Article 3 — APPEALS AND PETITION PROCEDURES

1-301. Appeals and petitions.

(a) The public may submit appeals and petitions to the Commission as prescribed in this Article.

(b) Appeals and petitions concerning building standards that are not in effect at the time of submission will not be accepted by the Commission. An appeal or petition submitted on a proposed, approved and/or adopted building standard of Title 24, outside of its effective date, shall be considered invalid and returned to the submitter in accordance with this article.

(c) An appeal or petition, as defined in Section 1-103 of this chapter, is not the means to support or oppose a proposed, approved and/or adopted building standard for publication in Title 24, prior to its effective date. To provide comment on a proposed building standard, see Section 1-413 in this chapter.

(d) The Commission may accept appeals relating to actions and decisions by state and local agencies to enforce building standards, but may only make recommendations for reconsideration. The Commission has no authority to overturn a decision by a state or local agency when the matter is within the jurisdiction of that state or local agency.

Authority: Health and Safety Code Sections 18931, 18945 and 18946.

Reference: Health and Safety Code Sections 18931, 18945 and 18946.

Appeals to the Commission and the matters which can be appealed are as follows:

1-303. Scope of appeals and types of appellants. Appeals to the Commission and the matters which can be appealed are as follows:

(a) An appeal may be submitted by any person adversely affected by the administration of building standards or administrative regulations of Title 24, or the enforcement or the lack of enforcement of Title 24, by any state agency as prescribed in Health and Safety Code Section 18945(a) and this article.

(b) An appeal may be submitted by any person adversely affected by the enforcement of Title 24 by a local enforcement agency, in the company of the local enforcement agency, as prescribed in Health and Safety Code Section 18945(b) and this article. Joint appeals must have statewide significance.

(c) An appeal may be filed by any person, including a state or local agency adversely affected by an apparent conflict, duplication or overlap of any current Title 24 provision, or any other matter of statewide significance relating to the application of Title 24.

(d) When the basis of an appeal is the action of a state agency other than the Commission, the appellant must obtain a final determination from the state agency in question relating to the issue under appeal before the Commission will hear the appeal.

Exception: An apparent conflict, duplication or overlap in other available state appeals procedures or within the regulations or code.

Authority: Health and Safety Code Sections 18931, 18945 and 18946.

Reference: Health and Safety Code Sections 18931, 18945 and 18946.

1-305. Time limitations for appeals.

Appeals will be accepted by the Commission only within six (6) months of when the act, interpretation, decision or practice complained of occurred.

Exception: The Commission, at its discretion, may accept and act on an appeal when more than six (6) months have passed if special circumstances are found to exist.

Authority: Health and Safety Code Section 18931.

Reference: Health and Safety Code Section 18931.

1-307. Appeal form and filing fee.

(a) An appeal shall be submitted using Appeal Form BSC-33, which is available on the Commission’s website, or by contacting Commission’s office by telephone at (916) 263-0916, or by email (cbsc@dgs.ca.gov). The form contains instructions on providing thethe necessary information and the required documents, including but not limited to:

1. The specific regulation, rules, interpretation or decision of any state agency respecting the administration of any building standard being appealed.

2. The dates of any act, interpretation or decision of any state agency related to the complaint.

3. The nature of any act, interpretation or decision of any state agency related to the complaint. 4. The reasons for the appeal.

4. Documentation of the official action of the applicable state agency with respect to the agency’s final determination on the issue.

5. Identification of witnesses, experts and other representatives of the appellant.

(b) The appeal shall be filed by mail with the Executive Director, California Building Standards Commission, 2525 Natomas Park Drive, Suite 130, Sacramento, California 95833. The address should be confirmed at the Commission’s website (www.dgs.ca.gov/bsc).

(c) Filing Fee: Health and Safety Code Section 18949 requires the Commission to recover the cost of administrating appeals. Accordingly, a nonrefundable fee of $450.00 shall accompany the submitted appeal form. In addition, any and all costs for an administrative law judge or costs related to a hearing before the appeals subcommittee will be the responsibility of the appellants. Authority: Health and Safety Code Sections 18931 and 18945.

