Sunday, February 18 , 2018, 4:25 pm | Fair 64º

 
 
 
 
Advice

Reyne Stapelmann: With ZIR Program, Santa Barbara Homeowners Guilty Until Proven Innocent

What has happened in the city of Santa Barbara to lead to one of our most sacred tenants of our legal system, “Innocent until proven guilty,” being thrown out the door without so much as a fare-thee-well?  

Normally, under U.S. Law, the prosecution must prove, beyond a reasonable doubt, a party’s guilt.

The 2014–15 Santa Barbara County Grand Jury Report on the City of Santa Barbara’s Zoning Information Report Program stated that, “When the Jury asked for all ZIRs for the month of July 2014, of the 52 reports received, 46 had violations, or 88 percent. It is hard to believe that over three-quarters of homes sold in the City of Santa Barbara have zoning and/or building violations that require correction and fees."

The report continues, "The City of Santa Barbara needs to stand by the ZIRs produced by the Planning Division of the Community Development Department. The past-mistakes-must-be-corrected attitude is unprofessional and unfair to the innocent people simply trying to sell their homes. The onus should be on the City to prove that a violation exists and not on the seller to prove that one does not exist. Once the City affixes its official seal to the document, it should stand behind its staff and the information it provides.”

The Grand Jury’s Recommendation 2 stated, “That the City of Santa Barbara Community Development Department institute a policy that if staff cannot prove that the property was altered during the current ownership, the City presumes the alteration previously existed.”

The City of Santa Barbara’s Response, Aug. 4, 2015, to Recommendation 2 was, "This Recommendation will not be implemented because it is not warranted or is not reasonable.”

“The implementation of this Recommendation would neither be in compliance with the requirements of City’s Zoning Ordinance nor further the purposes of a ZIR. In addition to basic information regarding the property such as street address, assessor parcel number, zone classification, and permitted uses of the property, SBMC Section 28.87.220.D requires 'any known nonconformities or violations of any ordinances or law' to be included in the ZIR. This section of the Code states that 'any' nonconformity or violation should be noted, not just ones that occurred during the current ownership. 

"Furthermore, given that the City is responsible for the regulation and protection of the general health, safety and welfare of the community, staff cannot ignore its responsibility to identify that which might cause someone harm or affect their or their neighbors’ welfare. Additionally, Section 1272 of the Evidence Code provides that because it is the City’s regular course of business to preserve the record of the City, the absence of a record is a trustworthy indication that the act or event did not occur, or that the condition did not exist. For these reasons, the City has a responsibility to disclose our records as they exist, and note any discrepancies therein. This recommendation operates on the assumption that if the City presumes that the alteration existed when the current owner took ownership then the violation is avoided. However, if an alteration was constructed without permits at a time when permits were required, it does not matter who owns the property. The violation exists whether or not it was actually caused by the current owner.

Furthermore, implicit in this recommendation is the belief that if the violation was missed by the inspector for the prior ZIR, or was not abated during the ownership of the prior owner, the proper remedy for the current owner who is attempting to sell the property is for the City to 'legalize' or ignore the existence of the violation. However, this is very concerning to the City because the underlying illegality of the violation and the remedy would remain unaddressed, and to allow its continuation would serve to harm the persons who live at the property or own property adjacent to the residence on which the violation is noticed.”

The City is still unapologetic even though they, themselves, admit to inaccuracies found in many ZIRs, as well as permits and original property information sometimes lost or misplaced costing the property owner up to hundreds of thousands of dollars.  

There have been thousands of ZIRs done since the 1980s, and all are ticking time bombs for unsuspecting homeowners.  

Several severe cases where the property had gone through previous ZIR’s were cited for “health and safety."

How two inches for a porch to be in the setback for over 20 years would serve to harm the persons who live at the property or their neighbors is beyond me.

The same goes for a fence two inches over the property line. The horror stories go on and on and continue to appear.

It is time for the City of Santa Barbara to go back to the original intent of the ZIR’s written in 1974.  They were optional and gave a buyer information on potential garage conversions and interior room splits.

This could be easily handled over the counter by having the CDD provide buyers and sellers, reasonably priced zoning information, and then if there were any discrepancies, hiring a professional, licensed land-use planner to sort things out.  

This solution would give both parties recourse should the professional not perform as per contract.  

Over 80 percent of illegal conversions are actually reported by neighbors and could be made truly anonymous, ferreting out many more.  

This is the United States of America where we are presumed innocent until proven guilty.  

It’s time to ask your city representatives what they are doing to protect your rights.

Reyne Stapelmann is a broker associate with Berkshire Hathaway Home Services, California Properties and the 2015 president of the Santa Barbara Association of Realtors. Contact her at [email protected] or 805.705.4353. The opinions expressed are her own.

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