City Council
Report
City Council Meeting: November 1, 2016
Agenda Item: 4.A
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To: Mayor and City Council
From: David Martin, Director, Planning and Community Development, Code Enforcement
Subject: Vacant Property Study Session
Recommended Action
Staff recommends that the City Council:
1. Review options available to City Staff;
2. Provide policy guidance on the code modifications; and
3. Direct staff to proceed with modifications to existing code.
Executive Summary
At its May 10, 2016 meeting, Council requested that staff return with proposals for the regulation of vacant buildings in Santa Monica, including proposals for registering vacant buildings, regulating the maintenance of vacant buildings, and requiring that the owners of buildings with valid permits for rehabilitation, repair, or construction of a building complete the work within a specified time certain from the date the permit was issued. Council also asked staff to review the Vacant Property Ordinance for the City of San Francisco.
Staff conducted a field assessment of vacant commercial and residential buildings within city limits, researched city records of these vacant properties and conducted an analysis of vacant building and property maintenance ordinances of other California cities. Staff determined that there are currently 29 vacant properties, not including properties that are vacant due to active construction or vacant properties that are being offered for sale or lease and have no nuisance violations.
After reviewing the options available to the City, staff concluded that it was necessary to conduct a study session with City Council to put forth a recommended action, provide available alternatives, and return to City Council with a proposed amendment to the existing code, if directed.
Staff’s recommendation is an amendment to SMMC 8.96 – Abatement of Public Nuisances to include additional violations related to vacant buildings, including but not limited to issues that are commonly associated with vacant and/or abandoned structures such as buildings left vacant and buildings left in a state of partial 2 of 17
construction for an unreasonable period of time, and direct staff to return with a draft ordinance for consideration.
Council could also consider these alternatives:
Status Quo
Establishing a Vacant Properties Registry
Background
At its May 10, 2016 meeting, Council directed staff to review the Vacant Property Registries of other cities, specifically San Francisco, with the purpose of determining whether or not such a registry would be appropriate to address vacant properties in the City of Santa Monica. Council asked staff to return with a recommendation that included alternative solutions for regulating vacant properties in Santa Monica.
Existing Laws
Both state and local law currently provides a substantial set of tools to remedy vacant properties that present safety concerns. However, such laws generally do not address issues related to aesthetics such as windows that have been boarded up. Under existing state and local law, a structure that is simply unoccupied (i.e. vacant) is not an illegal condition or a nuisance; rather, existing law addresses very specific conditions that exist on a property.
Additionally, unoccupied properties with active construction are also not a violation of local law, even if the construction project leaves buildings in a state of partial construction for a very long period of time, as long as there are no nuisance, safety, or other code violations present.
Local Laws:
The City’s Building Code outlines the requirements for the start and completion of construction (Attachment A). There is also authority in the Building Code to compel a responsible party to maintain buildings and structures, and parts thereof, in a safe and sanitary condition and maintain devices or safeguards that are required by the Building Code in conformance with the code under which it was installed (Attachment B). 3 of 17
Santa Monica Municipal Code (SMMC) section 7.44 – Weeds makes the presence of overgrowth or dead vegetation on the properties a nuisance condition.
SMMC section 7.48.070 – Owner to maintain premises free of litter compels abatement of these conditions and makes the presence of junk, trash, or debris a nuisance, which includes the storage of furniture, appliances, or abandoned vehicles outdoors.
For violations associated with unoccupied properties that are not covered under Chapter 7, staff takes enforcement action using SMMC 8.96 – Abatement of Nuisances.
A list of what the City declares to be public nuisances can be found in SMMC 8.98.050 – Public Nuisances, included in Attachment C.
State Laws:
State law provides a stronger set of remedies for enforcing safety violations related to vacant structures.
California Fire Code Section 311 – Vacant Premises provides the Santa Monica Fire Department (SMFD) with the authority to address vacant buildings that are unprotected and unsecured thereby allowing for the possibility (or existence of) illegal activities.
Section 311 requires vacant buildings to be secured and protected, fire protection equipment be maintained, and even fenced and boarded if such measures are deemed necessary by SMFD to protect public safety. Similarly, the California Building Code authorizes the Building Official to take actions to protect public safety, up to and including demolition, if a vacant building presents imminent safety hazards, e.g. structure failure or collapse.
