DATE: September 2, 2025
TO: Mayor and Members of the City Council
VIA: Stefan Chatwin, City Manager
Marlene Subhashini, Assistant City Manager
FROM: Sofia Mangalam, Community Development Director
Chuck Venook, Chief Building Official
DEPARTMENT: Community Development
SUBJECT: FOSTER CITY MUNICIPAL CODE AMENDMENTS TO TITLE 2, “ADMINISTRATION AND PERSONNEL”; TITLE 15, “BUILDING
AND CONSTRUCTION”; AND APPROVING A RESOLUTION
ADOPTING A NEW FEE FOR APPEALS TO THE BOARD OF
APPEALS
RECOMMENDATION
It is recommended that the City Council take the following actions:
1. Introduce and pass to second reading the Ordinance (Attachment 1) amending Section 2.28.090 within Chapter 2.28, “Planning,” of Title 2, “Administration and Personnel” of the Foster City Municipal Code (FCMC) to add duties of Board of Appeals to the Planning Commission and finding the amendments exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3);
2. Introduce the Ordinance (Attachment 2) repealing and replacing FCMC sections:
15.02.120, “Means of Appeals” adopting by reference and amending Section 113 of the California Building Code; 15.04.110, “Board of appeals” adopting by reference and amending Section R112 of the California Residential Code;
15.06.080, “Means of Appeals” adopting by reference and amending Section 112 of the California Existing Building Code; 15.08.080, “Board of Appeals” adopting by reference and amending Section 107.0 of the California Mechanical Code;
15.16.070, “Board of Appeals” adopting by reference and amending Section 107.0
of the California Plumbing Code; and adding a new FCMC Section 15.20.190, “Board of Appeals” within Title 15, “Building and Construction” of the Foster City Municipal Code adopting by reference and amending Section 89.108.8 of the California Electrical Code to designate the Planning Commission as the Board of Appeals to hear and decide appeals of decisions made by the Building Official and finding the finding the amendments exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3); and it is further recommended that the required public hearing be scheduled and noticed for September 15, 2025, and that the following said public hearing, the Ordinance be adopted; and
3. Adopt a resolution establishing a new fee for appeals to be heard by the Board of Appeals and finding the action exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3).
EXECUTIVE SUMMARY
The California Building Standards Law (Health & Safety Code §§ 18901-18949.31) creates a process for adopting statewide building standards, which are codified in Title 24 of the California Code of Regulations as the California Building Standards Code. The California Building Standards Commission is required to publish an edition of the California Building Standards Code every three years. (Health & Safety Code § 18942, subd. (a).) Local governments are allowed to amend the building standards and regulations under Health & Safety Code Section 17922; however, the changes must be reasonably necessary because of local climatic, geological, or topographical conditions, and specific findings need to be made and filed with the California Building Standards Commission. (See Health & Safety Code §§17958, 17958.5, 17958.7).
California Building Code (CBC) Section 1.8.8, within Part 1, Ch. 1 of Title 24 of the California Code of Regulations mandates that 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 the CBC and other regulations governing construction, use, maintenance, and change of occupancy. It requires local jurisdictions to establish a process to hear and decide appeals of orders, decisions, and determinations made by the enforcing agency relating to the application and interpretation of the CBC and other regulations governing construction, use, maintenance, and change of occupancy. It further notes that 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.
Additionally, 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 §§ 17920.5 and 17920.6.
The requirements for a Board of Appeals can be found across different sections of the Building Standards Code, including the CBC, Residential Code, Existing Building Code, Mechanical Code, Plumbing Code, and Electrical Code. These codes all outline the process for appealing decisions made by Building Officials related to the interpretation and application of the various building standards (see Attachment 3). The Board of Appeals cannot be a single hearing officer and must be a city council or an appeals board.
Foster City established a Board of Appeals in 2022, via Ordinance No. 655, in the adopted amendments to the CBC (FCMC Section 5.02.120), California Residential Code (FCMC Section 15.04.110), California Existing Building Code (FCMC Section 15.06.080), California Mechanical Code (FCMC Section 15.08.080), and California Plumbing Code (FCMC Section 15.16.070) within Title 15. Despite efforts to recruit for the seats on the five-member Board in 2024, those efforts did not yield any applications.
In order to comply with CBC requirements, staff is recommending that the Planning Commission act as the Board of Appeals to hear and decide appeals of decisions made by the Building Official. This will require revisions to Section 2.28.090 within FCMC Chapter 2.28, to revise the powers and duties of the Planning Commission (Attachment 1) and revisions to Sections 15.02.120, 15.04.110, 15.06.080, 15.08.080, and 15.16.070, and add a new Section 15.20.190 within Title 15 of FCMC (Attachment 2). Additionally, adding a new appeal fee to cover the costs of an appeal to the Board of Appeals is recommended to be adopted (Attachment 3).
