(a) Building and Safety Appeals Board. In order to hear and decide appeals of orders, decisions or determinations made by the Building Official relative to the application and interpretation of the California Building Standards Code and its amendments, the County Code and the building requirements of the County, or other applicable law, the Building and Safety Appeals Board is hereby established pursuant to § 1.8.8 of the California Building Standards Code, as adopted herein.
(1) Membership. The Building and Safety Appeals Board shall include five regular members and three alternate members. Members shall be appointed at large. No County employees shall be members of this board. All members - regular and alternate - must have knowledge, experience and training to review and reach decisions on matters pertaining to building construction and applicable building codes, regulations, and ordinances. Members shall serve a term of four years. In addition to the board members and the alternate members, the Building Official shall be an ex-officio member and shall act as secretary to the board. The members of the appeals board shall be appointed by the Board of Supervisors and shall hold office at its pleasure. Terms of office shall be staggered. Three of the initial appointments for regular members and one of the initial appointments for alternate members to the board shall be for two-year terms. A member whose term has expired shall continue to serve in that capacity until a new appointment is made by the Board of Supervisors. Upon recommendation of the County Chief Executive Officer or his or her designee, members may be removed by a majority vote of the Board of Supervisors.
(2) Meetings. A quorum shall be a meeting of at least three members. Alternate members may sit on the board in the absence of any regular members and shall be counted towards the quorum of three if there is an insufficient number of regular members available. A regular meeting shall be held at least once annually at a date and time established by a resolution of the Board of Supervisors. Rules for notice and conduct of the Building and Safety Appeals Board meetings, including without limitation all regular, adjourned regular and special meetings, shall be pursuant to the terms of this section and shall be in accordance with the provisions of the Ralph M. Brown Act (Government Code § 54950 et seq.). The members shall be reimbursed as provided by County Code § 13.0618(b).
(3) Responsibilities and Authority. The Building and Safety Appeals Board shall conduct hearings on appeals of orders, decisions, and determinations made by the Building Official relative to the applications and interpretation of the California Building Standards Code, and other regulations governing the use, maintenance, and change of occupancy. The Building and Safety Appeals Board shall have no authority to waive requirements of the California Building Standards Code or the County Code. All decisions of the Building and Safety Appeals Board shall be rendered in writing. The Building and Safety Appeals Board shall meet as necessary in order to abide by the scheduling provisions of County Code § 63.0105(c)(4). An application for appeal shall be based on a claim that the Building Code, as adopted herein, or the County Code, or the rules legally adopted thereunder, have been incorrectly interpreted, or do not fully apply, or that an equally good or better form of construction is proposed. The Building and Safety Appeals Board shall also function as the "local appeals board" and the "housing appeals board" specified in the California Health and Safety Code §§ 17920.5 and 17920.6.
(b) Physically Disabled Access Appeals Board. For the purpose of considering written appeals to the actions taken by the Building Official in the exercise of its or his or her responsibility and authority as specified herein and to ratify certain exemption actions of the Building Official in enforcing the accessibility requirements of Title 24 of the California Code of Regulations for privately funded construction, and to serve as an advisor to the Building Official on disabled access matters, there is hereby established the Physically Disabled Access Appeals Board.
(1) Membership. The Physically Disabled Access Appeals Board shall consist of five regular members as follows: a minimum of two physically disabled members; two members experienced in the professions or disciplines of construction; and one member of the public. The Building Official shall be an ex officio member and shall act as secretary to the board. The two members experienced in the professions or disciplines of construction shall be regular or alternate board members from the Building and Safety Appeals Board, and shall be so designated by majority vote of that board. The two physically disabled members and the one public member may, but are not required to be, members of the Building and Safety Appeals Board. The Physically Disabled Access Appeals Board shall also have a panel of three alternate members. Said alternate panel must consist of one physically disabled member, one member experienced in the professions or disciplines of construction as designated by the Building and Safety Appeals Board, and one member of the public. A regular member may only be substituted by an alternate member of the same classification. The members of the Physically Disabled Access Appeals Board shall be appointed by the Board of Supervisors and shall hold office at its pleasure. Terms of office shall be for four years, and for members appointed to both the Building and Safety Appeals Board and the Physically Disabled Access Appeals Board said terms shall be served concurrently. However, as to one of the initial appointments for an individual with a disability, the initial appointment shall be for two years to allow for the terms of office to be staggered. A member whose term has expired shall continue to serve in that capacity until a new appointment is made by the Board of Supervisors. Upon recommendation of the County Chief Executive Officer or his or her designee, members may be removed by majority vote of the Board of Supervisors.
