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HomeMy WebLinkAboutA006 - Partial minutes from November 9, 2010 City Council meeting REPORT ON MODIFICATIONS TO RENTAL HOUSING CODE:Fire Chief Clint Petersen summarized the progress that had been made towards reaching agreement of the proposed changes to Chapter 13 since the October 19,2010,workshop. He noted that,at that meeting, the City Council members appeared to have reached consensus on 26 of the 28 issues and directed staff to develop alternatives for the other two issues, specifically Issues 5 and 17. Pertaining to Issue 5, staff was requested to provide a definition of "Administrative Approval" and how those are recorded. Staff s proposed definition of "Administrative Approval"was read by Chief Petersen, as follows: "A code interpretation by the Building Official conveyed in writing to the property owner and kept on record in the City Clerk's Office." Chief Petersen also stated that one new issue was being brought forward at this meeting.He said that the new issue is in response to the City Council's request to add Code flexibility in unique situations where property owners seek to rent their properties for a temporary period. Staff is proposing that the Council consider creating a new category for homes that need to be rented for a temporary or transitional period. It was noted that new registered units would not be eligible for the exemptions. Chief Petersen read the proposed language that would create a Transitional Letter of Compliance. Council Member Goodman asked if a property would still be treated as a rental unit with a Letter of Compliance if the Letter of Compliance had lapsed and the property had been sold or would the new owner have to bring the property up to Code.Chief Petersen said that if the property lapses in the rental registration, it would come back on as a new rental unit and would have to be made Code-compliant.If the intention was to make it a permanent rental, a Letter of Compliance can be issued and the residence occupied during the time it is being brought up to Code.Typically,the City has allowed up to one year for the improvements to be made. Regarding Issue 17, Chief Petersen recalled that staff had been directed to work with the Ames Rental Association representatives to develop alternatives for Council's consideration regarding plumbing issues.Those issues were recapped and the proposed options to address the concerns were presented by Chief Petersen. He said that the five options presented by staff were devised in response to the Council's and Ames Rental Association's desire to modify the existing Rental Housing Code to provide more flexibility for existing plumbing regulations. The pros and cons for each option to address the plumbing issues were also pointed out. City Attorney Marek reminded the City Council of the City's parameters since the standards are based on International and Uniform Codes.He pointed out that the Administrative Code, through which the State Code is enforced, makes it very clear that the Iowa Code is the minimum standard that applies in all jurisdictions. According to Mr. Marek, although the Council may create a variance system,it cannot create a variance that exempts someone from compliance with the minimum standard of the State Plumbing Code.He noted that Options 4 and 5 were based on the Iowa City ordinance that has a provision for variances.While all the staff-drafted options are theoretically available to the City,no variance could be granted that would include anything that would not comply with the State Plumbing Code. Specific discussion ensued on existing"S"traps and the need for installation of an auto vent. Council Member Larson expressed concern that enforcement of existing"S"traps would only pertain to rental properties and not to owner-occupied properties.City Attorney Marek noted that under Iowa Code,the City is required to perform rental inspections,and as such, if"S" traps are located, they would need to be brought to the City's attention. "S" traps would also be located by plumbers, who have been retained to perform work on owner- occupied properties. City Attorney Marek noted that the Plumbing Code had been in existence since May 1907 (Ordinance 178).All traps were required to be vented at that time.That predated any of the International Codes that have been adopted since then.According to Mr.Marek,the current Uniform Plumbing Code allows a non-compliant item to continue as long as it was compliance when originally installed and maintained correctly.Council Member Goodman noted that it appeared that the S-trap has never been legal since 1907. Council Member Orazem expressed hesitancy in adopting anything that would require the Board to look at every case; there are some things that are set out to be safe if they are properly maintained. The issue will be if they are being properly maintained and if they can be inspected on a frequent-enough basis. References were made to the Iowa City Code, from which some of the options for Ames were based. Chief Petersen advised that Iowa City has had a much more aggressive staffing level and enforcement program for many years. They have five inspectors for 17,000 rental units. Council Member Wacha asked the City Attorney if there would be any possible situations when an Appeals Board action could violate