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HomeMy WebLinkAbout03-26-2015 CBOA Agenda PacketCity of San Luis Obispo, Agenda, Construction Board of Appeals A G E N D A Construction Board of Appeals 919 Conference Room 1, Main Lobby 919 Palm Street, San Luis Obispo March 26, 2015 Thursday 3:00 p.m. ROLL CALL: Board Members Rebecca Jansen, Denise Martinez, Stacy Neely, Matthew Quaglino, James Thompson, Vice-Chair Niel Dilworth, and Chair Robert Vessely STAFF: Anne Schneider, Interim Chief Building Official MINUTES: Minutes of July 29, 2014. Approve or amend. PUBLIC COMMENT: At this time, people may address the Board about items not on the agenda. Persons wishing to speak should come forward and state their name and address. Comments are limited to five minutes per person. Items raised at this time are generally referred to staff and, if action by the Board is necessary, may be scheduled for a future meeting. PUBLIC HEARING ITEM: NOTE: Any court challenge to the action taken on public hearing items on this agenda may be limited to considering only those issues raised at the public hearing or in written correspondence delivered to the City of San Luis Obispo at, or prior to, the public hearing. Any decision of the Construction Board of Appeals is final unless appealed to the City Council within 10 days of the action (Recommendations to the City Council cannot be appealed since they are not a final action.). Any person aggrieved by a decision of the Board may file an appeal with the City Clerk. Appeal forms are available in the Community Development Department, City Clerk’s office, or on the City’s website (www.slocity.org). The fee for filing an appeal is $273 and must accompany the appeal documentation. If you wish to speak, please give your name and address for the record. Please limit your comments to three minutes; consultant and project presentations limited to six minutes. 1. 1353 Higuera Street. Appeal Hearing for Building Code Violations; R-2 zone; Maria Hutkin, Attorney for William Austin, Property Manager for JKJ Farms LLC, property owner and appellant. (Cassia Cocina) Construction Board of Appeals Page 2 COMMENT & DISCUSSION 2. Staff a. Presentation of Revised By-Laws (Christine Dietrick and Jon Ansolabehere) b. Changes to Chapter 1.24 of the Municipal Code, Administrative Citation (Christine Dietrick and Jon Ansolabehere) 3. Board ADJOURNMENT DRAFT SAN LUIS OBISPO CONSTRUCTION BOARD OF APPEALS MINUTES July 29, 2014 ROLL CALL: Present: Board Members Rebecca Jansen, Stacy Neely, Mathew Quaglino, James Thompson, Vice-Chair Niel Dilworth, and Chairperson Robert Vessely Absent: None Staff: City Attorney Christine Dietrick, Legal Fellow Isaac Rosen, Chief Building Official Joseph Lease, Neighborhood Services Specialist Daniel Del Rio, Code Enforcement Officer Cassia Cocina, and Recording Secretary Diane Clement, city attorney Staff—see agenda New member Stacy Neely was sworn in at the beginning of the meeting. Chair Vessely and Vice-Chair Dilworth were reelected unanimously. ACCEPTANCE OF THE AGENDA: The agenda was accepted as presented. MINUTES: The minutes of March 17, 2014, were approved as amended. PUBLIC COMMENTS ON NON-AGENDA ITEMS: There were no comments made from the public. PUBLIC HEARINGS: 1. Review of the Role of the Construction Board of Appeals. (Isaac Rosen, Legal Fellow, City Attorney’s Office) 2. Review proposed changes to SLOMC 1.24 (Isaac Rosen, Legal Fellow, City Attorney’s Office) PUBLIC COMMENTS: There were no comments made from the public. BOARD/STAFF DISCUSSION of Items 1 and 2: Attorney Dietrick stated that changes have been made to streamline the appeal process for code enforcement and, as a result, the CBOA may be asked to review a building official’s interpretation and application of code before an action is taken by the City. She added that any action addressing immediate safety issues would be an exception. Chief Building Official Lease stated that abatement issues may be brought to the CBOA in addition to appeals. Draft CBOA Minutes July 29, 2014 Page 2 Members Dilworth and Jansen both stated that this is in conflict with the Bylaws. Attorney Dietrick stated that the Bylaws cannot circumvent statutes. She noted she can take Board suggestions for Bylaw revisions to the City Council and that changes in the process are designed to allow the development of a full administrative record and to identify those cases that might lead to a challenge on writ, which is a more formal process than the usual judicial review by the Superior Court. Member Quaglino expressed concern about how to deal with appeals to the State Water Quality Control Board requirements for storm water runoff since many of the requirements are not even doable. Chief Building Official Lease stated that the board would be reviewing cases where