Recent Court Decision Highlights Due Process Requirements for Building Enforcement Appeals
by Matthew S. Kane on February 11, 2018
posted in Recent Court Decisions,
A recent court ruling in the First Appellate District of the California Court of Appeal may require cities to make changes to their procedures for hearing administrative appeals of substandard housing citations.
In Lippman v. City of Oakland, a landlord who owns rental property in Oakland appealed citations he received from the City’s Building Services Department for blight and substandard living conditions. The landlord’s claims on appeal were adjudicated by a single hearing officer who was appointed by the same Department that cited him.
The landlord sought a writ of mandate to force the City to have his appeals heard by an outside appeals board or the City council instead of a single hearing examiner, arguing that the appeals process conflicted with the Building Code and that the issue was a matter of “statewide concern.”
The landlord was successful. In a 3-0 ruling, the appellate Court of Appeal noted that the 2010 Building Code mandates that every City establish a process for hearing and deciding appeals. If the established process involves an appeals board, the members of the board cannot be employees of the enforcing agency. Where no appeals boards or agencies have been established, the governing body (e.g., the City Council) serves as the local appeals board or housing appeals board.
The Court also confirmed that this issue is a matter of statewide concern because there is a statewide interest in having uniform building codes. To that end, the Court disagreed that the City’s right to “home rule” would override the Building Code, and instead found that the appellate process circumscribed by the Building Code is narrowly tailored to ensure uniform application of state law.
In light of the Lippman decision, local authorities should review their administrative appeals procedure with counsel to ensure compliance with the Building Code and other state mandates. While most local entities ensure that appeals are handled outside of the enforcement agency, some may be relying on longstanding practice in their municipal codes to handle these appeals and related administrative decisions “in-house.” The cost savings realized from utilizing the in-house process could disappear if enforcement efforts, which are usually costly and time-consuming, are invalidated on procedural grounds.
