Board of Appeals

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Board of Appeals - October 3, 2019 Minutes

Board of Appeals
October 3, 2019

Members Present: Chairperson Clay Dietrich, Vice Chairperson Mike Wild, Justin Schoenberg and Dave Obermiller.

Board members: Clay Dietrich, Mike Wild and Justin Schoenberg were present prior to 9:30AM. Dave Obermiller arrived at 9:52AM.

Others Present: Bruce Taralson, Christine Rose, Ryan Erickson, James Showalter, Mike Moss, Mike Blevins, Steve Eickhoff, Gretchen Morlan, Frank Leland Watkins and Donna Ormiston.

Chairperson Dietrich called the meeting to order at 9:53AM. Mike Wild moved to approve the minutes of the March 21, 2019 meeting and Justin Schoenberg seconded the motion. All members presented voted aye and the motion was declared carried.

Unfinished Business
Mr. Taralson stated that there is no unfinished business.

New Business
a. Appeal requested by Frank Leland Watkins aka Lee Watkins to the requirements of the International Building Code regarding 806 ½ Main Ave, Fargo, ND.
Mr. Taralson stated that as it has been some time since an appeal, he would review the appeal process and requirements and authority of the board. He furthered that this meeting was scheduled due to a decision made by the Building Official and the appeal is allowed by the International Building Code (IBC), Section [A] 113.2 Limitations on authority. Section 113.2 states the following: “An application for appeal shall be based on a claim that the true intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply or an equally good or better form of construction is proposed. The board shall not have authority to waive requirements of this code.” He furthered that the Board knows more than most people the reasons the Inspections department does what it does. This is especially true for residential occupancies due what goes on inside a residential occupancy – things like sleeping.

Mr. Taralson read aloud the following International Building Code sections to the Board:
• Section 420.2 – Separation walls.
• Section 420.3 – Horizontal separation.
• Section 420.4 - Automatic sprinkler system.
• Section 420.5 – Fire alarm systems and smoke alarms.
• Section 420.9 - Group R cooking facilities.

Mr. Taralson stated that there are many references to mechanical code, plumbing codes, and electrical codes throughout the code body.
Mr. Taralson stated that there is an option to use the International Existing Building Code (IEBC) for this building as this is an existing building. He furthered that this code gives options in existing buildings such as if and when and how much to separate, and options for sprinklers. Details arise, he said, during the application and plan review phase of a project and those details are discussed between the plan reviewer and the applicant. He furthered that most of the time an area will be sprinklered, even in the residential area.

Mr. Taralson stated that specific to this appeal, an inspector working for the City of Fargo responded to this issue from a complaint received by the Inspections department. The first complaint came from Rob Severson with the Fire Department. He furthered that the fire department does regular inspections of commercial properties and multi-family structures as allowed by the International Fire Code.

Mr. Taralson presented the following timeline or sequence of events to the Board-
1. On March 21st, 2019, Inspector Rob Severson emailed Inspector James Showalter on an issue he found at 806 Main Ave S., Fargo. His issue was a potential wood working shop in the lower level of 806 Main Ave. S, which is addressed as 806 ½ Main Ave S., Fargo. Mr. Showalter left Mr. Watkins a voicemail asking him to call him regarding the issue.

2. On April 16th, 2019, Mr. Watkins returned Mr. Showalter’s phone call and they met in the basement of 806 Main Ave, Fargo (address: 806 1/2 Main Ave). The notes of that meeting are as follows:

a. Inspection notes in IFR software by Mr. Showalter: “Storage of wood and woodworking in the basement. Change of use needs a permit or storage and woodworking needs to cease. Also, the space has started to be fit up without a permit to be a residence. Mr. Showalter told Mr. Watkins to stop work and figure out what he wants to do with the space and get a permit before doing any more work. He informed Mr. Watkins that a sprinkler would be required for the residence if that was what he wanted to do.

3. On September 10th, 2019, Mr. Showalter responded to an anonymous complaint from a customer of the adjacent lease space at 1 8th St S., Fargo. The customer complained of bad smells and dust they thought was construction related. Although the complaint originated at 1 8th Street S., Fargo, Mr. Showalter believed that construction from the adjacent space could be the source, so he stopped at 806 ½ Main Ave, Fargo, and knocked on the door. There was no answer. Mr. Showalter noted that blankets were covering the windows. Mr. Showalter called Mr. Watkins and left him a voicemail to return his call.

