HomeMy WebLinkAbout2004/11/22 Board of Appeals & Advisors Agenda PK I declare under penalty of perjury that
I am employed by the City of Chula Vista
in the Department of Planning and Building
and that I posted a copy of this Agenda
on the Bulletin Board at the Public
' Services Building.
Date:ll/17/04 Signed:
CITY OF CHULA VISTA
BOARD OF APPEALS AND ADVISORS
SPECIAL MEETING
AGENDA
Monday -.5:15 p. m. Public Services Building November 22, 2004
Conference Room No. 2 & 3
- 276 Fourth Avenue
Chula Vista, CA 91910
CALL MEETING TO ORDER/ROLL CALL i
1. DECLARATION OF EXCUSED/UNEXCUSED ABSENTEEISM:
2. NEW BUSINESS:
A. Ratifying Nuisance Abatement Administrative Enforcement Order
findings f~the meeting of November 8, 2004.
ETC Motel/Eddie's Tires Mufflers & Auto Repair Center
2681 Main Street, Chula Vista, CA 91911
3. CHAIRMAN'S COMMENTS/REPORTS:
4. BUILDING OFFICIAL'S COMMENTS/REPORTS:
5. COMMUNICATIONS (PUBLIC REMARKS/WRITTEN CORRESPONDENCE):
6. -ADJOURNMENT TO REGULARLY SCHEDULED MEETING ON
DECEMBER 13, 2004.
,'~Zzc~~~ 1~ / 7 D
BRAD REMP, C.B.O. DA E
ASST. DIR. OF PLANNING & BUILDING/BUILDING OFFICIAL
SECRETARY TO THE BOARD OF APPEALS AND ADVISORS
COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), request individuals who require
special accommodations to access, attend, and/or participate in a City meeting, activity, or service, request such
accommodation at least forty-eight hours in advance for meetings and five days for scheduled services and activities.
Please contact Judi Bell, Secretary, for specific information at (619) 691-5007 or Telecommunications Device for the
Deaf (TDD) at (619) 585-5647. California Relay Service is also available for the hearing impaired.
/JB
(J:1PlanningWudiB\BOard of Appeals & Advisors Reconvene 11.22.04)
f
ALAN R. ALVORD
Administrative Hearing Officer
PO Box 210543
Chula Vista, CA 91921-0543
Telephone: 619-232-6458
Fax:619-235-8549
Electronic Mail: aralvord@covad.net
November 12, 2004
Board of Appeals and Advisors
c/o Brad Remp
Planning & Building Dept.
City of Chula Vista
276 Fourth Ave.
Chula Vista, CA 91910
Re: Board of Appeals and Advisors
2681 Main Street, Heriberto Gutierrez
To the Board of Appeals and Advisors:
I am enclosing a draft Administrative Enforcement Order which I believe accurately
reflects the Board's decision following the hearing on November 8, 2004.
Please review this draft decision and contact me if you would like to suggest any changes.
The Board's decision was to require abatement of the nuisance by closing the motel
immediately. However, the Municipal Code provides that the time to abate the nuisance is
stayed after a request for an appeal. Therefore, the 15 days stated in the Notice and Order to
Abate have not expired yet. The enclosed order gives Appellant 15 days to abate the nuisance on
his own before the City is allowed to step in.
Please contact me if you haue any quesfions.
Sincerely,
. j
Ala . Alvord
Administrative Hearing Officer
1
2
3
4
5
6
7
8 BEFORE THE BOARD OF APPEALS AND ADVISORS
CITY OF CHULA VISTA
9
10
11 ) NUISANCE ABATEMENT
IN THE MATTER OF ) ADMIIVISTRATIVEENFQRCEMENT
12 ) ORDER
HERIBERTO GUTIERREZ, 2681 Main Street, )
13 Chula Vista, CA (alleged violation location) ) Date: November 8, 2004
Time: 5:15 p.m.
