MINUTES SPECIAL CLOSED SESSION MEETING OF THE BUILDING BOARD OF APPEALS JANUARY 28, 2014 Clifton C. Miller Community Center - 300 Centennial Way, Tustin) ITEM # 1 4:41 p. m. CALL TO ORDER ROLL CALL: Present: Absent: Board Members Kozak, Thompson, Lumbard, Smith Board Member Altowaiji Staff Present Elizabeth A. Binsack, Director of Community Development Justina Willkom, Assistant Director of Community Development Scott Fazekas, Building Official Adrianne DiLeva- Johnson, Senior Management Assistant Vera Tiscareno, Executive Secretary PUBLIC INPUT: James Laird, President of Tustin School Board spoke against the appeal. He asked that the Board reconsider denial of The Irvine Company (TIC) appeal and the potential negative financial impact from the Board' s recommendation for TUSD. Tony Soria, Chief Financial Officer for Tustin Unified School District TUSD), submitted comments to the Board and staff for the record. He mentioned past similar projects ( Coventry Court and Heritage Place). Soria also referred to the Building Official' s determination and the Building Code and what he felt should be included in assessable space. There were no further speakers present. Kozak concluded the public input portion of the meeting. 4: 34 p. m The meeting was recessed for conference with legal counsel. Bobak clarified the conference with counsel is to discuss exposure to litigation Government Code Section 54956. 9 ( b)( 2). SPECIAL MEETING OF THE BUILDING BOARD OF APPEALS City Council Chambers 300 Centennial Way, Tustin) 6: 00 p.m. Meeting reconvened. Bobak stated there was no reportable action out of closed session. Minutes for Special Closed Meeting of January 28, 2014 - Page 1 of 8
INVOCATION /PLEDGE OF ALLEGIANCE: Commissioner Lumbard ROLL CALL: Present: Board Members - Altowaiji, Kozak, Lumbard, Smith, Thompson Staff Present None Elizabeth A. Binsack, Director of Community Development Dana L. Ogdon, Asst. Dir. of Comm. Dev. Building Division Justina Willkom, Asst. Dir. of Comm. Dev. Planning Division Lois Bobak, City Attorney Scott Fazekas, Building Official Adrianne DiLeva- Johnson, Sr. Management Assistant Vera Tiscareno, Executive Secretary PUBLIC CONCERNS CONSENT CALENDAR: Approved the 1. APPROVAL OF MINUTES JANUARY 14, 2014 BUILDING January 14, BOARD OF APPEALS MEETING. 2014 minutes as amended. RECOMMENDATION: That the Board approve the minutes of the January 14, 2014 meeting as provided. Motion: None Approved the January 14, 2014 minutes as amended. It was moved by Lumbard, seconded by Thompson as amended. Motion carried 5-0. PUBLIC HEARINGS REGULAR BUSINESS: Adopted 2. APPEAL OF SCHOOL FEE CALCULATION THE IRVINE Resolution No. 4251 COMPANY On October 22, 2013, the Tustin Building Official forwarded correspondence to The Irvine Company with a determination concerning the City of Tustin' s interpretation of Government Code Section 65995( b)( 1). Specifically in question is the interpretation of the term "Assessable Space" and the Building Division' s standard practice in calculating a building' s square footage for the purpose of determining required school fees. A comparison of the disputed fee calculation will be provided. On November 21, 2013, The Irvine Company filed an appeal of this determination. Resolutions have been prepared for the Board' s consideration. Minutes for Special Closed Meeting of January 28, 2014 - Page 2 of 8
RECOMMENDATION: That the Board adopt Resolution No. 4251. The Board has no further jurisdiction than Building Code. determining the applicability of the The appeal of The Irvine Company is remanded to the Building Official for a determination of exemptions from Assessable Space" for the Legacy Villas project at 16000 Legacy Road in a manner consistent with this Resolution. Binsack Provided a presentation of the item. Binsack stated the item was a continuation of the following events then she summarized: On October 22, 2013, a determination was made concerning the City's interpretation of Government Code Section 65995( b) regarding calculation of required school fees for the Legacy Villas; at the November 21, 2013 Building Board of Appeals meeting, The Irvine Company filed an appeal of this determination, specifically "assessable space'; and at the January 14, 2014 Building Board of Appeals meeting, The Irvine Company appealed with the following actions given by the Board: The Board upheld the appeal to exclude walkways and to modify Building Division' s standard practice in calculating the buildings square footage for the purpose of determining required school fees related to corridors in R -1 occupancies leading to units regardless of type of construction. 3-2 vote. The Board motioned to uphold the appeal to exclude storage area from the assessable area. 2-3 vote. The Board overturned the appeal, and upheld the Building Official' s determination to include storage in the assessable area if within the perimeter walls of the building whether or not within the dwelling units. 4-1 vote. Binsack' s comments generally included: Questions raised as to whether or not the Board had jurisdiction; the proper conduct that the Board may have taken at its Board meeting; she submitted to the Board correspondence from Bowie, Arneson, Wiles & Giannone, representing TUSD, along with correspondence from John Yeager, O' Neil Attorneys at Law, representing TIC; she then summarized resolutions presented at the January 14, 2014 meeting providing staff direction - Draft Resolutions Nos. 4249 & 4250; Binsack presented to the Board, for their consideration, Resolution No. 4243, which would affirm the Building Official' s determination with regard to the calculation Minutes for Special Closed Meeting of January 28, 2014 - Page 3 of 8
