I. BACKGROUND
Lippman owns rental property in the City. In 2009 and 2010, the City's Building Services Department (Building Services) cited Lippman for blight and substandard living conditions on the property. He disputed the citations and eventually sought administrative review.
In April and June 2012, a hearing officer appointed by Building Services heard Lippman's appeals. The hearing officer received testimony from Lippman and various City representatives. After receiving oral testimony and reviewing the relevant notices and invoices, the hearing officer found that Lippman was (or had been) in violation of various City ordinances for each of the citations. The hearing officer further found that the testimony of the witnesses, as well as Lippman, supported a finding that the property was blighted in 2009 and abatement did not occur until after fees were assessed.
After receiving the appeal decisions from the hearing officer, Lippman filed the underlying writ petition. In the petition, he alleged, among other things, that his appeals should have been heard before the city council or an appeals board instead of a single hearing examiner.
The parties briefed the merits of the petition. After hearing the arguments of the parties, the trial court requested supplemental briefing on one issue-whether there is a conflict between the Oakland Municipal and Planning Codes (OMPC) section 15.08.410 et seq. and the 2010 Building Code section 1.8.8.1. If a conflict existed, the trial court asked whether the matter at issue in the petition was a "municipal affair" subject to regulation by the City or one of "statewide concern" subject to regulation by the state.
The trial court held another hearing and took the matter under submission. After further consideration, the trial court granted the petition in part. As to the administrative writ seeking review of the blight citations, the writ was granted, the appeal decision was set aside, and the City was directed to either refund the fees Lippman paid on these citations or hold a new administrative hearing on the blight citations only. The City elected to notice a new administrative hearing on these citations. As to the administrative writ seeking review of the substandard living conditions citation, the writ was denied.
As to the traditional writ seeking to compel the City to hear administrative appeals before the city council or an appeals
Lippman filed this appeal, challenging only the denial of his petition seeking traditional mandamus. Specifically, his appeal is limited to the issue of whether the City's current administrative appeal process for deciding appeals from Building Services citations conflicts with the Building Code and, if a conflict exists, whether the matter at issue is a "municipal affair" governed by the City's municipal code or one of "statewide concern" governed by the Building Code.
In determining whether the trial court erred in denying Lippman's petition for writ of mandate, we first must determine whether there is a conflict between the City's municipal code and the 2010 Building Code. If such a conflict exists, we must decide whether Lippman's petition involves a "municipal affair" subject to regulation by the City or one of "statewide concern" subject to regulation by the state. In resolving these questions, we are guided by established principles of law.
A. Standard of Review
" 'A traditional writ of mandate under Code of Civil Procedure section 1085 is a method for compelling a public entity to perform a legal and usually ministerial duty.' " ( American Federation of State, County & Municipal Employees v. Metropolitan Water District (2005)
In interpreting a statute, "[w]e begin as always 'with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.' [Citation.] To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.] 'Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' " ( Trope v. Katz (1995)
B. Principles of Local Government Law
Oakland is a charter city for purposes of "home rule" authority. ( Cal. Const., art. XI, § 5, subd. (a).) A charter city " 'ha[s] exclusive power to legislate over "municipal affairs." ' " ( Cawdrey v. City of Redondo Beach (1993)
The relevant case law has identified the steps we must take in resolving this controversy. "First, a court must determine whether there is a genuine conflict between a state statute and a municipal ordinance. [Citations.] Only after concluding there is an actual conflict should a court proceed with the second question; i.e., does the local legislation impact a municipal or statewide concern?" ( Barajas v. City of Anaheim (1993)
C. The municipal code conflicts with the Building Code.
Lippman argues the City's appeals process before a single hearing officer conflicts with the procedures set forth in the Building Code. We agree.
1. State Law
The State Housing Law ( Health & Saf. Code, § 17910 et seq. ) provides statewide construction and occupancy standards for buildings used for human habitation. The State Housing Law incorporates into state law the Building Code, as well as various uniform codes, including the Uniform Housing Code. (Id. § 17922.) The State Housing Law, the building standards published in the Building Code, and rules and regulations promulgated therein "apply in all parts of the state" to apartment houses, hotels, motels, and dwellings, and buildings and structures accessory thereto. (Id. § 17950.)