14 Appellant )
15
16
17 I
18 STATEMENT OF THE CASE
19 This matter came on for hearing before the Board of Appeals and Advisors ("Board"),
20 City of Chula Vista, on November 8, 2004 at 5:15 p.m. at 276 Fourth Avenue, Chula Vista,
21 California. The following Board members were present: Jose L. Romo, Jr., Bryan Ehm, James J.
22 Monaghan, Donald Snider, Ben West, Matt Flach and Edward Nagorski. Mr. Romo recused
23 himself in this hearing due to a conflict of interest. Alan R. Alvord, Administrative Hearing
24 Examiner for the City of Chula Vista was also present as a special hearing consultant to the
25 Board.
26 The purpose of the hearing was for the Board to determine whether a public nuisance
27 exists at 2681 Main Street, Chula Vista, California and whether the Notice and Order to Abate
28 issued by the Planning & Building Department should be upheld.
1 David Hansen; Deputy City Attorney appeared on behalf of the Planning & Building
2 Department ("Department"). Joan Schmid, Code Enforcement Officer and Gary Edmonds, Fire
3 Inspector testified for the Department.
4 James C. Stevens, Attorney at Law appeared on behalf of Appellant, who was also
5 present throughout the hearing. James C. Stevens, Attorney at Law, gave testimony on behalf of
6 his client. Heribierto Gutierrez and Victor Villegas also testified for Appellant.
7 The following documents or other physical evidence were introduced by the Department
8 and received into evidence:
9 Exhibit No. Description
10 1 Appeal from Order to Abate dated September 22, 2004
11 2 Notice and Order to Abate dated September 8, 2004
12 3 Letter dated May 17, 2004; Notice of Violation
13 4 Letter dated February 3, 2004
14 5 Memorandum dated October 25, 2004
6 Photographs of Property;
15
7 Assessor's Building Record
16 g _ 10 Portions of the Municipal Code
1 ~ 11 Uniform Housing Code; Health and Safety Code
18 12 California Building Code
19 13 Memorandum to the Board dated October 28, 2004
20 Appellant offered a letter brief dated November 8, 2004 and the following documents or
21 other physical evidence which were received into evidence:
22 Exhibit No. Description
23 1 San Diego County Planning Department Proposed Division of Land
' 24 2 General Commercial Use Regulations
2g 3 County Zoning Ordinance Transient Habitation
26 4 County Zoning Matrix
27 5 County Zoning Ordinance General Impact Industrial
6 Letter dated November 3, 2004
28
2
1 7 Board of Equalization Seller's Permit; Fire Permit no. FP-033185; -
2 Business License; County Environmental Health Facility Permit;
3 Bureau of Automotive Repair Registration
4 8 County of San Diego Notice of Violation dated October 5, 2004
5 9 County of San Diego Compliance Inspection Report dated
6 November 2, 2004
~ 10 Handwritten note of expenditures (withdrawn by Appellant)
8 11 Photograph
9 12 Photograph of Oil Drums
13 Two pages of photographs
10
14 Photograph from 1981
11
12
II
13
FINDINGS OF FACT
14
1. The Department received a complaint on January 5, 2004 that antifreeze had been
15
dumped in the storm gutter at the Property. On January 15, 2004 Code Enforcement Officer
16
Susan Balk visited the Property and observed what appeared to be illegal structures. She notified
17
Appellant that the Property would be reviewed for compliance.
18
2. The Property consists of a 10 unit motel that is surrounded on three sides by an
19
auto parts and repair business. Appellant purchased the auto parts and repair business, but not
20
the Property, in 1980'. In 1996 Appellant purchased the Property and the motel business.
21
3. On Apri122, 2004 Code Enforcement Officer Joan Schmid inspected the Property
22
and identified code violations relating to the motel business. On May 10, 2004 Ms. Schmid
23
inspected the Property with Fire Inspector Gary Edmonds. Inspector Edmonds found fire code
24
violations relating to the motel and the auto repair business.
25
26 ~ There isadisputebetween the Department and Appellant about whether the auto repair business on the Propcrtyisalegal
27
use. That issue is beyond the scope of this hearing and the Board makes no findings regarding whether and when Appellant has
28 operated an auto repair business at the Property or whether such use is legal. -
-3-
1 4. On May 14, 2004 the Department issued a Notice of Violation ("NOV"). The
2 NOV incorporated the Inspection Reports that had resulted from the Apri122, 2004 site
3 inspection. There was an inspection report for the motel and a separate inspection report for the
4 auto repair business. The NOV notified Appellant that the manager's office addition, additions
5 to the private dwelling and the auto repair buildings were built without permits and that the motel
6 had unsanitary unfinished walls, broken windows, illegal electrical outlets, non-operational
7 heating units, inoperable smoke detectors, lack of fire extinguishers and an accumulation of tires,
8 oil, solvents and other flammable items from the automotive business in close proximity to the
9 motel. The Automotive Repair Business Inspection Report detailed numerous code violations in
10 relation to the auto repair business and ordered Appellant to: "Immediately cease the motel use.
