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HomeMy WebLinkAboutBuilding Review Board - Minutes - 09/25/2008Minutes to be approved by the Board at the November 20, 2008 Meeting FORT COLLINS BUILDING REVIEW BOARD Regular Meeting — September 25, 2008 1:00 u.m. Lee A regular meeting of the Building Review Board was held on Thursday, September 25, 2008 in the Council Chambers of the Fort Collins Municipal Building at 300 LaPorte Avenue, Fort Collins, Colorado. BOARDMEMBERS PRESENT: Mike Gust Jim Packard George Smith Jeff Schneider BOARDMEMBERS ABSENT: Alan Cram Michael Smilie Jim Schilling STAFF MEMBERS PRESENT: Delynn Coldiron, Customer & Admin Services Manager Felix Lee, Building Official Mike Gebo, Deputy Building Official AGENDA: 1. ROLLCALL The meeting was called to order and rollcall was taken. 2. APPROVAL OF MINUTES Schneider made a motion to approve the minutes from August 28, 2008. Gust seconded the motion. Vote: Yeas: Gust, Packard, Smith, Schneider Nays: None Packard questioned whether the concerns regarding the minutes from July 31, 2008 were addressed. Coldiron explained that she had been in contact with Board Member Cram by phone. Cram's concerns included: 1. Votes — Yea and Nay lines should reflect "none" if there were no Board responses for these items. BRB September 25, 2008 Pg. 2 2. On top of page 4, there were some formatting changes that were showing on the page. Because none of the other Board Members had this on their copies, Coldiron explained this could have been due to the track changes feature found in Word since the minutes were sent out as a Word document, instead of the typical pdf. 3. On page 5, there was a typo where the word "asked" had an extra "ed" on the end. 4. On page 6, under the third paragraph the word "or" was missing. On page 8, the word "substandard" was listed as one word and should be two, or perhaps hyphenated. Coldiron explained that she and Lee researched this and found it as one word in the Webster's International Dictionary. Gust made a motion to approve the July 31, 2008 minutes as amended. Schneider seconded the motion. Yeas: Gust, Packard, Smith, Schneider, Nays: None 3. Jeff Ryan, d/b/a Excel Design & Build, Case #13-08 Lee introduced the case stating that the appellant holds a Class D 1 license with the City of Fort Collins. He explained that this license allows the holder to construct, alter, repair or demolish any buildings or structures in the City classified by the building code as a Group R, Division 3 occupancy housing not more than two (2) dwelling units, or a Group U, Division 1 occupancy, to perform alterations and/or repairs to any building or structure in the City classified by the building code as a Group R, Division 1 occupancy and Type V construction, provided that any such work does not alter the structural frame as defined in the building code, and to perform any work allowed under a miscellaneous and minor structure specialized trade contractor license (to construct, repair, or demolish (a) detached structures such as shelters, storage sheds, playhouses, greenhouses, and gazebos; and (b) unenclosed structures such as open carports, patio covers, open porches, and decks. Lee further explained that any such work is further limited to one story buildings or structures not exceeding two hundred (200) square feet in floor area and which contain occupancies limited to those classified by the building code as a Group R, Division 3; Group S, Divisions 1 and 2; and Group U other than private garages. Lee noted that the appellant has the opportunity to perform a commercial remodel project at 204 Walnut Street in downtown Fort Collins. He stated that according to the appellant, the project includes the removal of a section of wall between two offices. He explained that the wall carries the ceiling load which is joist and plaster. Lee added that the appellant had been in contact with an engineer who prepared drawings and that those would be submitted to the Building Department. Lee explained that the appellant felt that this project was well within his knowledge and ability level based on his 25 years of experience and, according to the appellant's information, was similar to numerous other projects he had performed without issue. BRB September 25, 2008 Pg. 3 Lee stated that in order for the appellant to get his Dl license, he was required to document three entire single family homes that he had supervised. He further explained that since the appellant's license issuance in 2004, he had completed numerous projects including home additions, alterations and basement finishes, and that all work had been completed without incident. Lee noted that the appellant took the City's Dl exam that covered the 97 UBC on April 1, 2004, scoring a 75%. As well, Lee noted that he took the 2003 IRC amendments class in June, 2005. Appellant Ryan addressed the Board stating that he has been in the construction business for over 34 years. He noted that he had been licensed in California for many years. Ryan provided specifics about the proposed remodel and explained the structural portion of the job that included supporting the ceiling. He noted that they would frame, at 16 inches on center, a 2x4 wall with a double top plate to support the ceiling, remove the plaster and wall and install a header as specified by the engineer. He stated that the work is very similar to work he performs on a regular basis and that the only real difference was that this project is in a commercial building. Appellant explained that he had done previous work on the building owner's homes