(2) Meetings. All meetings of the Physically Disabled Access Appeals Board, including without limitation, regular, adjourned regular and special meetings, shall be conducted pursuant to the terms of this section and called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act (Government Code § 54950 et seq.). The members shall be reimbursed as provided by County Code § 13.0618(b).
(3) Responsibilities and Authority. The Physically Disabled Access Appeals Board shall serve as the "local appeals board" specified in § 19957.5 of the California Health and Safety Code in appeals relating to accommodations for the physically disabled. The authority of the Physically Disabled Access Appeals Board shall consist of the conducting of appeals for the purpose limited to that expressed in California Health and Safety Code §§ 19955 through 19959. All decisions of the Physically Disabled Access Appeals Board shall be rendered in writing.
(c) Appeal. Unless otherwise provided, reference to "Appeals Board" shall refer to the Building and Safety Appeals Board or Physically Disabled Access Appeals Board, whichever is applicable.
(1) Timing and Form of Appeal. The Building Official shall have the right to appeal to the Appeals Board, provided that a written application for appeal is filed within 20 days after the decision, determination, or notice and order was served. An application for appeal shall be based on a claim that the true intent of the applicable code or rules legally adopted thereunder have been incorrectly interpreted, or that the provisions of the applicable code or rules legally adopted thereunder do not fully apply or that the requirements of the applicable code or the rules legally adopted thereunder are adequately satisfied by other means. The appeal shall be made in writing and filed along with the appeal fee with the appropriate County office. The written appeal shall contain:
(A) A heading containing the words "Before the Building and Safety Appeals Board of San Bernardino County" or "Before the Physically Disabled Access Appeals Board of San Bernardino County," whichever is applicable.
(B) A caption reading: "Appeal of ... " giving the names of all appellants participating in the appeal;
(C) A brief statement setting forth the legal interest of each of the appellants;
(D) A brief statement in ordinary and concise language of the specific order or action protested, together with any material facts claimed to support the contentions of the appellant;
(E) A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed the protested order or action should be reversed, modified, or otherwise set aside;
(F) The signatures of all parties named as appellants and their official mailing addresses; and
(G) The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
(2) Processing of Appeal. Upon receipt of any appeal and the applicable fee filed pursuant to this section, the Building Official shall present it at the next regular or special meeting of the Appeals Board.
(3) Limitation to Appeal. Limit of one appeal hearing per property or parcel relative to the same notice and order or action of the Building Official may be heard by an Appeals Board. If appellants consist of both property owners and any interested parties of record, appellants must jointly file an appeal, and the appeal hearing must be conducted jointly amongst all appellants.
(4) Scheduling and Noticing of Appeal Hearing. As soon as practicable after receiving the written appeal and appeal fee, the Appeals Board shall fix a date, time, and place for the hearing of the appeal by the board. Such date shall not be less than ten days nor more than 60 days from the date the appeal was filed with the Building Official, subject to any stay pending a decision to grant or deny an appeal fee hardship waiver request. Written notice of the time and place of the hearing shall be given at least ten days prior to the date of the hearing to each appellant and any interested parties of record discovered through reasonable diligence, through either personal service or first class mail, each appellant at the address shown on the appeal, and to the interested party of record at the party's last known address. Notice by mail shall be deemed effective on the date of deposit.
(5) Open Hearing. Hearings before the Appeals Board shall be open to the public. The appellant, the appellant's representative, the Code Official and any person whose interests are affected shall be given an opportunity to be heard.
(6) Waiver of Appeal Fee for Financial Hardship. Any appellant who is financially unable to pay the required appeal fee may file a written request for an appeal fee hardship waiver. The written request must be filed prior to or contemporaneous with the filing of the appeal. The written request shall be filed with the Building Official. The appellant requesting the appeal fee hardship waiver shall indicate on the written appeal that an appeal fee hardship waiver request has been filed.