11 Board and secure the structure." The NOV ordered Appellant to correct the violations by July 7,
12 2004. A cover letter attached to the NOV presented Appellant with two options. The letter
13 stated that the motel was the legal non-conforming use at the Property and that the auto repair
14 business was an illegal use. The first option in the NOV was to continue with the motel and close
15 the auto repair business. The second option was to close the motel and legalize the auto repair
16 business.
SO N~~ G~'
17 5. Appellant made some of the corrections required by the NOV. He removed the
18 unpermitted structures associated with the motel. Hefrepaired and refinished the walls, repaired
19 broken windows, replaced GFCI outlets, installed new electrical cover plates and working smoke
~ncf~ Fr eel P.
20 detectors and fire extinguishers. He alsoninstalled new HVAC units in several of the units, but
21 stopped the installation process after a phone conversation with Ms. Schmid in which he believes
7A ~ E ~i ~ , r ~ C<_
22 he was told the Ciry intended to shut the motel down. , ~ ~ ~ r , _M1., w, _ r
23 6. The Department offered to meet with t~ppellant to discuss the issues. Meetings
24 were scheduled with Appellant, his attorney and Department personnel, but there were
25 scheduling problems among the parties and the meetings were canceled. Appellant did not, as
26 required by the NOV, close the auto repair business. He also did not adopt the other alternative
27 stated in the cover letter attached to the NOV: close and board the motel.
28 7. Appellant's attorney and Department personnel were attempting to schedule a
-4-
1 meeting to discuss what Appellant would do with the Property. On September 8, 2004 the
2 Department issued and properly served a Notice and Order to Abate. The Notice and Order to
3 Abate stated that the motel was considered a public nuisance and ordered him to abate the
4 nuisance within fifteen calendar days by closing, vacating, boarding and securing the motel and
5 making repairs referenced in the NOV.
6 8. Appellant submitted a timely request for an appeal.
7 9. The Department contends having the motel and the auto repair business operating
8 at the same time on the Property constitutes a public safety hazard to patrons of the motel. The
9 auto repair business consists of several structures that were built without permits. The structures
10 bring the auto repair business physically very close to the motel. A number of metal awning-type
11 cover structures were built for the auto repair business without permits. These structures
12 surround the motel on three sides and have no fire suppression equipment. There is a large
13 amount of hazardous chemicals and fuel load all around the motel. If a fire were to start, the
14 presence of the unpermitted awnings would channel the fire toward the motel. The only exit
15 from the motel is directly into the courtyard area where the fire would be located. The driveway
16 area is too narrow to allow fire trucks adequate access to the motel.
17 10. Appellant raises several arguments in his defense. He challenges this hearing as
18 violating his due process rights. This argument is noted for the record, but the Board declines to
19 rule on it as it is beyond the Board's jurisdiction.
20 11. Appellant argues the Department should have given him adequate time to develop
21 a plan to redevelop the Property. The Board notes that Appellant has been aware of the problems
22 at the Property since at least January 2004 and has not come forward with a redevelopment plan.
23 Appellant also argues it is unfair that the Department required him to spend substantial sums to
24 make repairs to the motel, only to have it declared a nuisance. Appellant spent more than $6,000
25 in repairs to the motel. The Board does not find it unfair to require Appellant to make these
26 repairs to the motel since Appellant has continued to keep the motel open and rent rooms to
27 patrons. Many of the repairs were immediately necessary for the health and safety of the patrons.
28 In addition, the letter attached to the NOV clearly notified Appellant that the Department wanted
-5-
1 him to either shut down the motel or shut down the auto repair business. Appellant's decision to
2 spend $6,000 to repair the motel indicates he chose the option of shutting down the auto repair
3 business, yet he has kept the auto repair business open.
