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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; 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 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; 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 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. 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 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 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. 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 Resolution No. 4188 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. Resolution No. 4188 Page 8 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