Temple of 1001 Buddhas v. City of Fremont (2024) 100 Cal.App.5th 456

In Temple of 1001 Buddhas v. City of Fremont (2024) 100 Cal.App.5th 456, the Court of Appeal for the First District held that the City of Fremont holding hearings for appeals of determinations related to building code violations in front of a single administrative hearing officer conflicts with the mandatory duty established by California Building Code, section 1.8.8 (“section 1.8.8”) requiring local governments to hold such hearings before a board.

Between 2013 and 2021 Miaolan Lee and her successor in interest, Temple of 1001 Buddhas, (“Plaintiffs”) received multiple notices and orders for public nuisances premised on violations of municipal building and zoning codes. Plaintiffs appealed, and Fremont appointed Ann Danforth as the hearing officer for the appeal in accordance with the provisions of Fremont’s municipal code governing appeals. Danforth issued a decision in favor of Fremont. Plaintiffs appealed, and the trial court upheld Danforth’s determination. Plaintiffs appealed again, this time to the Court of Appeal.

Plaintiffs argued that Fremont’s appeal process is preempted by section 1.8.8, and that they received an unfair hearing due to (1) evidentiary rulings Danforth made; (2) financial bias related to Danforth’s hiring; and (3) violations of due process caused by Deputy City Attorney Bronwen Lacey acting as both an advocate for Fremont and an advisor to Danforth. The court first addressed preemption before turning to the unfair hearing arguments.

Fremont’s Appeal Process is Preempted by California Building Code Section 1.8.8

Section 1.8.8 states that “[e]very city, county, or city and county shall establish a process to hear and decide appeals of orders, decisions and determinations…relative to the application and interpretation of this code and other regulations governing construction, use, maintenance and change of occupancy. The governing body…may establish a[n]…appeals board to serve this purpose…Where no such appeals boards or agencies have been established, the governing body…shall serve as the…appeals board.” The court in Lippman v. City of Oakland (2017) 19 Cal.App.5th 750, considered a challenge to the City of Oakland’s administrative citations appeal process which allowed for the appointment of a hearing officer, as Fremont’s does here. The Lippman court held that section 1.8.8 creates a mandatory duty for local governments to either (1) establish an appeals board or agency to hear appeals relating to building codes, or (2) hold such hearings before the governing body and found that Oakland’s municipal code violated this mandatory duty by allowing for appeals to be held before a single hearing officer.

Fremont argued that Lippman is distinguishable because this case involved public nuisance determinations rather than administrative citations for building code violations. The court reasoned that nuisance determinations premised on building code violations are necessarily determinations that the building codes were violated, so the nuisance determinations “fall[] squarely within the scope of Building Code section 1.8.8.” Accordingly, the court decided to follow the Lippman case in finding that Fremont’s process of settling appeals before a single hearing officer violated their mandatory duty under Section 1.8.8.

Fremont further urged the court to adopt the trial court’s “gravamen” rule to find that, where zoning code violations are at issue in addition to building code violations, the addition of the zoning code violations renders section 1.8.8 inapplicable. However, while the court agreed that section 1.8.8 is inapplicable to appeals relating to the application of zoning codes, it did not accept that this invalidates section 1.8.8’s mandatory duty with regards to building code violations and maintained that Fremont violated this duty..

Apart From Section 1.8.8 Preempting Fremont’s Appeal Process for Building Code Violations, Plaintiffs Did Not Receive an Unfair Hearing

a. Plaintiffs Failed to Establish Violations of Their Due Process Based on Evidentiary Rulings

Plaintiffs argued that evidentiary rulings Danforth made during the hearing excluding evidence violated their due process rights. The court determined that Plaintiffs’ claims were factually inaccurate or not supported by the record. Further, Plaintiffs failed to provide any reasoned argument as to how the rulings resulted in prejudice. The court explained that evidence exclusion at administrative hearings does not provide grounds for reversal absent a showing that the error resulted in a miscarriage of justice. Absent such a showing, even presuming the factual validity of Plaintiffs’ allegations, the claims could not provide grounds for reversal.

b. There was no Financial Bias in Danforth’s Hiring

Plaintiffs argued that Fremont’s process for hiring a hearing officer violates due process. In Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, the California Supreme Court held that hiring temporary administrative hearing officers on an ad hoc basis and paying them according to the amount of work performed could give the hearing officers an impermissible financial interest in the outcome of cases they decide. However, if local governments appoint the officers in a way that does not create the risk that favorable decisions will be rewarded with future work, it is not a due process violation. Though the Haas court did not lay out specific rules, it suggested that a local government could appoint a panel of attorneys to hear cases under a pre-established system of rotation. Finding that Fremont followed a rotation procedure like that described in Haas, the court held Danforth’s hiring did not create financial bias by incentivizing her to issue a decision favorable to Fremont.

c. Plaintiffs Forfeited Their Dual Role Claim by Not Raising it At the Hearing

Plaintiffs asserted that Deputy City Attorney Bronwen Lacey acted as both an advocate for Fremont and an advisor to Danforth at the hearing, violating their due process. The court agreed that an attorney cannot act as an advocate for an agency and as an adviser to the decision maker reviewing the decision for which the lawyer advocated. Despite this rule, the court found no error with respect to Lacey for two reasons. First, Plaintiffs failed to show that they objected to Lacey’s alleged dual rule at the hearing. The court explained that when a litigant suspects bias on the part of a member of an administrative hearing body, the issue must be raised in the first instance at the hearing. Second, while Lacey undisputedly served as Fremont’s counsel, Plaintiffs failed to establish that Lacey advised Danforth at the hearing.

Conclusion

Because Fremont’s process for appeals premised on building code violations conflicted with the mandatory duty established by section 1.8.8, the court remanded the case to the trial court with orders to compel Fremont to set aside the hearing determinations premised on the building codes, and to provide an appeal in accordance with section 1.8.8. However, because section 1.8.8 is inapplicable to appeals for determinations related to zoning codes, and because the court found that Plaintiffs did not receive an unfair hearing with regards to those determinations, the aspects of the hearing with respect to zoning code violations were left undisturbed.

Jack Sandage is a Law Clerk at Abbott & Kindermann, Inc. and J. Gage Marchini is a Senior Associate Attorney at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.