Justin A. Tamayo , Associate lead author ; Denise S. Bazzano , Partner and Thomas D. Jex , Partner co-authors. Temple of Buddhas v. Fremont determined that these conditions violated the CBC and were nuisances, and informed the Petitioner that it had the right to appeal the determination to a hearing officer appointed by the City Manager pursuant to the FMC.
The Petitioner appealed NOA 3 and after a two-day administrative hearing, the hearing officer found that the City met its burden of establishing the violations and ordered abatement of the various violations. Subsequently, the Petitioner filed an action with the trial court for administrative mandamus, declaratory, and injunctive relief, which the trial court denied, and the petitioner appealed. On appeal, the Petitioner argued that the FMC provision that replaced a board of appeals with a single administrative officer was preempted by the California building code which requires a hearing before a board, agency, or the government body.
Local regulations are preempted by state regulations when they duplicate, contradict, prevent the attainment of, or enter an area that is fully occupied by state law. Sherwin-Williams Co. City of Los Angeles 4 Cal. The court relied on previous case law which observed that:.
City of Oakland 19 Cal. The CBC does not contemplate an appeal before a single hearing officer, and its plain language imposes a mandatory duty to establish a local appeals board or an agency that is authorized to hear appeals; otherwise, the governing body must act as the appeals board. Temple of Buddhas, at 6. Accordingly, the Court held that the FMC conflicts with the CBC because the FMC does not authorize a board or distinct agency possessing the qualifications required by the CBC, or otherwise authorize the City Council to hear appeals from those adversely affected by a decision, order or determination relating to the application of building standards as published in the CBC.
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