1. Michigan Department of Licensing and Regulation Bureau of Construction Codes

2. Construction Boards of Appeals Irvin J. Poke, AIA, Director Course 17212 2 Hours Admin

3. Construction Board of Appeals Agenda 1) Purpose/No Exceptions/Technical Bulletin 2) Section 14 of Act 3) Procedures/ Guidelines: Timelines for Filing Appeal Open Meetings Act Notice to Interested Parties and Hearing Variance from the Code Decisions 4) Sections 16, 17, and 18 of Act (h)

4. What is the Purpose of the Construction Board of Appeals? --Resolution of Code Issues --Due Process --Meet Statutory Requirement: -Many governmental subdivisions fail to establish a Construction Board of Appeals, or, -Enforcing agencies which have a construction board of appeals have no procedures for conducting business. -Consequently, decisions may be legally challenged.

5. No Exceptions Are Construction Boards of Appeal required under the following situations: Split Jurisdictions? YES Infrequent Appeals? YES In addition to Zoning Board? YES Lack of staff support? YES

6. Technical Bulletin BCC has issued a Technical Bulletin The Bulletin provides information on establishing a board of appeals and qualification of members; procedures for official notifications; conducting hearings; and preparing decisions.

7. Section 14 – Construction Board of Appeals (1)A board shall consist of not less than 3 nor more than 7 members. Unless provided by local law or ordinance, the members of the board of appeals shall be appointed for 2 year terms by chief executive officer of city, village, township or chairperson of county board of commissioners for a county. The Act requires that a member be qualified by experience or training to perform the duties of members of the board of appeals. More specifically, members must have a background in construction and working knowledge of the codes.

8. Section 14 – Construction Board of Appeals If an enforcing agency refuses to grant an application for a building permit,... makes any other decision pursuant or related to this act, or the code, an interested person, or the person's authorized agent, may appeal in writing to the board of appeals. The board of appeals shall hear the appeal and render and file its decision with a statement of reasons for the decision... not more than 30 days after submission of the appeal. Failure by the board of appeals to hear an appeal and file a decision within the time limit is a denial of the appeal for purposes of authorizing the institution of an appeal to the commission.

9. Section 14 – Construction Board of Appeals A copy of the decision and statement of the reasons for the decision shall be delivered or mailed, before filing, to the party taking the appeal. (2) This act does not prevent a governmental subdivision from granting its board of appeals additional powers or duties not inconsistent with this act, or from establishing procedures to be followed by its board of appeals insofar as the procedures do not conflict with this act. Except as otherwise provided by this act, or by other laws or ordinances, a board of appeals may by rules establish its own procedures.

10. Section 14 – Construction Board of Appeals (3) The business which the board of appeals may perform shall be conducted at a public meeting of the board of appeals held in compliance with 1976 PA 267. (4) A record of decisions made by the board of appeals, properly indexed, and any other writing prepared, owned, used, in the possession of, or retained by the board of appeals in the performance of an official function shall be made available to the public in compliance with 1976 PA 442.

11. Section 14 – Construction Board of Appeals A separate Construction Board of Appeals is not required for each part of the code, although it is allowable. If an enforcing agency enforces all four codes, it is recommended that there be at least one member as an expert in each of the codes. Governmental subdivisions may join together and establish one board serving several enforcing agencies.

12. Procedures/Guidelines A Construction Board of Appeals should establish procedures for processing appeals and requests for variances. The following are recommended guidelines: –Timeline for Filing an Appeal –Open Meetings Act –Notice to Interested Parties –Hearing –Variance from the Code –Decisions –Appeal to the Construction Code Commission (h)

13. Timeline for Filing an Appeal Failure to grant, in whole or in part, or deny an application for permit within a maximum of 15 days, is deemed a denial of the application for purpose of authorizing an appeal.

14. Open Meeting Act Construction Board of Appeals meeting must be conducted in accordance with Open Meetings Act, 1976 PA 267. –Notice of time, date, place of meetings posted at principal office of public body. –If regular meetings, post yearly schedule. Notice of meeting change must be posted within 3 days of meeting at which change was made.

