Appeals Hearing Board Meeting

MINUTES APPEALS HEARING BOARD MEETING Thursday, September 13, 2018 1:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins, Stocker, Millich ,Yaqub (alternate) Absent: None. Board Staff Assistant City Attorney Karin K. Salameh - attorney for Public Works Present: Department; Deputy City Attorney Ryan Donlon - attorney for the Appeals Board and Recording Secretary Alicia Salas City Staff Chief of Inspection Services/Building Official John Kuehl, Building Present: Inspector Dana Schlagheck CALL TO ORDER Chair Stocker called hearing to order at 1:01 pm. CONSENT ITEMS Approval of Minutes 1. May 25, 2018 On a motion made by Board member Millich, seconded by Board member Stocker, and carried by the following vote, the Appeals Hearing Board approved the Minutes of May 25, 2018: AYES: 2 COMMISSIONERS: Stocker, Millich NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 1 COMMISSIONERS: Hawkins RECUSED: 0 COMMISSIONERS: None PUBLIC COMMENTS None. PUBLIC HEARING 2. Guido Ausenda and Ryu Kwan Ryung – 885 Lottie St. – APN: 001-195-010-000 Adopt Administrative Order for Failure to Comply with the Compliance Order Issued July 23, 2018 for Violations of Monterey City Code § 9-0.1, and California Residential Code R105.1 and R105.4 885 Lottie Street – Ausenda, Guido and Ryung, Ryu Kwan John Kuehl, Chief of Inspection Services/Building Official, gave the staff presentation, which included a PowerPoint presentation regarding the history of the property, relevant permits, and photos. He also took questions from the Board members. Dana Schlagheck, City Building Inspector, gave an account of the Final Inspection on June 29, 2015 at 885 Lottie Street. Appeals Hearing Board Minutes Thursday, September 13, 2018 Ms. Salameh asked Inspector Schlagheck about the garage and what she saw at the time of the Final Inspection. Inspector. Schlagheck said she did not remember going into the garage. Ms. Salameh asked Inspector Schlagheck if she would have issued the final permit if she had seen walls in the garage that were not on the original plans. Inspector Schlagheck said she would have asked for a revision of the plans and would have required approval of the walls since there are specific codes regarding walls in a garage. Inspectory Schlagheck also said in order to complete the Final Inspection she would have had to go into the garage, and in order to issue the final permit there would not have been walls in the garage. Building Official Kuehl said at the completion of the Plan Review, it appeared that the space was going to be habital, so the homeowners were asked how they planned to use the space in order to determine which code would apply to the space. The owners said they would be using it for storage, which meant the Building Department would use the codes for non-habital space to determine what would be required. Chair Stocker asked Building Official Kuehl, if it was correct to say, if a space is not habital and you start to use it as habital, even if it is not up to code for height, you then have to follow all the requirements/codes for habital space. Building Official Kuehl agreed with Chair Stockers question. Board member Millich asked what would be required to make it compliant for an office space. Building Official Kuehl said it would be deemed habital space, so they would work with the Planning Division to make sure that the floor area ratio/lot coverage is correct, ceiling height calculation and we would require a code compliant egress. Board member Millich asked Building Official Kuehl what code section makes an office a habital space. Building Official Kuehl referred to Chapter 2 of the California Residential Code and the definition of habital space. Board member Millich asked Building Official Kuehl if an office is in the garage is it considered a living space to which Building Official Kuehl replied if they are using it as a living space, it does not matter if it is in the garage. Building Official Kuehl then addressed the violations and potential fines for not being in compliance. Building Official Kuehl said staff has spent a tremendous amount of time on this issue and said that he is asking for staff time to be compensated. Property Owners Jason Riddick and Matthew Yuen, legal counsel for the property owners, Guido Ausenda and Ryu Kwan Ryung, presented their case. Mr. Riddick said the attic is in the same state as it was when the final occupancy was given and the attic is no closer to being habital space than it was when Certificate of Occupancy was issued on June 29, 2015. Mr. Riddick said just because of the addition of the cabinetry and the intelligently designed media center, the City concluded that the attic is a habital space. He said the only thing that has changed in the attic is the addition of the entertainment unit, which was