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Home My WebLink About2019-01-23 BOAA MinutesMINUTES OF A SPECIAL MEETING OF THE BOARD OF APPEALS & ADVISORS OF THE CITY OF CHULA VISTA January 23, 2019 5:15 p.m. A Special Meeting of the Board of Appeals & Advisors of the City of Chula Vista was called to order at 5:15 p.m. in Executive Conference Room 103, located at Public Service Bldg. "A", Chula Vista, California. ROLL CALL PRESENT: Chair Doria, Combs, and Sclafani ABSENT: None ALSO PRESENT: Lou El-Khazen, Building Official, Carol Trujillo, Deputy City Attorney, Megan McClurg, Deputy City Attorney, Justin Gipson, Chief/Fire Marshall, Brian Catacutan, Senior Code Enforcement Officer, Marisol Aguilera, Code Enforcement Officer, Daniel Padilla, Code Enforcement Officer and Secretary Rice CONSENT CALENDAR 1. Approval of Minutes: December 10, 2018 Staff recommendation: Board approves the minutes. ACTION: Member Combs moved to approve staffs recommendations and offered Consent Calendar Item 1. Member Sclafani seconded the motion, and it carried 3-0. ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS None ACTION ITEMS 2. Appeal of a Notice and Order to Vacate, 1161 Third Avenue, Chula Vista, California. Building Official El-Khazen explained the appeal for 1161 Third Avenue was going to be continued to the next regular scheduled meeting, February 11, 2019, at the request of the appellant's attorney. They stated the packet was postmarked January 10, 2019 but wasn't Page 1 I Board of Appeals & Advisors Minutes January 23, 2018 received until January 14"' this did not give them enough time to go through the information. Also, staff had identified issues in the initial packet and corrections had to be made to the exhibits. 3. Appeal of a Notice and Order to Vacate, 1283 Third Avenue, Chula Vista, California Mr. El-Khazen noted that the appellant and his attorney were not present. Code Enforcement Officer for the case was Michael Justin Bruce, who also was not present due to a prior commitment. In his place was Brian Catacutan, Senior Code Enforcement Officer and officer Bruce's supervisor. Mr. Catacutan had gone over the case with officer Bruce so any questions concerning the matter could be addressed to him. As summarized in the staff report, Building Official El-Khazen, stated Chula Vista Collective is an illegal cannabis business located at 1283 Third Avenue. The illegal business contains unpermitted construction alterations including but not limited to interior walls, electrical doorways, and an unpermitted change of use resulting in an unsafe building as it is improperly occupied, has inadequate egress, is a potential fire hazard, is being maintained as a public nuisance, and is otherwise dangerous to human life. Since November 8, 2018, staff has been taking enforcement action against the business and property owner to stop the illegal business and restore the property to its original status. The business and property owner have ignored the many legal notices issued to them and continue to operate with disregard to local and State rules and regulations. The City issued a Notice and Order to Vacate which is being appealed to the Board. Building Official El-Khazen stated the Chula Vista Municipal Codes (CVMC) mandates any and all tenant improvements conducted on buildings within the city are subject to the permitting process as well as inspections under CVMC 15.06.080; Permits, and CVMC 15.06.100; Inspections. Tenant improvements must be inspected and approved by City Building Inspectors and City Fire Officials. The property at 1283 Third Avenue has undergone tenant improvements including but not limited to the construction of interior walls and doors. This tenant improvement has not been permitted by the City of Chula Vista and cannot be permitted by the city because of the illegal use of the facility as a cannabis business. Chula Vista Municipal Code 5.66.020; Commercial cannabis business prohibited, prohibits any cannabis/cannabis business in the city. Furthermore, CVMC Chapter 5.19; Commercial Cannabis, prohibits commercial camlabis businesses that are not issued City and State licenses authorizing the operation of a cannabis business. Staff noted the most recent approved permits were to cap off utilities in the shed as well as in a bathroom at the property in 2016, cases B16-0338 and B16-014, respectively. The only other approved permit was to replace an exterior staircase in 1993, Case B93-0142. Mr. El-Khazen went over the case history described in the staff report and reviewed the applicable codes and some of the regulations for this case which he and Fire Marshall Gipson