act Compliance Conflicts of Interest Social Media Overview and Rules of the Road Roles of the Liaison Serves as point of contact for Chair and Members. Forecasts agenda expectations. Maintains continuity and flow of work. Focuses the body on matters within its purview. Provides procedural guidance. Provides factual information and complete staff reports. Assists to identify and avoid potential pitfalls. Highlights any legal or procedural requirements to act or limits on action. Advises on the boundaries of the body’s discretion if it decides to vary from staff recommendation. Liaison/Chair Relationship Chairperson should discuss the level of assistance s/he wants or needs. It is the Chair’s responsibility to maintain the structure and flow of the meeting and ensure the meeting proceeds according to established rules and bylaws; however, you may call upon your liaison to assist or help navigate procedural issues. Consider pre-meetings with liaison and staff to discuss questions or concerns about agenda items or procedures and strategies to keep body’s consideration of agenda items on track. CBOA Hearings Jurisdiction Scheduling Challenge to a Board Member Outline of Hearing Process Evidence Failure to Appear Board Decision Judicial Review CBOA Hearings -Jurisdiction CBOA hearings and decisions are governed by San Luis Obispo Municipal Code 1.24.110 to 1.24.140 Hearing initiated when an appeal of a citation is filed with the City Clerk CBOA only hears appeals of citations issued for alleged Title 15 (Buildings and Construction) violations and non- Title 15 violations issued in connection with a Title 15 violation Title 15 adopts by reference the California Building Codes Appeals of other City code violations are heard by either a hearings officer or the Administrative Review Board CBOA Hearings –Scheduling Hearings to be scheduled not less than 10 and not more than 60 days from the date appeal is filed with the City Clerk [SLMC 1.24.110 B] unless appellant agrees to longer time or waives timeline by not objecting to a later hearing date Either appellant or City can request a continuance upon a showing of good cause [SLMC 12.24.110 G] Request to be made in writing within 5 days from date of written notice of hearing Exception for medical or other emergency If continuance granted, new hearing to be set within 30 days CBOA Hearings –Challenge to a Board Member Appellant has the right to challenge a Board member from hearing their appeal but only for good cause [SLMC 1.24.110 B] Reason must be specified in writing and received by City within 10 days after date notice of hearing is mailed Fact that Board member has heard a previous appeal involving appellant not grounds to disqualify Board member After notice of challenge, Board member will decide whether to disqualify himself/herself CBOA Hearings –Challenge to a Board Member If Board member disqualifies himself/herself,City Attorney will appoint a hearing officer to replace disqualified member to hear the appeal If Board member doesn't disqualify himself/herself,must state reasons in writing. The challenge and the decision not to disqualify become a part of the administrative record CBOA Hearings –Basic Procedure Chair opens hearing City staff presents City report Board may ask questions of City staff Appellant/Appellant's Representative provided 10 minutes for Appellant's presentation and rebuttal following public comment Appellant needs to let City Clerk/Liaison know if and how much time they want to reserve for rebuttal In interests of fairness and due process, Board may allow Appellant more than 10 minutes to present CBOA Hearings –Basic Procedure Chair will open hearing for public comment Appellant,if they have reserved time,may rebut any public comment Board may ask additional questions of City staff and Appellant Board deliberates CBOA Hearings –Basic Procedure Once deliberations concluded, Chair will ask if a Board Member will make a motion to either uphold or dismiss the citation and, if so, whether there is a second in support of the motion Board votes on motion Based on Board's decision, City staff will prepare resolution outlining the Board's decision, including a summary of evidence relied on by the Board and a summary of written findings Draft resolution brought back to Board at second meeting for review, discussion, modification if needed, and adoption CBOA Hearings -Evidence Hearing shall be conducted informally. The legal or formal rules of evidence do not need to be followed [SLMC 1.24.110 H] Board may not require that any evidence be submitted [SLMC 1.24.110 F] No City staff or other representative of the City shall be required to attend the appeal hearing but City staff or representatives may appear at the discretion of the Director [SLMC 1.24.110 F] Board does not have the authority to issue subpoenas [SLMC 