Loading...
HomeMy WebLinkAbout01 Special Meeting Minutes Building Board of Appeals 1-14-14ITEM # 1 MINUTES SPECIAL MEETING TUSTIN BUILDING BOARD OF APPEALS JANUARY 14, 2014 5:59 p.m. CALL TO ORDER: ROLL CALL: Present: Board Members Altowaiji, Kozak, Lumbard, Smith, Thompson Staff Present Elizabeth A. Binsack, Director of Community Development Lois Bobak, Assistant City Attorney Scott Fazekas, Building Official, Secretary to the Board Dana L. Ogdon, Assistant Director of Community Development Justina Willkom, Assistant Director of Community Development Dennis McCreary, Deputy Building Official Amy Stonich, Senior Planner Edmelynne Hutter, Senior Planner Adrienne DiLeva- Johnson, Senior Management Assistant Vera Tiscareno, Executive Secretary None PUBLIC CONCERNS Approved CONSENT CALENDAR: 1. APPROVAL OF MINUTES — November 12, 2013 BUILDING BOARD OF APPEALS RECOMMENDATION: That the Board approve the minutes of the November 12, 2013 meeting provided. Motion: It was moved by Thompson, seconded by Lumbard to approve the Consent Calendar. Motion carried 5 -0 "11:0 1t•Ce� APPEAL OF SCHOOL FEE CALCULATION —THE IRVINE COMPANY On October 22, 2013, the Tustin Building Official forwarded correspondence to The Irvine Company with a determination concerning the City of Tustin's interpretation of Government Code Section 65995(b)(1). Specifically in question is the interpretation of the term "Assessable Space" and the Building Division's standard practice in calculating a building's square footage for the purpose of determining required school fees. A comparison of the disputed fee calculation will be provided. On November 21, 2013, The Irvine Company filed an appeal of this determination. Minutes — Building Board of Appeals January 14, 2014 — Page 1 RECOMMENDATION: Adopt Resolution No. 4243, affirming the Tustin Building Official's determination regarding the calculation of required school fees for the Legacy Villas project at 16000 Legacy Road (Government Code Section 65995(b)(1)). Presentation: Dana Ogdon, Assistant Director of Community Development Ogdon Presentation was given. Fazekas Clarified definition of "Condition Space" — the commentary language in the initial letter was "condition space or integral space to the building within the perimeter ". Bobak She expanded on legislative history — when this statutory scheme was first enacted, residential properties were treated like commercial and industrial properties. The concept of what portion of the properties fees would be applied to was defined by covered and enclosed spaces. That language has remained the same for commercial and industrial uses. However, it has changed over time for residential use. The first change was from covered and enclosed space to habitable space. The more recent change was from habitable to assessable space. The legislature intended to maintain the distinction between residential properties and commercial /industrial properties and that building departments not base school fees on habitability because if they wanted to use habitability they would not have changed it to assessable space. Kozak Asked if there have been any case laws or determinations that would help with consideration between the definitions. Bobak The Irvine Company (TIC) provided an analysis to the City on what TIC thought was TIC's interpretation of the statute. To date, TIC and the TUSD have not provided any case laws. Summarized several legal issues: basic issue is "statutory interpretation "; the Building Official has made a determination based on past practices of the City that the interior corridors and interior storage units in the apartment buildings do not fall within the exceptions for the calculations of assessable space in the Government Code. The Board's decision is to decide whether or not the Building Official's determination is correct or whether or not the Building Official's determination should be set aside in full or in part. The Board's decision will establish precedent on how the Building Official interprets and applies these regulations going forward. The determination of assessable space is a two -step process: 1) determine what the perimeter structure is - look at the Building Code definition of floor area, building space to get the basics 2) apply the exception in the Government Code. Asked the Board to determine if interior walkways, such as hallway or corridors, is a functional equivalent of a walkway and if a storage unit is similar to the other exceptions in the Government Code. Advised the Board to look at the language in the Building Code and the context it is used. A balcony is like an outdoor patio; similar to or not similar to assessable space. Minutes — Building Board of Appeals January 14, 2014 — Page 2 Binsack Director summarized the City's standard practice. The City has used this standard practice for other projects and the Board's action will set a precedent for future projects that could possibly be extrapolated out to other developments. If one were to assume the area as walkways (identified in exhibits by appellant), hallways could then be considered not assessable in single family residence. Closets that are interior that are accessible to the walkways could no longer be assessable. The City would prefer it if Tustin Unified School District (TUSD) rather than the City determined the assessable space since they are benefitting from the fees but this is not how fees are determined. The City has this responsibility. The City feels they have provided the most objective way of making this determination. Requested the Board affirm the Building Official's decision and adopt the