The Hermosa Beach Board of Appeals Monday night convened for the first time in years, and voted on an issue spanning more than two years related to a retaining wall located on Second Street. The board unanimously agreed that the issue of whether the city’s Building Department allegedly violated state codes when it approved the installation of a new retaining wall without a permit is out of its jurisdiction since the city’s building department determined the wall did not need a permit at the time of construction.

“There have been two years of discussion on this issue and I’m surprised it hasn’t been resolved between the two parties,” said board member Larry Peha. “Our hands are tied, in my opinion, since the California Building Code states that we are not supposed to be making this kind of decision as it pertains to Chapter 1. Basically, a permit is not required and since it was determined that a permit was not required, then we can’t make any kind of opinion.”

The existence of a Board of Appeals came to the forefront in recent months following numerous complaints filed by longtime resident Jack Janken to the city manager, Steve Burrell, and the City Council. In September, the council agreed to further explore the idea of making the building process in town more user-friendly for residents and contractors by informing them about the existence of the Board of Appeals and what type of issues it is allowed to rule on. The council also voted to devise a program so that residents or contractors who are denied a request by building officials may appeal the Building Department’s decision by going before the municipality to determine whether it merits review at the Board of Appeals level. In November, the City Council referred Janken’s issue of the infamous retaining wall to the Board of Appeals.

The board comprises five members – David Garrett, Robert Lininger, Mike Ludwig, Bud Murray and Peha – all of whom possess some kind of expertise in fields related to construction and development.

According to Section 105 of the California Building Code, “In order to hear and decide appeals of orders, decisions, determinations made by the building official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals consisting of members who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the jurisdiction.”

The board’s jurisdiction and authority is limited and it cannot rule on issues that the code defines as administrative provisions. The Board of Appeals has the power to rule on issues pertaining to alternative methods of construction, substitute building materials that are equal to what they are replacing, exceptional circumstances of a design or nondeclarative statements of the code.

“We think this is a straightforward issue,” said Community Development Director Sol Blumenfeld. “Chapter 1 of the California Building Code contains the administrative provisions of the code specifying the purpose of the code, authority permitting, plan requirements, inspections, enforcement, and, of course, the establishment of the Board of Appeals. Sections of the CBC and the city’s municipal code establish a Board of Appeals to hear and decide appeals of orders and decisions of the code official relative to the application and interpretation of the code. According to this section, the purpose of the Board of Appeals is to render decisions on interpretive code matters exclusive of the administrative provisions found in Chapter 1.

“Chapter 1 also sets out the limitations of the board and states, ‘The Board of Appeals shall have no authority relative to interpretation of the administrative provisions of this code nor shall the board be empowered to waive requirements of this code.’ If a matter is not subject to the requirement for a building permit, and is not regulated by the code, then the matter does not fall within the jurisdiction of the board.”

Janken, along with several other contractors and residents, has complained to city officials, claiming the building process in Hermosa Beach has been a complicated, unfair and nightmarish experience. Janken filed a complaint with the city and eventually presented his issue pertaining to the retaining wall to the City Council. The municipality told Janken he could take his matter to the Board of Appeals for review.

Janken, a Strand resident, owns the property at 627 Second St. located just east of Ardmore Avenue, which Janken has owned since its construction in 1979. According to construction drawings, Janken’s property has always been protected by a retaining wall that runs along the entire length of the property line adjacent to his neighbor, Jeff Curdes, who lives at 633 Second St., which is uphill from Janken’s property. Janken said he also built a fence with ivy on it on his side of that wall.

Janken contends his neighbor’s property was developed in 1986 and alleges Curdes removed a section (approximately 16 feet) of his retaining wall at some point over the last 17 years. He was unaware of its removal only until recently because his fence with ivy covered that portion of the wall recently keeled over.

“Since nearly the entire yard of the uphill property is dirt, when it rained and soaked the entire yard, this created a hydrostatic surcharge load against my fence thereby toppling the fence, necessitating its removal,” said Janken. “Since there was no longer a retaining wall, this allowed water and mud runoff onto my property, and erosion of my property, and onto the neighboring property behind mine belonging to Iris McKinley at 630 Third St., creating a constant mess.”

