Here’s the major question I’m left with after going through a public hearing last Friday before the city’s Building Board of Appeals.

It was the first issue raised in the Position Statement submitted by the Corporation Counsel on behalf of Kathy Sokugawa, acting director of the Department of Planning and Permitting.

“First, the BBA is a board of limited, rather than equitable jurisdiction. Therefore, it is unable to provide Appellants with equitable relief; instead, the BBA is duty bound to uphold the Director’s decision unless it finds that the Director’s decision is: (1) based on erroneous finding of material fact; (2) based on arbitrary and capricious decision making; or (3) based on a manifest abuse of discretion. BBA R. 5.7(c).”

When I first read the Corp Counsel’s argument, I immediately went to Rule 5.7(c), which was cited as the legal authority for the board’s supposedly limited jurisdiction.

Guess what? That isn’t what the rule says, despite Corp Counsel’s rather clear statement. The rule says something quite different.

Here’s what Rule 5.7 actually says (with references to the Fire Official omitted).

“With respect to appeals from the decision of the Building Official…an appeal shall be sustained if the Board finds that the Building Official’s…action was based on an erroneous finding of a material fact, or that the Building Official…had acted in an arbitrary or capricious manner or had manifestly abused his discretion.”

Corp Counsel says the board is required to uphold the director unless the decisio being appealed involved an erroneous finding of material fact, was arbitrary and capricious, or an abuse of discretion.

The actual rule, quoted above, uses the word “shall,” in legal terms saying that if any of those factors exist, the board is required to sustain the appeal.

And the rules don’t appear to put any limitations on what other matters the board can consider in making its decision on an appeal.

Here’s a link to the complete Rules of the Building Board of Appeals.

Digging further, I checked the DPP’s other administrative rules.

It turns out the Zoning Board of Appeals is limited in the manner described by the Corporation Counsel. It’s limited jurisdiction is also found in the City Charter, and written into the relevant ordinance, as well as the Zoning Board of Appeals own rules.

I couldn’t find anything like that regarding any such limitations on the Building Board of Appeals.

It’s an important issue because our appeal raises questions of fairness i.e., is it fair to have started enforcement proceedings against us because of the department’s own internal delays in processing our variance request? If the department’s position is correcct, then the fate of our appeal will rest on whether I was successful in identifying an “erroneous finding of material fact.”

So I raised the issue head-on in my presentation.

The deputy corporation counsel representing the department at the hearing simply dismissed my challenge by noting that I’m not a lawyer. And she hewed to the department’s line in informal conversation after the conclusion of the hearing.

The Building Board of Appeals has its own deputy corporation counsel, but I have no idea what advice he is giving them.

So I’m kind of stuck. I can list all the negatives, showing that the limisted jurisdiction isn’t in the rule cited by the corp counsel, isn’t in the charter, and isn’t in the rules of the Board of Appeals. But that doesn’t necessarily mean there isn’t some other source of authority for the corp counsel’s position.

If you have some experience with the Building Board of Appeals that might shed some light on this question, please leave a comment or email me directly (ian@ilind.net).