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ATTORNEYS AT LAW
2001 N. MAIN STREET, SUITE 390
WALNUT CREEK, CALIFORNIA 94596
JANET E. COLESON, Bar No. 160993
[email protected]
CHRISTOPHER M. MOFFITT, Bar No. 255599
[email protected]
BEST BEST & KRIEGER LLP
2001 N. Main Street
Suite 390
Walnut Creek, California 94596
Telephone: (925) 977-3300
Facsimile: (925) 977-1870
Attorneys for Respondent
CITY OF FAIRFAX
EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MARIN
JACOB FRIEDMAN, an individual,
Petitioner,
v.
CITY OF FAIRFAX, a general law city, and
DOES 1 through 10,
Respondents.
Case No. CV0000737
Judge: Hon. A. Sweet
RESPONDENT CITY OF FAIRFAX’S
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF OPPOSITION TO
PETITIONER’S EX PARTE
APPLICATION FOR ALTERNATIVE
WRIT AND STAY AND ORDER TO
SHOW CAUSE RE PEREMPTORY
WRIT
Ex Parte Hearing
Date: September 5, 2023
Time: 9:00 a.m.
Dept.: E
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WALNUT CREEK, CALIFORNIA 94596
REQUEST FOR JUDICIAL NOTICE
Pursuant to Evidence Code sections 452(b) and 453, Respondent City of Fairfax (the “City”) hereby requests the Court take judicial notice of the following documents:
1. City of Fairfax Municipal Code Section 15.04.010, a true and correct copy of which is attached hereto as Exhibit “A”.
2. California Building code, Title 24, Part 2, Section 105, a true and correct copy of which is attached hereto as Exhibit “B”.
3. California Building code, Title 24, Part 2, Section 105.6, a true and correct copy of which is attached hereto as Exhibit “C”.
4. City of Fairfax Municipal Code Section 17.024.060, a true and correct copy of which is attached hereto as Exhibit “D”.
5. City of Fairfax Municipal Code Section 17.020.020, a true and correct copy of which is attached hereto as Exhibit “E”.
6. City of Fairfax Municipal Code Section 17.020.040, a true and correct copy of which is attached hereto as Exhibit “F”.
7. City of Fairfax Municipal Code Section 17.020.120, a true and correct copy of which is attached hereto as Exhibit “G”.
8. City of Fairfax Municipal Code Section 17.024.120, a true and correct copy of which is attached hereto as Exhibit “H”.
9. City of Fairfax Municipal Code Chapter 17.036, a true and correct copy of which is attached hereto as Exhibit “I”.
10. California Building code, Title 24, Part 2, Section 1.8.8.1, a true and correct copy of which is attached hereto as Exhibit “J”.
11. California Building code, Title 24, Part 2, Section 113, a true and correct copy of which is attached hereto as Exhibit “K”.
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12. California Building code, Title 24, Part 2, Section 107.4, a true and correct copy of which is attached hereto as Exhibit “L”.
13. Resolution No. 2022-01, a true and correct copy of which is attached hereto as Exhibit “M”.
14. City of Fairfax Municipal Code Section 15.04.100, a true and correct copy of which is attached hereto as Exhibit “N”.
Dated: August 31, 2023 BEST BEST & KRIEGER LLP
By:
JANET E. COLESON
CHRISTOPHER M. MOFFITT
Attorneys for Defendant CITY OF FAIRFAX
EXHIBIT “A”
§ 15.04.010 ADOPTION OF CONSTRUCTION CODES.
(A) The following parts of Title 24, California Code of Regulations are adopted by reference as construction codes for the Town of Fairfax, subject to the modifications included later in this Chapter 15.04:
(1) 2022 edition of the California Administrative Code (Title 24 Part 1); (2) 2022 edition of the California Building Code (Title 24 Part 2) based upon the 2021 International Building Code (IBC), including:
(a) Division II of Chapter 1, but not Section 113;
(b) Appendix Chapter A, Employee Qualifications;
(c) Appendix Chapter G, Flood-Resistant Construction;
(d) Appendix Chapter H, Signs;
(e) Appendix Chapter I, Patio Covers; and
(f) Appendix Chapter J, Grading.
(3) 2022 edition of the California Residential Code (Title 24 Part 2.5) based on the 2021 International Residential Code (IRC) including:
(a) Division II of Chapter 1, but not Section 112;
(b) Appendix Chapter V Swimming Pools, Spas and Hot Tubs,; (c) Appendix Chapter H Patio Covers; and
(d) Appendix Chapter J Existing Buildings and Structures. (4) 2022 edition of the California Electrical Code (Title 24 Part 3) based upon the 2020 National Electrical Code (NEC), including:
(a) Article 89, but not Section 89.108.8.
