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Home My WebLink AboutSPJT Minutes 1999-08-05SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, THURSDAY, AUGUST 5, 1999 AT 7:00 PM Special Joint Workshop Meeting San Rafael City Council/ Planning Commission SAN RAFAEL CITY COUNCIL: Albert J. Boro, Mayor Paul M. Cohen, Vice -Mayor Barbara Heller, Councilmember Cyr N. Miller, Councilmember Gary O. Phillips, Councilmember Absent: None PLANNING COMMISSION: Richard O'Brien, Chairman Jim Atchison, Commissioner Tom Hinman, Commissioner Jeff Kirchmann, Commissioner Maribeth Lang, Commissioner Absent: Ann Batman, Commissioner Bruce Scott, Commissioner COMMUNITY DEVELOPMENT STAFF: Bob Brown, Community Development Director Sheila Delimont, Planning Manager Lynda Ferris, Code Enforcement Manager Dean Parsons, Senior Planner Others Present: Rod Gould, City Manager Gus Guinan, Assistant City Attorney Regina Buchanan, Deputy City Clerk 1. JOINT CITY COUNCIL/PLANNING COMMISSION ILLEGAL DWELLING UNIT WORKSHOP TO DISCUSS AND ADVISE STAFF ON POTENTIAL AMENDMENTS TO THE SAN RAFAEL ZONING ORDINANCE TO ADDRESS ILLEGAL DWELLING UNITS IN THE CITY OF SAN RAFAEL. THE WORKSHOP WILL INCLUDE DISCUSSION ABOUT THE FOLLOWING ISSUES: METHODS TO IMPROVE CODE ENFORCEMENT OF ILLEGAL DWELLING UNITS; LEGALIZATION OF ILLEGAL UNITS; POTENTIAL ZONING ORDINANCE DEFINITION AMENDMENTS; PENALTIES FOR THE CONSTRUCTION OF ILLEGAL DWELLING UNITS; NEIGHBORHOOD PARKING RESTRICTIONS; THE ABILITY TO HAVE A SECOND KITCHEN IN A SINGLE-FAMILY RESIDENCE, ETC. - File 10-13 x 10-2 x 115 x 13-8 x 13-16 Mayor Boro stated he will defer to the Assistant City Attorney for an announcement about another item they thought they would be discussing this evening, in case someone is present for that item. Gus Guinan, Assistant City Attorney, announced that last Monday night at the regular meeting of the City Council an Urgency Item was added to the agenda and discussed, regarding the desirability of enacting a Moratorium Ordinance on the location of retail outlets for the sale of tobacco products. Mr. Guinan stated he thought at that time that such an Ordinance could be passed at a special session which the Council then set for tonight. Unfortunately, the City Charter does not allow for such latitude and Ordinances can only be passed at a regular meeting of the City Council. For that reason the item has been continued to the next regular meeting of the City Council, which will be a week from Monday, August 16th, at 8:00 PM. Mayor Boro explained that this is a workshop between the City Council and the Planning Commission. He stated that we will start with a presentation from our Community Development Director, Mr. Bob Brown, who will discuss the goals, regulatory enforcement options with respect to second units, and also issues regarding boarding houses. Prior to the Council and Planning Commission discussion, staff will solicit input from anyone in the audience who wishes to speak on these issues. Community Development Director Bob Brown stated that as the Council and the Planning Commissioners know, second unit regulations and enforcement have been a challenge for San Rafael, as well as many other communities that have similar situations where the housing market is expensive and constrained. He explained that in our case, the solution to the problem has not been due to a lack of effort on the part of the Council or the Planning Commission and staff. He noted they have done an incredible SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 1 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 2 amount of research and experimentation, but still find inherent legal constraints and practical difficulties which frustrate everyone. He stated that the purpose of tonight's meeting is to step back and clarify our goals regarding second units, revisit the options we have considered or implemented, and perhaps brainstorm some new ideas. Mr. Brown added that we also want to discuss boarding houses, which is an issue we have postponed a few times while we have been focusing on second units but we would like to at least start discussion of that subject. He stated that, again, we would like to discuss some of the constraints and some of the options that we have considered. Mr. Brown explained that what staff hopes to accomplish from both of these discussions is no decisions tonight, but direction to staff in terms of future regulatory changes the Council and Commission would like to have looked at, and possibly any enforcement techniques that should be implemented. Mr. Brown explained that the way the agenda is structured tonight there will be a brief presentation on second units, to brainstorm the goals with the Council and Planning Commission, and have some discussion of options. Then staff will do a brief presentation on boarding houses, once again discussing and having questions about options, and then ask for public input. When we conclude with public input we will come back to the Council and Planning Commission and ask for your direction. He noted he has been advised by the City Clerk that we need to utilize the microphones to get the discussions on tape tonight. There being no questions about the agenda or the process, Mr. Brown began his presentation. He stated he will go over where we have been in the last year and a half, saying we started with a definition of dwelling unit which was based both on how people function as a housekeeping unit, and secondly defined a dwelling unit as including a kitchen. A kitchen was defined as including a cooking appliance. The problem with this definition was that the physical thing, the kitchen, would be there, and then it would not be there when the inspector came in. The "rollaway stove" game. In some cases we had suspicions that there was an illegal unit and when we inspected there was not the physical kitchen, the cooking appliance. That is what started the discussion. Mr. Brown stated there was a suggestion that San Anselmo had a very good definition so we looked at it. They define "kitchen" as not just being a cooking appliance, but more than one of four components: A refrigerator, sink, cooking appliance and/or a food preparation and storage area. The problem we faced with this definition was that there are legitimate situations where people have wet bars, hobby rooms such as dark rooms where there is a sink, counter and storage area, and perhaps a refrigerator for film. There are also pool cabanas. Those may all be legitimate situations but this definition of kitchen would preclude them. San Anselmo attempted to exempt these by suggesting that staff could have some leeway in making a determination. They also said that a kitchen that had through access throughout the rest of the house could be allowed if it still met these criteria of a second kitchen. We felt this was too much discretion for staff, and our City Attorney's office felt the definition was too loose so we ultimately adopted definitions that were a bit tighter. The definition suggested that kitchen is two or more of the four items mentioned, but it also had provisions for a secondary kitchen. A secondary kitchen that had internal access to the rest of the house would be permitted, and that is what we tried to implement. The difficulty we had is that we found situations where there is through access to what we assume is an illegal unit x, but when the inspector shows up the access is open. We assume that when the inspector leaves the access is no longer open. Mr. Brown noted we have also had a situation where an applicant for a legal second unit was unsuccessful at the Planning Commission and was able to essentially build a second unit for a family member, but with through access. They were able to get around our use permit requirements as a result. Mr. Brown noted that this Spring we talked with the Planning Commission about modifying that definition again. This time we tried to take on the whole issue of wet bars directly by defining a wet bar as having kitchen components but without a cooking facility. Once again, that has the same problem of the cooking facility not being there when the inspector arrives, although it may have been there beforehand. The Planning Commission SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 2 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 3 concluded that we were getting more convoluted in our approach and were trying to swim upstream against a very strong economic incentive in a tight housing market. Mr. Brown stated that it is for that reason that we are here tonight. (Councilmember Phillips arrived). Mr. Brown stated he would like to take a step back and look at what are our goals for dealing with second units. Using the overhead, Mr. Brown reviewed seven sample goals which are based on General Plan policies and asked for the Council and Commission to comment in terms of what are our possible goals when dealing with second units. Goal #1 is based on our current General Plan policies which encourage the creation of legal second units consistent with Ordinance requirements, as a source of affordable housing. Mr. Brown stated staff feels second units are an important source of affordable housing and have now permitted 74 secondary units in the City. Goal #2 would be to actively abate illegal units, those which have not had permits, in an attempt to address potentially dangerous living conditions, neighborhood parking difficulties, and overcrowding of neighborhoods. Goal #3 would be to promote legalization of illegal units to improve those potentially dangerous living conditions and meet our goal of providing affordable housing. Goal #4 could be to create incentives for legalizing illegal units and these might include reducing application fees, flexibility in parking requirements, which is typically one reason people with illegal units have had trouble converting them, to get a use permit and legalize them. We could also look at a streamlined approval process that might not necessarily involve the typical hearings in front of the Planning Commission. Goal #5 would be to avoid legal challenges for actions taken. Goal #6 would be to provide better criteria and clarity for the Code Enforcement staff on this issue. Goal #7 would be recognition that we need to balance our approach in Code Enforcement. While we do have to deal with second units, there are many other situations that need to be addressed through Code Enforcement, so we need to balance those resources. Mr. Brown stated those are some suggested goals and he would like to hear feedback from the Council and Planning Commission as to whether these are goals we would like to accomplish and whether they should be modified or replaced. Mayor Boro stated he has a question on Goals #3 and #4 which are obviously related. He asked has there been any discussion about this approach at the Planning Commission? Mr. Brown replied there has not been discussion of an amnesty program or something of that nature in any detail. Mayor Boro asked if staff knows of any communities that have tried something like this? Mr. Brown replied that some communities have done this. Daly City has done it, and San Francisco has been talking about it for years. He stated there are many issues that go along with that, particularly regarding equity between those who have come forward to legalize what they have been operating illegally, versus those that have gone through the process legally. There is also a question of how far you want to bend the regulations to accommodate legalizing the units. You get the safety benefit of having them inspected and brought up to Code, but to accomplish that there may be difficulty with certain requirements. It may include reducing the parking requirements to accomplish it. Mayor Boro asked if there are any other questions or comments? Regarding a question about process, Mr. Brown noted we would like to have discussion about the goals first of all and then start getting into the specifics of how we regulate and accomplish the goals. Councilmember Cohen discussed goals #3 and #4, stating it has long been a policy of the City to encourage the creation of legal second units consistent with Ordinance requirements, as a source of affordable workforce housing. He stated we should be very cautious as to how far we go in SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 3 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 4 creating incentives for legalization when we come to flexibility in some of the existing provisions. He noted someone had commented to him that we do not have as much of a second unit problem as we have a parking problem. He stated it is not necessarily the existence of the second unit in some cases, but the impact on an already crowded neighborhood, or even an already crowded block, with the addition of a car per person at a house that was originally designed for one or two cars and now has four or five. He stated that putting flexibility into the Ordinance to encourage the legalization of those units seems to institutionalize the problem that caused the complaints in the first place. He stated we should be cautious about it. He stated in the staff report it suggests they might allow tandem parking, but he is concerned about that issue, because he has heard complaints about people not using tandem parking but parking in front of their neighbors' homes. He stated that with regard to the reduced application fees, we should be very careful about the incentives we create. He pointed out that if a person comes in and pays the regular fees for a legal second unit, and then another person who wants to legalize an illegal unit comes in and pays a reduced fee as an incentive, that could cause a problem, and he would not recommend it. Councilmember Cohen noted we have issued permits for 74 legal units and even if we had never done an estimate of how many illegal units exist he would think there was easily 10 times that number. He stated that over the years since we have put this in, we have not had a flood of applications and part of that is that it is hard to meet the requirements. He is not sure how far we should go in loosening them up. However, he agrees we should set it up so we encourage people to come in and go through the process and legalize these units where they are appropriate. He stated most people feel they will take their chances on enforcement and do not go through the process. Mayor Boro asked, over the last few years when we have had this increased enforcement, how many illegal units have we abated with all of the attention we have put on it. Mr. Brown replied the last few years we have averaged about 30 or 40 illegal unit complaints each year and have been able to abate about one-third of them. Mayor Boro asked the group