Appeals Hearing Board Meeting

MINUTES APPEALS HEARING BOARD MEETING Disabled Access Board Meeting Wednesday, January 29, 2014 10:00 AM COUNCIL CHAMBER, FEW MEMORIAL HALL OF RECORDS MONTEREY, CALIFORNIA Board members Present: Chair David Stocker, Boardmember Daryl Hawkins, Boardmember John Villalpando, Boardmember Michael Castaneda, Boardmember Dan Stevens Absent: None Board Staff Senior Building Inspector John Kuehl, Assistant City Attorney Karin Present: Salameh, Recording Secretary Rosalia Lopez CALL TO ORDER Chair Stocker called the meeting to order at 10:02 AM Chair Stocker welcomed everyone to the City of Monterey’s Appeals Hearing Disabled Access Board meeting. PUBLIC COMMENTS Chair Stocker called for public comments. Sharon Dwight: Introduced herself as the Alternate to the Appeals Hearing Board. Made the comment that when a member of the public would like to speak, the staff member presenting has to get up and move. Commented that at an earlier meeting all seats were occupied and the staff member was forced to walk to the back and carry a chair to the front during public comment. Said forcing everyone to sit is awkward, it doesn’t work and there needs to be a podium. DISABLED ACCESS PUBLIC HEARING 1. APPROVAL OF MINUTES: March 22, 2013 (City Attorney's Office - 701-09) Board member Hawkins made motion to approve minutes, Villalpando seconded, third by Board member Castaneda. None opposed. Minutes approved. 2. Provide updates to the adopted Americans with Disabilities Act (ADA) Transition plan (Plans & Public Works - 202-18) Chair Stocker introduced Mr. Kuehl and item No. 2 of the agenda. Kuehl: Thanked the Board for their time. Began by stating he not only wanted to discuss how the laws, regulations and federal statutes are changing, but also his vision for the Board and its importance in moving forward with the ADA transition Plan. Commented how great it was to see all Board members on the dais since one of the things previously discussed with Appeals Hearing Board Minutes Wednesday, January 29, 2014 this Board had been improving access to the Council Chambers and this project had been very successful. He continued to say that when the ADA Transition Plan was approved the intent was to make it a growing document from which staff could learn about changes in legislature in order to direct the city in how it relates to access and would now like the Board’s assistance in defining certain elements of the transition plan and the terminology commonly misinterpreted in order to get clear direction and clear understanding so the City can move forward. Said he intended to utilize the ADA Transition Plan on a yearly basis with the Capital Improvement Program. Every year the City sets aside a certain amount to be spent towards capital improvements. This year City staff purposely assessed needs based on the ADA Transition Plan to determine what was lacking for access compliance and built into the CIP program to have projects expanded to include ADA projects or projects specifically for disabled access. Additionally there is a priority based plan used for the facilities within the city. Also said he would like have pre-established meetings of this Board two to four times per year as the importance of the Board was crucial for city development as it moves forward with the ADA Transition Plan. Stocker: Asked the Board members if everyone was available to meet quarterly. Stated he would rather meet quarterly as there would be more continuity and learning curves would be less steep. Everyone agreed quarterly was good. Kuehl: Agreed quarterly would be great and said he would be looking for topics in need of policy direction from both the Board and City Staff. Stated he is open to see what the Board thinks is important in relation to the Transition plan. He suggested a meeting on terminology and a meeting to educate both the Board and public about the responsibility of the Board given different questions. Another suggestion for the first quarterly meeting was direction on whether the City should allocate CIP funds project by project, percentage based or set a specific dollar amount. Said with the Board help the Transition Plan will continue to move forward. Villalpando: Asked whether there were any other key members within the City that should be attending the meetings, possibly from engineering. Kuehl: Responded that some people attending the meeting are staff members and others were present because their project was directly impacted. However, additional staff members will attend the meeting based on each agenda. Hawkins: Commented he is working on some projects at CSUMB and has encountered new CASP regulations and different interpretations of them. He asked whether City of Monterey buildings are required to have CASP review and certification. Kuehl: Explained that there is a lot of information and misinformation regarding what CASP requirements are. CASP stands for California Access Specialist. It is a program established by Division of State Architect (DSA). Senate Bill 1608 requires cities to have on staff or contract CASP certified individuals. The legislation also offers financial incentives or legal incentives, if an individual or city is sued for accessibility elements within a building and the building was previously inspected by a CASP certified individual, the City can receive a 90 stay to resolve the problem. The general intent is to have more education on the city side, 2 Appeals Hearing Board Minutes Wednesday, January 29, 2014 the legislation changed in January and there are different interpretations on what it means to new projects. However, the ultimate authority for interpretation decisions within a jurisdiction is the authority of the jurisdiction, which is the purpose of the Board and why the Board is so important. Stocker: Stated that as there will now be scheduled quarterly meetings, one of the first things that should be on the next agenda is the