HomeMy WebLinkAboutItem 2 - Draft Resolution
City of San Luis Obispo, City Attorney’s Office, 990Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140,
slocity.org
December 20, 2021
TO:Construction Board of Appeals
FROM:Markie Jorgensen, Assistant City Attorney and Advisor to the Board
SUBJECT:Draft Resolution for the November 29 and December 13, 2021Special
Meetingsof the Construction Board ofAppeal
The attached resolution wasdrafted to uphold, in part,administrative citation #25409and to
deny, in part,the appealof Warren Ferris on behalf of the Ferris Richard W & Sharliss S Trust
for violation of San Luis Obispo Municipal Code (SLOMC) Section 15.02.010 and to continue
hearing on the violations for SLOMC Sections 12.23.030 and 17.70.030 to a date uncertain
followingthe January 2022 meeting with the California Department of Fish and Wildlife, the
San Luis Obispo County District Attorney’s Office, the Appellant, and City staff regarding
slocal and state code violations appellant’s property.The resolution statesthe Board’s
decisionsincluding a summary of the informationthe Board relied on in making its decision
to uphold the administrative citation in part, and deny the appeal in part, and include all other
components required under Municipal Code Section 1.24.130. The draft resolutionisbeing
brought back before the Board for further discussion and refinement, or adoption.
Should any Board Member, representative of either party, orother person have concerns with
the language of the resolution,those concerns may be directed to Assistant City Attorney
Jorgensen for evaluationin advance ofthenoticed meeting of January 4, 2022. If Assistant
City Attorney Jorgensen concludes that such concernsor proposed editsare warranted, she
will submit a redlinerevision of the draft resolution as agenda correspondence.There will
also be opportunity forfurther discussion and refinement of the resolution at the January 4,
2022meeting.
Finally, at said meeting,the Board may specify the due date for payment of the finefor upheld
violations as directed by Municipal Code Section 1.24.130(A)(13)to bebetween ten (10) and
(30) days from the date of mailing of the decision. The resolution currently includes a due
date of thirty (30) daysfrom mailing, but this may be shortened if the Board so desires.
RESOLUTION NO. CBOA-XX-22
A RESOLUTION OF THE CONSTRUCTIONBOARD OF APPEALS OF
THE CITY OF SAN LUIS OBISPO, CALIFORNIA, DENYING,IN PART,
THE APPEAL OF WARREN FERRIS,ON BEHALF OF THE RICHARD
W. &SHARLISS S. FERRISTRUST,AND UPHOLDING, IN PART,
ADMINISTRATIVE CITATION NO. 25409, AND CONTINUING
HEARING ON THE REMAINING VIOLATIONS TOA DATE TO BE
DETERMINED.
WHEREAS,the Construction Board of Appealsof the City of San Luis Obispo conducted
a public hearing via teleconference at 1:00 p.m. on November 29,2021 and conducted a continued
hearing via teleconference at 1:00 p.m. on December 13, 2021on the appeal of Warren Ferrisof
Administrative CitationNo. 25409issued totheFerris Richard W & Sharliss S Trust(the
“Appellant”)onJuly15, 2021, for violationsofSan Luis Obispo Municipal Code (SLOMC)
Sections15.02.010,12.23.030, and 17.70.030(E)(the “Administrative Citation”); and
WHEREAS,notice of said public hearing wasmade at the time and in the manner required
by law; and
WHEREAS,Section 1.24.100 of the San Luis Obispo Municipal Code establishes a right
to appeal an administrative citation issued by the director; and
WHEREAS,the Construction Board of Appealsof the City of San Luis Obispo (the
“Board”) duly considered all documents and information, including the Administrative Citation;
the City’s staff reportand accompanying presentation; the Appellant’sappeal; oral argument by
City staff andthe Appellant; all written or other evidence; and evaluation and recommendations
bystaff presented at such hearings.
NOW, THEREFORE, BE IT RESOLVED by the Construction Board of Appealsof the
City of San Luis Obispo as follows:
SECTION 1.Findings. The Construction Board of Appealsfinds:
1.The above statements are true.
2.The names of all people participating in the hearing and their capacity:
a.Appellant: FerrisRichard W & SharlissS Trust;
b.Representative of the Appellant: Warren Ferris(the “Designated
Representative”);
c.City staff: Mark Amberg, Assistant City Attorney, legal advisor to City Code
Enforcement staff; Markie Jorgensen, Assistant City Attorney, legal advisor to the
Board;Rodger Maggio, Fire Marshal/Chief Building Official, liaison to the
Resolution No.CBOA-XX-22Page 2
Board;John Mezzapesa, Code Enforcement Officer; and Robert Hill,
Sustainability & Natural Resources Official.
d.Witnesses (either for or against appellant): none.