Penal Code Section 372 provides that “Every person who maintains or commits any public nuisance . . . or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.” Penal Code Section 370 broadly defines “public nuisance” as “[a]nything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as 4 of 17
to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood.” California Courts have broadly interpreted this provision and have long held that properties that create dangerous conditions; disturb the public peace; or that unreasonably interfere with the community’s enjoyment of peace, health, safety and convenience, constitute public nuisances. See, e.g., People v. Mason (1981) 124 Cal.App.3d 348 (excessive noise from a restaurant constituting public nuisance); San Diego County v. Carlstrom (1961) 196 Cal.App.2d 485; City of Bakersfield v. Miller (1966) 64 Cal.2d 93 (building and fire code violations constitute public nuisances); Miller v. Schoene (1928) 276 U.S. 272 (diseased trees are public nuisances); See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1108-1109 (pervasive gang activities are public nuisances).
Additionally, Health and Safety Code Sections 17960, 17980, 17980.6, 17980.7 and 17982 authorize the City to enforce the State housing and nuisance laws and seek the appointment of a receiver when a property owner fails to comply with an administrative enforcement order.
While none of these state laws generally apply to aesthetics concerns, they provide very robust remedies to ensure that the public’s health and safety are protected. The Santa Monica Police Department, Fire Department, Building and Safety Division and Code Enforcement Division, in cooperation with the City Attorney’s Office, have had numerous successes in eliminating public nuisances using these state law remedies, and we remain confident that such remedies remain highly viable to protect public safety.
More details regarding the existing state and local laws currently used to enforce violations commonly associated with vacant properties is included in this report as Attachment C.
Discussion
At its May 10, 2016 meeting, Council directed staff to review the Vacant Property Registries of other cities, specifically San Francisco, with the purpose of determining 5 of 17
whether or not such a registry would be appropriate to address vacant properties in the City of Santa Monica. Council asked staff to return with a recommendation that included alternative solutions for regulating vacant properties in Santa Monica Santa Monica law does not currently deem a vacant property in and of itself to be a violation of local law. Indeed, a property could be vacant for a number of innocuous reasons. For instance, a property owner may temporarily live overseas and may only return to his/her home here in Santa Monica infrequently, which results in the home being vacant through much of the year. This report focuses on nuisance conditions and other violations associated with vacant buildings, the authority granted to staff to address certain conditions, the limitations of authority in certain cases, and the options available for consideration.
Types of Vacant Buildings
The Santa Monica Municipal Code (SMMC) does not specifically define what constitutes a vacant property. For the purposes of this study session, staff is not including vacant properties that have permitted active construction or are actively being offered for sale or lease, provided these properties are void of any nuisance conditions typically present when considering if the property has been abandoned or is a nuisance. However, properties that have active building permits but have not yet commenced construction are counted as vacant for purposes of this discussion.
Although a building may be rendered vacant for the reasons outlined in the following list below, the building may still not violate any laws:
abandonment;
foreclosure;
death of a property owner;
a removal from the rental market pursuant to the Ellis Act; voluntary repair or rehabilitation;
fire damage, or other unnatural cause
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natural disaster
Types of Violations Associated with Vacant Buildings
A building allowed to remain vacant does not in and of itself constitute a nuisance or a violation of any other laws. Complaints and concerns that staff receives from the public are typically regarding nuisance conditions that are commonly associated with vacant properties. Staff does not typically receive complaints from the public due to buildings merely being vacant.
Common nuisance violations associated with vacant buildings include:
miscellaneous junk, trash, and debris, appliance and other household items; abandoned or inoperable vehicles;
inoperable/discarded household appliances;
lumber and building materials except during construction operations; and access by unauthorized persons
To address these concerns, Code Enforcement staff has used the local and state laws identified above to compel compliance with applicable codes to address some of the conditions that result from buildings sitting vacant for extended periods of time.
As stated earlier, staff has been unable to compel responsible parties to eliminate some aesthetically blighted conditions through enforcement due to the absence of specific municipal codes to address these conditions. For example, Code Enforcement staff does not currently have the authority to take action against a property owner in cases where structures have been left in a state of partial construction, but the property is properly fenced, secured, maintained and does not otherwise pose any threat to public safety.
Council has also expressed concern about the length of time a construction project is permitted to continue. Santa Monica Municipal Code 8.08.070 – Permit issuance, 7 of 17
extension and renewal outlines the requirements for the start and completion of construction. This section states that building permits become null and void if:
the building or work authorized by such permit is not started within 180 days from the date of permit issuance;
the building or work authorized is suspended or abandoned at any time after the work has started, for a period of 180 days or more; or the time allowed to complete construction has been exceeded.
