Chapter 19.44 — APPEALS

Sections: 19.44.010 Purposes. 19.44.020 Housing Advisory Commission. 19.44.030 Rules of procedure. 19.44.040 Appeals. 19.44.050 Notice of hearing. 19.44.060 Hearings. 19.44.070 Subpoenas and evidence. 19.44.080 Method and form of decision. 19.44.090 Hearing by Council. 19.44.100 Contest.

The purpose of this chapter, in conjunction with the procedural provisions of Section 19.40.020C, is to establish fair and efficient procedures for the enforcement of the State Housing Law and implementing regulations and uniform codes, and for the recovery by the City of any and all recoverable costs it may incur in the enforcement of the State Housing Law and implementing regulations and uniform codes, with fairness to both owners, tenants and the affected public.

The City Council determines and declares that the procedures established in this chapter, in conjunction with the procedural provisions of Section 19.40.020C, are intended to constitute procedures for the implementation of Part 1.5 of Division 13 of the Health and Safety Code, including Sections 17980 et seq. and are in substantial compliance therewith, and are substantially equivalent, for the purposes intended and the purposes stated above, to the provisions of Title 25 of the California Code of Regulations and the State Housing Law. (Ord. 6475-NS § 11 (part), 1999)

A. Creation. There is created a Housing Advisory Commission in the City of Berkeley. The Housing Advisory Commission shall consist of nine members. Appointments to said Commission shall be filled in accordance with provisions of the Berkeley Municipal Code, Sections 2.04.040 and 2.04.140, enacted by the voters of the City. All members shall be residents of the City.

B. Jurisdiction. The jurisdiction of the Commission shall extend the following manners and proceedings, as well as to any other matter made subject to its jurisdiction by any other chapter of this code, or by the Zoning Ordinance.

1. The Commission shall hear and determine appeals of all matters respecting the abatement of substandard or deficient buildings pursuant to the provisions of Chapter 19.40 of this code.

2. The Commission shall review and advise the Council on matters respecting the Community Development Block Grant and Emergency Shelter Grant Programs.

3. The Commission shall serve as a General Appeals Board for tenants and landlords regarding the correction of code violations as provided in Chapter 12.48 of this code, providing for periodic inspection of residential rentals and hotels.

4. The Commission shall make recommendations to the Council defining hardship categories and shall hear appeals concerning the designation of the hardship category. The Commission may grant time extensions for compliance in hardship cases, excepting those violations which pose a clear and present danger to human life, health and safety.

5. The Commission shall make recommendations to the City Council regarding code enforcement priorities.

6. The Commission shall monitor code enforcement procedures to ensure adherence to Council policies and shall make recommendations for changes in such procedures to the City Council.

7. The Commission shall be the Board of Appeals for the Uniform Housing Code. In order to determine the suitability of alternative materials and methods of construction and to provide for reasonable interpretations of the provisions of this Code, the City’s Code Review Task Force shall serve as the Technical Advisory Committee to the Commission. When serving in this capacity, the Technical Advisory Committee shall render all recommendations in writing to the Commission with a duplicate copy to the Building Official and the appellant and may recommend such new legislation as is consistent therein.

8. The Commission shall be the Relocation Appeals Board for purposes of Chapter 13.84.

9. The Commission shall hear appeals brought by any person regarding actions taken by the Building Official pursuant to Division 13, Page 5.5 of the California Health and Safety Code, beginning with Section 19950 (Disabled Access).

10. The Housing Advisory Commission shall review and advise the City Council on housing policy, housing programs, and related issues. In particular, the Commission shall make recommendations on how and to what extent the City should establish and fund programs to increase the supply of affordable housing and protect residents of Berkeley from homelessness. This includes and is not limited to oversight and recommendations for all voter-approved bonds and ballot measures dedicated to affordable housing to ensure that expenditures are consistent with the intent of the measures. The City Manager shall provide the Commission with copies of all reporting requirements required by measures under the Commission’s purview. These recommendations may be made annually or biannually, as the Commission deems appropriate in light of the City’s budget cycle and other relevant funding cycles. The Commission’s recommendations shall be promptly published on the City’s website and transmitted to the City Council. The City Council shall consider, but need not follow, the Commission’s recommendations, and shall annually inform the Commission as to the extent to which it has implemented the recommendations.

