FIRE BOARD OF APPEALS
108.1 Board of Appeals established. In order to hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation of this code, there shall be and is hereby created a Board of Appeals, which shall consist of (5) five active members. The Board of Appeals shall be appointed by the Mayor with the advice and consent of the City Council. The fire code official shall be an ex officio member of said board but shall have no vote on any matter before the board.
108.1.1 Quorum. Any combination of three (3) members of the Board shall constitute a quorum. A simple majority of the quorum present shall be decisive.
108.1.2 Secretary of the Board. The Fire Marshal shall designate an employee to serve as a recording secretary to the board that shall keep and maintain a record of all proceedings and perform other secretarial duties as required by the Board.
108.2 Qualifications. The board of appeals shall consist of members who are citizens of the United States and residents of the State of New Mexico and are qualified by experience and training to pass on matters pertaining to hazards of fire, explosions, hazardous conditions, fire protection systems, or building construction.
The Board of Appeals shall consist of five (5) members:
1. A fire protection contractor licensed in the State of New Mexico.
2. An Architect registered in the State of New Mexico.
3. The State of New Mexico Fire Marshal or his/her designee.
4. A certified industrial safety specialist.
5. A resident of the City of Albuquerque.
108.3 Terms of Office. Members shall be appointed for terms of three years. No member shall be reappointed for more than two consecutive full terms.
108.4 Vacancies. Vacancies shall be filled for an unexpired term in the manner in which original appointment are required to be made.
108.5 Legal counsel. The City shall furnish legal counsel to the Board to provide members with general legal advice concerning matters before them for consideration. Members shall be represented by legal counsel at the City’s expense in all matters arising from service within the scope of their duties.
108.6 Meetings. The board will convene when an appeal is made through the Mayor’s Office or as determined by the Fire Board. All hearings shall be conducted in accordance with NMSA 1978, Chapter 10, Article 15, which may be cited as the “Open Meetings Act.”
108.7 Limitations on authority. An application for appeal shall be based on a claim that the intent of this code or the rules legally adopted hereunder have been incorrectly interpreted, the provisions of this code do not fully apply, or an equivalent method of protection or safety is proposed. The board shall have no authority to waive requirements of this code.
108.8 Rules and procedures. The Board shall adopt rules of procedure for conducting its business and annually elect one of its members to serve as chairperson. The hearing shall be conducted in an orderly manner, and the chairperson shall exclude all irrelevant, immaterial and unduly repetitious evidence.
108.8.1 Conflict of interest. Members with a material or financial interest in a matter before the board shall declare such interest and refrain from participating in discussions, deliberations and voting on such matters.
108.8.2 Evidence and witnesses. The Board of Appeals shall afford all parties an opportunity for a full and fair hearing, including the right to counsel; the right to present evidence; and the right to call and examine witnesses to testify.
108.8.3 Inspection and plans. For the purpose of hearing appeals, the Board shall have the power to make inspections and to require the submission of such plans and specifications or other evidence as it deems necessary.
108.9 Application to the Board of Appeals. The following procedures shall be followed for the Board to hear an appeal.
108.9.1 Appeals to the Fire Marshal. Any person aggrieved by a notice of violations or a correction notice issued from a fire code official may file in writing a letter to the Fire Marshal seeking reconsideration of such notice. Such letter shall be received by the Fire Marshal within thirty (30) calendar days of notice of violation or correction notice being issued. If the appeal is denied by the Fire Marshal the appellant may then appeal to the Fire Code Board of Appeals for consideration.
108.9.2 Board of Appeals. Any person may appeal a decision of the Fire Marshal to the Board of Appeals. Appeals shall be in writing and submitted to the Mayor’s Office within ten (10) calendar days following the decision of the Fire Marshal. The notice shall contain an enumeration of specific orders or decisions complained of, the date of issuance of such orders and decisions, and a brief statement of the reasons why such order or decisions are incorrect. Said ten (10) days period is jurisdictional and shall not be waived.
108.9.3 Fee. Enclosed with the appeal shall be a one hundred and fifty dollars ($150.00) fee payable to the City of Albuquerque to cover all expenses incurred in the appeal process.
108.9.4 Hearings. Hearings on appeals shall be held within fifteen (15) calendar days after the appeal has been received by the Mayor’s Office, unless otherwise agreed by both parties. Appealed orders or decisions shall be stayed, pending a decision of the Board of Appeals unless the violation constitutes an imminent hazard to life or property by reason of fire, hazardous materials explosion or panic.
108.9.5 Decisions. In every appeal the Board shall issue its decision in writing, within ten (10) days, including its findings and conclusions to the Fire Marshal, with duplicate copy to the appellant. The decision of the Board shall be final and exhaust all administrative remedies.
108.9.6 Official Records. Every decision or opinion of the Board of Appeals shall be made part of the official records of the Fire Department and a copy of such decisions or opinion shall be filled in the Office of the City Clerk. The Board shall maintain for at least five (5) years a record of all appeals heard before it.
108.9.7 Appeals to District Court. Any person aggrieved by a decision of the Fire Code Board of Appeals may at any time within thirty (30) days after the decision of the Board may file an appeal with District Court.
Appeals to District Court shall be from the record. Said record shall consist of a transcript or recording of all testimony taken during the appeals hearing to include all exhibits offered, all plans and specifications which may have been required, and a copy of the Boards decision.