What determines previous use? Not so simple

[jar546]

We caught someone working in what appears to be a 2 family dwelling without a permit. It is an investor who buys properties and renovates them.

Oh yeah, working without permits. So far we can tell that there is all new wiring and new drywall, new cabinets, flooring, etc. This is in one of the units, we did not get into the other which is now occupied.

In the back there is an old extension/addition that the investor plans on turning into a 3rd unit. I stopped the job and will not accept an application until he clears zoning for the 3rd apartment. The new owner was told by the realtor that this was a 3 unit and purchased it under that premise.

These are the facts:

There is no C of O on this older building in the municipal records.

There is a 2 gang meter base and the old ones that were replaced years ago were left in place. There were only 2 back then.

The sewer authority has been collecting this as a 2 unit.

There were only 2 gas meters but since he bought the building he had the gas company add a 3rd so there is all new interior black pipe and CSST

We have nothing at all that remotely suggests that this is a 3 unit or has ever been a 3 unit. Knowing our local zoning board, I am sure they will never allow this to be used as a 3 unit as this is a residential only area. But on my part:

1) I see no way around a sprinkler system if they want to make a 3rd unit out of the back existing addition.

2) If kept a 2 unit, knowing it was gutted and sheet rocked, would you make them comply with separation on this existing building?

Thoughts in general..............

Oh yeah, the investor is an architect that I worked with before. Very professional to renovate a building without permits huh?

 

[Big Mac]

Re: What determines previous use? Not so simple

Sprinkle if three units

2-HR fire wall if two units

When a major alteration is done, new code needs to be met

When any work is done that affects the fire resistive capabilities of the structure, fire resistive requirements need to be met

When any work is done, permits are needed.

 

[jar546]

Re: What determines previous use? Not so simple

I guess what I am getting at is that I am going to let zoning determine whether or not this is a 2 or 3 unit. In my eyes from the simple facts, it is a 2 unit but since he has to go to zoning I will use that decision to make mine so we are consistent.

If going to a 3 from a 2 then ALL apartments will have to be sprinklered.

 

[fatboy]

Re: What determines previous use? Not so simple

Any new work must comply with current codes. If zoning allows the change from 2 to 3 units, then its a change of use from IRC, to IBC, sprinkle it.

 

[jar546]

Re: What determines previous use? Not so simple

If however, zoning approves this and determines that it was a 3 unit (chance in hell) then not even IEBC level 3 alterations would require the installation of a sprinkler system. All apartments will have their own entrance egress and none are shared.

Fire separation is another issue that they will have to comply with.

 

[fatboy]

Re: What determines previous use? Not so simple

Agreed, but it sounds like it is pretty clear is was only a duplex prior to the new owner. And, if he didn't perform due diligence prior to the puchase to ensure what the use was, well, his bad. :roll:

Good luck........

 

[brudgers]

Re: What determines previous use? Not so simple

Do you have other properties where there are more units than meters?

It's not all that uncommon for utilities to be included in rent.

Suppose the Owner can produce a previous lease indicating three units?

Or a previous tenant?

Would that be better evidence than can be found in municipal records?

 

[Heaven]

Re: What determines previous use? Not so simple

Do you have other properties where there are more units than meters?It's not all that uncommon for utilities to be included in rent.

Suppose the Owner can produce a previous lease indicating three units?

Or a previous tenant?

Would that be better evidence than can be found in municipal records?

Go to billing and find out the name(s) of the person who paid the utility, if it isn't the landlord than it wasn't included with the rent.

Every indication in the record files is that this was and is a two unit building. Call it a two unit and let him take your decision to the ZBA. If he has any documentation to back up his claim he can bring it to the board.

 

[fatboy]

Re: What determines previous use? Not so simple

"Do you have other properties where there are more units than meters?

It's not all that uncommon for utilities to be included in rent.

Suppose the Owner can produce a previous lease indicating three units?

Or a previous tenant?

Would that be better evidence than can be found in municipal records?"

All good points! And we have to deal with all of them in our fair city. I used to own a "duplex", one electrical service, one gas service. Nothing in the address file that ever recognized that there were two units there. But looking at the property, it was obvious that it had been since the 50-60's, judging from the construction methods.

Often we have been asked to make this call.......but in the OP, it sounds like the new owner is trying to pull a fast one........should be easy to figure out.

