Chapter 15.05


15.05.010    Purpose and applicability.

15.05.020    Application and fee.

15.05.030    Board of appeal membership.

15.05.040    Board of appeals procedures.

15.05.050    Powers and duties of the board.

15.05.060    Appeals from decisions of the board.

15.05.900    Severability.

15.05.010 Purpose and applicability.

A.    All properly filed appeals pursuant to the adopted building codes in this title shall be heard by the board of appeals created by this chapter. The board shall have no authority to review administrative decisions or grant modifications to the provisions of any administrative chapter as adopted by this title, nor can the board waive a code requirement.

B.    The board of appeals shall hear appeals from the building official’s interpretation of the adopted building codes, determinations of suitable alternative methods and materials, and any other appeal delegated to a board of appeals pursuant to the state building codes, including but not limited to the International Building Code, the International Residential Code, the International Mechanical Code, the Uniform Plumbing Code, the International Fire Code, the Ventilation and Indoor Air Quality Code, the Washington State Energy Code, the Uniform Code for the Abatement of Dangerous Buildings, and any and all other codes adopted pursuant to the direction and authority of Chapter 19.27 RCW. The board of appeals shall have no authority to hear any appeal from any decision, order, or other determination issued pursuant to the International Property Maintenance Code adopted by the city.

C.    The provisions of the state building codes as adopted by the city are not intended to prevent the use of any material, alternate design or method of construction not specifically prescribed by those codes, provided any alternative has been approved and its use authorized by the building official or on appeal or request for review by the board of appeals.

D.    In the event that there is an inconsistency between the terms of the building codes adopted in this title and the terms of this chapter, the terms in this chapter shall prevail. (Ord. 2654 § 2, 2009).

15.05.020 Application and fee.

An application for appeal shall be filed with the building official upon a departmental form within the time limit set forth in the adopted code. The application shall be accompanied by the required fee as set forth in Title 20 and shall be complete in all aspects before the hearing shall be scheduled. Failure to supplement an incomplete application within ten business days of filing shall constitute an incomplete application and the administrative recourse of appeal shall be denied. (Ord. 2654 § 3, 2009).

15.05.030 Board of appeal membership.

A.    There is created a board of appeals consisting of five members and three alternates who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the city of Prosser. The technical expertise of board members shall be supplied through training or experience as an architect, builder, general contractor, developer, fire inspector, mechanical engineer, electrician, plumber, or structural engineer. The board members shall be active, practicing members of one of the prior listed disciplines or professions and shall be appointed by the city council and must reside in Benton, Franklin or Yakima Counties.

B.    In the absence of any member of the board, the alternates shall be authorized to fill such temporary vacancy with the full power accorded the regular member. The board chair shall appoint an alternate to fill the vacancy from the list of alternates approved by the city council. A permanent vacancy shall be filled by appointment by the city council. Alternates may appear at all meetings but shall not vote unless they are filling a temporary vacancy.

C.    Building Official Duties.

1.    Hearing Secretary. The secretary of the board shall be the building official. The secretary shall be the custodian of the records, shall conduct official correspondence of the board and generally be responsible for clerical work of the board. The secretary shall be present at the appeal meetings and shall present all relevant information regarding appeals to the board, including the application and other information submitted by the appellant prior to the hearing. The secretary shall notify all interested parties regarding matters of the board.

2.    Building Department Representatives. The building official shall be an ex officio member of the board without voting power. (Ord. 3028 § 1, 2017: Ord. 2654 § 4, 2009).

15.05.040 Board of appeals procedures.

A.    Terms. As of the effective date of the ordinance codified in this chapter, the city council shall appoint the initial board members to overlapping terms. Two members shall be appointed to a one-year term, two members shall be appointed to a two-year term, and one member shall be appointed to a three-year term. Three alternates shall be appointed to a three-year term. Following the initial terms, subsequent terms of all board members and alternates shall be for three calendar years. No member of the board shall serve more than three consecutive full terms, or a total of more than nine consecutive calendar years.

