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HomeMy WebLinkAbout02 Appeal of Notice and Orderw~ m ~~ ~ ~~- ~ ~`-} ~ ' AGEl`1DA ~~EPORT ITEM # 2 t ~ '" ~;~~ . x t ~, .~ ,~ MEETING DATE: FEBRUARY 7, 2012 TO: BUILDING BOARD OF APPEALS FROM: Y. HENRY HUANG, P.E., CBO. CGBP, BUILDING OFFICIAL JASON McEWEN, DEPUTY CITY ATTORNEY SUBJECT: APPEAL OF NOTICE AND ORDER TO VACATE AT 520 PACIFIC STREET BACKGROUND: On June 16, 2011, the Building Official issued a Notice and Order/Pre-Citation Notice of Dangerous Buildings and a Notice to Vacate for the property located at 520 Pacific Street (Attachment 2). On June 24, 2011, an appeal was filed by the property owners, Bret and Stephanie Fairbanks. Given the voluminous amount of evidence involved, as well as the technical nature of the matter, staff recommended that a Hearing Examiner/Officer be designated pursuant to section 601.1 of the UCADB to conduct the hearing and provide a report of findings on the matter to the Board of Appeals. On July 12, 2011, the Board of Appeals appointed Hearing ExaminerlOfficer Gregory P. Palmer to conduct the hearings and cansider evidence. Five days of hearings were held in the Tustin Library and evidence was presented to the Hearing Examiner for consideration. After hearing the evidence, Mr. Palmer submitted a written report summarizing the evidence and stating findings, conclusions and recommendations. Atimeline of the appeal and hearings is provided in Attachment 3 for reference. APPROVAL AUTHORITY Pursuant to the 1997 Uniform Code for the Abatement of Dangerous Buildings (UCADB), the Board of Appeals is authorized to consider the appeal of the Notice and Order. In accordance with Section 601, the Board of Appeals may appoint a Hearing Examiner to conduct the appeal hearings, consider evidence, and prepare an Advisory Report and Proposed Decision. Pursuant to Section 605.5 of the UCADB, The Board may adopt or reject the Proposed Decision in its entirety, or may modify the proposed decision. Building Board of Appeals 520 Pacific Street Notice and OrderlNotice to Vacate Page 2 Pursuant to Section 605.6 of the UCADB, if the proposed decision is not adopted the Board may decide the case upon the entire record before it, with or without taking additional evidence, or may refer the case to the same or another hearing examiner to take additional evidence. DISCUSSION AND RECOMMENDATION: Hearing Examiner Advisory Report and Proposed Decision The Advisory Report and Decision (Attachment 4) and jointly proposed Resolution (Attachment 1), as discussed by the parties' Hearing Examiner, modifies the Notice and Order/Notice to Vacate for Building Code violations at the property at 520 Pacific Street. Based on the evidence produced at the hearing, the Hearing Examiner recommended that the Board of Appeals ("Board") uphold the Notice and Order, but only insofar as it relates to three of the violations listed in the Notice. The three violations upheld, which the property owners were directed to repair or replace, include: 1. Cracked and inadequate beam supporting second story dwelling unit, 2. Inadequate carport structural members, and 3. Lack of stairway intermediate guards and risers. The Hearing Examiner's advisory report further recommends that the Board modify three of the additional violations listed in the Notice and Order. These modified requirements include the following: 1. Foundation supporting stairway to second story dwelling unit is not adequate. 2. Fire resistive assemblies are required for walls between the units and adjacent garage, and in the walls and window protection adjacent to the property line on the second story. Several electrical installations pose a danger (unprotected and non- attached Romex wiring, non-CFCI outlets in the bathrooms and kitchens, heating installations, etc.). 3. Gas heater attached to wood siding in the rear dwelling unit poses a potential fire hazard due to its proximity to combustible material. Lastly, the Hearing Examiner's advisory report and draft resolution recommend that the Board rescind the requirement that the two residential units be immediately vacated. Action Plan On January 18, 2012, a meeting was held with the Hearing Examiner, the property owners, their legal counsel and design professional, City staff, and the Deputy City Attorney to discuss a mutually agreeable plan for action and to settle any discrepancy between parties. The meeting resulted in an agreement between the parties that has been Building Board of Appeals 520 Pacific Street Notice and Order/Notice to Vacate Page 3 included in a revised Resolution which is now before the Board of Appeals for final approval. The following summarizes the parties' agreement as detailed in the proposed Resolution: 1. Timeline and Plans: The Fairbanks' architect will submit a complete set of modified plans by February 8, 2012. The plan shall address the following: a. The cracked beam in the garage will be replaced b. The carport girder will be replaced c. The installation of guards, risers, step backs and rails will be included on the existing stairs d. The foundations for support posts of the stairway and landing will be replaced e. Fire resistive wall separation and window separation will be included between the garage and the rear and upper units adjacent to the property line f. Fire resistive treatment on the stairway to the upper unit will be applied g. The enclosure installed on the stairway landing to the upper unit will be removed and the entrance relocated h. The heating device in the upper unit will be replaced and a permit will need to be obtained for the rear unit heating appliance i. All electrical outlets requiring GFCI type will be replaced j. The carport structure will be partially or completely removed to provide sufficient fire separation between the main house and the garage and units 2. Plan check timeline: The City will complete review of the revised plans by February 22, 2012, and only items related to the proposed construction will be addressed. 3. Written notification: Written notification that permits were ready for issuance will be provided to the Fairbanks by February 22, 2012. 4. Permit issuance: Plans will be approved by the City and building permits issued. The Fairbanks will have 60 calendar days from the date the permit is issued to commence and complete construction of the improvements. Unforeseen circumstances could allow a slight extension of time for completion. Building Board of Appeals 520 Pacific Street Notice and OrderlNotice to Vacate Page 4 Note: Plans were submitted, reviewed, and permits issued on January 18, 2012, for improvements associated with the rear unit and on January 25, 2012, for all other remaining improvements. 5. Investigative permit: The City will conduct an inspection of the rear heating unit and issue an after-the-fact permit to assure that the unit was properly installed. 6. Occupancy: The upper unit will not be released for occupancy until all construction related to the unit is completed and permits signed off by the City. Consistent with the original advisory decision, the rear unit may be occupied once the fire separation is completed between the garage and the rear unit. However, no occupancy in the rear unit may occur until after the inspection is finaled for the fare separation, GFCI upgrades, and heater unit. DEPUTY CITY ATTORNEY AND STAFF RECOMMENDATION: The Deputy City Attorney and staff have reviewed the advisory decision and draft resolution. Based on the revisions in the final draft Resolution following the meeting on January 18, 2012, the City Attorney and staff recommend that the Board of Appeals adopt the jointly proposed Resolution No. 4188 (Attachment 1). ATTACHMENTS: 1. Resolution No. 4188 2. Notice and Order/Notice to vacate issued June 16, 2011 3. Timeline of Appeal and Hearings 4. Advisory Decision of the Hearing Examiner on Behalf of the Tustin Building Board of Appeals 5. Evidence considered and the entire record of the proceedings (Due to the voluminous nature of the document attachment, documents are provided on CD) Y. Henry Huang, P.E., CBO, CGBP Jason Eti Building Official Deputy ity ATTACHMENT RESOLUTION NO. 4188 RESOLUTION NO. 4188 A RESOLUTION OF THE BOARD OF APPEALS OF THE CITY OF TUSTIN, MODIFYING THE NOTICE AND ORDER/NOTICE TO VACATE FOR BUILDING CODE VIOLATIONS AT THE PROPERTY AT 520 PACIFIC STREET (ASSESSOR'S PARCEL NO. APN 401-371-07) The Board of Appeals of the City of Tustin does hereby resolve as follows: The Board of Appeals hereby finds and determines as follows: A. That, on July 27, 2010, Bret Fairbanks, the current property owner of 520 Pacific Street, sent a letter requesting that City staff provide written verification that the two guest homes located at the rear of the single family residence at 520 Pacific Street could be rebuilt in the event of a fire, earthquake, or disaster; B. That, on August 4, 2010, City staff provided a written zoning confirmation letter informing Mr. Fairbanks that the property is zoned as Single Family Residential (R-1) and located within the Cultural Resources Overlay (CR) District and that accessory buildings used as guest rooms are only allowed as conditionally permitted uses within the R-1 district, provided that no cooking facilities are installed ar maintained and that no compensation in any form is received. The letter further informed the property owner that no permits or entitlement exist for the guest houses at the subject property; C. That, on September 10, 2010, City staff conducted an on-site assessment of the property at 520 Pacific Street. This inspection was described as "cursory inasmuch as it lasted approximately twenty minutes." The assessment revealed that several unpermitted modifications and additions had been made to the structures that were not in compliance with Tustin City Code and minimum Building Code requirements; D. That Pursuant to Tustin City Code Section 5503, on September 16, 2010, the City of Tustin sent notice of recordation of a Notice and Order for the property at 520 Pacific Street to Mr. Fairbanks. Said Notice and Order provided written notice of the existence of a public nuisance on the properly as determined by the Enforcement Officer and required the correction of code violations related to unpermitted structures constructed in violation of the Tustin City Code including the City of Tustin Building Code and Zoning Code; Resolution No. 4188 Page 2 E. That, on September 22, 2010, Bret Fairbanks, the current property owner of 520 Pacific Street, filed an appeal of the Notice and Order for the declaration of public nuisance at his property; F. That appeal came on for hearing in late 2010 before the Planning Commission which was simultaneously sitting as the Tustin Building Board of Appeals; G. On December 14, 2010, the Planning Commission issued Resolution 4162 which adjudicated the additional two residential units on site were legal non- conforming uses; H. Also on December 14, 2010, the Planning Commission issued Resolution 4161 which required the property owners to comply with the September 16, 2010, Notice and Order to the extent such corrections are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the non-conforming buildings are adequately protected and preserved; On March 15, 2011, the Tustin City Council rejected the appeal by the mayor to overturn Resolution 4162; J. That fallowing that ruling, the property owners met with city officials on April 5, 2011, in an attempt to implement the two resolutions of the Planning Commission; K. As a result of that meeting, the property owners hired two subject matter professionals in the industry to inspect the property and to prepare a report concerning the conditions noticed for the property owners and the City to review. Paul Fulbright, architect, and Eric Stovner, structural engineer, were the two subject matter professionals hired by Fairbanks; L. Each subject matter professional conducted his own inspection of the property and found additional conditions on the property which had to be repaired. Among these conditions were a cracked beam in the garage, a lack of sufficient footings below grade for the stairway to the upper unit, no GFCI outlets in the kitchen and bathrooms, etc.; M. The contents of the reports from these two individuals led the Tustin Building Official to request each state, from their professional point of view, if the units were safe for continued habitation; N. Paul Fulbright stated in response to that request that there was no immediate hazard and continued occupancy of the units was acceptable as long as the recommended remedial measures were taken in a timely manner; Resolution No. 4188 Page 3 O. Eric Stovner said in response to that request that he saw no immediate hazard and that continued occupancy was acceptable provided temporary shoring of the cracked beam was done; P. That pursuant to 1997 Uniform Housing Code Section 1101 et seq. (as adopted by Tustin City Code Section 8700), and 1997 Uniform Code for the Abatement of Dangerous Buildings Section 401 et seq. (as adopted by Tustin City Code Section 8800), on June 16, 2011, the City of Tustin, through its Building Official, sent and posted a Notice and Order/Pre- Citation Notice/Notice of Public Nuisance and Notice to Immediately Vacate the two residential units. In support of said Notice the Building Official cited many of the same conditions and violations which were noted in the September 16, 2011 Notice and Order and he added the conditions noted by the property owners' subject matter professionals. The City did not re- inspect the property before serving and posting this Notice; Q. The property owners relocated the two tenants in the two legal non- conforming residential units by the due date of June 20, 2011; R. On June 24, 2011, the property owners filed a timely appeal to the June 16, 2011, Notice and Order; S. On July 12, 2011, that appeal was calendared to be heard by the Building Board of Appeals at a special meeting. At that meeting the Board appointed Gregory P. Palmer to act as a Hearing Examiner on the matter and to render an advisory opinion after presiding at a hearing pursuant to Chapter 6 of the 1997 Uniform Code for the Abatement of Dangeraus Buildings and Chapter 13 of the 1997 Uniform Housing Code; T. Duly noticed public hearings were held by the Hearing Examiner on August 30, 2011; September 9, 2011; September 22, 2011; October 4, 2011, and October 11, 2011. The matter was submitted to the Hearing Examiner for decision following closing arguments on October 11, 2011, and October 25, 2011; U. On December 16, 2011, the Hearing Examiner published and served on all parties his Advisory Decision to the Tustin Building Board of Appeals; V. In that Advisory Decision, the Hearing Examiner recommended that, based on the evidence produced at the hearing, the Board uphold the Notice and Order, but only insofar as it relates to three (3) of the violations listed in the Notice; the Board uphold but modify an additional three (3) of the violations listed in the Notice, and the Board not uphold, but rescind, that portion of the Notice and Order which required the two residential units be immediately vacated since while the evidence supported some of the conditions in the Notice were present on June 16, 2011, they were not in such a dangerous condition as to require an immediate vacancy of the units. Resolution No. 4188 Page 4 II. The Planning Commission, acting in its capacity as the Board of Appeals pursuant to Section 112 of the Building Code as adopted by the City of Tustin has reviewed the Advisory Opinion and Recommendations of the Hearing Examiner and hereby adopts the recommendations contained therein. The Planning Commission, acting in it s capacity as the Board of Appeals, hereby upholds in part, modifies in part, and rejects the Notice and Order/Notice to Vacate as explained below: A. The property owners are hereby ordered to comply with the requirements of the Notice and Order as explained below: UCADB Section 302 Item 5 and UHC Section 1001.3. Beam supporting second story dwelling unit is cracked and therefore jeopardizing supporting system of second story. CBC Section 3405.3 requires damaged gravity load-carrying components to be repaired or replaced. Mr. Eric Stovner's letters dated May 4 and 25, 2011, stated he observed and noted this violation. ii. UCADB Section 302 item 3 and UHC Section 1001.3 carport structural members are not of adequate size to support roof loads and not designed in accordance with CBC Section 1604.1 and if loaded could collapse. Mr. Eric Stovner's letter dated May 4, 2011, stated he observed and noted this violation. iii. UCADB Section 302 Item 2 and UHC Section 1001.12. Stairway intermediate guards and risers are not provided and thus a fall hazard exists. Further, this condition is not incompliance with CBC Section 1013. Mr. Paul Fulbright's letter dated April 21, 2011 (Item 2f) stated he observed and noted this violation. B. The property owners are hereby ordered to comply with the requirements of the Notice and Order as modified hereinbelow: i. UCADB Section 302 item 8 and UHC Section 1001.3. Foundation supporting stairway to second story dwelling unit is not adequate. Mr. Eric Stovner's letter dated May 4, 2011, stated he observed and noted this violation. ii. UCADB Section 302 Item 14 and UHC Section 1001.13. Fire resistive walls between the units and adjacent garage are not provided. Fire resistive walls and window protection adjacent to the property line on the second story are not provided. Fire in an adjacent unit, garage, or adjacent building could spread quickly and therefore overcome occupants. Fire resistive assemblies are required for the above mentioned locations in Resolution No. 4188 Page 5 CBC Sections 705, 707, and 709. In addition, there are several electrical installations that pose a danger (unprotected and non- attached Romex wiring, non-GFCI outlets in the bathrooms and kitchens, heating installations, etc.). Mr. Paul Fulbright's letter dated April 21, 2011, (Items 2a and 4a) stated he observed and noted these violations. iii. UHC Section 1001.7. Gas heater attached to wood siding in the rear dwelling unit poses a potential fire hazard due to its proximity to combustible material. Mr. Paul Fulbright's letter dated April 21, 2011, (Item 5b), stated he observed and noted this violation. This violation is upheld solely on the basis that the heating unit was installed without a permit. C. In all other respects, the Notice and Order is hereby rescinded as the evidence was insufficient to sustain the existence of any one of the other conditions used as support for the Notice were present on June 16, 2011. D. That portion of the Notice and Order requiring the property owners to have the two residential units vacated immediately is hereby rescinded. The evidence did not support a finding that the two residential units were in such a dangerous condition on June 16, 2011, that an order to immediately vacate the two units was proper. E. Preparatory to the advisory decision coming before Building Board of Appeals, the Hearing Examiner, the parties, their legal counsel and their design professionals held a meeting designed to discuss the plan for future action in this matter and to settle all their differences. What follows is an outline of certain concessions made by both parties in this matter and a plan for future action agreed to by the parties and which is now presented to the Board for final approval. This plan for future action consists of items which were not necessarily included in the Notice and Order/Notice to Vacate but which were included herein as a compromise and because the particular item led to the resolution of certain issues which did form some of the basis of the Notices. F. Fairbanks' architect will submit a modified set of plans to the City no later than February 8, 2012. These plans will address the following issues: a. The replacement of the cracked beam in the garage with a beam of suitable size and strength to carry the load placed upon it. b. The replacement of the carport girder with a girder of sufficient size and strength to carry the load placed upon it. Resolution No. 4188 Page 6 c. The installation of guards, risers, step backs and rails on the existing stairway to the upper unit designed to reduce any fall hazard that is associated with the stairs. d. The retrofitting of the foundations for the seven posts which support the stairway to the upper unit. The plans should explain how the Fairbanks' will support each post with a 12 x 12 inch concrete footing installed below the grade with or without the existing concrete pedestal which currently exists above the grade. e. The replacement of the fire resistive separation between the garage and the rear and upper units. The plans will have to address the type of insulation and drywall components to be used, the fact that any exposed Romex wiring will have to be covered and the accessibility to any associated electrical junction boxes. Should the parties, prior to the review of this proposal by the Board, have already agreed upon the approach to be utilized by the Fairbanks to re-install the resistive separation between the rear unit and the garage, the Board is hereby requested to ratify that action. The parties agreed to this preemptive approach with the goal of allowing the rear unit to be safely occupied by a tenant at the earliest opportunity. The rear unit will be released by the City for occupancy upon the installation of the fire separation and the final approval by the City. The demolition of the enclosure installed on the stairway landing to the upper unit and the re-configuring of it to be an open stairway landing with the entrance door to the unit opening onto the landing itself and not onto the top step of the stairway. The plans need to include haw the exterior wall will be replaced or configured, how the front entrance door will be replaced, and how balcony rails will be installed on the open stairway landing to prevent a fall hazard. g. The removal of the old heating device from the upper unit and the replacement of that heating device with a new heating unit. h. The replacement of all electrical outlets in the kitchen and bathroom areas of both units with GFCI type outlets. The complete or partial demolition of the carport structure between