The ordinance (Attachment 2) adopting by reference specific sections of the CBC, Residential Code, Existing Building Code, Mechanical Code, Plumbing Code and Electrical Code and making certain amendments in FCMC Title 15, Building and Construction, is to be introduced by the City Council on September 2, 2025, and the Public Hearing is to be held on September 15, 2022. At the conclusion of this public hearing, it is recommended that the ordinance be adopted. The proposed Ordinance also makes findings to support the amendments to the California Codes based on local climatic, geological, or topographical conditions.
BACKGROUND
FCMC Title 15 pertains to Building and Construction. It encompasses regulations related to building codes, residential codes, existing building codes, mechanical codes, plumbing codes, electrical codes, fire codes, and other related aspects of construction within the city.
The CBC requires local jurisdictions to establish a Board of Appeals to hear and decide appeals of orders, decisions, and determinations made by the Building Official. FCMC Title 15 includes language pertaining to ‘Board of Appeals’ in various sections, including
15.02.120, 15.04.110, 15.06.080, 15.08.080, and 15.16.070 as follows:
In order to provide for a final determination for the suitability of alternate materials, methods of construction, and reasonable interpretation of the provisions of this code, in the event of disagreement with the determination of the Building Official, there shall be and is hereby created a Board of Appeals, consisting of five members experienced in building construction. The Building Official shall act as Secretary of the Board. The Board of Appeals shall be appointed by the City Council and shall hold office at its pleasure. The Board shall adopt reasonable rules and regulations for conducting its investigations and shall consider all evidence or proof submitted and conduct, or cause to be conducted, any investigations or tests it deems necessary and shall render all decisions and findings in writing to the Building Official with a duplicate copy to the appellant and may recommend to the City Council such new legislation as is consistent therewith.
In 2024, the City Clerk's office began recruiting to establish the Board of Appeals, but only received one application during a five-week recruitment.
Given that the Board of Appeals serves an important function in hearing appeals, staff considered other options to recruit new members to the Board of Appeals, including designating the Planning Commission as the Board of Appeals.
In considering this option, staff noted that, according to Title 15, the Planning Commission is already designated for certain aspects of building construction as the appeal body, as follows:
Table 1: Appeal Body in FCMC Title 15
Chapter Section Appeal Body
Chapter 15.45 Small Residential Rooftop
Solar Systems
15.45.060 Planning Commission
Chapter 15.46 Electric Vehicle Charging
Stations
15.46.060 Planning Commission
Thus, staff is recommending that the Planning Commission also act as the Board of Appeals to hear and decide appeals of decisions made by the Building Official. If designated as the Board of Appeals, the Planning Commission would need to receive training in construction techniques, applicable building codes, regulations, and ordinances.
ANALYSIS
Staff is proposing amendments to Titles 2 and 15 of FCMC to comply with the CBC and recommending adding a new appeal fee to cover the costs of an appeal to the Board of Appeals.
1. An Ordinance (Attachment 1) amending Section 2.28.090 within Chapter 2.28, “Planning,” of Title 2, “Administration and Personnel” of FCMC as follows:
2.28.090 Powers and duties.
The planning commission shall have all powers and duties imposed upon a planning commission and zoning agency by the Planning and Zoning Law of the state, subject to the provisions of this code and shall act as the advisory agency pursuant to the Subdivision Map Act of the state, subject to the provisions of this code. The Planning Commission shall also act as the Board of Appeals pursuant to Sections 15.02.120, 15.04.110, 15.06.080, 15.08.080, 15.16.070, and
15.20.190, as may be amended, and any other section of the Foster City Municipal Code, except Section 15.24.140, wherein a right of appeal to the Board of Appeals is provided. The Board of Appeals shall make a final determination on the suitability of alternate materials, methods of construction, and reasonable interpretation of applicable sections of Title 15 of the Foster City Municipal Code, in the event of disagreement with the determination of the Building Official.
