HomeMy WebLinkAboutCBOA-01-23RESOLUTION NO. CBOA-01-23
A RESOLUTION OF THE CONSTRUCTION BOARD OF APPEALS OF THE CITY OF
SAN LUIS OBISPO, CALIFORNIA, DENYING THE APPEAL OF WARREN FERRIS,
ON BEHALF OF THE RICHARD W. & SHARLISS S. FERRIS TRUST, AND
UPHOLDING ADMINISTRATIVE CITATION NO. 25409
WHEREAS, the Construction Board of Appeals of the City of San Luis Obispo (the
"Board") 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, 2021 on the appeal
of Warren Ferris of Administrative Citation No. 25409 issued to the Ferris Richard W & Sharliss
S Trust (the "Appellant") on July 15, 2021, for violations of San Luis Obispo Municipal Code
(SLOMC) Sections 15.02.010, 12.23.030, and 17.70.030(E) (the "Administrative Citation"),
which occurred at Appellants' property located at 4080 Horizon Lane within the city limits of San
Luis Obispo (the "subject property"); and
WHEREAS, at the teleconference hearing on December 13, 2021, the Board upheld, in part, the
Administrative Citation issued to Appellant; specifically, the Board upheld in a 5-0-2 vote (Chair
Dilworth, Vice Chair Eckrich, Board Member Vessely, Board Member Garza, and Board Member
Wiedeman voting in favor, Board Members Graves and Martinez Absent) the violation of
Municipal Code Section 15.02.010 (California Building Code Section 105.1) for an unpermitted
retaining wall, and the violation of Municipal Code Section 15.02.010 (California Building Code
Section 105.1) for an unpermitted alteration and use of storage container buildings for occupancy;
and
WHEREAS, at the teleconference hearing on December 13, 2021, the Board continued, in part,
the hearing and Board decision on the Administrative Citation issued to Appellant; specifically,
the Board, in a 3-2-2 vote (Vice Chair Eckrich, Board Member Vessely, and Board Member Garza
voting in favor, Chair Dilworth and Board Member Wiedeman voting against, Board Members
Graves and Martinez Absent), voted to continue consideration of the cited violation of 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) (the "remaining citations") following a January
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 by Appellant with local and
state code on the subject property; and
WHEREAS, at a hearing on April 21, 2022 in the Council Chambers for the City of San Luis
Obispo located at 990 Palm Street in San Luis Obispo ("Council Chambers"), the Board heard a
presentation from staff and from Appellant on the remaining citations and again continued consideration
of the Administrative Citation issued to Appellant for the remaining citations; and
WHEREAS, at a hearing on April 25, 2023 in Council Chambers, the Board upheld, in a
5-0-1 vote (Board Member Vessely, Board Member Wiedeman, Chair Dilworth, Board Member
Garza; and Board Member Eckrich voting in favor, and Board Member Graves absent,) the
Administrative Citation for violation of Municipal Code Section 12.23.030 (prohibited activities
in a creek) and violation of Municipal Code Section 17.70.030(E) (creek setback dimensions), and
denied, in its entirety, the appeal of Warren Ferris of Administrative Citation No. 25409 issued to
the Ferris Richard W & Sharliss S Trust; and
WHEREAS, notice of said public hearings were made 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 Board duly considered all documents and information, including the
Administrative Citations, the City's staff reports and accompanying presentations, oral argument
by the City, the Appellant's appeal and subsequent position papers, oral argument by the Appellant
and their representative, all written or other evidence, and evaluation and recommendations by
staff presented at such hearings.
NOW, THEREFORE, BE IT RESOLVED by the Construction Board of Appeals of the
City of San Luis Obispo as follows:
SECTION 1. Findings. The Construction Board of Appeals finds:
1. The above statements are true.
2. The names of all people participating in the November 29, 2021, hearing and their
capacity:
a. Appellant: Richard Ferris and Sharliss Ferris, of the Ferris Richard W & Sharliss
S Trust;
b. Representative of the Appellant: Warren Ferris (the "Designed 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 Marshall/Chief Building Official, liaison to the
Board; John Mezzapesa, Code Enforcement Officer; and Robert Hill,
Sustainability & Natural Resources Official;
d. Witnesses (either for or against appellant): none.
