2014-2015 Grand Jury Report on the City ofSanta Barbara’s Zr Program

While the City ofSanta Barbara Zoning Information Report, instituted in 1974, has served an importantpurpose, the State now requires many olthese safeguards through the Real Estate TransferDisclosure Statement. Response to Finding 1: The City disagrees wholly with this Finding. As stated in Santa Barbara Municipal Code (SBMC) §28.87.220, the primary purpose ofa Zoning Information Report (ZIR) is to “provide information to the potential buyer ofresidential property concerning the zoning and permitted use ofthe property.” While the zoning designation ofa property is easily obtained, the “permitted use ofthe property” is ofien subject to interpretation and requires a working knowledge ofCity ordinances, rules and records. In addition, the SBMC requires that a ZIR provide the following information: • Street address and parcel number • Zoning classification and permitted uses • Occupancy and uses permitted as indicated and established by City records • Any discretionary or administrative acts ofrecord • Any special restrictions in use or development which apply to the property • Any known nonconformities or violations ofany ordinances or laws • The results ofa physical inspection for compliance with the Zoning Ordinance and for compliancewith Chapter 14.46 ofthe SBMC • A statement ofwhether the real property has had a Sewer Lateral Inspection Report prepared within five years prior to the ZR The SBMC does not require that a ZIR include a review ofthe property’s compliance with the Building Codes nor confirm the location ofproperty lines. Most ofthe above items are not included in the Real Estate Transfer Disclosure Statement, Although State-mandated disclosure statements encourage potential buyers to conduct their own investigations ofthe property, no City record check is required ofeither the seller or buyer as part ofthose disclosures. Furthermore, the Real Estate Transfer Disclosure Statement only requires a property owner to state ifthey are “aware of’ any additions, alterations, or repairs that may have been made without the necessary permits or may not be in compliance with local codes. Many members ofthe public are unaware ofthe extent ofimprovements that require a permit and are not familiar with how to research the permit history, permitted uses, legality of structures or ifthe property contains legal nonconforming improvements. A ZR is necessary to properly inform buyers ofthe property’s status in terms ofCityrecords. Without a ZIR, a buyer does not have the City’s perspective regarding the permitted uses ofthe property, zoning, nonconformities, or unpermitted construction. Staff’s analysis ofthe facts based on a physical inspection ofthe property and historical record in the street and planning files is important, and these are included in ZIRs. In addition to providing important infonnation to the seller andbuyer, ZIRs provide an important community benefit. ZIRs help maintain and protect neighborhoods and the City’s housing stock by ensuring new constructionmeets codified health, safety and general welfare requirements, City staffhas heard from residents that they appreciate ZIRs because they know the City will Judge Garcia & Grand Jury Foreman Re: 2014-2015 Grand Jury Report on the City ofSanta Barbara’s ZJR Program August 4, 2015 inspect properties when they are sold. Many neighbors are reluctant to report a potential violation on their neighbor’s property for fear ofretaliation. ZIRs also protectthe communityby providing a strong incentive for property owners to seek necessary City approvals and permits before making improvements. Most property owners are aware that ZIRs are required at the time ofsale ofthe property and that improvements made on the property without the proper permits will be identified at that time. The elimination ofthe requirement for ZIRs could result in fewer property owners obtaining the proper City approvals or permits which may lead to an increase in illegal dwelling units, substandard construction, and need for fUture enforcement. For these reasons the City’s adopted Housing Element supports the continuation ofthe ZIR program.

Thepractice ofthe City ofSanta Barbara Community Development Department is that ifinformation cannot be locatedby the Planning Technician IIinspector, it is assumed it never existed and that owners mustproduceproofofits existence, orface violations. Response to Finding 2: The City partially agrees with this Finding. The ZIR inspector (Grand Juryutilizes the term “Planning Technician II inspector”) uses many resources during the preparation ofa ZIR. In addition to a site visit, the primary information sources include the street and plarming files and the City’s archive plans. Ifinformation in City files or archive plans does not include certain improvements observed during the site inspection, the ZIR inspector performs additional research. This research involves a number ofsources including: Sanbom Maps, consultation and/or additional site inspection with Citybuilding inspectors, historic survey documentation, and aerial photographs. Staffalso consults with the property owner or real estate agent to discuss the improvement and requests any information which could help establish when the improvement in question first appeared on the site. Staff sometimes asks the property owner to obtain the County Assessor’s Residential Building Record which can help establish when the improvement in question first appeared on the property. Records that establish when an improvement was constructed help staffdetermine what City Codes were in effect at the time, and what standards and permits were necessary. Based on this research, staffuses its bestjudgment to resolve issues and, in many cases, decides to recognize an improvement as being legal when there is some credible evidence to support such a conclusion. However, ifinformation in the record clearly indicates that an improvement is in violation ofthe Zoning Ordinance or lacks the necessary building permit, staffmust note it as a violation. Ifthere are no original permits or original archive plans to reference, a note is added to the ZIR that states: “There are no original buildingpermits orplans onfilefor the dwelling. Therefore, no ve4fication can be made as to the number and legality ofthe existing configuration of rooms.” In these cases, any other obvious violations maybe noted in the ZIR, evidenced by the date ofconstruction, location ofimprovement (in relation to a known improvement), or apparent health or safety violations. The ZIR Working Group discussed this issue at length. The discussion focused on gaining an understanding ofall the information sources utilized by City staffduring the preparation ofa ZIR. The ZIR Working Group recommended a new section be added to the ZIR template that informs the property owner/potential buyer ofthe information sources utilized in reaching the conclusions contained in the ZIR. This new section has been added to the revised ZIR template which will be implemented in the near future.