(5) 2022 edition of the California Mechanical Code (Title 24 Part 4) based upon the 2021 Uniform Mechanical Code (UMC), including:
(a) Division II of Chapter 1, but not Section 107.0, 107.1, 107.2. (6) 2022 edition of the California Plumbing Code (Title 24 Part 5) based upon the 2021 Uniform Plumbing Code (UPC), including:
(a) Division II of Chapter 1, but not Section 107.0 or 107.1, 107.2. (7) 2022 edition of the California Energy Code (Title 24 Part 6); (8) 2022 edition of the California Historical Building Code (Title 24 Part 8); (9) 2022 edition of the California Existing Building Code (Title 24 Part 10) based upon the 2018 International Existing Building Code (IEBC) including:
(a) Appendix Chapter A1 Seismic Strengthening Provisions For Unreinforced Masonry Bearing wall Buildings; (b) Appendix Chapter A3 Prescriptive Provisions For Seismic Strengthening Of Cripple Walls And Sill Plate Anchorage Of Light, Wood-Framed Residential Buildings; and (c) Appendix Chapter A4 Earthquake Risk Reduction In Wood-Frame Residential Buildings With Soft, Weak Or Open Front Walls.
(10) 2022 edition of the California Green Building Standards Code (CALGreen) (Title 24 Part 11), including:
(a) Appendix A4 and Appendix A5 Tier 1 measures, but excluding Appendix A4.2 and A5.2 (Energy Efficiency). The Tier 1 measures shall be mandatory for commercial and residential construction, and verification of such compliance shall be provided by the installer or designer.
(11) 2022 edition of the California Referenced Standards Code (Title 24 Part 12). (12) 2021 edition of the International Property Maintenance Code, to the extent the same is not inconsistent with the California Buildings Standards Code (California Code of Regulations, Title 12, Parts 1-Part 12), as adopted and amended herein.
(B) A copy of each of these documents is maintained in the office of the Building Official, and reference is made to them with like effect as if all the provisions and printed matter therein were herein set forth in full. (Ord. 872, passed 12-7-2022)
EXHIBIT “B”
8/30/23, 8:11 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Errat… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02 1/4 SECTION105
PERMITS
[A]105.1Required.
Any owner or owner’s authorized agent who intends to construct, enlarge, alter, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be performed, shall first make application to the building official and obtain the required permit. [A]105.1.1Annual permit.
Instead of an individual permit for each alteration to an already approved electrical, gas, mechanical or plumbing installation, the building official is authorized to issue an annual permit upon application therefor to any person, firm or corporation regularly employing one or more qualified tradespersons in the building, structure or on the premises owned or operated by the applicant for the permit.
[A]105.1.2Annual permit records.
The person to whom an annual permit is issued shall keep a detailed record of alterations made under such annual permit. The building official shall have access to such records at all times or such records shall be filed with the building official as designated. [A]105.2Work exempt from permit.
Exemptions from permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction. Permits shall not be required for the following:
Building:
1. One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided that the floor area does not exceed 120 square feet (11.15 m ). It is permissible that these structures still be regulated by Section 710A, despite exemption from permit.
2. Fences not over 7 feet (2134 mm) high.
3. Oil derricks.
4. Retaining walls that are not over 4 feet (1219 mm) in height measured from the bottom of the footing to the top of the wall, unless supporting a surcharge or impounding Class I, II or IIIA liquids.
5. Water tanks supported directly on grade if the capacity is not greater than 5,000 gallons (18 925 L) and the ratio of height to diameter or width is not greater than 2:1.
6. Sidewalks and driveways not more than 30 inches (762 mm) above adjacent grade, and not over any basement or story below and are not part of an accessible route.
7. Painting, papering, tiling, carpeting, cabinets, counter tops and similar finish work.
8. Temporary motion picture, television and theater stage sets and scenery.
9. Prefabricated swimming pools accessory to a Group R-3 occupancy that are less than 24 inches (610 mm) deep, are not greater than 5,000 gallons (18 925 L) and are 2 8/30/23, 8:11 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Errat… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02 2/4 installed entirely above ground.
10. Shade cloth structures constructed for nursery or agricultural purposes, not including service systems.
11. Swings and other playground equipment accessory to detached one- and two-family dwellings.
12. Window awnings in Group R-3 and U occupancies, supported by an exterior wall that do not project more than 54 inches (1372 mm) from the exterior wall and do not require additional support.
13. Nonfixed and movable fixtures, cases, racks, counters and partitions not over 5 feet 9 inches (1753 mm) in height.
Electrical:
1. Repairs and maintenance: Minor repair work, including the replacement of lamps or the connection of approved portable electrical equipment to approved permanently installed receptacles.
