Fremont City Council Meeting: 09/17/24 07:00 PM
3300 Capitol Avenue Div/Dept: Community Development
Fremont, CA 94538 Category: Code Adoptions & Amendments
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 5247) DOC ID: 5247
Updated: 9/12/2024 10:11 AM by Dina Lewis Page 1
BUILDING APPEALS BOARD ORDINANCE AND AMENDMENT TO MASTER FEE SCHEDULE – Public Hearing (Published Notice) to consider Introduction of an Urgency Ordinance Amending Fremont Municipal Code Title 15 and Title 2 to Create a Building Appeals Board and an Amendment to Master Fee Resolution 8672 (Master Fee Schedule) to Create a Fee for Appeals to the Building Appeals Board and to Consider a Finding that the Ordinance is Exempt from the Requirements of the California Environmental Quality Act (CEQA) per, Each as a Separate and Independent Basis, CEQA Guidelines Section 15061(b)(3), 15378(b)(2) and 15378(b)(5).
Contact Persons:
Name: David Wage Mike Wayne
Title: Code Enforcement Manager/Senior
Planner
Building Official
Div/Dept: Community Development Community Development
Phone: 510-494-4447 510-494-4487
E-Mail: [email protected] [email protected]
Executive Summary: Section 1.8.8 of the 2022 California Building Code and California Health and Safety Code Sections 17920.5 and 17920.6 allow for the creation of a local building appeals board. The proposed ordinance would create a three-member Building Appeals Board to hear and decide appeals of orders, decisions, and determinations by the Building Official and Fire Chief/Fire Marshall. Staff recommends amending Title 15 (Buildings and Construction) and Title 2 (Administration and Finance) to adopt an Ordinance to create a Building Appeals Board to hear appeals related to the Building and Fire Codes. The ordinance would also establish the Planning Commission as the hearing body for post entitlement appeals pursuant to the Housing Accountability Act. To recover City costs associated with appeals of Building and Fire Codes to the Building Appeals Board , staff is proposing adoption of a new fee of $2,101.
BACKGROUND: Appeals of orders, decisions and determinations made by the Building Official and Fire Marshall were historically heard by a sole administrative hearing officer appointed by the City Manager and assigned by the City Clerk. In the past five years, the City received less than 15 appeals related to enforcement of the Building and Fire Codes.
As part of the decision in the case Temple of 1001 Buddhas v. City of Fremont, the California Court of Appeals, First Division found that the City’s existing appeals process did not meet the requirements of Section 1.8.8 of the California Building Code, which calls for appeals to be heard by a board rather than a sole hearing officer. As a result of this decision, staff is proposing to create a Building Appeals Board.
DISCUSSION/ANALYSIS: Staff is recommending the creation of a three-member Building Appeals Board that would be responsible for hearing and deciding appeals of orders, decisions, and determinations made by the Building Official and Fire Chief/Fire Marshall. The proposed ordinance specifies the creation, composition, staffing, powers and duties, Council Staff Report (ID # 5247) Meeting of September 17, 2024 Updated: 9/12/2024 10:11 AM by Dina Lewis Page 2
procedures for appeals and how appeals are heard. The following is a summary of the some of the key provisions in the draft ordinance:
• Members would be nominated by the Mayor and appointed by the City Council. • Members would be required to have knowledge of State and local Building and Fire Codes.
• Members are not required to be Fremont residents and would serve without compensation.
• The Building Official or designee would serve as secretary to the Board but would not be able to vote on matters before the Board.
The draft ordinance also includes an update to Fremont Municipal Code Section 15.05.070 to reflect an amendment to the Housing Accountability Act (AB 2234) Government Code section 65913.3, which establishes mandatory timeframes for issuance of post entitlement permits such as building permits. Cities are required to identify completeness issues and a list of items that are noncompliant and how they can be remedied within 30 or 60 days depending on the number of residential units in a project. The law allows permit applicants to appeal an agency’s determination of incompleteness, non-compliance or denial of post entitlement permits. The draft ordinance would designate the Planning Commission as the hearing body for post-entitlement appeals, as required under state law.
FISCAL IMPACT: An appeal fee of $2,101 was previously established for appeals related to post-entitlement permits processed pursuant to the Housing Accountability Act (AB 2234).
Staff is proposing adoption of a new fee of $2,101 associated with appeals of Building and Fire Codes to the Building Appeals Board. Adopting the fees as proposed would ensure that the cost to process appeals is recovered, thereby ensuring that the General Fund does not subsidize services related to private development.
ENVIRONMENTAL REVIEW: The proposed text amendment is exempt from the requirements of the California Environmental Quality Act (CEQA) because, without limitation, it is not a “project” as defined in CEQA Guidelines Section 15378(b)(2) and/or 15378(b)(5) as it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment per CEQA Guidelines Section 15601(b)(3), each as a separate and independent basis for CEQA compliance.
ATTACHMENTS:
• Exhibit A Draft Ordinance Building Appeals Board Urgency Version • Exhibit B Draft Ordinance Building Appeals Board Regular Version • Exhibit C Draft Reso- Building Appeals Board
RECOMMENDATIONS:
1. Adopt the urgency ordinance, attached as Exhibit A, by a four-fifths vote of the City Council, amending Title 15 and Title 2 of the Fremont Municipal Code.
2. Waive the first reading and introduce the regular ordinance, attached as Exhibit B, amending Title 15 and Title 2 to the Fremont Municipal Code.
3. Adopt a resolution, attached as Exhibit C, approving an amendment to Master Fee Resolution 8672 (Master Fee Schedule).
Council Staff Report (ID # 5247) Meeting of September 17, 2024 Updated: 9/12/2024 10:11 AM by Dina Lewis Page 3
4. Find that ordinance is exempt from and not subject to review under the California Environmental Quality Act (CEQA) because, without limitation, it is not a “project” as defined in CEQA Guidelines Section 15378(b)(2) and/or 15378(b)(5) as it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment per CEQA Guidelines Section 15601(b)(3), each as a separate and independent basis for CEQA compliance.