City of Santa Barbara Zoning Information Reports Inconsistent and Unreliable

Conclusions 13

• CL1
  There is no formal appeal process. An “intent to dispute” is not an adequate appeals process.
• CL2
  A City of Santa Barbara Zoning Information Report with no violations does not guarantee a future report will not show alleged unreported violations by previous owners. 2014-15 Santa Barbara County Grand Jury 9 CITY OF SANTA BARBARA ZONING INFORMATION REPORTS
• CL3
  The City Zoning Information Report Planning Technician II inspectors do not typically research the property records prior to the site visit.
• CL4
  If a violation reported on a City of Santa Barbara Zoning Information Report is found to be incorrect, the report is amended but the alleged violation is not necessarily removed by the Community Development Department.
• CL5
  The basic cost of a City of Santa Barbara Zoning Information Report is $465.00, the highest in the State. Other municipalities charge considerably less.
• CL6
  The requirement that a single-family residence maintain a covered, unobstructed, 20 foot by 20 foot parking space is overly restrictive.
• CL7
  There is no training manual for staff to conduct consistent Zoning Information Report inspections and reports.
• CL8
  While the City of Santa Barbara Zoning Information Report, instituted in 1974, has served an important purpose, the State now requires many of these safeguards through the Real Estate Transfer Disclosure Statement.
• CL9
  The practice of the City of Santa Barbara Community Development Department is that if information cannot be located by the Planning Technician II inspector, it is assumed it never existed and that owners must produce proof of its existence, or face violations.
• CL10
  Homeowners, after having spent many hundreds, often thousands of dollars to establish that an improvement was permitted, and that the City was incorrect, still bear the cost of the investigation.
• CL11
  The hot tub/spa and deck were constructed without the required permits.
• CL12
  The carport and attached trellis were constructed without the required permits.
• CL13
  Where there is a pool or body of water over 18 inches, gates opening through fence or wall enclosures shall be equipped with a self-closing and self-latching device. 2000 Violations – None noted 2002 Violations Building Violation: Gates leading to pool area must be self-closing and self-latching. 2011 Violations Building Violations Permits also cannot be located for the barbeque, sink and electrical applicances [sic] for the outdoor cooking area. (Note, this inspector indicated “none” for Zoning Ordinance or Building Code violations.) 2014 Violations: Building Violations

