Title
Introduction of Ordinance Amending the Alameda Municipal Code by Amending Various Provisions, Including: (1) Section 2-17 of Chapter II (Administration); (2) Section 1-7 of Chapter I (General); (3) Section 2-44.1 of Chapter II; (4) Section 1-5 (Penalty Provisions; Enforcement) of Chapter I (General); (5) Section 30-23 (Certificate of Occupancy) of Chapter XXX (Development Regulations); and (6) Other Related Amendments Concerning Code Enforcement. (Community Development - Building 209)
Body
To: Honorable Mayor and Members of the City Council
From: Amy Wooldridge, Interim City Manager
EXECUTIVE SUMMARY
Staff is recommending that the City Council consider various changes to the Alameda Municipal Code (AMC) related to Building, Fire, and Code Enforcement. The proposed municipal code amendments relate to several areas, and may entail others if the Council so chooses.
First, in January 2018, the First Appellate District of the California Court of Appeals ruled that cities must provide a local appeals board, not a single hearing officer, to hear and decide appeals of orders, decisions, and determinations made by the Building Official regarding the application and interpretation of the California Building Code. Accordingly, in an abundance of caution only, staff is proposing a change to the makeup of the appeals board charged with hearing appeals related to building code and other violations to a 3-member commission comprised of the three (3) Historical Advisory Board (HAB) members who are qualified by experience and training to consider matters pertaining to building construction and other areas.
Second, for all municipal code violations, staff is proposing amendments to Section 1-7 of the AMC related to the hearing process for the appeal of administrative citations.
Third, the AMC currently provides for the appointment of a Chief Building Inspector to enforce all building laws and ordinances in the City of Alameda (City). The term “Chief Building Inspector” is no longer used in the California Building Code and has been replaced with “Building Official.”
Fourth, staff is recommending conforming changes to Section 1-5 of the AMC to account for changes in State law, including increasing fine amounts for certain infractions, establishing fines for commercial properties under certain circumstances, and adding provisions governing applications for hardship waivers for criminal violations of certain local codes.
Fifth, staff is recommending a purely administrative amendment to the Building Code, at section 30-23.2 of the AMC, to clarify the City’s interpretation that a new certificate of occupancy is required before any new commercial tenant moves in.
Sixth, and final, staff is recommending that certain members of the City’s Fire Preventive Services Division be added to the list of City personnel authorized to issue administrative citations.
BACKGROUND
Housing and Building Code Hearing and Appeals Commission
AMC Section 2-17 provides for the City Council-appointed Housing and Building Code Hearing and Appeals Commission (HBCHAC), consisting of five (5) members, to hear and decide appeals of orders, decisions, and determinations made by the Building Official. Over the past 17 years, the request for an appeal of an order, decision or determination of the Building Official has averaged two to three per year.
Appeals of Administrative Citations for General Municipal Code Violations
Chapter I of the AMC governs general matters, including the use of hearing officers to consider appeals of general municipal code violations (all violations except traffic and certain other violations). Staff’s proposed amendments would govern administrative citations that would impact all municipal code violations, except those related to building, fire, and traffic violations.
Building Official
AMC Section 2-44.1 refers to the position responsible for the enforcement of all building laws and regulations as the “Chief Building Inspector.” This term is antiquated and is no longer in use by the California Building Code. The term “Building Official” has replaced “Chief Building Inspector” as the position designated in the California Building Code as the position responsible for enforcement of the California Building Code.
State Law Changes
In 2018, the Legislature adopted two bills that staff seeks to address in this municipal code update. First, the Legislature amended provisions related to municipal code violations providing for the immediate imposition of administrative fines and penalties for illegal cannabis cultivation. Second, the Legislature added tools for cities to enforce against building and safety code violations, including increasing fines for infractions, adding a fine category for commercial properties related to visible refuse and unauthorized use of such property, and requiring local guidelines for a hardship waiver of certain fines.
Certificates of Occupancy
Currently, the AMC requires a certificate of occupancy prior to the use or occupation of any building or structure. AMC, section 30-23 (Certificate of Occupancy). Staff is recommending an administrative amendment, which would impact when a certificate of occupancy would be required.
Authorization of Code Enforcement Officers
Currently, several city personnel are classified to have authority under Penal Code section 836.5 to issue citations for violations of the AMC. Staff is proposing to add certain specific Fire Preventive Services Division personnel to that list.
