HomeMy WebLinkAboutItem 6b. Introduce an Ordinance to amend Qualifications for Construction Board of Appeals and adopt Resolution amended CBOA Bylaws Item 6b
Department: Community Development
Cost Center: 4006
For Agenda of: 9/3/2024
Placement: Public Hearing
Estimated Time: 30 minutes
FROM: Timmi Tway, Community Development Director
Prepared By: Michael Loew, Deputy Director/Chief Building Official
SUBJECT: INTRODUCE AN ORDINANCE TO AMEND MUNICIPAL CODE SECTION
15.04.020, SUBSECTION N, MODIFYING THE QUALIFICATIONS FOR
APPOINTMENT TO THE CONSTRUCTION BOARD OF APPEALS
RECOMMENDATION
1. Introduce a Draft Ordinance entitled, “An Ordinance of the City Council of the City of
San Luis Obispo, California, amending Section 15.04.020, Subsection N, of the San
Luis Obispo Municipal Code,” which will remove the local requirement to maintain an
Accessibility Board of Appeals pursuant to Health and Safety Code 19957.5; and
2. Adopt a Draft Resolution entitled, “A Resolution of the City Council of the City of San
Luis Obispo, California, amending the Advisory Body Handbook for revision to the
Construction Board of Appeals Bylaws,” which will remove the residency requirement
and change the qualifications for disabled access representatives.
POLICY CONTEXT
City Charter Section 1202: Eligibility, Appointment, and Length of Terms – permits
nonregistered voter and non-city resident participation on citizen committees,
commissions, boards, and authorities depending upon the nature and purpose of the
advisory body, as determined by City Council. City Council approval is required to amend
the Advisory Body Handbook revising the participation requirements for committee
members.
The specific qualifications for appointment to the Construction Board of Appeals are
established under Municipal Code Title 15.04.020 Section 113 and in the Advisory Body
Handbook under the Bylaws of the board.
DISCUSSION
Background
The City’s Construction Board of Appeals (CBOA) is established to provide the following
functions:
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Item 6b
1. To determine the suitability of alternate materials, methods of construction, and
other specifications set out in the City’s adopted Uniform Codes.
2. To interpret the provisions of the City’s adopted Uniform Codes and to hear
and decide appeals of orders, decisions or determinations made by the Chief
Building Official, Code Official or Fire Marshall relative to the application and
interpretations of the adopted Codes of Title 15.
3. To conduct hearings and provide the second level of administrative review for
contested Administrative Citations issued pursuant to the adopted codes of
Title 15 or otherwise issued by the Chief Building Official. To serve as the acting
Housing Appeals Board required under California Health & Safety Code section
17920.6, and to also serve as the appeals body for any other adopted codes
found within Title 15 of the San Luis Obispo Municipal Code, including disability
access requirements imposed by the California Building Standards Code and
the California Health & Safety Code.
CBOA Membership Requirements
The CBOA provides the Chief Building Official with technical oversight and has had a
vacancy since April 1, 2022. The vacant position was previously filled by a member of the
community who had a physical disability as defined by the California Building Code. T he
requirement for a physically disabled community representative has been established
locally through the CBOA Bylaws and the municipal code.
The current membership requirements found in the Bylaws, reads as follows:
“The Construction Board of Appeals (CBOA) consists of seven members.
Members must be residents and registered voters of the City pursuant to
the City of San Luis Obispo City Council Policies & Procedures Manual.
Five of the seven members shall be qualified by experience and training to
pass on matters pertaining to building construction and building service
equipment, hazards of fire, explosions, hazardous conditions or fire
protection and who are not employees of the City. Two members of the
Board shall be physically disabled persons, as d efined in the adopted
California Building Code. Board members may serve simultaneously on
other non-technical City advisory bodies pursuant to the City of San Luis
Obispo City Council Policies & Procedures Manual.
Each term of office will be for four years. There is no limitation to the number
of consecutive terms of appointment.”
Additionally, there is a local requirement under Section 15.04.020, Subsection N of the
Municipal code to establish an Accessibility Board of Appeals pursuant to Health and
Safety Code 19957.5. The CBOA currently acts as the Accessibility Board of Appeals.
The proposed amendments to the municipal code are included in this report as
Attachment A.
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Item 6b
According to the Health Safety Code, an Accessibility Board of Appeals is required to
have a specific membership. The board should be five people with the followin g
qualifications:
“Two members of the appeals board shall be physically handicapped
persons, two members shall be persons experienced in construction, and
one member shall be a public member.”
