Fremont Municipal Code Art. XVII Building Appeals Board

(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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

The board shall have no authority to waive requirements of the Fremont Municipal Code. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

The board shall meet only as needed when an appeal is filed pursuant to this article. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

(a) An applicant for a post-entitlement phase permit (as defined in Cal. Health & Safety Code § 65913.3) may appeal a decision determining the permit to be incomplete, noncompliant or denied to the building appeals board. Any person, firm, or corporation adversely affected by any 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 California 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 10 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 10 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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

(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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

(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.

(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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)

Any appeal of the board’s statement of decision must be filed with a court of competent jurisdiction pursuant to Cal. Code of Civ. Proc. §§ 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. (Ord. 07-2024 § 3, 9-17-24; Ord. 08-2024 § 2, 10-1-24.)