2. Radio and television transmitting stations: The provisions of this code shall not apply to electrical equipment used for radio and television transmissions, but do apply to equipment and wiring for a power supply and the installations of towers and antennas.
3. Temporary testing systems: A permit shall not be required for the installation of any temporary system required for the testing or servicing of electrical equipment or apparatus.
Gas:
1. Portable heating appliance.
2. Replacement of any minor part that does not alter approval of equipment or make such equipment unsafe.
Mechanical:
1. Portable heating appliance.
2. Portable ventilation equipment.
3. Portable cooling unit.
4. Steam, hot or chilled water piping within any heating or cooling equipment regulated by this code.
5. Replacement of any part that does not alter its approval or make it unsafe.
6. Portable evaporative cooler.
7. Self-contained refrigeration system containing 10 pounds (4.54 kg) or less of refrigerant and actuated by motors of 1 horsepower (0.75 kW) or less.
Plumbing:
1. The stopping of leaks in drains, water, soil, waste or vent pipe, provided, however, that if any concealed trap, drain pipe, water, soil, waste or vent pipe becomes defective and it becomes necessary to remove and replace the same with new material, such work shall be considered as new work and a permit shall be obtained and inspection made as provided in this code.
2. The clearing of stoppages or the repairing of leaks in pipes, valves or fixtures and the removal and reinstallation of water closets, provided that such repairs do not involve or require the replacement or rearrangement of valves, pipes or fixtures. [A]105.2.1Emergency repairs.
Where equipment replacements and repairs must be performed in an emergency situation, the permit application shall be submitted within the next working business day to the building 8/30/23, 8:11 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Errat… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02 3/4 official.
[A]105.2.2Public service agencies.
A permit shall not be required for the installation, alteration or repair of generation, transmission, distribution or metering or other related equipment that is under the ownership and control of public service agencies by established right. [A]105.3Application for permit.
To obtain a permit, the applicant shall first file an application therefor in writing on a form furnished by the department of building safety for that purpose. Such application shall:
1. Identify and describe the work to be covered by the permit for which application is made.
2. Describe the land on which the proposed work is to be done by legal description, street address or similar description that will readily identify and definitely locate the proposed building or work.
3. Indicate the use and occupancy for which the proposed work is intended.
4. Be accompanied by construction documents and other information as required in Section 107.
5. State the valuation of the proposed work.
6. Be signed by the applicant, or the applicant’s authorized agent.
7. Give such other data and information as required by the building official. [A]105.3.1Action on application.
The building official shall examine or cause to be examined applications for permits and amendments thereto within a reasonable time after filing. If the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject such application in writing, stating the reasons therefor. If the building official is satisfied that the proposed work conforms to the requirements of this code and laws and ordinances applicable thereto, the building official shall issue a permit therefor as soon as practicable. [A]105.3.2Time limitation of application.
An application for a permit for any proposed work shall be deemed to have been abandoned 180 days after the date of filing, unless such application has been pursued in good faith or a permit has been issued; except that the building official is authorized to grant one or more extensions of time for additional periods not exceeding 90 days each. The extension shall be requested in writing and justifiable cause demonstrated. [OSHPD 1, 1R, 2, 4 & 5] Time limitation shall be in accordance with the California Administrative Code, Chapter 7, Section 7-129. [A]105.4Validity of permit.
The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other ordinance of the jurisdiction. Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. The issuance of a permit based on construction documents and other data shall not prevent the building official from requiring the correction of errors in the 8/30/23, 8:11 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Errat… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02 4/4 construction documents and other data. The building official is authorized to prevent occupancy or use of a structure where in violation of this code or of any other ordinances of this jurisdiction. [A]105.5Expiration.
Every permit issued shall become invalid unless the work on the site authorized by such permit is commenced within 180 days after its issuance, or if the work authorized on the site by such permit is suspended or abandoned for a period of 180 days after the time the work is commenced. The building official is authorized to grant, in writing, one or more extensions of time, for periods not more than 180 days each. The extension shall be requested in writing and justifiable cause demonstrated.
105.5.1Expiration.
[BSC] On or after January 1, 2019, every permit issued shall become invalid unless the work on the site authorized by such permit is commenced within 12 months after its issuance, or if the work authorized on the site by such permit is suspended or abandoned for a period of 12 months after the time the work is commenced. The building official is authorized to grant, in writing, one or more extensions of time, for periods not more than 180 days each. The extension shall be requested in writing and justifiable cause demonstrated. (See Health and Safety Code Section 18938.5 and 18938.6.)
[A]105.6Suspension or revocation.
The building official is authorized to suspend or revoke a permit issued under the provisions of this code wherever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or regulation or any of the provisions of this code. [A]105.7Placement of permit.
The building permit or copy shall be kept on the site of the work until the completion of the project.