there are violations, such as dumping. He noted that the City is required to enforce provisions of the State water quality laws. Attorney Dietrick added that the City could incur fines if there is a lack of documentation showing that these provisions are being enforced. Member Jansen asked how a storm water violation citation is handled. Attorney Dietrick stated that it has been an informal process using employees or volunteers with expertise to consider an appeal but that she is advocating there be a number of consistently trained and competent hearing officers who can be called upon to participate in full-blown de novo hearings that would result in a documented record. In response to a question from Member Dilworth, Chief Building Official Lease stated that the procedural changes proposed are intended to clear up misconceptions about the role of the CBOA and benefit the overall process of code enforcement. Attorney Dietrick added that the City needs to revise Chapter 1.20 Appeals Procedure to be in conformity with State law. Member Dilworth asked about retaining some language in the Bylaws that has been deleted in the revision. Chief Building Official Lease stated that the same language is in the Building Code and is not needed in the Bylaws. He added that there just needs to be an understanding that the Board of Appeals is about property and the Non-Technical Board is for dealing with non-technical matters where experts, such as engineers, are not needed. Attorney Dietrick stated that the Bylaws could specifically reference the Building Code which would mean any changes in the Code would be automatically included and the City Council could then confer additional review authority on the CBOA. She noted that using the revised procedure provides a low cost method of appeal and also addresses the need for documentation in case lawsuits are pursued against the City. Draft CBOA Minutes July 29, 2014 Page 3 Member Vessely noted that if appellants use the low cost path, they lose the right to file a lawsuit. He asked if a hearing officer is the same as an administrative law judge. Attorney Dietrick responded that was not the case because the City did not want the expense; instead, the City may get volunteer retired lawyers to serve as trained hearing officers. She noted that the baseline requirements codified in the Code for due process are notice of violation and the right to present evidence. Member Vessely stated that the procedure seem to be a bureaucratic process that does not have anything to do with the CBOA and that there is a need to talk to the Board about how staff wants to expand the duties of the Board to deal with issues like storm water and sewers. He added that he disagrees with the approach staff has taken and that if staff appoints a new Board, it should be completely independent and separate from this Board but it would be fine if someone wanted to serve on both. Member Jansen stated that there are two issues: changing how issues trickle down to the CBOA and expanding the scope of the CBOA. Member Vessely stated that staff should not assume that because Board Members are familiar with building and accessibility codes, that they are familiar with all codes. Attorney Dietrick noted that there is a skill set around reading a set of codes and applying them, and that issues, such as public urination and noise, do not usually involve technical expertise but are more about evaluating the credibility of witnesses and/or hearing a police officer describe what was seen or heard and from what distance. Member Dilworth stated that he appreciates the confidence and faith in Board Members’ technical backgrounds and abilities to deal with codes for other things like storm water issues but that this is like asking an attorney to deal with something outside of that attorney’s area of expertise. Attorney Dietrick stated that judges do this all the time and this is what briefs are about. Member Dilworth expressed concern that errors and omissions liability insurance policies for architects and engineers state that the insured will not go beyond his/her area of expertise. He added that his reluctance comes from training and background. Member Quaglino stated that when he became a Board Member, there had not been an appeal in years, but the issuance of more citations now may be setting the stage for more appeals. He added that code officers looking for violations make for a different environment. Chief Building Official Lease stated that he is going to the City Council in November for a study session on a rental housing inspection program and, if the Council adopts an ordinance, there will be inspection of all rental housing, resulting in more enforcement. Draft CBOA Minutes July 29, 2014 Page 4 Attorney Dietrick stated that there is a high level of concern