(7) Appeal Fee Hardship Waiver Evaluation Procedures. Hardship waivers shall be granted based on the grounds provided by County Code § 16.0231 or other applicable authority in the County Code or law. Requests will only be considered if the appellant requesting the waiver submits a sworn affidavit, together with any supporting documents or materials, reasonably demonstrating the appellant's actual financial inability to submit the appeal fee. A written decision to grant or deny the request shall be made not less than ten days nor more than 60 days after submission of the request. If the request is denied, the written decision shall explain the reason for denial and shall state the due date - not less than ten days nor more than 60 days from the date of the decision - for payment of the appeal fee. The written decision shall be sent via first class mail to the appellant and shall be final. An appeal hearing shall not be scheduled until the appeal fee is received. If the request is denied and the appeal fee is not remitted within the time indicated in the written decision, the right to an appeal shall be deemed waived and the notice and order or the action of the Building Official shall become final.
(8) Effect of Failure to Appeal. Failure of any person or entity to file an appeal in accordance with the provisions of § 63.0105(c)(1) shall constitute a waiver of the right to an appeal hearing and the Building Official or the Code Official's notice and order or action shall become final.
(9) Scope of Hearing on Appeal. Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.
(10) Stay Pending Appeal. Except for vacation orders issued by the Building Official because of conditions that represent an immediate threat to life, limb, property, or safety of the public or adjacent properties, enforcement of any notice and order of the Building Official shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.
(11) Hearing and Decision. The decision of the Appeals Board shall be final; there is no further administrative appeal.
(d) Procedures for Conduct of Hearing of Appeals.
(1) Hearing Examiners. The Appeals Board may designate one or more of its members to serve as a hearing examiner to conduct the hearing of an appeal to the board. The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the Appeals Board for decision. Decisions and actions of the Building Official regarding the enforcement of the requirements of Health and Safety Code §§ 19955 through 19959 shall be appealed to the Physically Disabled Access Appeals Board. Appeals to the Physically Disabled Access Appeals Board must be heard in front of that board as a whole.
(2) Record. A record of the entire proceedings shall be made by electronic recording or by any other means of tangible recording determined to be appropriate by the Appeals Board. A transcript of the recording will be made available to any party that requests a transcript in writing accompanied with the transcription fee established by the County Fee Ordinance. If no transcription fee has been established by the County Fee Ordinance, then the fee shall be the full actual cost of transcribing the requested recordings into print form as established by a transcription service, and shall be paid prior to transcription services being rendered.
(3) Continuances and Postponements. The Appeals Board may grant a continuance for good cause shown. If a hearing examiner has been assigned to a hearing, the examiner may grant a continuance for good cause shown so long as the matter remains before the examiner.
(4) Oaths—Certification. In any proceedings under this chapter, the Appeals Board, any board member, or the hearing examiner has the power to administer oaths and affirmations and to certify official acts.
(5) Reasonable Dispatch. The Appeals Board and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties and/or their representatives.
(6) Form of Notice of Hearing. The notice to appellant shall be substantially in the following form, but may include other information:
"You are hereby notified that a hearing will be held before (the Building and Safety Appeals Board, Physically Disabled Access Appeals Board or name of hearing examiner, whichever is applicable) at __________ on the day _____ of _____, 20___, at the hour of _______. You may be present at the hearing. The hearing will proceed as noticed in absentia if you elect not to be present. You may be, but need not be, represented by counsel, even if you elect not to be present. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents, or other things by filing an affidavit therefore with (Building and Safety Appeals Board, Physically Disabled Access Appeals Board or name of hearing examiner, whichever is applicable)."
(7) Subpoenas.
(A) Filing of Affidavit. A subpoena may be issued for the attendance of witnesses or the production of other evidence at a hearing upon the request of a member of the Appeals Board or a hearing examiner, or upon the written demand of any party. The subpoena must be accompanied by an affidavit that states the name and address of the proposed witness and/or specifies the exact things sought to be produced and the materiality thereof, and states that the witness has the desired things in possession or under control. A subpoena need not be issued when the affidavit is defective.
(B) Cases Referred to Hearing Examiner. In cases where a hearing is referred to an examiner, all subpoenas shall be obtained through the examiner.
(C) Penalties. Any person who refuses without lawful excuse to attend any hearing or produce material evidence which the person possesses or controls, as required by any subpoena served upon such person as provided herein, shall be guilty of a misdemeanor.
(8) Conduct of Hearing.
(A) Rules. Hearings need not be conducted according to the technical rules of evidence. The following rules shall apply:
(I) Oral Evidence. Oral evidence shall be taken only on oath or affirmation.