B.    Regular Meetings. Regular meetings may be held once each month on the second Thursday of the month. At the first regular meeting of each calendar year, the board shall elect a chair and a vice chair. The chair of the board shall require that all members of the board be polled during voting at the meeting. Three members of the board shall constitute a quorum. In the event there are no agenda items for any regularly scheduled meeting, the chair may cancel the meeting.

C.    Special Meetings. Special meetings may be held by the chair and at such times as the board shall determine. The board, the city or an appellant may request a special meeting. Any special meeting held at the request of an appellant shall be paid for by the appellant in the amount set forth in Title 20. Three members of the board shall constitute a quorum at special meetings.

D.    Executive Sessions. Executive sessions of the board may be called pursuant to the State Open Public Meetings law by the chair or the vice chair of the board and are not open to the public. The building official shall attend as secretary.

E.    Public Notice. Public notice shall be given of all meetings. Upon written receipt and confirmation of a complete appeal of a request, notice shall be sent to the West Benton Regional Fire Authority, the health department, the city attorney, and the owner of the real estate and parties within three hundred feet affected by the request. No hearing shall be scheduled until fifteen calendar days after the required hearing notifications are mailed. Meetings shall be open to the public. The appellant, the appellant’s representative, the building official, and any person whose interests are affected shall be given an opportunity to be heard.

F.    Oath/Subpoena. The chair may administer oaths, accept affirmations and compel the attendance of witnesses. A failure or refusal to appear in response to a subpoena issued by the board shall constitute a violation of these adopted codes and be a misdemeanor punishable by a fine not to exceed one thousand dollars and by confinement in jail for not more than ninety days. There shall be no mandatory minimum fine or confinement in jail.

G.    Department/Interested Party. At any public meeting representatives from the city and any other interested party may appear in person, by agent or by attorney, offer evidence and testimony and cross-examine witnesses. All evidence and testimony shall be presented publicly. The board may take judicial notice of facts to the same extent and in the same manner as courts of record and may consider relevant facts within the personal knowledge of any member of the board that are stated into the record by such member.

H.    Recording. All meetings before the board shall be recorded.

I.    Compensation. The board shall receive no compensation regardless of number or type of cases heard.

J.    Removal. Board members shall be removed from office by the city council prior to the end of their terms only for just cause. Any member who is unavailable for three consecutive appeal hearings shall be automatically removed and an alternate appointed as provided for herein.

K.    Conflict of Interest. Members with a material or financial interest in a matter before the board shall declare such interest and refrain from participating in discussions, deliberations, and voting on such matters. The appearance of fairness doctrine as now codified or as hereafter amended by the state of Washington shall apply to board proceedings. (Ord. 3028 § 2, 2017: Ord. 2654 § 5, 2009).

15.05.050 Powers and duties of the board.

A.    The board shall adopt rules and procedures governing all proceedings consistent with the provisions set forth herein. The rules and regulations shall include meeting location, meeting time, procedures, contents of a complete appeal application and time to be allotted for each case.

B.    Subject to the limitations enumerated herein, the board shall have and may exercise the following powers:

1.    The board shall have no authority relative to the interpretation of the administrative provisions of any of the state building codes, nor shall the board be empowered to waive any requirement of any such code.

2.    Nothing herein shall be interpreted to permit the board to hear any appeal nor any request for deviation of design or alternative methods required in order to comply with the city’s critical areas ordinance or environmental code codified in Title 16, nor hear any appeal regarding map changes, nor any other appeal unless authorized by this chapter or by the adopted code.

3.    The board, on review, may approve the use of any material, alternate design or method of construction providing that it finds that the proposed design is satisfactory and complies with the provisions of this code and that the material, design, or method is, for the purpose intended, at least the equivalent of that prescribed in the applicable code in suitability, strength, effectiveness, fire resistance, durability, safety and sanitation. The decision of the building official shall not be overturned unless the board shall find that the following conditions exist:

a.    That the appellant properly applied for an appeal;

b.    That sufficient evidence, proof or testing reports were submitted by the appellant that substantiated claims of equivalency;

c.    That the proposed modification or alternate will not weaken the general purpose of the adopted code;

d.    That the proposed modification or alternate will be in harmony with the spirit and purpose of the adopted code;

e.    That the proposed modification or alternate will not adversely affect the public health and safety;

f.    That the proposed modification or alternate will not adversely affect the structural integrity of the building; and

g.    That the proposed modification or alternate will not adversely affect the fire safety of the building.

