Modesto Municipal Code Art. 7 Appeals

Any person having any record title or legal interest in the building may appeal to the Board of Building Appeals from any Notice and Order or any action of the Building Official under this title by filing at the office of the Building Official within thirty (30) days from the date of service of the Notice and Order or other action, a written appeal which conforms to all of the following requirements:

(a) The written appeal must contain a brief statement setting forth the legal interest of each of the appellants in the building or the land involved in the notice of violation or Notice and Order. The written appeal must contain a brief statement in ordinary and concise language of the specific order, action and or building code section under protest, together with any material facts that support the contentions of the appellant.

(b) The written appeal must contain a brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed, why the protested order or action should be reversed, modified, or otherwise set aside.

(c) The written appeal must contain signatures of all parties named as appellants and their official mailing addresses.

(d) At least one (1) appellant must submit a declaration under penalty of perjury as to the truth of matters stated in the appeal. This declaration must be submitted with the written appeal itself.

(Ord. 3513-C.S., § 2, effective 6-12-09)

Upon receipt of any appeal filed and payment of the appeal fee, as adopted from time to time by resolution of the City Council of the City of Modesto, the Building Official shall calendar the appeal for an Administrative Hearing.

(Ord. 3513-C.S., § 2, effective 6-12-09)

The Building Official shall fix a date, time and place for the hearing of the appeal by the Board of Building Appeals. Such date shall be not less than ten (10) days nor more than forty-five (45) days from the date the appeal was filed with the Building Official. Written notice of the time and place of the hearing shall be given at least ten (10) days prior to the date of the hearing to the appellant(s) by the Building Official, either by causing a copy of such notice to be delivered to the appellant(s) personally or by mailing a copy thereof, postage prepaid, addressed to the appellant(s) at the address(es) shown on the appeal.

(Ord. 3513-C.S., § 2, effective 6-12-09)

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 Board of Building Appeals at ___________ on the day of ________ 20___, 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 other things by filing an affidavit therefor with the Board of Building Appeals.

(Ord. 3513-C.S., § 2, effective 6-12-09)

The Building Official shall collect and require an appeal fee to be paid at the time the written appeal notice is filed. The appeal fee shall be set by resolution of the City Council of the City of Modesto. The fee shall be calculated to recover the total City costs incurred in the appeal including, but not limited to, staff time to process and handle the appeal, preparation and services of notices and staff appearance at the appeal hearing. No appeal shall proceed without payment of the fee at the time the appeal is filed. The Building Official may waive the appeal fee upon written request for good cause shown. Good cause may include severe economic hardship, significant attempts to comply with the Notice and Order, and other factors indicating good faith attempts to comply with the Notice and Order.

(Ord. 3513-C.S., § 2, effective 6-12-09)

Failure of any person to file a timely appeal in accordance with the provisions of this chapter shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the Notice and Order, or any portion thereof, subject only to review pursuant to the provisions of California Code of Civil Procedure Section 1094.5.

(Ord. 3513-C.S., § 2, effective 6-12-09)

Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal.

(Ord. 3513-C.S., § 2, effective 6-12-09)

Except for vacation orders made pursuant to Section 9-8.1001 of this Code, 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. 3513-C.S., § 2, effective 6-12-09)

(a) Hearing by Board of Building Appeals. At the time designated in the notice of hearing, the Board shall proceed to hear the testimony of the Building Official or the Building Official's authorized representatives, the testimony of the appellant and other competent persons, including members of the public, as to those matters or issues specifically listed by the appellant in the notice of appeal.

(b) Record. A record of the entire proceedings shall be made by tape recording or by other means of permanent recording determined to be appropriate by the Board.

(c) Reporting. The proceedings at the hearing shall also be reported by a phonographic reporter if requested by any party thereto. The cost of any such reporting shall be borne entirely by the requesting party. A transcript of the proceedings shall be made available to all parties upon request and upon payment of the fee prescribed therefor. Such fees may be established by the Board, but shall in no event be greater than the cost involved.

(d) Continuances. The Board may, upon request of the appellant or the Building Official, grant continuances from time to time for good cause shown, or upon its own motion.

(e) Oaths. The Board has the power to administer oaths and affirmations.

(Ord. 3513-C.S., § 2, effective 6-12-09)

(a) 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 Board or 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 has the desired things in possession or under control. A subpoena need not be issued when the affidavit is defective in any particular.

(b) 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.

(Ord. 3513-C.S., § 2, effective 6-12-09)

(a) Rules. Appeal hearings need not be conducted according to the technical rules relating to evidence and witnesses. Government Code Section 11513, subdivisions (a), (b) and (c) as currently written, or as amended in the future, shall apply to all hearings under this chapter.

(b) Oral Evidence. Oral evidence shall be taken only upon oath or affirmation.

(c) Rights of Parties. Each party shall have the right to do the following:

(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 presented against the party;

(6) To represent himself/herself or to be represented by counsel.

(d) 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. Official notice may be taken of the official records of the Board of Building Appeals or of departments and ordinances of the City of Modesto as well as the rules and regulations of the Board of Building Appeals.

(Ord. 3513-C.S., § 2, effective 6-12-09)

(a) The Board of Building Appeals may, with the owner's consent, inspect the building and premises involved in the hearing prior to, during, or after the hearing.

(b) The Board of Building Appeals prior to an inspection of the building and premises involved in the hearing, must do the following:

(1) Give notice of the inspection to the parties before said inspection is made;

(2) Advise the parties that they have the opportunity to be present during the inspection; and

(3) State for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, all material facts observed by the Board and the conclusions drawn therefrom.

(c) Each party then shall have a right to rebut or explain the matter so stated by the Board of Building Appeals either for the record during the hearing or by filing a written statement after the hearing for inclusion in the hearing record.

(d) Neither an inspection warrant nor the owner's consent to inspect the building and surrounding properties is required if the inspection can be made from the areas in which the general public has access or if made with permission of other persons authorized to provide access to the property on which the building is located.

(Ord. 3513-C.S., § 2, effective 6-12-09)

(a) If it is shown by a preponderance of the evidence that the owner has violated provisions of this chapter, the Board shall order the owner to correct the substandard conditions or demolish the building within a reasonable time, and issue an administrative enforcement order which affirms or rejects the civil penalties and costs which were assessed in the Notice and Order or which modifies the daily rate or duration of civil penalties depending upon the review of the evidence. The Board may increase or decrease the total amount of civil penalties and costs that are assessed by the Notice and Order. If the owner fails, refuses or neglects to correct the substandard conditions or demolish the building within the time set forth in the Board's Order, the Board shall order that the City of Modesto may repair or demolish the building or institute an action to compel compliance with its Order. If the building is to be demolished, the decision of the Board shall state that the evidence presented during the hearing supports the Board's finding that it is not economically feasible to repair said building.

(b) The Board may issue an administrative enforcement order which imposes additional civil penalties that will continue to be assessed until the responsible party complies with the hearing officer's decision and corrects the violation.

(c) The Board may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the administrative enforcement order.

(d) The decision of the Board shall be a final decision and shall be in the form of an Order and shall contain findings of fact, a determination of the issues presented, the requirements to be complied with by the appellant. A copy of the Order shall be delivered to the appellant personally or sent to him/her by certified mail, postage prepaid, return receipt requested.

(e) The Order shall also inform the appellant that the decision of the Board is a final decision. It shall state that the time for and the manner of judicial review is governed by California Code of Civil of Procedure Section 1094.5.

(Ord. 3513-C.S., § 2, effective 6-12-09)