Ordinance No. XX- 2024 Page 1 of 7
EXHIBIT A
ORDINANCE NO. XX-2024
AN URGENCY ORDINANCE OF THE CITY OF FREMONT
AMENDING FREMONT MUNICIPAL CODE TITLE 15 AND
TITLE 2 TO CREATE A BUILDING APPEALS BOARD
THE CITY COUNCIL OF THE CITY OF FREMONT DOES ORDAIN AS FOLLOWS:
SECTION 1. URGENCY FINDINGS
The City Council makes the following urgency findings:
A. The California Building Standards Commission adopts a complete set of new building codes in three-year cycles based on the latest international and national model building codes and these regulations are referred to as the California Building Standards Code codified in California Code of Regulations, Title 24.
B. The California Building Standards Code, including the California Building Code, contains general building design and construction requirements relating to fire and life safety, structural safety, and access compliance.
C. In 2022, the City of Fremont (“City”) adopted, and has in effect, the 2022 California Building Standards Codes with certain administrative and technical amendments based on Fremont’s local conditions.
D. The City also adopted a Neighborhood Preservation Ordinance (“NPO”), codified in Chapter 8.60 of the Fremont Municipal Code that establishes a nuisance abatement program to advance the comfortable enjoyment of life and property of the residents of Fremont.
E. The NPO requires that the owners of property within the city sustain property maintenance best practices to protect the livability, appearance, property values and economic stability of the city and protect the public from health and safety hazards that result from the neglect and deterioration of property.
F. The NPO makes it unlawful for any property owner to maintain or to allow his/her property to be maintained in a condition that is detrimental to public health, safety, or general welfare or in a condition which violates any code or ordinance adopted by the City including the requirements of the California Building Standards Code.
G. The NPO provides that where the City determines that a property is maintained as a nuisance, the City shall provide the property owner an opportunity to take corrective action or appeal the determination of nuisance disputing the factual or legal basis of the nuisance.
Ordinance No. XX- 2024 Page 2 of 7 H. The NPO provides that an appeal of the specific abatement of nuisance determination takes place before a sole hearing officer designated by the city manager.
I. The City’s appeals procedure, setting appeals before a sole hearing officer, was challenged in the matter Temple of 1001 Buddhas v. City of Fremont, Court of Appeals, First Appellate District, Case No. A167719, on the grounds that the procedure was preempted by section 1.8.8 of the California Building Code.
J. In Temple, the First District Court of Appeals affirmed the City’s finding that the property owner violated Fremont’s Zoning Code set forth at FMC Title 18 and violations of the International Property Maintenance Code at Chapter 15.45 of FMC Title.
K. The First District Court of Appeals also determined that section 1.8.8 of the California Building Code preempts the City’s appeals process for enforcement determinations based on violations of Fremont’s Building Standards Code and requires such appeals to be held before a board authorized to hear such appeals.
L. Consequently, the City must establish a local building appeals board, by amending its municipal code, to meet the requirements of section 1.8.8 of the California Building Code and the decision of the First District Court of Appeals.
M. The City, pursuant to California Constitution Article XI, Section 7, has the authority to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.
N. The City, pursuant to California Government Code sections 36934 and 36937, is authorized to adopt an urgency ordinance for the immediate preservation of the public peace, health, or safety.
O. The lack of a local appeals board is preventing the City from enforcing local law, either by confirming the existing of a violation(s) of the California Building Code and obtaining compliance by Fremont property owners that are found to be in violation of the California Building Code, or by determining that no such violation exists.
P. Without a local building appeals board, the City is unable to schedule or hear appeals of determinations of building code violations by Fremont property owners.
Q. The establishment of a local appeals board is necessary for the immediate preservation of the public peace, health, or safety and without this action the City cannot enforce the California Building Code, including matters related to general building design, construction requirements relating to fire and life safety, structural safety, and access compliance.
R. This ordinance is necessary for the immediate preservation of the public peace, health or safety, and shall be effective upon adoption by a four-fifths vote of the City Council.