Reference: Health and Safety Code Sections 18931, 18945 and 18949.

1-309. Receipt and processing appeals.

(a) Receipt of any appeal shall be acknowledged in writing by the Executive Director, or their designee, within 45 days of receipt, advising the appellant and any state or local agency party to the appeal, of the acceptance or rejection of the appeal, as filed, or the need for additional information to make a determination. The reply shall also set forth the planned action of the Commission in response to an accepted appeal, together with reasons for the proposed actions.

(b) If the Executive Director determines that additional information is needed in order to process the appeal and make a determination, the Executive Director may request the additional information in the written response required by subsection (a), and defer action on the appeal until the additional information is received. If the Executive Director requests additional information, the appellant shall have 30 days from the date of the Executive Director’s request to submit the information. If the requested information is not received within 30 days, the Executive Director may treat the appeal as having been abandoned or may, upon written notice to the appellant and any state or local agency as a party to the appeal, process the appeal based on the information available. Upon written request, the Executive Director may for good cause, extend the 30-day period by one additional 30-day period.

(c) Following the acceptance of an appeal, the Executive Director and Chair of the Commission’s Appeals Committee, as appointed by the Chair of the Commission, shall, acting together, designate a hearing authority by determining whether the appeal should be heard by the Appeals Committee, the full Commission, a member of the Commission designated as hearing officer, or by a hearing officer appointed by the Office of Administrative Hearings.

(d) Within 15 days of determining the hearing authority, and no less than 15 days prior to the appeal hearing date, the Executive Director, or their designee, shall provide to the appellant and any state or local agency as a party to the appeal, written notice identifying the hearing authority, procedures, and when possible the scheduled hearing date, time and location.

Authority: Health and Safety Code Sections 18931 and 18945.

Reference: Health and Safety Code Sections 18931, 18945 and 18946.

1-311. Appeal hearing procedures.

(a) When it is determined pursuant to subsection 1-309(c) that the appeal shall be heard by the Commission’s Appeals Committee or a member of the Commission appointed as the hearing officer, the following provisions shall apply:

1. The Executive Director shall provide written notice of the date, time and location of hearing to interested parties, as provided in subsection 1-309(d), and may invite experts or other witnesses as necessary for the hearing.

2. The Appeals Committee or the member of the Commission appointed as the hearing officer, shall not be bound by the rules of evidence or procedure applicable in the courts. Appellant, appellant’s witnesses and any other interested persons may present testimony, argument and/or documentary material concerning the matter(s) under consideration.

3. The Appeals Committee or the member of the Commission appointed as the hearing officer shall prepare their finding(s) and decision within 30 days after the appeal hearing.

4. The Executive Director shall, in writing, advise the appellant, any state or local agency as a party to the appeal, and the Commission, of the Appeals Committee or the member of the Commission appointed as the hearing officer decision within 15 days from the date of the decision.

5. When an appeal is heard by the Appeals Committee or the member of the Commission appointed as the hearing officer, either party may request a reconsideration of the decision by the Commission. The request must be submitted to the Executive Director in writing no more than 45 days after the date the original decision by the Appeals Committee or member of the Commission appointed as the hearing officer is made.

6. Reconsideration by the Commission shall be conducted in accordance with subsection 1-311(b), and based upon the record of the appeal hearing and additional information or testimony that is specifically requested by the Commission.

7. Notwithstanding the foregoing, the appeal may be withdrawn at any time by the appellant upon written notice to the Executive Director. Upon withdrawal, no further proceeding as specified above shall take place. The withdrawal of the appeal shall be accepted with or without prejudice, as determined by the Commission’s Appeals Committee or the member of the Commission appointed as the hearing officer.