of required school fees; she provided a brief summary of the recommended Draft Resolution No. 4251, which states that the Board would find that the Building Code would not apply the determination of the exemptions for the term " assessable space" as identified in the Government Code; she stated the Board has no jurisdiction other than determining the applicability of the Building Code to determine what the area or perimeter of the building would be; and the appeal of TIC would be remanded to the Building Official for a determination of exemptions of assessable space for the Legacy Villas project in a matter consistent with the resolution. Bobak Bobak's comments regarding "jurisdictional issue" generally included: she stated that under the TCC, most decisions made from a member of the Planning staff is appealable to " some body" ( i. e. Zoning Administrator, Planning Commission, and City Council); Bobak stated that under the Building Code, most decisions of the Building Official are appealable to the Board; the Building Official relied on the Building Code to determine both what the structural perimeter of the subject buildings were and then applied the exemptions in the Government Code for purposes of determining assessable space; the decision was then looked at as " appealable'; staff should have looked at what the jurisdiction of the Board was as set forth in Section 113. 2 of the California Building Code, which the City Council adopted; and this authority jurisdiction was created by the City Council by adoption of this section and defines what the scope of the authority of the Board is. Bobak discussed Section 113.2 of the Building Code which generally included: The Board has jurisdiction to determine whether or not the provisions of the code, rules and regulations legally adopted have been correctly or incorrectly interpreted; whether the provisions of the code apply in any given situation or whether there are equally good or better forms of construction of a code provision available; in this case, the Building Official went through two basic steps: 1) determined basic square footage of what the structural perimeter was to determine assessable space relying on the City's standard practice ( Building Code definition of what " building area" is) 2) removed square footage of the structure based on the exemptions of the Building Code and how the exemptions applied; the Board agreed and disagreed in part with the Building Official in that " walkways" should be excluded and storage spaces" should not; and if the determination by the Board was that the Building Code did not apply to the exemption, then that determination ends the jurisdiction that the City Council has granted to the Board. Bobak's comments generally included: If the Board agreed that the Building Code properly applies to determining what the exemptions are, then the Board has jurisdiction interpreting and applying to the Building Code and not the Government Code; the issue of jurisdiction did not come up at the January 14, 2014 meeting; she shared Minutes for Special Closed Meeting of January 28, 2014 - Page 4 of 8
suggestions in correspondence received from TIC; the time to challenge jurisdiction has passed; Bobak's opinion, and staffs opinion is that the Board has not made a final decision therefore the jurisdictional issue was properly raised and issues can be raised at any time if a court action were filed against whatever action the Board takes; she explained the proper time to correct the jurisdictional error would be before final action is taken; and Bobak responded to TIC' s counsel, with reference to the Rules and Procedures that the Board adopted, and how the appeal process works. Bobak stated that the Rules & Procedures assume that the Board has jurisdiction to take any particular action or hear any particular appeal. Once the Board has jurisdiction to hear an appeal, the Board can reverse, affirm or change action when in any way they deem appropriate. Counsel for TIC also stated in their correspondence that they disagreed with the application of the Building Code in the nature of the appeal, which the staff agreed and that the Building Code does not apply to that determination. Bobak also stated TUSD' s counsel mentioned in their correspondence that the Board violated " Due Process" at the January 14, 2014 meeting due to conversations the Board had with TIC before the meeting and that they did not disclose the conversations for the record. However, the record did reflect some information was included in the record. Note: Altowaiji stated the presentation given to him by TIC was similar to the presentation given at the Board meeting. Bobak reminded the Board final action has not been taken therefore she encouraged those Board members who met with TIC to explain their decision - making process and note it for the record. Bobak agreed with the assertion in the letter from TUSD' s counsel that the Board does not have jurisdiction to define terms in the Government Code, to the extent that the Board believes the Building Code does not apply. If the Building Code does not apply, the Board should not interpret the Government Code. If using the Building Code to define terms of the Government Code, then it would be acceptable. Per Bobak, and as raised by TUSD' s counsel was the admissibility of a 2009 letter referenced in the presentation by TIC at the January 14, 2014 meeting. The letter was later included in the record. Bobak stated it is a hearing not a trial and the letter is not inadmissible or bound by the rules of evidence. The Board is free to consider as deemed appropriate. She reminded the Board that at the January 14, 2014 meeting, Binsack provided them with an alternative resolution, which staff believed was an appropriate response to the jurisdictional issue raised, and the Board did not believe that the Building Code was the proper tool to look at with regards to defining the exemptions of assessable space in the Government Code. At the meeting, staff prepared a draft resolution and provided copies to the Board as well as Minutes for Special Closed Meeting of January 28, 2014 - Page 5 of 8