Ordinance No. XX- 2024 Page 3 of 7 SECTION 2. FMC § 2.20.030 AMENDED
Fremont Municipal Code Title 2, Chapter 2.20, Section 2.20.030 is amended to read as follows:
Sec. 2.20.030 Regulations for subject bodies.
{Subsection (a) remains unchanged}
(b) No person shall be eligible to be or to continue to be a member of a subject body unless he or she is a resident of the city, unless stated otherwise in this chapter.
{Subsections (c) through (q) remain unchanged}
SECTION 3. FMC CHAPTER 2.20, ARTICLE XVII ADDED
Fremont Municipal Code Title 2, Chapter 2.20, Article XVII is added to read as follows:
Article XVII. Building Appeals Board
Sec. 2.20.730 Creation and membership.
Sec. 2.20.740 Qualifications.
Sec. 2.20.750 Powers and duties.
Sec. 2.20.760 Limitations.
Sec. 2.20.770 Meetings.
Sec. 2.20.780 Appeal procedures.
Sec. 2.20.790 Waiver.
Sec. 2.20.800 Conduct of the appeal hearing.
Sec. 2.20.810 Statement of decision.
Sec. 2.20.820 Appeal of the statement of decision.
Sec. 2.20.730 Creation and membership.
(a) The building appeals board is established and shall consist of three members appointed by the mayor with the approval of the city council.
(b) Members of the building appeals board need not be Fremont residents and shall serve without compensation.
(c) The building official or his or her designee shall act as secretary to the board. When an appeal is heard regarding only chapter 15.35, the fire chief or his or her designee shall be the secretary. The secretary shall have no vote and shall not be deemed to be a member of the board.
Sec. 2.20.740 Qualifications.
Members of the board shall be persons who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the city of Fremont.
The city council shall endeavor to appoint persons who are knowledgeable in the construction or Ordinance No. XX- 2024 Page 4 of 7 design of buildings and who are familiar with the content and application of the building standards codes. A member may not have any interest in the property which is the subject of the appeal to the board.
Sec. 2.20.750 Powers and duties.
It shall be the function of the building appeals board to hear and decide appeals from orders, decisions or determinations made by the building official, or his or her designee, regarding the application and interpretation of housing laws set forth in California health and safety code, the Fremont municipal code title 15, except for chapter 15.45, and all decisions by the fire chief and/or fire marshal, or their designee, regarding the application and interpretation of the Fremont fire code, chapter 15.35 of this code.
Sec. 2.20.760 Limitations.
The Board shall have no authority to waive requirements of the Fremont Municipal Code.
Sec. 2.20.770 Meetings.
The Board shall meet only as needed when an appeal is filed pursuant to this article.
Sec. 2.20.780 Appeal procedures.
(a) An applicant for a postentitlement phase permit (as defined in health and safety code section 65913.3) may appeal a decision determining the permit to be incomplete, non- compliant or denied to the building appeals board. Any person, firm, or corporation adversely affected by an orders, decisions, and determinations made by the building official, the fire chief or fire marshal, or their designees in interpreting, administering or enforcing any provision of title 15, except for chapter 15.45, or any rule or regulation adopted by the department of housing and community development, may appeal the order, decision, and/or determination to the building appeals board.
(b) An application for appeal shall be in writing, state the grounds for the appeal, and be accompanied by a fee in the amount set by resolution of the city council. 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 equally good or better form of construction is proposed. Only matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.
(c) The application for appeal shall be filed with the chief building official no later than ten days after receipt of written notice of the determination. Failure to timely request an appeal constitutes a waiver of the right to a hearing before the building appeals board and a failure to exhaust administrative remedies.
Ordinance No. XX- 2024 Page 5 of 7 (d) Within 30 days of receiving an appeal, the chief building official shall schedule a hearing before the building appeals board. Appellant shall be given at least ten days written notice of the date and time of the hearing. Notice of the hearing shall be served personally or by first-class mail addressed to the appellant at the address shown on the appeal and shall be deemed complete at the time notice is personally served or deposited in the mail.