4. On September 13th, 2019, The Inspections Department received the following complaint by email:

a. “I was in the store located at the corner of Main and 8th St, Downtown Diva. When I was there, I noticed a funky smell and some fine dust in the air. I asked about it because I have asthma and am really sensitive to stuff like that and the lady said something about some remodeling the building owner was doing in the basement. I didn't see any permit in the window that would have alerted me to some activity. Since it's such an old building I'm worried about what's in the air. I'm hoping you could check it out. Thank you.”

5. On September 16th, 2019, In response to the emailed complaint that originated in 1 8th St S, Fargo, Mr. Showalter stopped again at 806 ½ Main Ave, Fargo. He knocked on the door and Luke Hoberg (The name on the mailbox) answered the door and stated that he was not living there, and that he was just working on some flooring. Mr. Showalter asked if he could enter to see if there was any work going on that required a building permit, but Mr. Hoberg did not allow him to come in. When Mr. Showalter asked Mr. Hoberg why he had his name on the mailbox if he wasn’t living there, Mr. Hoberg stated that he just gets packages delivered there sometimes. Mr. Showalter told Mr. Hoberg to let Mr. Watkins know he was trying to get ahold of him.

a. Inspections notes from inspections software: “widows covered with blankets now. young man answered and said he was working on floors and wouldn’t let me in. He has his name and address on the mail box. Lee has not responded to my voicemails yet.”

6. On September 17th, 2019, Mr. Watkins returned Mr. Showalter’s phone call and they met in the basement of 806 Main Ave (address: 806 1/2 Main Ave). Upon entering the unit, Mr. Showalter noted that there was no longer any wood being stored in the front half of the space, but a living room was set up with furniture along with a full size refrigerator. New walls had been constructed since the last time Mr. Showalter was there. Where there had previously been only a toilet, there was a new shower added and the bathroom had been finished without permits or inspections. Also noted was a new hot water heater had been installed without a permit or inspection. A finished bedroom was complete with a made up bed.

a. When Mr. Showalter asked Mr. Watkins if he remembered what they discussed on April 16th, 2019 regarding any further work in this space requiring a building permit, Mr. Watkins confirmed that he did by saying, “Yes”. When Mr. Showalter stated, “but you decided to go ahead and do the work anyway without a permit…”, Mr. Watkins responded by saying, “Not intentionally.”

b. In order to document the extent of work that had been done, Mr. Showalter told Mr. Watkins that he wanted to take a few pictures. Mr. Watkins told Mr. Showalter that he was not allowed to take any pictures. As most of the construction requiring a permit had already been completed, and there was clearly a tenant living in the space without a Certificate of Occupancy, Mr. Showalter posted a Dangerous Building placard. Mr. Taralson noted that the Dangerous Building placard prohibits anyone from entering that space.

c. Inspection notes from Mr. Showalter state the following: “Met with owner Lee in basement (806 ½ Main Ave) and noted that construction had proceeded since the last time I met him here and told him he couldn't do any more work or have an apartment in the basement without a permit which would also require a sprinkler system etc.”

7. On September 20th, 2019, Mr. Showalter’s inspections notes state the following: “After following the procedures for posting the Notice of Dangerous Building and Order to Vacate, I stopped by and taped the letter required to accompany the Dangerous Building placard directly below the placard.”