15. Open Meetings Act –Notice of rescheduled regular or special meetings, which normally would be the case for a Construction Board of Appeals, must be posted 18 hours before the meeting. –Minutes of meeting must be kept of a public body and must contain the date, time, and place of the meeting, members present and absent, any decisions made.

16. Open Meetings Act Minutes are public records and subject to the Freedom of Information Act. Copies are to be made available to the public at a reasonable estimated cost for printing and copying.

17. Open Meetings Act -Select Highlights- (1)PA 267 of 1976, Open Meetings Act: This act shall supercede all local charter provisions, ordinances or resolutions which relate to requirements for meetings of local public bodies to be open to the public. (2) “Public body” means any sate or local legislative governing body, including a board, commission, committee, subcommittee,... Empowered by state constitution, statute, charter, ordinance resolution or rule to exercise governmental or perform a governmental function.

18. Open Meetings Act -Select Highlights- “Meeting” means the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy. “Decision” means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill or measure on which a vote by members of a public body is required and by which a public body effectuates for formulates public policy.

19. Open Meetings Act -Select Highlights- (3) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be able to attend any meeting except as otherwise provided in this act. All decisions of a public body shall be made at a meeting open to the public.

20. Open Meetings Act -Select Highlights- Section 4– The following provisions apply with respect to public notice of meetings: -A public notice shall always contain the name of the public body to which the notice applies, its telephone number if one exists and its address. -A public notice for a public body shall always be posted at its principal office and any other locations considered appropriate. -If a public body does not have a principal office, the required public notice for a local public body shall be posted in the office of the county clerk.

21. Notice to Interested Parties Interested parties must be properly notified of hearing and given reasonable notice time. The notice should include: –A statement of the date, hour, place, and nature of the hearing. –A statement of the legal authority and jurisdiction under which the hearing is to be held. (h)

22. Notice to Interested Parties –A reference to the particular sections of statutes, rules or codes involved. –A short statement of the matters asserted. Recommended that the notice be mailed by certified or registered mail so that there is proof of service. A “Proof of Delivery” provides excellent proof of service.

23. Hearing Hearing shall be conducted in an impartial manner. Failure to appear after proper service of notice, board may proceed or may postpone. However, decision must be rendered within 30 days from the date of request. If quorum is not present, appellant should be given right to request a postponement of hearing. (h)

24. Hearing Interested parties served with a notice of hearing may file written answers before the date set for the hearing. Parties shall be given an opportunity to present oral and written arguments on issues of law and policy and opportunity to present arguments and evidence on issues of fact.

25. Hearing The chairperson or designated person should act as presiding officer and may do: –Administer oaths and affirmations. –Regulate the course of the hearings. –Direct parties to confer to consider simplification of the issues by consent of the parties.

26. Variance from the Code Section 15 of the State Construction Code Act is applicable throughout the state and prevails over provisions in nationally recognized codes.

27. Section 15– Specific variance from code ( 1) After a public hearing a board of appeals may grant a specific variance... if the literal application of the substantive requirement would result in an exceptional, practical difficulty to the applicant, and if... : (a) The performance of the particular item or part... shall be adequate for its intended use and shall not substantially deviate from performance... (and) (b) The specific condition justifying the variance shall be neither so general nor recurrent in nature as to make an amendment of the code...

28. Section 15 -- Specific Variance from the Code (2) A board of appeals may attach in writing any condition in connection with the granting of a variance that in its judgment is necessary to protect the health, safety, and welfare of the people. The breach of a condition shall automatically invalidate the variance and any permit, license and certificate granted on the basis of it. In no case shall more than the minimum variance from the code be granted to alleviate the exceptional, practical difficulty.

