HomeMy WebLinkAbout01-28-2016 CBOA Agenda Correspondence (Notice of Directors Decision)1
APPEAL OF NOTICE OF DIRCTOR’S DECISION 1
Steve and Kathie Walker file this Appeal of the Director’s Decision (“NDD”) which denied the 2
Walker’s Appeal of a Notice of Violation (“NOV”) issued February 23, 2015. In support of their Appeal, 3
the Walkers conducted considerable research in historical archives. They also interviewed witnesses 4
familiar with the Walker’s property at 1269 Fredericks Street (“the property”) as far back as the year 5
1928. The evidence reveals that the property originally included at least two structures in the 1920’s: a 6
residence at the front of the lot and a factory that manufactured potato chips at the rear of the lot 7
accessible by Hathway Alley. The records also show that the potato chip manufacturing facility was 8
converted to a dwelling and inhabited by tenants in 1932. Although Mr. Johnson cites a City ordinance 9
that building permits were required beginning in 1931, the property was located outside of the City 10
limits in 1931. Further, he has acknowledged that permit records were destroyed in a fire at the City 11
offices during the 1950’s. The first official building records available for the property were obtained by 12
the Walkers from the San Luis Obispo County Assessor. The Assessors records were created in 1946 13
when additions were made to the property. 14
Staff at the Assessor’s office indicated that their records “should be used for informational use 15
only and do not constitute a legal document for the description of the property.” They stated this is 16
especially true in the case of older records with the disclaimer that the material is dated “which would 17
have an impact on its accuracy.” The Assessor provides the disclaimer on the records they send to the 18
Community Development Department (“CDD”). 19
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In the Walker’s case, CDD was unable to obtain the complete records for the property. The 25
Walkers discovered that Code Enforcement was missing the original records from the Assessor’s office 26
from 1946 through 1996 after they received the NOV. Fortunately the Walkers were able to obtain 27
those records. They were also able to obtain historical records based on information proved by 28
witnesses. 29
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Although the Assessors records do not show the rear dwelling on the property, the Walkers 1
interviewed former neighbor, Gene Piper, who began living next door to the Walker’s property in 1928. 2
Mr. Piper was 7 years old when his parents moved a Victorian house onto the lot at 1267 Fredericks 3
Street. (The Victorian house was relocated from Marsh at Osos Street.) He grew up next door to the 4
Walker’s property and his family lived in the house until the 1970’s when his mother, Louise Hill Piper, 5
passed away. He clearly recalled the Walker’s property and the former residents throughout the years. 6
Mr. Piper said in 1928 the property included a house at the front of the lot and a large structure 7
at the rear of the lot that housed a potato chip factory until it was converted to a dwelling a couple of 8
years later. Mr. Piper told the Walkers that the original structures were built by John Diener and he 9
occupied the property with his wife, Sophie and son, Loyd. Mr. Piper recounted that the Diener’s made a 10
living by manufacturing potato chips that were produced and packaged in a factory located at the rear 11
of the lot accessible by Hathway Alley. 12
Based on information gained from Mr. Piper, the Walkers were able to locate historical records 13
from 1930 that listed John Diener as a potato chip manufacturer located at 1269 Fredericks Street, San 14
Luis Obispo. (Attachment “A”) 15
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These records confirm that the rear structure existed on the property in 1928, as Mr. Piper said. 22
The materials used to construct the rear structure are also consistent with the fact that it was once a 23
factory. It has a metal roof while the roof of main residence and subsequent additions are composition 24
shingles. 25
The Great Depression hit and the Diener’s potato chip factory went out of business. According 26
to Mr. Piper, the rear structure was converted to a dwelling inhabited by tenants. He recounted the 27
names of several tenants over the years. The Walkers were able to obtain historical records that indicate 28
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The manufacturing of potato chips ceased at the property in approximately 1931 which is consistent 1
with the information provided by Mr. Piper. The City Directory from 1932 shows that John Diener’s 2
occupation was a “laborer” and no longer a “potato chip manufacturer” as stated in the 1930 U.S. 3
Census. (Attachment “B”) 4
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According to the same City Directory in 1932, John Diener’s brother, William Diener, was a 11