(II) Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in a court of competent jurisdiction in this state.
(III) Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence that responsible persons are accustomed to relying on in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
(IV) Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.
(B) Rights of Parties. Each party shall have these rights, among others:
(I) To call and examine witnesses on any matter relevant to the issues of hearing;
(II) To introduce documentary and physical evidence;
(III) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
(IV) To impeach any witness regardless of which party first called the witness to testify;
(V) To rebut evidence; and
(VI) To be represented by anyone who is lawfully permitted to do so.
(9) Official Notice.
(A) What may be noticed. The Appeals Board or hearing examiner may take official notice of any matter that may be judicially noticed by the courts of this state or any official records of the County or any department and ordinances of the County or rules and regulations of the County.
(B) Parties to be notified. Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein, or appended thereto.
(C) Opportunity to refute. Parties present at the hearing shall be given a reasonable opportunity, upon the request of a party, to refute any officially noticed matters with the manner of such refutation to be determined by the Appeals Board or hearing examiner.
(10) Inspection of the premises. The Appeals Board or the hearing examiner may inspect any building or premises involved in the appeal during the course of the hearing, provided that:
(A) Notice of such inspection shall be given to the parties before the inspection is made;
(B) The parties are given an opportunity to be present during the inspection; and
(C) The Appeals Board or the hearing examiner shall state for the record upon completion of the inspection, the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the Appeals Board or hearing examiner.
(11) Method and Form of Decision.
(A) Hearing before the Board itself. When the Appeals Board hears an appeal, a member thereof who did not hear the evidence or has not read the entire record of the proceedings shall not vote on or take part in the decision.
(B) Hearing before the Examiner. If a contested case is heard by a hearing examiner alone, the examiner shall within a reasonable time (not to exceed 90 days from the date the hearing is closed) submit a written report to the Appeals Board. Such report shall contain a brief summary of the evidence considered and state the examiner's findings, conclusions and recommendations. The report also shall contain a proposed decision in such a form that it may be adopted by the Appeals Board as its decision in the case. The examiner's report filed with the Appeals Board shall be a public record. A copy of the report shall be mailed to each party on the date it is filed with the Appeals Board.
(C) Consideration of Report by Board - Notice. The Appeals Board shall fix the time, date, and place to consider the examiner's report. Notice thereof shall be mailed to each interested party not less than five days prior to the date fixed, unless it is otherwise stipulated by all of the parties.
(D) Exceptions to Report. Not later than two days before the date set to consider the report, any party may file written exceptions to any part or all of the examiner's report and may attach thereto a proposed decision together with written argument in support of such decision. By leave of the board, any party may present oral argument to the Appeals Board.
(E) Disposition by the board. By a concurring vote of the majority of the total number board members who heard the appeal, the Appeals Board may adopt or reject the proposed decision in its entirety, or may modify the proposed decision.
(F) Proposed Decision Not Adopted. If the proposed decision is not adopted, the Appeals Board may decide the case upon the entire record before it, with or without taking additional evidence, or may refer the case to the same or another hearing examiner to take additional evidence. If the case is reassigned to a hearing examiner, the examiner shall prepare a report and proposed decision as provided in Subdivision (11)(B) hereof after any additional evidence is submitted. Consideration of such proposed decision by the board shall comply with the provisions of this section.
(G) Form of Decision. The decision shall be in writing and shall contain findings of fact and a determination of the issues presented. The decision shall be recorded with the County Recorder's Office. A copy of the decision shall be delivered to the appellant(s) personally or sent by certified mail, postage prepaid, return receipt requested, and a copy of the decision shall be sent to any interested parties of record discovered through reasonable diligence, by certified mail, postage prepaid, return receipt requested.
(H) Effective Date of Decision. The effective date of the decision shall be the date the decision is served upon the parties, including the date of deposit if service is by mail, or otherwise as stated therein.
(I) Administration. Unless there are exigent circumstances justifying immediate abatement action, upon expiration of the court review process, the Building Official shall take action in accordance with the decision of the Appeals Board or judge reviewing the board's decision.
(e) Court Review. Any person, whether or not a previous party of the appeal, shall have the right to apply to the appropriate court for a writ of certiorari to correct errors of the law. Application for review shall be made in the manner and time required by law.
(Ord. 4452, passed - -2022)