CBOA Membership Revisions Proposed through Resolution
The Construction Board of Appeals and staff are recommending updating the
Membership and Terms found in the Bylaws through Resolution (Attachment B). The new
language would read as follows:
“The Construction Board of Appeals (CBOA) consists of seven memb ers.
Five of the seven members shall be qualified by experience and training to
pass on matters pertaining to building construction and building service
equipment, hazards of fire, explosions, hazardous conditions or fire
protection and who are not employees of the City. Two members of the
Board shall be physically disabled community representatives* and shall be
exempt from residency requirements.
Each term of office will be for four years. There is no limitation to the number
of consecutive terms of appointment.
*Physically Disabled Community Representative Definition:
Preference will be given to individuals who are registered City of San Luis
Obispo voters and who identify as an individual with a physical disability or
a close connection with a member of the physically disabled community,
such as an individual who works in a professional or advocacy capacity
serving the physically disabled community, has a physically disabled
household or family member/loved one, serves as a caregiver, or similar
connection. However, if recruitment for this position does not result in
sufficient qualified registered City voters, membership may be considered
for:
A physically disabled community member who lives outside the City
limits, but within the County of San Luis Obispo; or
A community member who lives outside the City limits, but within the
County of San Luis Obispo that has a close connection with the
physically disabled community.”1
1 Staff is proposing a different structure to the proposed bylaws that differs from the precise language
presented to the CBOA in April of 2024; however, there are no changes in the substance of the language.
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Item 6b
The proposed revisions will maintain a local requirement for having physically disabled
representation on the CBOA but grant the Council discretion in appointing members to
the body if recruitment efforts for the physically disabled community representative
positions continue to fail. With this language, only the two physically disabled community
representative positions will be exempt from voter registration and residency
requirements. Examples of these potential appointees may include designers who
specialize in disabled access codes, such as Certified Access Specialists, or those with
close relation to people with physical disabilities. The purpose of these changes is to allow
for a wider pool of candidates who may live outside of the City but work for an engineering
or architecture firm that does business within the City.
CBOA Membership Qualification Revisions Proposed through Ordinance
In addition to the changes being proposed to the Bylaws through the Resolution described
above, a new ordinance is also necessary to ensure consistency between the bylaws and
municipal code language. The amendments will remove the local requirement of creating
an Accessibility Board of Appeals pursuant to the Health and Safety Code.
The language of Health & Safety Code 19957.5 is permissive as to the creation of a local
accessibility appeals board. This has been confirmed by a 1982 Attorney General opinion
(Attachment C), which concluded that a “written appeal under Health and Safety Code
section 19957.5 regarding an action taken by a local building department in enforcing
building access requirements for physically handicapped persons does not require that
an appeals board be appointed to consider the matter.” However, if a local jurisdiction
creates an accessibility appeals board pursuant to 19957.5, then it must be made up of
individuals with the specific qualifications, as noted above.
The recommendations to the Council will eliminate the requirement created in the
municipal code to appoint an accessibility appeals board, as defined by Health and Safety
Code §19957.5. The attached draft ordinance includes new language identified by
underlines, and the proposed language to be removed is ide ntified by being stricken out
(Attachment A). By referencing the Health and Safety code in establishing an accessibility
board of appeals, the City must comply with the qualifications established in state statute,
as noted above in this report. Rather, CBOA members and staff are proposing to maintain
this representation by broadening the definition of “Physically Disabled Community
Representative” and establishing the requirements for this in the bylaws. Ultimately, these
amendments will not result in eliminating representation of the physically disabled
community on this advisory body. Rather, continued representation is recommended due
to the expansive nature of access standards that apply to new and existing built
environments.
Previous Council or Advisory Body Action
On November 15, 2022, Council adopted Resolution No. 11377 (2022 Series) amending
the Human Relations Commission’s (HRC) purpose statement and bylaws section of the
Advisory Body Handbook. The amendment expanded the residency requirements for two
of the commissioner positions allowing up to two members to be residents and registered
voters of San Luis Obispo County or Cal Poly campus with a significant connection to the
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Item 6b
City of San Luis Obispo. The HRC amendments were supported by the HRC itself as well
as the Diversity, Equity, and Inclusion (DEI) Taskforce.
On December 5, 2023, Council adopted Resolution No 11462 (2023 Series) amending
the Mass Transportation Committees bylaws section of the Advisory Body Handbook .
The amendment modified the residency requirements for the person with disability
position, and providing a pathway for the position to be filled by an individual who
represents the physically disabled community.
On April 25, 2024, during a Regular Meeting, the Construction Board of Appeals voted to
recommend the amendments as proposed in this report.