Observations 1

• OB1
  Following a City Council meeting in December 2013 when the Santa Barbara Board of Realtors argued that ZIRs were being abused by the CDD, an ad hoc Working Group made up of three planning commissioners, two planning staff, three real estate brokers and two real estate staff, was formed to research the problem. The Working Group decided to focus on three main topics:  Administrative Zoning Approvals  Administrative Appeals  Format Changes to the ZIR Form None of the above topics addresses the crux of the problem: the CDD’s reliance on incomplete files to investigate the permitting process, which creates serious discrepancies from one ZIR to the next. Staff told the Jury some discrepancies occurred because there was lack of follow-up of violations in the 1970s and 1980s, but today they are more vigorous about this. The CDD says that today’s ZIRs show 5-10 percent discrepancies. A significant number of ZIR discrepancies (from the 1990s to 2005) occurred during the tenure of one City employee who subsequently left. Despite this fact, the City’s clear position comes across as if a permit is not in the file, then it never existed; or the seller must prove it does. The Jury heard from a number of homeowners, real estate brokers, agents, consultants and other professionals who experienced the following egregious Zoning Information Report discrepancies:  A house built circa 1900 had a detached bedroom and bath on the property line. The City ordered it demolished. The homeowners were able to obtain aerial photos showing the original construction including the disputed rooms.  One homeowner received a clean ZIR when she bought the property, but when she wanted to sell it, the new ZIR cited a number of violations that occurred before she bought her house; one being a fence that for many years sat two inches over the property line. When asked why she had to move the fence, a CDD manager told the Jury it was a “health and safety issue.” When asked for clarification, the manager told the Jury they did not know what the fence was made of, so how could they tell it was safe? This cost the homeowner $53,000 to resolve the problem.  Another seller told the Jury the ZIR on his property indicated a deck had been built without permits, even though the “deck” was pavers on bare ground. The City added an amendment that said it would not enforce the violation, but they also would not remove it from the ZIR. The seller paid an attorney $717 to get the matter cleared up.  Another buyer purchased a house in 2014, and the ZIR was clear. When it recently went back on the market, the ZIR indicated a deck that had been there for 20 years was illegal, and the owner must obtain a permit to either remove it or rebuild the deck. It would not be permitted in its present state. Estimates for this came to $75,000. As a result, the final price to the buyer was reduced by $50,000. When dealing with the new buyer, the City changed its mind and allowed the deck to remain unaltered. The seller had no recourse as the property transfer had been completed. 4 2014-15 Santa Barbara County Grand Jury 4 CITY OF SANTA BARBARA ZONING INFORMATION REPORTS  A seller was informed by CDD staff, “…there is evidence that you have moved a door and window.” The seller hired two contractors to confirm this had not happened. Staff did not offer any evidence that it had. The upshot was CDD essentially said “never mind.” Still, the seller had to pay the contractors for revised plans and the City for revised permits.  The City wanted a seller to remove a carport that had been in existence for 50 years and had been reported as legal on three prior ZIRs. It cost him $20,000 to verify the carport had existed from the time the house was built.  In a similar instance the homeowner was cited for a deck shown incorrectly on the plans. However, the changes the inspector observed were due to changes at the time of construction. It cost more than $4,000 to get the violation removed, but this was less than the cost for the City’s demand for demolition.  A son, trying to sell his deceased mother’s home, received a ZIR stating the garage had been moved from its original site because of the window and door placement, resulting in a violation. He was able to locate a 30-year-old photo of himself at the age of 6 taken in front of the garage, showing the original placement had not changed. When originally developed, this tract had the option of locating the garage in different configurations on a site. If the inspector had done proper research, this would have been known. If the PT II determines there is a violation, documents supporting the violation should be provided. Currently, it is up to the seller to provide documentation that proves otherwise. The Jury learned the position of CDD is that “We believe we can’t support grandfathering in all improvements because we don’t know for sure if they cause fire or life safety risks.” 3 There is no formal appeal process, nor does CDD recommend one. Rarely are the ZIRs disputed since they often come so close to the end of the escrow period. The most serious problem with the dispute process is that it must go back to the original PT II who made the report, leaving objectivity in question. Homeowners are charged $465 for the ZIR and an additional $135/hour with a three-hour minimum, if disputed. A formal appeal process with an independent party has not been established which would guarantee homeowners due process. Clearly, there are no checks and balances with this current process. Common sense must prevail regarding violations that go back decades or owners ago. If CDD feels it imperative to correct the alleged violation, it should have a documented system for remedying the situation. In other words, the Jury concludes, “if you did not do the crime, you should not pay the fine.” If the City has no compelling reason for correction of these violations, other than income generation, how does the community benefit? The CDD appears to be unfocused and caught up in unnecessary minutia. 3 Ibid 2014-15 Santa Barbara County Grand Jury 5 CITY OF SANTA BARBARA ZONING INFORMATION REPORTS The City of Carpinteria is an interesting contrast. It also requires an Inspection on Sale Report which costs $245. Again, these began in the ‘80s because of illegal dwellings. Inspectors review the file prior to visiting the property and take relevant papers with them and then discuss with the seller what needs to be done to remedy a situation. Staff spends 30-45 minutes researching the office files. The inspector will spend approximately 30 minutes on the property, and at the end of an inspection, hand the homeowner a copy of the report. Total time for staff and inspector is 1.75 hours, and up to two hours for a complicated file. In contrast, the CDD of Santa Barbara states every attempt is made to complete the ZIR within 15 working days after an application is received. Additionally, the Jury was told Santa Barbara inspectors view the property first and then research the files. In the Jury’s opinion, this is inefficient. A Carpinteria inspector estimated major violations are about one percent. The discrepancy process is simple. When on site, the inspector tells the seller what needs to be done to remedy any violation. Remedies can be discussed with the inspector until both sides are satisfied. Where there are clerical errors, the City will clean them up. The cost of a City of Santa Barbara ZIR is $465, which is the highest