4 12. Appellant argues that the Property is not a health and safety risk because there has
5 not been a fire. This is an inappropriate consideration. The Department must be concerned with
6 the safety of the Property in the event of a fire, not wait for a fire to occur before taking action.
7 He also argues City inspectors visited the Property annually for various reasons over the years
8 and have not charged any violations. The fact that other inspectors visited the Property and did
9 not find violations does not prevent the Department from conducting a full inspection and
10 enforcing the appropriate codes.
11 13. Appellant also argues, without any supporting evidence, that the City has an
12 undisclosed plan to redevelop the area. Even if there were evidence supporting this assertion, the
13 City's ultimate plans are not relevant to the immediate health and safety concerns at the Property.
14 14. Appellant has not presented any plan that addresses the health and safety issues
15 the Deparhnent has raised. Appellant's only proposal is to keep the motel open for another nine
16 months so Appellant can raise enough cash to redevelop the Property. Although the Board
17 appreciates that Appellant has made some effort to repair some of the health and safety violations
18 at the Property, there remains an imminent threat to public health and safety. In light of this
19 safety concern, Appellant's desire to keep the motel open and save money is not acceptable.
20 15. As long as the motel is open for business while the auto repair facility is also open
21 for business and consists of unpermitted structures, the Property constitutes an immediate hazard
22 to the health and safety of motel patrons.
23 III
24 DETERMINATION OF ISSUES
25 1. Chula Vista Municipal Code Section 1.30.0502 authorizes a city code enforcement
26 officer to declare a public nuisance for any reason specified in any city ordinance. Section
27
2g 2 All statutory references are to the Chula Vista Municipal Code unless indicated otherwise.
-6-
1 1.30.070 sets forth a right to appeal and stays any abatement action pending resolution of a
2 timely appeal. Section 15.20.030 provides that the Board of Appeals and Advisors has
3 jurisdiction over such appeals.
4 2. Section 15.08 adopts the California Building Code, which prohibits construction
5 of structures without required permits, inspections and approvals. California Health and Safety
6 Code section 17920.3, subdivision (c) declares any building that is a nuisance to be a
7 substandard building. California Civil Code section 3479 defines a nuisance, among other
8 things, as anything which is injurious to health so as to interfere with the comfortable enjoyment
9 of life or property. Civil Code section 3480 defines a public nuisance as one which affects at the
10 same time an entire community or any considerable number of persons.
11 3. By reason of Findings of Fact 2 through 15, a public nuisance exists at the ETC
12 Motel, 2681 Main Street, Chula Vista, California as long as the auto repair business and the
13 motel business continue to operate on the Property.
14 4. By reason of Findings of Fact 2 through 15, the Notice and Order to Abate dated
15 September 8, 2004 directed to Heriberto Gutierrez for the property located at 2661 Main Street,
16 Chula Vista, California (APN 622-140-36-00) is upheld and sustained.
17 IV
18 ORDER
19 THEREFORE, the following order is made:
20 1. The Notice and Order to Abate dated September 8, 2004 directed to Heriberto
21 Gutierrez for the property located at 2661 Main Street, Chula Vista, California (APN 622-140-
22 36-00) is upheld and sustained.
23 2. Appellant Heriberto Gutierrez shall abate the nuisance by closing, vacating and
24 securing against entry the structures known as ETC Motel, 2681 Main Street, Chula Vista,
25 California within fifteen (15) days of the effective date of this order.
26 3. If Appellant fails to abate the nuisance within fifteen (15) days of the effective
27 date of this order, the City of Chula Vista may take steps to abate the nuisance under the
28 summary abatement power set forth in Municipal Code section 1.30.030 and, after notice to
-7-
1 Appellant and an opportunity to be heard, charge Appellant for the cost of such abatement.
2 4. The following notice is provided pursuant to Municipal Code section 1.40.020:
3 The date this decision is mailed to Appellant shall constitute the date of exhaustion of
4 administrative remedy. Pursuant to California Code of Civil Procedure section 1094.6,
5 Appellant has 90 days from the date of mailing this decision to file a writ of mandamus or other
6 applicable judicial review.