building contractor and was married to Bessie. The U.S. Census Records from 1930 show that William 12
and Bessie lived in Kern County and had three sons. (Attachment “C”) They moved to San Luis Obispo 13
sometime beteen 1930 and 1932. 14
These records are consistent with Mr. Piper’s statements that the factory was converted to a 15
dwelling and occupied by several people after the potato chip factory closed in approximately 1931. 16
John, Sophie and their son lived in the 1-bedroom house at the front of the property while William, 17
Bessie and their sons lived the rear dwelling. Based on the records, the rear structure was 18
constructed in the 1920’s and converted to a dwelling in 1931, prior to the requirement of building 19
permits. It is a non-conforming dwelling. 20
It is unclear if any further construction took place on the property over the next 15 years. The 21
Assessors records prepared in 1946 for the Walker’s property estimate the structures were built in 1930 22
with the notation of “E” next to the 1930 date column. 23
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The Assessor’s office has no information about the actual date of any construction prior to 1946. 1
The Assessor’s records were created in 1946 when additions were made to the property. The records 2
state that the price” of permit fees paid in 1946 included 2 fixtures for a half bathroom. 3
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Therefore, plumbing and electrical for the half bathroom were built according to the Building 17
Code in 1946 and do not constitute violations set forth under “Construction without Required Permits or 18
Inspections,” “Hazardous Plumbing,” or “Hazardous Electrical Wiring” in the NOV. 19
In 1964, separate permits were obtained from the Ctiy of San Luis Obipso to construct a carport 20
and separate laundry area at the property according to the Building Codes in 1964, therefore no 21
violations exists as set forth under “Hazardous Electrical Wiring” or “Hazardous Plumbing” in the NOV 22
History 23
The Walkers purchased the property in 2009 and both dwellings on the property had been 24
student rentals for decades. As a requirement for purchasing the property, the Walkers had two 25
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separate inspections performed: one by a local licensed real estate inspector and the other by an 1
inspector for the Federal Housing Administration, required because the Walkers obtained an FHA 2
mortgage. The Seller’s paid for repairs such as termite damage and the Walkers were able to qualify for 3
the mortgage based on the rental income received from a 1-bedroom rental cottage at the rear of the 4
property. Ms. Walker is disabled and receives $324 per month and Mr. Walker is a medivac helicopter 5
pilot earning approximately $4,000 per month. The Walkers have two sons, ages 8 and 13. Without the 6
rental income they would not be able to afford their mortgage, taxes and insurance which is $3,417 per 7
month; they would be unable to keep their home or live in San Luis Obispo. 8
Soon after moving into the main house in early 2010, the Walkers found a rat infestation 9
especially in the kitchen area. They removed the contaminated cabinets, a rat’s nest located behind the 10
wood paneling and contaminated insulation. 11
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During this time, Mr. Walker was involved in a serious aviation accident and sustained neck, 22
back and spinal cord injuries. He was bedridden and unable to work for two years while treated at 23
Stanford Medical Center. He underwent physical rehabilitative therapy and eventually improved enough 24
to return to work. The Walkers spent their savings to pay for their basic living and medical expenses 25
throughout that time. 26
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Mr. Walker returned to his job as a commercial pilot in 2012 but shortly afterward his airline 1
furloughed all 200 pilots and subsequently went out of business. Due to unsustainable debts as a result 2
of unemployment, the Walkers made the difficult decision to file bankruptcy. The airline industry was 3
unstable so Mr. Walker returned to his career as an EMS helicopter pilot. He found employment in 2013, 4
based in El Paso, Texas and commuted for one year. He was able to transfer to an EMS base at Ft. 5
Hunter Liggett, California in 2014. Meanwhile, with limited financial resources, the Walkers home 6
remained as it was in 2010 when the kitchen was removed because of the rat infestation. That room 7
now serves as the Walker’s living room and remains the hub of their home. 8
Inspection of the Property by Code Enforcement, 5/14/2014 9
On May 14, 2014, Mr. Lease, Chief Building Official, and Code Enforcement Officer Cassia 10
Cossina conducted a thorough inspection of the Walkers property based on a complaint filed by Kathie 11
Walker’s estranged step-mother, Kathy LaFollette in 2013. Ms. LaFollette does not live in San Luis 12
Obispo and had not had any contact with the Walkers or their children for many years, long before they 13
