HomeMy WebLinkAboutRES NO 4188RESOLUTION 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 or 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;
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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 an 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 following that ruling, the property owners met with city officials an 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;
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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 Dangerous 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.
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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 adapts 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
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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.
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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.
f. 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 how
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 (2010 California Building) code.
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
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Page 7
extent those previous plans adequately address the issues stated herein in
the opinion of City staff and 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 'sn 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
acceptable to the City, to the exposed wood members of the stairway to the
upper unit.
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M. The parties agreed that the upper unit would nat 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.
°`"
~~
Y. Henry Huang, P.E., C.B.O.
Board of Appeals Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
Chuck Puckett
Chairperson Pro Tem
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