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HomeMy WebLinkAbout15- Building Fees eti�tNARD� CI x BERNARDINO 300 NORTH"D"STREET,SAN BERNARDINO,CALIFORNIA 92418 ED 1N JAMES F. PENMAN CITY ATTORNEY February 1 , 1988 (714)384-5355 Opinion No . 88-6 10 .38 HON. EVLYN WILCOX MEMBERS OF THE COMMON COUNCIL RE: Adoption of Building Fees ISSUE The question has arisen as to the adoption of the fee schedule set out in the Uniform Building Code in the City of San Bernardino . ANALYSIS In pertinent part , Health & Safety Code Section 17958 provides as follows: it . . . Any city or county may make changes in the provisions adopted pursuant to Section 17922 [statutory adoption of Uniform Building Codes ] . . . to amend , add , or repeal ordinances or regulations which impose the same requirements as are contained in the provisions adopted pursuant to Section 17922 . . . or make changes or modifications in those requirements upon express findings pursuant to Section 17958.5 and 17958 .7. If any city or county does not amend , add , or repeal ordinances or regulations to impose those requirements or make changes or modifications in those requirements upon express findings , the provisions published in the State Building Standards Code or the other regulations promulgated pursuant to PRIME N ROGPESS Mayor and Common Council February 1 , 1988 Page Two Section 17922 shall be applicable to it and shall become effective 180 days after publication by the Commission . Amendments , additions , and deletions to the State Building Standards Code adopted by a city or county pursuant to Section 17958 .7 , together with all applicable portions of the State Building Standards Code , shall become effective 180 days after publication of the State Building Standards Code by the State Building Standards Commission." As referenced in the above section , Health & Safety Code Section 17958 .5 provides in pertinent part as follows: " (a) . . . In adopting the ordinances or regulations pursuant to Section 17958 , a city or county may make such changes or modifications in the requirements contained in the provisions published in the State Building Standards Code and the other regulations adopted pursuant to Section 17922 as it determines , pursuant to the provisions of Section 17958 .7 , are reasonably necessary because of local climatic , geological , or topographical conditions . "For purposes of this subdivision , a city and county may make reasonably necessary modifications to the requirements , adopted pursuant to Section 17922 , contained in the provisions of the Code and regulations on the basis of local conditions . " (b) On or after October 1 , 1981 , and each October 1 thereafter , the Department shall transmit a report to the State Building Standards Commission on the modifications and changes made by cities and counties to the building standards published in the State Building Standards Code and the other regulations of the Commission . The report shall include a summary by the Department of the reasons cited as the necessity for the modifications and changes . The report required pursuant to this section shall apply to modifications and changes made after January 1 , 1980 . " Mayor and Common Council February 1 , 1988 Page Three In addition , Health & Safety Code Section 17958 .7 provides in part as follows: " (a) . . . The governing body of a city or county, before make any modifications or changes pursuant to Section 17958 .5 , shall make an express finding that such modifications or changes are reasonably necessary because of local climatic , geological or topographical conditions . Such a finding shall be available as a public record . A copy of such findings , together with the modifications or change expressly marked and identified to which each such finding refers , shall be filed with the Department . No such modification or change shall become effective or operative for any purpose until the finding and modification or change have been filed with the Department . " (b) The Department may reject a modification or change filed by the governing body of a city or county if no finding was submitted . " From the above statutory authority it is clear that local governmental agencies may make changes in the state-promulgated Uniform Building Codes if specific findings are made related to climatic , geological or topographical conditions which would necessitate such changes . This is apparently devised to give local jurisdictions control over such requirements which relate to the changing local conditions . However , it also seems clear that the purpose for having the Uniform Building Codes is so that the requirements will be primarily uniform throughout the state . It would be very difficult to make the necessary findings in order to support a change in the uniform fees set forth in the Uniform Building Codes . It should be noted that pursuant to Health & Safety Code Section 17958 quoted above , these fees as well as the other provisions of the Uniform Building Codes are automatically applicable to each jurisdiction unless specific findings for alternative adoptions have been made by the local agency. Therefore , it appears that for approximately the last year the revised Uniform Building Codes have been applicable to the jurisdiction of the City of San Bernardino . If the City now adopts the Uniform Building Code but makes changes not Mayor and Common Council February 1 , 1988 Page Four supported by the findings , these can be rejected by the State (see Health & Safety Code Section 17958 .7 (b) quoted above) . If the City continues to follow the prior Uniform Building Code and to essentially ignore the most recent enactment , including the change in fees , the City remains open to a tax payer suit or perhaps a suit by the State to compel compliance . It is unclear how significant these two possibilities are . CONCLUSION It is the conclusion of this office that the 1985 Uniform Building Code is currently in effect in the City of San Bernardino , and the increased fees provided in that enactment should be charged by the City. Should the City desire to make changes in those fees , they must be done on very specific findings as outlined in the Statutes in relation to climatic , geological or topographical conditions . Respectfully submitted , J MES F . PENMAN ity Attorney JFP:cm CC : City Administrator City Clerk