C. Automatic Termination of Appointment. The appointment of any member of the Commission who has been absent from three consecutive regular meetings shall automatically terminate as hereinafter set forth. The Secretary of the Commission shall report the attendance record of each member of said Commission to the City Clerk at the end of each six months’ period, the first report after the date on which the ordinance codified in this chapter becomes effective to be made on July 1, 1985, and to cover the period from January 1, 1985 to June 30, 1985. The City Clerk shall notify any member whose appointment has automatically terminated and report to the City Council that a vacancy exists on said Commission and than an appointment should be made for the unexpired term. (Ord. 7782-NS § 1, 2021; Ord. 7523-NS § 4, 2016; Ord. 7367-NS § 1, 2014; Ord. 6475-NS § 11 (part), 1999)

A. Chair and Secretary. The Commission shall elect one of its members Chairperson. The Director of Health, Housing and Community Services, or their appointee, shall act as Secretary to the Commission. The Secretary shall have no vote upon any matter before the Board.

B. Meetings. The Commission shall establish a regular time and place of meeting and shall hold at least one regular meeting each month. Special meetings may be called by the Chairperson, or by a majority of the members of the Commission, upon personal notice being given to all members of written notice being mailed to each member at least twenty-four hours prior to such meeting, unless such notice requirement is waived in writing.

C. Rules. The Commission may make and alter rules governing its organization and procedures which are not inconsistent with this or any other applicable ordinance of the City. Copies of all rules of procedure adopted by the Board shall be delivered to the Building Official, who shall make them accessible to the public.

D. Quorum. A majority of the members shall constitute a quorum and the affirmative vote of a majority of the members is required to take any action. The Commission shall keep an accurate record of its proceedings and transactions. (Ord. 7367-NS § 2, 2014; Ord. 6475-NS § 11 (part), 1999)

A. Form of Appeal. Any person entitled to service under Section 1101 of the Berkeley Housing Code may appeal any notice and order or any action of the Building Official under this code by filing at the Office of the Building Official a written appeal containing:

1. A heading in the words: "Before the Housing Advisory Commission of the City of Berkeley"

2. A caption reading: "Appeals of........," giving the names of all appellants participating in the appeal.

3. A brief statement setting forth the legal interest of each of the appellants in the building of the land involved in the notice and order.

4. A brief statement in ordinary and concise language of that specific order or action protested, together with any material facts claimed to support the contentions of the appellant.

5. A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed the protested order or action should be reversed, modified or otherwise set aside.

6. The signatures of all parties named as appellants and their official mailing addresses.

7. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.

Except as otherwise provided by ordinance, the appeal shall be filed within thirty days from the date of the service of such order or action of the Building Official, provided, however, that if the building or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property and is ordered vacated and is posted in accordance with Section 1103 of the Berkeley Housing Code, such appeal shall be filed within ten days from the date of service of the notice and order of the Building Official.

B. Effect of Failure to Appeal. Failure of any person to file an appeal as provided for herein shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or any portion thereof.

C. Processing of Appeal and Decision. Upon receipt of any appeal filed pursuant to this section, the Building Official shall present it for hearing to the Commission within forty-five days from receipt of the appeal. The Commission may continue the hearing for good cause shown, and shall render a decision no later than ten days after the hearing on the appeal is closed.

D. Scope of Hearing on Appeal. Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.

E. Staying of Order Under Appeal. Except for vacation orders made pursuant to Section 1103 of the Berkeley Housing Code as adopted by the City, enforcement of any notice and order of the Building Official issued under this Code shall be stayed during the pendency of an appeal therefrom which is properly and timely filed. (Ord. 7407-NS § 1, 2015; Ord. 7367-NS § 3, 2014; Ord. 6475-NS § 11 (part), 1999)

A. Contents. The Notice to appellant shall be substantially in the following form, but may include other information:

You are hereby notified that a hearing will be held before (the City of Berkeley Housing Advisory Commission or name of hearing examiner) at ____________ on the day of __, 19, at the hour, upon the Notice and Order served upon you. You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or things by filing an affidavit therefor with (Commission or name of hearing examiner).

B. Service. At least ten days prior to the date set for the hearing, the notice shall be served by certified mail, postage prepaid, addressed to the owner of the property as the owner’s name and address appears on the last equalized assessment roll of the county, if such so appears, or as known to the clerk of the appellate body, as well as to the following, if known or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance of record; the owner or holder of any lease of record; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the clerk of the appellate body to serve any person required herein to be served shall not invalidate any proceeding hereunder as to any person duly served or relieve any such person from any duty or obligation imposed by the provisions of this section. (Ord. 6475-NS § 11 (part), 1999)

A. Record. A record of the entire proceedings shall be made by tape recording, or by any other means of permanent recording determined to be appropriate by the Commission.