purchased the property. She was angry because she was named as a creditor in the Walker’s bankruptcy 14
case and set out to harass the Walkers by any means possible. During this time, Ms. LaFollette also filed 15
a false report of child abuse with Child Protective Services which was determined to be unfounded, and 16
filed an Adversarial Proceeding lawsuit in Federal Bankruptcy Court which was dismissed with prejudice 17
by the judge. Mr. Lease was sympathetic with the Walker’s situation but told them that improvements 18
not contained in the City’s permit file are considered code violations and they are responsible for any 19
and all improvements made to the property from the time it was built if no permit could be located. 20
Mr. Lease noted the City’s permit record for the property is sparse. He pointed out several 21
issues that constituted code violations but as empathetic with the Walker’s situation and said he would 22
work with them to resolve the issues. Many of the violations were minor and easily correctable, such as 23
batteries missing from smoke detectors, carbon monoxide alarms, repairing a small area of damaged 24
siding, a missing electrical faceplate, and removing items stored by their tenant next to the water heater 25
in the rear dwelling. 26
According to the San Luis Obispo Municipal Code (“SLOMC”), Chapter 1.24 which governs 27
Administrative Code Enforcement Procedures, it appears the CDD should have issued a Notice to Correct 28
before issuing a Notice of Violation. 29
Chapter 1.24 ADMINISTRATION CODE ENFORCEMENT PROCEDURES 30
1.24.030 Definitions 31
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The following definitions apply to the use of these terms for the purposed of this chapter: 1
A. Administrative Citation. The director shall not issue an administrative citation pertaining to 2
building, plumbing, electrical, or other similar structural or zoning violations that do not create 3
an immediate danger to health and safety unless at least ten days prior to the issuance of the 4
administrative citation, the director served a Notice to Correct. 5
F. Notice to Correct. A type of notice of violation that pertains to building, plumbing, electrical, 6
or other similar structural or zoning violations, that do not create an immediate danger to health 7
and safety. It must be issued at least ten days prior to issuing any administrative citation 8
pertaining to building, plumbing, electrical, or other similar structural or zoning violations, that 9
do not create an immediate danger to health and safety being issued. 10
A Notice to Correct would have provided the Walkers with the opportunity to correct simple 11
items expeditiously. 12
First Notice of Violation 13
On July 20, 2014, the Walkers received a NOV which listed violations dating back to the original 14
construction of their property in the 1920’a based on the limited records in the City’s file. 15
The Walkers went to the City to look at the building permit record for their property and were 16
told that a fire in the 1950’s had destroyed the permit records. The first permit in the City’s file for the 17
property was issued in 1964. The Walkers also went to the San Luis Obispo County Assessor’s office and 18
located the Residential Building Record for the property. Those records contradict claims made in the 19
NOV. 20
The Walker presented the Assessors record to Mr. Lease and he said the Assessor’s office did 21
not provide those records to the CDD therefore he had not seen them before. The Walkers were advised 22
to ignore the NOV and Mr. Lease scheduled a meeting to meet with them on July 30, 2014. 23
Meeting with Joseph Lease, 7/30/2014 24
On July 30, 2014, the Walkers met briefly with Mr. Lease at the CDD. He was headed out of the 25
office for vacation and needed to catch a flight at LAX. Mr. Lease rescheduled the meeting for 26
September 16, 2014. 27
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Meeting with Joseph Lease and Second Inspection of the Property 9/16/2014 1
On September 16, 2014 the Walkers met with Mr. Lease at the CDD. He also visited the Walker’s 2
property that afternoon to investigate improvements reflected in Assessor’s records provided by the 3
Walkers. Mr. Lease indicated he would revise the NOV to include the legal, non-conforming construction 4
which would eliminate many of the items on the original NOV. Noting that the majority of the remaining 5
“violations” occurred prior to the Walker’s ownership of the property and based on their financial 6
situation, Mr. Lease indicated that the Walkers could apply to have the permit fees for the remaining 7
items waived retroactively. 8
Revised Notice of Violation 2/23/2015 and the Walker’s Appeal 9
Over five months later, on February 26, 215, the Walker received the “revised” NOV which did 10
not contain the revisions discussed with Mr. Lease. The Walkers were advised that Mr. Lease left the 11
City in December 2014. The NOV still listed illegal construction of the bedroom and half bathroom 12