designed to have a dual function. Mr. Riddick said the stairs on the media center are not affixed to the wall and likened them to a ladder. He went on to say it did not matter if there is a staircase or not; the City has not offered any evidence to show the attic is now habital space. Mr. Riddick said that unpermitted walls were installed in the garage after final occupancy and said his client is willing to take corrective steps regarding this issue. Mr. Riddick said it would be fundamentally unfair and a violation of his client’s due process to impose these penalties and fees and to undue all the work that’s been done to comply with 2 Appeals Hearing Board Minutes Thursday, September 13, 2018 what the City has requested based on an ever-shifting position of what is or is not compliant. Guido Ausenda one of the homeowners of 885 Lottie Street, read into the record his letter of September 11, 2018 and shared a copy with both the Board members and staff. Mr. Ausenda said the loft that was built is the same as the plans that were submitted to the Building Department. He said he feels he’s being unjustly penalized. Board member Millich asked Mr. Ausenda if he used the space as an office. Mr. Ausenda said he has not used the space as an office because he has an office on Lighthouse Avenue. He said that he does not store office files or materials in the attic but he does store his magazines there. Board member Hawkins asked Building Inspector Dana Schlagheck if the shelves were installed in the attic at the Final Inspection of June 29, 2015. Ms. Schlagheck said at the time of the Final Inspection none of the shelves were installed. Chair Stocker asked if the shelves are attached in the attic. Mr. Ausenda said he attached the shelves so he could use them as storage. He said the items on the shelves are not items they use everyday but still like to have access to them. Mr. Riddick said the installation of the entertainment center, storing office furniture, and installing cabinetry are exempt from requiring a permit and are considered finish work in the California Resident Code. Public comments None. BOARD MEMBER COMMENTS Chair Stocker asked Building Official Kuehl if the space is habital, where is the code section that says I cannot use an entertainment center to access that space. Building Official Kuehl said there isn’t one but when you build a stair, as defined in the Code for stair, it must comply with the Code requirements for stairs. He said the entertainment center was not in place during the final inspection, and in his professional opinion, he defines the entertainment center as stairs. Board member Millich said if the only means of accessing the loft space is by the entertainment center with stairs, then he would consider the entertainment center stairs as well; and per the Code they would require a handrail. Board member Millich said when he looks at the photographs, in his opinion, the space is being used as storage. He said it does not appear to him that the space is being used for office space but agrees with staff about the stairs. Board member Hawkins said that when the house is sold, the new owners are going to be glad it comes with an office space. He said he views the attic as a habital space. Board member Hawkins said he does not think someone would put this much time and attention into the space unless they were planning on going up there and using it. He said he feels the Board should side with staff for the issue of safety. Board member Hawkins said he agrees with Building Official Kuehl in that the space is habital, the stairs are illegal and the Code needs to be enforced. Chair Stocker said the built-ins and the desk are not the typical way people store things. He said because of the definitions that Building Official Kuehl gave today, he has been convinced that this space is habital. He said if someone was occasionally going into the space, using a 3 Appeals Hearing Board Minutes Thursday, September 13, 2018 pull down ladder to get the Christmas lights or tax records that would indicate storage; but at a certain point when stairs and built-ins are added, the space becomes habital and the Code needs to be enforced. Board member Millich asked Building Official Kuehl if he determined the space was habital based on present use or the possible future use. Building Official Kuehl said both; he said he performs inspections based on the present owners, guests that might come there and any future property owners as well. Board member Millich asked Building Official Kuehl what specifically, in the loft, convinced him the space was habital. Building Official Kuehl said there were many factors he used to determine the space was habital; he said it was cumulative. He said for example, he saw built-in furniture that had things stored on it to look like storage but is