DISCUSSION
Housing and Building Code Hearing and Appeals Commission
Prior to 2001, building, plumbing, electrical and mechanical permits were valid for 180 days. An extension of up to one year could be granted by the HBCHAC. Due to the frequent requests to extend permits, the HBCHAC met on a monthly basis. In 2001, the City Council amended the AMC to provide that all permits, except those issued as a result of work without permit, would be valid for three (3) years with no provision for extensions. As a result of this change, the need to hold meetings of the HBCHAC was reduced from monthly to an average of two (2) or three (3) per year. These infrequent meetings were held to hear appeals of Building Official decisions.
The infrequency of the meetings made it difficult to attract and retain members to serve on the HBCHAC. Additionally, the infrequency of the meetings paired with the requirement to hear appeals no sooner than 10 days nor more than 60 days from the date of the appeal made establishing a quorum difficult. Failure to meet the above deadline presented challenges for City staff. As an alternative, the City entered into a Joint Powers Agreement with several local jurisdictions to have one of these jurisdiction’s Building Official act as the Hearing Officer for another jurisdiction.
In January 2018, the California Court of Appeals ruled against the City of Oakland and required the city to provide an appeals board, rather than a single hearing officer, to hear appeals of the decisions of the Building Official. The Alameda City Attorney’s Office offers no opinion on the Lippman v. City of Oakland case to preserve the City’s legal right going forward. Rather, in an abundance of caution only, the Alameda City Attorney’s Office is recommending that the City Council adopt the ordinances set forth in this staff report to prevent a potential, but currently unknown legal challenge down the road.
The proposed ordinance amends the makeup of the HBCHAC from a 5-member standalone commission to a 3-member commission made up of HAB Members. Per Section 2-17.5(a), the Members of the HBCHAC are required to 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. Subsections a-c of AMC Section 2-11.5 provides that the HAB be composed of one registered architect, one registered landscape architect, architect or building designer, one state-licensed building contractor and two citizens at large, which would meet the expertise requirements of AMC Section 2-17.5 (knowledge of building construction). Thus, staff is recommending the designation of these HAB Members given their building and related expertise. They are not expected to draw on their experience as HAB Members generally, but only their expertise germane to building construction and related topics.
The HAB meets frequently enough to allow the City to meet the required timelines set forth to hear appeals. As required by the newly constituted body, the 3-member HBCHAC would convene appeal hearings immediately prior to scheduled HAB meetings, and could meet on a special-meeting basis to provide for greater flexibility. Once the HBCHAC meeting is adjourned and the appeals adjudicated, the HAB meeting would begin shortly thereafter.
Where recusal is required, due to conflicts of interest, the remaining members of the Commission may hear the matter, but unanimity would be required, where applicable. For example, if one member of the three-person Commission must recuse for conflict of interest issues, the remaining two-person body may adjudicate the appeal, but their vote must be unanimous to take action. To ensure proper training, in conflicts and other areas, once the HBCHAC members are designated, the City Attorney’s Office will schedule a time to provide them with legal training.
Appeals of Administrative Citations for General Municipal Violations
Staff is proposing amendments to Section 1-7 of Chapter I of the AMC, which governs general matters, including the use of hearing officers to consider appeals of general municipal code violations. These minor amendments will streamline those administrative proceedings and allow the hearing officer to have greater flexibility. Based on feedback received concerning how some of those administrative appeals were conducted, staff is recommending that certain minor changes be made so that the hearing officers in those administrative proceedings be afforded greater flexibility in conducting those administrative proceedings. For instance, the proposed amendments would emphasize the informality of such proceedings and would allow the hearing officer to consider a greater degree of evidence scaled to the level of formality those administrative proceedings entail. It would also reflect and codify the City’s current custom and practice concerning how these appeal hearings are actually conducted.
Building Official
AMC Section 2-44.1 refers to the position responsible for the enforcement of all building laws and regulations as the Chief Building Inspector. This term is antiquated and is no longer in use by the California Building Code. Building Official has replaced Chief Building Inspector as the position designated in the California Building Code as the position responsible for enforcement of the California Building Code.
State Law
Staff is recommending conforming amendments to the AMC related to changes in state law.