1.24.110 I] CBOA Hearings -Evidence Administrative citation and any documents, exhibits, reports or other materials prepared by City staff or the Director regarding code violation or attempted correction of violation that are submitted to the Board are prima facie evidence of the code violation and the facts stated in the documents [SLMC 1.24.110 E] Appellant shall be given the opportunity to testify and present evidence relevant to the code violation specified in the administrative citation [SLMC 1.24.110 D] CBOA Hearings -Evidence If Appellant communicates that they do not intend to appear for hearing, written evidence submitted by the Appellant may be considered by the Board if the evidence is submitted to the Board and the City at least 10 days prior to the hearing [SLMC 1.24.110 F] Additional evidence submitted by the City may be considered by the Board so long as the evidence has been provided to the Appellant, by certified mail, at least 5 days prior to the hearing [SLMC 1.24.110 F] CBOA Hearings –Failure to Appear Unless hearing was continued or unless Appellant communicated that they do not intend to appear and submitted written evidence at least 10 days prior to the hearing, Appellant's failure to appear constitutes an abandonment of the appeal and a failure to exhaust administrative remedies [SLMC 1.24.110 J] The failure of the Appellant to appear at the appeal hearing shall be noted in the Board's written decision [SLMC 1.24.120 A] CBOA Hearings –Board Decision After considering all evidence and testimony submitted at the appeal hearing, the Board shall issue a written decision within 30 calendar days [SLMC 1.24.130 A] The Board's decision can only be to uphold or revoke the citation based upon a conclusion of whether the charged violation occurred [SLMC 1.24.130 A] If the Board's decision is to uphold the citation, the Board does not have the authority to reduce or modify the fine imposed If the Board's decision is not to uphold the citation, the citation shall be revoked CBOA Hearings –Board Decision The written decision must summarize the evidence and shall be supported by findings of fact [SLMC 1.24.130 A] The written decision may be adopted by resolution and shall contain at least the following [SLMC 1.24130 A]: 1.Name of appellant 2.Date of administrative citation, municipal code violations charged, location of subject property (if applicable) 3.Date, time, and place of appeal hearing, and the identity of board members CBOA Hearings –Board Decision 4.The names of all people participating in the hearing and their capacity, either as appellant, representative of appellant, witness for or against appellant, city staff or otherwise 5.A statement that the hearing was recorded, the method of recordation, and that recording is in the custody of the city clerk 6.A statement whether the appellant or designated representative was present or failed to appear 7.If no one appeared on behalf of appellant, a statement whether appellant submitted any written or other evidence 8.A statement that the board received the administrative citation and supporting information as prima facie evidence 9.A brief summary of all credible relevant testimony and the identity of the witness giving it CBOA Hearings -Decision 10.A list of all physical evidence, including, but not limited to photographs, maps,drawings, and documents 11.A statement whether the board upholds, revokes or modifies the administrative citation(s), as to each municipal code violation charged 12.A statement as to which oral or physical evidence the board found credible in support of the decision 13.If the decision upholds the administrative citation, in whole or in part, the decision shall specify the due date for payment of the fine, which shall not be less than ten days nor more than thirty days after the date the decision is mailed 14.The names and votes of members of the board, showing that a majority of the members of the board supported the decision 15.The signature of the chairman of the board or his or her designee, and the date of signature CBOA Hearings –Judicial Review Unless appealed for review by the Court, the Board's decision is final. There is no appeal to City Council [SLMC 1.24.140 A] If the Appellant files for judicial review,any fines are stayed. If the citation is upheld by the Court, the Board will establish a new compliance deadline and due date for any fines [SLMC 1.24.030 B] CBOA Hearings –Judicial Review The Appellant can seek judicial review of the Board's decision in one of two ways [SLMC 1.24.140 B, C] By filing for a trial de novo withing 20 days after service of the Board's decision pursuant to Government Code Section 53069.4 By filing a petition for a writ of review pursuant to Code of Civil Procedure Section 1085 and/or 1094.5 Mechanics: The Brown Act Weighing Competing Values