the garage and the main house. If only a partial demolition of the carport structure is proposed, the plans will explain how the partial demolition will be accomplished and that the amount of open space remaining between the main house and the carport is a sufficient fire separation per the applicable code. Resolution No. 4188 Page 7 G. It is acknowledged that some of the items noted above may have already been addressed in plans previously submitted by Fairbanks' architect. To the extent those previous plans adequately address the issues stated herein in the opinion of the architect, they need not be modified. To the extent the above items are not addressed by the previous plans, additional or modified plans need to be submitted which address those issues. H. Once these plans have been submitted to the City, the City will review them for completeness and accuracy. The City will have two weeks from the date of submittal, or until February 22, 2012, to complete that review. This review will be limited in scope. The City will confine its review of the plans to only those issues that bear on and relate to the proposed construction feature. By this is meant that correction items such as requiring automatic fire sprinklers be installed in the units or any other such accoutrement of a designated multi- family dwelling house or apartment house will not be included. The correction, if any is necessary, will relate directly to the proposed construction feature itself and not to anything else. If any such confined corrections are required, they will be communicated to the Fairbanks' and their architect in writing no later than February 22, 2012. The Fairbanks' and their architect will review each correction requested and work diligently with the City to make each reasonable correction requested. By the same token, the City will work reasonably with the Fairbanks' and their architect to reach the goal of a set of plans which can be approved. All parties will work with reasonable diligence to achieve this goal within a reasonable timeframe. J. Once the plans have reached a state where the City can approve them, the plans will be approved by the City and building permits will be issued. The Fairbanks' will have sixty (60) calendar days from the date on which permits are issued to commence and complete construction. While sixty (60) days is the agreed upon timeframe which the parties prospectively believe it is reasonable, given the gravity of the construction requirements, the parties understand that unforeseen circumstances can arise which may require a slight extension of the time to complete the construction. K. Concurrent with the time elements expressed above, at a time of the parties choosing, the City will issue an investigative building permit related to the heating unit in the rear dwelling unit. The Fairbanks' will allow an inspection of the device and the City will determine if the unit was installed safely and in conformance with the manufacturer installation instructions. If the installation is reasonably safe, the City will sign off on the permit, thereby effectively issuing a building permit after the fact. L. Concurrent to the timing of events described above and at a time of their choosing, Fairbanks will apply a fire resistive coating of some type, which is Resolution No. 4188 Page 8 acceptable to the City, to the exposed wood members of the stairway to the upper unit. M. The parties agreed that the upper unit would not be released by the City for occupancy until all the construction related to the unit has been completed and all building permits for the construction have been signed off as being final. This provision should not be considered to be in conflict with paragraph D above. To reconcile these two provisions, the reviewer of this resolution should understand that paragraph D represents the advisory decision of the hearing examiner based on his review of the evidence in support of the notice while this paragraph represents an agreement between the parties to refrain from occupying the upper unit until the contemplated construction is completed. PASSED AND ADOPTED by the Board of Appeals of the City of Tustin, at a special meeting on the 7th day of February, 2012. Chuck Puckett Chairperson Pro Tem Y. Henry Huang, P.E., C.B.O. Board of Appeals Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Y. Henry Huang, the undersigned, hereby certify that I am the Board of Appeals Secretary of the Board of Appeals of the City of Tustin, California; that Resolution No. 4188 was duly passed and adopted at a special meeting of the Tustin Board of Appeals, held on the 7th day of February, 2012. Y. Henry Huang, P.E., C.B.O. Board of Appeals Secretary ATTACHMENT 2 NOTICE AND ORDER/NOTICE TO VACATE ISSUED JUNE 16, 2011 Community Development Department Pasted ort property and sent by Cert~ed and First-Class Mail June 18, 2011 Bret and Stephanie Fairbanks 520 Pacific Street Tustin, GA 92780-4329 TUSTIN ~:u~ BUILDING OUR FUTURE EICiNORING OUR PAST NOTICE AND ORDER/PRE-CITATION Nt?TICE DECLARATION OF DANGEROUS BU!!.DlNGS Property Address: Assessor Parcel Number. Case Number: 520 Pack Street 401-371-07 V10-0312 Subject: Upper Dwelling Unit and Rear Dwellil~ Unit, Game, Carport and Recreation Building Dear Mr. and Mrs. Fairbanks, On September 16, 2010, a Notice and Order was issued for noncompliance with various provisions of the City of Tustin Building Code. The Notice and Order was appealed and on December 14, 2010, the Tustin Planning Commission {acting in its capacity as the Board of Appeals per Tustin City Code {TCC) Section 8101 and acting as the appeal hearing body per TCC Section 9242) adopted Resolution No. 4161 aFfirming the Notice and Order far Building Code violations at 520 Pacific Street. Since adoption of Resolution No. 4161, discussions have been ongoing between you, your representatives, and Building Division staff regarding Building and Housing Code compliance. in addition, an or about May 4, 2011, City staff r+eCeived a report from your structural engineer, Eric C. Stovner, which recommended structural modifications required to bring the subject buildings into conformance with the California Building Standards Code {CBSC). We are also in receipt of correspondence from your architec#, Paul Fulbright, which recommended a number of required upgrades necessary to address various code requirements to obtain permits arxd correct these structural issues or other Building and Housing Code violations on the proF~riy Based on evidence observed by Dennis McCreary, P.E, CBO, City of Tustin, Building Division, Principal Engineer, third party review by Scott Fazekas, A.I.A., Bryan Healy, Orange Courrty Fire Authorit~t, the owner's structural engineer Eric Stovner, S.E, the owner's architect Paui Fulbr'ight, A.I.A., and myself {on the visible parts alone), and a review of the Uniform Code for the Abatement of Dangerous Buildings {UCADB), 1997 Edition, the subject buildings are hereby deemed to be "dangerous buiktings" {Sections 301 and 302), and additionally based on 300 Centennial Way, Tustin, CA 92780 • P: {714) 573-3100 • F: (?14} 573-3113 • www.tustinca.org No#ic~ and Order at 520 Pacific Stree# Case # V1 Q-0312 June 18, 2011 Page 2 the Uniform Housing Cade (UHC}, 1991 Edition, the subject buildings are hereby declared to be "substandard buildings" (Section 1001.1). Based only on limi#ed visual evidence, such condition or multiple defects exist on the property to the extent that the life, health, property or safety of the occupant(s) is/are endangered. Pursuant to Section 404.2 of the UCADB, observations and findings reciting the emergency arxi specifying the conditions which necessitate the pasting are attached hereto in Exhibit A. Notice and Order 1. You are hereby notified and ordered to vacate} secure, and maintain the subject structures against entry by no later than 4:00 p.m., ~nday, June 20, 2011. No person may enter or occupy the subject struc#ures anises acting in an authorized manner to assess, perform or inspect the repair and/or removal of the violations. 2. You are also hereby directed, within thirty (30} calendar days of the date of servit~ of this Notice and Order, to obtain aN City ~~ necessary to 1 }repair, arxitor 2) remove ail code violations to the satisfaction of the City of Tustin Buildr~ Official. Failure to comply with this Notice and Order within the time specifs3d above will resin in the issuance of an administrative citation pursuant to Tustin City Code 1162{a) {reference Exhibti B attached hereto for additional information} and/or the referral of this matter to our City Attorney for further legal action. You or any person having any record title or legal interest in the property may appeal the node and order pursuant to Section 501.1 of the UCADB within thirty {30) calendar days from the date of service of this Notke and Order. Pursuant to Section 504 of the UCADB, the filing of an appeal shall not stay the above Notice and Order to vacate, assure and maintain the subject struchires against entry. Failure to appeal in atxordance with the provisions of Section 501 shall constitute a waiver of ail right to an xlministrative hearing and adjudication of the Notice and Orr~r or any portion thereof. Should you have any questions regarding this notice, please contact me directly at (714} 573- 3130. Sincerely, Y Henry Huang, W~~`.~~, C.B.O. wilding Official Attachments: Exhibit A -Observations and Findings Supporting a Determination ti~at Dangerous Buildings Exist at 520 Pacific Street. Exhibit B -Administrative Citation Information Notice and Order at 520 Pacific Street Case # V10-0312 June 16, 2011 Page 3 cc: Elizabeth Binsack, Community Development Director Doug Holland, City Attorney Bryan Healy, OCFA Dana Ogdon, Assistant Director of Community Development Dennis McCreary, Principal Engineer Amy Thomas, Senior Planner Scott Fazekas, A.I.A. Paul Fulbright, A.I.A. Eric Stovner, S.E. File Exhibit A Exhibit A: Observe#ions and Findings Supporting a Determination that Dangerous Buildings Exist at 520 Pacific Street Based on evidence observed by Henry Huang, P.E, CBq City of Tustin Building C~fficiat, Dennis McCreary, P.E, CBO, City of Tustin, Building Division, Principal Engineer, thud party review by Scott Fazekas, R.A., Mr. Bryan Healy, Orange County Fire Authority, the owner's structural engineer Eric Stovner, S.E, and the owner's architect Paul Fulbright, A.I.A. {on the visible parts atone), and the review of the Uniform Cade for the Abatement of Dangerous Buildings (UCADBj,1997 Edition, the subject buildings are hereby deemed to be "dangerous buildings" (Sections 301 and 302), and additionatty based on the Uniform Housing Cade (UHC), 1997 Edition, the subject buildings are hereby declared to be "substandard buNdings" (Section 1001.1}. Such condition or multiple defects exist on the property to the extent that the life, health, property or safety of the occupant(s) tsjare endangered. The fallowing dangerous conditions or multiple defects have been observed an the property reciting the emergency and specifying the conditions which necessitate the posting: Existing Building Conditions: 1. UCADB Section 302 item 5 and UHC Section 1001.3. Beam supporting second story dwelling unit is cracked and therefore Jeopardizing supporting system of second story. CBC Section 3405.3 requires damaged gravity load-carrying components to be repaired or replaced. Mr. Eric Stovner's letters dated May 4 and 25, 2011 stated he observed and noted this violation. 2. UCADB Section 302 Item 3 and UHC Section 1001.3. Car~rt structural members are not of adequate size to support roo# loads and not designed in accordance with CBC Section 16fl4.1 and if loaded could collapse. Mr. Eric Stovner's fetter dated May 4, 2011 stated he observed and noted this violation. 3. UCADB Section 302 Item 8 and UHC Section 1001.3. Foundation supporting stairway to second story dweNing unit is not adequate and causes the exit door from the upper dweNing unit to become inoperative and creates a hazard in case of fire ar panic. Mr. Eric Stovner's fetter dated May 4, 2011 stated he observed and noted this violation. 4. UCADB Section 302 item 2 and UHC Section 1001.12. Stairway intermediate guards and risers are not provided and thus a fall hazard exists. Further, this condition is not in compNance with CBC Section ifl13. Mr. Paul Fulbright's fetter dated April 21, Z011(ttem 2f) stated he observed and Hated this violation. S. UCADB Section 3021tem 2 and UHC Section 1001.12. Exterior stairway far second story unit is not in a safe location to afford exiting during a fire deemed as 10 feet from property line by California Building Code, 2010 Edition {CBC), Section 1027.3. Mr. Paul Fulbright's letter dated April 21, 2011 (Item 2gj stated he observed and noted this violation. 6. UCAD9 Section 302 Item 14 and UHC Section 1001.13. Fire resistive wails between the units and adjacent garage are Hat provided. Fire resistive waNs and window protection adjacent to the property line on the second story are not provided. Fire in an adjacent unit, garage ar adjacent building could spread quickly and therefore overcome occupants. Fire resistive assemblies are required for the above mentioned locations in CBC Sections 705, 707, and 709. to addition, there are several electrical installations that pose a danger (unprotected and non-attached Romex wiring, non-GFCI outlets in the bathrooms and kitchens, heating installations, etc.) and there are no smoke detectors or alarms in the sleeping areas. Mr. Paul Fulbright's letter dated April 21, 2011 (Items 2a and 4aj stated he observed and noted these violations. 7. UHC Section 1001.5. Electrical wiring in the garage area is improperly installed. improperly installed conductors and without proper required fire resistive material from the dwelling unit above can be a serious hazard to the occupants in the upper dwelling unit. Mr. Paul FulbrighYs fetter dated April 21, 2011 (Items 1d and ~bj stated he observed and Hated this violation. 8. UHC Section 1081.7. The furnace in the second story dweiiing unit does not meet clearance requirements and creates a potential fire hazard. Mr. Paul Fulbright`s letter dated April 21, 2811 (item 2b} stated he observed and noted this violation. 9. UHC Section 1881.5. Exposed electrical wiring next to unpermitted furnace in the second story unit can cause a potential fire hazard. Mr. Pout Fulbright's letter dated April 21, 2011 {item 2cj stated he observed and noted this violation. 10. UNC Section 1001.13. t3perattng smoke detectors are not instaiied within the sleeping areas of the upper and rear dweiiing units as required by state code and therefore occupants may not have adequate warning of a fire. Mr. Paul Fulbright's letter dated April 21, 2011 (items 2i and 5hj stated he observed and Hated this violation. 11. UHC Sections 1081.3, 1002.6 and 1001.7. Mechanical, electrical, and plumbing (including gas and water) installation work may pose a fire and water hazard. Mr. Paul Fulbright's letter dated April 21, 2011 {item 1dj stated he observed and noted this violation. 12. UHC Section 1801.5. Electrical outlets in both the wet areas of the kitchen and bathrooms in both dweiiing units are non-CFl type of receptacles, which pose a potential electrical shock and fire danger to occupants. Mr. Paul Fulbright's letter dated April 21, 2011 (items 2j and Si} stated he observed and noted this violation. 13. UNC Sections 1001.2, 1001.5 and 1001.6. Plumbing and electrical instaiied in the kitchens may create fire hazard, water damage and inadequate sanitation. Mr. Paul Fulbright's letter dated April 21, 2011 {item 2d}stated he observed and noted this violation. 14. UHC Section 1001.7. Gas heater attached to woad siding and gas line in the rear dwelling unit poses a potential fire hazard due to its proximity to combustible material. Mr. Paul Fuibright's letter dated April 21, 2011 (item Sb}stated he observed and noted this violation. 15. UHC Section 1001.6. Unsecured and exposed gas line an the interior of the rear dwelling unit poses a potential gas leak and fire hazard. Mr. Paul Fuibright's letter dated April 21, ZOi1(item Sf) stated he observed and noted this violation. i6. UHC Section 1001.6. Added shower and floor area onto original structure may create water damage and inadequate sanitation. Mr. Paul Fulbright's fetter dated April 21, 2011 (Item 2e} stated he observed and noted this violation. 17. UHC Section 1001.3. Founda#ions for the dwelling units and the recreation/storage building should be investigated to determine if the foundation provides adequate structural bracing and support for the structures. Mr. Paul Fulbrlght's letter dated April 21, 2011 (item lb} refers the matter to Mr. Stovner and no further response was given. 18. UHC Section 112{11,3. Wood posts at canopy of recreation roam have rot at bottom and therefore need repair to mediate structural hazard. Mr. Eric Stovner's letter dated May 4, 2011 stated he observed and noted this violation. 19, UHC Section 1001. 5. Unsupported electrical metal conduit (EMT} between the garage and house is subJect to potential damage and failure and poses a potential electrical and fire hazard. Mr. Paul Fulbright's letter dated April 22, 2011 (Item 3c} stated he observed and Hated this violation. 20. UCADB Section 302 Item 14. Exposed insulation in the kitchen area of the rear dwelling unit appears to be straw and therefore a high flame spread rating and fire hazard. Mr, Paul Fulbright's letter dated April 21, 2011 (item 5g}stated he observed and noted this violation. 21. UCAQB Section 302 Item 14 and UHC Section 1001.13. North exterior wall of the recreation room is in close proximity to the property line and poses a fire hazard. Mr. Pout Futbright's letter dated April 21, 2011 {Item 6d} stated he observed and noted this violation. t Determfnatlon of the euffdfng Offftfal: The subject buildings have been identified as having the conditions or multiple defects described above. 'T'herefore, the subject buildings are in violation of the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Housing Code, and the California Fire Code, as identified in the referenced items below, and are therefore determined to be "dangerous buildings". Uniform Code for the Abatemen# of Dangerous Buildings Uniform Cade for the Abatement of Dangerous Buildings, Section 302 states, "Far the purpose of this code, any building or structure which has anv or all of the conditions ar defects hereinafter described shall be deemed to be a dangerous building, provided that such conditions or defects exist to the extent that the life, health, property ar safety of the public or its occupants are endangered." "1. Wherever any door, aisle, passageway, stairway or other means of exit is not of sufficient width or size ar is not sa arranged as to provide safe and adequate means of exit in case of fire ar panic." Refer to Existing Building Conditions Hated above, item 5. "2. Whenever the walking surface or any aisle, passageway, stairway or other means of exit is so warped, warn, loose, torn or otherwise unsafe as to Hat provide safe and adequate means of exit in case of fire or panic." Refer to Existing Building Condition Hated above, item 4. "3. Whenever the stress in any materials, member ar portion thereof, due to aN dead and five toads, is more than one and one half times the working stress or stresses allowed in the Building Code for new buildings of similar structure, purpose or location." Refer to Existing Building Condition noted above, Item Z. "5. Whenever any portion or member or appurtenance thereof is likely to fail, or to became detached or dislodge, ar to collapse and thereby injure persons or damage property." Refer to Existing Building Condition Hated above, item 1. "8. Whenever the building or structure, or any portion thereof, because of (i) dilapidation, deterioration or decay; {ii} faulty construction; (iii} the removal, movement of instability of any portion of the ground necessary far the purpose of supporting such building; (iv} the deterioration, decay ar inadequacy of its foundation; ar (v) any other cause, is likely to partially ar completely cottapse." Refer to Existing Building Condition Hated above, Item 3. "9. Whenever, for any reason, the building or structure, or any portion thereof, is manifestly unsafe far the purpose for which it is being used." Re#er to all violations at the property. "14. Whenever any building or structure which, whether or Hat erected in accordance with ai! applicable taws and ordinances, has to any nansupparting part, member or portion less than ~ percent, or to any supporting part, member ar portion less than 66 percent of the (i} strength, {ii} fire-resisting qualities or characteristics, or {iii} weatherresisting qualities ar characteristics require by law in the case of a newly constructed building of like area, height and occupancy in the same location." Refer to Existing Building Condition noted above, items 6, 20 and 21. "16. Whenever any building or structure, because of obsolescence, dilapidated condition, deterioration, damage, inadequate exits, lack of sufficient fare-resistive construction, faulty electric wiring, gas connections or heating apparatus, or other cause, is determined by the fire marshal to be a fire hazard:' Refer to existing Building Code noted above, Items 3-9, 21,14,19, and 21. Uniform Housing Code 1001.1 General. "Any buiiding or portion thereof that is determined to be an unsafe buiiding in accordance with Section 102 of the Building code , or any buiiding or portion thereof, including any dwelling unit, guest room or suite or rooms, or the premises on which the same is located, in which there exists any of the conditions referenced 3n this section to an extend tha# endanger the life, limb, health, property, safety or wel#are a f the pubic or the occupants thereof, shall be deemed and hereby are declared to be substandard buildings." The subject buildings have conditions described in the referenced items hereinafter and therefore deemed to be a "substandard buildings". 1001.2 inadequate Sanitation. "Buildings or portions thereof shah be deemed substandard when they are insanitary. Inadequate sanitation shall include, but not be limited to, the following: 6. Lack of adequate heating facilities, 13. General dilapidation ar improper maintenance. Refer to Existing Building Condition noted above, Items 8 and 13." 