is there general agreement at this point, so he can get a sense of where we are going, with suggested Goals #1 and #2. He noted we are not adopting them now, and the public can certainly speak to any of them after the discussion. The group agreed with #1 and #2. Mayor Boro noted that Councilmember Cohen has voiced some salient points on #3 and #4, and asked if anyone disagrees with his comments on those goals. He noted they refer to giving incentives to bring in nonconforming units by loosening some of the conditions. Planning Commission Chair O'Brien stated that he agrees with Councilmember Cohen on his comments on #3 and #4. Regarding tandem parking, he is also opposed because it does not work. He noted that Palo Alto is trying to enforce compact parking, but they have the same problem we do, with compact cars parking in full-size spaces, so full-sized cars take up two spaces. He stated it might be a good idea to re-evaluate that, and to include mini- vans in their consideration. Councilmember Phillips stated he agrees with Councilmember Cohen. When he looks at #3 and #4 he is also wondering if there should not be an element of penalty included in one of them, perhaps after passage of time if we have a moratorium. He stated that the flip side of an incentive is imposing a fairly severe penalty if illegal units do not comply. He wonders if this incentive is only half of the equation, and that we need something on the other side, and perhaps we need to be more strict and harsh that we have been, to bring them into compliance. Some will respond to the incentive, but others will not and may be more receptive to the penalty. Planning Commissioner Kirchmann stated that the first incentive ought to be to provide legal units in the first place and then we really need the most severe disincentive for continuing with illegal units and waiting until they are caught. He stated that somewhere in the middle might be a less severe penalty for coming forward voluntarily to deal with a currently illegal unit. Mayor Boro noted the last three goals, Avoiding Legal Challenges, Provide Better Criteria, and Balancing Enforcement Efforts with Other Enforcement Priorities. He noted the issue of better criteria is what we are going to try to come up with tonight. Also, the balancing issue is something the SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 4 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 5 group might want to give direction on at the end, with respect to other issues of code enforcement. Councilmember Cohen asked can we talk about better criteria later, and Mr Brown stated that would be fine. Mayor Boro stated that we are pretty much in agreement on Goals #1 and #2, and his concern is that we not come up with criteria that will have a "chilling" effect on the community. He stated that when you look at some of these goals, we must be very clear about what we are trying to do. He stated that the way an illegal unit is reported is through a neighbor and that is obviously their right, and we have an obligation to respond. He stated he does not want people to begin to think, if they have a dark room, or wet bar, or a cabana with a sink in it, that there is an issue there. He stated that is really not an issue. As we define these criteria we have to put them in perspective with respect to a second unit and not just thinking that this may be a problem. He stated that reading through some of these it could unintentionally have a chilling effect on people and we are not trying to do that. We are trying to honestly respond to a legitimate concern people have and at the same time balance out these peoples' rights to do whatever they want to in their home. He stated it is important as we come up with this criteria that they will not appear to have that general scope that there is always the consideration that we are looking at an illegal unit if these things exist. Councilmember Cohen stated another thought occurred to him but he does not know if it fits into these goals. He stated that we are talking about mitigating the impacts and he thinks we want to be open to other ways to approach the illegal unit issues. He stated we have an Ordinance that is structured the way it is because we believe that if someone comes in and meets all those criteria the impacts on the neighborhood will be mitigated. He stated there may be other ways to approach those issues and we need to constantly be looking at what other communities have done and whether there may be other ways to approach them. He stated one of the things we have discussed in the past is the possibility of doing some kind of permitting for the parking, which concerns so many people and is at the heart of the issue. He noted that San Anselmo has had their parking permit program in place for many years. He stated he does not know how we could go about introducing that in a given neighborhood when it has not previously been a requirement. He stated he is not advocating starting such a program immediately, but we should be open to mitigating the impacts and if our current Ordinance is doing that effectively that is fine. If there are other ways we can approach mitigating the impacts of second units we should be open to that and consider them, and maybe the opportunity would be in our approach to Goal #1. Mayor Boro responded that we want to be very careful as a community and as a Commission and Council, about some degree of "social legislation". He stated there are examples in two communities right now where they are dealing with things like campers in front yards. For every person who is concerned about an illegal unit there maybe others who have 4 cars. They do not have an illegal unit, but they have 4 cars and they are going to have as much concern about their right to have 4 cars as someone else is concerned about an illegal unit. We must be very sensitive to all sides of the issue if we go forward with anything like that. Councilmember Heller stated she thought San Anselmo had an overnight parking program, and she thought we wanted to try a parking permit system, which would be different. City Manager Gould explained that San Anselmo bans overnight parking on the street. He stated we have looked at that, and think that would cause absolute anarchy in San Rafael. However, many neighbors seem to be more interested in discussing a permit parking system for on -street parking during the late hours of the night. He noted that, as Mayor Boro pointed out, to design such a system you need to decide how many cars you are going to allocate per unit for parking and how to deal with short-term visitors and the like, and many exceptions. Planning Commissioner Hinman noted that at the last Planning Commission discussion of this issue, one comment from the public which was quite dramatically simple, was that we are trying to solve parking problems by regulating microwave ovens. He stated that although it is integrated into a number of the goals, he was at one time debating whether the problem of parking strategy might be dealt with by focusing on different parking options distinct from the health and safety components of the second units. Mr. Brown, again with the aid of the overhead, discussed 15 options staff SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 5 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 6 has either implemented, considered or discarded for various reasons. He stated he would like to go over them and see if there are any questions about them. Option #1 has been implemented and we now use the RBR (Residential Building Report) which are the resale inspections, to identify illegal units. The advantage is that the building inspectors have access to units at that time so there is no additional staff workload and we do gain access. We have discovered a handful of illegal kitchens through the RBR process, so that is working pretty well. Option #2, the original definition of the kitchen which described a kitchen as requiring a cooking appliance. What is good about that is that it does focus on a physical identifier if it is there when we inspect. The problem is, of course, the "rollaway stove" we spoke about earlier. Another constraint is the ability to install wet bars as essentially a second kitchen if they include a cooking facility or an additional kitchen in a cabana, etc. Option #3, the current definition which redefines a kitchen, looking at 4 different components. If you have 2 or more of those you have a kitchen. Once again, it focuses on physical identifiers to define the unit and makes it more difficult for owners to hide the kitchen. However, once again we end up with the problem of essentially banning wet bars, second kitchens in cabanas, or hobby rooms, etc. There can be some unintended consequences. Option #4 has been implemented to deal with those problems, by allowance for a secondary kitchen if you have through access from that secondary kitchen to the rest of the house. Theoretically it is integrated and used in conjunction with the rest of the house by the household. He stated that gets us around the wet bar problem but it still creates a problem for the detached unit, the cabana, because it does not have through access to the rest of the house so it would be precluded. Mr. Brown noted that the biggest problem is that it has created a loophole where people whom we assume have illegal second units have a door or a stairway to the rest of the house and it is probably typically locked, but when we show up for inspection it is open, so it is technically legal. He noted staff has also had people calling who have discovered the loophole, asking can they create internal access to get around it. He stated that has been a real problem for staff. Option #5 is strict reliance on the "separate household" definition which really determines whether you have an illegal situation. If you have a household that includes an elderly parent and there is a need for a second kitchen for them for convenience but for the most part they really do integrate together as one household, that is generally fine. However, our focus is always on the physical kitchen. If we were able to enforce a "separate household" definition, that really gets at whether we have two separate households in a unit. The problem is that there is nothing physical to see. Also, if we are to press those points and we really do not have any physical evidence, it is virtually impossible to get an inspection warrant just because we suspect people are operating a separate household. Option #6 was proposed to the Planning Commission earlier this year, which was to separately define wet bars and hobby workshops, and allow them if they do not have a cooking appliance. Mr. Brown stated we could go one step further and say "a cooking appliance or a utility hookup". He stated in some cases there magically would be no stove but there would be the gas hookup there. This would take us one step further and say you could not have the gas hookup either; if they are going to hide the stove they had better hide the gas connection or the 220V electric connection. He stated this gets us that much further into defining components of the house and trying to differentiate those which may be perfectly innocuous versus those which were intended for a separate household. Option #7, we have talked about requiring use permits for secondary kitchens but that obviously creates more bureaucratic hoops for people. Mr. Brown stated his biggest concern about that is if we do get into a Public Hearing process, how do we differentiate what looks the same as the kitchen to be used for a secondary unit, versus one which could very well be used as a second kitchen for the same household. He stated we may be creating unreasonable expectations for the public that we could differentiate a secondary kitchen that may be innocuous or potentially creating illegal units in the hearing process. Option #8 is requiring deed restrictions if you want a secondary kitchen. Mr. Brown stated that is somewhat easier in terms of process, less onerous SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 6 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 7 in terms of process and in terms of a single family homeowner, creates a paper trail for us and, probably best of all, subsequent homeowners who purchase that property will see right in the title that what may be described by a realtor as an ideal opportunity for a second unit, is indeed not legal. Mr. Brown stated that is not much of a building regulation and he could not expect a building inspector or a permit clerk at the counter to differentiate between what looks like a suspicious second unit and one which looks OK so it is granted a deed restriction. Essentially, we are creating a paper trail but we are not really creating an enforcement mechanism. Option #9, Annual Re -inspections of Abated Illegal Units - if we find an illegal unit we would impose a requirement that we could come back in at six months or a year, etc. Our attorneys tell us that is illegal because it does not provide the due process. If we do not have probable cause to suspect there is an illegal unit we cannot require access to a home and we cannot demand that someone sign over consent for access. Option #10, Progressive Fines for Rediscovered Illegal Units - that would create a potential for a significant financial disincentive if you have a repeat violator. The problem is that our City Charter imposes a maximum fine of $500. According to the City Attorney's office, to change that requires a public vote. Mr. Brown noted that right now we can impose the $500 fine for each violation as long as it continues, so as long as we regain access and see that the kitchen remains there, each time we see it we can impose a $500 fine. He noted the problem is that even if we would employ progressive fines, that it would not be equitable to apply that kind of fine to a subsequent property owner, based on a violation that a former property owner created. Option #11, Mr. Brown noted we have talked about a process that might allow renters who are displaced by the abatement of an illegal unit to recover civil penalties from a property owner to compensate them for their relocation expenses. He noted that would be an opportunity for another financial disincentive to increase the burden on owners of illegal units and it would also be a benefit to the displaced tenants. The disincentive essentially puts the City into a situation of dealing with civil penalties between renters and landlords, and increases the workload, etc. Option #12, we could preclude second units in certain neighborhoods that are already impacted with parking problems, for example, or narrow streets. Mr. Brown stated we think that is probably inconsistent