No box for the situation

[Mike Kennedy]

Not necessarily.

Buildings don't violate laws because laws are written for people. People violate laws.

If you violate the local building laws and build an improvement which is a legal, permitted use the result is not an illegal use. And it's not necesarily an illegal improvement.

I've tried to pin down planning and building department officials including building inspectors. I'll say that a room addition was added to a residence on Main Street but there is no permit on file. Is the room addition illegal? Their answer is invariably "What makes you think it's illegal? They just need to get a permit if someone complains."

Suggest asking them if either their Zoning Code or their Building Code .....or their Municipal Building & Zoning Code Combo (inclusive of both Ordinances).......... defines what a violation is and what civil, monetary, and/or criminal penalties property owners may be subject to in the event they actually violate the Ordinance(s) (i.e. fail to comply, non-compliance, i.e. violation).

Excepting Legal-nonconforming uses which pre-exist the current B&Z ordinance(s), does erecting a new, or expanding an existing residential dwelling require a permit in compliance with the Ordinance(s)?

If so, should any property owner erect a new, or expand an existing residential dwelling without obtaining a building permit and/or supplemental c. of o., VIOLATE Municipal Law?

Yes or No. Suggest obtaining a copy of the pertinent BZ Ordinance(s), including the Enforcement provisions, for confirmation.

Failure of Municipal Employees to enforce the Law, or ignorance of the law, does not take the monkey off the homeowners' shoulders. Compliance does.

The monkeys on the Appraisers' back the USPAP Scope of Work and Competency Rules, SR1-1, (a),(b),(c), SR 1-2(e), (i)(iv), SR 1-3(a)(b).

 

[Lobo Fan]

I am happy to see that my confusion is shared. The in-law unit is accessible through the main house and through a separate entrance. It was included as part of the original construction, though by the layout of the second kitchen, I would guess that the range was added after the CO and inspection. If it had a permit, it would be admissible. Zoning enforcement in this area is fairly lax. I asked the question based upon the legal description and only gave out the address when they asked to check for a permit.

I turned it in as illegal zoning with a long explanation of what I was told by the zoning official. It does not affect HBU since the zoning allows for integral MIL units.

 

[Mike Kennedy]

"it does not affect HBU ............." IF it represents a legal, compliant, use.

Highest and Best Use, as of the Effective Date of Appraisal, MUST be Legally Permissible. If the improvement exists in violation of Municipal Ordinance due to non-compliance - it is not a legally permissible use AS OF the EDA. Municipalities typically have the option to either inspect and issue a C.O. and a fine, or depending on the improvement construction quality meeting Building Code - can, AND do ....require illegal improvements to be removed. Further, illegal improvements CAN nullify homeowners insurance policies unless they include a rider covering illegal uses.

 

[Mike Kennedy]

XI, 404.01: Zoning (01/31/06)
The appraiser is responsible for reporting the specific zoning classification for the subject property. The appraiser must include a general statement to describe what the zoning permits—“one-family,” “two-family,” etc.—when he or she indicates a specific zoning such as R-1, R-2, etc.

The appraiser also must include a specific statement indicating whether the improvements represent a legal use; a legal, but non-conforming (grandfathered) use; or an illegal use under the zoning regulations; or whether there is no local zoning.

** AS OF THE EDA. <<<<<<<< Not whether they MIGHT be able to comply in the future.


We generally will not purchase or securitize a mortgage on a property if the improvements do not constitute a legally permissible use of the land.

We do make certain exceptions to this policy, as long as the property is appraised and underwritten in accordance with the special requirements we impose as a condition to agreeing to make the exception:

•We will purchase or securitize a mortgage that is secured by a one-family to four-family property or a unit in a PUD project if the property represents a legal, but non-conforming, use of the land—as long as the appraiser’s analysis reflects any adverse effect that the non-conforming use has on the value and marketability of the property.
•We will purchase or securitize a condominium unit mortgage or a cooperative share loan from a project that represents a legal, but non-conforming, use of the land only if the improvements can be rebuilt to current density in the event of their partial or full destruction. (In such cases, the mortgage file must include a copy of the applicable zoning regulations or a letter from the local zoning authority that authorizes reconstruction to current density.)
•We will purchase or securitize a mortgage secured by a one-family or two-family property that includes an illegal additional unit or accessory apartment (which may be referred to as a mother-in-law, mother-daughter, or granny unit) as long as the illegal use conforms to the subject neighborhood and to the market. The property must be appraised based upon its current use and the borrower must qualify for the mortgage without considering any rental income from the illegal unit. The appraiser must report that the improvements represent an illegal use and demonstrate that the improvements are typical for the market through an analysis of at least three comparable properties that have the same illegal use.