3.The hearingswererecorded by audio recording, and such recordings are in the custody of
the City Clerk.
4.The Appellant andDesignated Representative werepresent for the public hearings.
5.Pursuant to Municipal Code Section 1.24.110(E), the Board received the Administrative
Citation and supporting information (documents, exhibits, or materials prepared by City
staff) concerning the Appellant’sviolationsof San Luis Obispo Municipal Code Sections
15.02.010(California Building Code Section 105.1)(unpermitted retaining wall &
unpermitted alteration and use of storage container buildings for occupancy), 12.23.030
(prohibited activities in acreek), and 17.70.030(E) (creek setbackdimensions)asprima
facie evidence of the Appellant’scode violationsand of the facts stated in such
documents.
6.The following submissions were submitted to the record, including, but not limited to
photographs, drawings, and documents:
a.City staff report,datedNovember16, 2021, and accompanying Attachments 1-34;
b.Agenda correspondence from Appellant’sDesignated Representative, received
November 19, 2021;
c.Agenda correspondence from Appellant’sDesignated Representative, received
December 3, 2021.
7.The Board has decided to uphold, in part,the Administrative Citation issued to
Appellant; specifically, theBoard upholds theviolationof Municipal CodeSection
15.02.010(California Building Code Section 105.1)for an unpermitted retaining wall and
the violation of MunicipalCode Section 15.02.010 (California Building Code Section
105.1) for anunpermitted alteration and use of storage container buildingsfor occupancy.
8.The Board has decided to continue, in part,the hearing and Board decision onthe
Administrative Citationissuedto Appellant; specifically, the citedviolation of Municipal
Code Section12.23.030 (prohibited activities in acreek) and the cited violation of
Municipal Code Section 17.70.030(E)(creek setback dimensions),are being continued
to a date to be determinedfollowing the January 2022 meeting scheduled between
Appellant, City staff, the San Luis Obispo County District Attorney’sOffice, the
California Department of Fish and Wildlife, the California Water Board and theUnited
States Army Corps of Engineers,regarding compliance with local and state code on
Appellant’sproperty located at 4080 Horizon Lane, San Luis Obispo, CA 93401 (the
“Property”).
Resolution No.CBOA-XX-22Page 3
9.The Board found the following information credible in support of its decision to uphold,
in part,the Administrative Citation and deny, in part,the appealfor violationsof
Municipal Code Section 15.02.010 for an unpermitted retaining wall and unpermitted
alteration anduse of storage containerbuildingsfor occupancy:
a.San Luis Obispo Municipal Code Section 15.02.010 incorporates by reference the
California Residential Code and California Building Code into the City’s
Municipal Code.
b.The 2019California Building Codeprovidesthat “Any owner or authorized agent
who intends to construct, enlarge, repair, move, demolish or change the
occupancy of a building or structure, or to erect, install, enlarge, alter, repair,
remove, convert or replace any electrical, gas, such work to be done, shall first
make application to the building official and obtain the required permit.”
(California Building Code § 105.1.)
c.In 2019, pursuant to the interpretive authority reserved for the City’s Chief
Building Official in Section 104.1 of the California Building Code,the City
amended Section 101.2 of the California Building Code to clarifyexisting law
that shippingor storagecontainerswith a floor area of over 120 square feetare
considered structures under the California Building Code, and therefore, require a
permitfor the actions listed in paragraph 9.b. above underCalifornia Building
Code Section 105.1unless an exception applies.
d.On March 9, 2017,City of San Luis Obispo Code Enforcement staff inspected
Appellant’sProperty and observedin relevant part:metal storage containers had
been stacked to create a two-levelstructure, with alterationsto the containers
indicating their use for occupancywithout a building permitand that a retaining
wall more than four feet in height had been constructedon the Propertywithout a
building permit.
e.On April 10, 2017, City staffissued a Notice of Violation to Appellant for, inter
alia,alteration and use of storage container buildingsfor occupancywithout a
buildingpermit and construction of a retaining wall more than four feet in height
without a building permit in violation of San Luis Obispo Municipal Code Section
15.02.010 (California Building Code Section 105.1) (hereinafter collectively
referred to as the “Violations”).
f.Appellant submittedaRequest for Director’s Review dated April 30, 2017,in
response tothe Notice of Violation, which resulted in the Director of Community
Development declining to withdrawthe Notice of Violationin a decision dated
September 12, 2018.
g.From 2018 to present, Code Enforcement activity to correct the Violations was
limited as the City was notified that the California Department of Fish and
Wildlife was working with the San Luis Obispo CountyDistrict Attorney’s Office
to explore potential prosecution and resolution ofadditionalFish and Wildlife
Code violations on the Property.