Public Engagement
The proposed amendments were discussed at a public meeting of Construction Board of
Appeals on April 25, 2024. This item is on the agenda for the September 3, 2024, Regular
City Council meeting which also allows for public comment and followed the required
postings and notifications.
CONCURRENCE
The current Construction Board of Appeals membership and Office of Diversity, Equity,
and Inclusion concurs with these recommendations.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) does not apply to the recommended
action in this report because the action does not constitute a “project” under CEQA
Guidelines Sec. 15378.
FISCAL IMPACT
Budgeted: NA Budget Year: 2024-25
Funding Identified: NA
Fiscal Analysis:
Funding
Sources
Total Budget
Available
Current
Funding
Request
Remaining
Balance
Annual
Ongoing
Cost
General Fund $0 $0 $0 $0
State
Federal
Fees
Other:
Total $0 $0 $0 $0
These Advisory Body Handbook and Municipal Code amendments have no fiscal impact.
Page 213 of 229
Item 6b
ALTERNATIVES
1. Council could decide not to approve the recommended changes to the
qualifications of the CBOA. This action is not recommended by staff because there
has not been any disabled access representation on the CBOA since April 1, 2022.
2. Council could decide to approve staff’s recommendations in part. Council could
direct staff to maintain voter registration requirements, residency requirements, or not
permit a close relation of a physically disabled person to be considered the physically
disabled community representation. This action is not recommended by staff because
the purpose of the recommendations is to increase the candidacy pool for this advisory
body and allow the Council to exercise discretion in appointing future members.
3. Council could decide to approve staff’s recommendations and direct staff to
seek alternative recommendations to further expand the qualification list.
According to the Advisory Body Handbook, each body should review their Bylaw s by
May of every odd numbered year. Staff will be reviewi ng all bylaws with the CBOA
within the next 8 months and would recommend returning with any additional
expansions to the qualification list and any other recommendations from the board at
that time. The recommendations for this item were
ATTACHMENTS
A - Draft Ordinance Amending Municipal Code Section 15.04.020 Subsection N
B - Draft Resolution amending Construction Board of Appeals Bylaws
C - 1982 Opinion of Attorney General
Page 214 of 229
O ______
ORDINANCE NO. _____ (2024 SERIES)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, AMENDING SECTION 15.04.020, SUBSECTION
N, OF THE SAN LUIS OBISPO MUNICIPAL CODE
WHEREAS, the membership requirements for appointment to the Construction
Board of Appeals is established in the City of San Luis Obispo Advisory Body Handbook
and the Building Construction and Fire Prevention Code of the City of San Luis Obispo,
2023; and
WHEREAS, the Building Construction and Fire Prevention Code of the City of San
Luis Obispo, 2023 is adopted under Title 15 of the City of San Luis Obispo Municipal
Code; and
WHEREAS, the disability representative position of the Construction Board of
Appeals has been vacant since April 1, 2022; and
WHEREAS, expansion of eligibility for the disability representative position could
assist in filling the vacancy; and
WHEREAS, the requirements for membership are established locally; and
WHEREAS, the language of Health & Safety Code §19957.5 is permissive as to
the creation of a local accessibility appeals board; and
WHEREAS, the amendments herein do not require the City Council to make
express findings for local amendments not considered a “building standard” as defined
by Health and Safety Code Section 18909(c).
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Environmental Determination. The project is exempt from
environmental review per CEQA Guidelines under the General Rule (Section
15061(b)(3)). The project involves updates and revisions to existing regulations. The
proposed code amendments are consistent with California Law, specifically the California
Health & Safety Code Sections 17958.7 and 18941.5. It can be seen with certainty that
the proposed Municipal Code text amendments will have no significant effect on the
environment.
SECTION 2. Findings. The City Council finds that each amendment referred to in
the ordinance are reasonably necessary and are not considered a “building standard” as
defined in Health and Safety Code Section 18909(c).
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Ordinance No. _____ (2024 Series) Page 2
O ______
SECTION 3. Subsection N of Section 15.04.020 of the San Luis Obispo Municipal
Code is hereby amended to read as follows:
N. Amend Chapter 1, Division II, Section 113 to read as follows:
113.1 General. In order to hear and decide appeals of orders, decisions or
determinations made by the building official, code official or fire code official
relative to the application and interpretations of the California Building
Standards Code, the Uniform Housing Code, the Uniform Code for the
Abatement of Dangerous Buildings, and the International Property
Maintenance Code, and standards referenced by Title 15 of the City of San
Luis Obispo Municipal Code, there shall be and is hereby created a Board of
Appeals. Said Board shall also serve as the Housing Appeals Board and the
Local Accessibility Appeals Board referenced in the California Building
Standards Code. The building official or fire code official shall be an ex officio
member and shall act as secretary to said board but shall have no vote upon
any matter before the board. The Board of Appeals shall be appointed by the
applicable governing authority and shall hold office at its pleasure. The board
shall adopt rules of procedure for conducting its business and shall render all
decisions and findings in writing to the appellant with a duplicate copy to the
building official.