resolution. Recommend the Board ask City staff for any clarification. Noted that all the Board members had questions of staff and those questions have been incorporated in broader points in the presentation. Smith Asked if the determination made by the Board, is retroactively applicable. Asked if there is a statute of limitations on prior assessable space determinations and what recent project this assessable space determination was made. Bobak Repeated that there is a statute of limitations on prior determinations. To challenge the assessment, the fee would have to be paid under protest. Binsack In response to Smith's question, Coventry Court (Senior Project at Columbus Square) and Heritage Place at Sycamore and Newport (Senior Affordable Housing Project) were similar projects. Thompson Questioned the Government Code and the word "Assessable Space" ( "building area, gross building area "). "Open to the sky' which could also mean "conditioned space ". Historically, "habitable" was used. Asked if a building eave was included in the building area in the Building Code. Questions regarding Exhibit D — Chapter 10 and the difference in terms of definitions between the Building Code and the Government Code. 1) Conditioned space questions: does this mean air conditioned? 2) What is State's intent when they exempt out in the areas in Government code? 3) Storage — storage in a closet vs. storage in a garage — would I perceive storage in a closet is not exempt because it falls within the perimeters of the building — if storage is in the garage it is exempted out. Page 3 of the staff report — walkway as providing a connection between two buildings, but the Government code refers to the walkway inside the building. What is a walkway? Thanked staff for meeting with him. Disclosed that he spoke with Lois Bobak earlier in the day and met with Justina Wilikom on Thursday. Noted he met with representatives Paul Hernandez and Bryan Austin from TIC. Bobak Explained the definition of assessable space is in Section 65995 subsection 131 of the Government Code defined as "all of the square footage within the perimeter of a residential structure not including: carport, walkway, garage, overhang, patio, enclosed patio, etc. To determine the structural perimeter, the Building Official looks Minutes — Building Board of Appeals January 14, 2014 — Page 3 to the structure of the building and the Building Code. Once we have the structural perimeter the City applies the exceptions in the definition of assessable space. The key term the Board needs to be familiar with is "assessable space ". That definition includes the exceptions listed in the Government Code. To determine what assessable space is, the Board needs to determine what the perimeter of the residential structure is ( "footprint "). Before the Board applies any of the exceptions, the terms "assessable space ", "building footprint" and "floor area" are fairly synonymous. Once the exceptions are applied, they are different things. "Once you have the perimeter, then you apply the exceptions ". Referred to the TUSD attorney regarding school impact fees. Discussion ensued referencing differences between habitability and assessable space. Referred to exclusions under commercial and industrial buildings. There is exclusion for storage. Fazekas Comments to Commission's questions generally included: Eaves — are not included in the building area. Provided explanation of the differences between the Building Code definition and the Government Code definition. Noted that if cantilevered elements are beyond exterior walls then they would not be included in the calculation. Conditioned spaces are heating or cooling, human comfort, conditioned floor area and areas within the perimeter of the exterior walls roofed over. The exclusions in the Government Code do not contain exclusions for storage. There is no code intent for storage to be in a garage. Bridging walkways, overhangs, patio are not intended as part of the building, pedestrian walkway (there is compatibility with the language in the Building Code and Government Code). Altowaiji If you have a multistory building and a cantilever — livable area projected 3 feet to the outside. The second floor would it not then be assessed? Mentioned that he met with Bryan Austin and TIC and discussed several items. Kozak Noted that the walkway is critical issue in decision making tonight. Referenced the design Villa Apartments had access from the exterior to a corridor, that walkway would not be a question at all as assessable space. It would be logical to apply that same standard to the walkway as defined in the exceptions list. AB 1600 and Nexus was questioned. The impact fee and what the intended outcome or purpose of that would be to accommodate student enrollment. Asked if it had been considered in the analysis. His concern was not the amount but the area subjected one way or another to the impact fee as assessable space. It creates the basis for the assessable fee and there needs to be an individualized determination that the fee is related both in nature, and extend to the impact which would be enrollment of students which is directly related to livable /habitable spaces, not walkways and not storage units. He noted the importance and need for clarification. Bobak Generally, it is the school district that prepares the "student needs assessment" determining what the fees are going to be, which is a separate legislative action Minutes — Building Board of Appeals January 14, 2014 — Page 4 taken by a separate legislative body and is not an issue in this case whether there is a proper Nexus with the amount