1001.3 Structural Hazards. "Buildings or portions thereof shah be deemed substandard when they are or contain structural hazards. Structural hazards shall include, but not be limit to, the following: 1. Deteriorated or inadequate foundations. 2. Defective or deteriorated floating or floor supports. 3. Flooring or float supports of insufficient size to carry impaled toads with safety. 6. Members of ceilings, roofs, ceiling of roof supports, or other horizontal members that sway, split or buckle due to defective material or deterioration. 7. Members of ceilings, roofs, ceiling and roof supports, or other horizontal members that are of insufficient size to carry impaled loads with sa#ety." Refer to Existing Building Condition Hated above, items 1, 2, 3,11,17, and 18. 1001.S Hazardous Electrical Wiring. "Electrica! wiring that was installed in violation of code requirements in effect at the time of installation or electrical wiring not installed in accordance with generally accepted construction practices in areas where no codes were in effect or that has not been maintained in $ood condition or that is not being used in a safe manner shah be considered substandard." Refer to Existing Building Condition noted above, Items 7, 9,12,13, and i9. 172.6 Hazardous Plumbing. "Plumbing that was installed in violation of code requirements in effect at the time of installation or plumbing not installed in accordance wi#h generally accepted construction practices in areas where no codes were in effect ar that has not been maintained in good condition or that is not free of cross-connections or siphonage between fixtures shah be considered substandard." Refer to Existing Building Condition noted above, items 11,13,15, and 16. 1{701.7 Hazardous Mechanical Equipment. "Mechankai equipment that was installed in violation of code requirements in effect at the time of installafion or mechanical equipment not installed in accordance with generally accepted construction practices in areas where no codes ware in effect or that has not been maintained in good and safe conditions shah be considered substandard." Refer to Existing Building Conditian noted above, items 8,11, and 14. 1001.12 inadequate Exits. "Except for those buildings or portions thereo# that have been provided with adequate exit facilities conforming to the provisions of this code, buildings or portions thereof whose exit facilities were installed in violation of code requirements in effect at the time of their construction or whose exk facilities have not been increased in number or width in relation to any increase in occupant load due to alterations, additions or change in use or occupancy subsequent to the time of construction shah be considered substandard. Notwithstanding compliance with Cade requirements in effect at the time of their construction, buildings or portions thereof shah be considered substandard when the building official finds that an unsafe condition exists through an improper location of exits, a tack of an adequate number or width or exits, or when other conditions exist that are dangerous to human life." Refer to Existing Building Conditian noted above, Items 4, and 5. 1001.13 Inadequate Fire-protection or Firefighting Equipment. "Buildings or portions thereof shall be considered substandard when they are not provided with the fire-resistive construction or fire- extinguishing systems or equipment required by this code, except those buildings or portions thereof that confirmed with ail applicable laws at the time of their cons#ructian and whose fire-restive integrity and fire-extinguishing systems or equipment have been adequately maintained and improved in relation to any increase in occupant toad, alteration or addition, or any change in occupancy." Refer to Existing Building Condition noted above, items 6,10, and 21. California Fire Code California Fire Code (CFC}, 2010 Edition, regulations are applicable to the subJect buildings. CFC regulations address fireJlife safety such as fire-resistive construction, exiting, fire sprinkler and alarm systems. CFC in Section 110 addresses "unsafe building' including notification, 1•ines, and abatement. Though not specifically detailed in this Notice and Order, the subject building violates several regulations in the CFC. Exhibit B ~_ - EXHIBIT B qtr Administrative Citation Information In accordance with Tustin City Code (TCC} 1162(d}, fines may be assessed by rrneans of an administrative citation as follows: $100.00 for a first violation; $20f3.00 for a second violation of the same ordinance or permit within one year of the first violation; or $500.00 for a third or any further violation of the same ordinance or permit within one year of the first violation. Building and Safety Code (TCC Sec. 8100 - 8999}violations may be assessed at $100.00 for a first violation; $500.00 for a secx~nd violation of the same ordinances or permit within one year of the first violation; or $1,000.0© far a third or any further violation of the same ordinance or permit within one year of the firs vic~idt;on. The City may also take further legal acts including issuing the responsible person{s} a criminal citation and/or abating the violation(s) with the cost of such abatement and/or prosecution assessed against the responsible persons}, the property owners}, and/or the property as a lien. Should an administrative citation be issued, the responsible person has ten (10) days from the issuance date of the administrative citation to pay the corresponding citation fine(s). ~ditionaliy, the responsible person must take one of the following actions to avoid additional penalises prior th the compliance date specified in the administrative citation: 1 } Correct the violation, pay the corresponding fine{s}, and contact the City to request a re- inspection, or 2} Pay the cx~rresponding fine{s) and request an extension of time in writing pursuant to TGC 1165(b}, whicth shows a reasonable hardship; or 3} Request a hearing to appeal the administrative citation pursuant to TCC 1166 within ten (10} days from the date of the administrative citation, together with an advanced deposit of the corresponding fine{s}. Request for Hearing forms and other information on administrative citations may be obtained on the City's websith at vwvw.tustinca.org. C:1~manrs and sattlnpiTempaary hHanet ~+1Ca~taM.Oudaek~+15F422~1E7u#&TA {1~.dac1H2804 ATTACHMENT TIMELINE OF APPEAL AND HEARINGS Timeline of Appeal and Hearings The following timeline outlines the hearings and review of the appeal process for 520 Pacific Street: 7/27/10 Letter from Bret Fairbanks requesting re-build letter 8/4/10 Zoning confirmation letter from City staff indicating that the structures could not be rebuilt. No record that multi-family use (3 units) had been authorized in single family (R-1) zone. 9/10/10 On-site inspection conducted by City at 520 Pacific Street 9/16/10 Notice and Order/Code Enforcement case initiated 9/22/10 Appeal of Notice and Order filed by Bret Fairbanks to Building Board of Appeals/ Hearing Board (Planning Commission) 10/25/10 Notice and Order recorded by County Clerk 10/26/10 Appeal hearing to Board of Appeals/Hearing Board (Planning Commission) 11/9/10 Continued hearing 12/14/10 Building Board of Appeals approved Resolution No. 4161 ordering the correction of numerous Building Code violations. The Zoning Hearing Board approved Resolution No. 4162 for a zoning determination allowing three units within the R-1 zone. 12/23/10 Appeal of Resolution No. 4162 filed by Mayor J. Amante 3/1/11 A de novo public hearing was held in which the City Council deemed the upper unit located above the garage and the unit including two rooms and a bathroom located behind the garage to be nonconforming residential units at 520 Pacific Street. 3/15/11 Tustin City Council denied the Appeal of 4162 and adopted Resolution No. 11-18 determined that three units could exist in R-1 Zone. Continued to November 9, 2010 Continued to December 14, 2010 1 4/5/11 Numerous meetings and correspondence were exchanged through between City staff and the property owners and their professionals. However, six months after adoption of Resolution 6/16/11 No. 4161 ordering correction of Building Code violations, no corrections had been implemented nor had a complete set of plans been submitted. 6/16/11 Notice and Order/Notice to Vacate and correct safety violations was posted on-site by the Building Official. 6/24/11 Appeal of Notice and Order/Notice to Vacate by Deborah Rosenthal, Fairbanks' attorney, 1) requested the Board direct Building Official work with Fairbanks by providing specific corrections and 2) rescind Notice and Order/Notice to Vacate. 7/12/11 The Board of Appeals/Hearing Board (Planning Commission) set a hearing date of August 18, 2010 and appointed Hearing Examiner Gregory P. Palmer. 8/10/11 D. Rosenthal requested continuance of hearing. Continued to 8/30/11 8/30/11 Appeal Hearing (1): Opening statements and Principal Engineer Continued to 9/9/11 Dennis McCreary of the City of Tustin testified and was cross examined. Tustin Building Official Henry Huang testified and cross exam began.. 9/9/11 Appeal Hearing (2): Cross Exam of Henry Huang continued, Continued to 9/22/11 testimony of Assistant Fire Marshal Bryan Healy of OC Fire Authority and cross examination. 9/22/11 Appeal Hearing (3): Scott Fazekas, AIA, (consultant for City of Continued to 10/4/11 Tustin) began testimony and cross. Registered structural engineer Eric Stovner (consultant for Fairbanks) began testimony and Roger Banowetz (retired Inspector contracted by Fairbanks) began testimony. 10/4/11 Appeal Nearing (4): Stovner and Banowetz were cross Continued to 10/11/11 examined. Testimony of Architect Nathan Menard (consultant for the Fairbanks) began testimony. 2 10/11/11 Appeal Hearing (5): Menard was crass examined by the City. Property owner Bret Fairbanks testified and was cross examined. Deborah Rosenthal provided closing arguments. 10/25/11 Closing arguments from City Attorney provided. 12/16/11 Gregory P. Palmer provided an Advisory Decision of the Hearing (Attachment 2) Examiner on Behalf of The Tustin Building Board of Appeals to the City Attorney and Deborah Rosenthal. 12/27/11 Gregory P. Palmer provided a draft Resolution of the Board of Appeals of the City of Tustin, modifying the Notice and Order/Notice to Vacate for building code violations at the property at 520 Pacific Street (Assessor's Parcel No. APN 401- 371-07). 1/18/12 Meeting with Bret and Stephanie Fairbanks, Deborah Rosenthal, Gregory Palmer and City staff to discuss the draft Resolution. An agreement and resolution of certain issues relating to the Notice and Order was reached. Permit (C2012-12) issued to Bret Fairbanks for the installation of fire separation materials between the garage and rear unit; a residential heater; and GFCI installation. 1/25/12 Permit (C2012-19}was issued based on the agreement that was reached on 1/18/12 in fulfillment of the Notice and Order. Approval Authority: Pursuant Section 605.5 of the 1997 Uniform Code for the Abatement of Dangerous Buildings, the Board of Appeals may adopt or reject the proposed decision in its entirety, or may modify the proposed decision. 1/30/12 Final Resolution provided by Hearing Examiner Palmer. (Attachment 3) 3 ATTACHMENT 4 ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS ! ~J l Y.l. 1, JQNES & MAYER ATTaxNl;xs AT LAW 3777 NORTI~I HARBOR BC?ULEVARD • Ft1LL1rRT()N, GALIFCiRNIA 92835 (714} 446-1400 • (562} 647-1751 • FAX (7I4) 446-1448 Richard D. Jonas'" Richard L. Adams A Par i?~ JamaarBoyd-Weatherby Marlin J. Mayer Bacon J. Bettenhausen Kimberly Hall Bazlaw Christian L. Bettenlaausen lames R Touchstone Paul R. Cable 'a PraBassional Law Corporation 4P, Michael R. Capizzi Clean J. Pucci Steven N. Skolnik Jason M. McEwen, Esq. Woodruff, Spradlin & Srnart 555 Anton Blvd., Suite 1200 Costa Mesa, CA 92626-76'70 Deborah M. Rosenthal, Esq Sheppazd, Mullin, Richter & Hampton LLP 650 Town Center, 4th Floor Costa Mesa, CA 92626-1993 Re: 520 Pacific Street. Tustin California Dear Mr. McEwen and Ms. Rosenthal; VIA E-MAIL dosenthal @sheppardmullin.cam jmcewen r~,x7wss-law.cam Enclosed is the advisory decision an this matter. As you will see, I have conf ned the advisory decision to only the Notice and ~rder/Notice to Vacate. As stated before, since this decision is confined just t€> the Notice, it will not resolve the ongoing conflict between the parties in terms of moving forward from this paint in time. Even mare fundamentally, since it is an advisory decision, it resolves nothing until the Board of Appeals decides the matter. Pursuant to Section 605.2 of the Uniform Cade for the Abatement of Dangerous Buildings and Section 1305.2 of the Uniform Housing Code (both of which govern this hearing, I also have the obligation to prepare a draft resolution far the Board to review. I will begin working on that document next week. In the meantime, I wanted the parties to know where I stand in this case and I renew my offer to assist the parties in settling the entire matter. if the advisory decision has the effect of changing the city's mind in that regard, please let me know. If the matter can be successfully settled it would save money in the preparation of a draft Michael Q. Do Robert Khuu Gregory P. Palmer Thomas P. Duane Gary S. Kranker Danny L. Peelman Elena Q. Gerli Richard A. McFarlane Harold W. Patter Katherine M. Hazdy Christopher F. Neumeyer Denise L. Rocawich Krista MacNevin Jee KatSrya M. Oliva Ivy M. Tsai Ryan R. Janes ~.~ Mervin D. Feinstein December 16, 2011 Jason M. McEwen, Esq. Deborah M. Rosenthal, Esq T)ecember 16, 2011 Page 2 resolution and the costs associated with moving the matter to the Board. Tf T do not hear from the parties in this regard, T will assume they want me to prepare the draft resgk~ion. Very truly P. Palmer Examiner GPP/mit cc: Elizabeth Binsack, City of Tustin 1 Gregory P. Palmer S$N 133647 hearing Examiner 2 JONES & MAYEI2 3'777 North Harbor Boulevard 3 Fullerton, California 92835 {714} 446-1440; Fax {714} 446-1448 4 e-mail: gpp~a Janes-mayer.cam 5 6 7 ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OI' 8 TIIE TUSTIN BUILDING BOARD OF APPEALS 9 10 In 12e the Matter of Case Na: V 10-0312 11 the Appeal Qf Nance and Qrder And Notice Ta Vacate APN: 401-371-07 12 520 Pacific Street, 13 Tustin, CA 14 15 16 1 ~ TO THE CITY OF TUSTIN BUILDING BOARD OF APPEALS: 1 g The Hearing Examiner appointed to hear and advise on the above captioned matte 19 hereby submits his advisory opinion. 20 INTRODUCTION ANA JURISDICTION 21 At a special meeting of the City of Tustin Planning Commission, sitting as the 22 Tustin Building Board of Appeals, held on July 12, 2011, the Board appointed Gregory P. 23 Palmer to act as a hearing examiner an the matter of the Appeal of the Native and Order 24 and Notice to Vacate pertaining to the property at S20 Pacific Street, Tustin, California. 2S The property is ov~rned by Bret and Stephanie Fairbanks ("Fairbanks"). 26 27 28 -1- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 Hearings were conducted at the Tustin Library an August 30, 201 1, September 9, 2 201 1, September 22, 2011, October 4, 2011 and October 1 ], 2011. The hearing was 3 governed by Chapter 6 of the 1.997 Uniform Cade for the Abatement of Dangerous 4 Buildings {"UCADB"} and by Chapter 13 of the 1997 Uniform Housing Cade ("UHC"}, S (Joint Exhibit number 2, hereinafter "JX-2"; Exh. 1 and S; JX-3; Exh, B and C}z. The city 6 was represented by Jason M. McEwen. The Fairbanks' were represented by Deborah M. 7 Rosenthal. The hearing was retarded by a digital audio recording. Both sides had a furl 8 and fair opportunity to call, examine and Cross examine witnesses and to proffer evidence 9 in support of their rases. The matter was submitted to the hearing examiner for an 10 advisory derision upon the oral closing argument by the Fairbanks, the written closing 11 argument by the City and by the submission of proposed Endings of fart and law on 12 October 2S, 2011. 13 PROCEDURAL HIS'X'C)RY 14 This matter began quite inauspiciously. In the summer of 2010 the Fairbanks were 1 S selling their home. They accepted an offer and were in escrow. The buyer's lender 16 requested what euphemistically became known: as a "burn dawn" letter froze. the city. 17 Such a letter would confirm that in the event of a fire or other disaster, the City would 18 allow the two guest houses on the site to be rebuilt. Fairbanks submitted a written 19 request for such a letter to the city on July 27, 2010. (JX-1; Exh. A {00001}. 20 In response to this request, the City reviewed its records an the property and zl conducted a site inspection on September 10, 2010. During the inspection, City staff 22 noted a single family dwellz`ng, the main house, in which the Fairbanks family reside, and, 23 two additional units to the rear of the main house. One unit was located above the garage 24 and the other unit located on the ground Hoax behind the garage. A search of City records 25 26 'This additional number reference is used to clarify the location of the exhibit. Much of Joint Exhibit Number 1 bas been Bates stamped. These numbers will be used to assist the reviewer in 27 locating the exhibit in the voluminous record of this proceeding. z$ -2- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHAI.,F OF THE TUSTIN BUILDING BOARD OI' APPEALS did not reveal any conditional use permits ar building permits for the two guest houses. 2 3 4 5 6 7 9 10 11 12 l3 14 15 l6 l7 l8 19 20 21 22 23 24 2s 26 27 28 (JX-1; Exh. B (04414-40484}. On September l6, 2410, the city issued the Fairbanks a notice and order/pre- citation native and declaration ofa public nuisance native. (JX-1, Exh. D, 44492-93}. The only specific code violations noted in the notice were the following: 2447 California Building Code A145.1 (Adopted per Tustin City Code 8104} Permits Required. Any owner ar authorized agent who intends to constract, enlarge, alter, repair, move, demolish ar 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, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official. and obtain the required permit. Tustin City Cade 9223(b)(2} -Single Family Residential District (R-1) Conditionally Permitted Uses and Development Standards -Accessory buildings used as guest rooms provided no cooking facility is installed ar maintained are subject to a conditional use permit. Tustin City Code 9223(b}(2}(d} -- Single Family Residential District (R-1} Minimum side yard setback far accessory buildings used as guest houses -corner lot line: l4 feet; interior lot line: 5 feet. (JX- 1, Exh. D, 00495} Fairbanks filed a timely appeal to this notice and order. The appeal came an for hearing before the Tustin Planning Commission on Qctober 26, 2010. (.TX-1; Exh. E; 44124}. The Commission was sitting as the Building Board of Appeals as it related to 1 building code violation and simultaneously as the Planning Commission as it related to the two zoning violations. The city's presentation included an explanation of many of the 29 Cade compliance issues which existed on the property, including the straw insulation, the setback and fire separation issues related to the stairway to the entrance of the unit above the garage and the garage, as well as electrical and mechanical violations. These conditions were noted in the September 14, 2410 inspection. (JX-1; Exh. C; 40085- _3_ ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 00091). That meeting was continued so that staff and the property owner could attempt 2 to find an equitable solution to the situation. 3 The matter crime on again for hearing on November 9, 2010. There was 4 discussion of when each of the buildings on site were constructed and how, if at all, the 5 construction overlapped with the building codes adopted over the years and the zoning 6 ordinance of the city. The same conditions were Hated by the city in its November 9, 7 2010 presentation. 8 The Commission began to focus an the fact that the two guest house dwelling 9 units at issue in the matter were built long before the city's first zoning ordinance was 10 enacted in 1961. Accordingly, the discussion came around to the rear dwelling units 11 being legal non-conformance uses. Helpful to this determination was the discovery that I Z all building permits existing prior to 1959 were authorized for destruction by the building 13 official at that time. (JX-3; Exh. M}. As it related to the code violations existing at that 14 time, the commission was directed that it require the property owner to comply with 15 minimum health and safety code compliance through the Uniform Housing Code. 76 The Commission voted unanimously to uphold the appeal of the Fairbanks to the l7 notice and order, to confirm the legal non-conforming status of the two rear dwelling unit i 8 as guest houses, and to require the property owner to comply with the minimum Cade i 9 compliance under the Housing Code. Many of the commissioners expressed their desire 20 that their ruling was a good compromise and that there should be flexibility in resolving 21 the remaining issues with the building official and with the applicability of the code. The 22 meeting was continued to December 9, 2010 so the proposed resolution could be 23 modified in conformance with the ruling. 