29. Decisions Official records of all hearings should be prepared and include the following: –Notices, pleadings, motions, and intermediate rulings. –Questions and offers of proof, objections and rulings thereon. –Evidence presented; Findings and exceptions. –Decisions and reasons for the decision. (h)

30. Section 16 – Appeals to Commission Sec. 16. (1) An interested person, or the interested person's authorized agent, may appeal a decision of a board of appeals to the commission within 10 business days after filing of the decision with the enforcing agency or, in case of an appeal because of failure of a board of appeals to act within the prescribed time, at any time before filing of the decision.

31. Section 16 – Appeals to Commission The hearing of an appeal based on the denial of a request for a variance... is within the sole discretion of the commission. If deciding an appeal, the commission may act either as a whole or by a panel of 3 or more of the commission members... to hear and decide the appeal.

32. Section 16 – Appeals to Commission A majority of a panel constitutes a quorum and a decision by a panel requires concurrence of at least a majority of the panel's members. If an appeal has been presented to the commission within the time prescribed, the appeal shall be heard de novo by the commission. The commission may affirm, modify, or reverse a decision of the board of appeals or the enforcing agency.

33. Section 16 – Appeals to Commission Except if modified or reversed by a court of competent jurisdiction, a decision of the commission made under this section is binding on the applicant and the affected board of appeals and enforcing agency. An appeal to the commission shall be decided within 30 days after receipt of the appeal by the commission. A copy of the decision and a statement of reasons for the decision shall be sent to the applicant and filed with the affected board of appeals and enforcing agency within 5 business days after the making of the decision.

34. Section 16– Appeals to Commission A record of decisions made by the commission under this section, properly indexed, shall be kept in the office of the commission and be open to public inspection during business hours in compliance with the freedom of information act, PA 442 of 1976.

35. Section 16 – Appeals to Commission (2) Notwithstanding subsection (1), the executive director of the commission shall refer an appeal to the commission under subsection (1) which in the executive director's judgment relates principally to a mechanical, plumbing, electrical, or barrier free design matter to the appropriate board. The board shall hear and decide the appeal in the same manner as an appeal is heard and decided by the commission under this section, except that a board shall meet as a whole and not in a panel.

36. Section 16 – Appeals to Commission A person aggrieved by a decision of a board on any appeal under this subsection may petition the commission to review the decision. The commission shall act on the petition within 5 business days after receipt, and may grant the petition at the commission's discretion except that the commission shall grant the petition if it appears that the appeal involves a question of major significance to the people of this state and that the case of the appellant has substantial merit. If the commission grants the petition, the commission acting as a whole shall review the decision in accordance with a procedure established by the commission's rules.

37. Section 17 –Effects of Appeals on Orders, Decisions, and Actions Sec. 17. An appeal to a board of appeals or the commission pursuant to this act, or to a court of competent jurisdiction pursuant to 1969 PA 306, as amended, does not stay a stop construction order issued by an enforcing agency or prevent an enforcing agency from seeking an order in a court of competent jurisdiction enjoining the violation of a stop construction order.

38. Section 17– Effects of Appeals on Orders, Decisions and Actions In other cases, an appeal to a board of appeals, or to the commission pursuant to this act, or to a court of competent jurisdiction pursuant to 1969 PA 306, shall act as a stay upon an order, decision or action appealed from, unless the enforcing agency establishes that immediate enforcement of the order, decision or action is necessary to avoid substantial peril to life or property

39. Section 18– Filing Claim of Appeal or Petition for Review An appeal pursuant to 1969 PA 306 from a decision of the commission or a board, following an appeal from a decision of a board of appeals or enforcing agency shall be made by a claim of appeal filed with the court of appeals. An appeal pursuant to that act from any other decision of the commission or of a board shall be by petition to review filed with Ingham county circuit court.

40. Conclusion—Implication for Inspectors Knowledge of Code Application of Code Importance of Documenting Code Violations Importance of Communication Skills both Written and Verbal (h)

41. Questions

42. Contact the Bureau Bureau of Construction Codes Web Page –www.michigan.gov/bccwww.michigan.gov/bcc Bureau of Construction Codes Mail –P.O. Box 30254 Lansing, MI 48909 Bureau Contact –Phone517 241 9302 –Fax517 241 9570