of the fee. Just to clarify, the Board's role is to determine the assessable space, not to determine whether or not the amount of the fees are fair. Deferred the AB 1600 issue further to the TUSD representative. In terms of habitability, legislation does not want the Board to base their decision on whether or not a walkway or storage unit is part of the habitable space. Habitability is not the issue. The issue is whether or not the space is located within the structural perimeter of the building and if the Board determines it is within the structural perimeter of the building, then they fall within one of the exceptions. Whether or not somebody can live in it or use it as habitable space is irrelevant for the purposes of determining assessable space. Thompson Questioned what the intent was behind this and Nexus. Asked what the Legislature was trying to do. PUBLIC HEARING Austin Bryan Austin, appellant, representing TIC, provided a Power Point presentation and background experience with fees paid and habitable space with TUSD. TIC does not disagree that the Building Official has the right to determine how to calculate the perimeter of the building, but what they do not agree with is the City does not have the discretion to apply which areas are included for purposes of calculating the fees. Believes walkways and covered walkways are not livable areas. The key term is; Living area. TIC believes this is a change in policy. Referred to a letter to Elizabeth Binsack in that it is not anticipated many students will live in that apartment building. The non - living area does not impact the fees. He feels there is no need for a mitigation fee to be paid. Stated walkways are within the perimeter of the building therefore they should be excluded from the impact fee. TIC provided weather protection and security by having covered walkways for the benefit of the residents. The reason TIC appealed the item is due to the non - living areas being excluded. Noted they are not trying to reduce their fair share obligation. Asked the City to overturn the Building Official's determination. Thompson He mentioned the staff report referring to "walkway interior corridor" to what TIC calls "walkway interior to the building" and what the difference is. Asked for clarification referencing the distinction of "storage area" to "similar area ". Austin Stated that functionally, it is a walkway whether it has sides or a roof on a walkway and that it is not interior to the living space. It is within the perimeter of the building. The garage is a "similar area" because it is not livable. Altowaiji Questions /Comments /Concerns generally included: Mentioned his meeting with TIC and their definition of "Commercial" (garage, parking structure and enclosed walkway, which was not excluded); enclosed walkway would then be assessable whether commercial or residential; patios and enclosed patios; Government Code did not state walkway and enclosed walkway; walkways opened in space are excluded then (his interpretation); and garage areas. He noted that TIC's presentation encompassed the discussions in his meeting with them. Yeager John Yeager, TIC attorney, re- emphasized what Bobak stated about the residential perimeter and statute. Asked that the Board determine the area walkway within the Minutes — Building Board of Appeals January 14, 2014 — Page 5 perimeter of a structure. Austin Answered Altowaiji's question regarding legislation and Building Code and differentiated between commercial and residential fees paid. Smith Asked for clarification on corridors /walkways being open at each end. Also asked if it was a similar floor plan to Orchard Hills. Austin Responded yes, they are open to the air. The floor plan is not similar to the Orchard Hills project. Bobak Informed the Board of the time: 7:25 p.m. Kozak Advised the Board to allow staff, TIC and TUSD to complete presentation, and then continue the meeting until after the Planning Commission meeting. For the record, disclosed that he accepted a telephone call and had a conversation with Bryan Austin, Paul Hernandez and Dan Miller of TIC. Soria Representative of TUSD stated he was not aware there was discussion prior to the meeting. Asked the Board what the normal process was when requesting to communicate with the parties involved at the meeting. Noted he was not aware he could speak to the Board in advance of the meeting. If he had been aware of that information and questions had been provided about student generation rates, he could have been prepared to respond. His comments /concerns generally included: enrollment and Nexus for developer and student fees; storage area; then he invited TUSD attorney to speak. Kozak In response to Soria's question regarding process for meetings, invitations or meeting requests are handled through staff then it is determined by the individual Board member. The decisions by the Board are based on information gathered and presented in the public hearing and no decisions are made prior to the public hearing. Wendy Whiles Informed the Board of the Nexus issue in relation to the project. Asked what happens with regard to a school district's ability to be able to levy fees on new residential development. The school district does an analysis to determine what types of impacts there are on school facilities. The school then looks at what capabilities it has to be able to accommodate students anticipated to occur from new development. It is looking at the "type" of residential development for these students. The categories: single - family detached /attached units; multi - family units and apartment units. The