Moratorium Back On Table For Rental Home ‘Cut-Ups’?

Riverside University-area homeowners Hilary Barnett, left, and Patricia Verwiel are among those who have asked the city for a moratorium on permits to create extra bedrooms in rental homes. Officials have said they can't deny the permits for properties that meet code.

Riverside University-area homeowners Hilary Barnett, left, and Patricia Verwiel are among those who have asked the city for a moratorium on permits to create extra bedrooms in rental homes. Officials have said they can’t deny the permits for properties that meet code.

When homeowners from Riverside’s University neighborhood began storming City Council meetings back in June with complaints about problem renters, their initial demand was that the city stop granting permits to turn living rooms and other common areas of rental houses into more bedrooms.

Months later, some residents and city officials say the city may be able to put a temporary moratorium in place and work on some code changes to help prevent the creation of “mini-dorms.” But before we go there, let’s flash back to the June 18 City Council meeting, when homeowners first began asking for a moratorium on “cut-ups” (cutting living rooms up to make more bedrooms).

Ward 1 Councilman Mike Gardner: Could we adopt a moratorium on permits if we wanted to?

City Attorney Greg Priamos: No. If a property owner comes in and the remodeling plans comply with the applicable building codes and fire codes, we have a ministerial duty to approve those plans. We cannot refuse to approve those plans as long as they meet the required codes.

Gardner, to residents in audience: I understand the desire for a moratorium. I don’t think legally we can do that.

And that’s been the city’s official position since, that they can’t stop giving the permits. Now, however, it turns out … they probably can.

“If we can identify an impact to public health and … we identify a potential cure to that impact,” then it appears the council could adopt a moratorium, Deputy Development Director Emilio Ramirez said in a Sept. 3 interview.

He said city officials “identified a provision in the government code that potentially allows for a temporary moratorium,” and though he didn’t give the specific code section, I would wager it’s Calif. Govt Code Section 65858.

A quick Google search of temporary moratoriums shows local governments around the state have used them for all sorts of things in recent years:  Inglewood put a moratorium on indoor swap meets in 2007; Palm Desert used one to stop construction of roof decks in 2012; the city of Hillsborough has blocked permits for wireless facilities (like cell towers) through August 2014; Santa Cruz this month put a moratorium on fracking; and earlier this year, officials in the Signal Hill area were considering a moratorium on all building near some sensitive wetlands while they overhaul the zoning code. (I didn’t create links because most were documents that automatically download when you click on them.)

One thing these moratoriums all had in common? They cited gov’t code section 65858. It says that a city council or other government body “may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal” – as long as they make a finding that the thing they’re banning has a public health/safety/welfare impact, and they plan to study it soon to come up with a solution.

(Side note: while Riverside appears to have only rarely used moratoriums, it did so in 1999 over concerns about auto repair facilities along scenic boulevards, and the urgency ordinance cited gov’t code 65858.)

What about the argument that building permits are ministerial, as opposed to discretionary? It’s worth noting that government code specifically mentions building permits among the approvals that can be refused when a moratorium is in place. It says an ordinance to adopt or extend a moratorium must contain “legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.”

Threat to public health, safety or welfare? That sounds pretty serious, so does subdivision of living rooms rise to that standard? I’m not a lawyer, certainly, but in all the above examples of moratoriums in other cities, officials thought their issue met the standard. And to add one more, the city of Wildomar in 2010 put a moratorium on trailer/boat storage and self-storage facilities, citing an “immediate threat to and specific adverse impact upon” the community’s public health, etc., etc.

I was going to write about overlay zone that may be proposed to answer homeowners’ concerns, but this post is already so long, I’ll save it for another day. But at this point, unless the city attorney, city manager or someone else in a position to make such a claim can explain why Calif. Government Code Section 65858 doesn’t apply in this case, council members may owe residents an explanation as to why they won’t at least consider a moratorium.

I am also left with this question: could Riverside officials simply not be familiar with a state code section that’s been used by dozens of cities around California for years, or is there some other legal impediment to a moratorium that city officials have so far not publicly explained?

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