with State law. Certainly, to do so would require a significant burden of proof on the City's part. He stated that it would certainly be divisive among neighborhoods; and it would be an incentive for creating illegal units in those neighborhoods since they could not legalize them. Option #13, Mr. Brown noted we had discussed creating an amnesty or a legalization program for illegal units. He stated this could be beneficial in increasing safety of the units but will probably not address the parking impacts because that is probably the reason they cannot legalize in the present situation. It also creates a real inequity, as mentioned earlier, between those who choose to go the legal route versus those who bootleg in units and then ask for forgiveness. Option #14, Mr. Brown mentioned we have talked about a parking permit program. He stated the primary impact we hear the most about is the additional parking for illegal units. The permit program is controversial, expensive and would impact homeowners if they were limited in terms of the numbers of vehicles for which they could get parking permits. Mr. Brown stated he understands that the City Council has put forward such a proposal to a number of neighborhood associations to discuss and if they had even a minimal opinion to come forward, and we have not heard that any neighborhood has made that proposal. They probably realize that it is very difficult to get concurrence among all neighbors. Option #15, we could theoretically relax our zoning standards for second units, either creating use permits for secondary units or for an amnesty program. Mr. Brown stated that the principal zoning standard that causes difficulties in creating legal second units is parking provisions. He stated it is probably not viable to try to increase those parking impacts to rely on on -street parking if we cannot provide it on site. Mr. Brown stated those are the basic options, but that there may be others which staff has not considered, but he would first like to see if the Council or Commission have any questions on these options. Mayor Boro stated that Mr. Brown was talking about someone having a parent SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 7 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 8 move back in and needing to have a second kitchen for the convenience of the parent, which could be a problem. As Mr. Brown noted, someone complains, staff makes a call, the stove is unplugged, and when the inspector leaves the stove is plugged in again. Mayor Boro inquired, have we ever thought about our Code Enforcement Officers answering ads which appear to be second units possibly based on the price, rather than going out to inspect after a complaint. He stated they would be shown the unit. Mayor Boro stated he does not believe all of these are rented by word of mouth, but a lot of them are through the newspaper. He asked if staff had thought of that approach. Mr. Brown asked Assistant City Attorney Guinan for a response on City staff essentially representing themselves as potential renters. Mr. Guinan stated it would depend on what concerns you are asking about. Legally, if someone is publicly holding out a unit for rent anyone who is responding can see what is being shown. He stated he has more concern about the safety and a concern for staff getting involved in surreptitious activities like that. He does not know that they have necessarily been trained to do that. Mayor Boro stated he is aware of that issue. He noted that we have 15 items here, and all of them have pitfalls. None of them were new. He is trying to prevent people having existing illegal units and re -renting them. He stated he would not expect someone to go in and say, "I gotcha!", and then go into a battle. That would be another issue once they make their findings, but they would have a basis for a finding. He stated he understands the training, and the safety issue, and is not looking for our Code Enforcement Officers to go out there and try to arrest someone or cite them on the spot. He is thinking for another way to "disincent" people. When you sell the house, if you find that, you know it is abated. The same would be true if they advertise it. If we could structure it in such a way that we get that information and, once we have the information, do something with it. Mr. Guinan stated he thinks that is possible. He added he is familiar with certain housing authorities on the Peninsula that have used testers who have done exactly that to determine whether or not landlords are discriminating on basis of race, sex or family composition and his suspicion is that it probably would be the same sort of program so, in concept, he thinks it is possible. Councilmember Cohen stated he had a note to the same effect. He wants to speak about the kitchen definition issue, but he thinks we ought to also look at some other avenues. One that we ought to explore is that if these folks are marketing units they are declaring publicly. He stated if we have to do something in terms of the Ordinance, we could say we are going to consider this evidence of a violation if the City tester goes and is offered the unit for rent and it is not a legal unit. He stated he would be interested in exploring that, recognizing that we have to come up with a procedure as to how it is done, with training so people do not get themselves into dangerous situations. He stated that he had also jotted down a couple of other issues which have been pointed out to him. He noted several ways to create a presumption that there is an illegal unit - two mailboxes, 1123" and 1123A" for a household that is zoned single-family and has no legal second dwelling; two utility hook-ups in the same situation. They say that multiple phone lines in today's environment are no big deal but multiple utility hook-ups are a different story. They are often done so you can bill the renter for the cost of the utilities for their unit. He stated he would like us to look at some other clues and broaden the definition. He stated he does not know if we can draft the Ordinance to say that "this is evidence of a violation", but let us take a look at that. Mr. Brown responded we certainly use all those external indicators to constitute in terms of our way to gain access if given probable cause to gain access. However, we do find situations where multiple mail boxes are for a separate business and then we make sure there is a business license for a home occupation. He stated he is not sure any of those could be used as prohibitions but certainly they do give us the ability to gain access. Councilmember Cohen added that with regard to the Residential Building Report (RBR) there is mention in the staff report that reliance on this might be a disincentive. He asked, do we not require these by Ordinance? Mr. Brown stated we do require them, and that last year there were questions about whether we are truly capturing all the sales with RBR's. We did a survey for a two-month period and found that we did 100% of sales. Councilmember Cohen then addressed the kitchen definition. He stated that the disincentive is effective enforcement and we need to figure out how we give staff the tools to do that. Repeatedly subjecting them to the SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 8 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 9 rollaway stove is not going to do that. We need a better definition, and we need to find a way to better address the wet bar issue. Mr. Cohen stated he was favoring the 112 of 4 rule" in the kitchen definition, but an example just occurred to him that he has a utility sink in his garage and he and his wife have been discussing installing a refrigerator there also, for extras on occasion. He stated that would clearly not be a kitchen, but there is a working sink which gives you 2 of the 4 items and under the definition we are discussing it could be presumed that it is a kitchen and we are therefore presumed to have an illegal second unit. He stated we need to come up with a more fine-tuned definition that presents visible physical evidence, and at this point he is not quite sure what that is. Planning Commissioner Atchison noted that the overnight parking issue is not on this list but we discussed it earlier. He stated he has 4 legal parking spots at this home, 2 on the pad and 2 in the garage. He knew about the 4 legal spots when he bought his home and that was his option. He stated he realizes the street is not his. If he had 6 cars, or has the garage filled and cannot park in it, that is his problem. If we had an overnight parking challenge and he could only put 2 on his pad and give up his other 2 spots he does not have a problem with that. The whole issue is parking. We have to give the staff tools to win these issues, and unless we do get them the tools it is too difficult for them. We need to get outside the box and re-examine the entire thing and stop trying to define a kitchen. He stated it has not worked, and we should look to other issues, such as the parking. He noted that is the principal issue and needs solving. He cited the recent "cat Ordinance", and noted that if the cats had been confined and there was not odor, no one would have reported anything and nothing would have happened. If we can solve the parking issue, no one would be calling about illegal units. Councilmember Miller stated he would like to return to the definition of kitchen, which is where it all began. We started with a very simple Ordinance, then we had the problem with the rollaway stove. He stated when he looked at that as the problem, he decided we could add another item to the definition, which is the utility hook-up. If the utility hook-up is not in that room, in any way, shape, or form, not capped or anything of that sort, but actually not in the room; if that is added to the definition with the stove and utility hook-up then it addresses the problem, and it could be maintained with the very simple definition. Councilmember Heller stated she thinks we would have a problem with putting it all onto parking places because she is quite sure that in this City we could find a lot of houses without any garages. Those people have to park in the street. We are a community and part of the City was built in the County with very low building standards. Some of them have been brought up to City Standards, but a lot of them have not. Parking availability is definitely a problem to look at. Councilmember Cohen agreed. He stated this is why he mentioned San Anselmo's Ordinance and the fact that it has been in place for many years. He stated he did not purchase his San Rafael home with a view to how many parking spaces it offered and how many vehicles he might choose to own. He stated that is true for most of the homes in the City. He stated that if you are suddenly going to say, you bought your house and have a large street frontage and have been parking two cars out there and one car in your one -car garage and all of a sudden you only get to have one car because you bought a house with a one -car garage, it would be too bad for that person. That is not a viable approach. We are not going to be able to just say, "You cannot park on the street". If we have a parking permit program that may or may not solve the problem because you get back to saying, you have two unmarried people living in this house and they each have a car. Are they living together? Are they friends sharing living expenses, or does one of them rent half the house to the other with a separate kitchen? The fact that there are two people with two cars does not answer any of those questions for you, and you get back to discussion of the physical set-up of the house and the kitchen. Mr. Cohen stated it might be that we should tighten up the definition of kitchen. He is not convinced that Councilmember Miller's answer solves it. He stated that, as a carpenter, he could pretty easily make the outlet not appear to be there until the inspector left and with a sheetrock knife and a couple of minutes he could have it back. He stated that we tried to avoid this problem with the most recent definition and it did not work - it was just another loophole. It may be that we consider erring on the side of making the regulation more strict and if that turns into repeated problems then we are SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 9 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 10 going to figure how to grant people exemptions to it and we can see how that works. The looser definition, saying you cannot have a stove, results in the stove disappearing. Then if you say if you have a connection to the rest of the house it is not a second unit, that turned out to be an obvious loophole. He stated perhaps we need to reduce the number of loopholes and keep an eye on the possibility that people are going to get unintentionally caught up in this and we need to give them an out if that happens. Planning Commissioner Kirchmann asked how often, when there is an enforcement complaint, do we go out and find a legitimate second kitchen? He asked, is it really a problem where we respond to a complaint and go out and say we have found a wet bar? Mr. Brown stated that under our current definitions there really are not any legal situations. If we find a wet bar it is technically legal. He stated that he is not sure in terms of Code Enforcement in the field, but he does know that in building permitting we have actually not been enforcing the Ordinance as written in all cases. About half of the new homes being built in Loch Lomond, Country Club and Fairhills, have wet bars in them and if we preclude those the Council would hear about it very quickly. He stated that, in that sense we are not enforcing the Ordinance entirely as written. In terms of field inspections, in relatively few cases do they actually find wet bars and he cannot say with any certainly. Commissioner Kirchmann noted we do not have an Ordinance that says you cannot have two kitchens in a structure. It says, "A dwelling unit has one or more rooms designed, occupied, or intended for occupance as separate living quarters with a kitchen, sleeping facilities and sanitary facilities provided within the dwelling unit for the exclusive use of one or more persons maintaining a household". He stated it seems to him that you could quite legitimately have - and probably do have - a number of homes in San Rafael that are traditional single-family homes occupied by one single household, perhaps only one person, but have several kitchens, and that is fine. He stated the part he is not finding is, why the physical configuration would result in more than one dwelling unit. Mr. Brown explained that, once again, you have facilities that could be utilized for