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Home My WebLink AboutCC Resolution 15267 (Appeals Disputing 48-Hour Abatement Orders)4886-8400-0152 v1 RESOLUTION NO. 15267 RESOLUTION OF THE SAN RAFAEL CITY COUNCIL DENYING AN APPEAL OF THE 48- HOUR NOTICE OF REMOVAL OF UNSAFE STRUCTURE OR EQUIPMENT ON PUBLIC PROPERTY FILED BY BRUCE GAYLORD WHEREAS, on October 24, 2023, the City of San Rafael’s (“City’s”) Fire Chief, Deputy Fire Chief, and Chief Building Official conducted an inspection of various campsites established on public property in encampments in the vicinity of Lindaro Street, Mahon Creek Path, Andersen Blvd., and Francisco Blvd. West for fire and building hazards; and WHEREAS, based on site-specific assessments at the encampments, the Fire Chief deemed numerous structures and equipment at campsites in the encampments to be unsafe and to present an imminent hazard to life, health, safety, and welfare because they contain wood, wood pallets, loose wood, planks, or other similar construction materials that are highly flammable presenting an imminent risk to occupants and surrounding areas; and WHEREAS, during the inspection on October 24, 2023, the Deputy Fire Chief (acting under direction of the Fire Chief) and Chief Building Official inspected, issued, and posted a 48- Hour Notice of Removal of Unsafe Structure or Equipment on Public Property (“Notice”) on each structure and/or equipment that was observed to consist of wood, wood pallets, or other similar materials; and WHEREAS, the Notice identified the conditions violating the San Rafael Municipal Code (“SRMC”) and the various codes adopted thereby, provided notice of the applicable code sections, the actions required to comply with the Notice, the consequences for failing to comply, how to obtain assistance with complying, and of individual rights to appeal; and WHEREAS, twenty (20) Notices were posted on various campsites throughout the encampments, providing notice to abate hazardous, combustible materials: 3 were for stockpiled wood pallets and 17 were for campsites containing structures made of, or partially made of wood pallets or other combustible materials, and 3 of which were tents or sleeping bags on top of wood pallets; and WHEREAS, the Notice ordered removal of the structures and/or equipment from public property within the 48-hour deadline; and WHEREAS, Bruce Gaylord (“Appellant”) lives in a campsite in the encampment at the Mahon Creek Path; and WHEREAS, during the October 24, 2023, inspection, Appellant Gaylord’s tent was observed to have wood pallets used to raise the foundation of the tent off the ground; and WHEREAS, the City’s Fire Chief deemed or determined the wood pallets used as a foundation for the tent to be unsafe and to present an imminent hazard to life, health, safety, and welfare at Appellant’s campsite because, in part, they consist of dried wood, combustible material can accumulate in the spaces between the pallet boards, and the structure of the pallets provides for air spaces that increase their combustibility; and WHEREAS, on October 24, 2023, the Deputy Fire Chief posted a Notice on Appellant Gaylord’s tent ordering the removal (abatement) of the “wood pallet foundation” within 48 hours of the Notice; and - 2 - WHEREAS, as cited in the Notice, under SRMC § 4.08.040(C), the Fire Chief has the authority to “order the immediate abatement of any hazard, located within or on public or private property and any public thoroughfare or railroad, when deemed by the fire chief to be an imminent hazard to the life, health, safety and the well-being of the public, firefighters and other city employees;” and WHEREAS, as cited in the Notice, California Fire Code § 114-114.1 (“Unsafe structures or equipment”), authorizes the fire code official to issue notice or orders to remove or remedy conditions that, “in whole or in part, constitutes a clear and inimical threat to human life, safety or health;” and WHEREAS, as cited in the Notice, California Fire Code § 114.1.1 (“Unsafe conditions”) further provides that structures or existing equipment that “constitute a fire hazard, are otherwise dangerous to human life or the public welfare, or involve illegal or improper occupancy or inadequate maintenance, shall be deemed an unsafe condition,” and “[u]nsafe structures taken down and removed or made safe, as the fire code official deems necessary;” and WHEREAS, as cited in the Notice, under SRMC § 12.116.010 (“Unsafe Structures and equipment”), “structures or existing equipment that … constitute a fire hazard, or are otherwise dangerous to human life or the public welfare, or that involve illegal or improper occupancy or inadequate maintenance shall be deemed an unsafe condition” and, as deemed necessary by the building official, taken down or made safe; and WHEREAS, as cited in the Notice, California Building Code § 116 (“Unsafe structures