Open and Public The Brown Act in Brief Who Does it Apply to? What is a Meeting? Common Pitfalls The Public’s Rights Brown Act Violations The Brown Act: Weighing Competing Values Transparency, Participation, Accountability, Impartiality, Deliberative Decision-Making VERSUS Efficiency, Agility, Expediency, Profitability, Reactive Decision-Making The Brown Act: Open and Public “All meetings of the legislative body of a local agency shall be open and public…” “Public agencies exist to aid in the conduct of the people’s business.” “Public agencies’ actions are to be taken openly and their deliberations are to be conducted openly.” The Brown Act: In Brief Agendas for regular meetings must be posted at least 72 hours in advance; special meetings 24 hours in advance. Agendas for Council and bodies whose members are compensated must also be posted on the website. The Agenda must contain a brief description of each item to be acted upon. Meetings must be open to the public, except for narrowly defined closed sessions. The public must be given an opportunity to speak at regular meetings on any item, on or off the agenda. Meetings must be held within the City limits, with very limited exceptions. The Brown Act: Who’s Covered? Applies to: The Mayor & City Council Council Members-Elect All Advisory Bodies Standing Committees of Legislative Bodies Does not apply to: Less than a quorum of a legislative body (exception: social media). Ad hoc committee of a legislative body appointed for a specific, temporary purpose. Staff communications with individual members of the body. The Brown Act: What is a “meeting”? “any congregation of a majority of the members at the same time and place to hear, discuss, deliberate, or take action on any item within the subject matter jurisdiction of the legislative body or the local agency…” The Act also prohibits doing through a series of communications or through intermediaries what you can’t do directly outside a noticed meeting. Exceptions: Individual contacts Conferences open to the public Open and publicized community meetings organized by another organization Social events Open and publicized meeting of another body of the local agency, or a legislative body of another local agency Open and noticed meeting of a standing committee The Brown Act: Common Pitfalls Collective briefings Serial meetings (“hub and spoke” or “daisy chain”) E-mail or social media (more on this later!) Retreats and workshops Informal meetings Special Note to Staff: While not a legislative body, City staff must avoid being a conduit for a Brown Act violation. Remember, well-meaning applicants and constituents can also act as conduits and land the advisory body member in hot water. The Act governs your conduct, not theirs! The Brown Act: Social Media Permitted activity: A public official may communicate on social media platforms to:(1) answer questions, (2) provide information to the public; and (3) solicit information from the public regarding a matter within its subject matter jurisdiction. Prohibited activity: Discussing information received from the public (#3 in previous column)regarding a matter within its subject matter jurisdiction with a majority of the board. Responding directly to another board member's social post regarding a matter within the Board's subject matter jurisdiction (this includes "liking" the post or use of emojis to express reaction). Cautionary Tales Consider carefully if you want to invite public comment on City business via your private social media platforms –doing so may limit your ability to control the social media conduct, i.e., restrict, block or delete users or comments. You may be legally required by the First Amendment to be trolled! Knight First Amendment Institute at Columbia University, et al. v. Trump, et al., (S.D.N.Y. 2017). The California Supreme Court’s recent decision in City of San Jose v. Superior Court (2017) makes it clear that emails and text messages about public business sent through the personal accounts and devices of public officials are public records that must be publicly produced if requested –the same analysis would apply to social media messaging. Because public communications through “private” channels are now clearly public records, we must also assume they are subject to public records retention requirements. So, if you engage in public communications through private channels, those communications need to be retained for at least two years! The Brown Act: The Public’s Rights Right to speak on items on the agenda. Right to speak on matters not on the agenda. May place reasonable time limits on public comment. Cannot prohibit criticism of policies, procedures, acts or omissions of the body or public employees. The Brown Act: The Public’s Rights Cannot require members of public to register names, provide info, or fill out