about having the processes in place as the City continues to expand the scope of inspection and violation. Member Thompson stated that if a storm water issue came before him, and two civil engineers disagreed on technical details, he would not have the knowledge to make a judgment. Chief Building Official Lease stated that if a storm water violation appeal came before the Board, staff would provide a report with photos and background and, although no citations have been issued, the City does need the ability to hear potential appeals. Member Dilworth stated that his primary interest is in construction and he is not comfortable with issues like barking dogs or noise. Member Vessely asked staff to consider Board Member comments and craft a means to broaden the scope of the Board. Member Quaglino stated he is comfortable looking at the codes but he is not interested in judging neighborhood issues like noise or dogs because building codes are black and white while the other issues require personal judgments. Member Neely stated that she is interested in serving on the Non-Technical Board. Member Thompson stated he is interested in an expanded role for the board and in serving on the Non-Technical Board but wants the ability to say when he thinks he does not have enough knowledge to deal with a particular issue. He noted that the new process is probably better for the public. Member Dilworth stated that he could handle plan review for storm water. 3. Update on recent past cases before the Board (Joseph Lease, Chief Building Official) • 1128 Moro Street: Non compliant awning has been removed; owner has plans to put up a new awning. • 2080 Rachel Street—so far the retaining wall permit has been obtained and the house is unoccupied. Chief Building Official Lease introduced Daniel Del Rio, formerly a City Park Ranger, now a Neighborhood Services Specialist. ADJOURNMENT: The meeting adjourned at 3:35 p.m. Respectfully submitted by, Diane Clement Recording Secretary Community Development Department, Building & Safety Division 919 Palm Street, San Luis Obispo, CA 93401, Ph. (805)781-7180, Fax (805) 781-7109 Website: http://www.slocity.org/communitydevelopment/ CITY OF SAN LUIS OBISPO – CONSTRUCTION BOARD OF APPEALS STAFF REPORT HEARING DATE: March 26, 2015 SUBJECT: Appeal of Director’s Decision for Municipal Code Violations at 1353 Higuera Street, San Luis Obispo, California OWNER: JKJ Farms LLC OFFICER: Cassia Cocina, Code Enforcement Officer BACKGROUND: On August 6, 2014, City staff issued a Notice of Violation (“NOV”), copy attached (Attachment 1), for the above referenced property citing the following violations of the City’s Municipal Code: • Unpermitted Structures/Permits Required – The original shed structure in the rear of the property was converted into a dwelling unit. A secondary kitchen installed on second floor of main house without permits or approval. Second story water closet installed without permits or approval. Second story bathtub and sink installed without permits or approvals. Electrical wiring added to storage room off of main closet on second floor. Any owner or authorized agent who intends to construct, enlarge, alter, 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, mechanical or plumbing system, requires a permit. Electrical, plumbing and structural alterations require a permit. Plans must be submitted for review and approval and permits obtained for all unpermitted construction. (SLOMC 15.02.010, California Residential Code 105.1); • Unpermitted Dwelling Unit/Improper Occupancy - The shed structure was converted into a second dwelling unit without plan submittal or approval. All buildings or portions thereof occupied for living, sleeping, cooking or dining purposes that were not designed or intended to be used for such occupancies shall be considered substandard. Plans must be submitted for review and approval. (SLOMC 15.02.010, SLOMC 17.21.050, Uniform Housing Code 1001.14); and CBOA1 - 1 • High Occupancy Use Permit Required – Property is advertised as six (6) bedrooms. A high occupancy use permit is required for six (6) or more adults. (SLOMC 15.02.010, SLOMC 17.93.050). The property owner timely appealed the NOV to the Community Development Director pursuant to SLOMC 1.24.090 (Attachment 2). On October 7, 2014 the City’s Community Development Director denied the property owner’s appeal (Attachment 3). On August 15, 2014, the property owner timely appealed the Director’s decision (Attachment 4), which is the basis for this hearing. ANALYSIS: The City of San Luis Obispo first adopted the Uniform Building Code, 1930 edition, in 1931 by Ordinance 157 (Attachment 5). On November 5, 1922, the City received an Application for Building Permit (Attachment 6) for the construction of a “1 story” “Residence” on the subject