and equipment”) provides that structures or existing equipment that “constitute a fire hazard, or are otherwise dangerous to human life or the public welfare, or that involve illegal or improper occupancy or inadequate maintenance, shall be deemed an unsafe condition,” and “[u]nsafe structures shall be taken down and removed or made safe, as the building code official deems necessary;” and WHEREAS, on October 31, 2023, Appellant Gaylord filed with the City an appeal request containing claims related to the Americans with Disabilities Act (“ADA”) in connection with the Notice posted on his tent and subsequently confirmed on November 27, 2023, his intent to move forward with the appeal of the Notice; and WHEREAS, for fire code appeals, under SRMC § 4.08.140, “[w]henever the fire chief shall disapprove an application or refuse to grant a permit applied for, or when it is claimed that the provisions of the code do not apply or that the true intent and meaning of the code have been misconstrued or wrongly interpreted, the applicant may appeal from the decision of the fire chief to the city council;” and WHEREAS, for building code appeals, under SRMC chapter 12.113 “a board of appeals [is] to consider an order, decision or determination made by the building official for the purpose of correcting an error, omission or oversight relative to the application and interpretation of the code. … Nothing in this section shall prevent the mayor or city council from appointing the mayor and city council as the board of appeals;” and - 3 - WHEREAS, the City Clerk issued to the Appeallant a December 6, 2023, Notice of Appeal Hearing with the City Council scheduled for December 20, 2023, together with a Statement of Rights and Procedures; and WHEREAS, on December 20, 2023, the City of San Rafael City Council, pursuant to SRMC § 12.113.030, voted to appoint the Mayor and City Council as the board of appeals, and thereby convened a hearing in a dual capacity as the building board of appeals, and as the hearing body for appeals of the fire code; and WHEREAS, on December 20, 2023, acting in their dual capacity as the appellate body under the fire code and building code, held a duly-noticed public hearing to review and consider the appeal, accepting all oral and written public testimony and the staff report by the Deputy Fire Chief and Chief Building Official and closed said hearing on that date; and WHEREAS, the scope of this appeal is limited to issues raised in the written appeal that pertains to the decisions or determinations of the Fire Chief and Chief Building Official as they relate to the existence of hazards under the code provisions cited in the Notice at the campsite of Appellant; and WHEREAS, the Appellant has raised in their written appeal claims based on the Americans with Disabilities Act (“ADA”) and/or other legal arguments that do not invoke the referenced codes and are outside the scope of the appeal; and WHEREAS, the custodian of documents which constitute the record of proceedings upon which this decision is based is the City Clerk; and WHEREAS, the City Council finds and determines that the appeal cannot be supported as Appellant has failed to establish that the decisions contained in the Notice that violations of applicable codes existed at Appellant’s campsite were not supported by substantial evidence, were not reasonable, were arbitrary, or were outside the intent and purposes of the applicable codes. NOW THEREFORE BE IT RESOLVED, that the City Council of the City of San Rafael hereby finds that the above recitals are true and correct, and incorporated herein by this reference; and BE IT FURTHER RESOLVED, that the City Council of the City of San Rafael, hereby denies the appeal filed by Appellant Bruce Gaylord regarding issues raised by Appellant that pertain to the decisions or determinations of the Fire Chief and Chief Building Official as they relate to the existence of hazards under the referenced codes, as described in the staff report accompanying the appeal, because the decisions of the Fire Chief and Chief Building Official were supported by substantial evidence, were reasonable, were not arbitrary, and were within the intent and purpose of the referenced codes; and BE IT FURTHER RESOLVED, that the City Council did not take under consideration claims raised by Appellant related to the Americans with Disabilities Act (“ADA”) or other legal arguments, as described in the staff report accompanying the appeal, because they are not within the scope of the appeal. - 4 - I, Lindsay Lara, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a special meeting of the City Council of said City held on Wednesday, the 20th day of December 2023, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Kertz & Mayor Kate NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Hill & Llorens Gulati Lindsay Lara, City Clerk