The names of all people participating in the December 13, 2021, hearing and their
capacity:
a. Appellant: Richard Ferris and Sharliss Ferris, of the Ferris Richard W & Sharliss
S Trust;
b. Representative of the Appellant: Warren Ferris (the "Designed 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 Marshall/Chief Building Official, liaison to the
Board; John Mezzapesa, Code Enforcement Officer; and Robert Hill,
Sustainability & Natural Resources Official;
d. Witnesses (either for or against appellant): none.
4. The names of all people participating in the April 21, 2022, hearing and their capacity:
a. Appellant: Richard Ferris and Sharliss Ferris, of the Ferris Richard W & Sharliss
S Trust;
b. Representative of the Appellant: Warren Ferris (the "Designed Representative");
c. City staff: Markie Jorgensen, Assistant City Attorney, legal advisor to the Board;
Rodger Maggio, Fire Marshall/Chief Building Official, liaison to the Board; John
Mezzapesa, Code Enforcement Officer
d. Witnesses (either for or against appellant): Hans Mager, Licensed Civil &
Structural Engineer
The names of all people participating in the April 25, 2023 hearing and their capacity:
a. Appellant: Ferris Richard W & Sharliss S Trust;
b. Representative of the Appellant: Warren Ferris (the "Designed Representative");
c. City staff: Mark Amberg, Assistant City Attorney, legal advisor to City Code
Enforcement staff; Sadie Weller, Deputy City Attorney, legal advisor to the
Board; Mike Loew, Deputy Building Official, Liaison to the Board; and John
Mezzapesa, Code Enforcement Supervisor;
d. Witnesses (either for or against appellant): none.
The hearings on November 29, 2021, December 13, 2021, and April 21, 2022, were
recorded with audio recording. The hearing on April 25, 2023, was recorded with
simultaneous audio and video recording. All such recordings are in the custody of the
City Clerk.
7. The Appellant or a Designated Representative were present for the public hearings.
Pursuant to Municipal Code Section 1.24.110(E), the Board received the Administrative
Citations and supporting information (documents, exhibits, or materials prepared by city
staff) concerning the Appellant's violations of Municipal Code Sections 15.02.010,
12.23.030, and 17.70.030(E) as prima facie evidence of the Appellant's code violations
and of the facts stated in such documents.
The following submissions were submitted to the record, including, but not limited to
photographs, drawings, and documents:
a. City staff report, dated November 16, 2021, and accompanying Attachments 1-34;
b. Agenda correspondence from Appellant's Designated Representative, received
November 22, 2021, with accompanying photographs and attachments;
c. Agenda correspondence from Appellant's Designated Representative, received
December 6, 2021, with accompanying photographs and attachments;
d. City staff report, dated April 11, 2022, and accompanying Attachments 1-3;
e. Document titled "Evidence Submission for April 21St Meeting of the Construction
Board of Appeals on Citation 25409," submitted by Appellant via Rodger Maggio
on April 21, 2022;
f. City staff report, dated April 11, 2023, and accompanying Attachments 1 and 2
(prior staff reports);
g. Agenda correspondence from Appellant's Designated Representative, received on
April 17, 2023, with accompanying photographs and attachments.
10. The Board has decided to uphold the Administrative Citation issued to Appellant for
violations of Municipal Code Sections 15.02.010, 12.23.030 and 17.70.030(E).
11. The Board found the following information, presented by oral and physical evidence,
credible in support of its decision to uphold the Administrative Citation and deny the
appeal for violations of Municipal Code Section 15.02.010 for an unpermitted retaining
wall and unpermitted alteration and use of storage container buildings for 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 2019 California Building Code provides that "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 clarify existing law
that shipping or storage containers with a floor area of over 120 square feet are
considered structures under the California Building Code, and therefore, require a
permit for the actions listed in paragraph 9.b. above under California Building
Code Section 105.1 unless an exception applies.
d. On March 9, 2017, City of San Luis Obispo Code Enforcement staff inspected
Appellant's Property and observed in relevant part: metal storage containers had
been stacked to create a two -level structure, with alterations to the containers
indicating their use for occupancy without a building permit and that a retaining
wall more than four feet in height had been constructed on the Property without a
building permit.
e. On April 10, 2017, City staff issued a Notice of Violation to Appellant for, among
other things, alteration and use of storage container buildings for occupancy
without a building permit 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 submitted a Request for Director's Review dated April 30, 2017, in
response to the Notice of Violation, which resulted in the Director of Community
Development declining to withdraw the Notice of Violation in 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 County District Attorney's Office
to explore potential prosecution and resolution of additional Fish and Wildlife
Code violations on the Property.
