Loading...
HomeMy WebLinkAbout07-29-2014 CBOA MinutesSAN LUIS OBISPO CONSTRUCTION BOARD OF APPEALS MINUTES July 29, 2014 ROLL CALL: Present: Board Members Rebecca Jansen, Stacy Neely, Mathew Quaglino, James Thompson, Vice-Chair Niel Dilworth, and Chairperson Robert Vessely Absent: None Staff: City Attorney Christine Dietrick, Legal Fellow Isaac Rosen, Chief Building Official Joseph Lease, Neighborhood Services Specialist Daniel Del Rio, Code Enforcement Officer Cassia Cocina, and Recording Secretary Diane Clement, city attorney Staff—see agenda New member Stacy Neely was sworn in at the beginning of the meeting. Chair Vessely and Vice-Chair Dilworth were reelected unanimously. ACCEPTANCE OF THE AGENDA: The agenda was accepted as presented. MINUTES: The minutes of March 17, 2014, were approved as amended. PUBLIC COMMENTS ON NON-AGENDA ITEMS: There were no comments made from the public. PUBLIC HEARINGS: 1. Review of the Role of the Construction Board of Appeals. (Isaac Rosen, Legal Fellow, City Attorney’s Office) 2. Review proposed changes to SLOMC 1.24 (Isaac Rosen, Legal Fellow, City Attorney’s Office) PUBLIC COMMENTS: There were no comments made from the public. BOARD/STAFF DISCUSSION of Items 1 and 2: Attorney Dietrick stated that changes have been made to streamline the appeal process for code enforcement and, as a result, the CBOA may be asked to review a building official’s interpretation and application of code before an action is taken by the City. She added that any action addressing immediate safety issues would be an exception. Chief Building Official Lease stated that abatement issues may be brought to the CBOA in addition to appeals. Members Dilworth and Jansen both stated that this is in conflict with the Bylaws. CBOA Minutes July 29, 2014 Page 2 Attorney Dietrick stated that the Bylaws cannot circumvent statutes. She noted she can take Board suggestions for Bylaw revisions to the City Council and that changes in the process are designed to allow the development of a full administrative record and to identify those cases that might lead to a challenge on writ, which is a more formal process than the usual judicial review by the Superior Court. Member Quaglino expressed concern about how to deal with appeals to the State Water Quality Control Board requirements for storm water runoff since many of the requirements are not even doable. Chief Building Official Lease stated that the board would be reviewing cases where there are violations, such as dumping. He noted that the City is required to enforce provisions of the State water quality laws. Attorney Dietrick added that the City could incur fines if there is a lack of documentation showing that these provisions are being enforced. Member Jansen asked how a storm water violation citation is handled. Attorney Dietrick stated that it has been an informal process using employees or volunteers with expertise to consider an appeal but that she is advocating there be a number of consistently trained and competent hearing officers who can be called upon to participate in full-blown de novo hearings that would result in a documented record. In response to a question from Member Dilworth, Chief Building Official Lease stated that the procedural changes proposed are intended to clear up misconceptions about the role of the CBOA and benefit the overall process of code enforcement. Attorney Dietrick added that the City needs to revise Chapter 1.20 Appeals Procedure to be in conformity with State law. Member Dilworth asked about retaining some language in the Bylaws that has been deleted in the revision. Chief Building Official Lease stated that the same language is in the Building Code and is not needed in the Bylaws. He added that there just needs to be an understanding that the Board of Appeals is about property and the Non-Technical Board is for dealing with non-technical matters where experts, such as engineers, are not needed. Attorney Dietrick stated that the Bylaws could specifically reference the Building Code which would mean any changes in the Code would be automatically included and the City Council could then confer additional review authority on the CBOA. She noted that using the revised procedure provides a low cost method of appeal and also addresses the need for documentation in case lawsuits are pursued against the City. CBOA Minutes July 29, 2014 Page 3 Member Vessely noted that if appellants use the low cost path, they lose the right to file a lawsuit. He asked if a hearing officer is the same as an administrative law judge. Attorney Dietrick responded that was not the case because the City did not want the expense; instead, the City may get volunteer retired lawyers to serve as trained hearing officers. She noted that the baseline requirements codified in the Code for due process are notice of violation and the right to present evidence. Member Vessely stated that the procedure seem to be a bureaucratic process that does not have anything to do with the CBOA and that there is a need to talk to the Board about how staff wants to expand the duties of the Board to deal with issues like storm water and sewers. He added that he disagrees with the approach staff has taken and that if staff appoints a new Board, it should be completely independent and separate from this Board but it would be fine if someone wanted to serve on both. Member Jansen stated that there are two issues: changing how issues trickle down to the CBOA and expanding the scope of the CBOA. Member Vessely stated that staff should not assume that because Board Members are familiar with building and accessibility codes, that they are familiar with all codes. Attorney Dietrick noted that there is a skill set around reading a set of codes and applying them, and that issues, such as public urination and noise, do not usually involve technical expertise but are more about evaluating the credibility of witnesses and/or hearing a police officer describe what was seen or heard and from what distance. Member Dilworth stated that he appreciates the confidence and faith in Board Members’ technical backgrounds and abilities to deal with codes for other things like storm water issues but that this is like asking an attorney to deal with something outside of that attorney’s area of expertise. Attorney Dietrick stated that judges do this all the time and this is what briefs are about. Member Dilworth expressed concern that errors and omissions liability insurance policies for architects and engineers state that the insured will not go beyond his/her area of expertise. He added that his reluctance comes from training and background. Member Quaglino stated that when he became a Board Member, there had not been an appeal in years, but the issuance of more citations now may be setting the stage for more appeals. He added that code officers looking for violations make for a different environment. Chief Building Official Lease stated that he is going to the City Council in November for a study session on a rental housing inspection program and, if the Council adopts an ordinance, there will be inspection of all rental housing, resulting in more enforcement. CBOA Minutes July 29, 2014 Page 4 Attorney Dietrick stated that there is a high level of concern about having the processes in place as the City continues to expand the scope of inspection and violation. Member Thompson stated that if a storm water issue came before him, and two civil engineers disagreed on technical details, he would not have the knowledge to make a judgment. Chief Building Official Lease stated that if a storm water violation appeal came before the Board, staff would provide a report with photos and background and, although no citations have been issued, the City does need the ability to hear potential appeals. Member Dilworth stated that his primary interest is in construction and he is not comfortable with issues like barking dogs or noise. Member Vessely asked staff to consider Board Member comments and craft a means to broaden the scope of the Board. Member Quaglino stated he is comfortable looking at the codes but he is not interested in judging neighborhood issues like noise or dogs because building codes are black and white while the other issues require personal judgments. Member Neely stated that she is interested in serving on the Non-Technical Board. Member Thompson stated he is interested in an expanded role for the board and in serving on the Non-Technical Board but wants the ability to say when he thinks he does not have enough knowledge to deal with a particular issue. He noted that the new process is probably better for the public. Member Dilworth stated that he could handle plan review for storm water. 3. Update on recent past cases before the Board (Joseph Lease, Chief Building Official) • 1128 Moro Street: Non-compliant awning has been removed; owner has plans to put up a new awning. • 2080 Rachel Street – so far the retaining wall permit has been obtained and the house is unoccupied. Chief Building Official Lease introduced Daniel Del Rio, formerly a City Park Ranger, now a Neighborhood Services Specialist. ADJOURNMENT: The meeting adjourned at 3:35 p.m. Respectfully submitted by, Diane Clement Recording Secretary