constructed in 1946, the rear dwelling, and other permitted improvements. The Walkers filed an Appeal. 13
(Attached) 14
Notice of Director’s Decision to the Walker’s Appeal, 5/6/2015 15
In response to the Walker’s Appeal, the CDD Director, Derek Johnson, had three options 16
available: to grand the Appeal and DISMISS the Notice of Violation; to grant portions of the Appeal and 17
MODIFY Notice of Violation; or to DENY the Appeal in whole. 18
On May 9, 2014, the Walkers received a Notice of Directors Decision (“NDD”) which DENIED the 19
Walkers appeal entirely. It appears Mr. Johnson did not thoroughly review the evidence in support of 20
the Walker’s Appeal. Further, Mr. Johnson did not itemize the violations nor address each violation as 21
outlined in the NOV and responded to by the Walkers in their Appeal. He generically lumped violations 22
together in a boilerplate fashion at the end of brief paragraphs, stating all of the violations are upheld. 23
He also mistakenly listed and upheld electrical violations for the rear dwelling when the NOV does not 24
even list any electrical violations for the rear dwelling. 25
Mr. Johnson states that the City of San Luis Obispo “adopted the Uniform Building Code, 1930 26
edition, in 1931, Ordinance 157 which required permits for and regulated construction.” 27
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Mr. Johnson overlooks the fact that the Walker’s property was built in the 1920’s and the 10
original construction included a main house and a rear structure that has been utilized as a dwelling 11
since 1931. Further, the property was not located within the City limits in 1931. Mr. Johnson has no 12
documentation that contradicts the Walker’s evidence yet he continues to insist that the 1-bedroom 13
cottage “studio apartment” is illegal construction and must be removed within 10 days. 14
According to Mr. Johnson, the building and permit records were destroyed in a fire at the City 15
offices in the 1950’s. Therefore, he relies on the County Assessor’s records that were provided to him by 16
the Walkers. In his NDD Mr. Johnson states, “The assessor records do not indicate that a half bath was 17
permitted in 1946. Rather a new building record was required due to the many additions.” 18
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It is unclear how Mr. Johnson has made this assumption. The Assessor’s office staff and Joseph 24
Lease unanimously concluded that Assessors records were initially created because additions were 25
made to the Walker’s property as illustrated below. 26
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According to the Assessors records, on December 4, 1946, an appraiser with the initials NDR 1
conducted an appraisal of the property. On the first page of the Residential Building Record, NDR notes 2
a residence (“RES”), a front porch (“FPCH” ¼), a garage (“GAR”), and bedroom (“BEDROOM”). 3
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The bedroom is listed separately from the existing residence because was constructed in 1946. 15
This is evidenced by referring to the reverse side of the Residential Building Record, under 16
“Miscellaneous Structures.” In the column titled “Structure” NDR wrote BEDROOM, and under the “Size” 17
column NDR listed a corresponding size of 10’ x 16’. Under “Remarks” NDR wrote, “BEDROOM PRICE 18
INCLUDES 2 FIXTURES.” 19
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The statement clearly indicates that in 1946 the owner of the property paid for permits for the 1
construction of a new bedroom and the “price” of the permit included a half bathroom. Additionally, the 2
size of the bedroom and half bathroom correspond to the size of the Walker’s existing bedroom and half 3
bathroom located at the south part of their residence. 4
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It’s not clear whether the garage, also listed under, “Miscellaneous Structures” in 1946 was 11
constructed at the same time. The records indicate the roof is made of composition shingles as is the 12
main residence. Since the property is located outside the boundary of the Sanborn Fire Maps and the 13
City’s permit records were destroyed, it is impossible to determine the exact nature of additions made 14
in 1946. However, it’s clear that a permit was paid for which included a bedroom and half bathroom, 15
and that the bedroom and garage were initially listed under “Miscellaneous Structures” in 1946. 16
The Assessor’s records indicate the property was assessed by “MH” in 1955, “DU” in 1957, and 17
“DU in 1960. The Assessor’s staff said that these assessments likely did not include a physical inspection 18
of the property since the “date” column only lists a year and not a specific month and day. 19
On January 7, 1965, “DU” inspected the addition of a laundry area and carport which 20
corresponds with permits on file at the City for 1964. It is unclear whether the carport replaced or 21
augmented the existing garage and the permit does not indicate the location of the laundry area. 22