24 Qn .December 9, 2010 the Planning Commission, sitting as the Building Board of 25 Appeals, modified the notice and order and issued Resolution 4161 in which there is 26 contained the following provision: 27 28 -4- ADVISORY DECISION OIL' THE HEARING EXAMINER ON BEHALI+ OF THE TUSTIN BUIT~DING BOARD OF APPEALS 2 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 i9 2a 21 22 23 24 25 26 27 28 li. The Planning Commission, acting in its capacity as the Board of Appeals pursuant to Section 112 of the Building Code as adopted by the City of Tustin, hereby modifies the notice and Order far the property at 520 Pacific Street which provides written notice of the existence of a public nuisance: A. The property owners are hereby ordered to comply with the requirements of the Notice and Order identified in the staff report dated October 26, 2010, and attached hereto in Exhibit B, to the extent such corrections are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected and preserved. (JX-l, Exh. E, 00096 - 00099) At that same meeting the Planning Commission adopted resolution 4162. In this resolution the Planning Commission made tl~e following findings: Q. That there is evidence substantiating that the unit above the garage located behind tk~e main house and the unit including two rooms and bathroom located behind the garage were constructed prior to November 6, 1961, including the following and attached hereto: i. The Planning Commission has the right to employ qualified individuals to assist in its investigations and in malting findings and decisions. Staff commissioned a third party survey and evaluation provided by Licensed Architect Sohn C. Loomis from Thirtieth Street Architects, Inc. The architect provided a report that "At same time after WWII, the carriage barn was converted into a second living unit,, with the addition of the front stair, carport and middle addition at the rear." ii. There is evidence that 520 and 52012 existed as shown on the Santa Ana Street Address Directory published in August of 1952. iii. The son of the original owner, Robert Stephen Gaylord, provided a signed statement indicating that "the unit above the garage was built roughly between 1938 and 1942." Said letter stated that "the unit behind the garage was built by [his] father [George T. Gaylord] between 1945 and 1950." The letter further states that this unit, -5- ADVISORY DECISION OF TFIE HEARING EXAMINER ON BEHALk~ OF TI3E TUSTIN BUILDING BOARD OF APPEALS 2 4 5 6 7 8 9 10 Il ~2 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 including two roams and a bathroom, were built by George Gaylord for Robert and his brother to occupy. Mr. Gaylord's letter fizrther indicated that "the rooms were made available to others" of which the only person he remembered was Ms. Grennan who was a caretaker for his parents until they sold the Douse sometime after 19'1$. iv. The an~-site assessment by city staff on September 10, 2010, reve that the upper unit was being utilized as a second residential unit with soaking facilities and the unit including two rooms and bathroom located behind the garage was utilized as a second residential unit. v. The property awner(s}/appellant has testified at the public hearings and sha11 provide a statement, under oath, an a form submitted for said puzpose, setting forth a detailed description of the nonconforming structures and uses pursuant to TCC Sec. 9273(b}. The Planning Commission, after making these findings, also ruled as follows an the zoning issues presented in the appeal. I I. Therefore, the Planning Commission, acting in its capacity as the appeal hearing body pursuant to Tustin City Cade Section 9242, hereby reverses the Native and Order at 520 Pacific Street far Zoning Cade violations and deems the fallowing to be nonconforming structures and uses at 520 Pacif Street as attached hereto in Exh. A: A. The upper unit lasated above the garage is a nonconforming second residential unit. B. The unit including twa rooms and a bathroom located behind the garage is a nonconforming second residential unit. (rX-1, Exh. F, 00406-410} That resolution was appealed to the city caunsii by the mayor of the City of Tustin (CX-4}.2 The hearing an the mayor's appeal came an the March 1, 2011 council agenda. The mayor proclaimed that the Planning Commission had erred inns ruling an this issue a CX_q. refers to City Exhibit Number 4. _6_ ADVISORY DECISION OF THE HEARING EXAMINER ON ~EHAL~' oI+ THE TUSTIN BUILDING BOARD OF AI'PEAI,S 1 because a legal non conforming use requixes that the use be legally instituted at its 2 inception and continued without interruption thereafter, neither of which, according to the! 3 mayor, was proven in the Planning Commission hearings3. That hearing was continued ', 4 to March 15, 2011. 5 On March 15, 2011, the mayor presented an application for a sewer connection 6 permit filed by a prior owner (Gaylord} an June 14, 1.971. This application was far one 7 dwelling unit without a kitchen. This, according to the mayor, was conclusive proof that 8 no continuous use was made of the legal nonconforming use and, thus, the property long ~ ago lost that status. Fallowing very little discussion on that paint, the city council voted 10 3-2 to uphold 1esolution 4162 of the Planning Commission. 11 For reasons which will become clearer as this advisory opinion unfolds, the 12 decisions made by the Planning Commissioz1lBoard of Appeals, as upheld by the city 13 council, constitute the law of the case and, as such, must be respected as the matter 14 continued an from this paint. As also will be seen, the decision to grant legal non 15 conforming use status to the two rear dwelling units is the pivot point in. the history of 16 this matter. 17 MORE RECEN'T' FROCET}URAL HISTORY 18 Fallowing the city council meeting and the decision to uphold the Planning 19 Commission/Board of Appeals decisions, the parties met on. April 5, 2011. The 20 Fairbanks brought their architect to the meeting, Mr. Paul Fulbright ("Fulbright"). 21 Among the more salient results of this meeting was that the Fairbanks were to have 22 design professionals, such as Fulbright and an engineer, perform an inspection of the site 23 and prepare a written report for the city to review. 24 In its letter to the Fairbanks confirming the items discussed in the meeting, the 25 ,city's building official Henry Huang ("Huang") referred to the previous staff report 26 ' Note here that the hearing on the mayor's appeal was primarily focused on Resolution 4162, not 27 Resolution 4161, which pertained to the Building Code violation portion of the notice and order. 28 "~" ADVISURY DECISION aF TFE FEARING EXAMINER ON BEHALF OF TIE TUSTTN BUILDING BOARD QF APPEALS 1 prepared as the result of the "twenty minute cursory observation by our staff and 2 therefore was very limited." (See 3X-l, Exh. G, 00436-00437, Item Number 9). Later in 3 that carne paragraph Huang proclaimed "the existing structure is not safe to occupy." 4 (Id). 5 Fulbright did complete an inspection of the structures on site and prepared a 6 written report describing the conditions he found and suggested remediatians necessary. 7 His cover letter far that report was dated April 21, 2011. Fulbright's report identifies 8 many of the issues which were already identified by the city during its September 10, 9 2010 inspection. Fulbright identified other issues which were not included in the city's 10 September 10, 2010 inspection report. Among those additional items was the lack of 11 GFCI outlets in the kitchen and bathrooms of each unit, the lack of operable smoke 12 detectors, the north wall of the recreation room is within 12 inches of the property line, 13 and the stairway to the upper unit dad not appear to be adequately supported by proper 14 footings/foundations. (JX-1; Exh. H; 0043 8-004478). 15 Eric Stovner ("Stovner") was also employed by the Fairbanks to inspect the 16 premises from his perspective as a structural engineer and provide a written report. His 17 report is dated May 4, 2011. Like Fulbright, Stovner identified additional items which 18 were neither noticed nor articulated by the city following its cursory inspeetaan done an 19 September 10, 2010. Among the additional items identified by Stovner was a significant 20 crack in a wand beam in the ceiling of the garage which supports the floor of the upper 21 unit. Stovner also identified the support faundataan for the stairs as did Fulbright, but 22 Stovner described his concern in more detail than did Fulbright. The posts supporting the 23 staiurs are on concrete pedestals that simply bear on grade. There was no evidence that 24 any of the posts rest an a footing that is buried below the grade. (.1X-1, Exh. I, 00448- 25 454). 26 27 28 -8- ADVISORY DECISION OF THE HEARING EXAMINER ON BEIIALF OF THE TUSTIN BUILDING I30ARD OF APPEALS 1 Both Fulbright and Stovner recommended remedial measures to be taken 2 including replacing the cracked beam, the carport support girder, the recreation room 3 canopy posts and replacing the stair supports with l2" x 12" footings below grade. (ld}. 4 On or about May 10, 20l 1, Huang had a phone conversation with Fulbright about 5 the contents of his report. "That led Fulbright to send Huang an email on May l 1, 2011. 6 In his email Fulbright stated "there are specific items that must be addressed before the 7 property is considered safe and habitable." (JX-l, Exh. J, 00455). 8 A meeting of the parties was scheduled far the afternoon hours of May 12, 201 l . 9 Huang cancelled that meeting the morning of May l2, 2011. In an email to all parties 10 explaining that since he was preparing a letter to go out to the participants, Huang said it I 1 would not be productive to have a meeting. (TX-1, Exh. L, 00459-60}. 12 Qn May 1 b, 201 1, Huang authored a letter to Fulbright and to Stovner. In that 13 letter, Huang stated he had reviewed both their reports and he had same comments and 14 conclusions. Huang requested bath men to articulate whether or not the structures were 15 safe to occupy. Additionally, Huang imposed a unilateral deadline to submit plans 16 designed to show how all the noted conditions would be remediated within 30 working 17 days of the date of his letter.4 (JX- 1, Exh. K, 00455-57; emphasis added). 18 Fulbright responded to Huang's concern in an email sent to Huang On May l7, I9 2011. In that email Fulbright stated "I want to be vexy clear that we did not observe an 20 immediate threat to the occupants of these two units and continued habitation is 2I satisfactory as long as the potential hazards we listed are remediated within a timely 22 manner." (JX-1; Exh. L; 0045$). 23 Stovner also responded to Huang's concerns in a letter dated May 25, 2021. In 24 that letter Stovner stated: 25 26 ¢ Thirty working days from May 16, 2011 would place the deadline an June 28, 201 I, accounting 27 for the Memorial Day holiday. 28 -9- ADVISORY DECISION OF THE REARING EXAMINER ON BERALF OF THE TUSTIN BUILDING BOARD OI• APPEALS 1 "Per requirement of your letter of May 16, 2fl 11, the purpose of this letter is to 2 state that it is our professional opinion that the existing added units which have been used far aver 60 years are structurally safe to continue to occupy before 3 rehabilitation is complete, with the provision that temporary sharing, consisting of nominal 4x4 timber pasts, be placed at each end of the split in the garage beam." 4 (JX-1; Exh. M; aa462}. 5 With that more recent history, Huang prepared and served the native and ~ orderlpre-citation notice/declaration of public nuisance and notice to vacate here at it 7 issue on June 16, gal 1. Fn that notice, Huang cited the observations made by city staff 8 during the cursory inspection an September la, 2fl10, Fulbright's report, Stavner's ~ report, third party reviews by Scott Fazekas {"Fazekas"} and Bryan Healey ("Healey") of i fl the Orange County Fire Authority, as well as his own observations "(on the visible parts 11 alone}" and determined the structures to be substandard and unsafe far continued t 2 occupancy. Fairbanks was directed to have the structures vacated na later than June 2a, 13 gal 1, at 4:00 p.m. and to obtain the necessary permits to remediate the conditions noted. 14 {JX-1; Exh. N; 00463-00466}. Appended to the notice was an addendum which 15 identif ed 21 specific violations, mast of which were noted previously as part of the 1 ~ September 16, 20l a notice and hearings as well as the addztianal items noted by t7 Fulbright and Stovner. Based on that Notice the two units were red tagged. (JX-1, Exh. ~ 8 Nand 4, 00463-77; JX-3; Exh. LT}. 19 It was from that notice the Fairbanks flied the instant appeal which led to the 20 appointment of this hearing examiner and the five days of hearings. {JX-3; Exh. E and S}. 21 What follows is a chart which provides a visual representation of the 22 viala.tionslcanditions Hated in the September 16, 2fllfl Notice which were then either 23 abandoned ar repeated in the June 16, 201 fl Notice and which conditions were added in 24 the June 16, 2010 Notice. 25 26 27 28 -10- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALT flI: THE TUSTIN BITILDING BOARD OF APPEALS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 z~ z~ 28 TI3E TUSTIN IiUII,DING B4ARD OF APPEALS 1 2 3 4 s 6 7 8 9 10 11 I2 13 14 15 1G 17 18 19 20 2 i !. 22 23 24 25 26 27 28 Unsecured/expased gas line--rear unit i Straw insulation exposed ,, Smoke detectors - ino erable ~ Cracked beam supporting upper units Foundationlfootings for stairs No GFCI's Wood pasts~a rec room bldg - rotted S~Torth exterior walUrec room - setback encroachment STATEIVIENT OF THE CASE CITY'S CASE-IN-CHIEF Dennis .McCreary ("McCreary"} is a licensed professional engineer and is employed by the City of Tustin in the Building Division in Plan Check, Cade Enforcement, and is the building off cial in the absence of Huang. McCreary visited the property at 520 Pacific Street, Tustin, CA on September 10, 2010. 1-1e went there with Community Development Director Elizabeth Binsack at the request of the Fairbanks. He met th.e Fairbanks at the location. He spent about 20 minutes actually inspecting the premises and 20-30 additional minutes in conversation with the Fairbanks. He and others at the inspection took photographs of the conditions observed. (J~-l, Exh. B, 00010-00087). McCreary noticed the fallowing violations • Construction on the property line -violation of setback requirements. * Exposed electrical wiring. ~ l~Fo smoke detectors. Exposed insulation in the kitchen -straw insulation. McCreary was also concerned about the structural support for the rear units but that needed fitrther investigation than he did an this visit. He neither took nor caused to be taken a photograph of the exposed straw insulation. He also did not know its -12- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS l flammability and he did not take a sample. He and others noticed other conditions which 2 violated code requirements. 3 This was the only time McCxeary visited the site. He then provided the 4 information to Huang following his inspection. ~luang has never personally inspected the S property. McCreary did not prepare a list of violations observed during the inspection. 6 In fact, the list that was ultimately prepared did not include the lack of smoke detectors. 8 McCreary observed the intoriar of the garage but he did not notice the cracked 9 beam. l Q McCreary assisted in creating the violation list used in conjunction with the notice l ] and ardor issued an September l6, 2410. (JX- l , Exh. C, 00085-00091). l2 McCreary said there were dangerous conditions present during his inspection. 13 Henry Huang ("Huang"} is the building official £ar the Gity of Tustin. He is a l4 registered professional engineer with 30 years of experience. l5 Huang first met Fairbanks at the counter in June ax July, 2010. He became lG involved again when McCreary shared his observations and photographs from the 17 September 10, 2010 inspection with him. Huang was surprised by the number of 18 violations present. 19 Fallowing the Planning Camxnissian hoaxing he had a meeting with the Fairbanks 20 an Apxil 5, 2011. l-le sort a letter summarizing this mooting. (JX-l, Exh. ~, 00436- 21 00437}. 22 23 24 2S s Tn that connection, Huang said he after relies upon tlxe observations of his subordinate staff in terms of conditions observed on property sites as he cannot go out to each individual property to 2E da his own inspection. 27 28 -13- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS I Huang's interpretation of the Planning Cominissian's resolution was that all the 2 violations were to be corrected to the minimum health and safety requirement. {JX-l, 3 Exh. E, 0009$}, This left it to his discretion as the building official. 4 Huang received the report from Fulbright and he received Stovner's report. {JX-l, 5 Exh.'s H and 1, 0043$-00454}. Bath of thaw ~nen agreed with the general observations of 6 the violations observed by the city. This supported the findings of McCreary's cursory 7 inspection. These reports, though, provided even more information. Before this time 8 period, Huang was not aware of the crack in the beam of the garage. 9 Huang received an email from Fulbright an May 11, 2011. In that email Fulbright 10 agreed there were specific items which had to be addressed before the property was safe 11 and habitable. {3X-1, Exh. J, 00455}. Huang becaane concerned. whether the units were 12 safe for occupancy. He sent letters to bath Fulbright and Stovner asking them to provide 13 an opinion in that regard. {JX-1, Exh.1~., 00456-00457). Huang received responses from 14 each man. Fulbright said that continued habitation was acceptable provided remediation 15 was done in a timely manner. {3X-1, Exh, L., 0045$). Stovner said continued occupancy 16 was safe with temporary sharing pasts being installed to support the cracked garage 17 beam. (JX- l ,Exh. M, 00462}. That, coupled with the findings of McCreary's visit in 18 September, 2010, Huang felt the buildings were unsafe. 19 Huang reached out to Scott Fazekas ("Fazekas"} for a third party review of the 20 situation and for a second opinion. He met Fazelcas in city hall and showed him the 21 photographs from September 10, 2010 and the letters from Fulbright and Stovner. This 22 review also included the opinion of the Assistant Fire Marshal, Bryan Healey {"Healey"}. 23 Fazekas concurred the units were dangerous. That led Huang to issue the notice and 24 order and notice to vacate the units. Huang said he invited the Fairbanks to show him 25 haw they intended to remed.iate the conditions, but they did nothing. They submitted no 26 plans. 27 28 -14- ADVISt)RY DECISIQN 4F TIIE HEARING EXAMINER 4N BEHALF 4F THE TUSTIN BUILDING BOARD OF APPEALS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2Q 21 22 23 24 25 26 27 2$ THE TUSTIN BUILDING BOARD OF APPEALS 1 2 3 4 5 G 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 za~ 25 26 2~ 28 THE TUSTIN BUILDING BOARD DI' AI'I'EALS 1 2 3 4 S 6 '7 8 9 10 lI 12 13 14 15 16 17 18 19 20 21 22 23 za 25 2G 27 28 building. Item 17. Units Luang was concerned about the Foundations foundational support far the recreation room canopy inasmuch as the bottom of the post was installed too close to the concrete creating a dry rat danger. It was based on Stavner's report. Item 18. Canopy Posts This is a repeat violation based on the recreation room canopy support post problem which was explained directly above. Item 19. Conduit This is based upon a metal conduit which crosses the carport area and which is ~ unsupported. Item 20. Insulation Huang was concerned about the exposed straw insulation as noted by bath McCreary and Fulbright. .Item 21. Rec Raam North This is an additional violation based on the Wall proximity of the upper unit wall to the property line. Fairbanks told Huang that he rented out one of the units after he received the reports of Fulbright and Stavner. Huang explained that he did not issue a notice to vacate back in September 2Q 10 because the inspection was not an in depth inspection. He only took the drastic action based an the reports of Fulbright and Stovner. It was not one violation which turned this matter for him; it was a combination of all the violations. This was the first time Huang issued a notice to vacate. 4n cross examination, Huang confirmed that Fulbright did not articulate any immediate threat to the occupants. Huang said even if the shoring of the beam were lane, the structures would still be dangerous based on other issues. The language in the final version of Resolution 4161 which said "to the extent such corrections are reasonably _1~_ ADVISORX RECISION OF THE BEARING EXAMINER ON BEHAIII± OI+ THE TUSTIN I3UILllING BOARll OF APPEALS 1 determined by the Building Official to be necessary and appropriate to ensure that the 2 health and safety of the occupants ... are adequately protected and preserved ..." was not 3 the original language of the draft resolution. Before it was revised it simply required 4 compliance with the notice and order. Huang said the table (JX- 1, Exh. E; 00109-001.1 S} 5 were the violations which he determined reasonable and necessary. 6 Huang agreed that although Stovner described the problem with the posts at the 7 recreation room but Stovner did not call that condition dangerous. Huang did not know 8 the extent of the rot to the posts. The condition of the posts contributed to the overall 9 finding of dangerousness. 10 Huang confirmed that the Fairbanks submitted plans to remediate the conditions i i on July 5, 2011. (JX-1; Exh. P, 00478-00481). 12 Huang admitted that the violation involving the exterior wall of the recreation 13 room being too close to the property line was not on the September, 20101ist. The city 14 learned about the violation and the posts from Fulbright's report. Fulbright did not find a l5 fire hazard in the wall violation. The wall and the posts were the only violation noted 16 with regard to the recreation room. 1 ~ Huang said the smoke detector charge was added based on Fulbright's letter. He 18 did not know if Fairbanks installed smoke detectors in May, 2011. 19 Huang agreed that GFCI outlets are required now on new construction, but they 20 are not required retrofit items on existing buildings. 21 On Item 14 Huang agrees that Fulbright said the heater was new, in safe condition, 22 and was in working order. Huang wanted Fulbright to provide detailed plans and 23 information on the heater and if it was safe, Huang would be satisfied. Fulbright did not 24 get that information to him. 25 Fulbright said in his report that the unsecured gas line was not a working, 26 pressurized gas line. (.item 15}. Huaag did not check on that. 27 2g -1$- ADVISORY DECISION OF TIIE HEARING EXAMINER ON BEHALI< OT THE TUSTIN BUILDING BOARD OF APPEALS 1 Huang agreed Fulbright said the straw insulation needs to be covered and that it 2 did not constitute an immediate life safety hazard. Huang admitted the straw insulation 3 was not tested and his statement that it has a high flame rate was just a statement, not a 4 conclusion. S Huang said that if the furnace in the upper unit was installed in conformance with 6 the manufacturer's instructions, at the time of construction, he would accept it. 7 Huang agreed Fulbright also recommended the exposed electrical wiring in the 8 upper unit needed to be removed. Huang was informed that the wires have now been 9 removed. The same was true with regard to the smoke detectors; they are operable now. ~; 10 Huang said that would make him happy. 