Resolution No.CBOA-XX-22Page 4
h.The City’s Code Enforcement activity was also placed ontemporary hold due to
the City haltingissuance of administrative citations during the beginning ofthe
COVID-19 pandemic.
i.In July 2021,CityCode Enforcement staff revisited the Violations and
determined that no corrections had occurred on the Property nordid staff receive
submittal of any request for permits or exceptions.
j.The Administrative Citation, together with the attachments contained in the staff
report, admitted as prima facie evidence under Paragraph 5 above, demonstrate
that the citing Code Enforcement Officer personally observed Appellant’s
Violations.
k.Appellant failed to submit any information that the Violations did not occur and
failed to submit any credible information that there is a defense to the citation.
10.The due date for payment of the fine for the Violations shall be thirty (30) days after the
date the decision is mailed.
Action: Based on the above findings,documentation,and information
SECTION 2.
submitted in support thereof, the Boarddoes hereby deny, in part,the appeal of Warren Ferris, on
behalf of the Ferris Richard W & Sharliss S Trust, and uphold, in part,the Administrative Citation.
The violation of Municipal Code Section 15.02.010 (California Building Code Section 105.1) for
an unpermitted retaining wall, and for violation of Municipal Code Section 15.02.010 (California
Building Code Section 105.1) for anunpermitted alteration and use of storage container buildings
for occupancyare being upheld, while theBoard hereby continues hearing and decision onthe
remaining cited violations identified in the Administrative Citation; specifically,hearing on the
cited violationof Municipal Code Section 12.23.030 (prohibited activities in a creek) and the cited
violation of Municipal Code Section 17.70.030(E) (creek setback dimensions) is being continued
to a date to be determinedfollowing theJanuary 2022 meeting scheduled between Appellant, City
staff, the San Luis Obispo County District Attorney’s Office, the California Department of Fish
and Wildlife, the California Water Board and the United States Army Corps of Engineers,
regarding compliance with local and state codeon Appellant’s property located at 4080Horizon
Lane, San Luis Obispo, CA 93401.
SECTION 3.Appeal or Review by Writ.This Resolution is the City of San Luis
Obispo’s final administrative decision, under Municipal Code Section 1.24.140(A), on the
Administrative Citation. A person contesting this decision may do so in either of two ways. First,
pursuant to California Government Code Section 53069.4(b)(1), within 20 days after the service
of this Resolution, a person contesting this decision may seek review by filing an appeal to be
heard by the Superior Court of the County of San Luis Obispo. Alternatively, a person contesting
this decision may file a petition for writ with the Superior Court of the County of San Luis
Obispo. The time within which the petition must be filed, and the applicable requirements are
governed by the California Code of Civil Procedure. Either the appeal or the petition for writ
filed with the court must contain proof of service showing a copy of the appeal or petition for
Resolution No.CBOA-XX-22Page 5
writ was served upon the city clerk. The petitioner must pay the superior court the appropriate
court filing fee when the appeal or petition is filed.
Upon motion ofBoard Member Vessley,seconded byVice ChairEckrich to uphold
violationsfor construction ofanunpermitted retaining wall and unpermitted alteration and use of
storage containerbuildingsfor occupancy,and on the following roll call vote:
AYES:Chair Dilworth, Vice Chair Eckrich, Board Member Vessley, Board
Member Garza, and Board Member Wiedeman
NOES:None
ABSENT:Board Member Graves, Board Member Martinez
Upon motion of Board Member Vessley, seconded by Board Member Garzato continue
the hearing on violations for prohibited activities in acreek and creek setback dimensions to a date
uncertain pending the January 2022 meeting with the Department of Fish and Wildlife, the San
Luis Obispo County District Attorney’s Office, the Appellant, and City staff, and on the following
roll call vote:
AYES:Vice Chair Eckrich, Board Member Vessley, Board Member Garza,
Chair Dilworth and Board Member Wiedeman
NOES:
ABSENT:Board Member Graves, Board Member Martinez
th
The foregoing resolution was adopted this 4day of January2022.
____________________________________________________
Niel Dilworth, ChairpersonDate of Signature