(b) When it is determined pursuant to subsection 1-309(c) that an appeal shall be heard by the Commission, or pursuant to subsection 1-311(a) 5 that a reconsideration hearing is to be conducted by the Commission, the following provisions shall apply:

1. An appeal or request for reconsideration shall be acted on by the Commission during the next regularly scheduled public Commission meeting, or within 180 days, after the date the appeal or request for reconsideration is received by the Executive Director.

2. The Executive Director shall provide written notice of the time, date and location of the hearing to interested parties, as provided in subsection 1-309(d), and invite expert or other witnesses as necessary for the hearing.

3. The Commission shall not be bound by the rules of evidence or procedure applicable in the courts. The hearing shall be conducted according to the Commission’s own rules, accepting evidence as it requires, and chaired by its regular Chairperson. Appellant and other interested parties may present relevant testimony, argument or documentary material as acceptable to the Commission.

4. The Commission shall make a decision on the appeal at an open meeting thereof, provided that the matter may be continued or taken under advisement for decision at a later meeting of the Commission, or re-referred to the Appeals Committee for further consideration and report to the Commission. No Commissioner may cast a vote on the determination of an appeal unless the Commissioner was present at the hearing held for appeal.

5. Notwithstanding the foregoing, the appeal may be withdrawn at any time by the appellant upon written notice to the Executive Director. Upon withdrawal, no further proceedings as specified above shall take place. The withdrawal of the appeal shall be accepted with or without prejudice, as determined by the Commission.

6. The Executive Director shall, in writing, advise the appellant, and any state or local agency as a party to the appeal, of the decision of the Commission within 15 days from the date of the official Commission decision.

(c) The Commission may elect, pursuant to subsection 1-309(c), to refer the appealing parties to a hearing officer appointed by the Office of Administrative Hearings. When such referral is made to the Office of Administrative Hearings, the hearing procedures and requirements shall be conducted as prescribed in Health and Safety Code Section 18946 and to the applicable regulations in California Code of Regulations, Title 1, Division 2.

(d) Action by the Commission on the appeal of a building standards issue within the authority of the Commission shall exhaust the administrative relief of the appellant.

Authority: Health and Safety Code Sections 18931, 18945 and 18946.

Reference: Health and Safety Code Sections 18931, 18945 and 18946 and Government Code Section 13959.

1-313. Petitions.

(a) Any local governmental agency, firm or member of the public may petition either the Commission or the authoritative agency for the proposal, adoption, amendment or repeal of any building standard or administrative regulation in Title 24 of the California Code of Regulations.

(b) Petitions shall be submitted to the Commission using Petition Form BSC-30, available on the Commission’s website (www.dgs.ca.gov/bsc). The form contains instructions as to the information to be provided and documents to accompany the peti-tion form.

(c) Petitions shall be filed by mail with the Executive Director at: CALIFORNIA BUILDING STANDARDS COMMISSION, 2525 Natomas Park Drive, Suite 130, Sacramento, California 95833. The address should be confirmed at the Commission’s website (www.dgs.ca.gov/bsc).

(d) The Commission may refer received petitions to the state agency, or multiple agencies, having specific jurisdiction for the subject of the adopted building standard or for the subject of the proposed building standard as proposed by the petitioner. Except as provided in Section 1-329 of this chapter, a state agency receiving a petition referred by the Commission shall process the petition as required by this article, including the reporting of actions and decisions by the agency to the Commission.

(e) Petitions are not to be used to address matters relating to a currently proposed building standard or an adopted building standard prior to its effective date. Any concerns relating to currently proposed building standards should be brought forward during the public comment period designated for the proposed building standard.

Authority: Health and Safety Code Sections 18931 and 18949.6.

Reference: Health and Safety Code Sections 18931 and 18949.6.