Sec. 2.20.790 Waiver.
Failure of the appellant to appear at the hearing after notice has been provided as stated in this article, shall be deemed a waiver of the hearing and an admission that the determination being appealed is correct. In the event of such failure to appear, the city may move forward with enforcement of the determination.
Sec. 2.20.800 Conduct of the appeal hearing.
(a) The board shall exercise its powers in such a manner that substantial justice is done most nearly in accord with the intent of and purpose of this code. (b) Hearings shall be open to the public, recording minutes of its proceedings, and providing copies of the minutes for inspection as a public record. (c) At the hearing, the parties shall be given an opportunity to be heard and have the right to call and examine witnesses on any matter relevant to the issues of the hearing, to introduce documentary and physical evidence, to cross-examine witnesses on any matter relevant to the issues of the hearing, and to be represented by any person who is lawfully permitted to so represent.
(d) Any relevant evidence shall be admitted if it is of the type of evidence that responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the formal rules of evidence. Oral evidence shall be taken only on oath or affirmation. Irrelevant and unduly repetitious evidence shall be excluded.
(e) The hearing may be continued if necessary.
Sec. 2.20.810 Statement of decision.
(a) The decision of the board shall be determined by the majority of the board. The board shall affirm, modify or set aside the determination that is appealed and shall prepare a written statement of decision. The statement of decision shall be based on the evidence received, shall be final and conclusive and shall contain a statement of decision relevant to the issues. The statement of decision shall set forth the time within which the parties shall carry out their obligations if applicable.
(b) The statement of decision shall be completed and mailed to the parties no later than 30 calendar days after close of the hearing and shall notify the appellant that superior court review shall be commenced no later than 90 calendar days after the board mails the statement of decision first class, postage prepaid, with a proof of service to the parties.
Ordinance No. XX- 2024 Page 6 of 7 (c) The statement of decision shall be served in the same manner as the notice for the hearing. The secretary shall provide a copy of the report to the administrative office whose determination was appealed and shall maintain a copy in the board’s records. (d) The secretary shall compile the full record of the hearing under this article, including all exhibits and documents offered as evidence, whether or not admitted, and an audio recording of the proceeding.
Sec. 2.20.820 Appeal of the statement of decision.
Any appeal of the board’s statement of decision must be filed with a court of competent jurisdiction pursuant to California code of civil procedure sections 1094.5 and 1094.6 within 90 calendar days of the service of the decision, otherwise all objections will have been waived. The filing of such appeal within such time limit shall stay the effective date of the decision of the board.
SECTION 4. FMC § 15.05.070 REPEAL AND REPLACE
Fremont Municipal Code Title 15, Chapter 15.05, Section 15.05.070 is repealed and replaced to read as follows:
Sec. 15.05.070 Appeals.
(a) Where the provisions of this title allow for a board of appeals, the board shall be the building appeals board created in chapter 2.20, article XVII. (b) Pursuant to government code section 65913.3, an applicant for a post-entitlement permit under title 15 may appeal the determination that a post-entitlement permit is incomplete, denied or determined to be noncompliant only to the planning commission pursuant to chapter 18.300 as that chapter relates to the planning commission.
SECTION 5. CEQA
The City Council determines that this 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.
SECTION 6. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Urgency Ordinance. The City Council of the City of Fremont hereby declares that it would have passed this Urgency Ordinance and each section or subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.
Ordinance No. XX- 2024 Page 7 of 7 SECTION 7. EFFECTIVE DATE
This Urgency Ordinance shall take effect immediately upon adoption by a four-fifths vote of the City Council.
SECTION 8. PUBLICATION AND POSTING
This Urgency Ordinance shall be published and posted as may be required by law. * * *
The foregoing Urgency Ordinance was adopted at a regular meeting of the City Council held on the ____ day of _______, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________
Mayor
ATTEST:
__________________________________
City Clerk
APPROVED AS TO FORM:
_________________________________
City Attorney