separate occupancy. It is just a matter of how these people socially function when their doors are closed, and that we cannot really tell when we do inspections. He stated he recalls one situation where we had a family room downstairs. It had a wet bar and a microwave but there was no attached bathroom, no exterior access to the unit and you had to go up through the rest of the unit. In that case we did make an interpretation and allowed it to exist. Technically, it did not meet the Code. Mayor Boro stated he is where he was when we started tonight. He thinks that if we are, either in jest or seriously, saying that having a wet bar could potentially be a problem we are sending out the wrong message. It is only a problem when someone has reported that they believe there is something illegal happening and we go and look at it. He stated that if we are saying that if you have the conditions you described, theoretically you are out of compliance, that is not right, and that is what he meant by the "chilling effect". So that definition has to change. Mayor Boro stated he thinks it is only when someone is challenging whether or not there is someone operating a second unit and you find these conditions, that is fine. But when you say that if someone has a wet bar in the downstairs family room therefore he is out of compliance with our Ordinance, that is kind of crazy. Councilmember Cohen's example of a refrigerator and sink in the garage, we do not want to think of that even in jest. If the Ordinance is written as leading to that, we should change it. Commissioner Hinman stated he has a question relating to the enforcement. He asked, what is our relationship with the utilities as far as any inside hook-ups? He asked do we have any information on the number of meters or other utility providers? Planning Manager Sheila Delimont responded they need to come in and get an electrical permit from the Building Division, so we do have some illegal units coming in for the permit. That is through the contractors coming in. Councilmember Cohen stated he wanted to comment on the issue of precluding second units in certain neighborhoods. He echoed staff's comment that it would not be a workable solution. He stated we had a whole list of things and spent a lot of time on a few of them, but he wanted to mention that and stated he does not see it as a workable solution. He noted we often get accused of that, but are always able to say that it is not true because we get applications for second units throughout the City. He stated if we move away from that policy we will regret it. SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 10 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 11 Mayor Boro stated he thinks our process, after we go through the boarding house issues and hear from the public, will be to come back to these 15 points and give some direction to staff as to areas we think they should pursue or come up with some refinement, so we will go over the entire thing one more time with some planning direction, so we can cut that down from 15 to something much more workable. He noted we have already been in this discussion for an hour. Mr. Brown discussed boarding houses, and stated that our current definition of boarding houses says, "A structure or portion thereof where rooms and/or meals for three or more non -transient guests are provided for compensation". He noted that non -transient means they are there for more than 30 days. Renting 2 rooms is legal, renting 3 or more is not. The definition says, "Such rooms cannot include complete cooking and sanitary facilities", so there is some sharing, or they are simply not allowed to use the cooking facilities. It includes single room occupancy development. He noted that in 1994 we added, "Excludes the bona fide sharing of the rent or ownership costs of housing and/or the sharing of expenses for meals". Mr. Brown explained that the problem we face in regulating boarding houses stems from the Supreme Court's Adamson decision in 1980. The Supreme Court struck down what were very common restrictions, limiting the total number of unrelated people that were residing in a dwelling unit and really got to whether or not they constituted a bona fide housekeeping unit. What the Supreme Court was saying in this case from Santa Barbara was that the impacts of a single-family dwelling that is occupied by a large family is really no different than occupancy by a number of unrelated renters who were acting as a household and sharing rent, etc. They found it was discriminatory to limit the number of residents or blood relations, etc. That is what makes boarding houses so difficult, because there is nothing physical at all. It really comes down to both the financial relationships and the social relationships that are occurring in the dwelling unit. In other words, if a couple are renting three rooms to individuals with separate rental agreements and with limitations on their access to the majority of the house, they do not share the kitchen together, or chores, and really are acting as an independent couple in the household, and the three individuals are individual households, that is illegal. However, if they are sharing the costs of the dwelling unit, sharing cooking facilities, then it probably is legal. He stated that is the challenge that we face, and we tried to develop some criteria to assist us in evaluating what is meant by sharing rental or ownership costs or sharing of expenses, or constituting a housekeeping unit. Mr. Brown stated that the City Attorney's office can assist us in developing criteria; whether the common areas of the house are shared among renters with the absence of locked doors, whether household responsibilities such as maintenance and cooking are shared among occupants, whether the property owner has conventional rental agreements for the tenants for long-term occupancy to common areas of the property. Lastly, the issue of whether rental costs constitute a proportionate share of the total ownership costs of the house. In other words, if someone is making a house payment of $1,000 a month and they are renting 5 rooms at $800 each, and then gaining $4,000, far more than the household costs, clearly it is a commercial operation for profit. That is not legal. However, if an elderly person is renting rooms to help her pay her mortgage payments that probably is going to be legal. The big problem we have in enforcement is trying to find out what these financial relationships are. Very rarely will people share their rental agreements with us. We cannot know how they share facilities in the house. That is where we have difficulty in enforcing boarding houses. Mr. Brown then reviewed the 4 boarding house options for consideration: 1. We could continue with our current definition. Once again, that makes it very difficult to really get at how these costs and facilities are being shared. 2. We could eliminate the amendment regarding sharing of expenses that was added in 1994. That would essentially stop advertising it out, for a loophole to property owners but it places a less defined burden of proof on those property owners. They would not be sure how they prove to the City that they are not operating a boarding house and there is less clarity for staff as to how we prove they are operating a boarding house, and we still have to face the restrictions that the Adamson decision places on it, so it does not get us very far. 3. We could add additional criteria, for example, we could make the definition more specific. That increases the burden of proof for the property owner very specifically and it certainly gives more direction for our staff. However, once again, we are still basing SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 11 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 12 our enforcement on nonphysical items and obtaining that information can be very difficult. 4. Lastly, we could require either a business license or some discretionary approval for renting of any rooms in a dwelling. He stated that is a pretty heavy bureaucratic response. In terms of a business license, the Attorney's office feels that is limited under Prop. 218, and would constitute an additional tax which would require a Citywide vote so that is not likely. The problem with a discretionary planning permit is, once again, it probably sets up a false expectation that we will be easily able to deny these. Once again, the owner can allege that they are going to share and split expenses, and we would have no proof to assume that would not be the case. We really do not see great options in this area and that is why we have not been very successful in many cases in enforcing against complaints regarding alleged boarding houses. Mayor Boro asked if Mr. Brown has put this issue in perspective as far as the number of complaints, and what the success and failure ratio has been? Councilmember Heller asked if staff has any idea how many boarding houses we have. Mr. Brown stated he does not believe we have any permitted boarding houses. We have been averaging about 2 or 3 complaints a year. Mayor Boro asked if staff has had any success in dealing with the issues, and have they been valid? Ms. Delimont responded that in one instance staff used the criteria established by the City Attorney and had them provide the proof related to that, and they were able to provide it. Councilmember Phillips asked about the situations where they have had complaints, and did they stem from parking and the number of cars, etc. and was that the issue? Mr. Brown replied that is most likely the case. Councilmember Cohen noted that in the staff report it was mentioned that there is little or no physical evidence to solicit a court order to obtain financial evidence. He asked, is staff saying that if there is physical evidence then you can go and get a court order that lets you develop other evidence to establish that it is a boarding house? Mr. Brown stated that is probably the case, and the fact that physical evidence might be individual rooms that each have exterior access but potentially no interior access, or physical evidence like locks on kitchen cabinets and areas of the home that are locked off and unavailable to rooms that are being rented. Councilmember Cohen referred back to Mayor Boro's comment earlier in the evening, that in the staff report toward the back there are photocopies of several pages from the Independent Journal's want ads offering rooms for rent. He asked if a City -employed tester went and looked at a room and asked what are the conditions, what does it cost and what do the utilities run, will I have space to store my stuff and park my car, and how many other people live here, and he is shown rooms, he asked, is that proof? Mr. Brown replied that it is. Mr. Cohen stated that may be something we want to take a look at in this case. He stated maybe it involves periodically employing someone as a tester. He noted that he believes the City Manager mentioned earlier that Fair Housing in Marin does do that periodically with regard to discrimination on rental units, so that may be something that the City wants to look at in terms of periodically testing. He noted it would take some time, but we would not have to do it all day every day, but if we periodically had someone call through the list of rooms for rent and ask some basic questions we would pretty quickly get a feel for which ones are legitimate rooms for rent and which ones maybe needed more follow-up including going out and seeing the physical layout and going from there. He noted it would not be a case of "Ha, gotcha! Here's my badge!". They would come back and fill out a report and then you have some basis to go and proceed with enforcement effort. Councilmember Phillips followed-up on a question regarding parking. He stated there would be a way to simplify it, and it seems to him that a lot of the issues, particularly the boarding issue, centers on the procedure for handling the parking. He asked are there problems with boarding, other than parking, when you get right down to it? Mr. Brown responded that in one particular instance there have been allegations regarding excessive noise and excessive refuse, but principally the parking. He noted you could have the same impact if you had a group of students that are co - renting a house, or people of the same religious institution that rent. Mr. Phillips noted that those uses would be legal, and to make that distinction would be virtually impossible, it would seem to him. He stated it sounds to him that this would be a minority of cases. He stated he will SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 12 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 13 be interested in the public input on the parking issue. Councilmember Heller asked, in connection with Mr. Phillips' remark about students, have we looked at the communities with colleges? She noted that when her daughter was at Davis there were always at least 4 women or 4 men renting the houses. She wondered how they defined it and how did they handle such a situation? Mr. Brown responded that we have checked. Santa Barbara was the test case and we have checked with other cities such as Palo Alto, Davis and Berkeley. They all admit to having exactly the same problems, differentiating between legitimate co -rentals versus rentals of individual rooms to individuals operating entirely independent of one another. Mayor Boro stated he thinks Mr. Brown is looking to see if anyone has any comments at this point on those 4 options. Councilmember Miller stated his basis feeling on this is to simply continue with the current definition because it seems we are going to get into a quagmire of everything in the process. He stated he is particularly sensitive in terms of engaging of people's homes. He explained that to him it is such a supersensitive issue that he feels strongly toward just continuing the present definition. Mayor Boro asked if there are any additional comments. There were none. Mr. Brown suggested taking public comment if the Mayor would like. Mayor Boro agreed. Mr. Brown noted that two people had submitted requests to speak, and for the balance of the speakers he will look for a show of hands and he will ask that they fill out their name and address on the sheet he will provide. Sandra Miller of 8 Aquinas Drive and a member of the Dominican/Black Canyon Neighborhood Association, stated she would be willing to answer any of the ads in the paper on rooms for rent if the group would do the same for her; she has one that she would like looked into. She stated she will not go into the history of her case because it is all in previous minutes, but the situation next door to her home is still an ongoing problem. The