B. Reporting. The proceedings at the hearing shall also be reported by a certified court reporter if requested by any party thereto no less than three working days prior to the hearing. All such requests, to be effective, shall be accompanied by payment of a deposit of one-half the estimated cost of the court reporter services. A transcript of the proceedings shall be made available to all other parties upon request and upon payment of the fee prescribed therefor. Such fees may be established by the Commission, but shall in no event be greater than the cost involved.

C. Oaths--Certification. In any proceedings under this chapter, the Commission or any Commission member has the power to administer oaths and affirmations and to certify to official acts.

D. Reasonable Dispatch. The Commission and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives. (Ord. 6475-NS § 11 (part), 1999)

A. Subpoenas. The Commission may obtain the issuance and service of a subpoena for the attendance of witnesses or the production of other evidence at a hearing upon the request of a member of the Commission upon the written demand of any party. The issuance and service of such subpoena shall be obtained upon the filing of an affidavit therefor which states the name and address of the proposed witness; specifies the exact things sought to be produced and the materiality thereof in detail to the issues involved; and states that the witness had the desired things in possession of under control. A subpoena need not be issued when the affidavit is defective in any particular, or not requested at least ten days prior to the hearing, and no hearing shall be continued due to the failure to file a timely request for a subpoena. The City may charge its reasonable costs of producing documents in compliance with a subpoena. Any person who refuses without lawful excuse to attend any hearing, or to produce material evidence which the person possesses or controls as required by any subpoena served upon such person as provided for herein shall be guilty of a misdemeanor.

B. Rules of Evidence. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.

1. Oral Evidence. Oral evidence shall be taken only on oath or affirmation, if requested by any party.

2. Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any
direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over
objection in civil actions in courts of competent jurisdiction in this state, and the party against who it is
offered objects.

3. Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of
any common law or statutory rule which might make improper the admission of such evidence over objection
in civil actions in courts of competent jurisdictions in this state.

4. Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.

C. Official Notice. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or of official records of the boards, commissions or departments, and ordinances of the city or rules and regulations of the Commission.

1. Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be
noted in the record, referred to therein, or appended thereto.

2. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially
noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to
be determined by the Commission.

D. Inspection of the Premises. The Commission may inspect any building or premises involved in the appeal during the course of the hearing, provided that (1) notice of such inspection shall be given to the parties before the inspection is made, (2) the parties are given an opportunity to be present during the inspection, and (3) the

Commission shall state for the record upon completion of the inspection of the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the Commission.

E. Rights of Parties. Each party shall have these rights, among others:

1. To call and examine witnesses on any matter relevant to the issues of the hearing;

2. To introduce documentary and physical evidence;

3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;

4. To impeach any witness regardless of which party first called the witness to testify;

5. To rebut the evidence;

6. To be represented by anyone who is lawfully permitted to do so. (Ord. 6475-NS § 11 (part), 1999)

A. Hearing before Commission. A Commission member who has not heard the evidence or has not read the entire record of the proceedings shall not vote on or take part in the decision of any appeal.

B. Form and Notice of Decision. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with. A copy of the decision shall be delivered to the appellant personally or sent by certified mail, postage prepaid, return receipt requested.

C. Effective Date of Decision. The effective date of decision shall be the earlier of the dates of delivery or mailing pursuant to subsection B of this section, unless the decision itself expressly specifies a later effective date. (Ord. 6475-NS § 11 (part), 1999)

A. Except as otherwise provided by ordinance, decisions of the Commission may be appealed to the City Council by filing a notice of appeal which substantially conforms to Section 19.44.040, with the City Clerk, within ten days of the effective date of the decision. The City Clerk shall provide the Council with the written appeal or appeals, and shall set the matter for a public hearing before the Council in consultation with the Building Official, and give notice of the time and place of said hearing in the same manner and to the same recipients as for the Housing Advisory Commission hearing.

B. Each hearing shall be open to the public, which shall be given the opportunity to present their views and to be heard in accordance with established procedures.

C. After opening the public hearing on the appeal, the Council may do any one of the following:

1. Continue the public hearing;

2. Remand the matter to the Commission to reconsider the appeal, in which case the Council shall specify
which issues the Commission is directed to reconsider.

3. Reverse or affirm wholly or partly, or modify any decision, determination, or requirement of the
Commission, and may make decisions or determinations or may impose such conditions as the facts warrant
and may grant a variance.

D. The decision of the Council shall be final. The form, notice of and effective date of City Council decisions shall be as set forth in Section 19.44.080B and C. (Ord. 7367-NS § 4, 2014; Ord. 6475-NS § 11 (part), 1999)

The validity of any decision by the City Council under the provisions of this chapter shall not be contested in any action or proceeding unless the same is commenced within thirty days after it becomes final. (Ord. 6475-NS § 11 (part), 1999)