The life of the permit varies from one to four years depending on the valuation of the construction project. An extension of time may be granted by the Building Official under certain circumstances, but the time set forth to complete construction may be extended no more than three times. Landmarks projects may be extended up to four times.
Extensions of time are granted in 180-day increments. Even if extensions are denied or all extensions are exhausted, the Municipal Code does not compel an owner to finish a project.
Santa Monica’s approach to permit extensions is in line with other local cities in that all allow for at least one extension of a building permit and possibly more with a justifiable reason.
Santa Monica Vacant Building Inventory
Code Enforcement staff conducted a field assessment of known vacant properties located within Santa Monica city limits. There are currently 29 vacant properties in the city known to staff. Included as Attachment D is a map that illustrates how these vacant properties are distributed throughout the city.
Of the 29 vacant properties included in this analysis,
15 are single family residences
o 5 have been abandoned
o 5 have permits to remodel or rebuild but construction has not commenced
o 3 have constructions permits currently under review
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o 1 is vacant due to a fire
o 1 is vacant due to the death of the property owner
10 are multi-family residential properties
o 6 have been vacated pursuant to the Ellis Act
o 2 have been abandoned
o 1 is vacant due to the death of the property owner
o 1 is a delayed construction project
3 are commercial properties
o 2 have permits to remodel but construction has not commenced o 1 is a large development project under review
1 is a mixed-use property with a permit to remodel, but construction has not commenced
Of the 29 buildings currently vacant, only ten are vacant with no active project in the works or no Ellis withdrawal in process. Separately, there are 24 properties in Santa Monica that are pending Ellis Act removal and 34 properties that have been Ellised since 2011 that are in various stages of the waiting period. Some of these properties could stand vacant for various periods of time in the future.
Staff’s analysis of the City’s vacant buildings revealed varying degrees of maintenance.
Staff has received 23 complaints over the past twelve months related to some of the vacant properties, including complaints about overgrown vegetation, weeds, debris, and trespassers. All 23 complaints have been investigated by Code Enforcement staff and enforcement action was taken when violations were discovered. In cases where vagrants and/or unauthorized persons have gained access to vacant properties, Code Enforcement staff works with SMPD to clear the property and with SMFD to secure the property.
Staff received four complaints regarding vacant structures that alleged construction work without a required permit and were addressed through enforcement action using SMMC 8.08.050 – Permits required. Those cases were brought into compliance by 9 of 17
compelling the responsible party to obtain all required construction permits and approvals.
The Code Enforcement Division received a total of 3,160 complaints in the past twelve months. The 23 nuisance complaints related to vacant properties represent less than 1% of all complaints received by Code Enforcement.
Case Examples
3004 Broadway (Attachment E) has been in various stages of construction since 1996.
Since then, 25 Code Enforcement cases have been opened for violations such as overgrown vegetation, weeds, trash and debris. These cases have been investigated and the violations either abated or unsubstantiated. Because the property is currently properly fenced, secured, maintained and does not otherwise pose any threat to public safety, no further enforcement actions are pending. Despite such, the Code Enforcement Division continues to receive intermittent complaints indicating that this unfinished building represents a visual blight.
1512 Euclid (Attachment F) is an abandoned duplex with a history of complaints regarding overgrown vegetation and harboring vagrants. Through enforcement action, this property is currently secured and is not currently in violation of local law.
Staff recently received complaints regarding the following “vacant” buildings in the city:
900 Wilshire – Investigation revealed that 900 Wilshire is a commercial building not under any active construction. Immediately adjacent to 900 Wilshire sits a residential development under construction at 1211 9th St. (Attachment G). The adjacent property is not in violation of existing law and under the accepted definition of vacant properties is not included in this report as the construction is current and ongoing. 1334 9th St. (Attachment G) – At the time staff received the most recent complaint, there were no existing nuisance violations on the property. A complaint received on 05/02/16 from SMPD revealed nuisance conditions on the property including discarded household items, abandoned/inoperable vehicles, and vagrants. Code Enforcement 10 of 17
staff worked cooperatively with SMPD and the property owner representatives to address the conditions on the property using existing codes. The property owners worked with Code Enforcement and SMPD staff and removed all unauthorized persons from the property, boarded and secured the property, and removed all discarded household items and vehicles from the property. The property is currently void of any nuisance violations and the owners have obtained permits to remodel. 1238-1242 10th St. (Attachment G) – At the time the most recent complaint was received there were no existing nuisance violations on the property. The property was undergoing permitted construction and was in compliance of all regulations except proper tenant notification of construction. The construction project was stopped by code staff until proper tenant notification was complete. The property owner’s representative immediately complied and work commenced.