neighbors believe that it is a boarding house and at any given time each bedroom is being rented out, in addition to the dining room, family room and even the kitchen dinette area. She stated the owner lives in the unfinished garage among containers of toxic garden chemicals, with no ventilation because the two garage doors facing the street have not been opened in over 20 years. She noted the neighborhood is zoned R-1, which she interprets as Single - Family Residential but the City obviously has a different interpretation of criteria to meet this definition. She stated they purchased their homes specifically because of this Zoning Ordinance as a place to live and raise their families. The children of the neighborhood have not been allowed to play in our cul-de-sac since this situation has existed. Since strange tragedies happen daily, the parents of one boy who is now 8 years old have lived in fear of the safety for the child's entire life. Ms. Miller asked, would you want to raise a family in our neighborhood with these circumstances? She stated that furthermore, the Neighborhood Watch Program is entirely ineffective in their cul -d -sac. The Code Enforcement Department has conducted an investigation into this property and has come to the conclusion that the numerous renters are living as a family. She stated the neighbors are extremely dissatisfied with this conclusion. She noted she has a residential rental agreement between Larry Shore, the landlord, and Chris MacManus, the tenant, dated March 4, 1999, with an addendum to room rental, stating the conditions of the security deposit, one of which is a rental commitment of one year and additional fees for utilities. She noted that Mr. MacManus has also filed a complaint with Marin Mediation Services, Case #99H176, because Mr. Shore is in violation of California Civil Code regarding forfeiture of his deposit and change in terms regarding utility payment. Mr. MacManus is moving out tomorrow, and she (Ms. Miller) is sure you can understand the reactions of the other current tenants living there who would not make a statement on our behalf for fear of retaliation by the landlord. Former tenants have stated that they cook in their rooms because of the filthy condition of the kitchen. Furthermore, Mr. Shore also demands that the rent be paid to him in cash, thus avoiding any paper trail for investigation or declared income for tax purposes. He is clearly taking advantage of City, State and Federal governments for his own financial gain. Ms. Miller stated that for her and her neighbors the quality of life still continues to deteriorate with regard to their safety and economic and parking impacts. She stated one of the things she does want to add is that safety is more of an issue to her and her neighbors than parking. SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 13 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 14 Ms. Miller stated she has a photograph of Mr. Shore's 20 year-old black Cadillac limousine that is parked crossways in his driveway, purposely to prevent any tenants including one who is disabled, from using this only off-street parking space available to his many tenants. Ms. Miller stated he parks his second car on the street in front of her house and suggests to the renters to park up and down the adjacent Dominican Drive. Ms. Miller stated his ad for room rental was noted in the staff report, but she has one as recent as August 1st. She stated this clearly is in violation of the City code regarding boarding houses. She noted that a few months ago Mr. Shore's own daughter called her because she needed a place to live temporarily. When questioned about why she could not live with her father in his family residence, she stated that all the rooms were rented out and there was not room for her, and her father said that he did not want any women in the house. Mr. Shore did not even have room for his own daughter because of his so-called "family" of tenants. Ms. Miller stated she has also researched with local realtors a document called Transfer Disclosure Statement in which the seller must disclose all known material facts about the property; for example, any nuisances. The law is clear that a property owner has the legal obligation to disclose any facts affecting the value or the desirability of the property. In this case, we have a history of extreme dissatisfaction with the Code Enforcement and City of San Rafael in which you would be made a party to the liability. She asked, if given the choice of buying a home in San Rafael, knowing these facts, would you choose to move onto Lower Aquinas Drive? She stated she has spoken with other communities who informed her that they would have put a stop to this situation from the very beginning. She stated if we were always as inconsiderate as Mr. Shore there would be well over 50 additional people and cars, just in our cul-de-sac. She stated we ask you to respond with a clear conscience as to why you continue to allow a situation such as this to exist in the City of San Rafael to the detriment of law-abiding residents, that directly impacts the safety and well-being of a neighborhood. It does not demonstrate the leadership that we expect from our representatives. She stated there should be no need for us to spend this much energy on an illegal situation; we all deserve to live in a safe living environment, just as you all do. Dick Watts of 16 Eye Street stated he would like to offer comment and information for consideration tonight. He stated he would like to speak from two perspectives - first as Chairman of the Sun Valley Neighborhood Association which includes 1,100 homes in West San Rafael. They organized a little over a year ago and are working on a visioning process. They asked the residents about the attributes of their neighborhood that make it a great place to live, and also what attributes might be improved to make it even better. He stated he shared with the Planning Commission an earlier draft of a spread sheet of their "work in progress" which summarizes the neighbors' input. He passed out a copy to the Council, Commission and staff. He stated he has highlighted the concerns about illegal dwelling units and also about the parking problems in the neighborhood. He stated he is submitting it as data or information for consideration. Mr. Watts added that as a second perspective, speaking for himself as an individual resident of San Rafael and a homeowner, in his neighborhood on Eye Street which is very good looking, across the street a neighbor has put in a legal second unit and done it properly so it is not evident that there is a second unit there and there is no parking problem. However, he can walk around the corner and find the unit that many people in the neighborhood feel is an illegal unit and is perhaps also a boarding house. There is at least one illegal rental unit. He stated the property over -utilized the space as far as having built out and is not attractive to look at, as well as being a fire hazard. He stated it has been checked before. Depending on whom you talk to, the number of vehicles associated with this property ranges from 9 to 12, mostly parked in front of other people's properties. This has had a negative effect on our community and the values of the neighborhood. He stated that supporting affordable legal units and opposing illegal units are not mutually exclusive. Also, he has worked for quite a few years and a lot of his savings is invested in his home. The value of his home is hopefully to support his retirement and other family needs. If people conduct illegal units in the area, it will have a negative impact on the market value of his home and he submits that they are taking something from him, that they are stealing from him. Mr. Watts commended the Council and Commission for attacking this very difficult problem and urged that they persevere with it. Elissa Giambastiani, Executive Director of the San Rafael Chamber of Commerce, stated she is here representing the Marin Consortium for Workforce Housing. She stated she lives in Terra Linda where there are a number of instances where there are more people living in some houses than SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 14 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 15 perhaps there should be. She stated she sympathizes with the struggle to try to come up with some fair and equitable solution to this problem. She added we all know it is going to get worse. There are going to be more and more people having to live together because they cannot afford the housing costs which are astronomical. She asked, when a single room in a home costs $500 a month, what are young people going to do? She noted that Councilmember Phillips was talking about his daughter graduating from College and that she will be a teacher in this community. She stated we want these young people in our community, but where will they live? She stated that preserving as many of the second units as we can is incredibly important, and she has to agree with the people who have illustrated examples where people are abusing the privilege and making it uncomfortable for others in their neighborhoods. Ms. Giambastiani stated that it is a shame we have to spend more time talking about where we will park our vehicles than we spend thinking of where we are going to find homes for people. She stated she believes there should be some incentive to legalize illegal units and to make them conforming. If this means that the owners of second units need some help, the Marin Housing Council has a program and the Marin Housing Authority has a grant and loan program for low-income homeowners which could be of assistance to some of the property owners, particularly the owners who really needed the income from the second unit in order to keep living in our community. She stated she does not think you necessarily have to reduce fees in order to provide an incentive, but she thinks the objective is to make the units as receptive to the community as we can, by legalizing them. She stated she does not like to disagree with Councilmember Cohen, but she does think that tandem parking does work for some people, the ones who really want to be good neighbors. She does not think we should say that it does not always work. Ms. Giambastiani stated that her last comment has to do with the General Plan policies, Protecting and Conserving Existing Housing. She noted it talks about protection of our rental housing stock and about house sharing. She noted it says, "encourage and facilitate house sharing in appropriate locations where it will provide housing for low- and moderate -income residents and not significantly impact the neighborhood". She closed by wishing the group good luck in this difficult job they have to do. Ted Rooyen, a resident of San Rafael, stated he is delighted to see all the attention that is given, and particularly the last speaker with whom he agrees about the need for housing. He suggested that the group not give a "No" to, but really consider the program she mentioned because it has enormous value. He noted that a similar system was used in Sydney, Australia with tremendous success. They have built hundreds of units for low-cost housing. They got people who are lending and collecting the profits to deposit them in an agency run by the county. From the interest on that money they have built all these houses. In addition, it has resolved a great many difficulties that arise and the agency is working extremely well. He stated if that happens in San Rafael it will be another first for Marin and first for the United States. He requested that the group pay attention to the possibility of that happening. Lorenzo Ersland of 196 Union Street stated he was just elected President of the Montecito Area Residents Association (MARA). One of the first things they did was to list all of the issues that affect their neighborhood and they have about 50 or 60 issues. They prioritized them and illegal units in the neighborhood is a top priority and is very much an issue. He stated that in his neighborhood, as in others, they are not just talking about second units but also third units, fourth units, etc. He noted there is a house that borders on his back yard which looks like a single-family dwelling from the front, but he knows for a fact that there are four apartments in there. He stated that at that house there is no parking so all of the people who live there, at least 5 households, are all parking on Belle Avenue. He stated parking is definitely an issue, but not the only issue. It also impacts the property value, as well as noise and the greater densities of people. Mr. Ersland commended Mayor Boro on his great idea about the ads. He stated if someone puts an ad in the paper advertising a studio apartment and that unit is not zoned for anything other than a single-family dwelling, he does not know why you would even need probable cause. He thinks that is a good idea and should be included in the 15 options. Mr. Ersland added that since parking in his neighborhood is a critical issue, he knows what has been said about the parking permit process, but he thinks SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 15 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 16 that is what it will come down to. From his point of view, you would not necessarily have to restrict the number of permits per household. If a person has 3 cars and has to park them on the street they could have 3 permits but, at the same time, if you have a house with people with 8 different last names and that property is not zoned for anything but a single-family dwelling, that would be a way to pinpoint where illegal units are. He stated he thinks that whatever problems there are with parking permits, they could certainly be worked out. He stated a lot of people in his neighborhood feel very strongly about this issue and are very much in favor of parking permits. Bob McCallister of 115 Jewell Street, also a MARA member of their Board, stated he has been involved in this process since the earliest meetings and even heard some of his own suggestions from two years ago being raised by others tonight. He stated we have been hearing tonight that the desirability of many housing units is a given and is accepted by all here in San Rafael. He does not personally feel that this is necessarily true, and would like to see the City and County living a little more within its means. They actually have been squeezing in an infinite number of new homes and businesses, but questions do we really want to. He stated that while he applauds and thanks the Mayor, Council and Planning Commission and staff for the outstanding job they have done in revitalizing Downtown, he