11 There was no specific condition in the upper unit which constituted substandard 12 wiring. 13 ~s it related to the stairway to the upper unit, Huang did not know if it was there ', 14 before 1940, or before 1950. He did not know if the 1927 or 1940 building code required'' 1 S guards and rails an such stairways, He did not know what the 1927 code or i 940 code 16 said about the 10 foot setback requirement. Huang generally agreed that if the stairway 17 was built to code at the time of construction, it could remain. He had no evidence to 18 conclude the stairs were ever altered since they were built. ~', 19 Huang agreed the foundations for the stair support structure was not brought up in '; 20 the September, 2010, notice. Stovner said the foundations appeared to be in sound 21 structural condition. 22 Huang did not know when the carport was constructed. Even though the girder is 23 undersized, it did not show signs of collapse. Huang based his finding on Stovner's ~ 24 report. Huang did not go out and look at it personally. 2S With respect to the cracked beam in the garage, Huang said that violation also was 26 not in the September, 2010 notice. Stovner identified this issue for the city and Huang 27 28 -19- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALI+ Or THE TUSTIN BUILDING BOARD OF APPEALS 1 never saw it. Indeed, neither did McCreary. Huang did not know if the crack was fresh 2 and he did not know when it happened. Stovner did not say it was an immediate threat. 3 Huang requested Stovner to advise him if the upper unit was safe for occupancy 4 within 14 days, Stovner responded in that time and after that Huang did not ga out to the 5 site to determine if the temporary shoring had been done. 6 Huang agreed he gave the Fairbanks 34 wvo~king days from: May I6, 2011 to file 7 remediation plans and yet his native and order was issued within 34 calendar days. 8 .As it relates to the lack of a fire separation between the garage and the two units, 9 Huang did not recall discussing that issue with the Fairbanks. He did not recall if 10 Fairbanks told him he had to remove the coverings due to a rat infestation. Huang 11 acknowledged Fulbright said the occupancy was safe "so long as the potential hazards we 12 listed are remediated within a timely manner." (JX-l; Exh. L; 44458}. 13 Huang did not know how long the upper unit wall had been on the property line. 14 There was discussion of the different setback requirements in the codes from different 15 years. 16 Huang has never seen an architect ar engineer state a building was unsafe where 17 that architect or engineer worked on behalf of a property owner. That Stovner did not 18 find an unsafe condition did not surprise him. 19 Huang interpreted Resolution 4161 as requiring the owner to maintain the propert 20 in accordance with health and safety standards and that the Uniform Housing Code was 21 to be used in determining whether it was safe. Resolution 4161 did not require Huang to 22 do anything other than to be satisfied that the buildings were safe. In that connection he 23 requested Fairbanks hire subject matter professionals and assist him. Fairbanks did hire 24 Fulbright and Stovner. Fulbright and Stovner's reports confirmed the previous issues 25 presented to the Planning Commission and identified several new issues. He asked both 26 27 28 -24- ADVISORY DECISION OF THE HEARING EXAIYIINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 men to declare if the buildings were safe for accugancy. Their reports, in Huang's 2 opinion, indicated the structures were not safe. 3 I-lealey is the Assistant Fire Marshal far the City of Tustin, He reviewed the f le 4 an 520 Pacific Street, Tustin, California and consulted with Huang and others from the 5 city. He did not conduct an on-site inspection. He said the stairway to the upper unit was 6 afire hazard. The foundations were a problem as well as the proximity to the next door 7 neighbor. He was also concerned with the lack of fzre resistive barriers between the 8 garage and the two occupancies. The heaters and szrloke detectors also concerned him, 9 The cracked beam in the garage creates a risk of collapse on a firefighter in case of a fire 1 ~ event. Healey said these issues needed to be addressed in order for the property to be 11 considered safe. 12 Qn cross examination Healey said if the heater was installed properly, then he had 13 no concerns. Healey did not know if the stairs were built to code. He did not prepare his 14 own notice of violation on these issues. His involvement was more of a consultant in this I5 matter. 16 Scott Fazekas is a retired building official who now provides code consultation to 17 municipalities. He is also a licensed architect. At Huang's request, Fazekas met with 18 him to provide a third party review of 520 Pacific Street. He reviewed the photographs l9 and all the reports. 20 Fazekas felt the cracked beam was a dangerous condition. The carport beam 21 constituted a potential for failure. He did not do his own physical inspection of the 22 property. The stairway foundation was dangerous. He said a 12 inch footing below the 23 grade has been the requirement since the 1927 Building Code. The lack of rails and 24 guards on the stairway was also a dangerous condition. The lack of a fire resistive 25 separation between the garage and the units was a danger. The old heater is dangerous 26 27 28 -21- Allvi~L-KX llEC;151UN C31'„1'H~ HEARING EXAMINER ON BEHALF CIF THE TUSTIN BUILDING BOARD OF APPEALS 1 and the newer heater was installed without a permit. The straw type insulation should be 2 covered. 3 Fazekas concurred with Huang's decision to issue the notice and order. The 4 structures at issue were not built to any version of the Building Cade, even back to 1927. S 4n cross examination, Fazekas admitted he did not discuss these issues with either 6 Fairbanks, Fulbright or Stovner. His opinion was entirely based on document review and 7 discussions with city affzcials. He concurred that all the 1927 building cads required was 8 that the foundation be to the frost line and that in this area the frost line is not really an 9 issue. He was not familiar with the history of the construction of the home and did not 10 know if any of the electrical wiring was energized. He did not recall if he discussed 11 Resolution 41 b 1 with city staff. 12 FAIRBANKS CASE-IN CHIEF ~ 13 Stovner testified that he is the president of Critical Structures. He has been a 14 registered structural engineer for the last 24 years and specializes in historic structures. IS Stovner was called by Fairbanks in January, 2011, and he visited the property I6 several times. He was asked to review the property and provide an opinion on whether it 17 was safe and habitable. The two mast serious issues related to the property were the 1 S cracked garage beam and the carport girder, but neither showed any immediate signs of 19 stress and the problems were not immediate. fle tested the stiffness of the floor in the 20 upper unit using the heel drop test and he did not notice any bouncing, The crack was na 21 new, did not appear to be worsening, and was not an immediate hazard. He advised 22 Fairbanks to replace it. He reviewed the plans prepared by Menard and they are 23 consistent with his recommendations. Stovner said the upper unit was safe and habitable 24 with temporary sharing. He said the shoring has been accomplished. Since his 25 recommendations, he has seen it and it is shored in a manner consistent with his 26 recommendation. He did not think a permit was required for such temporary sharing. 27 28 -22- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TIJSTIN BUILDING BOAIiD Off' APPEALS I The shoring was installed shortly after he made that recommendation in his letter. The 2 shoring does not limit the use of the garage far the vehicle storage since the beam runs 3 parallel to the movement of a vehicle into the garage. 4 Stavner had the same sort of testimony as it related to the carport girder. It was 5 best to replace it, but it was not showing signs of distress ar sagging and it was not in 6 danger of collapse. 7 The stairway foundation showed no signs of distress or settling. While the piers 8 should not be sitting an the grade, they have not gone anywhere for years and the stair 9 landing appeared strong. There are seven pasts supporting the stairway and landing. The 10 door to the upper unit was square. He, nonetheless, recommended they be repaired and l 1 the plans address this correction. 12 Tl~e canopy posts are not an immediate hazard. In fact, the rat only affects one ar 13 two posts. This is a maintenance issue, not a hazard. 14 It offended Stovner when Huang said he had never seen an architect working an 15 behalf of a property owner find a dangerous condition on that property. Stovner has done 16 just that where warranted. He has advised property owners wham he consulted that l7 dangerous conditions existed if they truly did exist. He would have done that on this 18 case, if he found a dangerous condition. 19 Stavner always found Fairbanks willing to cooperate and resolve all the issues at 20 this home. 2i 4n cross examination, Stavner concurred his review was conducted from only a 22 structural soundness aspect. His was not just based an a cursory review. The stairs do 23 not carry much of a load demand. His opinion did not take into account that the stairs 24 were the only farm of ingress and egress from the upper unit; he just looked at them 25 structurally. 2s 27 28 -23- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALI+ OT' TIIE TUSTIN BUILDING I30ARD Off' APPEALS 1 Stavner did not recommend using any prior code for his recommendations. He 2 used the current code. While the building znay be eligible for state historical building 3 code application, he felt it was more straightforward to use the current code. Stovner felt 4 all that was needed here was to fix what is broken, not do a complete upgrade. The 5 garage beam did not endanger the occupants of the upper unit. 6 Roger Banowetz is a retired building inspector with 35 years experience. He now 7 consults an building issues, He has red tagged buildings before but never without 8 inspecting them personally. 9 Banowetz has inspected the property at 520 Pacific Street and he has reviewed the 1 ~ list of violations articulated by the city. Based on that review he developed an opinion on 11 each of the violations. 12 The canopy pasts at the recreation room only affects one of the five posts and is 13 not a safety hazard. 14 The exterior wall of the recreation roam has some fzre resistive material in the wal 15 and is not a fire hazard. 16 When Banowetz visited the property smoke and CO detectors were installed and 17 were working. All the mechanical, electrical, and plumbing installations met code 18 requirement. GFCI outlets were not required when the electrical components were 19 installed and the existing electrical components were not a hazard. 20 Banowetz inspected the newer of the two heaters. He reviewed the installation 21 instructions as well as the installation method. It was installed in accordance with the 22 manufacturer's instructions. It was not dangerous and hazardous. 23 The exposed gas line had been removed prior to his inspection. 24 Banowetz tested the straw insulation and determined it was not a fire hazard. 25 Moreover, it has been covered up. 26 27 28 -24- ADVISORYDECISION OF TI~IE HEARING EXAMINER ON BEI~IALP OF' THE TUSTIN BUILDING BOARD OF APPEAUS 1. With respect to the older heater in the upper unit, he inspected it, reviewed its 2 installation and actually located the manufacturer's instructions far installation. It was 3 installed in a manner consistent with the instructions. It was compliant with all clearance 4 requirements. For its age, it appeared to be in good condition and was not dangerous. 5 The electrical. wiring and the power strip which used to be aflzxed to the wall near the 6 unit had been removed at the time of his inspection. 7 Banowetz saw no issues with the installation of the shower in the upper unit. 8 The stairs to the upper unit were properly installed to the 1940 building code. At 9 that tune the code did not address guards and rails. The stairs were sound. They were 10 level and did not appear to be in distress or displacement, the entrance door opened and 11 closed smoothly. With respect to the set back requirement, the 1940 code did not have a 12 setback requirement. The current code requires a 10 foot setback but Banawetz could not 13 find anything about setbacks in the 1927 code. The 10 foot setback requirement was 14 more recent than when the stairs were constructed properly under the code at the time of l5 construction. 1 b Banowetz looked at the foundations far the dwelling units and they all looked in 17 good shape. 18 The metal conduit was braced adequately when he inspected it. Since it had been 19 braced, it was not a hazard. 20 When Banowetz inspected the garage beam it was shared. The electrical wiring 21 that was exposed was not installed recently. Once it is covered it will be safe. One 22 junction box needs to be rotated to be accessible, but once that is all covered wzth 23 drywall, the installation will be alright. 24 The stair foundations were not up to code but have withstood the test of time. 25 Banowetz saw no indication that it would soon. fall down. In fact, it is extremely well 26 27 ' 28 -25- AAVIS(}RY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING GUARD OF APPEALS 1 built. He would not make an unsafe determination based solely an a photograph. He 2 would have to see the condition in person first. The stairs were not unsafe. 3 On cross examination Banowetz admitted he is not a certified building inspector 4 and he is not an engineer. He classified the occupancy in the 1927 and 1944 building 5 code as an l occupancy, which relates to a dwelling house. He did not use the apartment 6 hawse occupancy classif cation. He did not think this was an apartment house. 7 The covered landing at the tap of the stairs is not in compliance with any prior 8 Bade. Banowetz agreed the 1927 building code applied to the upper unit and the 1940 9 building code applied to the rear unit. It appeared to him that the stair landing as 10 originally constructed was an open parch which was later enclosed. He made that I l determination from. the different raafpitch above the stair landing. I2 Banowetz did not review the reports of Fulbright anal Stovner but he was present I3 for Stavner's testimony. Banowetz believes that with seven posts supporting the 14 stairway, it is overbuilt. 1 S Banowetz acknowledged that even though the mare recent heater installation was 1 G installed properly, it still had to have a permit. Banowetz said Fairbanks acknowledged 17 he needed a permit for that installation. Fairbanks is in the process of obtaining that 18 permit now. 19 Banowetz said the 1927 building Cade did not require a fire separation between 1 20 occupancies (dwelling pause) and private garages. It only required an "ordinary 21 separation" wl~zich was not a fire separation. Nevertheless, where such a fire separation 22 was present and then removed, it should be replaced. Then Banowetz realized that 23 pursuant to § 503 {b) of the 1927 building Cade subdivision 3 required an ordinary fre 24 separation, which is a one hour separation. This was part of the correction proposed by '' 25 Fairbanks. 26 27 28 -26- ADVISC?RY DECISIQN OF THE HEARXIVG EXAMINER ON BEHALF QF THE TUSTTN BUILDING BOARD pF APPEALS 2 Banowefz said while he has deference to the decisions made by a building official, 2 he would not have red-tagged these buildings based on the conditions he noted when he 3 did his inspection. 4 Nathan Menard is an architect who has a business in Tustin and who specializes in 5 historic buildings, He has known the Fairbanks for quite some tune and is Familiar with 6 their home. Menard has prepared plans which demonstrate how the Fairbanks' intend to 7 remediate all the violations. Menard based these plans on the reports and findings of I' 8 Fulbright and Stavner. (JX-1; Exh. P). 9 Menard believed the Fairbanks home qualified as a historical structure. That ~ 2 0 included the garage and the upper anat. He agreed with the timing of the construction of 2 2 the various buildings throughout the 1900's. He said the City of Tustin adapted its first 22 zoning ordinance in 1947. He believed that since the buildings are of historic character 2 3 that the degree of danger should be deterniined using the historical building code, not the 24 current code. Under that standard these building are safe, not dangerous. 25 The stairs to the upper unit were built to the code in force at the time. That being 2 6 sa, one should leave them alone, The foundations to the stairs only needed to be below 27 the frost line and in California, there is no Frost line. Again, one should leave it alone 18 because it is an example of construction at the tune. He understood the proposal was to 29 repair the foundation using today's code. He did not think that was the right thing to do 20 but the proposal is to install footings below grade. 22 Menard did not think the setback requirement applied in the 1927 code because 22 that was not applicable to group I occupancies 23 Menard inspected the interior of the garage. There was na fire separation between 24 the garage and the interior when he went there. He did notice, however, that the ceiling 25 joists had shims and nail hales. These were indicators to him that something was 26 installed there at a previous time. He proposed type x gypsum hoard be re-installed. 27 28 -27- ADVISORY DECISION OF THE HEARING EXAlYIINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 Menard agreed the exterior wall of the stairVvay landing needs to be fire rated. He 2 proposed two different ways to remediate this problem. 3 The bathrooms and kitchens do not have GFCI outlets. It was not required when 4 constructed but they have been. proposed for installation. While such outlets are 5 inconsistent with the historical character of the buildings, it is important to install them. 6 Menard agreed with. Stovner's repart and did not find any disagreement with 7 Stovner's testimony, He also does not disagree with the description of conditions found 8 by Fulbright. 9 Menard criticized the findings of 34r'' Street Architects, since, in his opinion, the 10 mid and rear additions are historically significant and they never did an on-site inspection t 1 of the premises before issuing their repart. By their own letter, the 30~~' Street Architects 12 ix~erely did a cursory review of the photographs taken by the city and reviewed 13 information provided by city staff {JX-1; Exh. E, 04153-40156). l4 Menard said his plans for the Fairbanks was submitted to the city on 3uly 5; 24i 1 l5 and the city's review and reply was dated August $, 2011. I6 Bret Fairbanks {"Fairbanks") testified that he lives with his wife and four 17 daughters at 524 Pacific. He is a physical therapist. They purchased the Name ten or 18 eleven years ago. When he purchased the home it was advertised. as having two rental 19 units an site, bath of which were occupied. The decision to make the purchase was based 20 upon the income from the rental units. The income pays one half the cast of the 2l mortgage. He dzd his due diligence at the time and discovered a permit for an electrical 22 panel. After the purchase he re-roofed all the structures including the two units. He 23 obtained a building permit far the re-roof and had inspections by city building staff. 2~ Nobody told him during those inspections that anything was wrong with the units. {CX- 25 1, 2). 26 27 2$ -28- ADVISORY .DECISION OF THE NEARING EXAMINER ON BEHALF" OF THE TUSTIN BUILDING BOARD OF APPEALS l Fairbanks put the property up far sale in December 20(}9. His growing family 2 needed mare roam. An offer was made and accepted. This led to an inspection by an 3 appraiser. The prospective buyer's lender inquired about the two rear dwelling units and 4 requested a "burn. dawn" letter. In July, 2010, he requested a "burn dawn" letter from the 5 city. The city responded and informed him there were no permits on file for the two G dwelling units. Because of that the appraiser gave the units no value and the buyers 7 walked away from the sale. 8 Fairbanks met with Elizabeth Binsack and Huang. Huang was very nice and 9 suggested he would came out to give Fairbanks an idea when the buildings were 10 constructed. A CUP was suggested but that was not viable because the kitchen would not t 1 be allowed even with a CUP. I2 On the day of the inspection on September l0, 2010, only McCreary and Binsack 13 showed up. Fairbanks was very disappointed that Huang was not present. He was not 14 comfortable with Binsack since she did not share his belief that the units were a legal 15 non-confarnung use. lG McCreary conducted an inspection and took same photographs. He was told the i7 city officials would get back to him. The next thing he received was the September 16, 18 2010 native and order. It was signed by Brad Steen, an individual Fairbanks had never 19 rnet and who had never been to his hazne. He appealed that notice. 20 Fairbanks spoke to Juanita and Huang about the notice and order. Both were 21 surprised by its issuance. While the appeal was pending Fairbanks spoke to many city 22 officials about fixing the violations. He was repeatedly told not to do anything while his 23 appeal was pending. Moreover, he did. not want to make repaixs on units that he was 24 advised he could not legally keep. He could not get a building permit while his appeal 25 was pending. 