which is why he was asked to perform the work. He stated that when he looked at the project he knew that under his current license he would not be able to obtain a building permit which was the reason for his appearance before the Board. Lee questioned if the appellant had any witnesses present on his behalf. Appellant stated none were present. Gust asked for specifics on how the engineer planned to support the beam. Appellant explained that a header would be added to support the ceiling with triple 2x6 trimmers to support it. He further explained that the wall would not go all the way to ceiling height because of the T-bar ceiling that is currently in place. Appellant stated that the wall would be dropped down to 8 feet, whereas the ceiling height is 9 feet. Gust stated that the engineer should note this on the plans. Schneider asked appellant about the engineer he was using. Appellant stated that he was using ARG Engineering. Schneider asked for specifics on the floor construction and how the appellant planned to take care of the point load supports. Appellant explained that he would perform the construction in accordance with the engineer's information. Schneider asked about the existing floor construction. Appellant explained that it is plaster and lath, 2xl2s, with wood flooring above, and carpet. Schneider asked whether there was a wall underneath the existing wall and if there were any beams. Appellant explained that there are no walls underneath and that the ceiling is flat with no way of telling if there are any beams present. Schneider asked whether the appellant had experience with commercial work. Appellant confirmed this explaining that he worked at the University of California. BRB September 25, 2008 Pg. 4 Packard asked Lee if there was a way to track that an engineer scopes a job. Lee explained that the City could require that as -built documentation signed by an engineer be submitted for the elements identified. Schneider asked whether asbestos testing would be required. The appellant explained that he did not know for sure. Lee stated that when there is any remodeling work done, asbestos testing is required by the State. Smith made a motion to approve a one time exemption to allow the appellant to perform proposed project with the stipulation that the engineer must provide signed documentation to the City as well as more detailed plans. Schneider seconded the motion. Vote: Yeas: Gust, Packard, Smith, Schneider Nays: None 4. Rental Housing Code: Lee referred Board Members to the Agenda packet that had been submitted for City Council and provided an overview of the information. Lee explained that Section 5-260 was a new provision that offers a mechanism to retroactively deal with existing rental dwelling units that have not been recorded or approved through a City process. He further explained that this would be accomplished through the issuance of a certificate of occupancy. Lee explained that Section 5-261 related to the permit fees associated with this process. He explained that if there was not a certificate of occupancy issued for a rental dwelling unit at the time of its construction or initial use as a rental, then the guidelines found in this section would be applied when calculating the fee amounts due. He further explained that if the owner could provide, or if the City could find clear evidence of the date the unit was converted or constructed, the fees due to the City would be based on those fees that were in effect at the time of conversion as long as the owner signed an affidavit affirming under penalty or perjury that the owner was a bon a fide purchaser without notice or knowledge of the existence of any unit that did not have a certificate of occupancy. He added that if the owner could not provide the necessary documents, they would be charged fees in accordance with the schedules that are currently in effect. Lee stated that Section 5-265 referred to violations. He explained that the violations are civil infractions, not criminal, and that all of the procedures relating to the appeals process identify the Building Review Board as the body that would hear such appeals. Schneider asked whether Section 5-236, Definitions, should better identify the pertinent codes, i.e., 2006, 2004, IRC, IBC. Lee explained that these are not specifically named because they are included as a part of the City code. Lee read the following definition: "Where terms are not defined in this code and are identified in the City code, Land Use Code and any other code adopted by reference in the City including BRB September 25, 2008 Pg. 5 International Building Code, International Mechanical Code. Such terms have the meanings ascribed to them." Schneider asked whether language should be added to say "in effect at a certain time" or stating what the actual codes are. Lee stated that in both the IRC and the IBC amendments, each of the codes are defined as being the one in effect at that time. He explained that because it says City code, it was meant to encompass these codes. He stated that he would follow up on this item to ensure this was the case. Schneider asked for clarification on who would be held responsible to bring a duplex or townhouse up to code when an HOA was involved. Lee stated that whoever had legal title would be responsible. He explained that this is how the current code reads. Lee added that if an HOA had jurisdiction over the exterior of the property and there was legal documentation stating that, then the City would look to the HOA for compliance. Schneider stated that he would like to