A petition for the adoption, amendment or repeal of a state building standard must meet the following criteria:

1-315. Criteria for petition. A petition for the adoption, amendment or repeal of a state building standard must meet the following criteria:

(a) The subject issue must have statewide significance and must have implications for a whole category of projects or a broad range of project types, and:

(b) The rationale for the petition must take the form of at least one of the following criteria:

1. A current building standard conflicts with pertinent statute(s) and/or regulation(s). To substantiate this criterion, the petitioner must cite the subject building standard and the conflicting statute(s) and/or regulation(s), and provide a clear written description of why the two are inconsistent.

2. Compliance with a current building standard is routinely impossible or onerous. To substantiate this criterion, the petitioner must cite the current building standard, present written or photographic evidence of the difficulty in complying with it, and clearly show that the problem is common or potentially common to many different projects or project types in many different circumstances. This criterion shall not be used to justify a petition for the repeal or amendment of a current building standard that poses difficulty to a single project.

3. A current building standard is inefficient or ineffective. To substantiate this criterion, the petitioner must cite the subject building standard, provide clear and concise written or photographic evidence of its ineffectiveness or inefficiency, describe a proposed alternative and provide clear and convincing written or photographic evidence that it is more efficient or effective.

4. A current building standard is obsolete. To substantiate this criterion, the petitioner must show at least one of the following facts:

   • A. A material or product specified in the building standard is not available, or

   • B. There is no statute authorizing the subject building standard, or

   • C. Significant developments in procedures, materials or other issues subject to the building standard have created a need for amendment or deletion of the building standard; that current state statutes permit amendment or deletion of the building standards; and that the building standard has the effect of prohibiting the use of a material or procedure that has demonstrated satisfactory performance and meets the intended purpose of building standards.

5. There is a need for a new building standard. To substantiate this criterion, the petitioner must provide a clear written description of the proposed building standard, explain why it is necessary and cite the statute(s) that require or authorize the new building standard.

Authority: Health and Safety Code Sections 18931 and 18949.6.

Reference: Health and Safety Code Sections 18931 and 18949.6.

1-317. Emergency petition.

(a) A petitioner may assert the petition requires immediate action because there is potential imminent danger to public health, safety or welfare. To substantiate the existence of potential imminent danger, the petitioner must include in the petition a written description of the specific facts showing the need for immediate action.

(b) If the emergency petition is approved by the Commission and if the petition is accepted pursuant to this article, the proposing agency or adopting agency shall develop and/or adopt new or amended building standards necessary to satisfy the cause for the petition. The new or amended building standards shall be proposed and adopted as emergency building standards as permitted by Health and Safety Code Sections 18934.8 and 18937, and as provided for in section 1-419 of this chapter.

Authority: Health and Safety Code Sections 18931, 18934.8, 18937 and 18949.6.

Reference: Health and Safety Code Sections 18931, 18934.8, 18937 and 18949.6.

1-319. Petition processing by the Commission.

(a) Within 45 days after the date of receiving a petition, the Commission shall determine whether the petition meets the requirements of this article for petitions and provide the petitioner written notification on the Commission’s determination and/or related action(s).

(b) If the Commission determines that the petition does not meet the requirements of this article for petitions, the petition shall be returned to the petitioner without action but with written notification including itemization of the missing or incomplete items. The Commission shall retain a copy of the petition being returned to the petitioner in accordance with subparagraph (f).

(c) If the Commission determines that the petition meets the requirements of this article for petitions and the subject matter of the petition is within the Commission’s jurisdiction provided in statute, the Commission shall provide the petitioner written notification of the acceptance of the petition and planned action. The Commission shall act on the accepted petition during the next regularly scheduled code adoption cycle.

(d) If the Commission determines the subject matter of a petition is within the specific jurisdiction of another proposing or adopting agency, the Commission shall forward the complete petition to that agency for its review and determination. The forwarded petition shall be accompanied by a copy of the Commission’s written notification to the petitioner, which shall indicate the petition has been forwarded to the identified proposing or adopting agency having jurisdiction for its review and determination.