EXHIBIT “C”
8/30/23, 5:00 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Erra… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02_Sec105 1/1 [A]105.6Suspension or revocation.
The building official is authorized to suspend or revoke a permit issued under the provisions of this code wherever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or regulation or any of the provisions of this code.
EXHIBIT “D”
§ 17.024.060 BUILDING PERMIT; REQUIRED.
No person, firm or corporation shall erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure in the town, or cause the same to be done, without first obtaining a separate building permit for each such building or structure from the building official. (Prior Code, § 17.14.060) (Ord. 352, passed - -1973)
EXHIBIT “E”
§ 17.020.020 PURPOSE.
(A) The purpose of these regulations is to effect design review of all developments, buildings, structures, signs and other facilities constructed or modified in the Town of Fairfax, except as herein provided. (B) The purpose of this procedure is to foster a good design character through consideration of aesthetic and functional relationships to surrounding development and in order to further enhance thetown’s appearance and the livability and usefulness of properties.
(Prior Code, § 17.12.020) (Ord. 352, passed - -1973 ; Am. Ord. 764, passed 2-1-2012) EXHIBIT “F”
§ 17.020.040 DESIGN REVIEW CRITERIA.
The following criteria shall be applied in considering an application for design review approval. (A) The proposed development shall create a well composed design, harmoniously related to other facilities in the immediate area and to the total setting as seen from hills and other key vantage points in the community. (B) Only elements of design which have significant relationship to exterior appearance of structures and facilities shall be considered; these elements may include height, arrangement on the site, texture, material, color, signs, landscaping and appurtenances.
(C) The proposed development shall be of a quality and character appropriate to, and serving to protect the value of, private and public investments in the immediate area.
(D) The proposed development shall conform with all requirements for landscaping, screening, usable open space and the design of parking and off-street loading areas set forth in this title. (E) Where the proposed development is located in an area where a neighborhood plan or precise plan has been adopted by the town, the design of the development shall conform in all significant respects with the plans. (F) There shall exist sufficient variety in the design of the structures and grounds to avoid monotony in external appearance.
(G) The size and design of the structure shall be considered for the purpose of determining that the structure is in proportion to its building site and that it has a balance and unity among its external features so as to present a harmonious appearance.
(H) The extent to which the structure conforms to the general character of other structures in the vicinity insofar as the character can be ascertained and is found to be architecturally desirable. (I) The extent to which ornamentation is to be used and the extent to which temporary and second-hand materials, or materials which are imitative of other materials, are to be used. (J) The extent to which natural features, including trees, shrubs, creeks and rocks and the natural grade of the site are to be retained.
(K) The accessibility of off-street parking areas and the relation of parking areas with respect to traffic on adjacent streets.
(L) The reservation of landscaping areas for the purpose of separating or screening service and storage areas from the street and adjoining building sites, breaking up large expanses of paved areas, separating or screening parking lots from the street and adjoining building sites and separating building areas from paved areas to provide access from buildings to open space areas.
(M) In the case of any commercial or industrial structure, the Planning Commission shall consider its proximity to any residential district and shall consider the effect of the proposed structure upon the character and value of the adjacent residential district area.
(N) The Planning Commission and Town Council may adopt design guidelines in order to further the objectives of this section and to illustrate design criteria.
(Prior Code, § 17.12.040) (Ord. 352, passed - -1973; Am. Ord. 605, passed - -1991; Am. Ord. 764, passed 2-1-2012) EXHIBIT “G”
§ 17.020.120 ENFORCEMENT.
In any zone, or in any instance, in which design review is required, no building permit or business license, if necessary, shall be issued unless approval of the proposed development has been granted pursuant to this procedure. (Prior Code, § 17.12.130) (Ord. 352, passed - -1973; Am. Ord. 764, passed 2-1-2012) EXHIBIT “H”
§ 17.024.120 APPEALS.
All decisions of the Planning Commission in proceedings for the revocation or modification may be appealed and reviewed in substantially the same manner as provided for in Chapter 17.036 of this title. (Prior Code, § 17.14.120) (Ord. 352, passed - -1973)
EXHIBIT “I”
CHAPTER 17.036: APPEALS AND DIRECTED REFERRALS
Section
17.036.010 Appeals; purpose
17.036.020 Appeals; by whom made
17.036.030 Appeals; stay of proceedings
17.036.040 Appeals; notice of hearing
17.036.050 Appeals; submission of record
17.036.060 Appeals; action by Council
17.036.070 Appeals; review of Council action by courts
17.036.080 Appeals; filing fees
17.036.090 Directed referrals; purpose
17.036.100 Directed referrals; procedure
17.036.110 Directed referrals; time limit
17.036.120 Directed referrals; basis
17.036.130 Directed referrals; action by Council
17.036.140 Directed referral to take precedence over appeal § 17.036.010 APPEALS; PURPOSE.
The purpose of the appeal procedure is to provide recourse in case it is alleged that there is error in any order, requirement, permit, decision or determination made by an administrative official, advisory body or Planning Commission in the administration or enforcement of this title.