determined were relevant to this case. Item 3; CVMC 1.30.040 states whenever a public nuisance is declared; it may be abated in accordance with the municipal code. Item 4; CVMC 15.06.060 (E) Occupancy Violations; Item 7; CVMC 15.06.075 Unlawful Acts, Item 8; CVMC15.06075(B) Notice of Violation, Item 10; CVMC15.06.115(A) Certification of Page 2 1 Board of Appeals & Advisors Minutes January 23, 2018 Occupancy, Item 11; California Civil Code Section 3491, Item 12; CVMC 5.66 Commercial Cannabis Activity; CVMC 5.19 Licensing and regulatory structure for operation of cannabis business in the City, CVMC 5.19.30 prohibits commercial cannabis business or activity within the City unless the business/activity has a valid State and City cannabis business licenses authorizing such business or activity. Building Official El-Khazen is recommending that the Board of Appeals and Advisors deny the business owner's/tenant's appeal of the Notice and Order to Vacate and uphold the Building Official's and Fire Marshal's determination that the building at 1283 Third Avenue is improperly occupied, is unsafe, and is being maintained as a public nuisance as an unlawful cannabis business. The board members noted the appellant, nor any legal counsel for them, was at the meeting and they inquired if they had been notified. Officer Catacutan affirmed that they had been notified. They asked if the applicant had requested a continuance. Staff replied no. Building Official El-Khazen pointed out there had not been any contact from them other than the appellant's attorney, Matt Shapiro, had allowed staff to inspect the building and then they appealed it. The board commented the appeal from the responsible party (Nicholas Fehoko) listed the notice from the City did not specify what work was unpermitted, and they denied that any structural alterations were made. Attorney McClurg stated the Notice of Violation that was issued had an Attachment "A" that explained the unpermitted tenant improvements were the addition of interior walls, utilities and electric magnetic locks. The notice did include a description of the unpermitted work that was done. Chair Doria asked if there were any more comments from the board. There were none. He asked the board to make a motion. ACTION: Member Sclafani made a motion to deny the business owner's/tenant's appeal of the Notice and Order to Vacate and uphold the Building Official's and Fire Marshal's determination that the building at 1283 Third Avenue is improperly occupied, is unsafe, and is being maintained as a public nuisance as an unlawful cannabis business. Member Combs seconded the motion and it carried unanimously 3-0. OTHER BUSINESS 4. STAFF COMMENTS - Mr. El-Khazen commented Item #2 (1161 Third Ave.) from today's agenda would be continued to their February 11, 2019 meeting. In addition, he was working on an ordinance to comply with the recent State's bill asking jurisdictions to allow permits to stay active for a year before they expire. This ordinance would be going to city council; however, he may bring it to the board as an information item. 5. CHAIR'S COMMENTS- None 6. COMMISSIONERS'/BOARD MEMBERS' COMMENTS- None Page 3 1 Board of Appeals & Advisors Minutes January 23, 2018 The board inquired as to how many applications for licenses had the city received. Attorney McClurg said they had received 96 applications for the limited type which are retail and cultivation. There will be a maximum of 12 retail allowed (3 per district) and 10 cultivation. Member Sclafani commented it was a bit confusing trying to determine who was the responsible party in the staff report. He suggested for future submittals on an Appeal Notice and Order to Vacate that it be clarified as to who is the tenant, who is the building owner, and who is appealing. He also asked how the distinction was made as to who was the responsible party when there was more than one person involved. City Attorney McClurg explained the responsible party is anyone that engages and facilitates the violation of the municipal code it could also be the person upon who's land the violation exist. There was further debate on assessment of fines and penalties and whether the City is flexible on settling the penalties with the property owner. The city attorney replied that they were, and that they did this on numerous occasions. ADJOURNMENT At 6:00 p.m., Chair Doria adjourned the meeting to a Regular Meeting on February 11, 2019 at 5:15 p.m. in Conference Room 137 located at Public Service Bldg "B", 276 Fourth Avenue, Chula Vista, California. Rosemarie Rice, Secretary Page 4 1 Board of Appeals & Advisors Minutes January 23, 2018