(e) Upon receipt of a petition forwarded by the Commission, the proposing or adopting agency shall act in accordance with Section 1-321. If a proposing or adopting agency disagrees with the Commission’s determination in forwarding a petition to its agency, and thus sends the forwarded petition back to the Commission, the Commission shall return the petition to the petitioner, without action, within 30 days of receipt of the petition returned by the proposing or adopting agency, in accordance with the procedures provided in this section.

(f) The Commission shall maintain records relating to the submittal, status and correspondence of petitions received by the Commission.

Authority: Health and Safety Code Sections 18931 and 18949.6.

Reference: Health and Safety Code Sections 18931 and 18949.6.

Upon receipt of a petition forwarded by the Commission, or a petition received directly from a peti

1-321. Petition processing by proposing or adopting agencies. Upon receipt of a petition forwarded by the Commission, or a petition received directly from a petitioner, the proposing or adopting agency shall be responsible for the following duties:

(a) If the proposing or adopting agency receives a forwarded petition from the Commission but disagrees with the Commission’s determination that a petition is complete, or if the proposing or adopting agency believes the petition is in the jurisdiction of a different agency, the proposing or adopting agency shall notify the Commission in writing within 45 days after the date of receiving the petition. In notifying the Commission, the agency shall include an itemization of the missing or incomplete items and/or reasons why the petition is not within the proposing or adopting agency’s authority as provided in statute.

(b) If the proposing or adopting agency determines that a received petition, which has not been forwarded by the Commission, does not meet the requirements of this article for petitions, the agency shall, within 45 days after the date of receiving the petition, provide the petitioner written notification of the determination with itemization of the missing or incomplete items. The agency shall provide the Commission a copy of the notification at the time the notification is sent to the petitioner.

(c) If the proposing or adopting agency determines that it has jurisdiction and that a received petition is complete, it shall take the following action(s) as appropriate, communicating with the petitioner and Commission, within the noted time lines:

1. The agency may deny or accept a petition in part and may grant other relief or take other action as it may determine to be warranted by the petition and shall notify the petitioner and Commission in writing of the action.

2. If the agency denies the petition for cause pursuant to Section 1-323 of this article [Criteria for denying a petition], it shall do so in writing within 45 days after the date of receiving the petition from the petitioner, or the referral by the Commission.

3. If the agency accepts the petition, it shall notify the petitioner and Commission in writing within 45 days after the date of receiving the petition. For the purposes of this section, accepting the petition indicates that the agency believes the issue(s) merit(s) proceeding to the development of a code change submittal as prescribed in this chapter.

4. If the accepted petition contains an emergency clause, the agency shall also rule on the existence of an emergency. If the agency concurs that an emergency exists, it shall schedule code development and begin adoption procedures on an emergency basis in accordance with section 1-419 of this chapter. The agency shall notify the Executive Director of its intent to commence rulemaking pursuant to Health and Safety Code Section 18926(b).

mergency clause, the agency shall also rule on the existence of an emergency. If the agency concurs that an emergency exists, it shall schedule code development and begin adoption procedures on an emergency basis in accordance with section 1-419 of this chapter. The agency shall notify the Executive Director of its intent to commence rulemaking pursuant to Health and Safety Code Section 18926(b).

• Authority: Health and Safety Code Sections 18931, 18949.1, 18949.2, 18949.3, 18949.5 and 18949.6.

Reference: Health and Safety Code Sections 18926, 18931 and 18949.6.

The Commission, or other proposing or adopting agency, whichever is processing a petition, may deny a petition for cause

1-323. Criteria for denying a petition. The Commission, or other proposing or adopting agency, whichever is processing a petition, may deny a petition for cause using at least one of the following criteria:

(a) The subject building standard is already scheduled for review at the next regular triennial or other scheduled adoption. To substantiate this criterion, the Commission or other agency shall include in its written denial a schedule for the planned review. Alternatively, the Commission or other agency may approve a petition but defer its implementation until the next scheduled adoption.