property, approximately 30 feet wide by 44 feet deep. On October 7, 1931, the City received an Application for Building Permit (Attachment 6) for a “Residence addition enlargement of dining room” approximately “3’.6” x 14’ 0””. This permit references the addition to be “1 story”. The County of San Luis Obispo first assessed the property in 1946 which described the property and various improvements at that time (Attachment 7).1 1. Shed illegally converted into dwelling unit. In his appeal, the property owner states: In any event, independent investigation shows that the structures on the subject parcel were built in 1921…Comparison of the 1909 Sanborn map (Exh. 3) and the 1926 Sanborn map (Exh. 2) shows that between 1909 and 1926 most of the lots on the block were developed with a single family home and a smaller structure in back. The 1926 San born map depicts the main house, the small house in the rear and the garage. The three structures depicted on the 1926 Sanborn map are the same structures that exist today. The Director assumes that a “laundry/shed structure” referred to an the (sic) the undisclosed 1946 assessment is the rear dwelling. This is incorrect. Rather than a laundry shed, the rear dwelling is 18’ by 18’, which is considerably larger than a backyard shed, and there is a separate garage building on the parcel, which may be the laundry/shed structure. Property assessments do not necessarily entail a physical inspection inside all structures on a parcel of real property, and do not establish the existence or non-existence of particular uses of property. The use of the rear structure as a residence is a legal non-conforming use. Staff’s Response: The 1946 assessment references an “18 x 18” “Laundry & Shed” structure as well as a “GARAGE” structure. These references are stricken with the word “STUDIO” next to it, which is in different handwriting. Based on this information, City staff believes that the structure may have been erected prior to 1930, however, the original structure was a laundry room/shed as reflected in the 1946 Assessment and not a secondary dwelling unit. This analysis is consistent with the Sanborn maps. 1 It should be noted that the City is unable to obtain an unredacted copy of the Assessor’s Records without the consent of the property owner. CBOA1 - 2 2. Illegal upstairs kitchen and bathroom. In his appeal, the property owner states: “On October 7, 1931…the City issued a Building Permit for a “residence addition” and “enlargement of dining room”…The work was to be completed in six days. We believe that this permit authorized the second floor kitchen area, as the house was two stories high and we believe the footprint of the house did not change. Staff’s Response: The 1921 and 1931 Building Permit Applications both reference the house as single story and staff does not agree that a roughly four foot by fourteen foot “Residence addition enlargement of dining room” could arguably be construed as a permit for a second kitchen on the second floor. In addition, the 1946 Assessment only references one kitchen on the first floor. The 1931 permit likely refers to the pop-out in the dining room area which corresponds to the approximate dimensions in 1931 permit. 3. High Occupancy Use Permit Required. In his appeal, the property owner states: “No dwelling on the property is advertised for or occupied by more than five residents, so a high occupancy use permit is not required. The Director relied on an old advertisement that is no longer used, and the old advertisement did not result in more than five residents at the premises.” Staff’s Response: The high occupancy residential use permit was included in the Notice of Violation due to a July 2, 2014 listing on a property manager’s website. The advertisement listed the property as six bedrooms (Attachment 8). If, as the property owner indicates, the property does not have more than five occupants, then a high occupancy use permit is not required. Upstairs water closet. Although the property owner did not appeal the issue of the illegal water upstairs, we note that the 1946 Assessment only references one bathroom and a bathroom nook both on the first floor. Further, the upstairs bathroom improvements themselves are indicative of unpermitted construction. For example, the materials used in the construction of the bathroom, including cabinetry, piping and fixtures, are not from the 1920’s. The bath tub installed in the alcove under the roof framing, with clearances of less than 5 feet for the majority of the bathtub space, is indicative of work done without permits. Minimum ceiling height provisions have existed in the building code for many decades. Similarly, plastics and manufactured wood products did not exist in the 1920’s for use as building materials. STAFF RECOMMENDATIONS: That