2. An Ordinance (Attachment 2) proposing amendments to FCMC Sections
15.02.120, 15.04.110, 15.06.080, 15.08.080, and 15.16.070, and adding a new Section 15.20.190 within Title 15, “Building and Construction” of FCMC to designate the Planning Commission as the Board of Appeals to hear and decide appeals of decisions made by the Building Official. These revisions would adopt, by reference, specific sections within the 2025 Building Code, Residential Code, Existing Building Code, Mechanical Code, Plumbing Code and Electrical Code relating to appeals and make amendments to those sections. The revisions would generally add the following paragraphs to the sections:
In order to hear and decide appeals of orders, decisions or determinations made by the Building Official relating to application, and reasonable interpretation of the provisions of this code, in the event of disagreement with the determination of the Building Official, there shall be and is hereby created a Board of Appeals, consisting of five members experienced in building construction. The Building Official shall act as Secretary of the Board. The City of Foster City Planning Commission shall convene as the Board of Appeals. The Board of Appeals shall adopt reasonable rules and regulations for conducting its investigations and shall consider all evidence or proof submitted and conduct, or cause to be conducted, any investigations or tests it deems necessary and shall render all decisions and findings in writing to the Building Official with a duplicate copy to the appellant and may recommend to the City Council such new legislation as is consistent therewith.
An application for an 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 equally good or better form of construction is proposed. The board shall not have authority to waive requirements of this code.
Pursuant to Government Code Section 50022.3, when an ordinance adopts another code by reference, the City Council must specify the public hearing date for the adoption of the ordinance. Since the City is adopting by reference certain sections of the CBC, Residential Code, Existing Building Code, Mechanical Code, Plumbing Code, and Electrical Code, the City must follow the process specified in Government Code section 50022.3, including publishing notice of the hearing for the second reading of the ordinance in accordance with Government Code Section 6066 (Published once a week for two consecutive weeks, at least five days apart).
Staff is recommending that the required public hearing be scheduled and noticed for September 15, 2025.
It is important to note that the proposed Ordinance does not include amendments to the California Fire Code, which are found in FCMC Chapter 15.24. Those appeals are heard by the Board of Directors for the San Mateo Consolidated Fire Department (See FCMC Section 15.24.140).
As noted above, the Planning Commission would need to receive training in construction techniques, applicable building codes, regulations, and ordinances to be able to hear the appeals. The Building Official will play a crucial role in providing this training, which may include, but is not limited to, the following:
a) Provide an overview of the purpose, authority, and limits of the appeal boards under CBC.
b) Explain the appeal process, timelines, and required procedures. c) Provide training on key sections of the adopted building codes, especially areas where appeals are common, including structural design, egress accessibility, etc.
d) Present/discuss case studies or past appeals.
e) Encourage members to attend International Code Council (ICC) Seminars or webinars.
3. Fees for appeals to the Board of Appeals
User fees recover costs associated with the provision of specific services benefiting the user, thereby reducing the use of General Fund monies for such purposes. In addition to collecting the direct cost of labor and materials associated with processing and administering user services, it is common for local governments to recover support costs.
There will be some staff time involved with the processing of the appeals discussed above. The following are examples of Appeals application fees charged by a few cities:
•County of San Mateo - $620 ( link to fee schedule, page 3 of 6) •City of Concord - $4,000 ( link to fee schedule, page 8 of 11) •City of Fremont - $770 fee ( link)
Staff recommends adding a new line item, CDB-18, to the Master Fee Schedule under Community Development for “Appeals,” subject to Actual Cost, with a minimum $1,000 deposit at the time of filing. Staff will draw against the funds deposited at the staff's hourly rates adopted by the City Council for the actual time spent on the presentation of the appeal to the Planning Commission. If there are funds remaining in the Deposit account upon the final decision on the appeal, the unspent funds will be refunded to the Appellant.
Table 2: Recommendation to add a new few for Appeals
Ref No. Revenue Title Fees FY 2025-26
CDB-18 (New) Appeals Actual Cost* with a minimum $1,000 Deposit at the time of filing
* "Actual Cost" is time and materials, including all direct and indirect overhead costs. "Actual Cost" is charged against the required deposit.
If adopted, the ordinance and the resolution would not take effect until January 1, 2026, consistent with the effective date of the 2025 California Building Standards.
California Environmental Quality Act
The adoption of the ordinances and fees are exempt from the California Environmental Quality Act (“CEQA”), in that the adoption of State codes and the local amendments and the adoption of the fees herein described do not have the potential for causing a significant effect on the environment, pursuant to Sections 15061(b) (3) and 15378(b) (5) of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of Regulations) as they are administrative in nature.
FISCAL IMPACT
There is no fiscal impact with the introduction and adoption of the ordinances (Attachments 1 and 2). The revenue received from the new fee would offset staff time spent on processing appeals that will be heard by the Board of Appeals.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
Smart Planning, Development, and the Local Economy
ATTACHMENTS:
Attachment 1 – Ordinance (Title 2)
Attachment 2 – Ordinance (Title 15)
Attachment 3 – Resolution (Fee)
Attachment 4 – Building Code references