(b) The issues cited by the petitioner are factually incorrect. To substantiate this criterion, the Commission or other agency shall identify in its written denial the incorrect facts.

(c) The issues cited by the petitioner are not within the state’s jurisdiction. To substantiate this criterion, the Commission or agency shall show in its written denial why the issues are outside its jurisdiction.

(d) The issues cited by the petitioner have been raised and answered through another petition or during the previous rulemaking. To substantiate this criterion, the Commission or agency shall include with its written denial a copy of the previous petition and its response or the pertinent rulemaking file information.

Note: If new facts or substantiating data, pertinent to a petition, are provided, this criterion shall not be grounds for denying a petition.

(e) Resolving the issues raised by the petitioner would compromise the agency’s ability to carry out its legal mandate. To substantiate this criterion, the Commission or agency shall include with its denial the specific ways in which its legal mandate would be compromised.

• (f) The building standard proposed by the petitioner would do any of the following:

1. Create unnecessary hardship or expense

2. Inappropriately exclude materials, equipment or brands

3. Include only specific brands

4. Conflict with federal or state laws or regulations or existing building standards

5. Be otherwise without merit and public benefit

Authority: Health and Safety Code Sections 18931 and 18949.6.

Reference: Health and Safety Code Sections 18931 and 18949.6.

1-325. Reconsideration of denied petition.

(a) A petitioner may request reconsideration of any part or all of a decision of any proposing or adopting agency or the Commission on any denied petition.

(b) The request shall be submitted in accordance with the following:

1. Petition procedures of this article.

2. Include the reason(s) why the decision to deny the petition should be reconsidered.

3. Is submitted to and received by the agency having authority that denied the petition no later than the close of business on the 60th day after the date of the decision involved.

(c) The agency’s or Commission’s reconsideration of any matter relating to a petition shall be subject to the provisions of this article. Authority: Health and Safety Code Sections 18931, 18945, and 18949.6.

Reference: Health and Safety Code Sections 18931, 18945, and 18949.6.

1-327. Reconsideration by the Commission.

(a) The Commission shall have no authority to reevaluate or reverse the decisions on petitions made by a proposing agency or adopting agency when the subject of the petition is within the specific jurisdiction of the proposing agency or adopting agency.

(b) Requests for the reconsideration of a decision by the Commission shall meet the requirements of Section 1-325 of this article.

(c) Should the Commission reverse its previous decision made on a petition, the petition shall be considered accepted and a rulemaking process shall begin as provided in this chapter.

Authority: Health and Safety Code Sections 18931, 18945, and 18949.6.

Reference: Health and Safety Code Sections 18931, 18945, and 18949.6.

1-329. Substitution of or supplementation by agency procedures.

(a) The provisions of this article pertaining to petitions shall not apply when an agency notifies the Commission that a petition process is mandated by specific statutes in addition to Government Code Sections 11340.6 and 11340.7, and/or that it has adopted its own regulations or procedures complying with Government Code Sections 11340.6 and 11340.7, and that it has notified the public of the existence of these statutes, regulations or procedures. Notification to the Commission shall consist of a written copy of the statutes, regulations or procedures and a description of the methods used to make the public aware of their existence. Upon receiving notification, the Commission shall exclude the agency from compliance with this article pertaining to petitions. If the Commission receives a petition pertaining to an excluded agency’s jurisdiction, the Commission shall forward the petition without undertaking any of the duties prescribed by this article pertaining to petitions directly to the agency and shall notify the petitioner of that fact.

(b) These regulations are not intended to be the sole means by which the proposing agency or adopting agencies and the interested public can raise, discuss and resolve issues pertaining to building standards. Agency procedures such as public participation meetings, advisory committees, written and verbal correspondence between members of the public and agency personnel, and other methods are considered alternatives that may be chosen by a member of the public instead of or in addition to the petition procedures described in this article.

Authority: Health and Safety Code Sections 18931 and 18949.6.

Reference: Health and Safety Code Sections 18931 and 18949.6.