8. On September 23rd and 27th, 2019, Mr. Showalter stopped by 806 ½ Main Avenue, Fargo to verify the placard and letter were still in place. The placard and letter were present at the time of Inspection.
Mr. Taralson directed the Board to the pictures in the packet and provided a description of the location of 806 ½ Main Avenue S. An aerial view was provided and Mr. Taralson stated that 806 Main Avenue which fronts to Main and facing East is 1, 1 ½, 3, 5, 7, 9 and 11 8th Street South. All of the buildings are owned by Mr. Watkins. He furthered that the placard was posted in order to inform the owner that he needs to get a permit and have inspections on his work. Mr. Taralson stated that he checked records for old permits for the three buildings, seven addresses, and multiple tenant spaces. Mr. Taralson stated that he found two permits issued in the last thirty-two years for small work going on. He furthered that Mr. Watkins was in discussing the placard, stated that there is work going on all of the time in the building. There is concern, he said, for work going on without a permit and the Inspections Department has evidence of other work going on. He stated that the remaining pictures in the packet are of the placard and of Mr. Showalter going into the building. Mr. Taralson stated that he read the appeal by Mr. Watkins and stated that it appears he wishes for two things, the removal of the Dangerous Building designation for no building permit and states some violations but not a complete list of violations. The list of complete violations can be found on the Dangerous Building/Order to Vacate letter sent on September 20, 2019. The second request would be for the approval for the rental for NDSU architect student as a workshop studio. Mr. Taralson furthered that the Inspections Department would like for everybody to have everything they want in their building, and there is a way to do that. A plan review, permit, and inspections would allow the second request. The appellant asks for specific relief of re-evaluation of inspections and acceptance of required permit. Mr. Taralson stated that he thinks Mr. Watkins is asking to not require a permit and furthered that the Inspections Department won’t back off on that.

Mr. Taralson stated that the Board of Appeals knows the codes, the adoption process, and what the Inspections Department does. The Inspections Department is responsible for making sure the buildings in the city are safe. To enforce that requirement, Mr. Taralson cited IBC Section 103.1 which describes the intent of the code.
Mr. Taralson stated that the Board must decide if Inspections did its job. He furthered that the recommended motion by the Inspections Department is to accept the findings of Inspections Department staff, deny this appeal request and require the applicant to acquire a permit for the requested apartment unit in the mixed-use commercial building located at 806 ½ Main Avenue S., Fargo, ND. Mr. Taralson stated that his hope for the future is that Mr. Watkins gets permits for work and inspections to make sure all of his buildings are safe.

Mr. Watkins approached the board. Mr. Watkins stated that he is a retired architect and third generation of a family who operated businesses on prescribed sites on the corner of 8th street and Main Avenue. He furthered that this is a historical section of the City and as such has other requirements than those that have been copied today. Mr. Watkins stated that 806 ½ Main Ave. has been reduced to eliminate all residential. He furthered that he has no residential in any of his buildings except one since he can remember and is now 80 years old. Mr. Watkins eliminated residential and after talking to engineering and gathering data on what it would cost to bring a 6” line for a sprinkler system which would sprinkler the entire building. Mr. Watkins stated that he has a 3rd floor that he cannot use as there is not a second exit equaling about 2,250 square feet that is unusable and is designated storage. Mr. Watkins stated that his request is based on the inspection report and Notice of Dangerous Building and Order to Vacate. He furthered that there are countless times when people are asking what will be done with the building. Mr. Watkins stated that the second page of the Notice of Building, Order to vacate lists the requirements as follows:

• Tenant for basement space must vacate immediately. Mr. Watkins stated that this has been done.
• A building permit application and the necessary supporting plans and documents must be submitted for the work that has been done. Mr. Watkins stated that this has been done.
• A permit must be issued after it has been shown that your plans are in compliance with all the related requirements. Mr. Watkins stated that he is assuming that will be coming forthwith as our weather is changing.
• A complete inspection must be done to verify all conditions. After this inspection, those conditions must be remedied. Mr. Watkins stated that he is in the process of remedying everything.

• If a residential occupancy is wanted in this space, all necessary plans and documentation are required to be submitted and reviewed prior to any issuance of a permit. Mr. Watkins stated that a residential occupancy is not wanted.

He furthered that James (Showalter) has brought up another issue and it is fulfilling all of the items with the exception of the red sign and the red sign must come down as he has met all of the requirements. Mr. Watkins inquired of what is it that makes that building dangerous. He stated that the elements of conditions states that the lower level has been remodeled into a residential dwelling unit and that this has been eliminated. The bathroom, he said, has been installed, that is true, but the young man has agreed to not sleep or cook in the work studio. He furthered that a water heater was installed without a permit. The remodeling was very minor but it became more complex as there wasn’t enough pressure to make the water in the shower work. The refrigerator was something that the student’s parents gave to him to use, and some of the walls were modified as the refrigerator was too big. Mr. Watkins stated that he would not recoup a positive cash flow from the space. Mr. Watkins introduced Donna Ormiston of Reed and Taylor Antiques of 806 Main Avenue to the Board.