the State Code.He noted that staff had indicated under Option 2, and possibly Option 3, that it might not be a viable option due to the minimum standards set out for Iowa cities in the State Plumbing Code. Mr.Marek explained that if Option 2 is an actual revision to Chapter 5, which is the Plumbing Code (not the Rental Housing Code), it could not be amended to a standard that is lower than the State Code. He advised that if the City Council chose Option 2,the Plumbing Code would have to be amended so that it was a lesser standard;however,the State Code would still apply.It was noted by Chief Petersen that Option 3 creates a conflict for the Inspections staff as one Code would allow, but another Code would not. He added that issuing a Letter of Compliance and then issuing a Municipal Infraction for a plumbing violation is not the relief that is being sought. City Attorney Marek stated that the Uniform Plumbing Code provides that if there is an item that is not currently compliant,but it was compliant when it was installed,it can remain until it is replaced; at that time,it must be brought up to Code.At the inquiry of Council Member Goodman as to if there were any way that a variance to the Plumbing Code could be granted, ChiefPetersen noted that a violation could be appealed to the Property Maintenance Appeals Board based on an equivalent level of protection being received from alternate materials. Lad Grove,218 SE 16'Street,Ames,referenced copies of letters among him,David Brown, Clint Petersen, and Doug Marek that Mr. Grove had distributed to the Mayor and Council members prior to the meeting pertaining to proposed language that had been agreed upon by the parties. Of specific reference was the attachment to the letters,which was a copy of two sections of the 2009 Uniform Plumbing Code (UPC). According to Mr. Grove, Section 101.4.1.3,which deals with existing construction, specifies that if something was lawfully installed pursuant to the Code at a previous time,it does not have to be changed even though it would not comply with the current provisions of the UPC. Section 101.5.3. regarding existing installation, allows the repair of a previous installation with a "like-kind" of installation. Mr. Grove interpreted that Section as meaning that if there was an S-trap installed and a portion of it rusted and had to be replaced,it could be replaced with a"like- kind",i.e., S-trap. Mr. Grove advised that after the meeting on October 19, he met with Chief Petersen and David Brown and discussed proposed variance language.He believed that the three of them had reached agreement pertaining to additions to Sections 13.402(4), 13.600(3), 13.103(1), 13.103(5), 13.108(9), and 13.108(13). Mr. Grove explained each proposed addition. Concerning granting variances,the City Attorney reiterated that the State Plumbing Code sets the minimum standard,and it would be inappropriate for the Board of Appeals,City Council, or Building Official to grant a variance that would not comply with the UPC. He advised that the important distinction is that at the time the discussion on variances occurred,it was with the assumption that there were plumbing fixtures that did lawfully comply with the Code at the time of their installation. It is important to note that the fixtures must be "lawfully in existence"at the time of the adoption of the new Code.Mr.Marek believes that S-trap venting has been a requirement for over 100 years,and therefore,none of them were legally installed unless they were installed prior to 1907. Lad Grove said he was not sure what type of trap was allowed in 1907. According to Mr. Grove,the first UPC was adopted in Ames in 1992;it was the 1988 version that was adopted. Mr. Grove stated that the Ames Rental Association recommends that the City adopt Option No. 5,which is to authorize the Property Maintenance Appeals Board to grant variances for all issues related to Chapter 13 (Rental Housing),including the five plumbing situations. Council Member Mahayni noted that the City has received criticism about the way the Code has been interpreted by staff. He sees Mr. Grove's request to give more power to staff as contradictory to the same things that the Ames Rental Association has complained about.Mr. Mahayni believes that the Building Official is doing what he has been directed to do. Mr. Grove said that the Ames Rental Association hopes that there will "be an avenue" administratively so that every case does not have to be heard in District Court. Council Member Goodman stated that the only way to comply is to meet the Code requirements. Council Member Orazem disagreed,stating that using"common sense should not be illegal." Mr. Orazem suggested that staff make note of technical violations. Technical violations could be allowed as long as the old technology still in place is properly maintained and in proper working order. However,if,on inspection,it is found that the item is not being properly maintained,another Letter of Compliance would not be issued until the requirements of the new Code are met.Council Member Goodman disagreed,stating that no matter what Option 1 states, the City cannot create Code language that has lower expectations that the Uniform Plumbing Code. City Attorney Marek recommended that,if the Council chooses to include variances in the Code,public hearings be held,which