August 19, 2014

PLF defends property owners’ rights from bureaucratic abuse

By Jonathan Wood Attorney

In 2010, the Alameda County Grand Jury sharply condemned Oakland’s Building Services Division — which enforces building code violations — concluding that it had created an “atmosphere of hostility and intimidation towards property owners.” In the four years since, little has changed.

PLF has filed an opening brief in the California Court of Appeals on behalf of Tom Lippman, one of the victims of that atmosphere of hostility. He is an Oakland property owner who has been unfairly subject to more than $10,000 in fees without an opportunity to have his case heard by a neutral body.

That’s not only unfair. It’s illegal. State law guarantees every property owner a right to appeal building code enforcement decisions to an independent body established to hear appeals, or to the city council. Oakland, however, only allowed Lippman to be heard by an officer appointed by the very agency imposing fees. Adding insult to injury, the officer never allowed Lippman an opportunity to present his defense. Instead, she blindly accepted the agency’s assertion that the fees were proper, even though the inspector who testified for the agency acknowledged that he’d forgotten what happened.

As if that wasn’t absurd enough, the trial court affirmed the officer’s decision despite acknowledging that Lippman was never given an opportunity to defend himself.

PLF’s opening brief explains that Oakland’s appeals process is woefully inadequate. The state building code could not be clearer; cities have two choices — establish an independent appeals board or allow appeals to the city council.

Every city … shall establish a process to hear and decide appeals of … determinations made by the enforcing agency relative to the application and interpretation of [the building] code. … The governing body of any city, county, or city and county may establish a local appeals board and a housing appeals board to serve this purpose. Members of the appeals board(s) shall not be employees of the enforcing agency …

Where no such appeals boards or agencies have been established, the governing body of the city … shall serve as the local appeals board or housing appeals board.

Straining to avoid declaring Oakland’s process illegal, the trial court construed this code provision to nullify its protections. According to the court, a city’s obligation to establish a neutral appeals process is satisfied if the city empowers the enforcing agency to decide appeals from its own decisions. Obviously this conflicts with the requirement that appeals be decided by people who aren’t employed by the enforcing agency. And it means that the requirement that the city council hear appeals could never be implicated.

What’s worse is that the trial court’s reading would deprive property owners of state law’s guaranty of a right to appeal. The provision conferring a right to appeal only includes the appeals board or the governing body of the city. Paradoxically, if the only appeal available is to the enforcement agency, no one would have a right to appeal to it.

Oakland has argued that, even if it’s unfair appeals process violates state law, it doesn’t have to comply as a charter city. According to California’s home rule doctrine, “charter cities” have a degree of autonomy from state control over municipal affairs. However, state laws that address matters of statewide concern apply the same to charter cities as any other. PLF’s brief also explains why protecting citizens from abuse by local government agencies is a core statewide concern. The appropriate standards to apply to buildings may depend on local conditions, but the importance of protecting property owners’ rights is universal.

learn more about

Lippman v. City of Oakland

Oakland’s Building Services Division has a long history of mistreating the city’s property owners and engaging in systemic conflicts of interest. Thomas Lippman owns rental property in the city. The agency cited him for $10,000 worth of alleged building code violations. Lippman, who believes these citations are unwarranted, pursued an appeal but ran into a big problem: The only person who can hear appeals is appointed by Building Services! Not surprisingly, the agency’s hearing officer rubber-stamped the citations. Represented by PLF, Lippman is now suing in state court, arguing that Oakland’s refusal to establish a neutral appeals process violates state law.

Read more

What to read next