h. The City's Code Enforcement activity was also placed on temporary hold due to
the City halting issuance of administrative citations during the beginning of the
COVID-19 pandemic.
i. In July 2021, City Code Enforcement staff revisited the Violations and
determined that no corrections had occurred on the Property nor did staff receive
submittal of any request for permits or exceptions.
j. To date, these conditions have not been corrected by Appellant.
k. The Administrative Citation, together with the attachments contained in the staff
report, admitted as prima facie evidence under Paragraph 8 above, demonstrate
that the citing Code Enforcement Officer personally observed Appellant's
Violations.
1. 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.
12. The Board found the following information, presented by oral and physical evidence,
credible in support of its decision to uphold the Administrative Citation and deny the
appeal for violation of Municipal Code Section 12.23.030 and for violation of Municipal
Code Section 17.70.030 (formerly 17.16.025):
a. San Luis Obispo Municipal Code Section 12.23.030 prohibits deleterious
activities within creeks, riparian areas, and city -owned properties adjacent to or
including riparian areas.
b. SLOMC 12.23.030, subdivision (N), specifically prohibits "any act in a regulated
area constituting a violation of any provision of CESA, ESA, the California
Public Resources Code, or any regulation of the California Department of Fish
and Game, or of any permit or approval issued by any federal, state or local
agency having jurisdiction over the regulated area shall also be a violation of this
chapter."
c. SLOMC Section 12.23.020 (Regulated areas) states that Section 12.23.030
applies to "Creeks including San Luis Obispo Creek and its tributaries and any
other `Water of the United States,' as defined in 40 CFR 122.2, including all
surface watercourses and waterbodies, natural waterways and definite channels
and depressions in the earth, or such sections or connections of such waters that
have been lined with concrete, covered or channelized in the past, that may carry
water, even though such waterways may only carry water during rains and storms
and may not carry surface water at and during all times and seasons."
d. SLOMC 17.158.010 defines a creek as, "A waterway or portion of waterway
designated in the general plan as a creek. A drainage ditch, concrete swale,
underground culvert, or storm drain (as indicated on the general plan) is not a
creek. Creeks located outside the urban reserve line are as designated by the
USGS 7.5 Minute series quadrangle maps or county data."
e. SLOMC 17.70.030(E) prohibits certain improvements and structures within 20
feet of the south fork of the San Luis Obispo creek.
f. The Municipal Code's creek setback requirements apply to "all creeks as defined
in the General Plan Open Space Element and shown on that element's creek map,
and only to those creeks." (SLOMC 17.70.030(B).)
g. Creek setback regulations have been in place since 1996, when the City Council
adopted Ordinance 1302.
h. The City's Conservation and Open Space Element of the General Plan (COSE)
identifies the waterway on Appellant's property as a creek. The City has
identified the waterway as a creek since at least 1994, as shown on the creek map
from the City's 1994 COSE. The most recent version of the COSE, from 2006,
also identifies this waterway as a creek.
i. The creek is not manmade and appears on aerial photos prior to current ownership
of the subject property.
j. Multiple City divisions including the Fire Department, Planning, and Engineering
Development Review have independently determined that the waterway meets the
definition of a creek under the Municipal Code.
k. A county planning approval dated October 15, 2002, related to the subject
property contains a description of a "open drainage ditch to culvert." City staff
contacted the County about this approval, and county officials described this
permit as a land use permit application for a storage yard. Appellant had called
the drainage course a "ditch" on the application to the County, and the County did
not make a determination whether the drainage course was a creek or a ditch.
1. In March 2017, City Code Enforcement staff was contacted by Game Warden
Terri Hickey from the California Department of Fish and Wildlife (CDFW)
[formerly known as the California Department of Fish and Game] regarding the
unauthorized channelization of the south fork of San Luis Obispo Creek at 4080
Horizon Lane and the construction of a retaining wall system within the creek.
m. Staff from the CDFW, Central Coast Regional Water Quality Control Board, City
Code Enforcement, and City Building & Safety inspected the property on March
9, 2017. The inspection confirmed that the creek had been unlawfully channeled,
with substantial alterations to the bed, bank, and channel of the creek, and that an
unpermitted retaining wall system was constructed within the required creek
setback.
