HomeMy WebLinkAbout2019-03-11 BOAA Agenda PacketWit{ It
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CHULA VISTA
Board of Appeals & Advisors
REGULAR MEETING OF THE BOARD OF APPEALS & ADVISORS
OF THE CITY OF CHULA VISTA
March 11, 2019 Conference Room 137
5:15 p.m. Public Service Bldg. `B"
276 Fourth Ave., Chula Vista
CALL TO ORDER
ROLL CALL: Chair Doria, Committee Members: Combs and Sclafani
CONSENT CALENDAR
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motion, without discussion, unless a Board/Commission Member, a member of the public, or
staff requests that an item be removed for discussion. If you wish to speak on one of these
items, please fill out a "Request to Speak" form and submit it to the Secretary prior to the
meeting. Items pulled from the Consent Calendar will be discussed immediately following
the Consent Calendar.
PUBLIC COMMENTS
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subject matter within the Board/Conimission's jurisdiction that is not listed as an item on the
agenda. State law generally prohibits the Board/Commission from discussing or taking
action on any issue not included on the agenda, but, if appropriate, the Board/Commission
may schedule the topic for facture discussion or refer the matter to staff. Comments are
limited to three minutes.
ACTION ITEMS
The Item(s) listed in this section of the agenda will be considered individually by the
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speak on any item, please fill out a "Request to Speak" form and submit it to the Secretary
prior to the meeting.
1. Consideration of the Findings and Decision on the Appeal of a Notice and Order of
Dangerous Building, 1161 Third Avenue, Chula Vista, California, as an Unsafe Building
and a Public Nuisance, which the Board denied on February 27, 2019 and upheld the
Building Official's recommendation; if approved, directing Vice Chair Jim Combs to
execute same.
OTHER BUSINESS
2. STAFF COMMENTS
3. CHAIR'S COMMENTS
4. COMMISSIONERSV/BOARD MEMBERS' COMMENTS
ADJOURNMENT to the regular meeting on April 8, 2019 in Development Services
Conference Room 137 Chula Vista, California.
Materials provided to the Board of Appeals & Advisors related to any open -session item on this
agenda are available for public review in the Public Service Bldg B, Front Counter Reception
area, during normal business hours.
In compliance with the
AMERICANS WITHDISABILITIESACT
The City of Chula Vista requests individuals who require special accommodations to access,
attend, and/or participate in a City meeting, activity, or service, contact the Human Resources
Department at (619) 691-5041 (California Relay Service is available for the hearing impaired by
dialing 711) at least forty-eight hours in advance of the meeting.
I declare under penalty of perjury that I am
employed by the City of Chula Vista in
Development Services and that I posted this
document on the bulletin board according to
Brown Act requirements.
Dated- Signed
Page 2 1 Board of Appeals & Advisors Agenda March 11, 2019
= .-cm 1
IN THE MATTER BEFORE THE BOARD OF APPEALS & ADVISORS
OF THE CITY OF CHULA VISTA,
FINDINGS AND DECISION
ON A HEARING ON THE APPEAL OF A NOTICE AND ORDER OF
DANGEROUS BUILDING, 1161 THIRD AVENUE,
CHULA VISTA, CALIFORNIA
The above entitled matter regarding a Notice and Order of a Dangerous Building at 1161 Third
Avenue, Chula Vista in violation of numerous sections of the Chula Vista Municipal Code, an
appeals hearing was heard on February 27, 2019. The matter was heard by the Board of Appeals &
Advisors of the City of Chula Vista at a special meeting open to the public, which was properly and
publically noticed as such. Appellant, tenant Chula Vista Exotics, did not appear. The following staff
members were present for their respective City of Chula Vista departments: Lou El-Khazen,
Rosemarie Rice, Brian Catacutan, and Dan Padilla for the Code Enforcement Division; Justin
Berkley for the Fire Department; and Megan McClurg and Carol Trujillo, for the City Attorney's
Office. The matter was recorded via an audio recording device.
Preliminarily, staff informed the Board that there was a request from the Law Offices of Michael E.