 

[brudgers]

Re: What determines previous use? Not so simple

If I had to bet, I'd bet that the owner was trying to get an extra unit.

But if the jurisdiction didn't bother to maintain records, then they ought to refrain from calling him a liar.

 

[fatboy]

Re: What determines previous use? Not so simple

Of course he is......

But please............ it's not the jurisdictions fault that unpermitted construction takes place. At what point they want to take a position on whether it's allowed to remain, that is their call. As I said, it is not that difficult to estimate the age of constuction for a dwelling unit. Documentation on the AHJ's part is not the issue. Calling him a liar could actually be really easy........and I'd do it in a heartbeat. :roll:

EDIT: I'd call them on it if I were convinced I were correct.....probably wouldn't really say liar.......outright...... :shock:

 

[Heaven]

Re: What determines previous use? Not so simple

If I had to bet, I'd bet that the owner was trying to get an extra unit.But if the jurisdiction didn't bother to maintain records, then they ought to refrain from calling him a liar.

Convoluted theory.

It is the owner that must maintain the records. How can a jurisdiction maintain or retain records that never happened? The onus is upon the owner to make proof of compliance. I agree one should not call a citizen a liar, just ask for documentation.

 

[brudgers]

Re: What determines previous use? Not so simple

If I had to bet, I'd bet that the owner was trying to get an extra unit.But if the jurisdiction didn't bother to maintain records, then they ought to refrain from calling him a liar.

Convoluted theory.

It is the owner that must maintain the records. How can a jurisdiction maintain or retain records that never happened? The onus is upon the owner to make proof of compliance. I agree one should not call a citizen a liar, just ask for documentation.

It is quite plausible that the property was at some point rented as three units...for exactly the same reasons that the current owner seeks to do so.

The jurisdiction is claiming that it was not three units, despite an apparent failure to implement processes to document non-conforming uses at the time the zoning district was overlaid (and to issue CO's at the time the building was constructed).

The lack of records is due to no fault of the owner.

In effect the jurisdiction is saying, "we want official records" even when due to their historical inaction such records could not possibly exist for a legal non-conforming use...and doing so with full knowledge of the impossibility.

Any evidence - no matter how thin - the Owner supplies, creates a preponderance of evidence in favor of the third unit because the jurisdiction has no factual basis for claiming that the third unit is not an existing non-conformity.

 

[RJJ]

Re: What determines previous use? Not so simple

Brudgers: I have to disagree with you, in that, the owner of the units must prove the three units existed.

Case law is pretty clear in this situation. Especially in PA. From the information in the OP we can not determine what the zoning was years ago for this district. Agreed that the Ahj must maintain a record of non conforming uses, however, if this was not permitted or co issued it would be off the radar! Also, to qualify this would have to have been a legal non conforming use at the time of zoning creation. In that, the burden is on the applicant.

The meter set up of only two meters would lead one to believe it was always two dwelling units. However, that is not proof in itself. Many older units exist with only one meter.

The fact that the sewer authority was being paid for only two (2) edu's establishes the fact that only two units existed. I believe this is pretty cut and dry. To make connection to a sewer authority in PA the property owner must show the edu's per day. This is done before a tap in fee is set and then monthly billing. Someone at some point made that determination. Sounds to me that it was approve for two units just on sewage.

 

[karmann33]

Re: What determines previous use? Not so simple

We would require the owner to prove that it was 3 unit bld and zoning would still have the final say. Like everyone else said with 3 units we would require stamped drawings and a building permit and this project would now be on hold until all the requirements are met.

 

[TJacobs]

Re: What determines previous use? Not so simple

Just because it was rented as a three-unit at sometime in the past does not make it legal. It wouldn't even make legal nonconforming, depending on the definition in the zoning code. Illegal nonconforming...make it meet all codes...sprinklers required.

 

[kilitact]

Re: What determines previous use? Not so simple

I would agree with Brudgers. The burden is on the jurisdiction to disprove the current owners claim that it was always three units. For the jurisdiction to take the untenable position of requiring the current owner to come up with records from fifty years or more that they know don’t exits is a fallacy that could end up costing a few years worth of budgets. It’s quite possible that at the time this building was built the sewer district only charged for 2 EDU’s, do they have records that show when this building was first hooked up? I’ve seen quite a few of these conforming at the time they were built, now considered non-conforming that are sometimes a thorn in the jurisdictions side and mis-steps are taken to eliminate them. Sounds like the current owner is investing time and money to improve the property, what’s the real issue?