would give an opportunity for the public to hear the discussion. Chief Petersen noted, however, that Option 5 gives the Building Official the power to grant variances. Jim Gunning, 119 Hickory Drive,Ames, said that, going back to 1907, S-traps were never specifically excluded until approximately the 1970s. The idea of venting has been around since the 1930s. Mr. Gunning advised that the UPC first came out in 1945, and the only information that he had that specifically excluded S-traps was a book that the Plumbing Inspector(Bruce Kincaid)brought forward from around 1970.He pointed out that the UPC does allow"like-kind"installations;i.e.,an S-trap could be replaced with an S-trap.It is his belief that if there were dangers,the 2009 version would not allow"like-kind"replacements. He also pointed out that the Building Official does have the option to stop any installation or condition if he feels that there is a life-safety issue. Al Warren,3121 Maplewood Road,Ames,Chairman of the Property Maintenance Appeals Board,noted that the Board had approved Option 4 by a vote of 4-2.He asked if structures built years ago had to have some type of certificate to be occupied. City Attorney Marek advised that there are provisions in the 1907 ordinance indicating that structures were approved by the City Engineer or Sewer Committee. He is not sure how it was implemented during that time period;there was not a separate Inspection office.Mr.Marek noted that the granting of a Certificate of Occupancy is not a guarantee that everything is in compliance. He said that for plumbing and electrical,the City is under the directive of the state as to the minimum standards. According to Mr. Warren, the four members who voted aye were inclined to believe that this was a widespread problem throughout Ames. It was his feeling that the two members who voted nay felt that the Code should be exactly followed with no discretion given. Council Member Larson stated his belief that very few, if any, variances could be granted under Option 4. Pat Brown,3212 West Street,Ames,stated that she is a member ofthe Property Maintenance Appeals Board, and she had voted for Option 1 because the issue is the State Code. She believes that the City Council will set the policyto ensure that the rules will be fairly applied to everyone. She is not in favor of granting variances to a state law;the state law needs to be respected so everyone has a clear knowledge of the requirements. Ms.Brown said that she would like to see more liberal granting of time extensions. Council Member Mahayni recalled that when the Council discussed the creation of a Property Maintenance Appeals Board, the City Manager Schainker stressed the need for rationale or criteria that must be met before a variance may be granted. Council Member Larson said he was in favor of that also until reference was made to going back to the 1907 Code. Council Member Larson said that he formerly was in favor of Option 4; however, after hearing the interpretation of the City Attorney,he now prefers Option 5. In his opinion, Option 4 does not grant any authority to the Property Maintenance Appeals Board because each one would be a violation of the Plumbing Code. Council Member Davis asked if it were possible to grant an "intermediate waiver of compliance" that is conditional based on the annual inspection as long as the item is not being replaced; replacement would trigger the enforcement of the new requirements of the UPC. City Attorney Marek pointed out that that was close to what Option 1 would allow. Council Member Orazem believes that it should be more simple. He said the City has a current Code,but there are going to be properties that are not in compliance with that Code. Those properties are using technologies that are not unsafe as long as they are properly maintained. There is an option available to give a reasonable time to bring the item into compliance. The City Council could set what constitutes a"reasonable time." He believes technical violations should be noted as long as the technology is currently safe and properly maintained, and as long as it remains properly maintained,it will be allowed to continue in a"probationary period." If there is a violation of the probationary period, full compliance of the current Code will be required. Moved by Orazem,seconded by Wacha,to direct staff to allow one with technical violations to continue for the five mentioned items(stand pipe for washing machines without a visible trap;basement surface drainage flowing into floor drains from showers,washing machines, or laundry sinks; existing auto vents; existing S-traps; toilets, showers, tubs, and sinks located in bathrooms with less clearance that required by the UPC) if the technology is properly maintained in a safe and reliable manner. Chief Petersen asked for clarification as to whom would determine the definition of"safe manner." He advised that"S-traps"without an auto vent are not safe;they allow methane gas to come into the house. Attorney Marek said that the State Code authority for granting variances states"not unsafe." Council Member Larson said that the issue seems not to be if something is legal or illegal, but when it was legal.He believes that a date specific should be agreed on for the purposes of interpreting portions of the Code. Mr. Larson suggested the