ORS 455.202: Definitions; procurement of contract building official; duties; establishment of local board; appeal rights; independent auditor; powers of director.

(1) As used in ORS 455.202 to 455.208: (a) “Building official” has the meaning given that term in ORS 455.715. (b) “Contract building official” means an owner, manager or employee of a person that the Director of the Department of Consumer and Business Services has licensed to perform specialty code inspections and plan reviews under ORS 455.457 and that engages in the business of providing the services described in ORS 455.148 (3) and 455.150 (3) to one or more municipalities to which the director has delegated a building inspection program. (c) “Discretionary decision” means: (A) Waiving a plan review, an inspection or a provision of the state building code; or (B) Allowing an alternative material, design or method of construction. (d) “Qualified employee” means an individual that a municipality employs and has designated to ratify or disapprove a contract building official’s discretionary decisions and who: (A) Before exercising oversight over a contract building official, completed, with any applicable certification or other evidence of completion, basic training that the director determines is necessary; and (B) Within 180 days after a municipality’s designation of the individual as a qualified employee, completed, with any applicable certification or other evidence of completion, any advanced training that the director determines is necessary. (2)(a) Notwithstanding ORS 455.148 (3) and 455.150 (3), a city that procured services from a contract building official on or after January 1, 2018, and before January 1, 2022, may continue to procure or may again procure services from a contract building official on and after January 1, 2022, only if the city complies with the provisions of ORS 455.202 to 455.208. A city that did not procure services from a contract building official before January 1, 2018, may not procure services from a contract building official unless: (A) The city procures services from a contract building official for a period of not more than 180 days while recruiting for an individual to employ as a building official; or (B) The city receives approval from the director to procure services from a contract building official for not more than 180 additional days after the period described in subparagraph (A) of this paragraph upon a showing that the city’s recruitment to employ a building official remains active after the period described in subparagraph (A) of this paragraph. (b) A county may procure services from a contract building official after January 1, 2022, only if the county complies with the provisions of ORS 455.202 to 455.208 and only if the county’s procurement occurs for the periods and under the circumstances described for cities in paragraph (a)(A) and (B) of this subsection. (3)(a) A contract building official shall notify a qualified employee in writing of each of the contract building official’s discretionary decisions. The contract building official shall notify a permit applicant of each discretionary decision that relates to the permit application. The notice must list and describe available opportunities for a hearing and appeal of the decision. (b) A qualified employee must review and ratify or disapprove a contract building official’s discretionary decision within 30 days after receiving notice of the decision. (4)(a) Except as otherwise provided in paragraph (b) of this subsection, a municipality that procures services from a contract building official must establish a local board to which a permit applicant may appeal a contract building official’s discretionary decisions. (b)(A) A city need not establish a local board if the county within which the city is located, or an adjacent county, has a local board that hears, in accordance with this section, all appeals of the discretionary decisions of the city’s contract building official. A county need not establish a local board if an adjacent county has a local board that hears, in accordance with this section, all appeals of the discretionary decisions of the county’s contract building official or the discretionary decisions of all contract building officials for cities located within the county. (B) A city may enter into an agreement with the county within which the city is located, or an adjacent county, to hear appeals in accordance with this section. A county may enter into an agreement with an adjacent county to hear appeals in accordance with this section. (c) A local board that a city establishes under paragraph (a) of this subsection must include as a member the building official of the county within which the city is located or the building official of an adjacent county. A local board that a county establishes under paragraph (a) of this subsection must include as a member a building official from an adjacent county. (d) A local board described in paragraph (a) of this subsection may not include as a member any contract building official or an owner, manager, director, officer or employee of a person, other than an employee of the municipality, that performs building inspections. An individual who engages in the business of building design or construction may be a member of the local board, but may not hear an appeal of a contract building official’s discretionary decision concerning a project that involves a business, or a competitor of a business, that: (A) The individual owns or manages or for which the individual provides services as an employee, agent or contractor; or (B) A family member or a member of the individual’s household owns or manages or for which the family member or member of the household provides services as an employee, agent or contractor. (5)(a) The appeal rights to which a permit applicant is entitled before a local board described in subsection (4) of this section must be in addition to and not in lieu of any other rights of