Ordinance No. XX- 2024 Page 1 of 6
EXHIBIT B
ORDINANCE NO. XX-2024
AN 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. 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 2. 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.
Ordinance No. XX- 2024 Page 2 of 6 (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 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 Ordinance No. XX- 2024 Page 3 of 6 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.
(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 Ordinance No. XX- 2024 Page 4 of 6 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. (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 1. 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 4. 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.
Ordinance No. XX- 2024 Page 5 of 6 SECTION 5. 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 Ordinance. The City Council of the City of Fremont hereby declares that it would have passed this 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.
SECTION 6. EFFECTIVE DATE
This Ordinance shall take effect and will be enforced thirty (30) days after its adoption.
SECTION 7. PUBLICATION AND POSTING
The City Clerk has prepared and published at least five days before the date of adoption, this ordinance once in a newspaper of general circulation printed and published in Alameda County and circulated in the City of Fremont. A certified copy of the full text of the ordinance was posted in the office of the City Clerk since at least five days before this date of adoption. Within fifteen (15) days after adoption of this ordinance, the City Clerk shall cause the ordinance to be published again with the names of those City Council members voting for and against the ordinance; and the City Clerk shall post in the office of the City Clerk a certified copy of the full text of this adopted ordinance with the names of those City Council members voting for and against the ordinance.
* * *
The foregoing ordinance was introduced before the City Council of the City of Fremont at the regular meeting of the City Council, held on the ____ day of ______, and finally adopted at a regular meeting of the City Council held on the ____ day of _______, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________
Mayor
ATTEST: APPROVED AS TO FORM:
Ordinance No. XX- 2024 Page 6 of 6 __________________________________
City Clerk _________________________________
City Attorney