(Prior Code, § 17.20.010) (Ord. 352, passed - -1973)
§ 17.036.020 APPEALS; BY WHOM MADE.
Any person aggrieved by the action of an administrative official, advisory body or the Planning Commission, in the administration or enforcement ofthis title, may make verified application to the Town Clerk in the manner prescribed by the Town Council within ten days of any action that is appealed to the Town Council. (Prior Code, § 17.20.020) (Ord. 352, passed - -1973)
§ 17.036.030 APPEALS; STAY OF PROCEEDINGS.
Application shall stay all proceedings and furtherance the action appealed from unless the officer from whom the appeal is taken certifies that a stay would, in his or her opinion, cause imminent peril to life and property. (Prior Code, § 17.20.030) (Ord. 352, passed - -1973)
§ 17.036.040 APPEALS; NOTICE OF HEARING.
Notice of the time, place and purpose of the hearing shall be given in the same manner required for the hearing conducted by the body whose decision is the subject of the appeal. (Prior Code, § 17.20.040) (Ord. 352, passed - -1973; Am. Ord. 628, passed - -1994) § 17.036.050 APPEALS; SUBMISSION OF RECORD.
A full record, in writing, shall be submitted by the officer or body whose action is appealed, setting forth the reasons for action taken.
(Prior Code, § 17.20.050) (Ord. 352, passed - -1973)
§ 17.036.060 APPEALS; ACTION BY COUNCIL.
The Council may, within the terms of this title, affirm, reverse or modify the action appealed as it deems just and equitable and the Council may exercise all rights of any other officer or Planning Commission in acting upon the matter appealed. The Council may conduct a de novo hearing on the entire pending application and shall not be limited to a consideration of the grounds set forth in the appeal application. Except as otherwise provided by law, a tie-vote of the Town Council, which is not followed by a continuance of the matter for further consideration, shall be deemed a denial of the pending application. (Prior Code, § 17.20.060) (Ord. 352, passed - -1973; Am. Ord. 563, passed - -1987; Am. Ord. 650, passed - -1996) § 17.036.070 APPEALS; REVIEW OF COUNCIL ACTION BY COURTS.
Action of the Town Council may be reviewed by courts having jurisdiction. (Prior Code, § 17.20.070) (Ord. 352, passed - -1973)
§ 17.036.080 APPEALS; FILING FEES.
The filing fee for any planning action provided by ordinance, for which no fee is currently established, shall be paid according to a schedule adopted by resolution of the Town Council. (Prior Code, § 17.20.080) (Ord. 352, passed - -1973; Am. Ord. 443, passed - -1978) § 17.036.090 DIRECTED REFERRALS; PURPOSE.
(A) Sections 17.036.090 through 17.036.130 are established to permit the Town Council to assume jurisdiction on applications where action has been taken and is normally final at a lesser level of authority. (B) The sections are intended to be used as an additional safeguard to avoid results inconsistent with the purposes of Title 17.
(Prior Code, § 17.20.090) (Ord. 352, passed - -1973; Am. Ord. 513, passed - -1984; Am. Ord. 793, passed 6-3-2015) § 17.036.100 DIRECTED REFERRALS; PROCEDURE.
In exercising the authority granted by §§ 17.036.090 through 17.036.130, a written directive, signed by at least one Council member, must be submitted to the Town Manager. The form shall be prescribed by the Town Clerk. No fee shall be required.
(Prior Code, § 17.20.100) (Ord. 352, passed - -1973; Am. Ord. 513, passed - -1984; Am. Ord. 793, passed 6-3-2015) § 17.036.110 DIRECTED REFERRALS; TIME LIMIT.
Directed referral action must be exercised within the established time limits for appeals for a particular action or, in the case where no time limit for appeal is specified, within ten working days of the action being referred. (Prior Code, § 17.20.110) (Ord. 352, passed - -1973; Am. Ord. 513, passed - -1984) § 17.036.120 DIRECTED REFERRALS; BASIS.
In directing that an action be referred to the Town Council, there shall be a presumption applied that the reason for the directive is that the action has significant and material effects on the quality of life within the town. No inference of bias shall be presumed due to such a request for review being made by one or more Council members. (Prior Code, § 17.20.120) (Ord. 352, passed - -1973; Am. Ord. 513, passed - -1984; Am. Ord. 793, passed 6-3-2015) § 17.036.130 DIRECTED REFERRALS; ACTION BY COUNCIL.