According to sketches on the Assessor’s record, Mr. Lease determined that the laundry area was added 23
to the rear of the main residence in 1965. 24
Mr. Johnson alleges that sometime after 1965 the carport was converted to a living room and 25
kitchen. This room is located in the center of the Walker’s home and included a kitchen and dining area 26
when they purchased the property in 2009. The outdated cabinets and fixtures were consistent with 27
construction in the 1970’s. After moving into the house, the Walkers discovered a rat infestation in the 28
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kitchen and removed the contaminated cabinets, a rat’s nest in the wall, and the surrounding 1
contaminated insulation. According to neighbors who have lived in the neighborhood since the 1950’s, 2
the “carport” has always been an enclosed structure that appears to be part of the main residence. The 3
exterior of both structures are clad with clapboard siding whereas the addition made in 1946 is clad with 4
cedar shake siding. All structures have an adjoining, pitched composition roof. All structures have forced 5
heating vented through the ceiling. All structures have electrical outlets, switches and overhead lights. It 6
is unclear when the alleged conversion took place and the room is a solid structure and does not pose 7
any health or safety risks. 8
The property was assessed on August 5, 1969 and was not assessed again for 25 years. On 9
January 3, 1995 “MC” inspected the property. According to staff at the Assessor’s office, MC did not 10
follow protocol when he crossed out the original Residential Building Record and wrote “Redrawn on 1-11
3-95” across the page. 12
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He proceeded to draw the property as he observed it in 1995, making presumptions that were 22
inconsistent with the original records. Under “Remarks” on the second page, MC wrote, “1-25-95: No 23
visible changes.” 24
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In the NDD, Mr. Johnson references MC’s notes and states, “The 1995 appraisal clearly stated 1
that ‘many adds’ were evident.” 2
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Mr. Johnson ignores the notation made by MC under “Remarks” which states that the 8
property contained “no visible changes.” 9
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He misconstrues MC’s narrative on the next page which implies that the layout of the home 12
makes it appear that many additions had been made over the years, though no visible changes were 13
made to the property according to the records. This is consistent with the fact that there were many 14
additions which included a bedroom and half bathroom, a laundry room, and a carport. The permitted 15
additions create an awkward layout that would lead an observer to note that many additions were 16
made to the house over the years. The relevant fact is that MC clearly stated that no visible changes 17
were made according to the Assessor’s record he had available. 18
Mr. Johnson states, “Sometime between 1969 and 1995 the garage and bedroom was converted 19
to create a studio apartment. This was done without the required building permits. The garage was 216 20
square feet and the bedroom was 160 square feet. The studio apartment is now 60 square feet.” 21
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Mr. Johnson wrongly assumes that the garage and bedroom make up the 1-bedroom cottage 1
which he refers to as a “studio apartment.” The bedroom and half bathroom added in 1946 constitute 2
160 square feet and are part of the main residence. 3
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They continue to be utilized as bedroom and half bathroom at the south side of the house. They 9
are not a “studio apartment.” 10
It appears the garage was converted or augmented in 1965 to include a larger carport. Another 11
carport existing at the rear of the property is visible in older photographs on Google Earth. The Walkers 12
are unsure which structure constituted the carport versus the garage. The original garage was 216 13
square feet which is consistent with the area beside the main residence. 14
Mr. Johnson confuses the rear structure which is a 1-bedroom cottage with a “studio 15
apartment.” According to the testimony of Mr. Piper and historical records located for the property, the 16
rear structure was built in the 1920’s and was converted to a dwelling in approximately 1931. It 17
continues to be utilized as a dwelling which constitutes 60 square feet. 18
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Mr. Johnson claims the cottage “cannot be considered existing non-conforming because permits 25
were never obtained for the conversion and therefore not legal (sic.” 26
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Based on records, it is clear that the rear structure was built in the 1920’s and was converted to 6
a dwelling in 1931. Additionally, the property was located outside the City limits. Therefore no permits 7