makeup of the Board as the Board is fairly new. He would also like to discuss what their legal rights and responsibilities are and what members are allowed to do as far as making determinations about some of things that are on a slippery slope. Stated that many things are a judgment call, but how far do they take their judgment since the goal is not only to make good decisions that are worthwhile to the community but also to protect the city from outside lawsuits. Hawkins: Commented that the reason for bringing up CASP was because he has found that the CASP certified people doing inspections at CSUMB have a different interpretation of what is required and what is not which then comes back to the appropriate decision based on the situation. Said CASP adds a new dimension to what they have to do as architects and as a City. Stocker: Stated he would find it helpful to have specific research or readings that would give the Board more background, perhaps definitions on terms or things that are important. He asked that Mr. Kuehl email this information to the Board. Stocker called for public comment on item number two. Sharon Dwight: Stated that as the alternate of the Board she would like to request that the meetings are not Wednesday mornings as she is unavailable. John McCormack: Introduced himself and asked whether the background information/definitions the Board requested from Mr. Kuehl would be available to the public and requested a copy. Stocker: Responded to Mr. McCormack’s request for copy of terms document by stating that everything from public meetings is always made available to the public. 3. Provide new State and Federal law updates (Plans & Public Works - 202-18) Kuehl: Said as of January 14, 2014, the State of California and the City of Monterey adopted the 2013 version of the California building code. Explained that California has attempted to merge the California building code with the Federal ADA standards; title 24 is the California code regulations; one part of this is the building code. The second part of the California building code is made up of two chapters dealing with disabled access. Chapter 11B is for non residential. When dealing with new construction within the City it is required to use the building code. For City owned buildings, the City is required to review both the California Building Standards code and ADA standards and use the more restrictive of the two. He said that when dealing with disabled access it is challenging to determine which one is more restrictive and that will be another function of the Disabled Access Board. Once the project is considered an existing building then it is ADA, often we mention program services and activities. In ADA there are five different sections or titles. Title two involves public entities; Title three private entities. The State of California is trying to merge the code 3 Appeals Hearing Board Minutes Wednesday, January 29, 2014 so eventually there is one unified Disabled Access Code. That is where state law is moving; the intent and trying to define different words so you have an understanding what the city’s responsibility is and what the property owner’s responsibility is. Chair Stocker opened item for public comment: No comments 4. Hear unreasonable hardship application for 851 Munras Ave. to install a limited access elevator (Plans & Public Works - 202-18) Kuehl: Started by saying that Mr. McCormack came to the City and asked to provide access to the second floor of the Five Corners Building by installing a limited use elevator. Mentioned that there was a code change from the 2010 version of the California Building Code to the 2013 version, which states that any unreasonable hardship for alternate means of disabled access needs to be approved and heard and findings made and recorded into the official records. He said he felt that the best way to do that is to hold a public meeting; have the Board render a decision and build into that decision those findings of approval or non-approval. He said there is no construction project other than to provide access to the second floor and that the applicant is doing this voluntarily. Disabled access section of code indicates that all new projects must comply with current code and be updated to meet ADA requirements therefore any work done on the building later already complies with access requirements. Mentioned that when the building was built there was no designated parking and that although parking is a factor, the code doesn’t require a parking lot. Said that when location was evaluated they tried to come up with a location that would serve everyone and that when considering this application it is very important for the Board to consider the following two terms and what they mean. Technically unfeasible: an alteration where the enforceable authority determines compliance with the applicable requirements as technically unfeasible the alteration shall provide equal facilitation or comply with the requirement to the maximum extent feasible. The details of the finding that full compliance with the requirements is technically unfeasible shall be recorded and entered into the files of the enforcing agency. Unreasonable hardship: when the adjusted construction costs exceed the current valuation threshold as defined in chapter 2 section 202 and the enforcing agency determines the costs of compliance with section 11B 202.4 is an unreasonable hardship as defined in chapter 2, full compliance shall not be required. When the cost of full compliance with section 202.4 exceeds 20% compliance shall be provided to the greatest extent possible without exceeding 20%. The Board began by asking questions in regards to the difference between a full compliance elevator and a limited use elevator. Board members asked about the size of the limited use elevator, whether it would function at all times, the types of doors it would have and the cost in comparison with