1264 9th St. (Attachment G) - Property being vacated pursuant to the Ellis Act. No existing nuisance violations on the property.
2318 Ocean Park Blvd – This property has been the subject of complaints about its blighted condition. The owner received a demolition permit in the summer of 2016 and the building is currently being demolished.
The case examples of existing vacant properties in Santa Monica illustrate that while some vacant properties contain conditions that violate various sections of the municipal code, staff has addressed those issues through compliance efforts with existing statutes while other properties, considered eyesores by some neighbors, are not in violation of existing law.
San Francisco’s Vacant Property Registry
Council asked staff to take a specific look at the vacant property registry adopted by the City of San Francisco in 2009. The ordinance (Attachment H) requires registration of vacant buildings, maintenance and securing of the exterior and interior of the vacant building and provides that a property in violation of the requirements is a public 11 of 17
nuisance. Fire and liability insurance is also required of vacant and abandoned buildings.
San Francisco defines a building as vacant or abandoned if it is:
unoccupied and unsecured; or
unoccupied and secured by boarding or other similar means; or unoccupied and unsafe as defined by their code; or
unoccupied and has multiple code violations; or
unoccupied for over 30 days
A building in San Francisco is not considered vacant or abandoned if:
There is a valid building permit for repair, rehabilitation, or construction of a building on the parcel and the owner completes the repair, rehabilitation, or construction within one year from the date the initial permit was issued; or The building complies with all codes, does not contribute to blight as defined, is ready for occupancy, and is actively being offered for sale, lease, or rent.
Registration of a vacant and abandoned residential building in the City of San Francisco is required 30 days after it has become vacant or abandoned. Fees are due upon registration. Signs are required to be posted on registered properties that provide the name and contact information for the owner and owner’s representative or the lender’s name and contact information if the property has a notice of default or foreclosure recorded.
Exterior maintenance requirements of vacant and abandoned buildings include:
Landscaping and plant materials in good condition;
Regular removal of exterior trash, debris, and graffiti; Exterior of the building in good condition that is structurally safe and preserves the physical integrity of the structure, including but not limited to paint and finishes, foundation, roof, chimneys, flues, gutters, downspouts, scuppers, flashing, skylights, windows, exterior stairs and decks; Prevention of criminal activity and trespass by unauthorized persons; 12 of 17
Turning off utilities that are not necessary for the upkeep and maintenance of the building.
Interior maintenance requirements of vacant buildings include:
Preserving the interior of the building from damage by the elements or plumbing leaks, keeping it free from accumulation of garbage and other debris, and from infestation by rodents, insects, or other pests.
Partially vacant commercial buildings in the City of San Francisco are covered under a separate ordinance No. 182-14. Under this ordinance, commercial buildings vacant for more than 30-days must be registered. Unlike vacant residential buildings, a fee is not required until 270 days after the commercial building has been registered.
San Francisco’s vacant property registry ordinance was adopted in 2009 in response to the housing crisis and continues to be actively enforced today. San Francisco currently has “several hundred” registered vacant structures and according to staff, the number is “significantly lower” number than in years past.
Santa Monica’s Vacant Properties - Staff Recommendation Staff recommends that Council direct staff to bring back an amendment to SMMC 8.96 – Abatement of Nuisances that expands the types and scope of nuisance conditions deemed to be a violation of code and include violations for which Code Enforcement staff are currently not authorized to take enforcement action, such as:
Residential or commercial buildings left in a state of incomplete construction, for a period of 12 months (excluding such time when work is in progress pursuant to a valid building or other construction permit)
The City of Santa Monica Municipal Code does not currently authorize enforcement against a building that has been left in a state of partial construction for a long period of time and there are limited options to address aesthetics complaints made against such buildings, especially when conditions on the property do not pose any life safety hazard.
Amending local law to preclude such long periods of unfinished construction would 13 of 17
allow staff to compel an owner of a vacant building to resume abandoned/significantly delayed construction activity in a reasonable period of time.
While state law authorizes the Fire Department to order boarding and securing, that authority is not available to Code Enforcement staff. Staff recommends amending local law to grant this authority to the Code Enforcement Division so that existing City enforcement staff can be available to address this concern.