113.2 Limitations on authority. An application for appeal shall be based on
a claim that the true intent of this code or the rules leg ally adopted hereunder
have been incorrectly interpreted, the provisions of this code do not fully apply
or an equally good or better form or construction is proposed. The board shall
have no authority to waive requirements of this code. For appeals rela ting to
accommodations for the disabled, the authority of the board shall include the
ability to authorize reasonable alternatives to disabled access requirements
imposed by the California Building Standards Code.
113.3 Qualifications. The board of appeals shall consist of seven members,
five of which who are qualified by experience and training to pass on matters
pertaining to building construction and building service equipment, hazards of
fire, explosions, hazardous conditions or fire protection systems and are not
employees of the jurisdiction. For matters subject to the appeal process
referenced in H & S Code 19957.5 paragraph (b) regarding accommodations
for persons with physical disabilities, the board of appeals shall include two
additional members who shall be persons with disabilities as defined in the
California Building Code.
SECTION 4. The Chief Building Official and Fire Code Official are hereby
authorized and directed to transmit a copy of this ordinance to the California Building
Standards Commission as required by California Health and Safety Code Section
17958.7.
Page 216 of 229
Ordinance No. _____ (2024 Series) Page 3
O ______
SECTION 5. If any provision of this Ordinance is for any reason held to be invalid
by a court of competent jurisdiction, the City of San Luis Obispo hereby declares that it
would have passed each and every remaining provision irrespective of such holding in
order to accomplish the intent of this ordinance.
SECTION 6. A summary of this ordinance, together with the names of Council
members voting for and against, shall be published at least five (5) days prior to its final
passage, in The New Times, a newspaper published and circulated in this City. This
ordinance shall go into effect at the expiration of thirty (30) days after its final passage.
INTRODUCED on the ____ day of ____, 2024, AND FINALLY ADOPTED by the
Council of the City of San Luis Obispo on the ____ day of ____, 20 24, on the following
vote:
AYES:
NOES:
ABSENT:
___________________________
Mayor Erica A. Stewart
ATTEST:
_______________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
_______________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of San Luis Obispo, California, on ______________________.
___________________________
Teresa Purrington
City Clerk
Page 217 of 229
Page 218 of 229
R ______
RESOLUTION NO. _____ (2024 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, AMENDING THE ADVISORY BODY
HANDBOOK FOR REVISION TO THE CONSTRUCTION BOARD OF
APPEALS BYLAWS
WHEREAS, in accordance with the Charter of the City of San Luis Obispo, the
San Luis Obispo Municipal Code, and its own resolutions, the City Council of the City of
San Luis Obispo appoints individuals to serve on its advisory bodi es; and
WHEREAS, bylaws have been adopted to aid those advisory bodies in conducting
their meetings fairly, smoothly, efficiently and in accordance with law; and
WHEREAS, pursuant to City Charter section 1204, the City Council, following
recommendations from its advisory bodies, is to review any proposed recommended
changes to the bylaws of the advisory bodies for approval; and
WHEREAS, the disability representative position of the Construction Board of
Appeals has been vacant since April 1, 2022; and
WHEREAS, expansion of eligibility requirements for the disability representative
position could assist in filling the vacancy; and
WHEREAS, the City's Construction Board of Appeals reviewed its bylaws at its
April 25, 2024 Regular Meeting and have recommended a revision of its bylaws to
promote greater participation on the board; and
WHEREAS, pursuant to City Charter section 1202, non-registered voters and non-
city residents may participate on citizen committees, commissions, boards, and
authorities depending upon the nature and purpose of the advisory body, as determined
by the City Council; and
WHEREAS, at its Regular Meeting of September 3, 2024, the City Council
reviewed proposed changes to advisory body bylaws, as recommended by the
Construction Board of Appeals and staff.
