A historical home on Linden Street is the site of a brewing dispute over an illegal second unit, a city Planning Commission member and the city bureaucracy.
At issue is a code enforcement violation issued June 8 against property owner and commission member Roger McErlane for illegally converting a garage office into an unauthorized studio apartment listed for rent for $2,268 a month earlier this year.
The city’s violation was prompted by a complaint from a Linden Street neighbor, Molly Zurflueh, who in an interview cited as her reason the scarcity of parking on the street due to the proliferation of other unpermitted units and use by Festival of Arts exhibitors in summer.
The city’s apparent slowness in pursuing a complaint initiated five months ago is leading Zurflueh to question if McErlane is receiving preferential treatment. A spokesman for McErlane, who declined to comment directly, denies that favoritism is at work even though the violation is still unresolved weeks after a city-stipulated deadline. He blames delays by city staff.
McErlane received approval in 1993 from the Design Review Board to build a two-car garage and a second-story design studio, without a bathroom or kitchen, according to meeting minutes. Greg Pfost, the city’s community development director, said a second residential unit is allowed in an R-1 zone of single-family residences provided it meets code requirements.
McErlane, though, received a violation notice after a June 8 inspection by city code enforcement supervisor Fred Fix, which revealed a non-permitted kitchen, bathroom and sleeping area above the garage. Fix ordered McErlane to retroactively apply for the required planning, zoning and building permits by Sept. 8 to legalize the existing changes or demolish them or risk a fine of $100 a day.
In the meantime, McErlane, who was appointed to the Design Review Board in 2013, assumed a new position on the city’s Planning Commission on July 9. On July 22, he complied with Fix’s directive and submitted an application seeking a development review for the illegal conversion to the city’s community development department.
“Roger’s goal is to bring the property into compliance as quickly as possible,” said Steve Kawaratani, a landscape architect by profession, who is representing McErlane. “These things do not happen overnight though. We are seeking transparency and we want no special treatment,” he said.
The project was “somewhat delayed” due to a code interpretation needed regarding required parking, Pfost said this week.
McErlane said the improvements were personal. “We needed to accommodate a family member with specific needs, so a kitchen and bathroom were added within the existing 444 square foot of structure. Time was of the essence and all improvements were interior, so we proceeded without clear thinking,” the application dated July 22 says.
“Roger did not think through about the improvements as carefully as he should have,” said Kawaratani. “With family members though you think with your heart and not your head.”
The non-permitted modifications in question were made close to 10 years ago, prior to McErlane’s involvement with the Design Review Board or Planning Commission, Kawaratani pointed out.
In his application for appointment to the DRB, McErlane describes himself as a 35-year landscape architect and urban planner, who worked as community planning and design director for the Irvine Company from 1996 to 2009.
DRB members are charged with reviewing proposed development projects to determine if they conform with the policies of the city’s general plan. Planning Commissioners evaluate projects for conformity with the city’s general plan, specific plans and regulations. Both receive guidance from community development department staff.
Though not elected officials, city appointees to both panels are asked to affirm an oath of allegiance to uphold the state and U.S. Constitution. Zurflueh raises the issue as to whether city appointees should be asked if they are personally in compliance with the city standards when they take their oaths.
“Would it be a good practice for local governments to have a set of questions to be asked during the appointment process? Possibly, but in practice at this level it does not often happen,” said Professor Frank V. Zerunyan, governance director of USC’s School of Public Policy. “At higher levels of government the scrutiny increases. Most often elected officials are just looking for good citizens willing to serve. This ultimately might be a teaching moment for the city.”
Also at issue, at least for Zurflueh and possibly other Linden Street residents, is whether they will have a chance to voice their opinion on their neighbor’s second unit.
Typically, second units are not the subject of public hearings but reviewed administratively by the community development director and neighbors receive a public notice inviting comment on the pending decision, Pfost said. That decision can also be appealed to the City Council, he said.
Zurflueh, an attorney with experience in political consulting and real estate, contends the city’s inaction over the code violation appears to show a more lenient double standard for a public official. “It has been three months in planning and zoning. Why has McErlane had no repercussions or any fines?” she asked. “We expect the city to enforce the laws, especially when the issue involves a Planning Commissioner who knows better,” she said in an email to City Manager John Pietig.
In reply, Pietig stated, “in cases such as this, the city generally provides property owners an opportunity to make an application for the appropriate permits and a reasonable amount of time to move through the process before further code enforcement action is taken.”
Added Pfost, “The project was moving forward through the process, which is how all applicants are treated. Thus, I do not believe that the Commissioner in question has been treated any differently then what the regular public would be treated.”
In April, prior to the code enforcement inspection, McErlane’s non-permitted unit was listed on the real estate website Zillow. The second unit is currently occupied by a renter, Kawaratani confirmed this week.
Kawaratani predicts that McErlane will obtain the necessary approvals. “I am 100 percent confident we will get this done,” he said.
In a statement to Zurflueh, Pfost predicted the same outcome. “The owner has been notified to make certain modifications to his request to be compliant with the municipal code. Once the owner provides a response, most likely the second unit will be approved.”