At issue in this appeal is section 1.8.8 of the 2010 Building Code, entitled "APPEALS BOARD ," and it provides as follows:
"1.8.8.1 General. Every city, county, or city and county shall establish a process to hear and decide appeals of orders, decisions and determinations
"Where no such appeals boards or agencies have been established, the governing body of the city, county, or city and county shall serve as the local appeals board or housing appeals board as specified in
"1.8.8.2 Definitions. The following terms shall for the purposes of this section have the meaning shown.
"HOUSING APPEALS BOARD. The board or agency of a city, county or city and county which is authorized by the governing body of the city, county or city and county to hear appeals regarding the requirements of the city, county or city and county relating to the use, maintenance and change of occupancy of buildings and structures, including requirements governing alteration, additions, repair, demolition and moving. In any area in which there is no such board or agency, "Housing appeals board" means the local appeals board having jurisdiction over the area.
"LOCAL APPEALS BOARD. The board or agency of a city, county or city and county which is authorized by the governing body of the city, county or city and county to hear appeals regarding the building requirements of the city, county or city and county. In any area in which there is no such board or agency, "Local appeals board" means the governing body of the city, county or city and county having jurisdiction over the area.
"1.8.8.3 Appeals. Except as otherwise provided in law, any person, firm or corporation adversely affected by a decision, order or determination by a city,
"The local appeals board shall hear appeals relating to new building construction and the housing appeals board shall hear appeals relating to existing buildings." (2010 Building Code, § 1.8.8.)
2. Oakland Municipal and Planning Codes
The City's municipal code authorizes the city manager to set standards and procedures for holding administrative hearings "to adjudicate the issuance of administrative citations...." (OMPC, § 1.12.080(A).) The municipal code further states, "In all instances, the determination regarding administrative citations resulting from the administrative hearing shall be final and conclusive." (OMPC, § 1.12.080(C).)
Municipal code section 15.04.1.125 states that a property owner may request an administrative hearing with a "Hearing Examiner" in order to "hear and decide appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretation of the non-administrative (technical) requirements of this Code...." (OMPC,
Municipal code sections 15.08.410 et seq. outline the specific administrative hearing procedures used for building maintenance code violations. They establish the process for requesting a hearing, scheduling a hearing before the "Hearing Examiner," and determining what matters or issues will be considered. (OMPC, §§ 15.08.410, 15.08.420, 15.08.430.) When a property owner requests an appeal from a decision of the Building Official, the Building Official is required to fix the date, time, and place for the hearing of the appeal by the Hearing Examiner. (OMPC, § 15.08.410(B).) "Decisions made and determinations rendered by the Hearing Examiner shall be in all cases final and conclusive." (OMPC, § 15.08.450.)
3. Analysis
The City contends there is no conflict between the municipal code and the Building Code, as the latter requires only the establishment of "process" to hear and decide appeals, which does not require an "appeals board." We disagree.
We read the plain language of Building Code section 1.8.8.1 as mandating that local governments establish an appellate process, which may be satisfied in one of three ways: (1) by creating a local appeals board for new construction and a housing appeals board for existing buildings; (2) by creating an agency authorized to hear such appeals; or (3) by having the governing body of the city serve as the local appeals board or housing appeals board. Notably, however, the Building Code does not contemplate an appeal before a single hearing officer. Rather, the Building Code refers to an "appeals board." (Building Code, § 1.8.8.1.) A "local appeals board" is defined as "the board or agency of a city or county which is authorized by the governing body of the city or county to hear appeals regarding the building requirements of the city or county." ( Health & Saf. Code, § 17920.5, italics added; see also Building Code, § 1.8.8.2.) The Building Code section explains, "In any area in which there is no such board or agency, 'Local appeals board' means the governing body of the city, county or city and county having jurisdiction over the area." (Building Code, § 1.8.8.2; see also Health & Saf. Code, § 17920.5.) Thus, a city council or board of supervisors may be considered the local appeals board. Further, the local appeals board or governing body may act as the "housing appeals board." (Building Code, § 1.8.8.2; Health & Saf. Code, § 17920.6.) Consequently, at minimum, there is a mandatory duty to establish a local appeals board or an agency authorized to hear appeals. And, if no such board or agency exists, the governing body shall act as the local appeals board.