7 IT 115 SO ORDERED: t
8 Dated: 1\ 1~~~ iPun~2.~' r~~ , 1
111 \\\JJJ
9 Admin'strahv aring Examiner
Special Consultant to the Board
10
11
Dated:
12 Bryan Ehm
Board Member
13
14
Dated:
15 James J. Monaghan
Board Member
16
17
Dated:
18 Donald Snider
Board Member
19
20
Dated:
21 Ben West
Board Member
22
23
Dated:
24 Matt Flach
Board Member
25
26
Dated:
27 Edward Nagorski
Board Member
28
-8-
1 "-U
2
3
4
j 5
6
7
8 BEFORE THE BOARD OI' APPEALS AND ADVISORS
CITY OF CHULA VISTA
9
10
I 1 ) NUISANCE ABATEMENT
IN THE MATTER OF ) ADMRVISTRATIVE ENFORCEMENT
12 ) ORDER
HERIBERTO GUTIERREZ, 2681 Main Street, )
13 Chula Vista, CA (alleged violation location) ) Date: November 8, 2004
Time: 5:15 p.m.
14 Appellant )
15
16
17 I
18 STATEMENT OF THE CASE
19 This matter came on for hearing before the Board of Appeals and Advisors ("Board"),
20 City of Chula Vista, on November 8, 2004 at 5:15 p.m. at 276 Fourth Avenue, Chula Vista,
21 California. The following Board members were present: Jose L. Romo, Jr., Bryan Ehm, James J.
22 Monaghan, Donald Snider, Ben West, Matt Flach and Edward Nagorski. Mr. Romo recused
23 himself in this hearing due to a conflict of interest. Alan R. Alvord, Administrative Hearing
24 Examiner for the City of Chula Vista was also present as a special hearing consultant to the
25 Board.
26 The purpose of the hearing was for the Board to determine whether a public nuisance
27 exists at 2681 Main Street, Chula Vista, California and whether the Notice and Order to Abate
28 issued by the Planning & Building Department should be upheld.
1 David Hansen, Deputy City Attorney appeared on behalf of the Planning & Building
2 Department ("Department"). Joan Schmid, Code Enforcement Officer and Gary Edmonds, Fire
3 Inspector testified for the Deparhnent.
4 James C. Stevens, Attorney at Law appeared on behalf of Appellant, who was also
5 present throughout the hearing. James C. Stevens, Attorney at Law, gave testimony on behalf of
6 his client. Heribierto Gutierrez and Victor Villegas also testified for Appellant.
7 The following documents or other physical evidence were introduced by the Department
8 and received into evidence:
9 Exhibit No. Description
10 1 Appeal from Order to Abate dated September 22, 2004
11 2 Notice and Order to Abate dated September 8, 2004
12 3 Letter dated May 17, 2004; Notice of Violation
13 4 Letter dated February 3, 2004
g Memorandum dated October 25, 2004
14
6 Photographs of Property;
15
7 Assessor's Building Record
16 8 - t0 portions of the Municipal Code
17 11 Uniform Housing Code; Health and Safety Code
18 12 California Building Code
19 13 Memorandum to the Board dated October 28, 2004
20 Appellant offered a letter brief dated November 8, 2004 and the following documents or
21 other physical evidence which were received into evidence:
22 Exhibit No. Description
23 1 San Diego County Planning Department Proposed Division of Land
24 2 General Commercial Use Regulations
25 3 County Zoning Ordinance Transient Habitation
26 4 County Zoning Matrix
27 5 County Zoning Ordinance General Impact Industrial
6 Letter dated November 3, 2004
28
-2-
1 7 Board of Equalization Seller's Permit; Fire Permit no. FP-033185;
2 Business License; County Environmental Health Facility Permit;
3 Bureau of Automotive Repair Registration
4 8 County of San Diego Notice of Violation dated October 5, 2004
5 9 County of San Diego Compliance Inspection Report dated
6 November 2, 2004
7 10 Handwritten note of expenditures (withdrawn by Appellant)
8 11 Photograph
9 12 Photograph of Oil Drums
13 Two pages of photographs
10
14 Photograph from 1981
11
12
II
13
FINDINGS OF PACT
14
1. The Department received a complaint on January 5, 2004 that antifreeze had been
15
dumped in the storm gutter at the Property. On January 15, 2004 Code Enforcement Officer
16
Susan Balk visited the Property and observed what appeared to be illegal structures. She notified
17
Appellant that the Property would be reviewed for compliance.
