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HomeMy WebLinkAbout03-17-2014 CBOA MinutesSAN LUIS OBISPO CONSTRUCTION BOARD OF APPEALS MINUTES MARCH 17, 2014 ROLL CALL: Present: Board Members Rebecca Jansen, Mathew Quaglino, James Thompson, Vice-Chair Niel Dilworth, and Chairperson Robert Vessely Absent: None Staff: Community Development Director Derek Johnson, Chief Building Official Joseph Lease, Building and Safety Supervisor Rafael Cornejo, Code Enforcement Officer Ben Ross, Building Inspector Mark Sadowski, Assistant City Attorney Andrea Visveshwara, Legal Fellow Isaac Rosen, and Recording Secretary Diane Clement ACCEPTANCE OF THE AGENDA: The agenda was accepted as presented. MINUTES: The minutes of August 29, 2013, were approved as presented. PUBLIC COMMENTS ON NON-AGENDA ITEMS: There were no comments made from the public. PUBLIC HEARINGS: 1. 2080 Rachel Street. Post Deprivation/Abatement Hearing – Dangerous Building; R-2 zone (Joseph Lease) Ben Ross, Code Enforcement Officer, presented the staff report, recommending adoption of the following: a. That the Board finds that the action taken to vacate the residence was justified and hereby orders the occupancy of the residence to be discontinued immediately and until such time as necessary repairs to correct the hazards have been accomplished and approved by the Building & Safety Division and a new Certificate of Occupancy is issued. b. That the owner of the property is required to submit plans for approval prepared by a licensed design professional, obtain the required building and grading permit, make all necessary repairs to correct the cited violations, and to obtain all required inspections and final inspection approval from the department. CBOA Minutes March 17, 2014 Page 2 c. That the owner be required to correct all violations as cited in the Notice of Violation within 90 days of the Board’s decision. d. That if the owner makes a good faith effort to correct the cited violations, but requires more than 90 days to complete the corrective action, then the Building Official is authorized to enter into an Abatement Schedule and Agreement with the owner to provide additional time for corrective action. PUBLIC COMMENTS: Scott Schweitzer, Schweitzer Construction, representing the owner, stated that there is no trust on the property; instead, there is a grant deed with Robert Callaway on the title. He stated that he will have drawings by an engineer and permits within 14 days with the intent of bringing the property up to code. He acknowledged that the retaining wall must be replaced. He noted that the footings are 24” wide and reinforced with rebar. BOARD COMMENTS: Member Jansen asked why this issue has been brought to this board since it is not an appeal. She noted that this is the first time in nine years that a condemnation that is not an appeal has come before the board. Attorney Visveshwara stated it is part of due process that, when health and safety are involved, the City takes action first, and then comes to the board to determine if the action was correct and what needs to be done next. She noted that the board is charged with reviewing the decisions of the Chief Building Official. Member Jansen stated that this is not correct and that she has no problem with findings made by the Building Division but does not want scope of the Board to broaden. She stated that she believes the Board does not have the scope to make a ruling that is not based on an appeal. Chief Building Official Lease stated that this Board, being the only City appeals board, has to review the action taken and that this is backed up by state law and practice. He suggested a review of the Bylaws. Member Vessely stated that perhaps there should be no decision on this property at this meeting based upon what Mr. Schweitzer has proposed. Chief Building Official Lease stated that the City can start working with Mr. Schweitzer without a board review at this time. Chief Building Official Lease called for a five-minute recess to review the Bylaws, after which he read relevant sections of the State Code, City Bylaws, and the Uniform Housing Code, and then concluded that this Board is charged with determining whether the action taken by the City for this property is appropriate. Attorney Visveshwara stated that any decision today is appealable to the City Council. CBOA Minutes March 17, 2014 Page 3 Member Quaglino asked if silence by the property owner in response to the City’s action constitutes an appeal by default. Chief Building Official Lease responded that it does not. Member Jansen added that there are specific steps that must be taken for an appeal. Member Dilworth stated that part of the Board’s job is to rule on questions of alternative means and methods, which is not necessarily an appeal, but can be a request. He noted that this comes under “appeal or advise.” Member Thompson asked what is going to keep this project moving ahead, given that the owner did not respond to the City. Mr. Schweitzer responded that he has taken financial control from the owner. Attorney Visveshwara noted that, if a falling-out occurs between the owner and the general contractor, the City can take action using enforcement tools. Member Vessely suggested not taking action today, based upon assurances from Mr. Schweitzer, and then, during the next two weeks, resolve the issue of whether the Board is the appropriate body to review the City’s action. Chief Building Official Lease read the charge of the board in the Bylaws again at the request of Community Development Director Johnson. Member Vessely stated that, since the first paragraph read was about applicants seeking relief, he agrees with Member Jansen. On motion by Member Dilworth, and seconded by Member Jansen, to suspend any action by the Board on this matter today and based on the consideration that a potential resolution between the City and the property owner is in place and based upon its discretion, the Board can reconvene at a later date on this issue. AYES: Members Dilworth, Jansen, Quaglino, Thompson, and Vessely NOES: None RECUSED: None ABSENT: None The motion passed on a 5:0 vote. PRESENTATIONS: 2. Legal Fellow Rosen reported on Pending Changes to the Appeals Process. He stated that the City is looking to create a uniform appeals hearing procedure and expand the role of the CBOA. He stated there would be two levels of review: 1) by a hearing officer and 2) by the CBOA; no administrative citations would be appealable to the City Council; instead, the appellant could seek judicial review; CBOA Minutes March 17, 2014 Page 4 the CBOA would have an attorney advising the board because it is the City’s final review; storm water appeals would come to the CBOA; and a three-member board of varying membership would hear non-technical appeals. Community Development Director Johnson stated that land use appeals would continue to follow the current path with appeal to the City Council and that the Planning Commission would continue to hear appeals to zoning issues. Member Dilworth noted that the City attorney had stated to him that the number of citations has and will continue to increase. Community Development Director Johnson stated that most citations are resolved at the administrative level and he anticipates that will continue. Attorney Visveshwara stated that having a trained hearing officer should make people feel they have been heard, preventing the major complaint and reason for hearing appeals. Member Vessely stated he was concerned that a CBOA hearing would follow one conducted by an attorney. He noted that building code issues are less concrete than vehicle code violations. Attorney Visveshwara stated that hearing officers will render written decisions and when appeals come to the CBOA, board members will not be bound to show deference to prior decisions, i.e., the hearings of the board would be de novo. Member Thompson stated he has been involved in something similar elsewhere and it did not work well. He noted that it is good to separate the technical from the non-technical and that the hearing officer does not have much technical expertise. Legal Fellow Rosen noted that hearing officers could deal quickly with citations issued in error. Attorney Visveshwara stated that they were not able to find a model of this anywhere else but that other cities anticipated observing how it would work here. 3. Community Development Director Johnson did a presentation on Measure Y. He noted that whether there will be a renewal of the current Measure Y or a new proposal is a policy question for the City Council. ADJOURNMENT: The meeting adjourned at 4:46 p.m. Respectfully submitted by, Diane Clement Recording Secretary