Unpermitted Second Units: A Big Step Forward

On Monday night, the City Council took a major step forward – at last – toward legalizing “second dwelling units” that provide safe housing for their inhabitants but do not have city permits. In approving the second unit ordinances, we have at last provided a path for owners of unpermitted second units to comply with our city code and become, to use an awkward term, “legal”.

This has not been an easy process and not everyone is completely happy with the outcome. I’ll get to some of those details a little later. But the important point is this: Previously, there was no way for the owner of an unpermitted second unit to legalize their situation unless they went through an expensive and time-consuming process. Now it will be much easier.

The issue of unpermitted second units is not widespread, but obviously it is very important for those involved – and for the community at large. A second unit can provide a dignified place to live for an elderly or disabled relative or for an adult child who is ready to move out of the house. It can also provide an important source of income for people struggling to make the mortgage. These second units effectively expand our housing supply without really increasing our density.

All older cities have lots of unpermitted second units, and Ventura’s problem may not be as widespread as you might think. In 2009, when we conducted an experiment in “pro-active” code enforcement for a few months, we found that – even in the older neighborhoods – only about 2-3% of properties have unpermitted second units. In other older cities where I have lived, practically every property had unpermitted units.

The issue with unpermitted second units is safety. True, an unpermitted second unit might be a cozy 90-year-old carriage house that was built before zoning codes were even invented and has modern and safe electrical and plumbing systems. An unpermitted second unit might also be a garage that’s been rigged into a makeshift living unit, with refrigerator and microwave hooked up through extension cords and a toilet that discharges into the ground. The trick is recognizing – and acknowledging – the difference. And, of course, there’s a delicate balance between providing fair processes for people involved in a code enforcement action and protecting the vast majority of Ventura residents who go out of their way to abide by the codes and expect their neighbors to as well.

About 18 months ago we appointed the “Safe Housing Collaborative,” a group of 13 citizens who were asked to involve the public in ways to improve the code enforcement process. They came back to us in February with a set of recommendations, and the ordinance adopted Monday was the result of direction we gave our staff at that time.

The second unit ordinance we adopted Tuesday night represents an important stride forward. In order to qualify, a property owner needs to produce at least one piece of documentation – and, in the case of what might be called “indirect’ evidence, two pieces. For example, an old assessor’s record acknowledging the unit’s existence will suffice. Similarly, if you have a rent receipt and a utility bill, those two would suffice as well. You can substitute an owner’s affidavit for one of the two pieces of “indirect” evidence.

You will, of course, have to comply with our building code; if you disagree with the determination of our Building Official, Andrew Stuffler, you’ll be able to appeal that decision to the Local Appeals Board, which under state law is the body that hears appeals from Andrew’s decision. If your unpermitted second unit went into service before 1987, you won’t have to worry about complying with our zoning ordinance. If the unit went into service after 1987 – the year the state began to require disclosure of unpermitted second units in property transactions – then, in theory, you’ll have to comply with our zoning rules for second units (setbacks, parking, and so forth). But you’ll be able to seek a kind of a variance from our Community Development Director, Jeff Lambert – the ordinances instructs him to grant variances liberally – and if you don’t like his decision you can appeal it just like a regular variance.

Finally, if it turns out you have to pay hefty fees to legalize your unit – which is unlikely in most cases but possible in some -- we’ve instructed the staff to look into the possibility of having the City provide financing for the payments.

Our new effort includes a couple of other, more general approaches that should make it easier for people to deal with code enforcement issues.

One is the “self-inspection” program, which will permit applicants working with their contractors to have a private inspector certify that a water heater or other small item complies with the code. (Improperly installed, water heaters can be big safety problems; but we’re trying to make getting permits less expensive.) The second is an expanded volunteer program, which will help our code enforcement folks resolve issues more quickly and also help permit applicants through the process.

Not everybody agreed with the decision we made on every single issue. Many of the Safe Housing Collaborative members came to meeting and asked us to make a number of changes from the staff recommendation. Some we did (a zoning appeals process, a financing program) and some we didn’t (eliminating the 1987 cutoff date). A few people were unhappy with the outcome, but I think it’s fair to say that most were not.

Most everybody understands that we’ve made it code enforcement easier – especially legalizing unpermitted second units – and that this is a good start. And, like any new ordinance, this one is a bit of an experiment. We’ll monitor it to see how it goes and make changes if they’re warranted. But there was no point in delaying the ordinance because there was still disagreement about some issues.

As the old saying goes, you shouldn’t let the perfect stand in the way of the good. And the truth of the matter is that if you have an unpermitted second unit that poses no safety hazard, it will be easier to legalize your unit than it used to be. I’d say that’s good, even if the ordinance isn’t perfect.