18
2. The Property consists of a 10 unit motel that is surrounded on three sides by an
19
auto parts and repair business. Appellant purchased the auto parts and repair business, but not
20
the Property, in 19801. In 1996 Appellant purchased the Property and the motel business.
21
3. On Apri122, 2004 Code Enforcement Officer Joan Schmid inspected the Property
22
and identified code violations relating to the motel business. On May 10, 2004 Ms. Schmid
23
inspected the Property with Fire Inspector Gary Edmonds. Inspector Edmonds found fire code
24
violations relating to the motel and the auto repair business.
25
26There isadispute between the Department and Appellant aboutwhetherthe auto repairbusiness onthe Property isalegal
27 use. That issue is beyond the scope of this hearing and the Boazd makes no findings regarding whether and when Appellant has
28 operated an auto repair business at the Property or whether such use is legal.
-3-
1 4. On May 14, 2004 the Department issued a Notice of Violation ("NOV"). The
2 NOV incorporated the Inspection Reports that had resulted from the Apri122, 2004 site
3 inspection. There was an inspection report for the motel and a separate inspection report for the
4 auto repair business. The NOV notified Appellant that the manager's office addition, additions
5 to the private dwelling and the auto repair buildings were built without permits and that the
6 motel had unsanitary unfinished walls, broken windows, illegal electrical outlets, non-
? operational heating units, inoperable smoke detectors, lack of fire extinguishers and an
8 accumulation of tires, oil, solvents and other flammable items from the automotive business in
9 close proximity to the motel. The Automotive Repair Business Inspection Report detailed
10 numerous code violations in relation to the auto repair business and ordered Appellant to:
11 "Immediately cease the motel use. Board and secure the structure." The NOV ordered Appellant
12 to correct the violations by July 7, 2004. A cover letter attached to the NOV presented Appellant
13 with two options. The letter stated that the motel was the legal non-conforming use at the
14 Property and that the auto repair business was an illegal use. The first option in the NOV was to
15 continue with the motel and close the auto repair business. The second option was to close the
16 motel and legalize the auto repair business.
17 5. Appellant made some of the corrections required by the NOV. He removed some
18 of the unpermitted structures associated with the motel. He states he repaired and refinished the
19 walls, repaired broken windows, replaced GFCI outlets, installed new electrical cover plates and
20 working smoke detectors and fire extinguishers. He also testified he installed new HVAC units
21 in several of the units, but stopped the installation process after a phone conversation with Ms.
22 Schmid in which he believes he was told the City intended to shut the motel down. The City
23 inspectors have been unable to verify that these changes were made properly.
24 6. The Department offered to meet with Appellant to discuss the issues. Meetings
25 were scheduled with Appellant, his attorney and Department personnel, but there were
26 scheduling problems among the parties and the meetings were canceled. Appellant did not, as
27 required by the NOV, close the auto repair business. He also did not adopt the other alternative
28 stated in the cover letter attached to the NOV: close and board the motel.
-4-
1 7. Appellant's attorney and Department personnel were attempting to schedule a
2 meeting to discuss what Appellant would do with the Property. On September 8, 2004 the
3 Department issued and properly served a Notice and Order to Abate. The Notice and Order to
4 Abate stated that the motel was considered a public nuisance and ordered him to abate the
5 nuisance within fifteen calendar days by closing, vacating, boarding and securing the motel and
6 making repairs referenced in the NOV.
7 8. Appellant submitted a timely request for an appeal.
8 9. The Department contends having the motel and the auto repair business operating
9 at the same time on the Property constitutes a public safety hazard to patrons of the motel. The
10 auto repair business consists of several structures that were built without permits. The structures
11 bring the auto repair business physically very close to the motel. A number of metal awning-
12 type cover structures were built for the auto repair business without permits. These structures
13 surround the motel on three sides and have no fire suppression equipment. There is a large
14 amount of hazardous chemicals and fuel load all around the motel. If a fire were to start, the
15 presence of the unpermitted awnings would channel the fire toward the motel. The only exit
16 from the motel is directly into the courtyard area where the fire would be located. The driveway
17 area is too narrow to allow fire trucks adequate access to the motel.
