No box for the situation

[Randolph Kinney]

I am curious to know what the liability and ramifications are for the appraiser if an appraiser cannot determine the status of permits (the absence of a permit) and then proceeds with Mr. Kennedy's instructions (advice) to call the improvement "illegal" according to zoning and so marking the form "as-is" with no value to the non-permit area (and cost to cure) or "legal" subject to obtaining permit and with value.

If it turns out as Lobo Fan is suggesting, that the area under roof constituting the in-law unit was approved at the time of construction of the whole improvement by the JA, does the appraiser qualify for sanctions by 1) lender/client 2) FHA or Fannie (if it goes to either) 3) property owner filing a civil suit or compliant with the state for harm done to him?

 

[c w d]

Illegal is as Illegal does.

Mr. Kennedy-Gump, Life is like a box of chocolates. And each one can be eaten in many different ways. Whether the structure was properly permitted is secondary to whether it was built to code and in compliance with zoning ordinances. Permitting is typically a formality. Regardless of what a municipality "can" do, the typical response is not to destroy a structure which meets code and zoning requirements. The typical response is to require the HO to permit the structure formally.

With that said, we must considered our client in these instances. First and foremost, they are concerned with this investment. If they are lending money on a structure they are most definitely concerned with if the structure can be rebuilt and is not going to be required to be torn down. After all, as all know, however unlikely, the municipality "can" require said unpermitted structure to be removed. The client is most likely going to require that the structure be properly permitted before lending money, of course.

Again, I postulate, does a nonpermitted secondary structure make the whole an illegal use? While I understand your Gumponian statement "illegal is as illegal does", it lacks a certain depth and quality in the nature of its description. In fact, I'd file a complaint if an inspector used it to describe the status of the secondary dwelling. Regardless, I do not believe "a" non-permitted or illegal structure voids the legal status of the main dwelling. If it did then the main dwelling could be subject to removal. But, then that would just be ridiculous! Would it not? As such, because of the lack of consensus, the OP of this thread would be best advised to evaluate the subject property without consideration for the MIL that is not permitted. Check legal, comment comment comment caveat, opine value, submit appraisal.

Regardless of how strongly we may want to argue our points, the OP did request how best to approach this in the appraisal. So, get to it.:new_multi:

 

[CANative]

Mike,

As usual you have done a great job in google'ing and copy/paste. In this case you have verified my position that the building without permits when permits are required is a violation of codes and laws. The perp is guilty but the building is not guilty.

Also, you have posted the passages that most suit your arguments and left out more relevant codes and laws. When you looked zoning code up you must have seen all three versions of Mendocino County codes. Inland Zoning, Coastal Zoning and Mendocino Town Zoning. Coastal zoning is subject to the requirements of the California Coastal Commission which are oppressive and apply to all properties along the 900+ miles of coastaline. They have special status which can override the JA of county/city. Mendocino Town Zoning applies only to that tiny area more commonly known as "the Village of Mendocino" west of Hwy 1, east of the ocean, south of Pallette Drive (+-) and north of Main St.(+-) It's an historic area and almost all of the buildings and houses have historic designations. You can't drive a nail without getting permission and everyone knows it. It's also in the Coastal Zone.

 

[PropertyEconomics]

If it turns out as Lobo Fan is suggesting, that the area under roof constituting the in-law unit was approved at the time of construction of the whole improvement by the JA, does the appraiser qualify for sanctions by 1) lender/client 2) FHA or Fannie (if it goes to either) 3) property owner filing a civil suit or compliant with the state for harm done to him?

I think you have hit the nail on the head. In Lobos post it appears he is going to mark the use Illegal even though he states the improvements were all constructed at the same time. I am just as sure during that time there were building inspections completed on the home.
In Mr Kennedys world .. the home would be burned down because its "illegal" which I personally dont believe in this instance it to be. I believe an owner put in a stove ... thats what I believe. It is farsical to conclude that tearing down these improvements would ever be enjoined by a court of law in New Mexico. No matter the hard *** stance of those in New York. Here .. it is simply not going to happen and Lobo Fan freely admits this in his post. At some point an appraiser needs to be practical in their analysis. Contacting the builder should have been undertaken and the questions asked instead of relying on someone that 1) Doesnt remember the property, 2) Wont take the time to research the issue and 3) Probably couldnt find the exisiting permit if they tried (and again I do believe it exists).
At some point there will be someone that will produce the "missing" permit and those that have all marked the property illegal will eat their words, eat their fees, and pay a nice healthy settlement against them for the harm they have done to the borrower and the lender.

 

[Mike Kennedy]

Residential Building Permits


In accordance with the Los Alamos County Development Code, no building or structure regulated by the Code shall be erected, constructed, enlarged, altered, repaired, moved, improved, removed, converted, or demolished unless a separate permit for each building or structure has been obtained from the Community Development Department. A residential building permit shall not be required for the following:

• Moveable cases, counters, and partitions not over 5'9" high;
• Water tanks on grade of 5,000 gallons or less;
• Concrete pads, walks, and driveways on private residential property;
• Painting, wallpaper, tiling, carpenting, cabinets, counter tops, and similar finish work;
• Temporary motion picture and theater stage sets and scenery;
• Window awnings supported by an exterior wall which do not project more than 54";
• Above ground swimming pools of 5,000 gallons or less;
• Tree houses or other play structures for children.