requirements are to look at a "type of dwelling unit" and determine whether or not the school district is anticipated to have new students from those new developments which then it would have to provide facilities for. When trying to look at the Nexus argument between whether we have a storage area or a Nexus argument between whether or not there is a walkway, it is not what the analysis is under Nexus. She noted these are two (2) different concepts: Nexus argument relates to whether or not there will be students generated from a particular type of development. Then you want to look at what is inside the residential and the levy fees. The Government Code at issue here is related to - levying fees and assessable space. She suggested living areas does not exist within this statute. Minutes — Building Board of Appeals January 14, 2014 — Page 6 TIC is attempting to change the definition that exists under Section 65995 so rather than using what the Legislation identified as assessable space, the Board should direct the Building Department instead to use livable or habitable areas. Per the City's legal counsel determination of habitable areas has already been disregarded by legislature since it does not use habitable areas. The Legislature has similarly not said based upon the living area. If the legislature had wanted building officials to only levy fees based on livable area it would be very easy to do and would make the statute much simpler. If the legislature had said in the case of residential construction the fee would be based on livable areas. The legislature is not intended to be limited to livable or habitable areas. Should that decision be that maybe the Board or TIC is thinking that livable areas is a more appropriate designation for these fees then that is the decision the legislature makes. It is not the decision of the Building Department or the Board. It is the decision of the legislature. Any decision to try and change the definition from assessable space to livable or habitable area is something that must be taken up with the legislature. When we try and say that that's really what the legislature was intending, she would suggest that there is no case authority to suggest that Section 65995 meant livable areas. What was the intention of livable space in the legislature then? Assessable space for this purpose (levying fees), is in the perimeter of residential structure, not including: carport, walkway, garage, overhang, patio, enclosed patio, detached accessory structure, or similar area. One common way of defining this would be that those exclusions are things that would otherwise be things inside the perimeter. She would say that is possible but does not think that it is necessarily what the legislature meant because of "detached accessory structure" that is within the perimeter of a residential structure. That cannot occur. And so you cannot have a detached accessory structure within the perimeter of a residential structure, then there must be some other intention that must be going on when we have these exclusions. What she believes is more reasonable, in looking at the statute, is that what they're talking about are other components of a residential structure. Component such as (not going to include a carport) — whether it is inside the residential structure, in some cases a garage could be, carports typically not, when you look at garages, overhangs, patios, enclosed patios, detached accessory structures, walkways around a residential structure, being very clear those items are to not be assessed. Legislature has called out certain components of a residential structure and said "no, those are not going to be included." But it's very difficult to then explain how within a perimeter of a residential structure we would have a detached accessory structure. The two are inconsistent. Instead of trying to focus on everything within the perimeter, and pulling things out, instead we need to look at what was the legislature focusing on. The legislature says very clearly that "when the building official determines the square footage, it is to be the square footage will be all of the square footage within the perimeter of a residential structure which is very critical. TIC suggested if the Board was to follow this determination of assessable space, that it would really be a gift to TUSD because then they would receive these fees which they otherwise shouldn't be receiving. Also referenced TIC's interior hallways had a roof on it that they're being penalized. The statute specifically defines: how a fee will be levied. Long before TIC designed the buildings, these statutes were in existence. TIC has been well aware that the legislature requires that all assessable space, within the perimeter, be levied. If there is a roof, it's not being penalized because they put a roof, it's being penalized because it's within the perimeter of a residential structure. That is what the legislature has determined is appropriate. Whether or not the legislature should change its mind in the future, because of Minutes — Building Board of Appeals January 14, 2014 — Page 7 arguments TIC might make to the legislature is a different issue then where we are this evening. The concept of assessable space, the idea of what is within the perimeter is what the legislature has determined is appropriate for the building department to then identify and calculate. That is what your building department, following the building codes, has done. The issue of how many children might come out of a storage area, etc. is mixing different concepts. The arguments relate to types of development and