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Fresno’s aggressive code enforcement scheme may hit legal brick wall

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Fresno’s aggressive code enforcement scheme may hit legal brick wall

An appeals case out of Oakland could change how Fresno handles code enforcement appeals.

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A key piece of Fresno’s code enforcement system might be heading for trouble.

City Hall uses an administrative hearing officer to handle the appeals of property owners upset with their fines.

But a recent decision from the San Francisco-based First District Court of Appeal said such appeals should be heard by a board rather than a single individual.

The case before the court’s First Division – Lippman v. City of Oakland – involved only that one property owner and that Bay Area city.

However, the court’s decision was officially published in late January. That means the decision can be cited in other legal venues when landlords butt heads with the local code enforcement process.

Which happens a lot in Fresno.

Thomas Lippman is a property owner in Oakland. The city’s Building Services Department in 2009-2010 cited Lippman for blight and substandard living conditions on his property. Lippman decided to fight the citations and fines.

A hearing officer appointed by Building Services heard Lippman’s appeal. The hearing officer said Building Services was right and Lippman was wrong.

That was Step One.

In Step Two, Lippman went to a Superior Court judge. He said his appeal at Oakland City Hall should have been heard by the Oakland City Council or an appeals board instead of a lone hearing officer. In other words, a group of judges rather than just one judge.

Lippman said the State Housing Law and the State Building Code support his claim. Oakland City Hall said the crafting of a code enforcement appeal process is a local affair, not a state affair.

The Superior Court judge sided with Oakland.

In Step Three, Lippman went to the First DCA. The First DCA’s First Division got the case. The appellate court’s eight-page decision covers a lot of history of land-use regulation in California. Lots of case law is cited. Bottom line: The appellate court said the state’s interest in statewide uniformity in the code enforcement process (including appeals) outweighs the claims of local control.

The appellate court said it reads “the plain language” of the Building Code “as mandating that local governments establish an appellate process which may be satisfied in one of three ways: (1) 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.”

Toward the end of its decision, the appellate court said the state “also has an interest in protecting the basic rights of property owners. Thus, contrary to the City’s contention, it is a ‘sensible and appropriate’ allocation of state power to require compliance with the Building Code’s appeals board requirement.”

What’s this mean for Fresno?

My guess is that, in the near-term, nothing. Michael Flores, the city’s independent administrative hearing officer, remains on the job. He hears 20 to 25 appeals per month. Most of the appeals involve code enforcement issues.

I’m told by good authority that both Flores and the City Attorney’s Office are well aware of the Lippman decision. But it looks like the status quo will continue to quietly rule the day at City Hall until a lawyered-up property owner forces a reckoning by raising a stink.

And I’m guessing that even then there’s no guarantee that a local complaint similar to Lippman’s would be enough to scuttle Fresno’s “lone wolf” hearing process. Every situation is different.

Still, it’s not hard to contemplate how the Lippman precedent could complicate, if not destabilize, Fresno’s code enforcement appeal process.

That process, much changed in the past two years, is itself part of a code enforcement system that has evolved dramatically in the past decade. I won’t bore you with a rewrite of the long City Beat column I wrote for The Bee in September 2015 on the history of code enforcement in Fresno. It’s enough here to simply note that the arrival of Ashley Swearengin in the mayor’s chair in 2009 set in motion a major expansion of code enforcement’s mission and authority. That expansion continues under Mayor Lee Brand. Last year’s Rental Housing Improvement Act is only the latest tool on the law books. The beefing up of the Code Enforcement Division’s assets – lots more inspectors and deputy city attorneys – means new opportunities to apply force against misbehaving landlords.

But constitutionally-protected “due process” is also part of the code enforcement process. Ed Johnson used to be the public face of “due process” at City Hall. He was the lone administrative hearing officer for most of the last years of Swearengin’s second term. City officials had nothing good to say about Johnson. They thought he was too soft on code-breaking landlords.

Johnson disagreed, and the statistics support him. But there can be no doubt that Johnson had serious concerns about Fresno’s formula for fining bad landlords. Some of the fines were tens of thousands of dollars. I know of one penalty that was well into the six-figure range.

Johnson wanted to hold individual hearings on the constitutionality of those big fines. He never got the chance. His contract expired at the end of 2015, and it wasn’t renewed. Flores, who was hired late in Johnson’s stint, now shoulders the “due process” burden by himself. He’s plenty busy.

See where we’re heading? City officials, housing activists, renters and landlords have a lot riding on Fresno’s ever-growing code enforcement process. The monthly code enforcement appeals calendar figures to get even more crowded. Fresno’s way of punishing law-breaking landlords is already controversial. Flores, the former Fresno deputy city attorney, calls them like he sees them – but he’s just one guy. Flores’ advantage is that, being the only person in the judicial hot seat, he can act swiftly. But now comes the First District Court of Appeal saying Thomas Lippman’s code enforcement appeal should have been heard by a full board instead of one person – and, perhaps, the same holds true for all the angry Thomas Lippmans caught in Fresno’s code enforcement process.

What if a hot shot lawyer at Flores’ next hearing says: “Mr. Flores, per the Lippman decision, you’re not authorized to hear my client’s appeal. We want a full board.”

Should Fresno hire more legal experts like Flores, enough to create a three- or five-person appeals board?

If so, where does City Hall get the money?

What are the operational rules for a new appeals board?

Should the Fresno City Council become the appeals board (which is permitted by state law)?

Would delays in the rendering of decisions by an appeals board cause unacceptable delays in the elimination of blight and unsafe living conditions?

These are just some of the questions facing Fresno City Hall in the wake of Lippman v. Oakland.

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George Hostetter

George Hostetter is a contributor to CVObserver and advisor to The Collegian, the student newspaper of Fresno State.

3 Comments

3 Comments

  1. Dan Waterhouse

    February 2, 2018 at 11:18 am

    The City should expect a legal challenge if they lone-wolf it. The lawyers in the Oakland case work for the Pacific Legal Foundation, a conservative property rights group. In an article on this case I read before the ruling was published and became statewide precedent, a representative from PLF made it clear they would be filing cases against every jurisdiction in the state using hearing officers.

  2. David Mason

    February 3, 2018 at 7:19 am

    FYI, the California Government code specifically allows a County Board of Supervisors (not a city council) to delegate their authority to hear appeals to an Administrative Hearing Officer. That hearing officer must be a licensed attorney with at least 3 years experience past the Bar (in court experience representing clients).

    Cities are allowed to hire non-attorney hearing officers to hear preliminary appeals, but their decision should be appealed to the city council before being appealed in superior court

  3. Dan Waterhouse

    February 7, 2018 at 3:29 pm

    David, the First District killed the single person appeal hearing format. You might want to read the opinion. It’s Lippman versus City of Oakland. It basically says the legislature’s adoption of the Uniform Building Code in the ‘70s preempted even charter cities’ ability to use the administrative hearing officer format. The Building Code specifically states that a multi-member hearing board or the city council must hear appeals.

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