 

[mtlogcabin]

Re: What determines previous use? Not so simple

Check the tax records, was it taxed as 2 units or 3?

Remember it is a new owner so he may not have access to previous property records except what is already public.

 

[Mac]

Re: What determines previous use? Not so simple

The last previously known use would govern here.

If the owner has real verifiable records indicating there were three dwelling units, I would consider them. All the records mentioned indicate it has two units. The OP says "no indication" that there were three units, and the owner "plans on turning into a third unit".

It's got two units until someone proves otherwise.

 

[texas transplant]

Re: What determines previous use? Not so simple

The owner has a burden to show some sort of proof that it was three units. The current owner may have to involve the former owner if the former owner respresented the structure as three units.

The other thing is if it was three units five years ago and two units last year, sounds like they gave up any legal status to a non-conforming use.

After the owner(s) show some proof (leases, former tenents etc.) it is up to the jurisdiction to either accept or disprove the evidence.

Spent over 20 years in a college town dealing with this type of thing. Owner has first responsiblity, City has responsiblility after that evidence is provided.

Current owner always has the former owner to go after if he can't back up the claim of three units, he made while selling the property.

Now shame on this architect that is doing construction without a permit. If anyone should know better it should be him.

Good luck Jeff.

 

[SCBO1]

Re: What determines previous use? Not so simple

jar546,

Zoning should reveal two things right off the bat;

1) Most zoning for a three unit (muliti-family) is a different zone and depending on your zoning may not be allowed. Zoning Violation may be in order. Note some cities zoning allows duplex and single family to co-exist in the same zone, but have'nt seen multi-fam with two-fam.

2) Check minimum floor space in the approved zone, the third apartment my not meet the minimum.

3) Some duplex zoning regulations require lot size requirements also.

4) Party wall?

pc

 

[jim baird]

Re: What determines previous use? Not so simple

My reading of the OP tells me the 3rd unit is not occupied and likely has not the minimum facilites required to make it a dwelling, ergo the "grandfathering" idea might not work.

New owner has a leagal battle to fight w/zoning.

Funniest part of the OP to me was "...was told by the realtor...". Nuff said about reliability of that info!

If the second of the two uinits is not occupied it might be feasible to require a separation to be met. After all, did not OP say the owner was an architect?

 

[brudgers]

Re: What determines previous use? Not so simple

Brudgers: I have to disagree with you, in that, the owner of the units must prove the three units existed.Case law is pretty clear in this situation. Especially in PA. From the information in the OP we can not determine what the zoning was years ago for this district. Agreed that the Ahj must maintain a record of non conforming uses, however, if this was not permitted or co issued it would be off the radar! Also, to qualify this would have to have been a legal non conforming use at the time of zoning creation. In that, the burden is on the applicant.

The meter set up of only two meters would lead one to believe it was always two dwelling units. However, that is not proof in itself. Many older units exist with only one meter.

The fact that the sewer authority was being paid for only two (2) edu's establishes the fact that only two units existed. I believe this is pretty cut and dry. To make connection to a sewer authority in PA the property owner must show the edu's per day. This is done before a tap in fee is set and then monthly billing. Someone at some point made that determination. Sounds to me that it was approve for two units just on sewage.

If there were good records kept by the jurisdiction, I'd agree with you.

But it seems in this case that the jurisdiction does not maintain good records, so the standard for proof of three units by the owner should be lowered accordingly.

If the jurisdiction can produce the original paperwork for the tap fee, then that might weigh against three units.

But from the sound of things, the property may predate any zoning and perhaps even tap fees by unit. For all we know, the number of units for sewer may have been determined by a clerk in 1976 when the first computer was brought online.

In other words it may be off the radar because the jurisdiction's radar doesn't work.

 

[brudgers]

Re: What determines previous use? Not so simple

Just because it was rented as a three-unit at sometime in the past does not make it legal. It wouldn't even make legal nonconforming, depending on the definition in the zoning code. Illegal nonconforming...make it meet all codes...sprinklers required.

To be a legal non-conforming three unit dwelling all three units do not need to be continuously leased.

Just because the zoning currently says two units, does not make it illegal.