has no place in an analysis of what the square footage should be calculated by the building official. Storage areas — TIC had mentioned storing items just as you would in a closet. There is no argument that closets should be excluded or stairways inside the apartment. This takes us back to that same position that TIC is trying to make which is we only look at actual area that someone is in. That is not what the legislature has determined is assessable space. Commented on the design — in TUSD's view, these buildings have been designed to circumvent the potential obligation to pay school fees. By way of design, trying to open up one of the ends of the hallways, and to argue it is similar to an outdoor walkway, it is not an outdoor walkway. There is a residential building perimeter and there is a hallway within that residential building whether it is opened on one end or not. It is still within the perimeter structure. Maybe an attempt to design the building maybe draws some attention to the fact you might be able to see out, but the legislature didn't say if you can see outside of the interior components of the perimeter structure, then it's not assessed. It is not the way the definition is. The definition is very clear. All of the assessable area located within the perimeter structure and then exclude certain components that relate to the residential structure will exclude carports, walkways, garages, overhangs, patios, enclosed patios, detached accessory structures or similar areas. There is nothing in the Government Code that would suggest that an interior hallway would be excluded under this definition. She would suggest to the extent that there is a concern as to an appropriate definition should be left up to the legislature and not to be determined by directing a building official to change the manner in which the building official would calculate square footage in the ordinary course of the Building Official's calculations. The statute also specifically provides that the amount of the square footage within perimeter of a residential structure shall be calculated by the building department of the city or county issuing the building permit in the course of the standard practice of that city or county in calculating structural perimeters. Clearly there may be a difference between different cities and counties. The statute specifically recognizes that. The statute says, "the building official in that particular city or county should calculate the square footage based on the manner of which they would do or a building official has done following the uniform building code and the basis of which they have concluded is assessable space. To try and then change that not only is inconsistent, with the direction of how assessable space is done, with regard to the building official, but also is trying to change the definition of assessable space. From the TUSD's standpoint, as you have heard already, it is a significant issue to the TUSD in making sure that whenever any new residential construction is developed within the boundaries of the district that the District is able to assess and levy fees as the Government Codes specifically provides. It is only based upon their Minutes — Building Board of Appeals January 14, 2014 — Page 8 ability to levy fees, as dictated by the Government and Education Code that school districts can provide facilities necessary in order to accommodate new students. When we get to the number of how many students will be coming from this particular apartment vs. other apartment projects, that's an analysis where the district looks at student generation rates. Specifically from apartment projects but that is an entirely different argument and issue. Requests the Board conclude and determine what the amount of assessable space is but also to recognize what the legislature has clearly defined what is to occur and that the definition to be utilized in any analysis is that of assessable space. Not livable areas, not habitable areas but assessable space. Smith Asked what the determination was of the Orchard Hills property in Irvine and what the method was that was used. Soria Stated he could not answer Smith's question to the best of his ability. Thompson Stated the intent of the State in exempting out certain areas in Whiles opinion would be called the grouping of exemptions. Whiles Stated, per the legislation, was not intended to be living space. Typically, areas outside of the residential structure may be components of a residential structure (garage patio) but not necessarily within the residential structure. Lumbard Asked if TUSD referenced living space in the letter from TUSD to Binsack. He also requested a copy of the letter. Whiles Stated she was not familiar with the letter in question and does not know what it is in relation to. Stated it was not a part of anything that was presented on the appeal there could not comment on it. Altowaiji Requested Whiles opinion on the walkway (not enclosed) being assessable. Whiles In response to Altowaiji's question - if not part of the residential structure, would it not be assessed. Kozak Asked the Board if they were in a position to make a decision. Thompson /Kozak Requested the Board suspend the meeting in order to allow the Planning Commission to hold their meeting, and then resume the Building Board of Appeals meeting at the conclusion of the Planning Commission meeting. The meeting recessed at 7:51 p.m. Binsack The meeting was reconvened at 9:24 p.m. To summarize, before the meeting recessed, the Board conducted a public hearing, accepted public testimony from the appellant, and also heard testimony from TUSD, then closed the public hearing and brought it back to the Board for deliberation. At the time the meeting was recessed, additional information was provided to TUSD and members of the Board (letter in question dated August 29, 2009) which was Minutes — Building Board of Appeals January 14, 2014 — Page 9 submitted for the record. As a point of reference, the letter was addressed to Ms. Binsack which was related to TUSD school district school facilities needs analysis. At this point, the Board was invited to ask City staff and anyone else in attendance any additional questions. She noted the matter should be brought back to the Board for deliberation. 