A Closer Look at the Ebers and Greene Project and the Correction Notice Issued by the City

In Order to Keep Project, Owner May Be Creating “Guest Quarters”

Editor: The OB Rag asked local Geoff Page – former chair of the Peninsula Community Planning Board and occasional writer for us – to look at the Ebers and Greene project from a technical standpoint, to review the Correction Notice issued by the city and see what it meant, and any other issues that grabbed his attention. 

By Geoff Page / Special to the OB Rag

After reviewing the Correction Notice and a few other things as well, it appears to me that the developer – Curtis Nelson of Nelco Properties – and the City of San Diego are changing this development in reaction to public attention. This means that what they may be doing needs scrutiny.

It looks like they plan to designate one of the buildings a guest quarters and only one of the two buildings could possibly qualify – and that would be the existing house.

A guest quarters may occupy 25 percent of the total Floor Area Ratio (FAR).  This is a 5,000 square foot lot and, because it is in the RM1-1 zone, it has a FAR of .75.  That means the guest quarters could be no larger than (5,000 x .75 = 3,750 x .25 =) 937.5 square feet.

According to all of the real estate information, the existing house is 1,260 square feet.  So, if you were forced to reduce one of the buildings to 937.5 square feet, which one would you chose?

If they plan to do this, it has to be a whole new process.  The process to build an addition onto an existing home is different from the process of building a brand new three-story home.  If this occurs, the developer will have to get a coastal development permit and the project will come before the Ocean Beach Planning Board.

In order to turn the existing home into a guest quarters, the kitchen would have to come out and they would have to remove about 300 square feet.  So, let me explain why I think this may be what is happening.

The title of the notice document is “Inspection Correction Notice” and it was dated October 6, 2016. The first sentence on the notice was:

The correction items in this notice are required to be completed and no inspections will be granted without verification the project complies with applicable code sections set forth in the Land Development Code, SDMC Section 121.0308.

The section of the Municipal Code (MC) referenced has two parts.  The first part is basically a caveat to protect the city saying that issuing a permit on a project does not allow the builder to violate any land development or building code.  That is, if they grant a permit and there is an error on the plans they didn’t catch, their approval of the plans doesn’t mean they were allowing a code violation.  A mistake is not permission.

Ebers and Greene site before construction of new building.

The second part is a logical corollary and it is also to protect the city.  It says issuing a permit on a project does not prevent the city from later requiring corrections “or the Building Official from stopping building operations that are in violation of the Land Development Code or any other applicable law.”  In plain language, they can stop the project but have not as yet.

The notice contained two main technical requirements.  The first was as follows:

An approved construction change is required for the angled building envelope. Provide cross sections on every elevation sheet to clearly  identify the angled building envelope plane adjacent to front, side setback lines, establishing by a 45-degree angle sloping inward to the maximum permitted 30- foot height limit in SDMC Section 131.0444(e)(1), (2).

What the MC says is that there has to be a 45 degree “angled building envelope” meaning that the building must not exceed the height of the 45 degree line.  On the front, the line starts at the setback line and at a height of 19 feet and goes upward at a 45 degree angle to the maximum height of 30 feet.  The same thing is required on the side of the building starting at a height of 24 feet and angling upward to the 30-foot maximum.

There is no “angled building envelope” on the currently framed structure, it just has a solid façade about 30 feet tall.  The side facing Greene Street is the same.  The side facing the existing house may fit in the required plane because there is a roof deck at the second story level before the third story rises behind it.  But, this would probably not fall under the requirement because it is attached to the house and not near the side setback.

The Inspection Correction Notice then stated:

The building height certification document will include notation of the plumb-line measurement, datum to existing grade SDMC Section 113.0270(2)(a).  Addendum of thickness of roof sheathing, does not identify any flashing, or a wet stamp from a State Licensed Land Surveyor.  Provide the proposed roof covering product installation specifications and listing to the undersigned.

What the MC requires is a measurement from the highest point in the proposed building to the existing grade or proposed grade, whichever is lower.  The roofing details that were missing were also interesting in that everything this notice said was required should have been in the original plans and specifications for the building, which should have been checked by Development Services Department (DSD) for correctness.

For an inspector to write a notice requiring plans and certifications of this nature, the DSD either seriously messed up or allowed this to happen.

Inspectors have two main tasks, make sure what is being built matches the approved plans, and flag any code violations the inspector notices in the approved plans.  Mistakes are made, reviewing plans is a tedious job, but what this notice states is beyond an inspector catching an error.  It sounds more to me like a deliberate action to change the plans – and the project – into something different.

The last part of the notice caught my attention and was why I have my theory about the current plan to make the existing house a guest quarters.

The notice stated:

Complete and record with County Assessor, a Habitable Accessory Structure Agreement DSD Form DS-203.

At the moment, there is nothing on this site that qualifies as a “Habitable Accessory Structure.”  Section 141.0307 of the MC is titled “Guest Quarters or Habitable Accessory Building.”

A guest quarters cannot have a kitchen or facilities for storing or preparing food.  It cannot be rented, leased, or sold separately.  The owner has to file the required form with the County of San Diego and it is attached to the property deed.  The form is a legal commitment not to rent, lease, or sell the unit.

Once that is done and the building permit is signed off, the city does nothing further.  What usually happens is the owner goes back in and builds a kitchen and rents the unit out.  Unless a neighbor reports this misuse, it goes undiscovered because neither the city nor the county have ever set up an enforcement or inspection process to see if the owners honor the requirement.

Much like the contested project on Evergreen and Emerson Streets in Roseville, the problems with this project trace directly to the DSD.

Either the plan reviewers are grossly incompetent or the DSD is complicit in approving building plans the DSD knows do not conform to the Municipal Code.  The City of San Diego and the DSD are de facto rezoning the Peninsula by allowing increased density where it is not permitted.  This lot is too small for two units but the DSD and the developer tried to sneak a second unit in anyway.

I personally believe the DSD needs to be audited by an independent group to find out why it is issuing plans that do not conform to the land development laws of the city.

A comment about the FAR issue.  A lot of folks believe the OB – and all of Point Loma – FAR maximum is .70 – but that isn’t so.  The OB .70 FAR does not apply to an RM1-1 zone; it only applies to the RM2-4 zone.

Check it for yourself. Go to Table 131-04G , Chapter 13, Article 1, Division 4, page 44 in the Municipal Code.  At the bottom of the table on that page, the last line reads “Max floor area ratio” and the fourth column to the right is the RM2-4 column.  It shows a FAR of 1.20 with two footnotes, 19 and 29.  Go to page 48 and see a list of footnotes.  In the middle is number 29 and it reads:

“With the Peninsula and Ocean Beach community plan areas, the maximum floor area ratio is 0.70.”

It is only where you see footnote number 29 that this applies and it is not applied to the RM1-1 zone.

Look to this space for updates on the project. And make sure you attend the OB Town Hall meeting on this project scheduled for Wednesday, Oct. 19th at the OB Rec Center, 6pm.