1st District Court of Appeal reverses ruling over Oakland’s appeals process

By David Hutton | Jan 31, 2018

A panel of judges for the California 1st District Court of Appeal has reversed a lower court’s ruling that the city of Oakland’s administrative appeals process complied with the California Building Code.

SAN FRANCISCO — A panel of judges for the California 1st District Court of Appeal has reversed a lower court’s ruling that the city of Oakland’s administrative appeals process complied with the California Building Code.

Judge John W. Kennedy wrote the opinion, with Judges Ignazio Ruvolo and Maria P. Rivera concurring.

Kennedy was assigned from the Contra Costa County Superior Court of California.

According to court documents, plaintiff Thomas Lippman had sought a writ of mandate to require the city of Oakland to have an appeals board or the governing body of the city review his citations for blight and substandard living conditions on his rental property. Lippman argued that the city "violated the California Building Code ... by having a single hearing officer, who had been appointed by the very entity that cited him, hear his claims," the opinion said.


The Alameda County Superior Court determined the city’s administrative appeals process complied with the Building Code.

Kennedy noted that the appeals court disagreed with that decision, and the three-judge panel voted unanimously to reverse it.

According to background information in the ruling, in 2009 and 2010, Lippman was cited for blight and substandard living conditions at rental properties he owns. However, he disputed the citations and eventually sought administrative review.

Those appeals were heard in 2012 by a hearing officer appointed by Building Services. That officer, after hearing oral testimony and reviewing relevant information, upheld the citations.

Lippman then filed the writ petition, arguing that his appeals should have been heard before the city council or an appeals board instead of a single hearing examiner.

Moreover, Lippman also argued that the city’s appeals process before a single hearing officer conflicts with the procedures set forth in the Building Code, and Kennedy wrote that the appeals panel agreed with that assertion.

The city countered there isn’t a "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,'" according to the opinion.

Kennedy said the appeals panel didn’t find that counterargument compelling.

Further, Kennedy noted the panel reviewed the language of Building Code Section 1.8.8.1 as mandating that local governments establish an appellate process. He wrote the section may be satisfied in one of three ways: first, “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,” Kennedy wrote. “Rather, the Building Code refers to an ‘appeals board.’”

Moreover, Kennedy noted that prior versions of the Building Code support this interpretation.

Kennedy also wrote the 2010 Building Code provided, “Every city, county or city and county shall establish a local appeals board and a housing appeals board.”

The panel also noted that legislative history in California also indicates that an appeal should exist outside the enforcement agency.

Finally, Kennedy wrote that the panel rejected 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,” Kennedy wrote.

As a result, the judgment denying Lippman’s petition for writ of mandate was reversed and Kennedy noted that on remand, the trial court is directed to issue a writ of mandate ordering the city to form an appeals board or authorized agency to hear appeals or provide for some other appeal to its governing body under the Building Code.

Lippman also was awarded costs on appeal.

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