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
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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
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• 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.
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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
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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-
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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
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