Page 219 of 229
Resolution No. _____ (2024 Series) Page 2
R ______
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis
Obispo that the “MEMBERSHIP and TERMS” established in the bylaws of the
Construction Board of Appeals are hereby amended to read as set forth and incorporated
herein as Exhibit A. This amendment shall be effective upon final adoption of Ordinance
No. XXXX (2024 Series), amending Section 113 of Section 15.04.020 of the San Luis
Obispo Municipal Code.
Upon motion of Council Member ___________, seconded by Council Member
___________, and on the following roll call vote:
AYES:
NOES:
ABSENT:
The foregoing resolution was adopted this _______ day of ______________ 2024.
___________________________
Mayor Erica A. Stewart
ATTEST:
______________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
______________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of San Luis Obispo, California, on ______________________.
___________________________
Teresa Purrington
City Clerk
Page 220 of 229
Resolution No. _____ (2024 Series) Page 3
R ______
EXHIBIT A
CONSTRUCTION BOARD OF APPEALS BYLAWS
Amended by Resolution No. ______ (2024 Series)
MEMBERSHIP and TERMS
The Construction Board of Appeals (CBOA) consists of seven members. Five of the
seven members shall be qualified by experience and training to pass on matters
pertaining to building construction and building service equipment, hazards of fire,
explosions, hazardous conditions or fire protection and who are not employees of the
City. Two members of the Board shall be physically disabled community representatives*
and shall be exempt from residency requirements.
Each term of office will be for four years. There is no limitation to the number of
consecutive terms of appointment.
* Physically Disabled Community Representative Definition:
Preference will be given to individuals who are registered City of San Luis Obispo voters
and who identify as an individual with a physical disability or a close connection with a
member of the physically disabled community, such as an individual who works in a
professional or advocacy capacity serving the physically disabled community, has a
physically disabled household or family member/loved one, serves as a caregiver, or
similar connection. However, if recruitment for this position does not result in sufficient
qualified registered City voters, membership may be considered for:
A physically disabled community member who lives outside the City
limits, but within the County of San Luis Obispo; or
A community member who lives outside the City limits, but within the
County of San Luis Obispo that has a close connection with the
physically disabled community.
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Page 222 of 229
_________________________
________________________________________________________________________
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
GEORGE DEUKMEJIAN
Attorney General
:
OPINION : No. 81-1002
:
of : JANUARY 28, 1982
:
GEORGE DEUKMEJIAN :
Attorney General :
:
Rodney O. Lilyquist :
Deputy Attorney General :
:
THE HONORABLE BARRY KEENE, MEMBER OF THE CALIFORNIA
STATE SENATE, has requested an opinion on the following questions:
1. Does the submission of a written appeal under Health and Safety Code
section 19957.5 regarding an action taken by a local building department in enforcing
building access requirements for physically handicapped persons require that an appeals
board be appointed to consider the matter?
2. What is the scope of the review powers of an appeals board appointed
pursuant to Health and Safety Code section 19957.5?
3. May a city council or county board of supervisors render the same
decisions for the same matters as may be rendered by an appeals board appointed pursuant
to Health and Safety Code section 19957.5?
1
81-1002
Page 223 of 229
CONCLUSIONS
1. The submission of a written appeal under Health and Safety Code
section 19957.5 regarding an action taken by a local building department in enforcing
building access requirements for physically handicapped persons does not require that an
appeals board be appointed to consider the matter.
2. The scope of the review powers of an appeals board appointed
pursuant to Health and Safety Code section 19957.5 is limited to approving or disapproving
the local building department's interpretations of Health and Safety Code sections 19955-
19959 and enforcement actions taken thereunder.
3. A city council or county board of supervisors may render the same
decisions for the same matters as may be rendered by an appeals board appointed pursuant
to Health and Safety Code section 19957.5 if local law so allows.
ANALYSIS
The Legislature has enacted a statutory scheme (Health and Safety Code
19955-19959)1 specifically requiring that public accommodations or facilities constructed
in California with private funds2 be accessible to physically handicapped persons. Such
facilities include auditoriums, hospitals, theaters, restaurants, hotels, motels, stadiums, and
convention centers (see § 19955); also covered are passenger vehicle service stations,
shopping centers, offices of physicians and surgeons, and office buildings (see § 19955.5).
Under the statutory scheme, the local governmental body required to enforce
the access requirements is the building department of each city and county. Section 19958
states:
"The building department of every city, county, or city and county
shall enforce this part within the territorial area of its city, county, or city and
county. . . .
"'Building department' means the department, bureau, or officer
charged with the enforcement of laws or ordinances regulating the erection
or construction, or both the erection and construction, of buildings."