Prior versions of the Building Code support this interpretation. Up until 2010, the Building Code provided, "Every city, county
The 2010 Building Code differs from former versions in three respects. The 2010 Building Code provides that every city "shall establish a process to hear and decide appeals" instead of stating that every city "shall establish a local appeals board and a housing appeals board." (Compare 2010 Building Code, § 1.8.8.1, italics added, with 2007 Building Code, § 108.1; 2001 Building Code, § 105.1; 1998 Building Code, § 105.1.) The 2010 Building Code no longer specifies the minimum number of voting members of the appeal boards, but does state that members "shall not be employees of the enforcing agency...." (2010 Building Code, § 1.8.8.1.) The 2010 Building Code also mandates: "Where no such appeals boards or agencies have been established, the governing body of the city, county, or city and county shall serve as the local appeals board or housing appeals board as specified in California Health and Safety Code Sections 17920.5 and 17920.6." (2010 Building Code, § 1.8.8.1.) In our view, these amendments clarify that the "process" that is contemplated requires review by an appeals board, an agency, or a governing body.
Nevertheless, the City maintains that its process for handling appeals does not conflict with state law because the references to an "agency" in the State Housing Law and the Building Code suggest that the reviewing body need not be an entity distinct from its enforcement agency. The City argues that nothing in the State Housing Law or Building Code indicates that an agency authorized to hear appeals cannot be the enforcement agency itself. However, the plain language of the 2010 Building Code prohibits employees of the enforcing agency from serving as members of the appeals board. (2010 Building Code, § 1.8.8.1.) The City contends that because the Hearing Officer is not an employee of the enforcing agency, there is no conflict. The City's position appears to be that the enforcing agency is authorized to hear appeals so long as it does not utilize any of its employees. This argument not only requires a strained interpretation of the statutory scheme as a whole, it also requires that we read the word "agency" to mean the enforcement agency acting through a non-employee of that agency. This would violate " 'the cardinal rule of statutory construction that courts must not add provisions to statutes. [Citations.] This rule has been codified in California as [Code of Civil Procedure] section 1858, which provides that a court must not "insert what
In fact, the legislative history indicates the exact opposite-that an appeal should exist outside the enforcement agency. In 1961, the Legislature repealed the State Housing Act (former Health and Safety Code sections 15000 - 17902 ) and enacted the existing State Housing Law. (See
The City's process of authorizing an appeal to a single hearing officer appointed by the enforcement agency is contrary to the plain language of the State Housing Law and the Building Code and is inconsistent with the legislative intent. Accordingly, we conclude the municipal code conflicts with state law to the extent it provides for an appeals process inconsistent with the mechanism mandated by the Building Code and State Housing Law.
The City contends that its right to "home rule" overrides the Building Code and its related statutory scheme. We disagree.
"[T]he constitutional concept of municipal affairs is not a fixed or static quantity. It changes with the changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state." ( Pac. Tel. & Tel. Co. v. City & County of S.F. (1959)
"There must always be doubt whether a matter which is of concern to
"[T]he question whether in a particular case the home rule provisions of the California Constitution bar the application of state law to charter cities turns ultimately on the meaning and scope of the state law in question and the relevant state constitutional provisions. Interpreting that law and those provisions presents a legal question, not a factual one." ( State Building , supra ,
"Until the 1970's, every city and county in California adopted its own building code, unfettered by mandated state standards or state control. ( City of Bakersfield v. Miller (1966)
Because the state has delineated specifically where and in what manner local authorities may "adopt ordinances which vary from the uniform codes," we conclude the Legislature intended to preempt local government's power to legislate in the field of housing building standards, except as specifically permitted by state statutes. ( Briseno , supra , 6 Cal.App.4th at pp. 1382-1383,
"It is true that the power granted to the local authorities by the state in this area is broad; however, because the state has preempted this area, that authority must be exercised pursuant to a specific statutory grant of authority, not pursuant to the local government's general police power." ( Building Industry Association v. City of Livermore (1996)