Cindrich APC, the attorney for Appellant, to continue the appeal hearing because Michael Cindrich
was in trial in Sacramento County. In response to questioning from the Board, staff informed the
Board that the request for continuance was received by email on Monday February 25, 2019. In
response to questioning from the Board, staff explained that they were informed another attorney in
the law firm could not handle the hearing because Appellant had an exclusive representation contract
with attorney Michael Cindrich. Staff informed the Board that they confirmed with Sacramento
County that Michael Cindrich was in trial there starting February 25, 2017 and that the trial might
last seven to eight days. In response to questioning, Staff confirmed that the notice of the February
27, 2019 appeal hearing was published and sent on February 6, 2019 but neither Appellant nor
Appellant's attorney mentioned the possibility of a scheduling conflict, or unavailability, until
February 25, 2017. Staff informed that Board that the law firm had requested continuances as to
other hearings, including a second hearing scheduled for earlier in the day, based on Michael
Cindrich's unavailability. Staff told the Board they had informed Appellant's law firm they would
present the request to continue the appeal hearing and reasons therefore but that the decision to
continue the hearing was the Board's. After discussion, the Board denied Appellant's request to
continue the requested appeal hearing. The Board noted the importance ofproviding due process, but
concluded the gravity of the allegations—that the building was currently occupied and was
dangerous to human life -- required the Board's review of the Notice and Order of Dangerous
Building, as noticed, at the February 27, 2019 special meeting.
The aforementioned members of the Code and Fire Departments were sworn in by Vice -Chair
Combs. Mr. El-Khazen gave an overview of the appeals packet, which was included on the agenda
as Item 2 and provided to Appellant and the Board before the meeting. Code Enforcement Officer
Padilla reviewed the City's efforts, since 2017, with different property owners and an unpermitted
1 of 3
marijuana business tenant, to address code violations at 1161 Third Avenue.
It was noted that neither Appellant nor the current property owner, PGN 198, Inc. responded to any
of City's numerous violations notices issued to both Appellant and property. It was also noted that
Appellant did not offer a substantive reason for appealing the City's Notice and Order of Dangerous
Building. Rather, Appellant's only response to the Notice and Order of Dangerous Building was a
letter from Appellant's attorney that the Cindrich law office was representing Appellant, which had a
legal interest in the property, and confirming Appellant's appeal.
Fire Inspector Berkley described his June 2018 inspection of the property and described it as a "fire
trap." There was only one door in and out of the interior of the building, which was secured by an
unpermitted magnetic lock. There were numerous extension cords throughout the interior, which
increased the potential for electrical overload. He explained in the event of a fire or natural disaster,
the locked door could trap occupants inside the building. Furthermore, first responders would have
great difficulty and would endanger their own safety trying to get in and out of the building's single
door.
The Board admitted the entire appeals packet as evidence and adopted some staff corrections, made
on the record, to the packet. Staff subsequently made and noted the changes in the packet.
Having heard and considered all available evidence —the appeals packet with staff corrections and
sworn testimony at the hearing -- the Board unanimously found, based on a preponderance of the
evidence, that Appellant's appeal is DENIED and the Notice and Order of Dangerous Building is
UPHELD.
Specifically, the Board upheld the Building Official's determination that unpermitted construction
and alterations exist, which make the building at 1161 Third Avenue an unsafe building; that the
building is improperly occupied, has inadequate egress, is a potential fire hazard, is being maintained
as a public nuisance as an unlawful marijuana business and is otherwise dangerous to human life.
Additionally, as set out in the Notice, the building at 1161 Third Avenue must be vacated within ten
(10) days; failure to comply may result in the City causing the building to be vacated, secured and
maintained against entry at the property owner's expense.
Further, the Board finds that the appeal fee will be added to the City's costs of abatement/ vacation,
which will be billed to the property owner or levied and assessed against the property as a special
assessment lien. Pursuant to CVMC section 1.40.020.1-1, unless and until a timely request for judicial
review is filed, enforcement of the final decision may proceed in due course.
Notice Pursuant to California Code of Civil Procedure Section 1094.6
Notice is hereby provided that Appellant may appeal this decision by filing an appeal in the San
Diego Superior Court pursuant to Government Code section 53069.4(b)(1) on or before the 90'h
2 of 3
day after this decision is served. This decision is deemed served on the date noted in the attached
Certificate of Mailing/Proof of Service.
am
Date:
Jim Combs
Vice -Chair
Board of Appeals & Advisors
Attachments:
1. Appeal packet for Item No. 2, 1161 Third Avenue
2. Certificate of Mailing/Proof of Service
3 of 3
Board of Appeals and Advisors ATTACHMENT 1
Meeting Date: 02-27-2019
Subject: Appeal of Notice and Order totee Dangerous Building**; 1161 Third
Avenue.