(A) Any action brought before the Town Council by the directed referral process is before the Council in a state of full review. The Council may conduct a de novo hearing on the pending application. All alternatives available to the primary authority are also available to the Council such that approval, approval with conditions or denial action may be taken by the Council.
(B) Except as otherwise provided by law, a tie-vote of the Town Councilshall be deemed a denial of the pending application.
(Prior Code, § 17.20.130) (Ord. 352, passed - -1973; Am. Ord. 513, passed - -1984; Am. Ord. 650, passed - -1996; Am.
Ord. 793, passed 6-3-2015)
§ 17.036.140 DIRECTED REFERRAL TO TAKE PRECEDENCE OVER APPEAL.
Where an action is appealed and a directed review is called, the directed review procedure shall take precedence and the appeal shall be void; i.e., where a plan review action is appealed and a directed review is called the directed review shall be heard by the Town Council.
(Prior Code, § 17.20.140) (Ord. 352, passed - -1973; Am. Ord. 513, passed - -1984) EXHIBIT “J”
8/30/23, 5:02 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Erra… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02_Sec105 1/1 SECTION1.8.8
APPEALS BOARD
1.8.8.1General.
Every city, county, or city and county shall establish a process to hear and decide appeals of orders, decisions and determinations made by the enforcing agency relative to the application and interpretation of this code and other regulations governing construction, use, maintenance and change of occupancy. The governing body of any city, county, or city and county may establish a local appeals board and a housing appeals board to serve this purpose. Members of the appeals board(s) shall not be employees of the enforcing agency and shall be knowledgeable in the applicable building codes, regulations and ordinances as determined by the governing body of the city, county, or city and county.
Where no such appeals boards or agencies have been established, the governing body of the city, county, or city and county shall serve as the local appeals board or housing appeals board as specified in California Health and Safety Code Sections 17920.5 and 17920.6.
1.8.8.2Definitions.
The following terms shall for the purposes of this section have the meaning shown.
HOUSING APPEALS BOARD.
The board or agency of a city, county, or city and county which is authorized by the governing body of the city, county, or city and county to hear appeals regarding the requirements of the city, county, or city and county relating to the use, maintenance and change of occupancy of buildings and structures, including requirements governing alteration, additions, repair, demolition and moving. In any area in which there is no such board or agency, “Housing appeals board” means the local appeals board having jurisdiction over the area.
LOCAL APPEALS BOARD.
The board or agency of a city, county, or city and county which is authorized by the governing body of the city, county, or city and county to hear appeals regarding the building requirements of the city, county, or city and county. In any area in which there is no such board or agency, “Local appeals board” means the governing body of the city, county, or city and county having jurisdiction over the area.
1.8.8.3Appeals.
Except as otherwise provided in law, any person, firm or corporation adversely affected by a decision, order or determination by a city, county, or city and county relating to the application of building standards published in the California Building Standards Code, or any other applicable rule or regulation adopted by the Department of Housing and Community Development, or any lawfully enacted ordinance by a city, county, or city and county, may appeal the issue for resolution to the local appeals board or housing appeals board as appropriate.
The local appeals board shall hear appeals relating to new building construction and the housing appeals board shall hear appeals relating to existing buildings.
EXHIBIT “K”
8/30/23, 5:00 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Erra… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02_Sec113 1/1 SECTION113
MEANS OF APPEALS
[A]113.1General.
In order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals. 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.
[A]113.2Limitations on authority.
An application for appeal shall be based on a claim that the true intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply or an equivalent or better form of construction is proposed. The board shall not have authority to waive requirements of this code or interpret the administration of this code. [A]113.3Qualifications.
The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to building construction and are not employees of the jurisdiction. [A]113.4Administration.
The building official shall take immediate action in accordance with the decision of the board.
EXHIBIT “L”
8/30/23, 10:22 PM CHAPTER 1 SCOPE AND ADMINISTRATION, 2022 California Building Code, Title 24, Part 2 (Volumes 1 & 2) with Jan 2023 Err… https://codes.iccsafe.org/content/CABC2022P2/chapter-1-scope-and-administration#CABC2022P2_Ch01_SubCh02 1/1 [A]107.4Amended construction documents.
