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In This Issue...
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County's Appeals Board Loses Chairman
Struggles to Find Agreement with Planning Department
By R.T. Sideman
The Santa Cruz County Planning Department is squaring off with a newly formed appeals board in a power struggle about who has the final say over contested building permit decisions.
After three decades in dormancy, the Building, Accessibility, and Fire Code Appeals Board was reinstated when building professionals and community members complained about the planning department having too much unchecked authority. But within a matter of weeks, a jurisdiction fight began.
The chairman of the all-volunteer appeals board resigned in a strongly worded letter charging planning department managers with unprofessional conduct, while county officials have charged the appeals board members with overstepping the board's authority by attempting to hear appeals that should be resolved by planners.
Planning Director Tom Burns has insisted that he reserves the right to act as a "gatekeeper," able to control which permit disputes are eligible for appeals and should be forwarded to the Board of Supervisors.
Who Is in Charge?
On May 11, appeals board chairman Michael Bethke, in his resignation letter to Supervisor Neal Coonerty, said that he had sought to help facilitate "a transparent and restorative 'healing' process whereby many of the disheartened citizenry of the county could ventilate their often emotionally laced issues and concerns via a new public hearing process that they were apparently seeking for many years."
Bethke, a vice president with Slatter Construction and a civic leader, said that during private meetings with senior planning officials, he was met by resistance, describing their behavior as "condescending" and "mean-spirited."
"At the very least, the only thing I was seeking was just a modicum of respect as payment for all my volunteer services. Absent that, and as I have grown older — and hopefully a little more wiser — the most valuable lesson I have learned is that life is far too short to waste precious time on small-minded people," he wrote.
Burns has formally asked for appeals board members to avoid dealing directly with permit applicants or homeowners seeking for appeal. Instead, said Burns, appellants should be redirected to the Planning Department front counter.
"In spite of correspondence from appellants or others, reacting directly to requests will only cause more confusion," Burns said.
Not Backing Down, for Now
One appeals board member, promising a fight, said they would continue to work directly with residents and building professionals who seek appeals.
Yet Dan Bronson, an electrical contractor who will replace Bethke as chair of the appeal board, said he doesn't like being characterized as a "rogue."
"Frankly, it acts to damage a new board's credibility with the Board of Supervisors at a time when we're going through birthing pains that are incredible compared to any other board in this county's history," said Bronson.
Bronson travels with a stack of binders filled with papers from prior court cases. The paper he says supports broader authority for appeals boards. He plans to make his case before the Board of Supervisors next month.
All sides agree that the appeals board — comprised of licensed engineers, architects and inspectors — has jurisdiction over technical issues related to standards laid out in county building and fire codes.
Such issues are rarely, if ever, contested. In Scotts Valley and Capitola, for example, building officials cannot recall any case of a planning decision being challenged to an appeals board on technical grounds.
But county appeals board members argue that many decisions, including "work stop" orders (known as red-tagging) are fair game for an appeal because they are essentially based on technical standards, such as building height, setbacks or safety features.
They believe they are given wider authority under state building rules. County officials have repeatedly dismissed those claims while citing county ordinances, recently passed after considerable public comment, which specifically address limits to the board's power.
"It's a very confusing issue in California about what authority a board of appeals has," said Daniel Kostelec, a Capitola building official. "The code is ambiguous."
At the May 18 appeals board meeting, Supervisor Neal Coonerty backed county planning staff and said that the planning board is "confusing the public" regarding the county's position.
"The notion that a local board of appeals, whose purpose is to allow flexibility in the application of the technical standards of the building and fire codes, somehow has jurisdiction over all aspects of the county's land use and environmental regulations is not correct," Coonerty said, addressing the appeals board. "Furthermore, any suggestion that (the appeals board) is not answerable to anyone, including the Board of Supervisors, is also erroneous."
Although Burns has said that the powers and duties of the appeals board are already "set forth clearly" in the county code, Coonerty asked Burns and county attorneys to further clarify the role of the appeals board, which could mean passing new ordinances.
Does the State Law Trump the County Rules?
Some have argued that since state law trumps local ordinances, any attempt to override California rules regarding appeals boards would be vulnerable to legal challenges.
Joe Ritchey, a former constitutional law lecturer and longtime Santa Cruz resident, said the county should welcome an empowered appeals board because it could serve to insulate the county from future lawsuits.
"When contractors have sued other counties for unfairly red-tagging a project, the courts have said that because there is an impartial board of appeals, that you have been afforded a fair hearing. Appeals boards act as a 'jury' protecting the county against liability."
Architect Cove Britton, who has submitted five appeals to the planning department, said he has no doubt that the "gatekeeper" concept is unlawful and that the county is treating technical issues as discretionary.
Britton pins high hopes on the work of the appeals board, which he believes is an antidote to the bureaucratic culture that has given Santa Cruz County a reputation as a tough place for the building industry to do business.
"We've got projects hung up for six months dealing with drainage issues," he said. "Now, with the appeals board, I have an avenue to seek a second opinion without having to go to court. I think it's a sea change in the way the county does things."
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