n. CDFW issued a Notice of Violation to Appellant on March 30, 2017, for
modification of the creek and construction of the retaining wall system at 4080
Horizon Lane in violation of the California Fish and Game Code. This Notice of
Violation stated that "the creek channel has been narrowed and the banks replaced
with concrete block walls. Also, there are numerous vehicles, shipping containers,
and other potential sources of pollution that have been placed immediately
adjacent to the modified stream where pollutants may enter the stream." CDFW
found that "the activities substantially altered the bed, bank, and channel of the
stream."
o. A search by City staff of City and County documents yielded no documentation
that Appellant obtained permits for the installation of the retaining wall or piping
to direct creek flow.
p. On April 10, 2017, City Code Enforcement staff issued a Notice of Violation for,
in addition to those violations of the Building Code discussed above, the
unpermitted construction of the retaining wall system within a creek area and the
placement of retaining walls, multiple storage containers, vehicles, and other
equipment within the 20-foot creek setback area.
q. The retaining wall system in the creek was constructed of stacked interlocking
blocks with no apparent concrete footing or rebar support systems. The structure
was one continuous wall with a drainage culvert pipe extending through the wall
at each end of the property. The height of the wall varied with a maximum height
of approximately 10 feet.
r. Appellant submitted a Request for Director's Review dated April 30, 2017, in
response to the Notice of Violation, which resulted in the Director of Community
Development declining to withdraw the Notice of Violation in a decision dated
September 12, 2018.
s. 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 County District Attorney's Office
to explore potential prosecution and resolution of additional Fish and Wildlife
Code violations on the Property.
t. The City's Code Enforcement activity was also placed on temporary hold due to
the City halting issuance of administrative citations during the beginning of the
COVID-19 pandemic.
u. In July 2021, City Code Enforcement staff revisited the Violations and
determined that no corrections had occurred on the Property nor did staff receive
submittal of any request for permits or exceptions.
v. To date, these conditions have not been corrected by Appellant.
w. The January 2022 meeting 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 by Appellant with local and state code on the
subject property was related to remediation of the violations on the subject
property. Any related proceedings or enforcement action by those agencies are
separate and independent from the Board's determination of whether Appellant
violated the San Luis Obispo Municipal Code.
x. The Administrative Citation, together with the attachments contained in the staff
report, admitted as prima facie evidence under Paragraph 8 above, demonstrate
that the citing Code Enforcement Officer personally observed Appellant's
Violations.
y. 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.
13. The due date for payment of the fine shall be thirty (30) days after the date the decision is
mailed.
SECTION 2. Action: Based on the above findings, documentation, and information
submitted in support thereof, the Board does hereby deny the appeal of Warren Ferris, on behalf
of the Ferris Richard W & Sharliss S Trust, and uphold the Administrative Citation No. 25409, for
violation of Municipal Code Section 15.02.010 (California Building Code Section 105.1) for an
unpermitted retaining wall, for violation of Municipal Code Section 15.02.010 (California
Building Code Section 105.1) for an unpermitted alteration and use of storage container buildings
for occupancy, for violation of Municipal Code Section 12.23.030 (prohibited activities in a creek),
and for violation of Municipal Code Section 17.70.030(E) [formerly section 17.16.025] (creek
setback dimensions.) This action by the Construction Board of Appeals supersedes prior action on
this matter to the extent inconsistent therewith.
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 Citations. 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 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 of Board Member Vessely, seconded by Vice Chair Eckrich, to uphold the
administrative citation for construction of an unpermitted retaining wall and unpermitted alteration
and use of storage container buildings for occupancy, and on the following roll call vote taken on
December 13, 2021:
AYES: Chair Dilworth, Vice Chair Eckrich, Board Member Vessely, Board Member Garza,
and Board Member Wiedeman
ABSENT: Board Member Graves, Board Member Martinez
Upon motion of Board Member Vessely, seconded by Board Member Wiedeman, to
uphold the administrative citation for violation of the creek setback requirements and for violation
of the prohibited creek activities and conditions within a creek area, and on the following roll call
vote taken on April 25, 2023:
AYES: Vice Chair Eckrich, Board Member Wiedeman, Board Member Garza, Board Member
Vessely and Chair Dilworth
ABSENT: Board Member Graves
The foregoing resolution was adopted this 16th day of May 2023,
Niel Dilworth, Chairperson Date of Si