in the state, however, the total cost can easily exceed $1,000. If a homeowner disputes the findings and staff does additional research, the costs begin to escalate. If changes must be made, new permits must be acquired, even if the permit is for a demolition. This would be in addition to any requirement for new plans. While Staff says the department is “revenue neutral” these charges are in excess of other jurisdictions. Other municipalities charge much less for this type of report: the City of Los Angeles charges $70.20, Pasadena $150, Ventura $35, and Carpinteria $245. According to the CDD, ZIRs alone generate over $240,000 annually. ANALYSIS The State mandates the seller provide the buyer with a Real Estate Transfer Disclosure Statement (TDS-11). In addition to this Statement, many potential home buyers have a professional home inspection performed. These licensed professional inspectors are better qualified to inform the buyer and document any deficiencies, such as whether there is ball-and-tube wiring, adequate links to the sewer system and water and power hookups, whether the roof needs repair/replacing, or if a property is unhealthy, illegal or unsafe. These inspections are very detailed and much more comprehensive than the Zoning Information Report. However, the perception of many is that the intense diligence of the CDD is to ferret out past sins, which generates additional income for the City. More than one witness told the Jury, “…every time the inspector comes out there are more violations.” Indeed the City expects the CDD to generate 100 percent of its budget for this program from the money it collects. PT II inspectors appear to have taken their responsibility to a whole new level. The regulations are applied inconsistently with new inspectors and even, on occasions, with the same inspector. As an example, the Jury obtained five ZIRs on a particular property spanning the period from 1997 6 2014-15 Santa Barbara County Grand Jury 6 CITY OF SANTA BARBARA ZONING INFORMATION REPORTS to 2014. This property remained unchanged during these years (no new construction, additions or demolition performed) and was reported as follows: ZIRs On One Property For Years 1997 to 2014 Year Bedrooms Full Bathrooms Half Bathrooms Violations** 1997 5 4 2 Zoning & Building 2000 5 4 1 None 2002 4 4 2 Building 2011 3 3 2* None 2014 4 4 2* Building * In 2011 two legal sinks noted; in 2014 same inspector noted those two sinks illegal ** See Appendix C for violation details by year In another example, a property was listed on a ZIR as a triplex and the City collected taxes on it as a triplex. One ZIR indicated that since there were no permits on file prior to the 1950s, the City assumed the triplex was permitted. The next ZIR on the property noted that since there were no permits on file prior to the 1950s, permitting was not presumed and the triplex was therefore illegal. A violation puts the property under a cloud which is reflected in the price of the home, as seen by the above examples. These decisions can cause hardship, both financially and emotionally, to the City’s residents. Many are often under stress to sell because of health or relocation circumstances. A violation is consequential and letters from the City threaten fines. Banks’ strict standards often require all violations be addressed immediately, prior to the close of a sale transaction. The results can be that the buyer backs out of escrow, or demands concessions. The concessions will probably be more than the cost to remedy, because the actual cost is unknown. The seller may decide to take the property off the market. To correct the violation, the owner pays fees, pays for plans, etc. It can cost thousands of dollars before approval is confirmed. What disturbs the Jury most is the buyer of a property with a clean ZIR is not protected in the future. The next time the house is on the market, the current seller has no guarantee violations will not be cited, violations the homeowner did not commit, but will be required to abate. The wording of the violation(s) in ZIRs is often ambiguous. A Planning Commissioner was troubled by such vague terms as “might encroach,” “something appears to be,” “there is evidence,” and “appears,” considering the weight the ZIR now has. This is particularly troubling when the City feels no obligation to confirm this, but insists that the homeowner must provide proof that the property, in its existing state, is not in violation. Interestingly, a City Attorney approves this vague language as “intentionally qualified language.” The CDD is proposing that in the case of inconsistencies/discrepancies between ZIRs, it would only refer for enforcement the creation of an illegal dwelling unit and the physical loss of parking. What creates a “habitable space” appears to be discretionary. The CDD stated that areas used for living, eating, or sleeping 2014-15 Santa Barbara County Grand Jury 7 CITY OF SANTA BARBARA ZONING INFORMATION REPORTS are what makes a room “habitable.” However, for 25 years a storage room in the home that had been converted to an office, and used to conduct business as such during that time, was deemed an unpermitted “habitable space.” Currently, staff is proposing changing “habitable space” to “the creation of new floor area” or “new conditional space.” At the City Council meeting, this was defined as “having heating and air conditioning.” A member of the Council asked, “In your mind, is this precise?” In another proposal, CDD is suggesting a new Administrative Zoning Approval Process to reduce or waive zoning standards when there are unclear city records, discrepancies in the record (including in the ZIRs), or it is evident that the improvement has been there for a very long time, i.e. 50 years. When there are unclear records and discrepancies in the records, and it is evident an improvement was on the site prior to 1974, those improvements could be eligible for this approval. The word “could” is problematic as it involves a judgment call which could be reversed when the house again comes on the market. The Jury has concerns about this. Violations today are often called out when one inspector disagrees with the findings of the previous inspector. This proposal appears to set up uncertainty for future sellers and buyers. With the CDD’s more vigorous follow-up policy, the Jury is concerned as to how violations, both major and minor, will be treated. Without reliability, ZIRs are a worthless document to both the buyer and the seller. Absurd as it sounds, portions of garages used for storage are deemed to have created a “physical loss of parking,” and therefore a major violation. A ZIR will state, “…the workbench and cabinets encroach into the required parking area in the garage. By City Zoning Ordinance, two covered parking spaces are required and must be maintained at all times.” This means a 20 by 20 foot covered unobstructed parking space. If half the garage is used for a workshop or for storage, it must be cleared out. This is where common sense comes into play. The Jury understands the need for off-street parking, but the requirement for a 20 by 20 foot cleared space that is covered is overly restrictive and impossible to achieve in some of the older homes in the City. The City should require adequate off-street parking, but in the Santa Barbara climate, requiring covered parking seems excessive and the regulations need to be revised.

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