4.    To hear and decide appeals where it is alleged there is error in any notice or order made by the building official and/or fire code official in the enforcement of the adopted codes in this title. The board shall have the power to stay the enforcement of any order issued by the building and/or department of fire prevention unless the building official and/or fire code official certifies that a stay of the order or denial would, in the opinion of the building official and/or fire code official, cause imminent peril to life or property. A stay shall not constitute board approval, shall be personal to the appellant and not transferable, and shall be subject to the terms and conditions imposed by the board. Any determination or order of the building and/or department of fire prevention shall be presumed to be correct until evidence is introduced that would support a contrary determination.

5.    Whenever the owner or legally responsible person of an alleged unsafe building, structure, utility or other condition does not agree with the order from the building official and/or fire code official as to the correction to be made, he shall have the right to appeal to the board within ten calendar days from the date of said order. In his appeal, the appellant shall state how he proposes to make the unsafe building, structure, utility or other condition safe and the board may require the appellant to submit detailed engineering analysis or recommendations, accompanied by plans and specifications prepared by a state-licensed architect or registered professional engineer, as prescribed in this adopted code. The board, in hearing such appeals, may require substantiating data concerning the removal or other remedial steps to be taken to render the unsafe building, structure, utility or other condition safe. In any matter in which an order or notice relating to an unsafe building, structure, utility or other condition is appealed, the building and/or fire department may certify to the board that the unsafe building, structure, utility or other condition could become an imminent hazard, in which case the board shall schedule a meeting within five business days to hear said appeal.

C.    Burden of Proof.

1.    The appellant bears the burden of proof in any proceeding before the board. If there is insufficient evidence of compliance with any of the provisions of this code or evidence that any material or construction does not conform to the requirements of this code, the appeal from the decision of the building official shall be denied.

2.    The board may continue any proceeding in order to permit the appellant to provide proof of compliance through tests conducted in accordance with general engineering practice and best scientific evidence. Such tests shall be made by the appellant and at no expense to the city. Test methods shall be as specified by the applicable building code or by other recognized testing standards. If there are not recognized and accepted test methods for the proposed alternate, testing methods shall utilize generally accepted engineering practice and best scientific method. Reports of such tests shall be retained and made a part of record of the proceedings.

D.    Decision of the Board.

1.    The board shall render formal written decisions within ten business days of the date of the hearing. Every decision of the board shall be based upon findings of fact and every finding of fact shall be supported in the record of its proceedings. A mere finding or recitation of the enumerated conditions unaccompanied by findings of specific facts shall not be deemed findings of fact and shall not be deemed compliance with the code. The building official shall take immediate action in accordance with the decision of the board.

2.    Copies of the decision shall be forwarded to the appellant, a copy shall be placed in the appeal file and copies shall be made available to any person as a matter of public information. Decisions shall be filed with the building or department of fire prevention as a matter of public record.

3.    In the exercise of the powers described above, the board may reverse or affirm, wholly or in part, or may modify the order, requirements, decision or determination appealed from the board, may impose conditions or requirements as deemed necessary and may hold cases in abeyance until proper information needed by the board is supplied. (Ord. 3028 § 3, 2017: Ord. 2654 § 6, 2009).

15.05.060 Appeals from decisions of the board.

A.    The filing of a land use petition for review shall not stay proceedings upon the decision appealed, but the court may grant a stay in accordance with the Land Use Petition Act.

B.    All decisions of the board may be appealed pursuant to the Land Use Petition Act to the Benton County superior court. (Ord. 2654 § 7, 2009).

15.05.900 Severability.

The provisions of this chapter are hereby declared to be severable. If any section, subsection, sentence, clause, or phrase of this chapter or its application to any person or circumstance is for any reason held to be invalid or unconstitutional, the remainder of this chapter shall not as a result of said section, subsection, sentence, clause, or phrase be held unconstitutional or invalid. (Ord. 2654 § 8, 2009).