2~ 27 28 -29- ADVISORX DECISION OF THE HEARING EXAMINER ON BEI3ALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 The Planning Commission held a hearing at which Fairbanks spoke. The 2 Commission ruled his units were a legal non-conforming use in the face of staffbeing 3 against it. The research he did to prepare for that hearing was extensive. He found a 4 reference that indicated in 1959 the Tustin City Council authorized the destruction of all 5 building permits prior to that date. The Planning Commission also offered him to make 6 them safe and habitable. The final language was that he was to comply with the notice 7 and order to the extent necessary to ensure health and safety. It was his interpretation of 8 that ruling that the list of 29 violations would be winnowed down to only those that 9 impact health and safety and that he would be allowed to make the repairs and sell his 10 home. 11 Fairbanks met with Huang and it became clear to him that the city was still going 12 to require compliance with all the violations, not just those related to health and safety. 13 Nevertheless, following December 14, 2010, Fairbanks began fixing those things 14 he could fix without a building permit. 15 In 3anuary, 2011, the mayor appealed the Planning Commission's decision to the 16 full city council. Again Fairbanks spoke to McCreary about repairing the other items. 17 He particularly wanted to replace the drywall in the garage. He was again advised to wait 18 while his case was still pending before the city council. McCreary and other city officials 19 knew at that time the units were occupied by tenants. Nobody said the units were 20 dangerous to occupy then. 2i Fairbanks hired Stovner to assist him in determining if the property was safe and 22 habitable. Stovner did an inspection and noticed the cracked beam in the garage. The ', 23 city did not mention this; Stovner did. 24 The city council finally decided to uphold the decision of the Planning 25 Commission on March 15, 20i 1. The units were now a legal non-conforming use. 26 2~ 2g -30- ADVISORY DECISION OF TIIE BEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 A meeting was set with Huang and that was when Huang said the minimum health 2 and safety was compliance with the entire building code. Fairbanks thought "here we go 3 again." 4 Fairbanks then hired Fulbright to provide assistance in determining which 5 violations were related to health and safety.. Fuibright suggested upgrading the outlets in 6 the bathrooms and kitchens to GFCI outlets. Fairbanks was willing to do that. Fairbanks 7 was more interested in fixing the problems rather than forcing the historical building cods 8 upon the city, 9 At the April 5, 201 I meeting, Huang said that Fairbanks had to fix everything. 10 Hunag also wanted Fairbanks professionals to prepare reports with their findings, and 11 Huang wanted plans to be submitted. Fairbanks did not believe that the city was 12 progressing in conformance with the Planning Commission's ruling. 13 They aII met again on April I4, 2011. By that time Fairbanks had already 14 prepared or replaced all the smoke detectors with working devices. Huang kept reading 15 the Planning Commission ruling much too broadly. Fairbanks had no problem fixing 16 those things which needed to be repaired due to health and safety. Huang wanted 17 everything repaired. 18 There was a meeting with Huang scheduled far May 10`x' or 12`h, 201 1. Huang 19 cancelled that meeting. Fairbanks believed at that time that Hunag was satisfied with. the 20 recommendations of Fulbright and Stovner. Huang knew of the cracked beam in the 21 garage since early April, 201 I . 22 Fairbanks expected to get approval to move forward with his repairs at that 23 meeting. Instead, he received a letter dated May 16, 2011. Fairbanks was required by 24 this letter to demonstrate the property was safe within 10 days and to submit plans within 25 ~0 working days. Fulbright communicated his opinion on the safety of the premises on 26 27 28 -3I- ADVISORY DECISION OF' TI-IE HEARING EXAMINER ON BEHALF OF 'I`HE TUST'IN BUILDING BOARD OF APPEALS 1 May 17, 241.1 and Stovner did so an May 25, 2411. Fairbanks had been trying to 2 remediate the violations in a timely manner throughout this case, but he was stymied, 3 Fairbanks installed the sharing of the garage beam recommended by Stavner two 4 to three days after he recommended it. It was done by the end of May, 2411. (AX-J and S N}.~ 6 Fairbanks was urorking on the plans and requested an extension of tune Pram the 7 deadline. Instead of granting an extension Huang also did not give him the full 34 8 working days to get his plans submitted. On June 16, 2411 Huang served the Notice and 9 4rderlNotice to Vacate. 10 Fairbanks had to move the tenant in the upper unit who had been there far 6 years. i l He also had to move a single mother with an 11 year a1d from the rear unit. He had to da 12 that within 4 days. Fairbanks was very frustrated by this development. The city knew 13 about his situation far a year, and during that time everyone said it was safe, but Huang ]4 said it was nat. Huang never ~nentianed the property was unsafe in three previous I S meetings. 26 Fairbanks explained the status of each of the noted conditions an June 16, 2411. 17 They are as follows: 18 • The recreation room canopy post was in the same condition an June 19 16, 2411. It is just one post. He will repair it. (AX-I}. 2Q I i 21 • The exterior wall of the recreation roam has been resolved. It has 22 the required fire rating. 23 24 • The dwelling foundations were present and sufficient. 2S 26 27 ~ AX-J refers to Appellant's Fxhihit J. 28 -32- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 • The general mechanical, electrical and plumbing violation was 2 vague to Fairbanks. To the extent he understood it, he took care of 3 the violations before June 16, 2411. He removed the extension cords 4 and the power strip. {AX-A). 5 6 • The replacement GFCI outlets have not been done yet because he 7 needs a permit to do it. The replacement of them is in his plans. 8 9 • The heater in the rear unit (the newer heater) was installed by 10 Fairbanks without a permit. He had it inspected by the gas company 11 before June 16, 2411. It was installed pursuant to the manufacturer's 12 instructions. Other than the permit issue, it was safe on June 16, 13 2011. {AX-E and G). 14 15 • Fairbanks removed the old unsecured pipe in November 2414. It 16 was not connected to anything. {AX-F}. 17 18 • The straw insulation issue ryas very frustrating to Fairbanks. The 19 only reason the city staff saw it was because he pulled out a drawer 20 in a built-in cabinet. It was sealed back up in the wall before June 21 16, 2411. 22 23 • The old furnace in the upper unit was installed correctly and it works'. 24 well. It was safe on June 16, 241 l . {AX-A}. 25 26 27 2g -33- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF Or THE TUSTIN BUILDING BOARD OF AI'I'EALS 1 ~ The smoke detectors were made operational well before ,lone 16, 2 2411. (.AX-B, D and L}. 3 4 $ The upper unit stairway was still in the same condition on June 1 ~, 5 2411. He is fully willing to modify them to make them safe. His 6 plans include rails, guards, and stair backs. 7 8 • The foundations for the stairs were also unchanged an June 16, 9 2011. He wants to remediate the foundations and install footings. 10 Fairbanks did not care which code was applicable, he just wants the 11 case done. The remediation is addressed in his plans. 12 13 The metal conduit was provided with additional bracing by June l6, 14 2411. This was far the second electrical meter, which was permitted l S and inspected by the city in 1979. {AX-C). 16 17 The cazport girder was in the same condition on June 16, 2411. His 18 plans propose to remediate this situation. 19 2Q ~ The beam. in the garage was first noticed by Stovner in January, 21 24l l . The replacement of this beam is provided for in his plans. 22 23 The fire separation issue between the garage and the two units was 24 still in the same condition on June 16, 2411. When Fairbanks 25 purchased the property there was drywall in that area of the garage, 26 but then he had a rat infestation. To eradicate the rats, he took down 27 28 -34- ADVISORY DECISICIN OF TkIE FEARING EXAMINER ON BEHALF C?F THE TUSTIN BUILDING BOARD OF APPEALS 1 the drywall to clean it out. This was frst identified back in 2 September, 2010. He has wanted to replace it all along but was 3 advised to wait pending his appeal outcome. The remediatian is 4 included in his plans and he is willing to da it. 5 6 • The electrical wiring was not exposed until Fairbanks tank down the 7 drywall. He did install a new switch without a permit. The 8 installation of the new drywall will saver the wiring. The 9 remediatian is in his plans. 10 The sharing of the cracked beam in the garage was in place an June 11 16, 2011. His plans include the replacement of the beam. (AX-J 12 and N}. 13 14 + The exterior wall atop the stairs was in the same canditian an June 15 16, 201 l . He is willing to remediate it either by installing a one ha 16 fire rating ar by same other means. Isis plans address this. He is 17 also willing, if necessary, to demolish the stairway landing enclosure 18 and ;make it an open landing if that will resolve it. 19 One of the items the city placed in its response to Fairbanks's prapased plans is 20 the requirement that he install automatic sprinklers in the two dwelling units. The f rst Z1 time he heard the city refer to his home as an apartment house was in Huang's May, 2011 22 letter. (JX-1; Exh. l~: 00456-457). That claim was not part of the previous case from 23 September, 2010. 24 Fairbanks requested rescission of the Notice and 4rderlNatice to Vacate and far 25 the city and he to sit dawn and resolve the whale issue. 26 27 28 -~5- ADVISORY DECISIpN dF THE FIEARING EXAMINER C?N BEHALF QF THE TLxSTIN BUILDING BOARD QF APPEALS l The items that remain unresolved are the items for which a building permit is 2 required to correct. ale has plans into the city to resolve those issues and when his plans 3 are approved and permits are issued, those will be resolved. Those remaining issues 4 were not enough to red tag the units. 5 Fairbanks believed that paragraph three of the April 14, 20I l Huang letter is 6 exactly what the Planning Commission said not to do. {JX-1; Exh. G; 00436}. The ~ same is true ofparagraph 1 of I~Iuang's May 16, 2011 letter. (JX-1; Exh. K; 00456). 8 BURDEN QF PRt?4F 9 The applicable standard of proof at this hearing is preponderance of evidence. It is 10 the state of the case that one can say it is more likely than not that a particular fact which 11 is in question occurred. (See Lep~o v_. CitYof Petaluma {1971} 20 C.A. 3d'711 and 12 Armistad v. City of Los Angeles (1957) 152 C.A. 2d 319). 13 This burden of proof is borne by the city since it was the city which took the 14 action from which this appeal was taken. Thus, the city bears the burden to set forth 15 Buff dent preponderant evidence that, at the time it took the action to order the property 16 be vacated {June 16, 2011), the property was in too dangerous a condition to allow its 17 occupancy be continued. In this connection, the introductory paragraph to Section 302 0€ 1 S the Uniform Code for the Abatement of Dangerous Buildings is all-important. That 19 section states: 20 For the purpose of this Cade, any building or structure which. has any or all 21 of the conditions or defects hereinafter described shall be deemed to be a dangerous building providing that such condition or d'e. feets exist to the 22 extent that the life, health, property or safety of the public or its occupants 23 are endangered. {Emphasis added} 24 The phrase from the above section which is italicized is the key to this case. The 25 first portion of the paragraph simply states that if a condition or defect that is explained in' 26 one or more of the 18 subsections to this code are present, the building is deemed to be 27 ?g -36- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHAL ~` OF TIIE TUSTIN BUILDING BOARD OF APPEALS I 2 3 4 5 6 7I 8 9 ~a 11 12 13 I4 15 1b 17 1$ 19 20 2l , 22 23 24 25 26 27 28 dangerous. Virtually every conceivable defect is contained in the eighteen subsections to the Cade. The second phrase modifzes the first and creates a second layer to the determination of dangerous. That second layer is that to be a dangerous building, the condition or defect has to {1) be in existence and (2) has to endanger the life, health, property ar safety of the public ar its occupants. The verse is in the active tense. 1n other words, the city bears the burden to not only prove the condition ar defect was present, but'' that its existence on June 16, 2011, when it took the action in this case, was to such a serious extent as to be dangerous to the life, health, property or safety of the public or its ' occupants. That is the standard. Put another way, it is the condition of the property an June 16, 2011, which will drive this inquiry. To the same effect is Section 1001.1 of the Uniform Housing Code. Section 1001.1 uses the active tense and requires one or more of the Hated conditions in Section '' 1001.2; 1041.3; 1001.4; 1001.5; 1401.6; 1001.7; 1001.$; 1001.9; 1001. i 0; 1001;11; 1001.12; 1001.13 or 1001.14 to be in existence to an extent that endangers life, limb, health, property safety or welfare of the public or the occupants thereof. It is in that context in which this hearing examiner will analyze the evidence presented in the hearing from the parties. ANALYSIS There are two pivot points in this matter which will be explained as this analysis unfolds. For now, only the first pivot paint need be discussed. The first pivot point began with the city issuing the first Notice and Order on September 16, 2010. In the attachment to that Notice the city charged three distinct law vialatians; one building Cade' violation of building without a permit and two zoning ordinance vialatians related to the use of the two secondary dwelling units. Additionally, the city identified 29 other canditians on-site which were noticed during their cursory inspection. Those canditians were as follows: -37~ ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 2 3 4 5 G 7 8 4 10 11 12 13 14 1S 16 1'7 18 19 20 September 10-16, 20l l Notice Zonin - RI Sin le Famil /mufti Tamil Faatingslfoundatians far rear units Mech(elec/ lumbin w/o ezxnits - bathroom u er unit Zoning lot size Insuf£ set back up er unit-fire se oration Exterior wall an P/L Stairway access far fire ersonnel Furnace wio ermit the old one KitchenJcaokin facilities w/a ermits Shower in u er unit wla er~nits Stairs-handrails-rise/run-back a en - no inner acts Roof draina e Girder undersized in c ort C art attached to main house - occu ancy than e Metal conduit- unsu orted aver ca ort Metal conduit-unsu arted aver c art Na fire separation between garage and upper unit and rear unit Ex ased elec. wirin -car Rear unit encroach S ft. setback Heater with as line w/a rmit Ceilin hei is too iow Power stri -electrical Plumbin w/a ertnit-kitchen Unsecured/ex ased as line-rear unit Straw insulation ex ased Smoke detectors -inoperable 21 22 Notably, the above violations, while included by the city, were not specifically 23 used to support the Notice and Order. They were simply used as support for the three 24 specified violations in support of the notice and order. What the city did not da back in 2S Septembex, 2010 was take any action mare serious than a Notice and Qrder on those 2b twenty-nine Hated conditions. It did Hat allege the units were unsafe and it did not order 2~ them to be vacated at that time. This will became important later. 28 ~[ -3 8- I ADVISORY DECISION Off" THE HEARING EXAMINER C3N BET~AL~` OF TIME TUSTIN BUILDING BOARD OF APPEALS 1 Fairbanks appealed that Notice and Order. The Planning Commission conducted 2 hearings on this appeal. As to the building permit violation, it sat as the Building Board 3 of Appeals; as to the two zoning violations, it sat as the Planning Commission. In its 4 presentation in support of the Notice and Order, the city presented photographic evidence S of many of the 29 conditions on the property. During this time, Fairbanks began to repair 6 some of the conditions noted by the city. Conditions far which a building permit is 7 required to repair is something Fairbanks sought to obtain but which he was advised he 8 could not have while this appeal is pending, 9 During the hearing the Planning Commission discussed the effect of ruling that the 10 two units were legal non-conforming uses. In doing so, the Commission considered the 11 29 conditions and decided that the city should go through them and decide which of them 12 related to the health and safety of the occupants of the units and require only those be 13 repaired. 14 After considering all this, the Commission did decide to find the two additional 15 dwelling units to be legal non-conforming uses. This decision included to the following 16 language: 17 18 II. The Plam3ing Commission, acting in its capacity as the appeal hearing body pursuant to Tustin City Code Section 9242, hereby reverses the Notice and 19 Order at S20 Pacific Street for Zoning Code violations and deems the fallowing to be nonconforming structures and uses at S24 Pacific Street as 2~ attached hereto in Exhibit A: 21 A. The upper unit located above the garage is a nonconforming second 22 residential unit. i 23 B. The unit including two rooms and a bathroom located behind the garage 24 is a nonconforming second residential unit. ZS (JX-1, Exh. F, 40406-414} 26 27 28 -39- ADVISORY DECISION OF TI~IE HEARING EXAMINER ON BEHALF OF THE TUSTiN BUILDING 80AItD OF APPEALS 1 That decision was upheld on appeal by the mayor at the city council level. That is 2 the first pivot point, By ruling the two units were legal non~confarming uses, the 3 canditian of the units which relate to those uses were also legal non-conforming uses. 4 This is because if the canditian of the two dwelling units were not enough to overcome 5 the evidence in support of the legal non-confarzning use, it should be allowed to remain, 6 unless it is a life safety hazard. Thus, the canditian of the two dwelling units on 7 September 16, 2010 through March 15, 2011, which were sufficient enough to support 8 the decision they were legal non-conforming uses, became part of the overall use and 9 should be allowed to remain. l0 This is the first pivot point in the matter and, mare importantly, that decision 11 became the law of the case. This is an important concept in this matter. It means that as I2 the city moved forward from that paint in time, the decision made by the Planning 13 Commission needed to be respected and given its natural outcome. In other wards, 14 whatever actions the city decided to take fallowing the commission's decision, should be 1 S made through the prism of the two units being legal non-conforming uses. i 6 In Roden v. AmerisourceBergen Corp. {2007) 155 Cal. App- 4th 1548, 1576 the 17 court stated "The doctrine of the law of the case holds that where an appellate court states 18 in its opinion a principle of l.aw necessary to the decision, that principle becomes law of 19 the case and must be adhered to in all subsequent proceedings, including appeals„ 20 (Citizens for Qpen Access etc. Tide, Inc. v. Seadrift Assn. {1998) 60 Cal.App.4th 1053, 21 1064 [71 Cal. Rptr. 2d 77~}. 22 In People v. Shuey, (1975} 13 Cal. 3d 835 the court held "The doctrine of the law 23 of the case is this: That where, upon an appeal, the Supreme Court, in deciding the 24 appeal, states in its opinion a principle ar rule of law necessary to the decision, that 25 principle or rule becomes the law of the case and must be adhered to throughout its 26 subsequent progress, both in the lower court and upon subsequent appeal, and, as here 27 28 -40- ARVISORY RECISION OF THE HEARING EXAMINER ON BEHALF OIi THE TUSTIN BUILRING BOARD p~' APPEALS assumed, in any subsequent suit far the same cause of action, and this although in its 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2z 2~ 24 25 26 27 28 subsequent consideration this court may be clearly of the opinion that the former is erroneous in that particular." {1d. at 841) 1n Deacon v. Bryans, { 1931) 212 Cal. 87 the court stated "1t is generally accepted that the principles of law necessarily involved and decided by appellate courts are binding upon the lower courts in future proceedings in the same case, such as upon a new trial.lTpan alater appeal the appellate court will not inquire into the correctness of the principles of law laid down upon the former appeal, but will only consider the retard to determine if said principles have been followed. Where a decision upon appeal lzas been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal tames to this court directly ar intermediately, far reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case. if the appellant was dissatisfied with the fzrst decision of the District Court of Appeal he should have applied to this court for a hearing. [Citing authorities.] While there is a modern tendency on the part of the appellate courts throughout the country not to regard this doctrine of the law of the case as one to be adhered to in all cases, but, rather, to make exceptions where the decision is manifestly unjust, the doctrine has by na means been abandoned but is still followed as a general rule of practice and procedure." {1d at 89-90}. In K.atemis v. Westerlind, {1956) 142 Cal. App. 2d 799, 806, the court stated "The doctrine is applied to the principles of law laid down by the court on appeal as applicable to a retrial of fact. Madre v. Trott, 162 Cal. 268, 273 [ 122 P. 462],.) When a reviewing court in deciding a case states in its opinion a principle or rule of law necessary to the decision, that principle or rule, whether right or wrong, becaznes the law of that case and it must be adhered to throughout its later progress bath in the trial court and on any -41- ADVISORY DECISION OI± TIIE HEARING EXAMINER ON BEHALF OF THE TUS'rIN BUILDING BOARD OF APPEALS 1 succeeding appeal. {Allen v. California Mut. Bldg. & Loan Assn., 22 Cal.2d 474, 48.1 2 [ 139 P.2d 321 ]; Estate of Baird, 193 Cal. 225, 234 [223 P. 9741.}>' 3 What all of this means in the context of this case is that the previous decision of i 4 the Planning Commission has became the law of the case. As such, it must be respected S even if one of the parties, bath of the parties, ar this hearing examiner believes it was b wrong. Thus, that the units are legal non-conforming uses has been finally adjudicated. 