1 All section references hereafter are to the Health and Safety Code unless otherwise indicated.
2 Buildings and facilities constructed with public funds are required to be accessible to
physically handicapped persons pursuant to Government Code sections 4450-4458.
2
81-1002
Page 224 of 229
The questions presented for analysis concern the enforcement actions taken
by local building departments and the methods by which such actions may be reviewed.
1. Appointment of an Appeals Board
The first question presented is whether the filing of a written appeal
regarding an enforcement action taken by a building department requires the appointment
of an appeals board under section 19957.5. We conclude that it does not.
Local building department officials occasionally will be faced with complex
problems in interpreting and enforcing the statutory access provisions. Of particular
significance in this regard is the language of section 19957:
"In case of practical difficulty, unnecessary hardship, or extreme
differences, a building department responsible for the enforcement of this
part may grant exceptions from the literal requirements of the standards and
specifications required by this part or permit the use of other methods or
materials, but only when it is clearly evident that equivalent facilitation and
protection are thereby secured."
In 1976 the Legislature amended the statutory scheme to include a provision,
section 19957.5, authorizing the appointment of an appeals board to review decisions made
by local building department officials. (Stats. 1976, ch. 700, § 1.) The statute provides:
"(a) Every city, county, or city and county may appoint a local appeals
board composed of five members to hear written appeals brought by any
person regarding action taken by the building department of the city, county,
or city and county in enforcement of the requirements of this part, including
the exceptions contained in Section 19957.
"(b) Two members of the appeals board shall be physically
handicapped persons, two members shall be persons experienced in
construction, and one member shall be a public member.
"(c) The appeals board shall conduct hearings on written appeals made
under Subdivision (a) and may approve or disapprove interpretations of this
part and enforcement actions taken by the building department of the city,
county, or city and county. All such approvals or disapprovals shall be final
and conclusive as to the building department in the absence of fraud or
prejudicial abuse of discretion. The appeals board shall adopt regulations
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Page 225 of 229
establishing procedural rules and criteria for the carrying out of its duties
under this part."
In the situation presented to us for consideration, a written appeal has been
submitted, challenging an action taken by the local building department in enforcing
sections 19955-19959. Must an appeals board be created in order to review the written
appeal?
We believe that the answer may be found by applying well recognized
principles of statutory construction. The cardinal rule in interpreting a statute is to
"ascertain the intent of the Legislature so as to effectuate the purpose of the law." (Select
Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645; accord, California Teachers
Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698.)
In determining legislative intent, we first turn to the words of the statute
(Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230), giving the language
its usual and ordinary import. (People v. Bellici (1979) 24 Cal.3d 879, 884.)
Here, the Legislature has used the word "may" in authorizing cities and
counties to appoint local appeals boards. "May" is usually permissive, as distinguished
from "shall" which is ordinarily mandatory. (Webster's New Internat. Dict. (3d ed 1966)
pp. 1683, 2085; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133.)
Moreover, section 19957.5 contains both "may" and "shall" within its
provisions. "It has been held where the Legislature has used both words in the same section
it must be presumed to have attached to them their ordinary meanings. (National
Automobile etc. Co. v. Garrison, 76 Cal.App.2d 415, 417; Cannizzo v. Guarantee Ins. Co.,
245 Cal.App.2d 70, 73.)" (Hogya v. Superior Court, supra, 75 Cal.App.3d 122, 133, fn.
8; accord, In re Richard E. (1978) 21 Cal.3d 349, 353-354.)
This interpretation is consistent with the Legislature's declaration that for
purposes of interpreting the provisions of the Health and Safety Code, "'shall' is mandatory
and 'may' is permissive." (§ 16.) We have found nothing in the statutory scheme to suggest
a different interpretation.
Since the creation of an appeals board under section 19957.5 is discretionary
with each city and county, the submission of a written appeal challenging a building
department decision cannot act to force creation of such a board.
In answer to the first question, therefore, we conclude that the submission of
a written appeal regarding an action taken by a local building department in enforcing the
4
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Page 226 of 229
provisions of sections 19955-19959 does not require the appointment of an appeals board
under section 19957.5.
2. Powers of an Appeals Board
The second question presented concerns the scope of the review powers of
an appeals board created under the provisions of section 19957.5. We conclude that the
board is limited to reviewing decisions made by the local building department with regard
to the provisions of sections 19955-19959 and it may not delve into matters outside the
scope of the legislative scheme.
The key language of section 19957.5 requiring interpretation is contained in
subdivision (a) [the board shall "hear written appeals brought by any person regarding
action taken by the building department . . . in enforcement of the requirements of this part,
including the exceptions contained in Section 19957"] and in subdivision (c) [the board
"may approve or disapprove interpretations of this part and enforcement actions taken by
the building department . . . ."]
