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City Government

 

10. Board Of Building Code Appeals

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CHAPTER 10

BOARD OF BUILDING CODE APPEALS

2-10-1: CREATION
2-10-2: MEMBER QUALIFICATIONS; LEGAL ADVISOR; SECRETARY 
2-10-3: POWERS AND DUTIES 
2-10-4: APPLICABLE CODES 
2-10-5: MEETINGS 
2-10-6: RULES OF PROCEDURE 
2-10-7: HEARINGS 
2-10-8: APPEALS FROM DECISIONS OF THE BOARD 
2-10-9: ACTING CHAIRPERSON; QUORUM; PROCEDURE

2-10-1: CREATION:
(1841 2068) There is hereby created a Board of Building Code Appeals, hereinafter referred to as "the Board," consisting of five (5) regular members and two (2) alternates.

2-10-2: MEMBER QUALIFICATIONS; LEGAL ADVISOR; SECRETARY: (1841 2033 2068)

(A) MEMBER QUALIFICATIONS: At least three (3) regular members and one (1) alternate member of the Board shall be either a licensed architect, a registered engineer with building related experience, or a construction company executive or superintendent with at least ten (10) years of construction experience. Board members shall not be employees of the City. No Board member may hear or vote upon any appeal in which that member has any personal, professional, or financial interest, pursuant to applicable State statutes and City Charter and ordinance provisions.

(B) SECRETARY TO THE BOARD: The City shall provide a secretary to the Board, who shall be the custodian of the Board's records, conduct the Board's correspondence, collect all fees, and be responsible for the clerical work of the Board. The secretary to the Board shall have no voting power on any matter coming before the Board.

2-10-3: POWERS AND DUTIES: (1841 2068 2770)

(A) APPEALS: The Board shall have jurisdiction to hear the following matters:

(1) The Chief Building Official or Fire Marshal has rejected or refused to approve an alternate method or material of construction that the appellant alleges to be the equivalent of that prescribed in the applicable code in terms of suitability, strength, effectiveness, fire resistance, durability, safety, or sanitation. In order to grant the appellant's request, the Board must find that test results, factual documentation, or other such data or evidence provided by the appellant substantiates the appellant's claim that the method or material of construction is equal to or superior to that prescribed in the applicable code in terms of suitability, effectiveness, fire resistance, durability, safety, or sanitation.

(2) The appellant alleges that the Chief Building Official or Fire Marshal has made an error in the interpretation of a code. In order to grant the appellant's request, the Board must find that the Chief Building Official or Fire Marshal has made an error in the interpretation of a code.

(3) The appellant alleges that the Chief Building Official or Fire Marshal is imposing certain provisions of a code that do not apply to the project being constructed. In order to grant the appellant's request, the Board must find that the provisions of the applicable code do not apply to the project being constructed.

(4) The appellant alleges that the Chief Building Official or Fire Marshal is imposing a wrongful requirement in a building matter that is not specifically addressed in the applicable code. In order to grant the appellant's request, the Board must find that the requirement is not addressed in the applicable code, is not appropriate, and that granting the request would be consistent with the intent of the applicable code.

(5) The appellant alleges that there are practical difficulties or unnecessary hardships caused by conformance to the strict letter of a code, that the literal interpretation of a code will produce undesirable results that are inconsistent with the intent of the applicable code, or that there are special individual reasons that make the strict application of the provisions of a code impractical. In order to grant the appellant's request, the Board must find that all of the following requirements would be satisfied: 

(a) The granting of the request would not endanger public health, safety, or welfare;
(b) The granting of the request would be in compliance with the spirit and intent of the applicable code;
(c) The granting of the request is site specific and shall not in any way constitute a modification of the applicable code;
(d) The granting of the request would result in substantial justice being done; and
(e) There are practical difficulties or unnecessary hardships involved in conforming to the strict provisions of the applicable code, the literal interpretation of the applicable code will produce undesirable results that are not consistent with the intent of the applicable code, or there are special individual reasons that make strict conformance to the provisions of the applicable code impractical.

(6) The appellant alleges that an omission or error in the plans, specifications, or other data submitted to the City for review was not addressed by City staff and has resulted in a code violation that the Chief Building Official or the Fire Marshal is now requiring to be corrected and brought into compliance with the applicable code. In order to grant the appellant's request, the Board must find that the code violation resulting from the omission or error in the plans, specifications, or other data is not substantial in nature, and that public health, safety, or welfare will not be endangered in the absence of the correction.