The lender also must make sure that the existence of the illegal additional unit will not jeopardize any future hazard insurance claim that might need to be filed for the property.

 

[Webbed Feet]

<.... snip..>
What sayeth the gurus?

What sayeth the jurisdictional authority?

Webbed.

 

[Webbed Feet]

If this is the case, I'd mark it legal, but put the un-permitted bit all over the report.

So passed that bar exam huh?


Webbed.

 

[CANative]

Mike... Why can't you post in complete sentences? You sound so, so... pontifical.


The "punishment" is paying the permit feet (double) and if the assessor picks it up back taxes on the re-assessment if any.

 

[CANative]

We generally will not purchase or securitize a mortgage on a property if the improvements do not constitute a legally permissible use of the land.

This is where we disagree Mike. A garage is a legally permissable use and one which requires a building permit. It is a permitted use. If you don't get the permit it MAY still be a legally permissable use as long as it was built in compliance with the code. The thing about not having permits is that there now may be a question as to whether it it was built to code (permits are the evidence that it was.)

The appraiser can:

A. Avoid liability and make an EA that it complies with building codes and make the condition that the value is subject to verification or obtaining permits

or

B. Take on the liability and value the unpermitted structure as is, where is. Underwriting can decide how to proceed based upon their policies.

My area is so casual about this stuff (for the most part) that I usually take on the small amount of liability and we all move on. I do have some lender clients who are obsessed with this issue and when I appraise for them unpermitted improvements require the "A" option.

 

[Mike Kennedy]

Illegal is as Illegal does. Violation has a different definition in California? Interesting.


http://www.co.mendocino.ca.us/planning/MendoZO/ZOMendoIndex.htm



Sec. 20.736.015 Permit Conditions as Violations.

It shall be unlawful, and prohibited, to violate any term or condition of any permit or approval granted or issued under this Division including, but not limited to, use permits, variances, coastal development permits, business licenses, use and occupancy permits, and permits granted by the Historical Review Board of the Historical Preservation District for the Town of Mendocino. Any person, firm or corporation, whether as principal, agent, employee, or otherwise, violating any such term or condition shall be subject to sanctions provided in Section 20.736.010 of this Division.

Such person, firm or corporation shall be deemed to be guilty of a separate offense for each and every act during any portion of which any violation of such term or condition is committed, continued or permitted by such person, firm or corporation and shall be punishable as herein provided. (Ord. No. 3915 (part), adopted 1995)

Division III of Title 20--Mendocino Town Zoning Code

​

CHAPTER 20.736 ENFORCEMENT​

​

Sec. 20.736.005 Officials, Duties.
Sec. 20.736.010 Penalties.
Sec. 20.736.015 Permit Conditions as Violations.
Sec. 20.736.020 Cumulative Remedies.
Sec. 20.736.025 Public Nuisance - Abatement.
Sec. 20.736.030 Notification of Litigation Concerning Development in the Coastal Zone and Attorney General Intervention.
Sec. 20.736.005 Officials, Duties.

(A) All departments, officials, and public employees of the County which are vested with the duty or authority to issue permits or licenses shall conform to the provisions of this Division and shall issue no such permit or license for uses, buildings or purposes where the same would be in conflict with the provisions of this Division and the Coastal Element of the General Plan.
(B) It shall be the duty of the Planning and Building Services Department and of the officers of the County herein and/or otherwise charged by law with the enforcement of this Division to enforce this Division and all provisions of same.
(C) The Planning and Building Services Department is hereby authorized to issue Stop Work Orders to prohibit further construction or use of structures and property involving violations of this Division. Such Stop Work Orders shall remain in effect until violations are eliminated. (Ord. No. 3915 (part), adopted 1995)
​

Sec. 20.736.010 Penalties.