9:28 p.m. Re- opened public hearing. Yeager Responded to one point the TUSD's attorney made. Noted they were not trying to rewrite the statute and redefine assessable space of living area. All parties are attempting to interpret the language in the statute. Referred to the language "excluded areas" excluded from the total square footage in a building and determining its assessable space for purposes of the school fees. Those specific areas were identified. The statute states "similar areas ". Austin Met with the TUSD representatives as well as some of the Board members. Noted the difficulty of the Board having to interpret carports, garages, patios and enclosed patios, walkways. Whiles Commented on Yeager's comments. Referred back to the statute. The issue is not whether or not they generate children and that is not the way the statute reads. There is nothing in the exclusions that would suggest excluding storage areas. It is the suggestion that storage areas should be treated differently. The similarities of these items are that they are all outside (i.e. walkways, patios). The use of the terminology is significant. 9:34 p.m. Closed the public hearing. Smith General comments included: all parties interpretation of walkways; inhabitable spaces are irrelevant at this time; storage units are not excluded; storage space should be included as assessable space; agrees absurd if it is in the garage it counts, but if it is moved inside the apartment it does not count; and walkway /corridor interpretations. Asked for clarification on what would be a walkway within a perimeter of a building. Lumbard General comments included: He agreed with Smith regarding storage units (not called out in the residential construction language but yes in commercial construction) not an exclusion in residential; walkways - believes everybody has a strong argument for final determination whether or not the square footage that connects these apartments deems walkways by the statute; building codes limits walkways to connecting two buildings; and his determination is limited based on the text of the statute. Based on the text of the statute and supporting documentation, he is more inclined to limit the applicability for the residential construction exclusions. Altowaiji General comments included: statute is definitely not clear; language of commercial/residential, storage — excluded in one and not excluded in the other; walkways (outside) not specified; corridors different than walkways. Minutes — Building Board of Appeals January 14, 2014 — Page 10 Supports staffs recommendation. Thompson General comments included: his own home - tax on rooms in 1878; closets were considered rooms; still ambiguity in code; commended staff in defining assessable area, what are qualified exemptions, and as determined by standard practice of a building official; statute deferring to local agencies; not the Board's decision on fees; not a discussion about Nexus; intent of the State defining hallway and walkway; statute does not say "storage area'; storage areas reasonably should be exempted out. Kozak Challenging /difficult situation; researched Nexus issue; case law with respect to Section 65995 (b)(1) of the Government Code; square footage within the structure; walkway constitutes an exemption; storage unit not as clearly articulated in the statute with assessable space; in favor of excluding both the walkway and storage space. Thompson Suggested splitting the issue and taking actions separately: 1) Walkway 2) Storage area. Motion: 1) The Board upheld the appeal to exclude walkways and to modify Building Division's standard practice in calculating the building's square footage specifically and only for the purpose of determining required school fees related to corridors in R -1 occupancies leading to units regardless of type of construction. Interior corridors serving residential units, regardless of whether partially or completely covered, uncovered, enclosed, unenclosed, conditioned, or unconditioned, shall be considered a "walkway ". Moved by Thompson, seconded by Kozak. Motion carried 3 -2. Board Members Altowaiji and Lumbard dissented. 2) The Board motioned to uphold the appeal to exclude storage area from the assessable area. Moved by Thompson, seconded by Kozak. Motion failed 2 -3. Board Members Smith, Lumbard and Altowaiji dissented. The Board overturned the appeal, and upheld the Building Official's determination to include storage in the assessable area if within the perimeter walls of the building whether or not within the dwelling units. Motion carried 4- 1. Board Member Thompson dissented. The Board directed staff to prepare and bring back to the Board resolutions reflecting the actions of the Board for final approval. ADJOURNMENT: Meeting readjourned at 9:47 p.m. The next special meeting of the Building Board of Appeals will be held when items are set for hearing. Minutes — Building Board of Appeals January 14, 2014 — Page 11