E. The appellate process set forth in the Building Code is narrowly tailored to ensure uniform application of state law.
The last step in our analysis is to compare the scope of the statute to the statewide concerns sought to be addressed. The California Supreme Court
In determining the sweep of a state law, the California Supreme Court has " 'emphasize[d] that there is a clear distinction between the substance of a [n] ... issue and the procedure by which it is resolved.' " ( County of Riverside v. Superior Court (2003)
For example, in Baggett , supra ,
Conversely, in Riverside , supra ,
The California Supreme Court in Riverside also cited with approval its decision in Seal Beach , supra ,
The City contends Baggett and Riverside are not controlling because the impact of the instant case is "far less widespread" than matters of public employee labor disputes. In support of this assertion, the City avers no one other than Lippman "is affected by the problems on Lippman's property." While the conditions leading to Lippman's citations are indeed a local issue, the fairness of the procedure used to resolve citations generally is a matter of statewide concern. Although there are no cases specifically addressing this issue, we conclude that, just as a state has an interest in securing "basic rights and protections" to public employees ( Baggett , supra ,
The City further contends the Building Code's appellate requirements should not apply to the City because the property owners have other judicial safeguards in place that protect them from local abuse. Recently, a different panel of this division rejected a similar argument. In Morgado v. City and County of San Francisco (2017)
For the foregoing reasons, we reject the City's "home rule" argument. We conclude section 1.8.8 of the Building Code is a general law seeking to assure fair resolution of appeals affecting property owners, even though it may impinge upon the City's control to the limited extent that it requires appeals to be heard by an appeals board, an authorized agency, or its governing body, rather than by a single hearing officer appointed by the enforcement agency.
III. DISPOSITION
The judgment denying the petition for writ of mandate is reversed. On remand, the trial court is directed to issue a writ of mandate compelling the City to establish an appeals board or authorized agency to hear appeals or provide for an appeal to its governing body as required by section 1.8.8 of the Building Code. Lippman is entitled to costs on appeal.
We concur:
Ruvolo, P.J.
Rivera, J.
Notes
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Lippman also filed a petition for administrative mandamus (Code Civ. Proc., § 1094.5 ), challenging the substance of the citations. The instant appeal is limited to Lippman's challenge to the City's administrative appeals process under traditional mandamus. (Id. § 1085.)
Health and Safety Code section 17920.5 defines a "local appeals board" in terms identical to Building Code section 1.8.8.2. Health and Safety Code section 17920.6 defines "housing appeals board" as "the board or agency of a city or county which is authorized by the governing body of the city or county to hear appeals regarding the requirements of the city or county relating to the use, maintenance, and change of occupancy of hotels, motels, lodginghouses, apartment houses, and dwellings, or portions thereof, and buildings and structures accessory thereto, including requirements governing alteration, additions, repair, demolition, and moving of such buildings if also authorized to hear such appeals. In any area in which [there] is not such a board or agency, 'housing appeals board' means the local appeals board having jurisdiction over such area."
Appendix B of the 2010 Building Code contains similar language pertaining to the qualifications of members of an appeals board. (2010 Building Code, appen. B at p. 675.) However, the provisions in this appendix are not mandatory unless specifically referenced in the adopting ordinance. According to the Matrix Adoption Table, Appendix B was not adopted by the state agencies. (Id. at p. 673.)
In this regard, Lippman's reliance on the grand jury report allegedly criticizing the City's appeals process is misplaced. On Lippman's request, we took judicial notice of the 2011 grand jury report, but we did not make a determination as to its relevance.