18 10. Appellant raises several arguments in his defense. He challenges this hearing as
19 violating his due process rights. This argument is noted for the record, but the Board declines to
20 rule on it as it is beyond the Board's jurisdiction.
21 11. Appellant argues the Department should have given him adequate time to develop
22 a plan to redevelop the Property. The Board notes that Appellant has been aware of the
23 problems at the Property since at least January 2004 and has not come forward with a
24 redevelopment plan. Appellant also argues it is unfair that the Department required him to spend
25 substantial sums to make repairs to the motel, only to have it declared a nuisance. Appellant
26 spent more than $6,000 in repairs to the motel. The Board does not find it unfair to require
27 Appellant to make these repairs to the motel since Appellant has continued to keep the motel
28 open and rent rooms to patrons. Many of the repairs were immediately necessary for the health
-5-
1 and safety of the patrons. In addition, the letter attached to the NOV clearly notified Appellant
2 that the Department wanted him to either shut down the motel or shut down the auto repair
3 business. Appellant's decision to spend $6,000 to repair the motel indicates he chose the option
4 of shutting down the auto repair business, yet he has kept the auto repair business open.
5 12. Appellant argues that the Property is not a health and safety risk because there has
6 not been a fire. This is an inappropriate consideration. The Department must be concerned with
7 the safety of the Property in the event of a fire, not wait for a fire to occur before talting action.
8 He also argues City inspectors visited the Property annually for various reasons over the years
9 and have not charged any violations. The fact that other inspectors visited the Property and did
10 not find violations does not prevent the Department from conducting a full inspection and
11 enforcing the appropriate codes.
12 13. Appellant also argues, without any supporting evidence, that the City has an
13 undisclosed plan to redevelop the area. Even if there were evidence supporting this assertion,
14 the City's ultimate plans are not relevant to the immediate health and safety concerns at the
IS Property.
16 14. Appellant has not presented any plan that addresses the health and safety issues
17 the Department has raised. Appellant's only proposal is to keep the motel open for another nine
18 months so Appellant can raise enough cash to redevelop the Property. Although the Board
19 appreciates that Appellant has made some effort to repair some of the health and safety
20 violations at the Property, there remains an imminent threat to public health and safety. In light
21 of this safety concern, Appellant's desire to keep the motel open and save money is not
22 acceptable.
23 15. As long as the motel is open for business while the auto repair facility is also open
24 for business and consists of unpermitted structures, the Property constitutes an immediate hazard
25 to the health and safety of motel patrons.
26
27
28
-6-
1 >u
2 DETERMINATION OF ISSUES
3 1. Chula Vista Municipal Code Section 1.30.OSOz authorizes a city code enforcement
4 officer to declare a public nuisance for any reason specified in any city ordinance. Section
5 1.30.070 sets forth a right to appeal and stays any abatement action pending resolution of a
6 timely appeal. Section 15.20.030 provides that the Board of Appeals and Advisors has
7 jurisdiction over such appeals.
8 2. Section 15.08 adopts the California Building Code, which prohibits construction
9 of structures without required permits, inspections and approvals. California Health and Safety
10 Code section 17920.3, subdivision (c) declares any building that is a nuisance to be a
11 substandard building. California Civil Code section 3479 defines a nuisance, among other
12 things, as anything which is injurious to health so as to interfere with the comfortable enjoyment
13 of life or property. Civil Code section 3480 defines a public nuisance as one which affects at the
14 same time an entire community or any considerable number of persons.
15 3. By reason of Findings of Fact 2 through 15, a public nuisance exists at the ETC
16 Motel, 2681 Main Street, Chula Vista, California as long as the auto repair business and the
17 motel business continue to operate on the Property.
18 4. By reason of Findings of Fact 2 through 15, the Notice and Order to Abate dated
19 September S, 2004 directed to Heriberto Gutierrez for the property located at 2681 Main Street,
20 Chula Vista, California (APN 622-140-36-00) is upheld and sustained.
21 IV
22 ORDER
23 THEREFORE, the following order is made:
24 1. The Notice and Order to Abate dated September 8, 2004 directed to Heriberto
25 Gutierrez for the property located at 2681 Main Street, Chula Vista, California (APN 622-140-
26 36-00) is upheld and sustained.