Submitted By: Lou El-Khazen, Building Official/Code Enforcement Manager
Justin Gipson, Fire Division Chief/Fire Marshal
Property Owner: PGN 198, INC
Tenant: Chula Vista Exotics
Appellant: Law Offices of Michael E. Cindrich, APC legal counsel for D!'N 198, r r C
Chula Vista Exotics**
SUMMARY:
The "Chula Vista Exotics" is an illegal cannabis business located at 1161 Third Avenue (the
"Property"). The illegal business contains unpermitted construction alterations including but not
limited to interior walls, electrical, doorways, and an unpermitted 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 August 2017,
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 Vaeate Dangerous
Building* *, which is appealed to the Board.
RECOMMENDATION:
That the Board of Appeals and Advisors deny the business tenant's appeal of the NOTICE AND
ORDER TO V n r n TE DANGEROUS BUILDING** and uphold the Building Official's and
Fire Marshal's determination that the building at 1161 Third Avenue is unsafe and is being
maintained as a public nuisance.
DISCUSSION:
"Change approved by Board of Appeals & Advisors on 02-27-2019**
As mandated by the Chula Vista Municipal Code, any and all tenant improvements conducted on
buildings within the City are subject to the permitting process and 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 building on the Property has undergone tenant improvements including but not limited to the
construction of interior walls and doors. The tenant improvements have not been permitted by
the City of Chula Vista and cannot be permitted by the City because of the illegal use of the
building as a cannabis business. Up until December 12, 2018, the City of Chula Vista prohibited
all cannabis businesses pursuant to Chula Vista Municipal Code (CVMC) 5.66.020. Beginning
on December 12, 2018, CVMC 5.19 permits limited commercial cannabis activity in the City by
businesses who are dually licensed by both the State of California and the City of Chula Vista.
However, no licenses have yet been issued by the City of Chula Vista, and the City does not
anticipate issuing any licenses until later in 2019. As a result, all commercial cannabis activity
remains prohibited in the City of Chula Vista.
The most recent approved tenant improvement permit was issued in 2013 to include partition
walls, doors and miscellaneous electrical - permit B13-1483 (Exhibit 11)
Photos reflect the changes in construction from 2017 Google map street view vs photo taken by
Officer Padilla on January 15, 2019 (Exhibit 12). Two doors on north side of building have been
sealed along with a window added on the west side of the building.
Case History
1. On August 15, 2017, staff received a complaint from the Chula Vista Police Department
regarding an illegal cannabis business operating at the Property. Officer Padilla drove by
and observed signage indicative to a cannabis business (green cross, 24 hours, blacked
out windows surrounded by green lights). Officer Padilla took photos of the exterior of
the property (Exhibit 1).
2. On August 16, 2017, Officer Padilla researched the cannabis business locator using
website www.weedmMs.com and found a cannabis business advertising itself as "Chula
Vista Exotics" with an address of 1161 Yd Avenue Chula Vista (Exhibit 2). A code
enforcement case was opened for the unpermitted business (C17-0643) and another one
for the unpermitted signage (C 17-0646).
3. From August 16, 2017 to December 12, 2017, a warning along with several citations
were issued to the property owner and business for unpermitted signage. The signage
was removed by January 26, 2018 and no further citations regarding signage were issued
against the property.
**Change approved by Board of Appeals & Advisors on 02-27-2019**
4. On September 18, 2017, sworn law enforcement personnel conducted an undercover
purchase of cannabis from a business identifying itself as Chula Vista Exotics at the
Property.
5. On September 19, 2017, Officer Padilla drafted a Notice of Violation, Pending
Assessment of Administrative Civil Penalties & Intent to Record a Notice of Violation of
unlawful cannabis activity against the property (C17-0643). This was mailed to all
interested parties (Chula Vista Investments LLC located at 2142 Canta Lomas El Cajon,
CA and to Chula Vista Exotics at the Property) by first class mail. No appeal was
received (Exhibit 3).
6. On October 23, 2017, Officer Padilla received a call from Mr. Angelo Habib, member of
Chula Vista Investments, LLC asking about issued citations and what is needed to take
place to stop them. He said his lawyer is working on having the tenants removed.
Officer Padilla advised him to shut down the cannabis business, remove the signage and
have his lawyer contact the Deputy City Attorney. Officer Padilla provided Mr. Habib
with the Deputy City Attorney's phone number.