see some additional clarity on this issue. Gebo stated that this particular article was amending just the rental provisions of City code. He explained that all of the provisions dealing with exterior maintenance had been moved over to the IPMC. He further explained that if an owner told him they were not the responsible person, staff would go the appropriate person to deal with the specific issue. Lee read from the definition of an owner found on page 6, section 9 of the IPMC: "Every owner remains liable for violations of duties imposed by this code, even though an obligation is imposed on the occupants of a building and even though the owner has by agreement imposed on the occupant or property manager the duty of furnishing required equipment or complying with this code." Packard asked whether the City for any reason would not recognize the owner as defined by a court of law. Gebo stated that he would recognize whoever the owner of record was. He explained that if there was a legal document stating someone else was the responsible party, then the staff would pursue that direction. Under Section 5-263, Subsection (a), Schneider questioned whether a bed and breakfast or a boarding house would fall under the rental code. Lee stated that they would not because the rooms are not considered dwelling units. He explained that if there are facilities for cooking, sleeping and sanitation, then the room(s) would be considered a dwelling unit. He further explained that a boarding house rents single rooms primarily for sleeping. Gebo stated that Zoning determines whether or not a building can be used as a boarding house based on Land Use Code requirements. He further stated that a boarding house would still have to comply under the habitability standards for rental housing. Gebo explained that an extra occupancy rental is a single family dwelling that is allowed to rent to more than three unrelated people based on what the various zones allow, and are required to make site improvements to accommodate the extra individuals. Lee stated that a dwelling unit is defined as one or more rooms, a single kitchen and at least one bathroom, designed for occupancy, as separate quarters, for the exclusive use of a single family for living, cooking and sanitary purposes. BRB September 25, 2008 Pg. 6 Under Section 5-261 Schneider questioned whether there could be an amnesty period giving property owners the opportunity to register non -recorded rental units by a certain date and waiving the associated fees. After the deadlines, fees would be imposed. Lee stated that Council could approve an amnesty period or establish a period within which to comply. He explained that this would be a decision for the legislators. Smith stated that he believed that the purpose of the code was to bring properties up to current standards and to get non -recorded units legitimized. He explained that he did not think that it was fair for the City to impose impact fees on converted properties. Lee stated that it would also not be fair to the people who have followed the rules and paid the required fees, to not impose fees on the people who didn't follow the rules. Smith stated that the person who bought the property thinking that it was a legitimate rental is being punished by these proposed provisions. Lee explained if the person can establish when the rental was constructed or first used as a rental, fees would be calculated based on what was in effect at that time. Lee added that under the current code, owners are required to pay fees at today's rates so, the new provisions are beneficial to those who can establish when the rental was constructed or converted. Smith stated that charging fees is an undue hardship and is not punishing the person who converted the property illegally. Lee stated that this is about due diligence and regulating in an equitable way. He explained that this is a responsibility of the buyer. Schneider questioned whether the City had the fee structures from the past. Lee confirmed this. Schneider questioned whether in a duplex scenario, the fees would be imposed on only half of the structure. Gebo stated that the fees would be imposed for whatever dwelling unit had been converted. Lee provided further clarification. Smith stated that the City was going to be collecting fees to bring rental properties up to code and could not see any way to justify collecting on past fees. Lee stated that safety is of primary concern, but equity in the rental housing market also must be addressed. Schneider questioned whether collecting fees, or bringing the property up to code to make it safe, was more important. Lee stated that from a safety point of view the City would want to make sure the dwelling met minimum standards for habitability and sanitation. Additionally, he explained that the City government collects fees to offset the costs associated with the impacts of having additional dwelling units. He further explained that this is about stewardship of the City's governance and fairness to tax payers. Schneider stated that he would rather see people bring the rental properties up to standard making sure they are safe and habitable rather than seeing how long they can get away with it. He asked whether staff knew how much potential revenue would be generated from the collection of these fees. Lee stated that the City had no way of knowing that. Schneider questioned whether this process would be enforced on a complaint basis. Lee confirmed this. BRB September 25, 2008 Pg. 7 Gust stated that there should be an amnesty period where there wouldn't