(7) The appellant alleges that the Chief Building Official has erred in issuing a notice or order or in taking an action under the Uniform Code for the Abatement of Dangerous Buildings. In order to grant the appellant's request, the Board must find that the Chief Building Official erred in the enforcement of the Uniform Code for the Abatement of Dangerous Buildings. The procedure for appeals brought under this paragraph shall be consistent with this Chapter and with the Uniform Code for the Abatement of Dangerous Buildings. However, if a conflict exists in the provisions, the latter shall control.

(B) DECISIONS OF THE BOARD: The Board shall render a written decision within fifteen (15) days after a hearing, accompanied by findings of fact and conclusions based thereon. Conclusions based upon any provision of this Chapter, a code, or any City rule or regulation shall contain a reference to such provision, rule, or regulation and shall also contain the reason the conclusion is appropriate in light of the facts found. In rendering a decision, the Board may grant, modify, or deny the request. A decision in favor of the appellant shall grant the matter requested and shall be an order directed to the Chief Building Official or Fire Marshal to carry out such action, subject to any conditions or modifications imposed by the Board.

2-10-4: APPLICABLE CODES: (1841 1883 2068 2534 2770) The provisions of this Chapter shall apply to all building, fire and rental maintenance codes and amendments thereto as adopted by reference in Chapters 9, 10 and 12 of Title XI of this Code. References in this Chapter refer to the codes specified in this Section.

2-10-5: MEETINGS: (1841 2068)

(A) REGULAR MEETINGS: The Board shall meet once a month unless there is no business before the Board and there are no requests to be heard or considered. Three (3) Board members shall constitute a quorum and shall be required for the conduct of any meeting or the taking of any action. A majority of the votes cast shall be required to grant any request. An appellant may request postponement of a hearing if
fewer than a total of five (5) regular and alternate members are present. A fee of fifty dollars ($50) shall be paid to the secretary to the Board with every application for a hearing before the Board at a regularly scheduled meeting.

(B) SPECIAL MEETINGS: The Chairperson may schedule special meetings of the Board at such times as deemed necessary by the Board, upon receipt of a written request therefor from the appellant. Such request shall be made on forms provided by the Chief Building Official. Special hearings shall be paid for by the appellant in the amount of one hundred dollars ($100). Upon approval of the appellant's request for a special hearing, a special hearing shall be scheduled and the appellant shall be notified of the date for the hearing.

2-10-6: RULES OF PROCEDURE: (1841 2068) The Board shall adopt rules of procedure for the conduct of its business. A copy of all rules of procedure and amendments thereto shall be kept on file with the Chief Building Official and made available to the public upon request.

2-10-7: HEARINGS: (1841 2068) The Board shall conduct hearings and make decisions in accordance with the following requirements:

(A) All hearings shall be open to the public. The secretary to the Board shall notify all interested parties of the time and place of hearings.

(B) The Board shall keep a record of the proceedings, either stenographically or by sound recording. At the hearing, the secretary to the Board shall record the vote of each member on every case or, if a member is absent or fails to vote, shall record such fact. A transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any person upon request and payment in advance of the estimated cost of production.

(C) At the hearing, following the introduction of the case, the Chief Building Official or Fire Marshal, or their designee, may present the City's position and recommendation, after which the appellant or a representative of the appellant may present any pertinent information regarding the request. The burden of proof shall be on the appellant.

(D) All witnesses shall be sworn or shall affirm their testimony in the manner required in the courts of record where the City is located.

2-10-8: APPEALS FROM DECISIONS OF THE BOARD: (1841 2068) The City or the appellant may appeal a decision of the Board to the district court under the Colorado Rules of Civil Procedure, Rule 106(a)(4).

2-10-9: ACTING CHAIRPERSON; QUORUM; PROCEDURE: (2770) In the absence of the elected Chairperson, the Vice-Chairperson shall assume the duties of the Chairperson for that respective meeting. A quorum shall consist of three (3) members, and a decision of a majority of the members present shall control. Any absent member may join in a pending decision of the Board subject to Section 2-1-3, W.M.C. All public hearings shall, at a minimum, be recorded electronically, or, as deemed necessary by the Chairperson may be stenographically recorded by a court reporter engaged by the City and paid out of fees paid by the applicant.

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