7 Subsequent conduct by the city must be governed by that fact. In other wards, the city 8 has to accept the notion that the units are legal non-conforming uses and must confine the 9 requirements for repairs ar corrections with that fact in mind. Put another way, it would 10 be improper far the city to attempt a subsequent action against Fairbanks with the goal of 11 trying to achieve a result not achieved by the first action. With that in mind, let's look at 12 what subsequent action was taken by the parties. 13 Following the decision of the Planning Commission and the city council, the city 14 and the Fairbanks met to continue to work toward a resolution of the conditions an site. 1 S By that time Fairbanks had already secured the services of Fulbright to provide an 16 evaluation of the property and assist them in ameliorating the conditions. Fulbright 17 physically inspected the entire property and did so in a manner which was much mare 18 thorough than the city's cursory inspection in September, 2010. Fulbright noticed many 19 of the same issues which had been present since September, 2010, but he also noticed 20 additional items which were not included by the city in its September, 2010 Notice and 21 Qrder. Among these items were the need far GFCI outlets in the kitchen and bathroom 22 of each unit, inoperable smoke detectors, the close proximity of the exterior wall of the 23 recreation roam to the property line and the foundations for the stairway to the upper 24 units. 2S Fairbanks also hired Stavner to provide an evaluation of the property from a 26 structural standpoint. He physically inspected the property and noticed two additional 27 28 ~~ _ '42' -- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN DUIIJDING BOARD OF APPEALS 1 issues which heretofore not been noticed during the city's cursory inspection which took 2 place back an September 10, 201 Q. These two additional issues were the cracked beam 3 in the garage and the lack of footings in the foundation of the stairs which lead to the 4 entrance door to the upper unit. S The cracked beam did not appear to be recent but it was a signif cant condition in 6 that the beam in question doubled as a Haar joist providing support for the Hoar of the 7 upper unit. Tt is not known haw fang the beam had been cracked, but it is undisputed that 8 when the city conducted its cursory inspection in September, 201.0, if it was present, it 9 was not noticed by McCreary, 10 The foundation far the stairs presented the problem. of adequacy of support. The 11 pasts an which the support for the stairs rested are on concrete pedestals. These ', 12 pedestals, by all outward appearances, merely rested an the grade. In other wards, there '~ l3 was no footing for the foundation which extended below grade. The sail an which the I4 pedestals rested appeared to be substantially intact. Indeed, the area below the stairs was 1 S not an area of the lot that was used for any other purpose and was not an area traversed I6 by persons for any reason. The stairs appeared by all accounts to have been originally I7 constructed in this manner and have stood substantially undisturbed for decades. 18 At the behest of Huang, both Stavner and. Fulbright authored written reports in 19 which they described their findings. This led to Huang requesting bath men provide him 20 with an opinion as to whether the units were safe and habitable far occupancy. Huang 21 also unilaterally imposed a deadline upon Fairbanks to submit plans to remediate all the 22 conditions no later than 30 waking days from the date this requirement was imposed. 23 This requirement was articulated by Huang in a letter from hirn dated May 16, 20I 1. 24 Thus, the plans were due no later than June 28, 2011. 2S Fulbright responded to Huang's concerns saying in an email that he did not 2G observe an immediate threat to the occupants of the two units and continued habitation 27 28 -43- ADVISORY DECISION OF TIIE REARING EXAMINER ON BEHALF OF TIIE TUSTIN BUILDING BOARD OF APPEALS 1 3 4 5 6 7 8 9 1.0 11 l2 I3 14 1S 16 17 18 t9 20 21 22 23 24 25 26 27 28 was satisfactory as long as the potential hazards were remediated within a timely manner. Na one from. the city followed up with Fulbright to determine what he meant by "timely manner." Nevertheless, a reasonable inference may be drawn that he meant the Fairbanks should move with reasonable alacrity to prepare and submit the plans to remediate, respond in timely manner to inquires from the city about the plans, get them approved, obtain the required permits and complete the work without unreasonable delay. At every point in the procedural history of this matter, and indeed during his testimony at this hearing, Fairbanks has professed a profound, and at tunes, very understandable emotional, willingness to do just that. That promise has been delayed, not by Fairbanks' inaction, but by the city issuing its Notices and t)rders, placing him in a sort of "Catch- 22" position where he wants to correct the conditions, but cannot because the corrections xequire a permit which he cannot attain while his appeal of the Notice is pending. One wonders here if the conditions noted back on September 10, 2010, were truly so dangerous, {1}why did the city not move to vacate the property then andlar {2} why has the city twice foisted upon Fairbanks a Native and ©xder from which he must appeal. in order to preserve his rights and, during which he cannot repair the conditions which xequire a building permit because the city will not give him one. It seems to this hearing examiner that the city's own actions have been the substantial cause far the delay in repairs, not Fairbanks. Stovner also responded to Huang's concerns for the safety of the occupants in a letter dated May 25, 2011. In that letter, Stovner said, in pertinent part, that in his professional opinion the units were structurally safe to continue occupancy provided the cracked beam was provided with temporary sharing consisting of 4x4 timber pasts at each end of the split in the beam. Stovner took the witness stand on behalf of Fairbanks and stated, under oath, the conditions noted by him during his inspections were not life threatening. -44- ADVISORY DECISION OF THE HEARING EXAiYIINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS l All of this led to the second pivot point in this matter. That was the issuance by 2 Huang of his Notice and OrderCPre-Citation Notice/Declaration of Public Nuisance and 3 Notice to Vacate on June 16, 2011. This is the Notice from which this appeal is taken. It 4 is this Notice which proclaimed the units were so substantially unsafe that immediate S (within 4 days of the Notice) evacuation of the tenants was required. It is this notice 6 which must be supported by a preponderance of the evidence. In order to make that 7 determination, I have strongly considered what Huang knew, and did not know, on June 8 16, 2011. I have considered the actual condition of the property on June 16, 2011 and 9 whether or not, in my judgment, based on the evidence produced at the hearing, the 10 Notice was properly given at that paint in time. 11 The evidence adduced at the hearing was undisputed that the cracked beam had l2 been properly shored in compliance with Stovner's recommendation by June 16, 2011. 13 The smoke detectors had been made operable.' All of the remediation which could be l4 done by Fairbanks, without a building permit, was accomplished well in advance of June 15 l6, 2011. l6 Huang based his Notice and NoticelQrder to Vacate on many things, the first of 17 which was the cursory inspection by city staff on September 10, 2010. I will analyze that l 8 component first. By the city's own admission this was a "cursory" inspection. The 19 issuance of an Order requiring the property owner to vacate two occupied dwellings 2d should never be issued based solely on a mere cursory inspection. >3y all accounts, the 21 only time anyone froze the city actually personally observed the conditions on site was 22 when 1V1cCreary conducted his cursory inspection on September 10, 2010. No other 23 physical inspection was done by any city official from September 10, 2010 to the date on 24 which the Notice and t~rderlNotice to Vacate was issued on June 16, 2011. 25 26 ' As to this <;onditian, the hearing examiner draws on his own experience that maintaining an operable smoke detector in a tenanted occupancy, while required, is somewhat of a transitory 27 concept, given the fact that some tenants disable them on their own. 28 -45- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTiN BUILDING BOARD OF APPEALS 1 Moreover, many of the items Hated by McCreary were conditians that were 2 repeated as support far the June l ~, 2011 Notice. The problem here is when did those 3 conditions become so unsafe as to require vacating the premises as the only remedy. 4 When did they become so dangerous as to require vacating the premises. As stated 5 before, one would wander if they were such a dangerous condition then the city should 6 have ordered the premises vacated an September 11, 2010. Huang stated unequivocally 7 the units were "not safe to occupy" in his April l4, 2011 letter. (JX-l; Exh. G, 00436- 8 437). The city did Hat order they be vacated then either. That it did not do sa indicates 9 strongly that the city did not believe such a remedy was required at that time. Since that 10 is so, I do Hat find that any of the conditions that were noticed on September 10, 2010, 11 which were then just repeated as support far the June 16, 2011, Notice provides any 12 support for the current Notice. ] 3 The city, by its awn action, when faced with 29 conditions decided only to issue a 14 Native and Order with one building Cade violation and two zoning ordinance violations 15 as its basis. If the structures were unsafe far continued occupancy on .lone 16, 201 1, one 16 has to wonder why they were Hat just as unsafe based an those same conditions back on 17 September 16, 2010. That the city elected Hat to order vacating the premises back on 18 September 16, 2010, is a strong indicator that even the city did not believe, at that time, 19 that the units were so unsafe as to require that. 20 Then the question becomes does the additional information provided by Fulbright 21 and Stavner add a sufficient amount of conditians which would justify the city's action. I 22 find it does not. Neither Fulbright nor Stavner said that there was a condition an site that 23 substantially impacted the safety of the occupants of the units. Indeed, the mast serious 24 issue confronting the Fairbanks was the cracked beam in the garage. Stavner 25 recommended it be temporarily shored pending its replacement. Qbviously, replacement 26 27 28 -4&- ADViSORX DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS I requires a permit which Fairbanks cannot obtain. The temporary shoring was 2 .accomplished before Huang issued his Notice to Vacate. 3 Both Stovner and Fulbright physically inspected the premises at a time Glaser to 4 the issuance of the Notice and Order and Order to Vacate than did the city. Inasmuch as 5 these two men physically inspected the property at a time closer to issuance of the Notice, 6 their opinion is entitled to more weight than the city's opinion given the fact that the 7 city's visit consisted solely of a cursory inspection which at the time of the Notice at 8 issue here was fully nine months old. Indeed, Fairbanks provided no less than three 9 percipient witnesses with various subject matter expertise, all of whom conducted I O detailed and extensive inspections of the property close in tune to 3une l6, 2011. This, as 11 against the city's twenty minute "cursory" 'inspection, which was nine months in the past l2 and which was never updated, is entitled to greater weight. 13 Nat much significance at all was attached to the third party review conducted by l4 Fazekas. Again, unlike the witnesses brought forth by Fairbanks, Fazekas had never been l5 to the location. His review was solely based upon the photographs taken. during the l6 cursory inspection an September 10, 2010 and the reports of others. The third party 17 opinion of Fazekas is based upon material, much of which did not accurately reflect the 18 condition of the property an June l6, 20l l . l 9 The same can be said about the testimony of Healey. His testimony was likely 20 accurate in terms of the potential fire hazards created by the undersized girder, the 21 stairway and its proximity to the property line and the heaters. The problem is all the 22 conditions utilized far his opinion were in existence since September l0, 20I0 and were 23 not of sufficient gravity back then to order the units vacated. 24 All of this relates back to the first pivot paint in this matter. The Planning 25 Commission heard all this evidence of the various conditions on site back in fall of 2010 26 and not only did the city not pursue the more draconian remedy of ordering the units 27 28 -47- ADVISORY DECISION OF'~HE HEARING EXAMINER ON BEHALF OF 'THE 'I'USTIN BUILDING BOARD OF APPEALS 1 vacated, the Commission did not find the property unsafe for occupancy, bu# instead 2 found them to be a legal non-conforming use. That decision must be respected by the 3 ci#y and by me as the hearing examiner. Whether right or wrong, that decision is the law 4 of the case. Fortunately ar unfortunately, that governs this advisory decision. The S conditions which Healey used for his opinion of the fire safety aspect of these units have G not changed in a substantial way, with the exception of the garage beam, since 7 September, 2010. it was not a life safety fire hazard back then, i# is not now. 8 This leads to the discussion of the final basis upon which the Notice and 9 Order/Notice to Vacate was based. That is Huang's own observation of the conditions. a 0 Even Huang had to qualify that in the Notice itself by adding his observations were "on 11 the visible parts alone." Such a qualification had to be added because Huang never 12 actually inspec#ed the premises. The ex#ent of the qualification "on the visible parts 13 alone" was never fully explained by the city but from all the evidence adduced at the 14 hearing it is readily apparent that Huang never physically inspected the site at any time. IS He was apparently supposed to be present during what became the cursory inspection on 16 September l0, 2010, but he did not show up in the end. There is no evidence that Huang 17 ever conducted a detailed inspection of the site whatsoever. This hearing examiner finds 18 that very troubling. it is, from my point of view, completely incongruent to established 19 practices to make a finding that a property is unsafe for continued occupancy based solely 20 on a cursory inspection which lasted no more than twenty minutes and which was nine 21 months old. i do not believe Huang was so busy as #o prevent him from conducting his 22 own inspection in his capacity as the buiid.ing official prior to issuing his June 16, 2411 23 Notice to Vacate. After all, this building was not so dilapidated that a conciusian could 24 be formulated from reports and photographs alone. This determination was more ZS nuanced than most life/safety hazard decisions a building official is called upon #o make. 26 This was not a badly earthquake damaged building or fire damaged building in which the 27 28 -4$- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BQARD OF APPEALS 1 level of hazard is self-evident. This was an occupied dwelling from which its owner was 2 deriving rental proceeds. It seems to me that a mare careful analysis was required to he 3 undertaken by the very individual who made the decision to order the units vacated 4 before that decision was made. 5 Had Huang requested a physical inspection in mid June, 2010, after Fulbright and 6 Stovner told him there was no immediate threat of harm, it is hard to imagine such an 7 inspection would not have been allowed given the fact that Fairbanks had allowed $ inspections in the past. Had he actually done an inspection closer in to time to his 9 decision he could likely have discovered that the cracked garage beam had to be properly 10 shored up, the smoke detectors were operational, and the cluster of electrical wiring in 11 and around the heater had been removed. Significantly, Huang knew about the existence 12 of the cracked garage beam since his receipt of Stovner's May 4, 2011 report. He did not l3 immediately order the unit vacated at that point. It is obviously hard to say now if 14 Huang's decision would have been different. The point is, however, before the Fairbanks 15 were deprived of substantial income on two adjudicated legal non-conforming use units, l~ they deserved to have the very person responsible for coming to that decision actually 17 know the then current condition of the property before coming to that conclusion. 18 Moreover, Huang did not comply with his own unilaterally imposed deadline. if 19 part of the reason for the issuance of the Notice and Order/Notice to Vacate was because ~~ 20 Fairbanks had not timely submitted plans which addressed the proposed remediations, 21 such plans were not due until June 2$, 2011. Huang's deadline was thirty woNlcing days '. 22 from May 1 b, 2011. {JX- i ; Exh. K, 00456-457). Huang's notice was issued. thirty 23 cal~nclar days later. The plans were not due yet. It is not surprising that Fairbanks did 24 not get his plans in until July 5, 2011, inasmuch as he had to deal with the Notice and 25 Order/Notice to Vacate. 26 27 -49- 28 - ------ _ _ - --- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OE APPEALS 1 It also seems add to me that the city readily accepts the findings of Fulbright and 2 Stovner when they articulate a condition which needs to be repaired, like the stairway 3 foundations and the cracked garage beam, but it did not accept other Endings made by 4 them. As to violations noted by Fulbright and Stovner the city readily accepted them and 5 placed them. in the Notice and Order without doing an inspection of their own to confirm 6 it. Yet, the city does not accept the deter~x~ination by bath men that "continued habitation 7 is satisfactory..." {JX-1; Exh. L, 0045$) and the units "are structurally safe to continue to 8 occupy..." {JX- l ; Exh. M, 00482}. It seems to me that if the findings of bath men in 9 terms of added violations are accepted by the city, it should likewise accept the findings 1.0 that the units were safe far continued occupancy. 11 The testimony of Banawetz in this regard is credited. Banowetz testified that he 12 has red-tagged many structures over the span of his career but he has never red-tagged 13 any structure which he has not personally inspected. That is haw it should be. 14 Photographs are two dimensional; they do not tell the whale story. The reports of others 15 are also limiting in their own regard and reliance on them means one is relying upon a 16 conclusion of others which znay or may not be completely accurate when viewed on 17 one's awn. 18 The evidence related to the lade of a fire resistant separation between the two units 19 and the garage is illustrative of this problem. Undoubtedly, the existence of this 20 condition is a violation of the building Cade. Yet, by all accounts, the only reason this 21 violation exists is because Fairbanks diagnosed a rat infestation some time ago and to 22 eradicate it required removal of the drywall. This created the condition which now exists. 23 Like many violations of this sort, it leads to many unintended consequences. Nat only 24 did it remove the fire separation in removing the drywall, but it exposed the Romex 25 wiring, which in and of itself is a violation. Well, just like one problem creates two or 2b more violations, one repair will resolve many violations. All that Fairbanks needs to do 27 28 -50- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS I is replace the drywall with a suitable fire separation between the garage and the units. 2 This he is ready and willzng to do, yet, he has been stymied from doing so by the serial 3 nature of the city's Notices. When looked at in this way, the city's September 16, 2010, 4 and June 16, 2011, Notice has actually had the effect of exacerbating and prolonging this 5 problem rather than resolving it. Fairbanks has never really been given a fair chance to b make goad an his promise to make all these repairs because he has had to constantly 7 defend himself against the Notices issued by the city. 8 Analyzing each one of the twenty-nine conditions used an September 16, 2410, 9 same of which were repeated in the June l6, 201 1, Notice to determine if any one of 10 them alone would be sufficient to sustain the order and the fallowing emerges: 11 Zonin 12 This goes back to the concept of the law of the case. The Planning Commission j 13 adjudicated the two additional units were legal non-conforming uses. Accordingly, to 14 give effect to that decision, the zoning of the property is as a single family dwelling with 15 two legal non-conforming residential units an site. Any attempt to change the 16 classification to multi-family is not supported by the evidence produced at the hearing 1'T and it is also trying to achieve indirectly what could not be achieved directly through the 18 first action taken. 19 It was not last an this hearing examiner the importance of the time it has taken to 20 adjudicate this matter. The mayor argued that the evidence produced at the Planning 21 Commission hearings was insufficient to support the contention that the legal nan- 22 conforming use was in use continuously since its inception. He was overruled in that 23 regard. Right or wrong, that issue was adjudicated in favor of Fairbanks. 2~ The two residential units were ordered vacated by the city effective June 20, 2011. 2S A legal non-conforming use that is discontinued far six months or mare loses its legal 26 non-conforming use status. That six month period will run on December 20, 2011. Such. 27 28 -S i- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF 'rHE TUSTIN BUILDING BOARD OF APPEALS l a consequence would be improper to invoke here inasmuch as the cessation of the use 2 was involuntary imposed on Fairbanks. It is not believed that was the sort of situation the 3 city intended to set up, however, a reviewer of this matter in the future should know how 4 the hearing examiner feels about that issue. 