Work shall be installed in accordance with the approved construction documents, and any changes made during construction that are not in compliance with the approved construction documents shall be resubmitted for approval as an amended set of construction documents EXHIBIT “M”
A1
1 NORTH
NORTH
A1
3 D:\Friedman 79 Wood Lane Fairfax\CAD\A1 - Site Plan.dwg, 6/23/2022 9:13:23 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
S3.2 WEYERHAEUSER TYP. DETAILS S3.3 WEYERHAEUSER TYP. DETAILS S3.4 STRUCTURAL DETAILS Digitally signed by Betty Li Date: 2022.07.22 13:32:40 -07'00' X
X
X
X
GAS GAS GAS GAS GAS
W
NORTH
A1.1
1 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\A1.2A Conditions of Approval.dwg, 4/7/2022 3:44:53 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\A1.2A Conditions of Approval.dwg, 4/7/2022 3:44:44 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\RECORD OF SURVEY_1.dwg, 4/7/2022 3:44:40 PM FOR REFERENCE ONLY D:\Friedman 79 Wood Lane Fairfax\CAD\RECORD OF SURVEY_1.dwg, 4/7/2022 3:45:01 PM FOR REFERENCE ONLY
ALSO SEE ARCHITECTURAL SITE PLAN
DRAWING 1/A1 FOR RETAINING WALLDRAINAGE SWALE.
06-23-2022
FOR REFERENCE ONLY
FOR REFERENCE ONLY
FOR REFERENCE ONLY
A
B
CD
E
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4 D:\Friedman 79 Wood Lane Fairfax\CAD\A2 - Floor Plans.dwg, 6/23/2022 11:29:23 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
A
2 3
4 5
7 8
9 CD
E
6 X
10 11 12
Y
Z
X
10 11 12
Y
Z
NORTH
A2.2
2 A2.2
1 A2.2
3 NORTH
D:\Friedman 79 Wood Lane Fairfax\CAD\A2 - Floor Plans.dwg, 6/23/2022 11:26:08 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
A
2 3 7 9
E
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EXTERIOR LIGHTING SCHEDULE
Symbol Label MANUFACTURER/ MODEL LAMP TYPE Lum. Lumens Comments A JOHN TIMBERLAND "WESTLEY"
8-1/2" HIGH x 7-1/4" WIDE
3,000K, LED
13W
1150
B ELCO 6" RECESSED SOFFIT LIGHT
WALL MOUNTED EXTERIOR DOORS/
GARAGE
ALL EXTERIOR LIGHT FIXTURES SHALL BE DARK SKY COMPLIANT 3,000K, LED
10W
830
NORTH
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2 INTERIOR LIGHTING AS SELECTED
BY OWNER
D:\Friedman 79 Wood Lane Fairfax\CAD\A2 - Floor Plans.dwg, 6/23/2022 9:23:03 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
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3 D:\Friedman 79 Wood Lane Fairfax\CAD\A2 - Floor Plans.dwg, 6/23/2022 9:25:05 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
A3.1
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2 D:\Friedman 79 Wood Lane Fairfax\CAD\A3 - Elevations.dwg, 6/23/2022 9:32:34 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
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5 D:\Friedman 79 Wood Lane Fairfax\CAD\A3 - Elevations.dwg, 6/23/2022 9:36:13 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 5 A4.1
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A4.1
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5 D:\Friedman 79 Wood Lane Fairfax\CAD\A4.1 - Sections.dwg, 6/23/2022 9:39:56 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 4 A4.2
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9 D:\Friedman 79 Wood Lane Fairfax\CAD\A4.2 - Sections.dwg, 6/23/2022 9:41:03 AM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 1 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 5 9
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REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 1 7
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3 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 3 6
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REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 1 2
7 1
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REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 4 1
3&6
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4 1
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REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 4 6&8
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2 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 1 2
10 1
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2 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 11 8
1 4
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6 78
5 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 11 11
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REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
REVIEWED FOR CODE COMPLIANCE
BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
REVIEWED FOR CODE COMPLIANCE
BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY. 1 2
34 REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\T24.dwg, 3/22/2022 7:13:34 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\T24.dwg, 3/22/2022 7:14:06 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\T24.dwg, 3/22/2022 7:14:42 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\GB1 - CalGREEN.dwg, 4/7/2022 3:45:09 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
D:\Friedman 79 Wood Lane Fairfax\CAD\GB1 - CalGREEN.dwg, 4/7/2022 3:45:33 PM REVIEWED FOR CODE COMPLIANCE BY COASTLAND CIVIL ENGINEERING, INC. IN ACCORDANCE WITH CBC §107.3.1 AS AMENDED BY THE LOCAL AGENCY.
EXHIBIT “N”
§ 15.04.100 EXEMPTIONS.