feels it may be time to say, "Enough is enough" - enough restaurants, nail salons and auto shops. He stated that in an economic sense San Rafael is doing just fine, and even our neighborhoods with all the overcrowding and much ugliness, remain a good investment and we have that to be thankful for. However, we do not live in San Rafael primarily for financial reasons. He stated they moved here for the quality of life that made San Rafael and Marin in general such a special place to live. He stated he is hard pressed to find anyone these days who feels that the quality of life has improved. Traffic has become unbearable and the density and hostility which accompanies it do not make for a happy life. With response to Ms. Giambastiani's comments, Mr. McAllister stated he has to empathize that there are a lot of people looking for homes; at what point do you close the door and say, "Enough is enough"? He stated he would hate to see this become a place where we let everybody in and do everything we can for them, with the net result that nobody wants to live here. At a certain point things become ugly and become San Francisco or something like it. He stated he would hate to see that happen. Harry Winters of 201 Spring Grove Avenue, President of the West End Neighborhood Association (WENA), stated one of the questions tonight was about the balance of enforcement efforts versus other enforcement priorities in the City. He stated that recently an Ordinance was passed prohibiting parking of commercial vehicles in residential areas. It was decided then that it would be enforced on a complaint basis. He stated he can see that the same area here might be enforced on a complaint basis, which certainly should answer some of the problems of where you put your resources in enforcement. He stated that on the parking problem, the question of the number of vehicles per household really is not pertinent. He thinks it is the amount of curb in front of a house, and each residential address should be issued parking permits for that residential address based on how many cars can be parked in front of that residence. He stated he does not care how many driveway spaces they have, or garages, or how many cars they want to own, if there is room to park 2 cars in front of their house they should be issued 2 permits with the house address on them but not with the owner's name. For overnight parking it could be laid on the dashboard or hung on the mirror. He does not think anyone has a right to park on the street. That is a public street. He thinks that a permit system might work. It would not depend on the name on the permit, but would just be allocating the public street area to that house based on the curb in front of that house. Mr. Winters stated his final comment has to do, not with the issues brought up, but with a letter he got on Tuesday, addressed to him as a Homeowners Association President. He is sure a number of other people got copies because it was a professionally addressed letter with a printed label, etc. It stated, "San Rafael homeowners urged to defend their rights at this upcoming meeting tonight. Please join us to represent our rights to City officials". Mr. Winters stated the letter is anonymous and not signed. He stated anyone who has a legitimate letter like this to put out to the public should have the courage to sign it and anyone who has an honest argument would sign the letter. He thinks the people who put this letter out are not looking out for homeowners. They are looking out for other agendas. He stated your constituents are probably represented by neighborhood associations more than they are by housing advocates or by SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 16 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 17 other organizations which are not really concerned with the quality of life in the neighborhoods. They are concerned with other agendas, and he would urge anyone who got this letter to treat it like any kind of an anonymous letter. He stated he resents getting something like this and he would hope that whoever put it out would get up and admit to it, but he does not think they will. Hugo Landecker of 127 San Rafael Avenue in Gerstle Park stated we are talking about second units, and should be talking about illegal units. He stated that in his neighborhood there are many properties that have many illegal units and Gerstle Park is full of illegal units. The abatement program has been a failure. He stated they would like to see some progress made. He stated he realizes it is a difficult issue to come up with a change in the process but he hopes the City can come up with something. He noted we keep hearing about how parking is a problem and he agrees, but along with parking comes traffic. If we could wave a magic wand and get rid of all of the automobiles from the illegal units would that make all of the problems go away? No. It is a housing and density problem. As we compress housing and make people live closer and closer together that is where you are getting the problems. He noted you might have a number of residences, with the illegal units interspersed among them. You are now putting more people closer together. In the summer months the weather is hot and you have your windows open and instead of having to listen to a couple of stereos, you might have to listen to a few more. It is more noise, and more animals, barking dogs, etc. He stated that getting rid of the automobiles is not the only thing; that is just part of the problem. Mr. Landecker stated that the bottom line is the housing density which is really the problem. Regarding rental price, he noted we keep talking about the illegal units being rented at below market rate but they are not. They are rented for whatever the landlord can get for them. There is nothing in any City Ordinance that says, we will give you a good deal on rent if it is an illegal unit. It is not going to happen. He stated the renters are paying top dollar for these places. We have Ordinances that are supposed to abate these units and they do not work, and in the meantime the property owners are not only laughing at the Council and Planning Commission, they are laughing at everyone in the audience, and they are laughing all the way to the bank every month when they get that rent check. Mr. Landecker added that the living standards in these illegal units vary tremendously. Some of them are not fit for a dog and some might be very nice, so it runs a gamut. He stated the process really should be abatement and if anyone wants to protest the abatement the Zoning Ordinance definitely allows them to apply for a variance. He stated he does not know if the sympathy would be there for granting a variance, but the Zoning Ordinance does allow it. He noted we heard from the business community how we have so many businesses coming into San Rafael and they cannot find housing for their employees. He stated if you turn the clock back a few years, we did not have enough business in San Rafael. Now we have the business and do not have the housing. The next thing we will have more business and will want more housing. Mr. Landecker stated that if you listen to the Chamber of Commerce we are going to fill this whole community up with housing, illegal and otherwise. Coleman Persily, a San Rafael resident, stated he wishes to support the position of the Housing Authority. He stated we have to remember that we went to the Board of Supervisors and found that without question there is a housing crisis in Marin County. He stated he does not think this is the time for us to suddenly start going after illegal second units because when you do that you get someone to move out, and where are these people going to go? He stated we need affordable housing and do not have enough of it so that if you have someone who happens to be letting someone live in their house on an affordable basis that is the need of the community right now. He stated that from the business point of view it has got to be understood that the business people are having a difficult time hiring all over the place. They want low salaried employees. He asked, where are these low salaried employees going to go? Even the middle-class employees now have to go to Sonoma and other places. He feels that the most important thing now is not suppressing or going after these kinds of places, but to consider the emergency as far as affordable housing is concerned, and therefore he supports the Housing Authority's report today. Mr. Persily referred to the mention of amnesty in the staff report, and stated he feels this is the time for the City to give those people who are living here to let them stay, let them alone and do not push. Give them all amnesty and stop checking up to get people out of their homes. After you get the amnesty, from then on you watch your building permits and use permits, but as of this time he feels we need amnesty for all the second units and stop suppressing people. Right now they need housing and the City's attitude should be affordable housing, let people alone, stop pushing people around SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 17 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 18 and let's have amnesty. Melany Kramer, a San Rafael resident, stated she is not a homeowner nor a housing advocate but she understands what it is like to try to live on a low wage income since she returned to San Rafael from Sacramento three years ago, where she was formerly a high salaried attorney. She stated we need to deal with reality, and reality is that there is an increasing gap in earning capacity and the ability to pay for housing in this community. She stated the question is, what are we going to do about it? She stated that what we are talking about is blending the best ideas and staying away from the mud slinging so we can come up with a combination of amnesty, required conformity within a reasonable length of time including grant applications and other things Ms. Giambastiani was speaking about. Then we need to realize the extent to which we allow the economics of Marin County and the housing prices that are going sky high to drive an increasing wedge between the haves and the have nots. She stated she is not a prophet of doom, but if we do not see some kind of economic warfare we are going to be either very lucky or extremely naive, and it is only a question of time. She stated she is not trying to look for trouble - it is there. She stated we should talk about some positive things we can do. She noted that many illegal units are substandard, and described one in particular detail. Ms. Kramer asked that the issue of parking not be minimized. It is not just a politically correct type issue, it is a safety issue. Having parking on any street is a safety issue, since it can make it impossible for police cars or fire trucks to get through. She stated San Anselmo has a good program, and permits by curb frontage can work. She stated that because she had a car that would not be permitted in her sister's unit she got a permit from the Police Department that cost her $5 a month and she parked in a City lot but had to be out by 8 AM. It can work. She added that Sacramento had a permit program neighborhood -by neighborhood, and it was so successful that an increasing number of neighborhoods asked to join the program. It is now throughout the City of Sacramento. She stated there is so much positive energy here and this is such a great community, let us make it even better. Mayor Boro stated he would like to have the people who have not spoken yet come back to the issue of illegal units and boarding house issues and the points that the Council and Planning Commission have to consider if they wish to add to them or discourage us from pursuing any of them, that would be to our benefit tonight, He stated we should keep it at that level and not get into different beliefs, whether you are a business person or property owner, or whatever. If the speakers stick to the issues before us it would be productive. He stated he would like to end the meeting around 9:30 or so, so let us see if we can move forward. Noble (Rocky) Birdsey of 21 Belle Avenue stated he has heard the issue of parking brought up many times and it is always going to be there and will get worse. He stated the solution may be, as was done for Downtown, to do a bond measure. In San Francisco they bought lots in the Richmond District and created parking there for business and residential use. He stated it is expensive, but it could be done here. He stated it needs to be addressed because the population is getting bigger, and traffic will get worse. He noted the second unit issue of course has to be worked on. He agreed with Ms. Giambastiani's recommendation about the Housing Authority for housing relief. Joan Webb, a resident of Prospect Drive in San Rafael, stated she will address some issues that have not been addressed, principally visitors and Code Enforcement. She stated her neighbor across the street has a problem, and he reports her for many unrelated things such as when the lady next door died, etc. She suggested there should be a way that the City has with selecting the calls to which the Code Enforcement should respond, and finding a businesslike way that the Code Enforcement people could come out. She stated she was a victim of the "chill factor". Two Code Enforcement people arrived at her house and went down a side staircase to a side door and flashed a badge at someone standing by the door and asked if this was a unit. The man stated he did not know, but guessed so, and Ms. Webb stated she received a "pre -something" and had to hire an attorney. She stated her health is not good and she has Medicare nurses and others coming to help. Her son has had home schooling. She stated it affected her health by being essentially persecuted by Code Enforcement. She stated that when she purchased the home it had a wet sink in it, and a neighbor who cannot remember that has told her that four other people owned her house before her, when only one did. SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 18 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 19 She asked when her father comes to visit, is he allowed to park in front of her house overnight? She stated she has a nurse coming to give her oxygen, and inquired if she is allowed to park in front of her house? She asked, what if her son has three friends over, does she have to respond to the City, and get a guest permit for a nurse to stay to take care of her when she is too ill to even breathe? She stated she feels the City has become invasive. She stated there has been discussion about homeowners rights, and she asked how about our rights to just live here and raise