7. On December 19, 2017, sworn law enforcement personnel conducted an undercover
purchase of cannabis from a business identifying itself as Chula Vista Exotics at the
Property.
On December 20, 2017, Officer Padilla prepared a Civil Penalty Notice and Order against
the property. This was mailed out first class and certified mail to all interested parties
(Chula Vista investments, LLC, Chula Vista Exotics and to the Loan company of San
Diego). No appeal was received (Exhibit 4).
9. On April 3, 2018, sworn law enforcement personnel conducted an undercover purchase
of cannabis from a business identifying itself as Chula Vista Exotics at the Property.
10. On June 13, 2018, an inspection of the Property was conducted by a City of Chula Vista
fire Investigator/Inspector. The Investigator/Inspector noted several code violations
including the presence of unpermitted magnetic locking doors, missing signage, and
general building without permit violations (Exhibit 5).
11. On October 31, 2018, Officer Catacutan wrote and mailed out an inspection request by
first class mail to the Property (Exhibit 6).
12. On November 8, 2018, a check on title revealed the Property was quitclaimed on
September 14, 2018 from Chula Vista Investments, LLC to PGN198 Inc. A business
**Change approved by Board of Appeals & Advisors on 02-27-2019**
entity check showed The Agent for Service of Process as Todd Abbot address of 2137
Olympic Parkway Suite 250 Number 348. That same day Officer Padilla, Officer Bruce
and Senior Officer Catacutan visited the Property. Upon entering, Officer Padilla
observed a lobby area with interior walls and windows. People behind the window were
speaking with arriving patrons. There was another door leading into a room which
allowed patrons access. This door had magnetic locks on it.
13. On November 9, 2018, a Notice of Violation and Pending Assessment of Administrative
Civil Penalties for construction without a permit or inspections was mailed out to all
interested parties (PGN198 INC, Chula Vista Investments, LLC and to the Property) by
first class and certified mail (Exhibit 7).
14. On December 20, 2018, Officers Padilla and Bruce returned to the Property to post a
Notice and Order to Vaeate Dangerous Building* * on the entrance door. The Notice and
Order to Vaeate Dangerous Building" provided ten (10) days to vacate the premises at
the Property. Upon entering, Officer Padilla spoke with the security guard on duty who
was sitting behind a Plexiglas window inside the lobby and advised him of the posting.
The building violations remained. Photos were taken, and copies attached as (Exhibit 8).
15. On December 26, 2018, an appeal was received by mail from the Law Offices of Michael
E. Cindrich for the Notice and Order *oma Dangerous Building" dated December
20, 2018. (Exhibit 9)
16. On January 9, 2019, using the Marijuana Business location website,
www.weedmgps.com staff confirmed that 1161 Third Avenue is still housed a cannabis
business known as "Chula Vista Exotics".
Copy of screenshot of Weed maps on 1-9-19. (Exhibit 10)
Applicable Codes and Regulations
The following are codes and regulations applicable to this case:
1. Chula Vista Municipal Code (CVMC) 1.30 authorizes the City Manager to establish a
procedure for the abatement of a nuisance.
2. Pursuant to CVMC 1.30.020, the "city abatement officer" shall be the city officer for
enforcement of the city ordinances being violated and who initially declares said violation to be
a public nuisance.
3. CVMC 1.30.040 states whenever a public nuisance is declared; it may be abated in accordance
**Change approved by Board of Appeals & Advisors on 02-27-2019**
with the municipal code.
4. CVMC 15.06.060(E) states: "Occupancy Violations. When a building or structure or building
service, equipment regulated by this chapter and the technical codes is being used contrary to the
provisions of this chapter and the technical codes, the Building Official may order such use
discontinued by written notice served on any person causing such use to be continued. Such
person shall discontinue the use within the time prescribed by the Building Official after receipt
of such notice to make the structure or portion thereof comply with the requirements of this
chapter and the technical codes."
5. CVMC 15.06.060(K) states: "Cooperation of Other Official and Officers. The Building
Official may request, and shall receive, the assistance and cooperation of other officials and
employees so far as is required in the discharge of duties required by this chapter, the technical
codes or other city pertinent laws or ordinances."