be any charges, along with public education and outreach. Packard stated that he had concerns in those situations where a buyer was presented with an opportunity to purchase a rental property only to find out some years later that it is illegal. He hoped there would be some way to protect the buyer. He stated that he had a problem with assessing past fees to a new buyer. Lee explained that the reason for capital improvement and utilities fees are to cover the costs of expanding services. He stated that if a segment of the housing market gets to evade paying these fees, this doesn't seem fair to the rest of the tax payers. Gebo stated that this issue boils down to what City staff finds during rental inspections. He explained that there is currently no documented process for staff to follow in order to deal with these situations. He added that the development of some kind of process is needed to help staff work through these issues. Gebo also mentioned that he was concerned that if an amnesty period was implemented where no fees were charged, this would enable someone who converted or built a non -recorded rental unit last year to not pay any fees. Schneider suggested that the language pertaining to trying to prove when a unit was converted should be removed and staff should simply refer to the original build date of the home when assessing fees. He explained that if a single family home was built, and is now being used as a duplex, and zoning allows for this use, then fees should be based on the date the house was originally constructed. Lee stated that this code offers that. Smith clarified that this is the case only when the date of construction or conversion could be proven. Gebo stated that another option would be to not be concerned with fees on anything constructed prior to 1965. He stated that the reason for that year is because City records are pretty clear starting in 1965. Lee noted that the Board was having the exact conversation that staff has had. Lee noted that the way the Code is written now states: "Legal uses that were permitted at the time of their creation or that became legal non conforming uses as a result of subsequent changes to the Land Use Code; and All rental housing must also conform to what's currently in effect except as follows: Rental housing that was legally constructed under the building construction codes enacted by the City at the time of their construction, and which rental housing conforms to the provisions of this article. " Lee explained that this means rental units have to be legally constructed and, therefore, would have to be identified through the permit process. He stated that something has got to change or else the City will be assessing current fees. Packard opened the discussion for public comment. BRB September 25, 2008 Pg. 8 Chip Parrish owner of Bankwise Real Estate Solutions addressed the Board stating that he would encourage the City to look at the depth of the overall market. He explained that stewardship goes beyond the collection of fees. He further explained that if the City were to enact this and it was not well thought out, the City would run the risk of harming the person who did pay the impact fee. He further explained that if the citizen did not have it in their budget, then the prevalent option would be to get out of the property which would then affect the properties around them. Parrish made three points: 1. He stated that in his mind health and safety is one issue and revenue is another. He added that one of the things you can't calculate is how many undisclosed units are out there, but one of the things that can be calculated would be to look at how many conversions are possible and from there the City would be able to figure the impact fee. He explained that there is no national or other precedence for collecting back fees on properties. 2. Parrish stated that there could be title issues, but added that there are not title issues associated with zoning. He stated that he does agree to a certain extent that there should be onus not on the real estate agent, but on the buyer, to determine if the property is appropriately zoned for the use in which they are buying. 3. Parrish stated that there would be a cost to the tax payer for doing this in the form of additional City staff needed to enforce the provisions. He further wondered about the legality of placing the onus on an individual for proving when a rental was constructed or converted. If the owner cannot prove this, what legal rights do they have? Michelle Jacobs, Government Affairs Director for the Fort Collins Board of Realtors, addressed the Board stating that she believed the intent of this code was for the health and safety of the Community. She stated that she also believed it was the City's intent to have non -compliant converted properties brought into compliance. She explained that she believed the best way to do that was with an incentive rather than punishment. She further explained that she thought incentives would cast a wider net. Jacobs noted that she sees the imposition of impact fees as a disincentive that will result in a reluctance to bring properties into compliance. She also added that collecting impact fees retroactively on rental units is very complicated. Jacobs stated that there were some questions she would have liked to have heard Board Members ask such as: What does "level the playing field" mean? She explained that there are legal and societal differences between owning and renting a property. Jacobs stated that she was not sure what "clear and convincing