Homeowners, after havingspent many hundreds, often thousands ofdollars to establish that an improvement waspermitted, and that the City was incorrect, still bear the cost ofthe investigation. Response to Finding 3: The City agrees with this Finding.

A City ofSanta Barbara ZoningInformation Report with no violations does not guarantee afuture report will notshow alleged unreported violations byprevious owners. Response to Finding 4: The City agrees with this Finding, with qualifications. The ZIR Working Group discussed the issue ofdiscrepancies between ZIRs at length, and identified recommendations to address them (Attachment). City staffacknowledges that there may be instances ofdiscrepancies between the findings ofa current ZIR and a previous ZIR. Staffestimates that approximately only two to four ZIRs per month (or 4-8 Vu) have some kind ofinconsistency or discrepancy with a previous ZIR. When discrepancies occur, they usually fall into one or more ofthe following categories: • The previous ZIR notes the improvement as existing and either does not indicate it is a violation or erroneously states that it is “nonconforming” (such as hedges). • The previous ZIR notes the improvement as existing and states that it is a violationbut was not referred to enforcement, or only partial enforcement occurred. • The previous ZIR does not mention the improvement as existing and there is no evidence as to when the improvement first appeared, yet the owner states the improvement existed at the time they purchased the property. There are various reasons for alleged discrepancies between ZIRs: 1) the level/qualityofstaff research performed during the preparation ofprevious ZIRs was less than acceptable in some cases; 2) the City record is occasionally unclear or lacking altogether; 3 ) the improvement may have been obscured from view by landscaping or an object had been placed over, or in front of, the improvement to obscure the view ofit from the ZIR inspector, which was laterremoved; or, 4) the improvement was, in fact, added after the last ZIR was completed. Staffhas made improvements over the years to increase the reliability ofZIRs. Staffcurrently performs more in-depth research and regularly consults the archive plans when preparing a ZIR. Staffbelieves that the increased accuracy oftoday’s ZIRs have led to many ofthe discrepancies with prior ZIRs. Recognizing the need for improvements, staffis also in the process ofstandardizing procedures for preparing ZIRs and identifying violations. The procedures will give staffclear and consistent direction on how to prepare a ZIR, conduct the site inspection, determine what violations are identified in the ZIR, and how and what types ofviolations are referred for enforcement. Judge Garcia & Grand Jury Foreman Re: 2014-2015 Grand Jury Report on the City ofSanta Barbara’s ZIR Program August 4, 2015 Planning staffhas also increased its early collaboration with property owners and Building and Safety Division staffwhen discrepancies arise before the ZIR is finalized. This increased collaboration has proven beneficial. The City attempts to minimize the impacts ofdiscrepancies between ZIRs. Staffcurrently expedites and simplifies the discretionary review process as much as possible and waives the Planning fees in cases ofdiscrepancies between ZIRs. Planning staffalso involves Building and Safety Division staffearlier in the process to identify information that may be necessary for the building permit. The ZIR Working Group discussed several changes to the ZIR process to address discrepancies. These changes include establishing a MinorZoning Exception process, which requires a Zoning Ordinance amendment, and to onlyreferviolations for enforcement that involve the creation of an illegal dwelling unit or the physical loss ofparking. Violations that involve the creation of new floor area or conditioned space would only be referred for enforcement ifit appears to create an immediate health or safety risk,

Ifa violation reportedon a City ofSanta Barbara ZoningInformation Report is found to be incorrect, the report is amendedbut the allegedviolation is not necessarily removed by the C’ommunityDevelopment Department. Response to Finding 5: The City disagrees wholly with this Finding. Ifa violation cited in a ZIR is later found to be incorrect, the report is amended or a memo is sent to the street file, and any associated enforcement action pertaining to that violation is withdrawn.