our children and receive health care if we need it, and try to make ends meet without being addressed by Code Enforcement Officers who leave messages on telephones. She stated that in order to become legal you will have to add new hallways to your house, and then two weeks later you will receive a call saying you have to take the hallways out. She stated no one ever came into her house to find out if she has hallways, a kitchen, or whatever. There has to be some tightening up on the front end. She would like us to consider we live in a place where hopefully we will be allowed visitors. Jan Robinson, 104 Jewell Street, stated she has income property in San Rafael and pays Federal and State income tax on it, as well as property taxes. She would like to encourage going the other direction. She noted Councilmember Phillips brought up the issue of being stricter and having violation actions for the ones which are indicated as illegal units. Wayne Johnson of 88 Jewell Street, stated that the City could share part of the fine with the tenants for becoming whistle -blowers for their landlord. Patrick Murphy of 21 La Vista, stated he supports the Mayor's suggestion of investigating advertisements. He stated that when he started a business in San Rafael over 12 years ago he put an advertisement in the paper. A Code Enforcement Officer talked to him and told him he needed a business license. He stated there is nothing different about this. Steve Patterson of 323 Bayview Street, Co -Chair of the Federation of San Rafael Neighborhoods, stated he has been involved in this issue for a long time and wanted to thank everyone for doing so much work on this issue. He stated he particularly wanted to thank City Manager Gould, noting it was 2 years ago he came to a Federation meeting and heard from a whole array of neighborhood leaders, from the area south of Puerto Suello Hill in particular, that illegal units was one of the major issues that was undermining the social fabric of our neighborhoods and the quality of life. As a result of that, Mr. Gould had City staff spend considerable time working on the re -definition of what constitutes a unit. He stated he feels that definition is really close to working. He thinks there are some loopholes and Mr. Brown in his excellent presentation tonight alluded to some of those loopholes, particularly the interior stairway loopholes. He stated he thinks some of the enforcement activity has been hampered since the previous Code Enforcement Officer left last Fall, and it has only been recently that Lynda Ferris has been hired. Mr. Patterson noted that another Code Enforcement Officer is about to be hired, so he is hopeful that the Code Enforcement mechanism will begin to become fully functional when complaints are lodged, and that true follow-up can be done. Mr. Patterson thanked everyone for what they have done. He stated illegal units are an epidemic in some neighborhoods, and less of an issue in others. He noted that when someone lives next to a problem situation like many people in this audience do, and have 8 to 10 cars at one property address associated with that address and you cannot even park in front of your own house, it becomes a highly charged, emotional issue and creates a level of contentiousness on a block. He stated he thinks we are close to getting to where we need to go. He stated a lot of communities ignore this issue, and he commends the City and stated that the Federation really appreciates it. Mayor Boro stated that what Mr. Brown would like the Council and Commission to do is to quickly go through these 15 items and see if there are some that we would like further work done on, and some that we would like to not pursue at this stage. Commissioner Hinman stated that one of the comments brought up a question he had, and he would like to ask Mr. Gould: Did we not recently have a Citywide poll on what mattered to the public at large? He noted that certainly there were many people with concerns here tonight regarding second units but, as he recalls, this did not come up as high as some other priorities on the Citywide poll. Mr. Gould responded that is correct. He stated the sensitivity to illegal units was registered with a fairly low number of respondents to the professional survey, but to those who were cognizant of the problem it was significant. Mr. Hinman stated that people were very eloquent on it this evening and he was trying to look at it on the broader, Citywide basis. SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 19 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 20 Commissioner Hinman then asked Mayor Boro about process as we go through these suggestions. He stated that perhaps they tend to group themselves into three separate areas or, in some way partition them, so there seem to be definitional and site -related topics, then there is process in terms of amortization/amnesty, and a third general grouping might be zoning/parking/neighborhood solutions. Mayor Boro asked Mr. Brown to walk the group through and see if we can get some concurrences or comments. He agrees that the first couple have to do with definition and it seems the first one makes sense and that would be a positive way to pursue it. He asked how Mr. Brown would want to pursue #2 and #3? Mr. Brown stated that on #2, #3, #4 and #6, they all get down to how we define "dwelling unit" and secondary, how we define "kitchen". He stated the question is, do we continue on with our current broad definition of kitchen and, if that is the case, how do we exempt what would be legal or innocuous situations? Commissioner Lang stated she thinks she disagrees with Mr. Brown. She stated he may have gone too fast. Focusing on the definition of kitchens assumes that you are going to keep the same method of proof that you currently use, and that is some sort of physical evidence. She stated a very viable alternative method of proof has been suggested here, by using testers or people who would respond to an advertisement which would in essence get you admissions from the owners of the property, which would slip you very nicely into your existing definition which just requires the intent to have the premises occupied separately. You could obtain that admission very easily and safely if it were done in a non -confrontational manner, just gathering information, going back and writing an affidavit and submitting it to Code Enforcement Officers, or however you wanted to handle it. It is an alternative way of proving the same thing, that would completely remove four of the definitions, and would get us out of pushing the microwaves around which is what we are doing now. Commissioner Lang asked if Mr. Brown knows of any municipality that uses that method of proof? Mr. Brown stated he does not know of any, and in fact through the years he has been advised by attorneys that you cannot use evidence that is gained under false pretenses when you are essentially portraying yourself as other than an enforcement officer. He stated that is why we need to really pursue that with the City Attorney's office. It certainly could be another tool. Mayor Boro asked, why could you not say, "I am 'Phil Bull' from the Code Enforcement Office and I see you have an ad and would like to know what you are offering? There would be no false pretenses. It would be just like the person who went up to see someone who had a business advertised and we check and found he did not have a business license. We went out and told him he was running a business and needs a license. If someone is running an ad and we go out and say, "It doesn't make sense, you running this ad in this R-1 neighborhood, what's up?" He stated he does not think that is false. Mr. Brown stated that if the property owner says that this is a situation where he is renting a room and sharing household facilities, if they are that savvy, can we simply say, "OK"? Councilmember Cohen stated he would like to pursue this, and perhaps hear from the City Attorney's office. There are a number of instances where governmental entities use exactly this technique, like sending minors in to attempt to purchase cigarettes or alcohol, or police officers posing as prostitutes, where people are clearly portraying themselves as something other than they are, and simply an interested consumer as opposed to someone working on behalf of an agency that has police powers. He stated if we cannot get an answer tonight, it is something we should look into further. Mr. Guinan stated he will attempt to answer. He stated he believes that Councilmember Cohen is right, and that if someone is publicly holding out and advertising a room for rent a law enforcement officer/code enforcement officer can legitimately call and go to that residence and inquire about what is being offered. He stated he can see some real potential problems and before such a process would be initiated, he would suggest that he take a look at it more thoroughly and provide the Code Enforcement Division a written opinion that can address this specific issue. He stated he does not think there is a blanket prohibition on such things. On the other hand he does know you can get very politically into the area of entrapment if you are not careful. He stated that in his years of criminal practice, on the defense side, he used that successfully on several occasions. He stated it is not a black -and -white issue and does merit a little more SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 20 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 21 study. Councilmember Phillips stated that it strikes him as having merit but he also does not believe it is a panacea, because particularly with the demand for housing what it is, he suspects many are rented without an ad in the newspaper. Furthermore, those existing situations that are being rented do not fall into that category either. He stated that maybe one part of the answer, but not the complete one and he would not want to let it rest there. Physical evidence should be part of the definition in determining whether there is a violation. Mr. Brown agreed, and stated that after being burned once a property owner would be much more careful about how they advertised their unit and how they described it over the phone and then tried to assess it if they get an actual applicant, feeling it might be an enforcement officer. He stated it does give us an additional tool if it is legal, to try to identify situations that could be illegal. Councilmember Heller asked, could that also work a little better with the boarding houses? Mr. Brown replied that it would give us the opportunity to really try to define and obtain statements from property owners as to whether or not this is a true shared living situation, or truly independent living situation. He stated he keeps coming back to that, because renting of rooms, in and of itself, is not illegal. Renting rooms to people who operate and live totally independently of one another without sharing equally in financial and social settings in the house, is illegal. Mayor Boro recommended to Mr. Guinan that when he pursues this issue he might want to revisit the issue of penalty and what recourse we might have. He stated if we are serious about this and want to pursue it - he agrees that it is only one part - but it is just one way to go at it. If we are going to try to slow this illegal process down we have to get it whatever way we can. He stated it is very difficult when someone complains, the inspectors show up, the stove gets switched, and it is futile. He stated this might be a way to go, but he also thinks we should look at the penalty. When we have gotten serious about abating issues in certain parts of the City with respect to illegal conditions, we abated those issues and fined the property owners. Mayor Boro added that we have to do something with the definition and the loophole as an issue, but we can work with that. He is concerned when he reads something like, "Define and allow wet bars without cooking appliances or gas or 220 connection". He asked, what does that mean? Does it mean if I have a home and happen to have a family room with a wet bar and happen to have a 220 connection there, even though I am just living in that home, do I theoretically have a problem? Mr. Brown stated that is where the definition of "through access" is concerned. In some situations those are created as a perfectly acceptable use for the family but a subsequent owner takes that same physical setting and rents it out. Mayor Boro stated that in the process of renting it out, it is the renting out that is the problem, not having the wet bar. Mr. Brown agreed. Mayor Boro asked, why prohibit someone from having a wet bar with a 220 connection if they want to have that in their home or their cabana? He stated that in the process of having that, they now are promoting this illegal use, and that is another issue. When you read this, it is kind of crazy to say that people cannot have that kind of use in their home. He stated he thinks we have to frame it a little differently. It is the use of it, and not the presence of it. Mr. Brown stated that to the extent that we can, in a definition, focus on the use by two separate households living independently, that certainly is the true definition of the problem here. He stated the only concern we have is, how do you enforce? Even using the additional tool of looking at ads and following up on those, he is not sure of the extent that verbal comments and statement of intent from property owner, if that is truly illegal. It is the actual activity of renting and operating two separate households. Once again, to prove that, it goes to testimony from someone as to how these two families operate and live independently, if you do not have anything physical to base it on. He stated the additional tool would help. You would get a foot in the door and possibly educate property owners and dissuade some. However, we still need to work with the City Attorney's office to find out if merely verbal expressions of intent to rent under these conditions would be illegal. Mr. Guinan stated the answer to that is, "No". If it is just a simple intent without any sort of physical evidence to support it, it would be very difficult to find a violation. The idea of the testers is to get inside and to find out if there are any physical aspects in addition to the SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 21 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 22 intent of the individual in order to make some sort of violation stick. Commissioner Lang stated she is confused. She stated she is reading in clear terms the definition of a dwelling unit, which specifically says, "intended for occupancy". She stated that if a competent