Planning Ahead
by M. Brett Gladstone
Editor’s Note: This is the first of a two-part article about appealing San Francisco Department of Building Inspection determinations. The second part of this article will deal with appeals of DBI decisions to the Board of Abatement Appeals, the Board of Examiners, the Access Appeals Board and the Board of Appeals.
Building inspectors inspect apartment buildings for three main reasons: (1) the legal time has elapsed since the last periodic inspection, (2) in response to a citizen complaint or (3) for an inspection of construction work.
For annual inspections, inspectors are mandated to inspect all common areas of apartment buildings in order to confirm that these areas meet code requirements for day-to-day safety and emergency egress. Areas given special attention are means of egress, including back stairs, and the existence and maintenance of fire-safety features such as extinguishers and smoke detectors. It is fairly common for inspectors to issue Notices of Violation (NOVs) during annual inspections because common areas often have small violations.
The Housing Inspection Services section of DBI is mandated to inspect all apartment buildings with three or more units at least once every five years. But in practice, HIS focuses its inspections in areas of the city with buildings that have historically higher rates of violations, deferred maintenance and patterns of tenant complaints, and may do more regular inspections of buildings in these areas.
During citizen complaint inspections, inspectors tend to limit the scope of their inspection to the area about which a complaint was filed. However, a complaint can sometimes be of a general or pervasive nature such that the inspector determines that it is better that he or she inspect all common areas, or even to seek access into dwelling units, pursuant to section 104.2.3 of the California Building Code. Inspectors are not allowed to enter into private dwelling units, however, without the consent and approval of the tenant. Inspectors do not need the building owner’s approval to enter a unit where the tenant has given his or her approval.
Furthermore, in response to repeated complaints of conditions of the property, either by tenants or neighbors, the city may organize a task force inspection. Conditions likely to trigger a task force inspection would be excessive police calls for service—especially for violence or drug dealing—intense infestation of vermin and complaints to the city of deferred maintenance. With a task force inspection, a deputy city attorney will write you a letter informing you that representatives from various city enforcement agencies will jointly inspect your property. You will usually be given one to three weeks notice before the inspection. The various agencies that may join in the inspection include: the San Francisco City Attorney’s Office, the San Francisco Fire Department, DBI, the San Francisco Department of Public Health and the San Francisco Police Department. Police are generally included for security purposes and are not there to “search” the premises. Should you or a tenant deny city officials access to your property, the City Attorney’s Office may go to the Superior Court to seek a warrant to inspect the premises.
During construction inspections requested by you, inspectors tend to limit themselves to confirming that the work actually constructed conforms to the approved drawings of permitted work. The type of NOV stemming from these inspections will most likely be for work your contractor has performed that exceeds the scope of work permitted under the approved plans. It is unlikely that an inspector would issue an NOV for general maintenance items, such as for an expired fire extinguisher inspection tag, when the inspector is there to determine whether or not your bathroom renovation is installed per your plans. Inspectors usually do not inspect to determine if the plans have been correctly approved, as this is mainly the responsibility of the DBI plan checker. Should the inspector find that the plan checker improperly approved construction, your first step would be to confirm with the plan checker that construction is permissible and then take that information back to the inspector. If the inspector still will not approve the construction, you should then contact the inspector’s supervisor (a senior inspector) and even a real-estate attorney, if still unsuccessful.
Issued NOVs
When inspectors write NOVs, they provide you with a time by which you need to show that you are working diligently to bring the complained-of condition into compliance with code. With serious life-safety hazards (like storing flammable liquids in the building), the time frame to come into compliance could be immediate. With issues that could reasonably take more time to correct (like an improperly supported back deck), the time frame to correct may be 30 days to apply for a permit to correct, another 30 days to get the permit issued and another 30 to complete the permitted work. If you do not get extensions or meet the time frame prescribed on the NOV to do the work and call to schedule a reinspection, you can expect to get a second visit from the inspector soon after the expiration of that first date to perform. If you have not complied with the initial deadline, the inspector will then likely issue a second NOV for failure to comply with the first NOV.
The first thing to decide is whether or not you believe the condition on the property actually constitutes a violation. Perhaps the NOV is for backstairs that are too narrow to meet current code. You may believe, however, that even though the backstairs wouldn’t meet current code if built today, they were legal when built and so are grandfathered into compliance.
If you decide you wish to fight the NOV because you believe the condition is not in violation of code or should be grandfathered into your older building, then you should inform your issuing inspector. You should provide code citations that show the condition is legal, or the permit history and plans to show that the condition was previously installed with permits and according to approved plans. The 3R Report is not a permit history but merely a (often inaccurate) list of permits. Should you fail to convince the issuing inspector, ask the inspector for a meeting with his or her senior inspector. It is essential that you get all plans of record at DBI; permits themselves do not show permitted work. Unfortunately, if plans do not show the work in question, you may have to provide old pictures or affidavits from previous residents. Although in criminal law one is innocent until proven guilty, in trying to prove that existing conditions have existed for long periods of time, the burden is on you.
Should the senior inspector rule against you, it might be time to seriously consider retaining the services of a professional architect, structural engineer or real-estate entitlements attorney. These professionals may have to review old codes; though you can prove something has been there for a long time, you have to show that the code in effect at the time of installation allowed the construction.
Administrative Hearings
Should you not correct the noticed conditions, the next step in the process will most likely be a Director’s Hearing. Hearings are short, informal and do not follow the rules of evidence. You are allowed to present pictures and witnesses. You may be represented by someone, such as your property manager, or the architect, engineer or attorney that you have hired to assist you. You do not need to appear at the hearing at all if you are represented. The hearing is tape recorded and may be used later in appeals.
The director’s representative will usually issue his or her ruling at the conclusion of the presentations. The ruling will include a finding that the building is in or out of compliance with the building code and, if out of compliance, will give timelines for compliance and other penalties. Usually within two days after the hearing, DBI will issue a written and signed memorialization of the representative’s findings: either an Order of Abatement or a finding of noncompliance. Orders of Abatement contain statements that you were accorded all necessary due process and that the violations noted in the NOV do exist. You will be ordered to remedy the nuisance condition at your property within a prescribed number of days. The Order of Abatement will contain notification that, should you wish to contest the order, you have 10 days from the order’s issuance to appeal the director’s findings.
The city will record the Order of Abatement against the property to put potential purchasers on notice that the building is considered to be in substandard or nuisance condition. The Order of Abatement is mailed to all persons who receive property tax bills for the property. Therefore, if you have a lender that receives your property tax bill, your lender will receive a copy of the order. Also, the finding of nuisance and the order’s recordation may also trigger suspension of your right to deduct business expenses associated with the building on your California state income tax. The state may disallow such deductions retroactively on past returns for a certain number of previous years.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. M. Brett Gladstone is a partner in the San Francisco real-estate law firm of Gladstone & Associates, and can be reached at 415-434-9500. Copyright © 2007 by SF Apartment Magazine. All rights reserved.