(A) The provisions of this chapter shall not apply to:
(1) Buildings which are temporary (such as construction trailers). (2) Building area which is not or is not intended to be conditioned space. (3) Any requirements of this chapter which would impair the historic integrity of any building listed on a local, state or federal register of historic structures, as determined by the chief building official and as regulated by the California Historic Building Code (Title 24, Part 8). In making such a determination, the chief building official may require the submittal of an evaluation by an architectural historian or similar expert. (B) As outlined in the 2022 CALGreen code, section 4.106.4 and A5.106.5, applicants may be exempted from the electric vehicle changing requirements on a case-by-case basis where the local enforcing agency has determined EV charging and infrastructure are not feasible based upon one or more of the following conditions:
(1) Where there is no commercial power supply or the local utility is unable to supply adequate power. (2) Where there is evidence suitable to the local enforcing agency substantiating that additional local utility infrastructure design requirements, directly related to the implementation of section 4.106.4 and A5.106.5 may adversely impact the construction cost of the project.
(3) ADUs and JADUs without additional parking facilities. (4) Parking spaces accessible only by automated mechanical car parking systems are not required to comply with CALGreen Code section 4.106.4 and A5.106.5
(C) Hardship or infeasibility exemption. If an applicant for a covered project believes that circumstances exist that make it a hardship or infeasible to meet the requirements of this chapter, the applicant may request an exemption as set forth below.
In applying for an exemption, the burden is on the applicant to show hardship or infeasibility. (1) Application. Based on the following, the applicant shall identify in writing the specific requirements of the standards for compliance that the project is unable to achieve and the circumstances that make it a hardship or infeasible for the project to comply with this chapter. The applicant may not petition for relief from any requirement of the 2022 California Energy Code (Title 24, Part 6) and referenced standards, or the 2022 California Green Building Standards (Title 24, Part 11) of the California Building Standards Code. Circumstances that constitute hardship or infeasibility shall include one of the following:
(a) That the cost of achieving compliance is disproportionate to the overall cost of the project; (b) That strict compliance with these standards would create or maintain a hazardous condition(s) and present a life safety risk to the occupants;
(c) There is a conflict between the provisions of the applicable green building rating system and the California Building Standards Code, other state code provisions, other requirements of this title or conditions imposed on the project through a previously approved planning application;
(d) That compliance with certain requirements would impair the historic integrity of buildings listed on a local, state or federal list or register of historic structures as regulated by the California Historic Building Code (Title 24, Part 8). (2) Granting of exemption. If the chief building official determines that it is a hardship or infeasible for the applicant to fully meet the requirements of this chapter and that granting the requested exemption will not cause the building to fail to comply with the 2022 California Energy Code (Title 24, Part 6) and referenced standards, or the 2022 California Green Building Standards (Title 24, Part 11) of the California Building Standards Code, the chief building official shall determine the maximum feasible threshold of compliance reasonably achievable for the project. In making this determination, the chief building official shall consider whether alternate, practical means of achieving the objectives of this chapter can be satisfied, such as reducing comparable energy use at an off-site location within the county. If an exemption is granted, the applicant shall be required to comply with this chapter in all other respects and shall be required to achieve the threshold of compliance determined to be achievable by the chief building official. (3) Denial of exception. If the chief building official determines that it is reasonably possible for the applicant to fully meet the requirements of this chapter, the request shall be denied, and the applicant shall be notified of the decision in writing. The project and compliance documentation shall be modified to comply with the standards for compliance. (4) Appeal. Any aggrieved applicant or person may appeal the determination of the chief building official regarding the granting or denial of an exemption or compliance with any other provision of this chapter. An appeal of a determination of the chief building official shall be filed in writing and processed in accordance with the provisions of § 15.04.028 of this code. (Ord. 872, passed 12-7-2022)
38072.00006\41614397.1
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KRIEGER LLP
ATTORNEYS AT LAW
3390 UNIVERSITY AVENUE, 5TH FLOOR
RIVERSIDE, CALIFORNIA 92502
PROOF OF SERVICE
I, Mandy Villareal, declare:
I am a citizen of the United States and employed in Riverside County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502. On August 31, 2023, I served a copy of the within document(s):
RESPONDENT CITY OF FAIRFAX’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO
PETITIONER’S EX PARTE APPLICATION FOR
ALTERNATIVE WRIT AND STAY AND ORDER TO SHOW
CAUSE RE PEREMPTORY WRIT
by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m.
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, the United States mail at Riverside, California addressed as set forth below.
by placing the document(s) listed above in a sealed envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a agent for delivery.
by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below.
by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below.
Aaron P. Silberman
Richard M. Harris
ROGERS JOSEPH O’DONNELL
311 California Street
San Francisco, CA 94104
Phone: (415) 956-2828
Email: [email protected];
[email protected]; [email protected]
Attorneys for Petitioner
Jacob Friedman
I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 38072.00006\41614397.1 - 2 -
PROOF OF SERVICE
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BEST BEST
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KRIEGER LLP
ATTORNEYS AT LAW
3390 UNIVERSITY AVENUE, 5TH FLOOR
RIVERSIDE, CALIFORNIA 92502
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed on August 31, 2023, at Riverside, California.
Mandy Villareal