adult interviews a dwelling owner, who then makes admissions of intent to do this, and the competent adult reduces that to a sworn affidavit and presents it to the Community Development Officer, what more do you need to provide a violation for that Ordinance? Mr. Guinan responded that it is his opinion that you would need some indication of physical evidence from the structure, that in fact there was an illegal second unit there. Commissioner Lang asked, would you read the word "intended" to be meaningless? Mr. Guinan explained it is the question of how do you prove intent. He stated he would be glad to talk with Ms. Lang afterwards about it, but he really thinks that in order to prove intent you are going to have to show some sort of circumstantial evidence, whether it be physical or whatever, in order to support your statement. Commissioner Lang stated in that case we have a real problem. She stated we have done a great deal of work trying to find a definition of physical evidence that is provable and we cannot seem to do that after tremendous effort. She stated we have to look at alternatives and think creatively. We have a nicely worded Ordinance that is very broad and it seems we have to be looking for different ways to get them into this definition. She stated it does not require physical evidence, because microwaves move. Mayor Boro asked Mr. Guinan to take the scenario of having testers go out, and following Councilmember Cohen's idea of kids going in and buying cigarettes. He noted it is not going in and asking, "Do you have Camels for sale?", and then walking out the door. It is when you buy the Camels that you have the violation. He stated, perhaps you have to go the whole route, and go in and look at it, be a tester, and run it. He stated, then you have the proof. He stated he does not think we can solve this tonight, but he thinks it is something that it makes sense to pursue. Obviously we cannot set ourselves up for liability but it seems logical that if people are advertising the rooms and people are renting them, and they are illegal, we ought to somehow be able to intercede and prevent that. Councilmember Cohen stated that it will not get us anywhere to spend a lot more time tonight discussing and debating the issue but he would like to hear more about it because it seems to him that we are onto something that might be a different approach. He stated that the flip side of it may also help us because if what we are saying is "intended" and we can establish methods for proving intent, he noted that advertising for rent is pretty good admission of intent. He stated he would also like the City Attorney's office to explore the issue of adopting the stricter definition without the gaping holes that we have previously had, and leave it in some circumstances to the judgment of the Code Enforcement Officer to say, "OK (Mr. K.), you have shown me your house. A neighbor did call and complain. What you obviously have here is a wet bar in your family room. There is a counter and a sink and a microwave but I see no other evidence that you intend to operate this as a second dwelling unit and rent it out, so I am not going to pursue this complaint any further". Mr. Cohen noted that right now the Ordinance creates some loopholes, but it does not say that a second kitchen is inherently illegal. It says that having a second dwelling unit intended to be operated as a second dwelling unit is illegal. He stated that should be explored, because he thinks that having the loose definitions which are easy to get around is what has created the problem for us over the years in terms of enforcement. Mr. Cohen stated he does not think we need to adopt deed restrictions. He does not think that we need to start tomorrow morning putting the parking program together. He still remains open that if a neighborhood really want to come forward almost as a whole and say they would like to impose parking restrictions on themselves, we would then have to talk about the real cost to the City in enforcing such a program. He stated if we can combine definitions with some definition of what it used to say, "intended for use as a dwelling unit" that may help out. He stated it is not the good neighbor that is the problem. It is the abusive one, and we need to have the tools to deal with the abusive one without making the good neighbor a criminal. He stated he thinks we are getting close to that if we can pursue this issue of testers. He stated the problem of strictly going after advertisements is that it does not give the inspector something to look for when he does the RBR (Residential Building Report). There needs also to be a physical component to that. He stated he favors tightening up the definitions a bit and seeing where that takes us. If we find, six months or a year from now, that our net has become so tight that we are dragging them in and people need to explain themselves who are clearly not renting second units, then we will have to revisit the issue. It would SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 22 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 23 behoove us to have a tighter definition that Code Enforcement can work with and rely on them exercising some judgment when they decide to pursue a case of violation of the Second Unit Ordinance. Mayor Boro agreed with Mr. Cohen's remarks, but stated he was concerned when he spoke about the net and hauling people in here! He explained that is only because when someone sells their home and they happen to have a wet bar in it and also a microwave that they might pop popcorn on, he hopes that we are not to go in and say that this is an illegal unit and you need to abate it. Mr. Brown stated he thinks that what he is hearing is reliance more on the dual aspects of the intent to rent separately, and something physical there so we can use the tool to gain access. Even if there are 2 of the 4 components it still complies with the definition, and we should try to eliminate all of the potential loopholes that send us spinning. Mayor Boro asked about the definition of amnesty (#13). He stated he senses some negativity in the group and feels we are sending out the wrong message. He stated if people have an illegal unit for whatever reason and they want to legalize it, they ought to come in, and if it is strictly that people can meet the requirements, the Planning Commission and the Council will uphold the person's right to have it. He stated he does not think that has been keeping people from legalizing illegal units. He thinks it is because they cannot meet our requirements. Councilmember Heller suggested that #12 be deleted, and the entire group agreed. Mayor Boro addressed the issue of parking, stating he agrees with Mr. Cohen. If a neighborhood comes and says they have 75% of the neighbors who have signed -up and are willing to live with this, and please tell us how much it will cost and how it will be enforced, he would be willing to pursue it. He stated, however, he truly believes there will be many people who do not share some of the concerns that a lot of the audience tonight shares, about excess cars, because they feel they have a right to own as many cars as they want and they will park them on the street because that is where they live. Mayor Boro stated that if the City is to pursue this, they will need evidence of real support for it from a given community. He noted we have offered this before; this is not the first time. He noted we are installing speed bumps on Belle Avenue and the neighbors are supporting it. Mayor Boro stated he does not think we want to relax the Zoning standards (#15) . Mr. Brown noted using advertisements and renters' testimony to go toward the intent to rent separately. He stated another situation we face is looking at building permits for new additions, new homes, etc. He stated that in many cases we see a wet bar but it does not appear significant. In another set of plans we can be pretty certain that it eventually will be utilized as rental space. It is named something else, but it looks and smells like a second unit. However, we have no reason to deny the building permit. He is wondering how the Council and Planning Commission feel about providing staff with the opportunity to require deed restrictions in certain situations where there is exterior access, the components of an additional kitchen and adjacent rest room, and those cases where staff can suggest that the area can be separated from the rest of the home as an independent living unit. He wondered if staff could be allowed to require a deed restriction from the property owner. It creates a paper trail and notifies future buyers. It would allow staff to sign off the plan with a clear conscience. It also creates some paperwork in the file so that if there is subsequent Code Enforcement action we at least have some documentation that this was an issue the owner was made aware of. The other reason would be that as future owners purchase the property they purchase something that looks for all intents and purposes that it maybe has been rented out. There is a clear chain in the title that suggests to them that is not legal. Mayor Boro stated if someone is building and they have no intention of having a second unit they should not be concerned and the deed restriction should not in any way harm them. He recommended that Mr. Brown include the deed restrictions (#8). Mayor Boro noted that it was discussed earlier that the City Attorney would look at the issues of fines and penalties (#10 and #11). Commissioner Kirchmann stated he does not know if it is illegal or not, but the idea of requiring the illegal owner to pay some sort of relocation benefits to the displaced tenant strikes him as being equitable, if that is possible. SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 23 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 24 Councilmember Cohen stated, to follow up on that, if we move to definitions that rely less exclusively on the physical configuration, then the question comes, what does it mean to order a unit abated. He noted, if we say it is not the physical construction of the second kitchen that defines a second unit, abating it would mean physically removing the kitchen. He noted we even discussed concepts of making them take the gas line out, all the way back to the source for that particular connection. But if we are saying it is not those physical things, in and of themselves, that make second unit, there have to be other things. He stated he thinks increasing penalties and other ways of making it increasingly expensive to violate the Ordinance and get caught with an illegal second unit, it becomes more important. Whether it is the vehicle suggested here, or some other one staff can find, he does think progressive disincentives that get more severe should, with this new approach we are discussing, be effective. Mayor Boro stated that with regard to boarding houses he has a request. He stated that Ms. Miller has made statements tonight and, in fairness to her, she has reported problems in the past. He stated we owe it to her as well as ourselves to discuss the problems. He stated he is interested in knowing what options we might be able to offer her through the City, what private options she might have and, quite frankly because we are not hearing from anyone else on Aquinas Drive, he is interested in her representation that the whole cul-de-sac up there is living in terror because of what is happening. He stated he would like to get a sense of what is really happening there and if it is as represented, what can we do about it? If there is nothing to do about it we should say so. On the other hand, if we can do something he would like to know what our options are or options we might suggest that she might have as a private person to pursue this as a private nuisance. Mr. Brown agreed, and added that Ms. Miller contacted staff this week and said there is a tenant who wants to talk to us. We will interview that individual. We have not had that kind of cooperation in the past from tenants so that is another avenue. Mayor Boro asked if there is any other comment on boarding houses. Hearing none, he stated that now that staff has all of this input and ideas he is wondering when staff will report back. Mr. Brown stated it will be in late September or October. Councilmember Cohen referred to boarding houses and stated we need to reiterate that the California State Supreme Court has limited to an extent our ability to deal with this issue. He noted that, in connection with the remarks of the gentleman from Montecito who mentioned permits with different last names as being an indication of a boarding house, the State Supreme Court says that does not tell you anything. He stated it is not unwillingness or a lack of willingness on the part of the City and its officials, but a matter of interpretation by the California Supreme Court that limits the cities to regulate how people choose to live together. It would be helpful if we had more effective tools. He stated that when we have egregious examples we need to find ways to respond. Perhaps we need to call the IRS and ask to go over the records. He noted we have had repeated testimony about this particular incident and we really need to get to the bottom. He stated he cannot believe we are powerless, and perhaps there are other agencies that should be involved. He does not believe that there is nothing anyone can do and we must find a way to respond. Mr. Brown stated staff has been working on it and have inspected the home, looked at financial records from the owner and nothing led us to believe that there was anything beyond a commercial renting of rooms, beyond just a sharing of expenses or contribution toward expenses. However, having additional testimony would be helpful. He added that staff has inspected the garage and, as mentioned before, there is nothing that requires you to park in a garage. You are not allowed to convert a garage by adding heat, wall-to-wall carpeting or other installations that preclude you from parking in it, but people store beds and dressers in garages and we cannot legislate against that. Mayor Boro thanked the members of the Planning Commission and members of the Council for taking the time to be here this evening, and members of the public whose input was appreciated. There being no further business, the meeting was adjourned at 9:00 PM. SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 24 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 25 ALBERT J. BORO MAYOR OF THE CITY OF SAN RAFAEL JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF ROBERT M. BROWN COMMUNITY DEVELOPMENT DIRECTOR 2000 SRCC/PLANNING COMMISSION MINUTES (Spec. Jt. Workshop) 8/5/99 Page 25