The advantages to amending the existing nuisance code include:
Minimal staff time and resources to draft ordinance
Reduces the need for potential additional staff resources Has the potential to address some of the community’s aesthetics concerns related to construction projects that have not been completed The disadvantages to amending the existing nuisance code include:
Besides partially completed construction, aesthetics judgements can be difficult to make objectively. This can make enforcement of the aesthetics component difficult.
Alternatives:
1. Status Quo
Council could opt to direct staff to continue enforcing nuisance and other code violations associated with vacant properties by continuing to use local and state laws to compel compliance with such violations. With only 10 properties within city limits that do not have an active construction project, Ellised, or are not under current development review, Council could determine that while there are properties in the City that have been vacant for varying lengths of time, the City does not have a significant number of vacant properties and that staff is not experiencing significant challenges with addressing conditions on vacant properties that generate complaints. Staff would bring a cleanup ordinance back to Council to clarify and streamline requirements set forth in SMMC Chapter 8.96 – Abatement of Nuisances.
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The advantages of maintaining the status quo include:
Maintaining current staff resources
Ability to draw clear lines between safety concerns (which are actionable) and aesthetics concerns (which generally are not)
The disadvantages of maintaining the status quo include:
Two properties currently in the City that are in a state of partial construction will continue in their current state until the owners elect to move forward with a new construction project.
2. Vacant Properties Registry
A Vacant Properties Registry is a list of all vacant properties in the city, and typically includes fees for registration and requirements for maintenance of the properties. Staff reviewed the vacant property policies of 29 California cities. Twenty-one of them have adopted registries to manage vacant properties. All but one adopted a Vacant Properties Registry in part or entirely as a response to the increased number of foreclosed properties resulting from the housing crisis of 2008-2009. The sudden increase in foreclosures meant a spike in vacant buildings, and residents complained that bank-owned properties were not being adequately maintained. For these reasons, these cities created registries to monitor and enforce the maintenance of these properties.
Although the majority of these cities still enforce their registry requirements, they also report a significant decrease in the number of vacant properties as the number of foreclosures has significantly declined, and some cities have ceased enforcing their registries in favor of alternative measures. The City of Pasadena, for example, no longer enforces its Vacant Property Registry, but instead uses its Property Maintenance Ordinance. Pasadena reports that its Property Maintenance Ordinance is sufficient to ensure vacant properties are being adequately maintained (Attachment I). Pasadena’s ordinance covers every issue that is commonly associated with vacant and abandoned structures including buildings left vacant and buildings left in a state of partial 15 of 17
construction for an unreasonable period of time (14.50.040 - Prohibited activities or conditions, #13).
In addition to Pasadena, eight of the surveyed cities have ordinances that provide for enforcement against properties that are left vacant due to construction delays or construction projects that have been abandoned through their adopted Property Maintenance Ordinances.
The advantages of adopting a Vacant Property Registry include:
Permit fees associated with registration will defray some staff costs The disadvantages of adopting a Vacant Property Registry include:
Substantial staff resources to develop the program
Substantial staff resources to administer the program depending on the number of registered properties and the frequency of monitoring requirements Staff resources to monitor vacant properties that otherwise do not have a nuisance or other condition injurious to the public
Very low number of complaints regarding vacant buildings in Santa Monica Difficulty in defining which buildings are sufficiently “vacant” as to require registration
Included as Attachment J of this report is a chart comparing how other local cities handle the regulation of vacant properties.
Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the recommended action, or as a result of maintaining the status quo. If Council were to direct staff to establish, maintain and monitor a Vacant Property Registry, staff resources would be necessary to:
Draft a Vacant Property Registry ordinance
Develop program guidelines
Develop monitoring/enforcement policies and procedures 16 of 17
Create documents and forms
Conduct field survey of vacant properties
Prepare and send property owner notifications
Facilitate registry
Inspect properties for compliance
Enforcement
Conduct statutory monitoring
Maintain current list (additions and deletions)
Prepared By: Sharon Guidry, Code Enforcement Manager
Approved Forwarded to Council
Attachments:
A. SMMC 8.08.070 Building Code Requirements
B. Building Code 3401.2
C. Local State Law
D. Vacant Properties Map
E. 3004 Broadway
F. 1512 Euclid - BEFORE
G. Case Examples
H. San Francisco Ordinance 194-09
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I. Pasadena Chapter 14.50 - Property Maintenance and Nuisance Abatement J. Regulation of Vacant Properties City Comparison Chart K. May 10, 2016 City Council Meeting