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Home » Archives » August 2005 » Cannot Live In Existing House while Building New

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08/17/2005: "Cannot Live In Existing House while Building New"


So you bought a piece of property with a small house on it, or perhaps a "tear-down", and now you have your financing, your plans, and your ready to replace the old house with a new house. But when you go into the building department to submit an application for a new house, your told that before the application can be accepted, you will need to remove the stove and sink out of the house you have been living in. Which means you cannot live in it while your building your new house.

Why? Because in response to an appeal by the Friends of the San Juans, the Growth Hearings Board on July 21 issued a Compliance Order that if the land designation (aka "zoning") for a property does not allow for two houses, one cannot have two houses. But until recently it was believed this pertained to the ADU (Accessory Dwelling Unit; commonly called a guest house) issue of, when is a guest house really a house, or simply an accessory to a house.

But now the SJC Prosecuting Attorney has sent a memo to the CD&PD (Community Development & Planning Department) stating: We advise that you immediately direct your planning staff not to accept building permit applications for the construction of a main house where a detached/freestanding ADU was previously constructed on the property". This advice has been interpreted by CD&PD to mean that, not only can one not have a detached guest house (regardless of the size of it) -which it clearly does state- one also cannot live in one house, while building another house.

While this interpretation does not clearly flow out either the Compliance Order of the Growth Management Board, or the memorandum from Randall Gaylord's office to CD&PD, it nonetheless is now the stated policy of the CD&PD department.

In a phone interview with Commissioner Lichter, The Island Guardian was told that he was unaware of this change in policy, and that it did not seem to be fair to the property owner that they would have to move out of an existing house while the new one was under construction, and that he would look into the reasoning for the change in policy.

It was suggested to CD&PD that the issuance of a building permit could be conditioned on the removal of the kitchen from the existing house, and that a final inspection and Occupancy Permit would not be granted for the new house until the condition had been met. This procedure is used in other permitting actions, and has not been found to be illegal. A spokesman for CD&PD stated the department believed the mere act of issuing a permit would convey to the Hearings Board that the County was allowing two dwelling units on one property.

Both the Real Estate and Contractors associations are reviewing the policy for possible comment and action. In the meantime, if your finally going to replace that old house, you will need to remove the kitchen from your house, and then remove your family as well.


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