Both Janken and McKinley submitted letters to the city complaining about the problem and the Building Department sent a letter to Curdes, requesting he rectify the erosion problems between the two properties.

According to Blumenfeld, Curdes proposed to grade the area adjacent to Janken’s property line and construct a small wood wall, retaining an area 10 feet in length and varying from 24 to 27 inches in height.

“Mr. Curdes also proposed to construct an area drain and subterranean drain pipe, and slope the grade away from the wall to the drain,” stated Blumenfeld. “The proposal was acceptable to the city and Mr. Curdes constructed it shortly thereafter. A 6-foot-high wood fence was constructed above the wood wall and received an after-the-fact permit.”

According to Janken, this request is based on “orders, decisions, or determinations” made by the Building Department to Curdes. He takes exception to the board’s decision based on the argument that the issue is outside its purview because the wood wall and the grading did not require a permit. However, the Building Department issued a permit for the fence after the fact, which Janken then contends places the issue back within the jurisdiction of the board.

“It is not the orders, decisions or determinations by the Building Department to install a retaining wall and grade the area to less than 50 percent that are being appealed,” added Janken. “The issue is not whether my retaining wall was removed from my property with consequential destruction of my fence, which are civil matters. This appeal only pertains to ‘decisions and determinations’ of the Hermosa Beach Building Department relative to the ‘application and interpretation’ of the California Building Code insofar as permits required, the construction design, methods, and materials of the retaining wall approved by the Building Department, and whether code requirements are satisfied.”

Blumenfeld further stated that according to Section 106 of the California Building Code, “Retaining walls that are not more than 4 feet in height measured from the bottom of the footing to the top of the wall unless supporting a surcharge or impounding Class I, II or III liquids” are exempt from building permits.

“The subject wall is less than 4 feet in height from any point and is not supporting a surcharge (the condition where a wall is holding back an additional load beyond the soil being retained),” added Blumenfeld. “The 6-foot-high wood fence attached to the wall also does not surcharge the wall because of its light weight. Since the small wood wall is less than 4 feet in height, it is exempt from the requirement for a building permit pursuant to Section 106 of the Uniform Building Code and the California Building Code. Furthermore, no grading permit is required because of the small quantity of soil (approximately 2 cubic yards) placed against the wall to level the area behind it, and because of the location of the wall pursuant to Section 3306 of the California Building Code, which exempts work from a grading permit where there is no danger to public or private property. The wood wall and small amount of grading is exempt from the requirements for a building permit and a grading permit is not regulated by the building code. Further, the Board of Appeals has only that authority granted in the building code and it does not have the authority to act on the administrative provisions of Chapter 1 of the code, including permitting, plan review, enforcement or inspection authority. The board cannot require a permit when one is not required, and cannot engage in code enforcement since that is not within the jurisdiction of the board.”

Janken claims the Building Department should have issued a building permit for the wall, and because of that, the Building Department violated state building codes.

“The Building Department contends that a ‘retaining wall’ permit was not required because the structure was less than 4 feet in height,” said Janken. “However, a building permit was issued for a ‘fence’ since it was more than 6 feet in height which the Building Department claims served the purpose of, and met the requirements of a ‘retaining wall’ which the Building Department defines as a ‘garden wall.’ However, I contend that a ‘retaining wall’ permit should have been required because the single structure wood fence is more than 6 feet in height, which the Building Department claims serves the purpose of and meets the requirements of a ‘retaining wall.'”

According to Section 1611 of the California Building Code, “Retaining walls shall be designed to resist loads due to the lateral pressure of retained material in accordance with accepted engineering practice.”

The five board members concurred with Blumenfeld when they voted that the issue at hand is outside their jurisdiction.

“I went back and forth on this,” said board member Ludwig. “The issue of this retaining wall has nothing to do with the board. I don’t see where we fit in and I don’t see how we have any jurisdiction over this.”