appeal the permit applicant may have. A municipality shall require a permit applicant to submit any appeal within 30 days after receiving a notice concerning the permit application under subsection (3) of this section and the local board must review and issue a determination of the appeal within 30 days after receiving notice of the appeal. (b) In an appeal under subsection (4) of this section, a permit applicant must establish by a preponderance of the evidence that overturning the discretionary decision of the contract building official will not create a dangerous or unsafe condition or decrease the minimum fire and life safety standards set forth in the relevant code. (6)(a) A city that procures services from a contract building official shall have an independent auditor examine the finances of the city’s building inspection program at least once every two years. The city may have the audit performed in conjunction with an audit under ORS 297.425. A county that procures services from a contract building official shall have an audit performed that covers the period of time during which the contract building official performed services for the county. (b) At a minimum, an audit under this subsection must examine all collections and usage of permit fees and all expenditures of moneys that have occurred from the proceeds of the fees since the last audit or since a municipality began procuring services from the contract building official, whichever period is shorter, and must verify that the municipality dedicates all fees the municipality collects for plan review, permit issuance or administering and enforcing specialty codes only to the purposes specified in ORS 455.210 and 479.845. (c) A municipality shall make the results of each audit available to the public by easily accessible electronic means, including by posting the results on the municipality’s website. (7) A city that procured services from a contract building official within the period described in subsection (2) of this section may at any time choose to procure services from a different contract building official, may employ a building official or, in cooperation with another municipality, may appoint a building official employed by the other municipality to administer a building inspection program for both the city and the other municipality. (8)(a) If the director has reason to believe that a violation of this section has occurred, the director may: (A) Examine a municipality’s building code inspection, administration and enforcement activities and the activities of the contract building official from which the municipality procured services; (B) Perform an investigation and take sworn testimony; and (C) Issue subpoenas, subject to the authorization of the Attorney General, to persons or for records for the purpose of obtaining testimony, documents and information about a municipality’s official actions or omissions and the actions or omissions of a contract building official, including information that is subject to public inspection under ORS 192.311 to 192.478. (b) Before taking an action under paragraph (a) of this subsection, the director shall notify the municipality and the contract building official that are the subjects of the director’s intended action. In the notice, the director shall set forth the reasons the director believes a violation has occurred and cite any applicable statutes or rules. The director may immediately take an action described in paragraph (a) of this subsection if the director does not receive a satisfactory response within 30 days after the date of the director’s notice. (9)(a) If the director finds that a violation of this section has occurred, the director may issue and serve a written order upon a municipality, or upon a contract building official from which the municipality procured services, that specifies corrective action. The order must state the facts and identify applicable law that forms the basis for the director’s finding that a violation has occurred and must give the municipality or the contract building official reasonable time, which may not be less than 10 business days, within which to perform the director’s specified corrective action. (b) In addition to the corrective action described in paragraph (a) of this subsection, the director may require the municipality to: (A) Increase the frequency of the audit required under subsection (6) of this section to once per year. (B) Submit a written plan that describes how the municipality will achieve compliance with this section. If the director accepts the plan, the director shall incorporate the provisions of the plan into an order that is binding upon the municipality. (C) State and document the actions that the municipality has undertaken independently to correct the violation. (c) If the director finds that a pattern of violations of this section has occurred: (A) The municipality that is the subject of the director’s finding may not procure services from a contract building official and shall, within 180 days after the date of the director’s finding: (i) Employ a building official; (ii) Appoint a building official in cooperation with another municipality and agree with the other municipality that the building official shall perform services for both municipalities; or (iii) Abandon the municipality’s building inspection program in accordance with ORS 455.148 and 455.150; and (B) The director may suspend, revoke, deny or refuse to renew the certification of the contract building official that is the subject of the director’s finding. An action of the director under this subparagraph does not affect a municipality’s ability to procure services from a different contract building official with a valid certification. (d) In any proceeding under paragraph (c)(B) of this subsection, the municipality that appoints or employs the contract building official may appear as a party in interest, either for or against the director’s proposed action. [2021 c.599 §2]