a full compliance elevator. Board members also questioned what the second floor of the building was used for, installation requirements, whether the second floor had a fully accessible restroom and whether a limited use elevator would create any noise nuisance with neighbors. Kuehl: Stated the elevator would function like a full compliance elevator, said the elevator would be about 4ft x 5ft, the door would be about 36 in. clear and the car about 48.6 in. clear 4 Appeals Hearing Board Minutes Wednesday, January 29, 2014 on the inside. Said the elevator would open up to the street. Said the property owner did not get hard-line estimates it was more of a ball park estimate, but that they believe a full compliance elevator is about 50% more. He introduced Mr. McCormack who represents the property owner. Limited access v. full access has to do with the load limit on the elevator. A limited access elevator is comparable to a private home use elevator. Mr. McCormack: Stated the building owners wanted to do the right thing in providing access. Said that the limited access elevator would work better for their building due to limited space and because the cost is significantly less than a full compliance elevator. Mentioned the elevator would have two doors and therefore it would not be necessary for a person utilizing it to turn their wheelchair around. Said there the second floor was used for office space and that there was no full access restroom available. Board members requested to see more of the financial information since the property owner is applying for financial hardship and they believed the estimate on cost seem fairly loose. Does the building official support the hardship request? Yes. It would not involve exterior modifications, my recommendation to the Board, The Board asked if the elevator had an automatic door, whether there would be an emergency button and what the square footage of the second floor was. Also whether the building had a basement and whether that would also be accessible. McCormack: Responded that the building had a basement but it is used as storage and would not be available. He added that the roof houses the AC unit and therefore there is no room to install the necessary mechanics of a full access elevator and after research, a limited access elevator seems to be the better option as it will fit in the designated space. The Board noted that this was not only about installing a limited access elevator; there are several other factors involved. Because the elevator would open up to the street and the call button will be outside, street traffic and street condition/slope need to be taken into consideration. Kuehl: Mentioned that his department would work out all these issues with the applicant but that one of the reasons for this meeting was that the applicant did not want to spend on an architect to do drawings without approval. McCormack: Said this was more like a predevelopment meeting, and he did not recall the exact numbers in regards to cost or maintenance. Stocker: Asked whether there were other questions. Chair Stocker opened item for public comment Sharon Dwight: Said that since the configuration of the Board had been discussed, she would like to request to be a seated non-voting member. Also said that the agenda report mentioned the limited access elevator can carry 950lbs. Said she was concerned about whether people would try to utilize it to move heavy items such as furniture. She asked about signs stating load capability, dependability of product and the door style. Said she was unclear regarding whether the door to the elevator would be moved closer to the street. Mentioned that the space upstairs is currently vacant and asked whether in the past there 5 Appeals Hearing Board Minutes Wednesday, January 29, 2014 had been any other proposed use. Finally, asked what the slope of the sidewalk was where the elevator would be located and whether it was ADA compliant or would need to be updated. Chair stocker closed public comment Kuehl: Explained that what they hoped to establish from the Board is whether Mr. McCormack could move forward with a limited access elevator. Said that many of the questions being asked are things the building department will work out with the applicant to ensure he is compliant. After discussion, Board determined that they needed more information before approving the project. They would like more to see more schematics to understand the traffic flow in concept both downstairs and upstairs. Board also requested more financial information as the applicant is claiming financial hardship; exact numbers are not needed but would like to see a more concrete estimate. The applicant has heard the discussion and knows the direction of the Board. Stocker: made a motion to table the item to a date uncertain. Stated applicant has heard discussion and will be able to come back with a basic financial analysis between a full. Motion approved unanimously. 5. Discuss and provide direction for City street resurfacing projects (Plans & Public Works - 202-18) Kuehl: Said historically right of way issues have always been a challenge for the Department of Justice and that much of the misconception when it comes to ADA and access is that people view just buildings and don’t think of sidewalks, curbs or other scenarios in the public right of way. Defined the public right of way as sidewalks, street and anything between the sidelines of privately owned property that is for use of the general public. Said there are policy statements that encroachments into the city’s right of way have to be for the for the benefit of everyone not just the property owner that happens to be adjacent to it. Said the Department of justice has indicated in their technical bulletin (attachment to agenda report) that over the next six months there will be additional guidelines/requirements for right of way issues. Public agencies have annual street