date of the first adoption of the Uniform Plumbing Code.He feels strongly that it should not be 1907. Moved by Mahayni,seconded by Goodman,to amend the motion to state that the technology "will not be unsafe"and such noted technical violations will only be allowed for a period of up to three years. Vote on Amendment: 3-3. Voting aye: Goodman, Mahayni, Wacha. Voting nay: Davis, Larson, Orazem. Mayor Campbell voted aye to break the tie. Vote on Motion, as amended: 3-3. Voting aye: Goodman, Mahayni,Wacha. Voting nay: Davis,Larson, Orazem. Motion failed. Council Member Goodman felt that the City Council must know the date of adoption of the Code and what Code is being referred to. Chief Petersen said that it is known that, since 1907, there have been regulations against unvented S-traps. Council Member Larson recommended that other cities be contacted as to how they are interpreting the UPC related to enforcement of existing conditions. Council Member Goodman asked if City staff would be searching out all unvented S-traps and mandating their replacement. Council Member Davis again recommended that intermediate waivers be issued until something triggers replacement,at which point the item must be brought into compliance with the currently adopted Code. Moved by Goodman, seconded by Wacha,to approve Option 1,which is to retain existing Code requirements,but allow more time to comply,and that the time to comply with S-traps will be three years and the other four items will be ten years. Vote on Motion:2-4. Voting aye:Goodman,Wacha. Voting nay:Davis,Larson,Mahayni, Orazem. Motion failed. Moved by Orazem, seconded by Mahayni, to direct staff to allow one with technical violations to the Plumbing Code to continue as long as they are noted and the technology is maintained in a not unsafe manner. City Attorney Marek again noted that the City Council could set conditions for Chapter 13 as long as they comply with the State Code;however,they would not by in compliance with the Uniform Plumbing Code. City Attorney Marek cautioned the Council about directing City staff not to enforce portions of the Code. Council Member Goodman asked for an interpretation of what is safe and unsafe. Bruce Kinkade,Building Inspection Supervisor,advised that he has done plumbing and mechanical work for approaching 40 years. He is a licensed Master Plumber,licensed HVAC contractor, and is ICC certified. Of the listing of five items,he felt that four of the five are unsafe,with the stand pipe for washing machines without a visible trap being marginally unsafe,but the least of his concerns. Council Member Larson said that he was not going to support the motion because he believes the Council should not get into Code interpretation. Council Member Wacha advised that he will not support the motion because he feels that the time of noncompliance should be limited. Moved by Goodman, seconded by Wacha, to amend the motion that the wording only be applied to four items on the list, excluding existing unvented S-traps. Council Member Davis wants all five items included. He believes that there are a lot of homes in the community that have S-traps. Vote on Amendment: 4-2. Voting aye: Goodman,Mahayni, Orazem,Wacha. Voting nay: Davis,Larson. Motion declared carried. Vote on Motion, as Amended: 4-2. Voting aye: Goodman, Mahayni, Orazem, Wacha. Voting nay: Davis,Larson. Motion declared carried. Moved by Goodman,seconded by Mahayni,to move that with regards to unvented S-traps, five years be allowed to be brought into compliance. Vote on Motion:3-3. Voting aye: Goodman,Mahayni,Orazem.Voting nay:Davis,Larson, Wacha. Mayor voted aye to break the tie. Motion declared carried. Moved by Orazem,seconded by Davis,to direct that the Building Official or designee may issue a Transitional Letter of Compliance for a maximum of one year under the following conditions: 1. After initial inspection,it is determined the property is not code-compliant; and, 2. There are no life safety code violations present that constitute an immediate danger to occupants; and,in order for a Transitional Letter of Compliance to be issued,one of the following conditions must exist: a. The unit is to be used for less than one year as a rental unit,or b. The unit is for sale and the rental is temporary until the sale occurs,or C. The unit was previously a registered rental unit and is in the process of being brought into code compliance Vote on Motion: 6-0. Motion declared carried unanimously. Moved by Wacha,seconded by Mahayni,to direct that Administrative Approvals be defined as a code interpretation by the Building Official conveyed in writing to the property owner and kept on record in the City Clerk's Office. Vote on Motion: 6-0. Motion declared carried unanimously. Moved by Goodman to direct that staff come back with language for a one year grace period if the Letter of Compliance had lapsed such that they could still be considered on the existing rental rolls with the benefits of not having to bring the unit in compliance with Chapter 13. Motion failed due to lack of a second. Moved by Davis,seconded by Mahayni,to direct the City Attorney to draft an ordinance with the above-named changes and bring it back to Council for its consideration. Vote on Motion: 6-0. Motion declared carried unanimously. The meeting recessed at 10:10 p.m. and reconvened at 10:17 p.m.