5 Since the two residential units are adjudicated legal non-conforming uses, they 6 may remain in the current condition so fang as they are not substantially modified. By 7 the same token, while they remain in their current condition, it would be improper for the 8 city to require they be brought up to all current code requirements. Requiring the 9 Fairbanks to retroactively install items such as automatic fire sprinklers is going too far. 10 Such was not required when these units were built and requiring that now is not 11 respecting the law of the case. 12 Having said that, there is an unspoken irony in this case. As stated before, this 13 whole matter began its long odyssey with the request of Fairbanks far a burn dawn letter. 14 Well, assuming Fairbanks prevails an this appeal, the city would be within its right to 15 refuse to issue such a letter if its premise is that should the units burn down, they maybe I6 rebuilt. The reason for that is should the units be damaged for any reason in excess of ~ 17 SO°lo that would terminate the legal non-conforming use. Accordingly, if the units were 18 to be substantially damaged by fire or other calamity, they would not be allowed to be 19 rebuilt. About the mast the city would be able to confirm. in such a letter is that the two 20 residential units are adjudicated as legal nan-conforming uses. 21 Rear Unit Foundations 22 The city did not put on any evidence in support of any particularized problem with 23 the footings or foundations far the rear unit. Banawetz said he inspected them and that 24 they were present and intact. It is not at all clear the extent of his inspection and the basis 25 for that conclusion, but either which way, the evidence is insufficient to support any 26 violation related to the rear unit footings and/or foundations. 27 2$ -52- ADVISORY DECISION OF THE HEARING TXAI~IINER ON BEHALF OF TIIE TUSTIN BUILDING BOARD OF AI'I'EALS 1 MechanicaUElectricaUPiurnbing/Piurnbin~ Without Permits/Bathraarn Upper Unit 2 The city in its presentation discounted plumbing issues in the upper unit. Other 3 than a general claim that they were built without permits, which was rejected by the legal 4 non-canfarxning Ending of the Planning Commission, no specific violation was proven. I 5 will say the shower in the upper unit looks a bit odd inasmuch as it extrudes from the 6 exterior wall, but it was never fully proven that it constitutes a violation. The only 7 electrical issue identified with any clarity was the lack of GFCI outlets in the bathroom. 8 GFCI outlets only recently became a requirement. Banowetz said the electrical wiring in 9 the bathrooms was safe. While the GFCI outlets would not be a required retrofit item, 10 Fairbanks is willing to change them out as soon as he is issued a permit allowing him to l l do sa. & 12 Zoning Lat Size 13 I will not analyze this issue for two reasons: (1 } it was not used as a support item 14 for the June 16, 2011, Notice and (2} this issue was resolved by the deci.sian ofthe I5 Planning Commission. lb Insufficient Set Back Upper Unit -Fire Separation; 1 `7 Part of this condition was resolved along with the Planning Camn~ission's 18 decision. In holding the upper unit was a legal non-conforming use, the physical 19 structures associated with that use, which was present at the time of construction, also 20 enjoys anon-conforming use status, unless damaged ar changes are made. Again, right 21 or wrong, that decision must be respected. The stairway, the landing and its support 22 23 s This leads me to the discussion of the applicability of the State Historic Building Code. Part of the appellant's case was the applicability of the State Historic Building Code. l have decided to 24 decline the invitation to analyze the applicability of this code. The reason for that is the only witness Fairbanks called who supported the applicability of the State Historic Building Cade was 2S Menard. No other witness supported that notion. Fulbright used the current building code to propose his suggested corrections. So did Stovner. Even .Fairbanks himself said that he did not 26 care which code was used, he simply wanted to conclude this matter, make the necessary repairs to those items required to make it safe and sell his home. Thus, l da not reach the applicability o 27 the Historic Code. 28 -53- ADVISORX DECISION OF TIIE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS ]. system, appears to be one integrated system of construction which has been there since 2 the upper unit was constructed. Therefore, the stairway system is part of the legal non- 3 conforming use. 4 The part of the stairway structure that appears to have been added later is the 5 enclosure of the stairway landing. 1 noticed immediately the oddity of the stairway 6 landing enclosure when I saw that the entrance door opens not onto a platform, but on to 7 a step. I found that unusual. When it was modified in this way is not known, but it is 8 quite clear to me that the stairway as originally constructed had an open landing. 9 Banowetz acknowledged this as a real probability given the changes in the slope of the 10 roof 1rne adjacent to the enclosure. Nevertheless, this violation alone, or in concert with 11 others, is insufficient to order the unit vacated. After all, it was noticed by the city in 12 September, 201Q, and the unit was not ordered vacated back then. 13 Exterior Wail on Property Line 14 This condition is simply another way to describe the condition analyzed above. 15 That analysis will not be repeated here. 16 Stairway Access for Fire Personnel I7 For the same reason as stated directly above, the analysis of this condition is the 18 same as what has already been said. I9 Furnace 'Without Permit (the aid one} 20 The furnace in the upper unit was manufactured decades ago. As a part of the 2 X interior structure of a legal non-conforming use, it shares that status. Ta the extent this 22 furnace appears to have been installed at the same time as the construction of the unit, it 23 cannot be said it was installed without a permit. That is especially true since the permits 24 prior to 1959 were authorized for destruction. 25 Nevertheless, the unit does have a certain appearance which does not engender 26 conFidence in its safety. l-lflwever, based on the evidence, the gravamen of the violation 27 2$ -54- ADVISORY DECISION OT{ THE HEARING EXAMINER ON BET~TALF OP' THE TUSTTN BUILDING BOARD OF APPEALS 1 noted by the city was the proximity of combustible material and a cluster of electrical 2 wiring too close to the unit. The condition was present on September 10, 2010 and the 3 city did not order the unit vacated. By June 1 ~, 2011, the combustible materials and 4 electrical wiring had been removed, thereby eliminating that concern. The only thing left S then which could support a violation was the installation itself. Banowetz testif ed he 6 found the installation instructions and clearance requirements and the unit was installed 7 properly. This, as against the city's cursory inspection, has to be given more weight, 8 This condition, alone ar in concert with others, is also insufficient to support the Notice 9 to Vacate. 10 KitchenlCookin~ Facilities Without Permits 11 The analysis of this condition tracks much the same as what has been said about I2 the stairway and the furnace. The kitchen facilities do not appear to be new. The 13 facilities appear to source from the original construction. So, the decision of the Planning 14 Commission also runs to the interior components which are original. In light of the 1959 1 S building permit destruction authorization, it is hard to say the kitchen facilities were 1 G installed without a permit. t~.dd to this that Huang discounted in his testimony any real 17 issue related to the plumbing and this violation was not only not proven, it would not be 18 enough, alone or in concert with others, to support the Notice to Vacate. 19 Shower in the Upper Unit Without Permits 24 This discussion was already made in the section dealing with plumbing without 2 ] permits above. 22 Stairs -Handrails -Rise/Run-Back Open. 23 This discussion tracks with the points already made as it relates to the stairs. That 24 the stairs appear to me to have been constructed along with the upper unit, it enjoys the ', 2S same non-conforming status. Any discussion of whether the 1927 or 1940 code required. 2G rails, closed backs, or a particular rise and. run, misses the point. The law of the case is 27 28 -~ 5- ADVISORY DECISION OF THE FEARING EXAMINER ON BEHALF OI± TAE TUSTIN BUILDING BOARD OF APPEALS 1 the upper unit is a legal non-conforming use. The entire structure enjoys that status if the 2 structure, including the stairs, has not been substantially modified. To his credit, 3 Fairbanks has proposed to install the guards and rails and step backs even if technically 4 not required. Yet, he cannot do so because the city refuses him a permit. This condition, 5 alone or in concert with others, do not support the Notice to Vacate. 6 Roof Drainage 7 This condition was only cited in the September 1 b, 2010, notice and was not 8 repeated in the .lone I6, 2011 notice. if it was not strong enough to support a Notice to 9 Vacate in September; 2010, and was not repeated in June, 2011, it does not deserve 10 comment herein. 11 Carport Girder Undersized 12 The condition was not only graven by the city, but admitted to by Fairbanks and 13 laic subject matter professionals. That being said, it does not appear to be in imminent 14 danger of collapse and it does not appear to be under stress. It is a static, technical 15 violation. In that way, it is not sufficient support, alone or in concert with others, far the ' tG Notice to Vacate. 1'7 Carport Attached to Main House -- (Jccupancy Change 18 The law of the case in this matter is that the two units on site are legal nan- 19 conforming uses. Claiming the connection of the carport to the main house somehow 20 turns this property into amulti-family occupancy is not supported by the evidence and 21 vioiates the law of the case. 22 Metal Condctit - Unsupported 23 The condition was graven and admitted to by Fairbanks. However, the condition 24 was rectified by additional bracing prior to June I6, 201 I. Thus, the condition was not 25 enough to order the property vacated in September, 20I0, and was not present on June 26 1 ~i, 20I I. It cannot provide any support far the Notice to Vacate. 27 28 _____ _ __ -56- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 NQ Fire Separation Between Garage and Units 2 This condition was proven and admitted to by Fairbanks. It was present in 3 September, 2010 and the city did nit order units vacated at that time. Nothing has 4 changed between September, 2010 and June, 2011. The evidence supports the notion than 5 a fixe separation was present until the eradication of a rat infestation led to its remival. b The nature of the violation here is static. It is not an imminent danger. if it did nit 7 support an Order to Vacate in September, 2010, it does not support such an order aline ar 8 in concert with others an June 16, 2011. 9 Ex osed Electrical Wiring -Garage 10 This condition only became an issue because of the removal of the previously 11 installed fire separation in the garage. The same things explained above apply here as 12 well. Once the fire separation is allowed to be re-installed, this issue will evaporate. As 13 said before, the reason this and other issues continue to remain a concern is mare 14 appropriately placed at the feet of the city, not Fairbanks, since the city continues to cite 15 him in a serial fashion rather than issuing him a permit to make the repairs he has stated a 16 willingness to correct. This condition is nit of such gravity ti support the Notice to 17 Vacate. 18 Rear Unit Encroaches of 5 Foot Setback 19 The city did nit produce much evidence of this condition. Even if proven, the law 20 of the case is the rear unit is an adjudicated legal non-confirming use. if its construction 21 truly violated the setback requirement, such status would presumably have nit been 22 granted. It was granted. Itrs the law of the case. It is, therefore, not a violatiin. 23 Heater with Gas Line Without Permit 24 This condition relates to the heating unit in the rear unit. That unit is of newer 25 manufacture. It was admittedly installed without a permit. Banowetz reviewed the 26 installation in a much more detailed fashion than did the city and concluded that, while it 27 28 ~~ __ _ _ -57- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALIi OI• THE TUSTIN BUILDING BOARD OF APPEALS 1 was installed without a permit, it was installed properly and in a manner consistent with ~ the manufacturer's instructions. It is not that substantial a modif cation which destroys 3 the legal non-conforming status of the unit. Given Banowetz's investigation, the ~ violation is a more technical one, rather than a life and safety violation. Moreover, it was S present in September, 2010 and the city did not order the unit vacated. Nothing changed G between then and June, 201 i . The condition does not support the issuance of the Notice 7 to Vacate. 8 Ceiling Height Too Low 9 This condition was not repeated in the June Ib, 2011 Notice to Vacate. Therefore, 10 if the city did not include it in its reason to order the unit vacated, it need not be discussed 11 herein. 12 Power Strip -Electrical 13 This condition has already been described in some detail. it is related to the 14 installation of the power strip and numerous electrical wiring in proximity to the alder 15 furnace. That condition was present in September, 2010 and the city did not order the lb unit be vacated. That is suggestive of the notion that it was not seen sa dangerous as to 17 compel that result. By June 16, 2011, that condition has been resolved. The wiring was 18 installed by the tenant and was removed by Fairbanks before the June 16, 2011 notice. 19 The city did not refute the evidence that the condition was corrected by June 16, 201 l . 20 The reason far that is probably related to the fact that they did not do their own inspection 21 before issuing the Notice to Vacate., That the condition was corrected before the June 16, 22 2011, it could not provide any support for the order. 23 Plumbing Without Permit -- I~aitchen 24 This issue has been addressed above. it, too, does not support the Notice to 25 Vacate. 2& 2~ 2s -58-- ADVISORY DECISION OF THE IIEARING EXAMINER ON BEIIALF OF THE TUSTIN BUILDING BOARD OF AI'I'EALS l UnsecuredtExpased Gas Line 2 The analysis of this condition tracks with the discussion of the power strip above. 3 It was present in September, 2410, and the city did not order the unit vacated. It was 4 corrected before June 16, 2011. This condition was corrected and provides no support far 5 the Notice to Vacate. 6 Canop~y Posts 7 Whatever dry rot was present in the post or multiple pasts supporting the canopy 8 of the recreation roam, it was an insufficient amount to rise above the level of simple 9 maintenance. i0 Straw Insulation 11 The issue of the straw insulation was never really fully developed by the city. A ~ 12 sample was not taken and na testing was performed. The extent of the exposure was not 13 described. 4n the other hand, Banawetz said he tested it, it was not unsafe and that type 14 of insulation was used at the time of construction. This evidence was not disputed by the 15 city. Moreover, Fairbanks testified the exposure was momentary and it was later covered 16 up. The bottom line is that the evidence is insufficient to sustain this condition is a 17 violation of any code requirement. 18 Smoke Detectors 19 Smoke detector violations are transitory. They were inoperable an September 10, 20 2010. The city did not order the units vacated because of that an September 16, 2010. 21 Thus, it apparently was not considered that unsafe at that time. Fulbright Hated this 22 condition when he inspected. The condition was corrected before June 16, 2011. The 23 city could not dispute that information. The city included this condition in the June 16, 24 2011 notice without any information an which it could base such an allegation. 25 Inasmuch as the city did not inspect the property before ordering it to be vacated, the city 26 had absolutely no information about whether the smoke detectors were working an June 27 28 -59- ADVISORY DECISION OF THE HEARING EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 16, 2011. That the city included this is an allegation without any factual support is 2 troubling to this hearing examiner. There is no support in the evidence that the smoke 3 detectors were inoperative on June 1 &, 2011. 4 FINDINGS AND 32EC(}MMENDATIONS S Based on all of the foregoing, it is my recommendation that the Building Board of 6 Appeals uphold the June 16, 203.1, Notice and Order, but only as it relates to the 7 fallowing violations: 8 9 1. UCADB Section 302 Item 5 and UHC Section 1001.3. Beam supporting 10 second story dwelling unit is cracked and therefore jeopardizing supporting 11 system of second story. CBC Section 3405.3 requires damaged gravity 12 Load-carrying components to be repaired or replaced. Mr. Eric Stavner's 13 letters dated May 4 and 25, 2011 stated he observed and Hated this 14 violation. 1 S 2. UCADB Section 302 item 3 and UHC Section 1001.3. Carport structural 16 members are not of adequate size to support roof loads and not designed in i 7 accordance with GBC Section 1604. l and if loaded could collapse. Mr. Eric. 1$ Stovner's letter dated May 4, 2011, stated he observed and noted this 19 violation. 20 4. UCADB Section 302 Item 2 and UHC Section 1001.12. Stairway 21 intermediate guards and risers are not provided and thus a fall hazard exists. 22 Further, this condition is not in compliance with CBC Section 1013. Mr. 23 Paul Fulbright's letter dated April 21, 2011(Item 2f} stated he observed and 24 noted this violation. 25 26 9 Note that the numbering used in this recommendation is the same numbering of violations used 2`7 as support for the June 16, 2031 Notice and UrdertNotice to vacate (JX-1; Exh. N, 00467-469). 28 -60- ADVISORY DECISION OF THE FEARING EXAMINER ON BEHALT OI+ TIIE TUSTIN BUILDING BOARD OF APPEALS 1 I further recommend the following violations noted in the June 16, 2011, Notice 2 and Qrder be upheld based on the evidence presented but be modified as explained 3 below: 4 3. UCADB Section 302 item 8 and UHC Sectian 1001.3. Foundation 5 supporting stairway to second story dwelling unit is not adequate and 6 causes tl~e exit door from the upper dwelling unit to became inoperative 7 and creates a hazard in case of fire or panic. Mr. Eric Stovner's letter dated'. 8 May 4, 2011 stated he observed and noted this violation. 9 While I am recommending the above violation be upheld, based on the evidence 10 presented, I am not recommending it be upheld on the portion dealing with the exit door 11 froze the upper dwelling unit becoming inoperative. There was no evidence of such a 12 condition being present. In all other respects, this violation should be upheld. 13 14 6. UCADB Sectian 302 Item I4 and UHC Section 1001.13. Fire resistive ` 1 S walls between the units and adjacent garage are not provided. Fire resistive 16 walls and. window protection adjacent to the property line an the second 17 story are not provided. Fire in an adjacent unit, garage ar adjacent building 18 could spread quickly and therefore overcome occupants. Fire resistive 19 assemblies are required far the above mentioned locations in CBC Sections 20 705, 707, and 709. In addition, there are several electrical installations that 21 pose a danger (unprotected and non-attached. Ramex wiring, non-C~FCI 22 outlets in the bathrooms and kitchens, heating installations, etc.) and there 23 are na smoke detectors or alarms in the sleeping areas. Mr. Paui 24 Fulbright's letter dated Apri121, 201 l{Items 2a and 4a} stated he observed 2S and noted these violations. 26 27' 28 -61- ADVISORY DECISION OF THE HEAI2I111G EXAMINER ON BEHALF OF THE TUSTIN BUILDING BOARD OF APPEALS 1 While I am recommending the above violation be upheld, based on the evidence 2 presented, I am not recommending it be upheld on the inoperative smoke detector 3 portion. In all other respects, the evidence supported this violation. 4 14. UHC Section 1001.7. Gas heater attached to woad siding and gas line in 5 the rear dwelling unit poses a potential fzre hazard due to its proximity to 6 combustible material, Mr. Paul Fulbright's letter dated Apri121, 2011 7 {Item. 5b) stated he observed and Hated this violation. S While I am recommending the above violation be upheld, based on the evidence 9 presented, I am Hat making this recommendation based an the gas line in the rear 10 dwelling unit. This recommendation is only made based an the fact that the heater was 11 installed without a permit. 12 In all other respects, it is my recam~nendation that the Native and Order be 13 rescinded inasmuch as the evidence was insufficient to sustain the existence of any one o9 14 the other conditions used as support far the Notice were present on rune 16, 2011. I S It is further recommended that the Building Board of Appeals Hat uphold that 16 portion of the Notice and order which required the two residential units be vacated. For 17 all the foregoing reasons, the evidence did Hat support a f nding that the two residential 1$ units were in such a dangerous condition an June 1 b, 2011 that an order to immediately 19 vacate the two units was proper. 20 This hearing examiner will retain jurisdiction an the matter only insofar as it 21 relates to any assistance he may be called upon to provide to the Building Board of 22 Appeals review of this advisory decision andlar any assistance he may be called upon to 23 provide to the parties to resolve this matter once and for all_ The hearing examiner has 24 confined this advisory decision to the contents of the Notice and Order(Notice to Vacate. 25 It is beyond the jurisdiction of this hearing examiner to suggest in this advisory decision 26 27 28 -62- DECISION QF THE HEARING EXAMINER ON BEHALI+ OF TIIE TUSTI~'V BUILDING BOARD 4F APPEALS 2 3 4 5 6 7 9 IO It 12 l3 1~ 15 16 17 18 14 20 21 22 23 24 25 26 27 28 THE TCJST7N BUILDING BOARD Q~' APPEA,I.S ATTACHMENT 5 EVIDENCE CONSIDERED AND THE ENTIRE RECORD OF PROCEEDINGS DUE TO THE VOLUMINOUS NATURE OF EXHIBIT 5, THE EXHIBIT HAS BEEN PROVIDED ON DISC AND IS VIEWABLE AT THE COMMUNITY DEVELOPMENT DEPARTMENT, OR COPIES MAY BE MADE AVAILABLE UPON REQUEST.