6. CVMC 15.06.065(D) states: "Unsafe buildings, structures or appendages and building service
equipment are public nuisances and shall be abated by repair, rehabilitation, demolition or
removal in accordance with the procedures set forth in Chapter 15.18 CVMC." CVMC 15.18 is
the Abatement of Dangerous Buildings Code.
7. CVMC 15.06.075 (A) states: "Unlawful Acts. It shall be unlawfiil for any person to erect,
construct, alter, extend, repair, move, remove, demolish or occupy any building; structure or
equipment regulated by this chapter and the technical codes, or cause same to be done, in conflict
with or in violation of any of the provisions of this chapter and the technical codes."
8. CVMC 15.06.075(B) states: "Notice of Violation. The Building Official is authorized to serve
a notice of violation or order on the person responsible for the erection, construction, alteration,
extension, repair, moving, removal, demolition or occupancy of a building or structure in
violation of the provisions of this chapter and the technical codes, or in violation of a permit or
certificate issued under the provisions of this chapter or the technical codes. Such notice of
violation or order shall direct the discontinuance of the illegal action or condition and the
abatement of the violation."
9. CVMC 15.06.075(D) states: "Violation Penalties. Any person who violates a provision of this
chapter or the technical codes or fails to comply with any of the requirements thereof or who
erects, constricts, alters or repairs a building or structure in violation of the approved construction
documents or directive of the Building Official, or of a pen -nit or certificate issued under the
provisions of this chapter and the technical codes, shall be subject to penalties as prescribed by
law."
10. CVMC 15.06.115(A) Certification of Occupancy states: "Use or Occupancy. Buildings or
structures shall not be used or occupied nor shall a change in the existing occupancy
classification of a building or structure or portion thereof be made until the Building Official has
issued a certificate of occupancy."
**Change approved by Board of Appeals & Advisors on 02-27-2019**
11. California Civil Code: Section 3491 authorizes abatement as a remedy against a public
nuisance. Section 3494 of the Civil Code authorizes a public body or officer to abate public
nuisance.
12. CVMC 5.66.020, 5.19.030, and 5.19.280. Up until December 12, 2018, CVMC chapter 5.66
was the only municipal code chapter addressing commercial marijuana activity in the City of
Chula Vista. CVMC 5.66.020 read: "Commercial marijuana activity is prohibited in the City of
Chula Vista, and no person or association of persons, however formed, shall operate, perform,
participate in or locate a commercial marijuana activity in the City. The City shall not issue,
approve, or grant any permit, license or other entitlement for the establishment or operation of
commercial marijuana activity in the City of Chula Vista." On December 12, 2018, CVMC
chapter 5.19 went into effect and created a licensing and regulatory structure for the operation of
marijuana businesses in the City. CVMC 5.19.030 permits limited commercial cannabis activity
within the City by businesses who have obtained both State and City licenses authorizing such
activity. CVMC 5.19.280(A)(1) states: "It is unlawful to: (1) Operate, conduct, or direct
Commercial Cannabis Activity in the City without a valid City License authorizing such
Activity... (3) Use any parcel or any portion of parcel of land as a Commercial Cannabis Business
without a valid City License ... (4) "Lease, rent to, or otherwise allow a Commercial Cannabis
Business to occupy any parcel or portion of parcel of land in the city without a valid City License."
No such City licenses have been issued to date; the business operating in the building at the
Property is therefore prohibited.
CONCLUSION:
The building at the Property is currently being used as an illegal business, contains unpermitted
construction alterations, is being maintained as a public nuisance, and is otherwise dangerous to
human life. The business and Property owners have ignored the Notices issued to them. As a
result, City staff respectfully recommend that the Board of Appeals and Advisors deny the
alleged Property tenant's appeal of the Notice and Order *oma Dangerous Building" and
uphold the Building Official's and Fire Marshal's determination that the building at 1161 Third
Avenue is improperly occupied, is unsafe, and is being maintained as a public nuisance.
Exhibits attached:
1. Front street elevation photo of exterior property
2. Webpage listing Chula Vista Exotics
3. Notice of Violation
4. Civil Penalty Notice and Order
5. Fire Safety Inspection Report
6. Request for Inspection
7. Notice of Violation, Pending Assessment of Administrative Civil Penalties
8. Notice and Order Dangerous Building
9. Request for Administrative Hearing
10. Webpage listing Chula Vista Exotics
11. Tenant Improvement Permit B13-1483
12. Photos reflecting construction changes
**Change approved by Board of Appeals & Advisors on 02-27-2019**
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