AB 2164 (Local Ordinances; Fines and Penalties; Cannabis)
AB 2164 allows a city or county by local ordinance to impose immediate administrative fines or penalties for violations of building, plumbing, electrical, or other similar health and safety, or zoning requirements if the violation exists as a result of, or to facilitate, the illegal cultivation of cannabis. Staff is recommending codifying the immediate imposition of administrative citations for illegal cannabis cultivation and the notice of violation procedure currently used by the City.
AB 2598 (Cities and Counties; Ordinances; Violations)
Currently, cities and counties may enforce violations of local building and safety codes criminally or civilly. If enforced criminally, then the city or county may style the action as one in the name of the People of the State of California. Fines may be assessed against those found in violation. AB 2598 increases those fine amounts for criminal violations of local building and safety codes (i.e., infractions). The bill also did the following:
• Added a new category of fine for up to $2,500, for each violation occurring within two years of the initial violation, for the failure of a commercial property owner with existing buildings to remove visible refuse or prohibit unauthorized use of the property; and
• Requires local agencies levying fines for second or third violations to establish a process for granting a hardship waiver based upon a showing by the responsible party of a bona fide effort to comply with the first violation and that payment of the full amount of the fine would result in a financial hardship.
Staff is recommending amending the AMC to set fine amounts that are aligned with State law, specifically providing for the $2,500 fine for violations related to visible refuse or an unauthorized use of the property, and including an internal reference stating that the hardship waiver provisions required by State law will follow the process set forth in Section 1-7.7 of Chapter 1 of the AMC.
Certificates of Occupancy
Currently, the AMC requires a new certificate of occupancy for “a new use, a change of land use, for a new building or for an existing building which has been altered or moved shall be made to the City Building Official before any such land or building is occupied or used.” AMC, section 30-23 (Certificate of Occupancy). It is the City’s custom and practice, based on the administrative interpretation of the Building Official, to interpret “new use” to include a newly occupied commercial property (e.g., when a commercial tenancy turns over). Staff is recommending making an administrative amendment (i.e., does not impact building standards; only relates to administrative procedures) to make this clear in AMC section 30-23, which would be declaratory of existing law.
Authorization of Code Enforcement Officers
Under AMC, Section 1-5.6 (Authorization of Code Enforcement Officers; Limitations), certain enumerated City personnel have authority under Penal Code section 836.5 to issue citations for violations of the AMC. For example, previously, this section was amended to add the “Public Works Director” to the list of individuals who may issue an administrative citation for a violation of the AMC.
The Fire Preventive Services Division regularly inspects properties for compliance with the Fire Code. Currently, although “Fire Code Compliance Officer” is listed, that position currently remains unfilled. Moreover, other Fire Preventive Services Division personnel should be added to this list. Thus, staff is proposing to add the following Fire Preventive Services Division personnel to that list: (a) Fire Inspector, and (b) Fire Marshal or designee.
FINANCIAL IMPACT
The adoption of this ordinance has no direct financial impact to the City, including the City’s General Fund. Except as to the cost of PC 832 training for Fire Preventive Services Division personnel, implementation of the ordinance will be performed by City staff supported by permit fee revenue as part of the Community Development Fund (Fund 209) Planning and Building Programs. Costs associated with Fire Preventive Services Division implementation will be supported by inspection fees as part of the General Fund Fire Prevention Division.
ENVIRONMENTAL REVIEW
Adoption of the Ordinances amending the AMC is not a project under California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15378 and Public Resources Code section 21065 because it does not: (1) approve a project or result in a direct physical impact on the environment, or (2) contemplate known future projects, and as such, no known environmental impacts are known at this time. Instead, the proposed amendments would clarify procedural aspects related to the implementation of locally adopted building and other related codes.
As a separate and independent basis, adoption of the Ordinances amending the AMC is exempt from CEQA pursuant to CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
RECOMMENDATION
Introduce an Ordinance Amending the Alameda Municipal Code by Amending Various Provisions, Including: (1) Section 2-17 of Chapter II (Administration); (2) Section 1-7 of Chapter I (General); (3) Section 2-44.1 of Chapter II; (4) Section 1-5 (Penalty Provisions; Enforcement) of Chapter I (General); (5) Section 30-23 (Certificate of Occupancy) of Chapter XXX (Development Regulations); and (6) Other Related Amendments Concerning Code Enforcement.
Respectfully submitted,
Andrew Thomas, Planning, Building and Transportation Director
By,
Gregory J. McFann, Building Official
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibit:
1. Ordinance (Redline)