Ms. Ormiston approached the Board. She stated that her background was twenty eight years in corporate America, retired, and then opened an antique business which she has been doing for twenty seven years. Thirteen of those years have been downtown and seven of which have been at 806 Main Avenue. Ms. Ormiston stated that she was present to speak on the values and integrity of Mr. Watkins. She furthered that she represented the retail businesses on 8th street and Main Avenue and that if it weren’t for Mr. Watkins, they could not survive. Mr. Watkins keeps low rent, does not require a lease, cleans windows, waters the plants, shovels the sidewalks and is up on the roof shoveling snow. She furthered that in the last seven years, her rent has only increased once and there is one person on the block who has been there thirty one years and her rent is still $150.00 per month which is unbelievable. Ms. Ormiston stated that Mr. Watkins supports small businesses and the arts and if it weren’t for Mr. Watkins, none of them would be in business.

Mr. Watkins approached the Board. Mr. Watkins asked the Board to agree with his analysis brought before the Board and appeal and remove the red sign. He furthered that he didn’t want to say harassment, but stated that it was getting awfully close to that by the Inspections Department.
Chairperson Dietrich stated that it was his understanding that some of the items have been completed on the list but all of the items would have to be completed before the placard could be removed.

Mr. Taralson approached the Board. He stated that here are a lot of requirements for the Dangerous Building Placard to go up, and Mr. Watkins eluded to many of them. He furthered that many of the issues are unknowns such as who did the work, wiring had to be done, how is the heating being done, who is doing the plumbing, etc. He stated that all commercial work is done by licensed contractors. An owner is allowed to do construction in his own building, but not trades. Mr. Watkins, he said, has submitted two plans for two spaces and are in the system for review. Inspections did not want to act on those requests until after this meeting as it should be recorded that nobody will be living in that space. Mr. Taralson stated that Inspections can move forward with the review process, but the placard cannot be removed until the permit is issued. He stated that Inspections did request that Mr. Watkins get an architect when considering a residential occupancy for the space. Mr. Taralson said that the plans can be reviewed to see if a design professional is required, but the most important thing is to get the permit so Inspections has the authority to inspect. He furthered that the first plan Mr. Watkins submitted had the residential occupancy, but the second did not. Mr. Taralson noted that he would like the placard to stay in place until the plan review is complete and the permit has been issued.

Chairperson Dietrich stated that the code is written as basically a life safety code, and all of the items within that were not allowed to be inspected so that they can be verified by an independent party. The process is there, he said, for Mr. Watkins to make improvements to the building, but the adopted code that the City enforces must be followed.

There were no further comments.

Chairperson Dietrich stated that the recommended motion seems appropriate for this situation. He furthered that it seems the Inspections department is willing to work with appellant in a relatively quick fashion to alleviate the problems that were found so that Mr. Watkins could continue managing the buildings and tenants.

Mike Wild moved to accept the recommended motion to accept the findings of Inspections Department staff, deny this appeal request and require the applicant to acquire a permit for the requested apartment unit in the mixed-use commercial building located at 806 ½ Main Avenue S., Fargo, ND. Justin Schoenberg seconded the motion. All members present voted aye and the motion was declared carried.

b. Election of Officers

Mr. Taralson stated that he would like to address who will be the alternate first and then elect a chairperson and vice-chairperson.

Justin Schoenberg motioned to recommend Dave Obermiller as the alternate. Mike Wild seconded the motion. All members present voted aye and the motion was declared carried.

Dave Obermiller motioned to recommend Clay Dietrich as the chairperson. Mike Wild seconded the motion. All members present voted aye and the motion was declared carried.

Dave Obermiller motioned to recommend Mike Wild as the vice-chairperson. Justin Schoenberg seconded the motion. All members present voted aye and the motion was declared carried.

Staff Reports
Mr. Taralson stated that the code adoption process was final on August 26, 2019. He furthered that notices have been sent to industry, and January 1, 2020 is deadline for using 2018 codes. There has been discussion of other amendments, he said, and the same process has to happen for all other proposed amendments. He noted that what should be done first is to look at alternate design methods and find a way to do what you’d like through Section 104 and second, propose designs that meet the intent of the code.

Dave Obermiller motioned to adjourn the meeting. Mike Wild seconded the motion. There being no further business to come before the Board, the meeting was adjourned.

Respectfully submitted,

Bruce Taralson
Board Secretary