Unless otherwise exempted, separate plumbing, electrical and mechanical permits will be required for the above items. Such permits are issued by the State of New Mexico.

All building permit plans must meet the 2003 International Codes and the Incorporated County of Los Alamos Code.
Most residential building projects can be completed with an over-the-counter building permit. Please check "Over-the-Counter Building Permits" under "Building Permits".

However, if you are building a new residence or an addition, then you will need a regular residential building permit, which can be picked up at 901 Trinity Drive, Los Alamos NM 87544 or downloaded below.

Two sets of building plans and other documentation, including a surveyed plot plan, will be required with a plan review fee. The plan review fee is 65% of the estimated permit fee, which is calculated based on the valuation of the project.
We will call you when your building permit is ready. Most residential building permits take fifteen business days to process.

*** Don't start construction before obtaining your permit or you will pay double fees and may risk pulling out some of your work for inspection purposes.

Please call us if you are unsure what type of permit you need and/or any questions about your submittal at (505) 662-8120.

New Mexico's CID Homeowner Responsibility Form

New Residential Home or Addition for Homeowners Full Packet 818 KB PDF Document


¾

I am familiar with the New Mexico Building Code, the Construction Industries Licensing Act, the Construction

Industries Division Rules and Regulations, and the building requirements of the jurisdiction in which I
plan to build my ho me or in which my home is located.​

¾ I will comply with all applicable building codes and requirements.


Code Enforcement


Any person may file a complaint. You may remain anonymous; however, the complaint itself can become a public record. To file a complaint, call 662-8054.
The goal of code enforcement is compliance not punishment. If a complaint does not fall under the Development Code, then the Code Enforcement staff refers your compliant to the appropriate staff within the County and/or to the appropriate department within the State of New Mexico.
Code enforcement is responsible for enforcing the rules and regulations specified in the Development Code, Chapter 16 in the Los Alamos County Code, except for where the Code clearly designates enforcement authority to the County Engineer or some other official.

If code enforcement staff finds any provisions of the Code being violated, they will notify the person in writing for such violation indicating the nature of the violation and the action necessary to correct it. Staff is authorized to order:

• discontinuance of illegal uses of lands, buildings or structures; <<<<<<<<<<
• removal of illegal buildings or structures or additions, alternations or structural changes; <<<<<<<
• discontinuance of any illegal work being done; or
• any other actions authorized under the Development Code to ensure compliance with or to prevent violation of its provision.

​

 

[Randolph Kinney]

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.

Lobo Fan,

Are you saying that you marked zoning illegal, "as-is" value with no value to the MIL or its contribution to the GLA in your appraisal report? If so, are you rethinking that decision?

 

[PropertyEconomics]

http://www.losalamosnm.us/index.asp?Type=B_BASIC&SEC={91FFBDF6-F65C-4703-9F83-66DA09C6AADF}&DE={3D58FE30-910C-48D6-8186-0B2A93BB7407}

In the cut and paste world ... Mr Kennedy ... you have your doctorate.

Oh and for the record .. "Page Cannot Be Found"

 

[Mike Kennedy]

PE.......see revised post above..... tested the link ......and found it didnt work.

 

[PropertyEconomics]

PE.......see revised post above..... tested the link ......and found it didnt work.

Thats all fine and good Mr Kennedy .. but it still doesnt address:

1) Lobo felt the improvements were all constructed at the same time.

2) He did not contact the builder to see if there were a permit issued.

3) He stated no building has ever been required to be torn down because of zoning issues.

4) Practical application of the issue knowing these factors.

Due diligence has not been completed on this assignment to mark "illegal" within zoning. Nor requesting a means of remedying the situation that "may or may not" exist.
Finally .. I dont read anywhere in his posts that this was Los Alamos County .. perhaps I just missed it.

 

[Mike Kennedy]

Sec. 10-71. Adoption by reference.
There is adopted, so far as it is not in conflict with this Code or any law of the state or with any valid regulation issued by any board or agency of the state authorized to make such regulations, for the purpose of regulating the erection, construction, enlargement, alteration, repair, moving, removal, conversion, demolition, occupancy, equipment, use, height, area and maintenance of all buildings or structures, and for the purpose of providing for the issuance of permits and the collection of fees, thatcertain code known as the New Mexico Building Code, as adopted, amended and revised by the New Mexico Construction Industries Commission, and such code is adopted by reference and incorporated as fully as if set out in this section.

(Ord. No. 74-80, § 1, 1983; Ord. No. 85-151, § 1, 1991; Code 1985, § 15.08.010; Ord. No. 85-275, § 1, 1-25-2000)

<A id=TOC.1.2 name=TOC.1.2>
Sec. 10-72. Copies on file.
One or more copies of the New Mexico Building Code shall be available and subject to inspection at all reasonable times at the office of the clerk and the office of the building official.

(Ord. No. 85-151, § 1, 1991; Code 1985, § 15.08.020; Ord. No. 85-275, § 2, 1-25-2000)

<A id=TOC.1.3 name=TOC.1.3>
Sec. 10-73. Building permit; application; deposit.
(a) It is unlawful for any person to construct, alter, repair, remove, demolish or to commence the construction, alteration, removal or demolition of a building or structure without first filing with the building official an application in writing and obtaining from him a building permit authorizing such work. The application for the building permit shall be accompanied by a deposit of $250.00.