questionnaires as a condition to attend. No secret ballots. Right to review agendas and writings distributed by the body.May record proceedings. The Brown Act: Violations Invalidation of action taken Civil injunctive action to prohibit action Misdemeanor prosecution against individual legislative body member (fine of up to $1,000 and up to 6 months imprisonment) Looks bad in the newspaper! Effects your “Google Factor”? Ability to “cure” Mechanics: Conflict of Interest General Rule Financial Interest Disclosure & Disqualification Leave the Room Rule Consequences Conflict of Interest: General Rule Public officials are prohibited from making, participating in or in any way attempting to use their official position to influence a governmental decision in which they know or have reason to know they have a financial interest. Conflict of Interest: What is a Disqualifying Financial Interest? Disqualifying Interest:When it is reasonably foreseeable the governmental decision will have a material financial impact or effect (positive or negative!), different from its effect on the public generally, on the official or a member of his immediate family. Five types of financial interests may result in disqualification: An effect on a real property interest where you have an investment of $2,000 or more (includes leases, but not month to month leases). An effect on any source of income of $500+ promised to (legally enforceable right) or received within last 12 months. Conflict of Interest: What is a Financial Interest? Or any of the following… An effect on a business entity where the public official has an interest of $2,000 or more in which he or she is a director, officer, partner, manager or employee of that business. An effect on source of gifts worth $500 or more in the aggregate in the previous 12 months. An effect on the official's personal finances including his or her expenses, income, assets, or liabilities, as well as those of his or her immediate family. Conflict of Interest: Disclosure and Disqualification State publicly what interest you have that constitutes a potential conflict of interest, e.g., “I own real property at 123 Elm Street, across the street from the subject project” Make sure recusal is noted in the minutes Immediately step down from the dais (or leave the Zoom conference) and leave the room Conflict of Interest: Exceptions to the Leave the Room Rule Appearances by a public official as a member of the general public before an agency in the course of its prescribed governmental function to represent himself or herself on matters related solely to the official's personal interests as defined (i.e.real property, business interests) Exercise of your First Amendment right to speak Think about whether want to avail yourself of this as such participation may cause the public to question the impartiality of your commission Talk to staff liaison and City Attorney first, please! Conflict of Interest:Consequences Criminal prosecution by local District Attorney or State Attorney General –generally, misdemeanors (up to $1,000, 6 months in jail), but sometimes felonies. Administrative action by FPPC resulting in civil penalties, usually $500-$5,000 per offense.S Civil action by the public, certain government agencies or the Enforcement Division Bad press and undermining of public confidence Takeaways: Brown Act &Conflicts Look ahead –It’s easier to prevent mistakes than it is to correct them. Front Page Test: “Is there anything about the reality or perception of my actions that I wouldn’t want to read about on the front page of the Trib?” Always be alert to potential Brown Act and conflicts of interest violations –your own and those of your colleagues. Don’t assume someone else is seeing the same things you are or knows what you know. If you identify a potential conflict problem, raise it with the Chair and/or City Attorney’s office before the meeting, if possible. Cut off discussion on matters not on the agenda and make suggestions as to how the body might address the issue, after proper notice, at a future meeting. Think (and breathe) before you post and know your choice to engage on City issues creates public access and records obligations. Don’t forget that public officials live in a fishbowl and everything we say and do potentially impacts public trust in City government. In the era of the internet and e-communication, the only foolproof way to avoid the gray area between public business and private business is to conduct public business exclusively through public networks, accounts and devices. If you there’s a question in your mind, don’t leave it there! Procedural & Legal Guidance Keep this power point handy when things get hairy! Ask your staff liaison, the City Attorney's office or the FPPC! Questions? Ask for help ahead of time. Call the City Attorney’s Office.