There is noformal appealprocess. An “intent to dispute” is not an adequate appeals process. Response to Finding 6: The City disagrees wholly with this Finding. The ZIR Working Group discussed establishing a more formal appeal process, but concerns were expressed regarding the amount ofadditional time and costs associated with that process and agreed thatmaintaining the existingten-day appeal period was appropriate. Currently, the ZIR form states that an owner or agent has ten days from the receipt date ofa ZIR to appeal its findings, and no fee is charged. In order to appeal the findings ofthe ZIR, a written letter stating the grounds for the appeal and any supporting documentation regarding the disputed finding(s) ofthe ZIR must be submitted. The owner or agent first works with the inspector that prepared the ZIR to resolve the appeal issues. The ZIP. inspector is most familiar with the Judge Garcia & Grand Jury Foreman Re: 2014-2015 Grand Jury Report on the City ofSanta Barbara’s ZIR Program August 4, 2015 ofl3 property as they recentlyinspected it for the ZIR. Ifan owner or agent is not satisfied with the determination ofthe ZIR inspector, the appeal is elevated to the Supervisor or City Planner level for fhrther review. Since there is no set appeal period established in the Municipal Code, a property owner may appeal the findings ofthe ZIR after the ten-day period specified on the ZR form. However, because additional stafftime is necessary to recall the records and basis for the findings and, in some cases, a follow-up site visit is warranted, staffs time to research an appeal after the ten-day period is subject to the hourly stafffee as established by the City Council.

The City ZoningInformation ReportPlanning Technician II inspectors do not typically research theproperty recordsprior to the site visit. City Response to Finding 7: The City disagrees wholly with this Finding. ZIR inspectors are trained to review the street and planning files prior to the site inspection. In some cases, archive plans are also reviewed priorto the inspection. The inspector also prepares a ZIR worksheetthat contains basic property information (zoning, non-conforming aspects ofthe property, number ofparking spaces, etc.), the property description from the last ZIR (if applicable), and previous zoning/building violations as a frame ofreference for beginning the inspection. Any discrepancies in the record or missing information are noted to help inform the inspector about certain areas ofthe property that may warrant additional attention. The ZIR Judge Garcia & Grand Jury Foreman Re: 2014-2015 Grand Jury Report on the City ofSanta Barbara’s ZIR Program August 4, 2015 ofl3 inspector brings the street file and ZIR worksheet with them to the site inspection for reference on site. Given this Finding ofthe Grand Jury and statements by the real estate community in recent public hearings, the ZIR inspectors have been reminded ofthis requirement.

The basic cost ofa City ofSanta Barbara ZoningInformation Report is $465.00, the highest in the State. Other municipalities charge considerably less. Response to FindingS: The City disagrees partially with this Finding. Any comparison offees should take into consideration the level ofservice provided and whether or not thejurisdiction seeks to recover the full cost ofproviding the service. City staffresearched many other municipalities to determine what they require upon the sale ofresidential property. There is a large variation in the report types and the type ofinformation provided. Many municipalities that produce a “zoning report” do not perform site inspections. Some municipalities provide a computer printout ofzoning requirements and known nonconformancies or violations based on information contained in their street file. Other municipalities provide information from their files and do a visual inspection ofthe exterior ofthe property and list any obvious violations. Some municipalities provide a limited interior/exterior inspectionbut only focus on certain health and safety or building code violations. Based on staffresearch, the costs ofthese varied services and the resultant reports range from $30.00 to $1,016.00 per unit. One jurisdiction’s fee was based on the size ofthe residential unit. For residences less than 5,000 square feet the fee is $385.00. For residences between 5,000 and 10,000 square feet the fee is $591.00 and the fee for residences over 10,000 square feet is $1,016.00. Due to the larger scope ofthe City’s ZIRs and the fact that City Council has deemed the service to be full-cost recovery, the cost ofa ZIR in the City does exceed that ofmany otherjurisdictions.

The requirement that a single-family residence maintain a covered, unobstructed, 20 foot by 20footparking space is overly restrictive. Response to Finding 9: The City disagrees wholly with this Finding. SBMC §28.90.045, Parking Design Standards, requires all parking facilities be designed and constructed pursuant to the current City StandardsforParkingDesign. The requirement for the minimum 20 foot by 20 foot interior clear space within a garage is contained in the City Standardsfor ParkingDesign, which was established in 1982. This minimum interior dimension is a standard requirement ofmanyjurisdictions, both within California and nationwide.

There is no training manualfor staffto conduct consistentZoninginformation Report inspections and reports. City Response to Finding 10: The City agrees with this Finding. Staffagrees that there is currentlyno written training manual for preparing ZIRs. New ZIR inspectors are trained by staffcurrently preparing ZIRs.