the Construction Board of Appeals deny the property owner’s appeal and uphold the City Community Development Director’s decision to uphold the Notice of Violation. ATTACHMENTS: 1) Notice of Violations issued on 8/6/14 2) Appeal of Notice of Violations received on 8/18/14 3) Notice of Director’s Decision sent on 10/7/14 CBOA1 - 3 4) Appeal of Director’s Decision received on 10/20/14 5) Ordinance 157, Adoption of Uniform Housing Code, 1930 Edition 6) City Building Permits 7) County of San Luis Obispo Assessor Record 8) Pacific Beach Properties rental listing for 1353 Higuera 9) San Luis Obispo Municipal Code (SLOMC) 15.02.010 – Codes Adopted 10) CA Residential Code (CRC) 105.1 11) SLOMC 17.21.050 12) Uniform Housing Code (UHC) 1001.14 13) SLOMC 17.93.050 14) Proposed Resolution No. 2015- CBOA1 - 4 CBOA1 - 5 CBOA1 - 6 CBOA1 - 7 CBOA1 - 8 CBOA1 - 9 CBOA1 - 10 CBOA1 - 11 CBOA1 - 12 CBOA1 - 13 CBOA1 - 14 CBOA1 - 15 CBOA1 - 16 CBOA1 - 17 CBOA1 - 18 CBOA1 - 19 CBOA1 - 20 CBOA1 - 21 CBOA1 - 22 CBOA1 - 23 CBOA1 - 24 CBOA1 - 25 CBOA1 - 26 CBOA1 - 27 CBOA1 - 28 CBOA1 - 29 CBOA1 - 30 CBOA1 - 31 CBOA1 - 32 CBOA1 - 33 CBOA1 - 34 CBOA1 - 35 CBOA1 - 36 CBOA1 - 37 CBOA1 - 38 CONSTRUCTION BOARD OF APPEALS RESOLUTION NO. 2015-___ A RESOLUTION OF THE SAN LUIS OBISPO CONSTRUCTION BOARD OF APPEALS REGARDING AN APPEAL OF DIRECTOR’S DECISION AT PROPERTY LOCATED AT 1353 HIGUERA APN: 002-334-007 WHEREAS, on August 06, 2014, the City of San Luis Obispo (“City”) issued a Notice of Violation (“NOV”) to the owner of the above referenced property for violations of the City of San Luis Obispo Municipal Code (SLOMC) for unpermitted construction, unpermitted dwelling unit, improper occupancy and lack of high occupancy permit. A copy of the NOV is attached hereto as Exhibit “A” and incorporated herein by this reference; and WHEREAS, on August 18, 2014, the Community Development Department received an appeal and a Request for Director’s Review regarding the NOV; and WHEREAS, on October 7, 2014, the Community Development Director considered the appeal and denied the appeal and upheld the NOV; and WHEREAS, on October 20, 2014, the Community Development Department received an appeal of the Director’s Decision, WHEREAS, the Construction Board of Appeals of the City of San Luis Obispo (“Board”) conducted a properly noticed public hearing in Conference Room 1 Room of the Community Development Department, 919 Palm Street, San Luis Obispo, California, on March 26, 2015 for the purpose of considering the appeal of the Director’s Decision; and WHEREAS, notices of said public hearing were made at the time and in the manner required by law; and WHEREAS, the Board held a public hearing and provided an opportunity for the appellant, owner or members of the public to submit testimony or evidence or to otherwise contest the Director’s Decision, and WHEREAS, the Board has duly considered all evidence, including the testimony of the owner, appellant, interested parties, and the evaluation and recommendations by staff, including a staff report, presented at said hearing. NOW, THEREFORE, BE IT RESOLVED by the Construction Board of Appeals of the City of San Luis Obispo as follows: Section 1. Recitals. That the above recitals are true and correct and are incorporated herein by this reference. Section 2. Findings. The Board hereby finds as follows: ATTACHMENT 14 CBOA1 - 39 A. That the City of San Luis Obispo first adopted the Uniform Building Code, 1930 edition, in 1931 by Ordinance 157 regulating the erection, construction, enlargement, alteration, repair, moving, removal, demolition, conversion, occupancy, equipment, use, height, height, area and maintenance of all buildings and/or structures in the City of San Luis Obispo; B. That the second dwelling unit in the rear yard was originally constructed as a laundry room/ shed structure and was converted into habitable space sometime after 1946 without a permit; C. That the October 7, 1931 Application for Building Permit did not permit the construction of a second kitchen in the second floor of the subject property and that such improvements were constructed sometime after 1946 without a permit; and D. That the water closet on the second story of the main house was constructed sometime after 1946 without a permit. SECTION 3. Action. That based on the findings above and the evidence presented, the Board hereby denies the property owner’s October 20, 2014 appeal and upholds the October 7, 2014 decision of the Community Development Director. On motion by Commr. [NAME], seconded by Commr [NAME], and on the following roll call vote: AYES: ________ NOES: ________ REFRAIN: ________ ABSENT: ________ The foregoing resolution was passed and adopted this ___th day of March 2015. _____________________________ Name, Secretary Construction Board of Appeals CBOA1 - 40