Besides those principles of statutory construction mentioned with regard to
the first question, we note that "legislation should be construed so as to harmonize its
various elements" (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788) and
"the various parts of a statutory enactment" must be considered "in the context of the
statutory framework as a whole." (Moyer v. Workmen's Comp. Appeals Bd., supra, 10
Cal.3d 222, 230.)
Applying these principles, we believe that when the Legislature authorized
appeals boards to approve or disapprove "enforcement actions taken by the building
department," the Legislature was referring only to actions taken with regard to enforcing
sections 19555-19559.
In the context of the statutory scheme as a whole, no other definition of
"enforcement actions" is appropriate. Subdivision (a) of section 19557.5 refers solely to
"enforcement of the requirements of this part [sections 19555-19559]." Although section
19958 speaks in terms of a building department official "charged with the enforcement of
laws or ordinances regulating the erection or construction, or both the erection and
construction, of buildings," such generalization is merely for purposes of identification in
defining "building department;" it does not purport to constitute a grant of authority such
as is contained in the first sentence of the statute: "The building department of every city,
county, or city and county shall enforce this part within the territorial area of its city,
county, or city and county." (Italics added.)
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Reading these various provisions together in light of the "principle that
administrative agencies have only such powers as have been conferred on them, expressly
or by implication, by constitution or statute" (Ferdig v. State Personnel Bd. (1969) 71
Cal.2d 96, 103), we conclude in answer to the second question that the powers of an appeals
board appointed under section 19957.5 are limited to approving and disapproving the local
building department's interpretations of sections 19955-19959 and enforcement actions
taken thereunder.
3. Powers of a City Council or County Board of Supervisors
The third question presented concerns whether by authorizing the creation of
an appeals board, the Legislature intended to preclude any other administrative review of
access decisions made by local building departments. In other words, if an appeals board
is not established, may a city council or county board of supervisors review access
decisions made by the building department, and if an appeals board is created, may the
board's decision be reviewed by a city council or county board of supervisors? We
conclude that the Legislature did not intend to remove any appellate review authority held
by a city council or county board of supervisors.
Local governments may and frequently do put appeal procedures in their
local ordinances. (See Cal.Const., art. XI, §§ 1-7; Board of Permit Appeals v. Control
Permit Bureau (1960) 186 Cal.App.2d 633, 639-640; Sato, "Municipal Affairs" in
California (1972) 60 Cal.L.Rev. 1055, 1077-1081 (hereafter "Sato").) Does section
19957.5 preempt this power, or does it merely suggest a particular manner in which the
appeal process may be implemented?
We view this matter as again one of statutory interpretation to which may be
applied the previously mentioned principles of construction. The phrase that demonstrates
the Legislature's intent concerning the issue at hand is found in subdivision (c) of section
19957.5: "All such approvals or disapprovals [by the board] shall be final and conclusive
as to the building department of the city, county, or city and county." (Italics added.
The Legislature has expressly declared that an appeals board decision only
binds the local government insofar as constituting the decision of the building
department. If the Legislature had intended to cut off any further administrative appeal to
a city council or county board of supervisors, it could easily have used other language. (See
Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764; Safer v. Superior Court (1975) 15
Cal.3d 230, 237-238.) Section 19957.5 simply does not purport to affect any rights of
appeal other than to establish that the decision of an appeals board constitutes the decision
of the local building department.
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Accordingly, if local ordinances allow, a city council or county board of
supervisors may review decisions of a city or county building department in interpreting
and enforcing the provisions of sections 19955-19959. Where an appeals board has not
been created, the department's decision could go directly to the city council or board of
supervisors. Where an appeals board has been created, its decision would take the place
of the building department administrator's decision and be reviewable as such to the city
council or board of supervisors if local law so provides.
We have found no expression of legislative intent in the statutory scheme as
a whole to support a contrary conclusion. While the Legislature has directed local building
departments to administer the access provisions, we do not believe it has addressed the
issue of whether a local building department decision may be reviewed by a city council,
board of supervisors, or other body. The designation of the building department as the
enforcement agency (§ 19958) merely reflects the fact that the access requirements would
normally be within its area of expertise rather than within the province of some other
department such as police, fire, or sanitation.3 Also, the specification of certain
qualifications for members of an appeals board (§ 19957.5, subd. (b)) cannot be said to
preclude review outside the building department appeals board process.