were required when the structures were built. Accordingly, the cottage is not “illegal construction” but 8
is a legal, non-conforming dwelling. 9
Mr. Johnson states, “the violations specific to the studio apartment (lack of required fire 10
protection, direct vent requirement, plumbing, electrical and permit requirement of the water heater are 11
upheld.” 12
The NOV does not indicate any electrical violations specific to the rear dwelling. 13
The other violations listed by Mr. Johnson are related to the original construction of the rear 14
dwelling, such as the location of the structure within the 5-foot-setback of the property line. The cottage 15
was constructed in the 1920’s and converted to a dwelling in 1931, therefore is not subject to today’s 16
building code. The items specific to the rear dwelling are not illegal but are considered legal, non-17
conforming. 18
Obviously, the Walkers want to ensure that the property is safe for their family and tenants. The 19
cottage is in excellent condition and provides attractive housing that exceeds the standards of most 20
housing in the City of San Luis Obispo, especially near the Cal Poly campus. Although insignificant to the 21
CDD, the rental income provided by the cottage is paramount to the Walkers. They were only able to 22
qualify for their mortgage because the rental income was used in the calculation to enable them to 23
qualify to obtain their home loan. It would be impossible for them to afford their house payment if they 24
lost the income from the rental of their cottage. 25
The Walkers are honest, law abiding citizens and are frustrated with the CDD’s process, 26
especially in light of the efforts the Walkers have made to actually improve their neighborhood. They are 27
members of Residents for Quality Neighborhoods and have taken an active role in cleaning up Hathway 28
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Alley at the rear of their property which is a common dumping ground. They brought the problems 1
associated with the Alley to the City’s attention and were ignored. The turnover of City staff has made it 2
difficult to develop a consistent relationship with someone at the City to address the problem. The 3
Walkers finally took action themselves, cleaned the alley of trash/discarded junk and hauled it ot the 4
landfill several times until their utility trailer was stolen from their property last year. To illustrate this 5
long-standing problem, the Walkers sent correspondence, provided photos and a copy of a letter 6
published in Telegram Tribune in 2006 which was written by a homeowner that backs up to the Alley. 7
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Ms. Walker spoke with Mr. Johnson on the telephone about the problem a year ago, yet the 19
Alley remains littered with junk and is a public nuisance. Ms. Walker has also been an outspoken 20
advocate to restore workforce housing in San Luis Obispo in conflict with rulings by Deputy Director 21
Doug Davidson. The Walkers feel they have been unfairly condemned and that Mr. Johnson has ignored 22
clear evidence which proves that the major violations outlined in the NOV are unfounded. 23
The Walkers urge the City and the Board of Appeals to realize that the CDD lacks accurate 24
records which has required the Walkers to conduct many, many hours of their own research to defend 25
themselves, to document that the NOV is incorrect. Many homeowners may lack the ability to locate 26
historical records despite receiving an NOV that may not be justified. The short appeal deadline makes 27
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the situation even more challenging. This is especially relevant because the City is implementing a 1
mandatory Rental Inspection Program (which the Walkers supported at the City Council meeting). It 2
appears the CDD is overzealous in its campaign to correct alleged code violations that in no way affect 3
the safety or welfare of a property’s occupants and implement fines that could displace lower income 4
residents. Correspondence sent to City Council by Realtor Hal Sweasy on April 21, 2015, outlines the 5
potential problems with such aggressive enforcement as he describes that his elderly neighbors on both 6
sides of his home in the San Luis Drive neighborhood live in homes that likely contain code violations. 7
(Attachment D) The proactive crackdown by code enforcement should concentrate on abating true 8
health and safety concerns instead of implementing revenue generating tactics that could displace 9
unwitting homeowners. 10
As for the present case, based on the evidence presented in this Appeal, Steve and Kathie 11
Walker respectfully request that the Construction Board of Appeals grant their Appeal and accordingly, 12
dismiss the NOV. 13
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Dated this 14th day of May, 2015 _______________________________________ 16
Steven Walker 17
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Kathie Walker 20
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