really being used as an entertainment center. He also said there was electricity and cable in the space, which he said he typically does not see in a storage space. Building Official Kuehl said he used the Code, his years of experience and what he saw/found during the inspection when he made his determination. Board member Millich asked if the space had a pulled down ladder, would that have had an impact on your decision. Building Official Kuehl said it would have had an impact because a pull down ladder is not a permanent solution for that space. He went on to say non-habital space is not intended to be used all the time. Chair Stocker let Mr. Ausenda make the comment that he does not have cable upstairs in the loft space. Chair Stocker said the issue with the furniture is that it makes it easier to access a space that you would not access very often. He also said that he does not think Mr. Ausenda made these changes to the property maliciously but said he was also disappointed the City had to go to court to get an inspection warrant. Board’s Decision: With respect to Section 1, the existence of code violations: Chair Stocker asked the other Board members about Finding 1.1, “Is the loft area used as habital space?” Board member Hawkins made motion to approve Finding #1.1 Chair Stocker seconds the motion. Board member Millich opposes the motion. Finding 1.1 was approved 2-1; with Board member Millich voting no. Chair Stocker asked the other Board members about Finding #1.2, “Have stairs, not shown on the original plans, been installed?” Moreover, “Are the installed stairs compliant with 2016 Residential Code?” Board member Hawkins made motion to approve Finding #1.2 Chair Stocker seconds the motion. Finding 1.2 was approved by all Board members. Chair Stocker asked the other Board members about Finding #1.3. He said he does not know if the walls were installed after final inspection, so he feels the Finding should read as follows: “Were walls constructed in the garage that do not show on the final approved building plans.” Chair Stocker made motion to approve Finding #1.3 as he had restated. 4 Appeals Hearing Board Minutes Thursday, September 13, 2018 Board member Millich seconds the motion. Finding 1.3, as stated by Chair Stocker, was approved by all Board members. With regards to Finding 2.0, have the responsible owners failed to take required corrective action within the required time. Board member Millich made the motion to approve Finding #2.0. Board member Hawkins seconds the motion. Finding 2.0 was approved by all Board members. The Board considered next, the imposition of costs. Board member Hawkins made a motion to cut the Administrative Costs in half, or 50%, of the Administrative Costs. Chair Stocker seconds the motion made by Board member Hawkins. All agree with cutting the Administrative Costs in half. Chair Stocker agreed with the 45 day, or 10/29/18, deadline suggested by staff for full compliance. He said as per the Administrative Order, if full compliance is achieved by the 10/29/18 deadline, the property owner would not be liable for the Administrative Penalty of $240. Chair Stocker went on to say if full compliance is not achieved by the 10/29/18 deadline, the Administrative Penalties would continue to accrue in the amount of $50.00 per day from the 10/29/18 until the date the Board’s Order is complied with, or the maximum of $100,000.00. Chair Stocker made motion to approve the additional penalties as stated in item #3 of the Administrative Order. Board member Hawkins seconds the motion. All Board members approved the Administrative Penalty Provision of the draft order. Board member Hawkins made motion to approve items #4-7 of the Administrative Order. Board member Millich seconds the motion. All Board members approved items #4-7. Board member Millich made motion to amend and cut the Administrative Costs in #2 by 50%, for a total of $ 4,246.78 as part of the complete Administrative Order. Board member Hawkins seconds the motion. All Board members agree with amending item #2 and approving the Administrative Order as amended. On a motion made by Board member Millich, seconded by Board member Hawkins, and carried by the following vote, the Appeals Hearing Board approved the Administrative Order as amended. They ordered the property owner Guido Ausenda and Ryu Kwan Ryung to comply with the Administrative Order as amended and pay 50% of the Administrative Costs, or $4,246.78 incurred by staff by the October 29, 2018 due date to avoid any further penalties. AYES: 3 COMMISSIONERS: Stocker, Millich, Hawkins NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. Chair Stocker adjourned the meeting at 3:11 pm 5 Appeals Hearing Board Minutes Thursday, September 13, 2018 Respectfully Submitted, Approved, Alicia Salas David Stocker Recording Secretary Chair 6