Although the issue is a close one, we believe that in order for the Legislature
to deny review of city and county building department decisions by locally elected
representatives, more expressive language is required than is now contained in sections
19955-19959. This is especially true in this field of the law where the "home rule"
constitutional grant of authority to charter cities and counties may affect such a legislative
decision. (See Cal. Const., art. XI, §§ 3-5; Sonoma County Organization of Public
Employees v. County of Sonoma (1979) 23 Cal.3d 296, 315-316; Rivera v. City of Fresno
(1971) 6 Cal.3d 132, 135; Sato, supra, at pp. 1077-1081.)
In answer to the third question, we conclude that a city council or a county
board of supervisors may render the same decisions for the same matters as could be
rendered by an appeals board appointed pursuant to section 19957.5 if local law so
provides.
*****
3 The Legislature has made this abundantly clear by defining "building department" for
purposes of the statutory scheme as "the department, bureau, or officer charged with the
enforcement of laws or ordinances regulating the erection or construction, or both the erection and
construction, of buildings." (§ 19958.)
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Item 6b: Introduce an Ordinance to Amend
Construction Board of Appeals Membership
Qualifications
1
Recommendations:
1.Introduce a Draft Ordinance entitled, “An Ordinance of the City Council
of the City of San Luis Obispo, California, amending Section 15.04.020,
Subsection N, of the San Luis Obispo Municipal Code,” which will
remove the local requirement to maintain an Accessibility Board of
Appeals pursuant to Health and Safety Code 19957.5; and
2.Adopt a Draft Resolution entitled, “A Resolution of the City Council of
the City of San Luis Obispo, California, amending the Advisory Body
Handbook for revision to the Construction Board of Appeals Bylaws,”
which will remove the residency requirement and change the
qualifications for disabled access representatives.
2
Construction Board of Appeals (CBOA)
•The CBOA provides technical oversight for the Building Official regarding the application and interpretation of Title 15 of the municipal code (Article 1)
•The CBOA may recommend new legislation to the City Council regarding matters the board has decided on in a public hearing (Article 11)
•The CBOA has held two public hearings in the past two years
•One appeal of a Building Official’s interpretation
•One appeal for a citation
•Last year the CBOA adopted a regular schedule to meet
•Four regular meetings occur a year
•Monthly meetings are scheduled for public hearings and cancelled if no appeal applications are received
•Regular meetings are used to present municipal code changes and to update the board on substantial changes to the state codes and standards
3
CBOA Qualifications
•The CBOA is comprised of seven members that must be residents and
registered voters of the City
•Five members qualified by experience and training to pass on matters
pertaining to construction
•Two members must be physically disabled persons
•A physically disabled representative position has been vacant since April 1,
2022, and the city not been able to find a candidate to fill the role
•The CBOA currently consists of:
•3 Engineers
•2 Architects
•1 Contractor
•1 Vacancy
4
Updates to the Municipal Code and Bylaws
•Construction Boards of Appeals are established in California Code of Regulations
Title 24 under Section 113 of the California Building Code
•Section 15.04.020 of the San Luis Obispo Municipal Code, Subsection N is
amended locally to adopt an Accessibility Board of Appeals pursuant to CA
Health and Safety Code §19957.5.
•A board requires two members to be physically disabled, two members
experienced in construction, and one member of the public
•The proposed Ordinance will eliminate the specific qualifications for appointment
to the CBOA from the Municipal Code
•The draft Resolution will establish the newly proposed qualifications for
appointment to the CBOA in the Advisory Body Handbook
5
Newly Proposed CBOA Membership and Terms
•The current CBOA membership and staff recommend only changing the
qualifications for the physically disabled persons positions
•Eliminate the registered voter and residency requirement
•Expand the qualifications to include those with a close connection to a
physically disabled person
•The recommendations propose to keep representation for the physically
disabled community
•Moving these qualifications to only exist in the Advisory Body Handbook will
allow future bylaw changes to be accomplished through a Council Resolution
6
Recommendations:
1.Introduce a Draft Ordinance entitled, “An Ordinance of the City Council
of the City of San Luis Obispo, California, amending Section 15.04.020,
Subsection N, of the San Luis Obispo Municipal Code,” which will
remove the local requirement to maintain an Accessibility Board of
Appeals pursuant to Health and Safety Code 19957.5; and
2.Adopt a Draft Resolution entitled, “A Resolution of the City Council of
the City of San Luis Obispo, California, amending the Advisory Body
Handbook for revision to the Construction Board of Appeals Bylaws,”
which will remove the residency requirement and change the
qualifications for disabled access representatives.
7