27
28 2 All statutory references aze to the Chula Vista Municipal Code unless indicated otherwise.
_ _
1 2. Appellant Heriberto Gutierrez shall abate the nuisance by closing, vacating and
2 securing against entry the structures Irnown as ETC Motel, 2681 Main Street, Chula Vista,
3 California within fifteen (15) days of the effective date of this order.
4 3. If Appellant fails to abate the nuisance within fifteen (15) days of the effective
5 date of this order, the City of Chula Vista may take steps to abate the nuisance under the
6 summary abatement power set forth in Municipal Code section 1.30.030 and, after notice to
7 Appellant and an opportunity to be heard, charge Appellant for the cost of such abatement.
8 4. The following notice is provided pursuant to Municipal Code section 1.40.020:
9 The date this decision is mailed to Appellant shall constitute the date of exhaustion of
10 administrative remedy. Pursuant to California Code of Civil Procedure section 1094.6,
11 Appellant has 90 days from the date of mailing this decision to file a writ of mandamus or other
12 applicable judicial review.
13 IT IS SO ORDERED:
14 Dated: 2Q C
Alan~R. A V rd.
15 Administrative Hearing Examiner
Special Consultant to the Board
16
17
Dated:
18 Bryan Ehm
oard Memb r~>
19
20 r Z.Z- 2UO
Dated: ! /
21 mes J. onaghan
Board .tuber
22
23 C
Dated: C~ i;, j ~ ~ a0` ~ l ,;v.,
24 Donald Snider
Board Member
25
26
Dated: ~ I ° a ~ ° a M . t,CA¢.e.S
27 Ben West
Board Member
28
8
~ fit- S
1 Dated: df 2'i„~C> ~T
Matt Flach
2 Board Member
3 , ~
4 Dated: Z- ~ `l l.,X.~ Ur-p,,,.~~~
Edward Nagbrski
5 Board Member
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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-9-
A. Sign ure - ? Agent I
¦ l,Dmplete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired. X ? Addressee
¦ Print your name and address on the reverse ~ ~ -
so that We Can retUYn the card to you. B. Received (Printed Name) C. Date of Delivery f
¦ Attach this card to the back of the mailpiece, U
~ oY on the front If space peYmits. p, is delivery address different from item 11^~ Yes
If YES, enter ielivery address below: ~ NO
I! 1. Article Addressed t¢
i
1
Mr. Heriberto Gutierrez
`L68I Main Street I
Chula Vista, CA 91910 ~
3. Service Type
Certified Mall ? Express Mail
Return Receipt for Merchandise
tered
~s
e
13 ?R
g
? C.O.D.
? insured Mail
4. Restricted Delivery? (Extra Fee) ? Yes ~ ~ ~ -
2. Article Number 7004 1160 0005 6542 2517
(~2nsfer from service Label)
102595-02-M-1540
Domestic fletum Races t
~i PS Form 3811, February 2004 p _ _
~ T T .
i
. I • o e s • •
¦ Complete items t, 2, and 3. Also complete A. Sign ure
-i, -item 4 if Restricted Delivery is desired. X ~ ? Agent
¦ Print your name and address on the reverse ? Addressee
s° that We Can return the card to you. e, Received by (Panted Name) C. D to b Delivery
¦ Attach this card to the back of the mailpiece,
i or on the front if space permits. _ A wl N Q • fit' 7 E S j~~j0 ~t1
7. Article Addressed to: D. Is delivery address different from item 1? ? Yes "
~I ~~°i If YES, enter delivery address below: ?No
James C. Stevens, Esq.
402 West Broadway, Suite 400
San Uiego, CA 92101
3. Service, Type
i ~Certifled Mail ? Express Mall
I ? Registered ? Return Receipt for Merchandise
? Insured Mail ? C.O.D.
4. Restricted Delivery? (Extra Fee) ? Yes
2. Article Number 7004 1160 0005 6542 2524
(llansfer from service label)
PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540