resurfacing and through the ADA Transition plan he would like to create a new section called policies and procedures, where staff can scope a project and know what the City policy is. Explained street resurfacing traditionally is primarily funded by gas tax. Joint Technical Bulletin from the Department of Justice, right of way is established from the Department of Justice or Caltrans and it states that the purpose of a right of way is to provide access to a certain place to everyone. Read definition of an alteration. As the city moves into street resurfacing the city will know what requirements will be. Bulleting breaks down what is considered an alteration and what is considered maintenance. Asked that the Board approve the following recommendation: City of Monterey, utility company, property owner or contractors to provide a curb ramp at all corners on both ends of the block in compliance with curb federal ADA requirements whenever more than 50% of any block of a City of Monterey street is being altered as defined in the attached Department of Justice, Department of Transportation 6 Appeals Hearing Board Minutes Wednesday, January 29, 2014 Joint Tech Systems Bulletin dated July 8, 2013. A curb ramp is not required where sidewalk is not installed on the impacted street or corner. The Board has discretion on this item. Said his goal is to make this part of our transition plan and make them policies and the percentage is meant to give a staff a starting point. 50% is a number because when 50% of a structure is being removed it is considered a complete demolition. If the City is upgrading 50 % of the street, in his opinion it is reconstructing the entire street therefore there is no reason not to comply with current requirements. A second option for compliance would be to select a date certain. The City would select a date and if ramp was in compliance at that point then it is in compliance. However Mr. Kuehl does not recommend this option. Said he would like the City to embrace these requirements and upgrade whatever is possible. Stocker: Clarified that the City received a document from Department of Justice that defines what resurfacing is very clearly but that Mr. Kuehl was asking to include 50% threshold to their directive. Salameh: Said that the City Attorney’s opinion is that the City must comply with the Department of Justice directive or face litigation. It does not matter if curb ramps met past standard, the City has to meet current standards when resurfacing streets. The interpretation is what percentage an alteration requiring curb ramps but there is clear legal guidance that needs to be followed. Stocker: Said it is very clear that the Federal Government’s goal is to upgrade the ramps and the City is embracing this directive and taking a number that we can protect ourselves with and show the City has a policy directed at everyone working on this. Stocker: asked if any of the Board members had any questions Hawkins: Said he sees this as guideline, but feels that streets that see more public use should be prioritized. Kuehl: Suggested that possibly in next meeting the Board could discuss a policy just for that topic but explained that the City has a street index from which staff chooses based on conditions of street and usage. There needs to be guidance so staff does not only focus on street resurfacing in certain areas. Villalpando: Asked whether gas tax revenue could be used for curb ramps and what other agencies/jurisdictions doing. Kuehl: Said the money can be used for ramps if staff is resurfacing street as well but needed to look into whether it could be used solely for curb ramps. Added that when utility companies take out a curb ramp for maintenance issues such as a water leak, the City requires that they put the curve is put back in ADA compliance. Said that this bulleting is fairly new but he believes other jurisdictions upgrading ramps as they are able. Salameh: Said that on the general City Attorney list serve this bulletin came up and the general City Attorney consensus is that they would direct their cities to comply. Public comments: 7 Appeals Hearing Board Minutes Wednesday, January 29, 2014 Sharon Dwight: Said this is something NIP does a lot of and would like to be certain that this recommendation is going to reflect what the City really wants to say. Said the agenda report does not talk about street resurfacing but rather it states “whenever 50% of a street is being altered”. Asked if then this means all right of way alterations or only pavement, and does the 50% includes curb and gutter. Addressed statement in the report that says a curb is not required where walkway or sidewalk is not installed in the impacted corner. Said it would not make sense to force ramps at all corners and both ends of the block when there are no connecting walkways. Asked if there are exceptions. Said report was not clear and should say that the City wants ramps where there is walkway. Chair Stocker closed public comment Kuehl: Much of the language on where curb ramps are not required has been spelled out in the technical bulletin, therefore, used their language but can make it clearer. Said the general intent is that if you are improving 50 percent, both ends should be improved. Salameh: From a legal perspective, it doesn’t matter if it’s at one end or the other if upgrading 50% the City needs to do both ends otherwise it opens up to a lawsuit that would be difficult to defend. Would not suggest language not be changed especially as it refers to the word “alter”. Hawkins: I’m comfortable with this. Move for approval Castaneda: Second motion Chair Stocker: Motion approved unanimously Commissioner comments: Villalpando: Asked if Board is meeting quarterly. Chair Stocker: Asked that the Board receive the next 3 meeting dates. BOARD MEMBER COMMENTS ADJOURNMENT 12:31 PM Respectfully Submitted, Approved, Rosalia Lopez David Chair Stocker Recording Secretary Chair 8