to representatives of TIC and TUSD regarding the Board' s jurisdictional limits which provides the background of how the issue came to the Board. Bobak stated the jurisdictional limits of the Board, the Board' s finding that relies on the Building Code and the determination of the applicability of the Building Code ends the jurisdiction of the Board and the matter is remanded to the Building Official to make a determination of assessable space without relying on the Building Code for determining the exemptions in the Government Code. Bobak then asked the Board if they had any questions, which there were none. PUBLIC COMMENTS: John Yeager, O' Neil Attorneys at Law, spoke representing TIC. His comments generally included: Commended Bobak for her explanation of events; he felt the Board had jurisdiction to consider the appeal; asked if the appeal was appropriately filed; he referred to the Rules and Procedures and the appeal taken by the Building Official regarding assessable space; he asked what "body" appeals if the parties do not agree with the Building Official' s determination; the issue of violating the TUSD's due process; TIC met with TUSD prior to the appeal and provided documents that were presented to the Board; lack of jurisdictional issue; and he felt the letter in question was properly accepted at the January 14, 2014 meeting. Bobak Bobak's responses generally included: The Board had jurisdiction to decide whether or not they have jurisdiction and whether or not the Building Code applies to the determination of what the exemptions under the Government Code mean; in summary, the Board had jurisdiction at the January 14, 2014 meeting to decide whether or not the Building Code applied; the appeal may have been dealt with differently had the jurisdiction issue been addressed then; on remand no administrative appeal of the decision of the Building Official; would be a final administrative decision from the City; and subject to judicial review. Wendy Wiles, representing TUSD, comments generally included the following: Jurisdictional issue responded to Yeager's comment referred the Board to Section 113.2 - limitation on the authority of the BBOA is to look to the true intent of what the Building Code is; that the rules are correctly interpreted; to review whether the provisions of the Building Code do or do not apply; if there is an equally good or better form of construction of the proposed Building Code; agreed with Bobak that the Board does not have the authority to go beyond the limited issue; the question as to whether or not it is appropriate to interpret the Government Code is appropriate whenever a jurisdictional issue has been identified; the due process issue; avoiding litigation is preferred; Minutes for Special Closed Meeting of January 28, 2014 - Page 6 of 8
and TUSD felt they were not given the opportunity to understand or provide responses to assist with the analysis discussed between TIC and the Board. 6:30 p. m. CLOSED PUBLIC HEARING Kozak Thompson Kozak' s comments generally included: Commended comments made by both representatives for TUSD and TIC; jurisdictional issue needs to be resolved; clarified the telephone call he had with TIC information shared with him was similar to what was shared with the Board at the January 14, 2014 meeting; the research he had conducted on his own time preparing for the BBOA meeting; and specifically focused on assessable space in his Google Search and found nothing. Thompson clarified for Wiles that he did meet with TIC and staff which was consistent with the presentation heard and the staff report received at the January 14, 2014 meeting; he mentioned one variation of the discussion staff mentioned they were going to appeal space that had to do with interior walls which was not in the presentation or the appeal; made a statement that TUSD does have a Board and operates similarly to the BBOA and is more privy to the way a board operates. Altowaiji Altowaiji clarified he had met with TIC and Staff and that he did research other agencies regarding school fee calculations; he discovered most of the agencies refer to their school district, which he stated is contrary to what is in the Government Code; many variations created confusion; that the Board made their decision based on presentations; and he stated the Building Code is for " technical" purposes. Kozak Kozak suggested the Board discuss and act on Resolution No. 4251 since it is consistent with the jurisdictional limitations of the BBOA. Thompson Thompson' s comments, referring to the January 14, 2014 meeting, generally included: Discussion regarding assessable space and exemptions; reiterated his decision was not based on fees, amount, but based upon a conflict between the Government Code and Building Code; walkways was mentioned; limit of the Board' s authority; and he recommended the Board support Resolution No. 4251. Lumbard Lumbard' s comments generally included: The Government Code Section 65995 ( b)( 1) which refers to structural perimeters; he then asked Staff for an explanation of what the City's " standard practice" is; responded to Fazekas' response about the Building Code and felt it was interpreted correctly; and all exceptions are defined by the Building Code, by standard of practice ( perimeter, square footage of the building and the exceptions, etc.). Minutes for Special Closed Meeting of January 28, 2014 - Page 7 of 8
Fazekas In response to Lumbard' s question regarding " standard practice" Fazekas' stated he looks at the area within the perimeter of the exterior walls, looks for exclusions ( i. e. vents, open areas), then looks to the Government Code on what the exclusions are, then removes those areas from the square footage. Motion: The item was moved by Thompson, seconded by Altowaiji to adopt Resolution No. 4251. Lumbard dissented. Motion carried 4-1. 7: 05 p. m. ADJOURNMENT Minutes for Special Closed Meeting of January 28, 2014 - Page 8 of 8