(A) Violation of this Division may be an infraction, and may be punishable by fines as specified in Government Code Section 25132, and/or by civil fines as specified in Public Resources Code Section 30820. Such violations may also be redressed by civil action through the Office of the County Counsel and/or the Office of the Attorney General. A separate offense shall be deemed to have occurred for each and every day a violation occurs after the first citation is issued, and for each day a separate violation is noted or upon which a continuing violation persists.
(B) Any violation of provision of this Division may cause to be filed for the record with the Recorder of the County in which the real property is located a notice of such violation and a lien of the estimated permit costs and penalties (such fees shall be further evaluated at the time of restitution). The notice shall specify the names of the record owners and particularly describing the real property, provided that, at least thirty (30) days prior to recording such notice and/or lien the owner of the parcels or units to be affected by the notice of violation, shall be advised in writing of the intention to record the notice specifying the time, date and place at which the owner may present evidence to the Department of Planning and Building Services as to why such notice should not be recorded. The decision of Planning and Building Services may be appealed to the Board of Supervisors.
(C) Any person who demolishes, alters or constructs a building or structure in violation of this Division may be required to restore the building or structure and its site to its appearance prior to the violation. In addition to any other remedy, the County of Mendocino may obtain injunctive relief in any court of competent jurisdiction ordering the cessation or removal of work without the required approval. (Ord. No. 3915 (part), adopted 1995)
​

Sec. 20.704.010 Accessory Uses Encompassed by Principal Use.

(A) In addition to the principal uses expressly included in the zoning districts each use type shall be deemed to include accessory uses which are specifically identified by these Accessory Use Regulations; and such other accessory uses which are necessarily and customarily associated with, and are appropriate, incidental, and subordinate to, such principal uses. When provided by these regulations, it shall be the responsibility of the Director to determine if a proposed accessory use is necessarily and customarily associated with, and is appropriate, incidental, and subordinate to the principal use, based on the Director's evaluation of the resemblance of the proposed accessory use to those uses specifically identified as accessory to the principal uses and the relationship between the proposed accessory use and the principal use. Accessory uses shall not include manufacturing, processing or transportation of flammable, combustible, explosive, toxic or other hazardous materials. Such determinations which are made by the Director shall be subject to the administrative appeal procedure commencing at Chapter 20.728.
(B) An accessory structure may be constructed prior to the construction of a dwelling on the premises. An accessory structure shall not be used for temporary or permanent occupancy as a residence, without compliance with Section 20.708.025(B) (Construction Support). Accessory uses and structures shall be subject to the provisions of Chapter 20.720 (Coastal Development Permit Regulations). (Ord. No. 3915 (part), adopted 1995)
​

Sec. 20.704.010 Accessory Uses Encompassed by Principal Use.

(A) In addition to the principal uses expressly included in the zoning districts each use type shall be deemed to include accessory uses which are specifically identified by these Accessory Use Regulations; and such other accessory uses which are necessarily and customarily associated with, and are appropriate, incidental, and subordinate to, such principal uses. When provided by these regulations, it shall be the responsibility of the Director to determine if a proposed accessory use is necessarily and customarily associated with, and is appropriate, incidental, and subordinate to the principal use, based on the Director's evaluation of the resemblance of the proposed accessory use to those uses specifically identified as accessory to the principal uses and the relationship between the proposed accessory use and the principal use. Accessory uses shall not include manufacturing, processing or transportation of flammable, combustible, explosive, toxic or other hazardous materials. Such determinations which are made by the Director shall be subject to the administrative appeal procedure commencing at Chapter 20.728.
(B) An accessory structure may be constructed prior to the construction of a dwelling on the premises. An accessory structure shall not be used for temporary or permanent occupancy as a residence, without compliance with Section 20.708.025(B) (Construction Support). Accessory uses and structures shall be subject to the provisions of Chapter 20.720 (Coastal Development Permit Regulations). (Ord. No. 3915 (part), adopted 1995)
​

 

[Lobo Fan]

I didn't get a chance to quiz the zoning official. I picked up his VM after hours on Friday. The report was overdue already so I went with what I had. I suspect that the issue may have been addressed during the original construction, though my suspicions are that the stove was not there during the CO inspection. It is at the end of the cabinets.

The zoning guy did not seem to be too concerned about it. It wouls be marginally suitable as a rental. It had access to the main house, though I am sure a one way dead bolt would not be hard to install.

Thanks for all the input. This has been educational.