evidence" means. She explained that she would have also liked to hear about what other cities or communities in Colorado, or across the country, are imposing retroactive impact fees on rental units and how many potential non -compliant over/under duplexes exist in the City. Jacobs stated that she does not see the equity in charging impact fees and does not support this. Geho stated that he does not know of any other municipalities that collect back fees. He further stated that he would have no way of knowing how many non -conforming units exist. He explained that a set policy is needed to address them, because without standards to follow, it is BRB September 25, 2008 Pg. 9 just City staff opinion. Gebo added that the City is trying to do what is fair and that it is prudent to be able to have these processes and procedures in place. Lee stated that he appreciated the public comments and understood the validity of their concerns. He stated that staff has tried to look for some middle ground, which is reflected in what has been proposed. Schneider questioned whether other jurisdictions in Northern Colorado retroactively enforce impact fees. Lee stated that he was unsure whether other jurisdictions do this, but did know that certain jurisdictions, such as Boulder, have a rental registration or licensing process, which is completely different from what we are proposing, but another option for addressing these issues. Schneider stated the proposed code is really a way of trying to obtain knowledge on rental units without specifically asking for or requiring it. Gebo stated that he did not believe that this would open the door to a registration or licensing program. He explained that the intent is to give staff some instruction on how to handle non -registered rental units once they have been identified. He added that it also establishes what happens if the use is not allowed pursuant to zoning codes. Smith stated that he believed if zoning allows it, then the City should make sure that the unit is up to code, but forget about the impact fees. He explained that he does not have any issues with bringing the properties up to code, only with trying to collect back fees. Gust questioned whether the City's legal counsel believed the provisions were okay. Lee explained that City Attorney Steve Roy is the one who helped complete the document and language. Gust questioned whether the possibility of lawsuits generated to former owners and the City's involvement were discussed. Lee stated that it was only discussed to the extent that it would be a civil matter and not germane to the public sector. Schneider stated that his only concern was trying to collect the back fees. He questioned whether a compromise was possible. Lee stated that he would be presumptive to try to negotiate changes as he wouldn't know where to start. Schneider asked how the City justifies the fees and the timeframes and whether or not this would be open for discussion. Gebo stated that he did not believe that staff had the authority to do anything with fees. He further stated that he thought the only thing the Board might be able to do was to recommend the supplement as presented minus the section on fees. He explained that City Council has to deal with fees. Schneider again questioned how the fees, timeframes and someone needing to prove when a property was converted was justified and asked whether or not this was open for discussion. Lee stated that the Board could make that recommendation. Smith questioned whether the City would be willing to waive the impact fees if the person could prove that the conversion was performed before they owned the property. Lee stated that under this code the fees would not be waived. BRB September 25, 2008 Pg. 10 Smith questioned what action would be taken under the current code if an illegal duplex were found. Lee stated that staff would look for records to verify whether or not there was any documentation for the construction or conversion of the rental, but at this point there was no clear cut policy anywhere. Gebo stated that at this point there are half a dozen cases that are idle because the City is unable to move forward until there is a process and procedure in place. Lee added that because there is no process, if staff were to move forward with these, the properties would be converted using today's fees. Schneider made a motion to approve the Rental Housing provisions in relation to the Code as presented with the exception that Section 5-261 be amended to omit the collection of past impact fees when there is clear and convincing evidence that the dwelling was converted prior to current ownership. Smith seconded the motion. Schneider made a friendly amendment to the motion that the exemption would apply only for those properties obtained prior to January 1, 2009. For properties obtained after January 1, 2009, the exemption would no longer apply and would fall back to the code as originally presented. Smith seconded the motion. Gust stated that after hearing discussion and giving this item more thought, he believed that the way the code was originally presented was the right way to go. He explained that the City was trying to give the owner the least expensive option possible. Vote: Yeas: Packard, Smith, Schneider Nays: Gust 5. Other Business Lee stated that Jim Schilling had resigned from the Building Review Board because of work related issues. He explained that there are three positions that are now open for recruitment. Meeting adjourned at 4:03 p.m. Felix Lee, Audding & Zoning Director Michael Smilie, Chairperson