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HomeMy WebLinkAbout2019-03-11 BOAA MinutesMINUTES OF A REGULAR MEETING OF THE BOARD OF APPEALS & ADVISORS OF THE CITY OF CHULA VISTA March 11, 2019 5:15 p.m. A Regular Meeting of the Board of Appeals & Advisors of the City of Chula Vista was called to order at 5:15 p.m. in Conference Room 137, located at Public Service Bldg. `B", Chula Vista, California. ROLL CALL PRESENT: Chair Doria and Member Combs and Sclafani ABSENT: None ALSO PRESENT: Lou El-Khazen, Building Official, Carol Trujillo, Deputy City Attorney, Megan McClurg, Deputy City Attorney, Brian Catacutan, Senior Code Enforcement Officer, Daniel Padilla, Code Enforcement Officer, Secretary Salvacion and Ernie Chen, legal counsel for Appellant CONSENT CALENDAR ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS None ACTION ITEMS 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 Public Nuisance, which the Board denied on February 27, 2019 and upheld the Building Officials recommendation; if approved, directing Vice Chair Combs to execute the same. Building Official El-Khazen stated the Board had reviewed this case on February 27, 2019 and staff was bringing it forward for formal approval and signature of the Board of Appeals and Advisors. Ernie Chen, Legal Counsel, for Appellant at 1161 Third Avenue stated regarding the board meeting on February 27, 2019 the appellant demonstrated good cause and believed the Board should reconsider the appellant's request to continue the meeting instead of finding that the Page 1 I Board of Appeals & Advisors Minutes March 11, 2019 property is in violation of the alleged violations. In his opinion, the decision to move forward despite Mr. Cindrich's unavailability amounted to a deprivation of due process of his client. His client had made arrangements, as he explained to Ms. McClurg, that Mr. Cindrich was the attorney that was going to be appealing the City's allegations. Mr. Cindrich is still in trial he has been in trial since February 7, 2019. He pointed out the city agenda potentially contains inaccuracies or at a minimum some misleading statements namely on the first page on Item 1, second paragraph 7 lines down, middle of the page 1 of 3. "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". Mr. Chen noted the typo's concerning year and said Mr. Cindrich has been in trial since February 7th so this was not a last-minute request. Starting February 7th° the initial prognosis of that trial was 7 to 8 days. He would have been available but for that trial which he is currently in today. Based on that information he believed the Board's decision to not continue the hearing for Mr. Cindrich to have an opportunity to be heard on merits is improper. Deputy City Attorney McClurg clarified the information from Sacramento County was a conversation she personally had with the Sacramento County District Attorney's Office who said they were in trial with Michael Cindrich starting Monday, which was February 25, 2019. Whether they meant starting or restarting she did not know, but they did confirm he was in trial in Sacramento County as he presented. She was trying to confirm the information they gave not in anyway to detract from it. The facts remain the same that there was a dangerous building at this location and that circumstance alone was a greater consideration to the board. The potential danger that it posed to the public took precedent over any request that they made. It was generally felt by the Board and the City that Mr. Cindrich had other attorneys in the office that could have come and represented the appellant. While it was understood there was an exclusive representation agreement, when you have other attorney's and need coverage for conflicting things they felt it was incumbent on their office to find coverage for hearings they could not attend. Ms. McClurg stated the City stands by the Board's final determination that it was imperative to go forward when they did based on the severity of the allegations at this location. Deputy City Attorney Truijllo, asked Mr. Chen if he had the client's authority, if Mr. Cindrich has an exclusive agreement, to appear on their behalf at this hearing? Mr. Chen replied he had been in communication with the client, but he had not authorized him, he was here at the hearing to passively represent him. The client is frustrated with their law office and the City. The Sacramento trial is the longest trial Mr. Cindrich has been a part of. He believed it was in it's 5th week of trial. In the meantime, Mr. Chen has been in constant contact with Ms. McClurg and they've tried to reschedule other hearings before this City and they have been successful on at least one occasion. Although they've had to continue the hearing because Mr. Cindrich was not available due to being in trial in Sacramento. Ms. McClurg stated Mr. Chen had been communicating with her and they did continue another hearing where they also asked for a continuance but again they continued it and they asked for another continuance after that. The City's concern is when you are in a gigantic long- term trial you need someone to cover your matters. You should provide people to fill in for Page 2 1 Board of Appeals & Advisors Minutes March 11, 2019 something especially when its an issue that involves an unsafe building that the public is entering and exiting and where violations continue to exist. Chair Doria asked staff if there were any comments concerning this issue. Mr. El-Khazen said it was a serious issue and they needed to address it as soon as possible. To keep continuing it made no sense. During the discussion the Board questioned Mr. Chen whether their law office tried to convince the client to consider him or the other attorney in the practice to represent them. Mr. Chen stated as far as he knew he had convinced them passively to allow him to appear today on his behalf, but regarding any prior hearings he personally did not do that. His involvement in this matter was only to communicate with Ms. McClurg that Mr. Cindrich was not going to be available by email since he was inundated with trial. He could not speak as to whether Mr. Cindrich had attempted to get his client to reach an alternate agreement. The Board felt their primary responsibility, of this board, was to protect the citizens of Chula Vista. They had ample reasons to believe from the fire marshal and inspectors there were legitimate aspects of the building that were unsafe to the public. They did discuss the need for their client's due process; however, at the same time to the extent that the business continues to operate there would be a hazard to the citizens of Chula Vista. The decision they took at the last meeting, February 27, 2019, was to uphold the Notice to Vacate and deny the appeal for that reason. Chair Doria asked if this would be their final decision both members Sclafani and Combs concurred that it would. Deputy City Attorney McClurg asked Mr. Chen if he wanted to present evidence tonight or was he wanting to argue as to the continuance. Mr. Chen replied to the latter. Staff asked the Board if they would make a motion to correct page 1 of Item 1, second paragraph, 7 lines down, middle of the page the correction of date February 25, 2017 to 2019 and on line 12 correction of date February 25, 2017 to 2019. ACTION: Vice Chair Combs made a motion to correct the date at Mr. Chen's request and keep with their original decision to approve the Findings and Decisions on a 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 him to execute the same. Member Sclafani seconded the motion and it carried 3-0. Attorney Chen asked staff what the exact amendment was to Item 1. Deputy City Attorney Trujllo said Mr. Chen had pointed out the date where there was February 25, 2017 in two places half -way down the page and then there was another reference to February 25, 2017 just below that. The board's motion would be to change the 2017 to 2019. Mr. Chen asked the Board to consider his representation that the trial has been ongoing since February 7, 2019. Ms. McClurg said they could strike out there starting (on line 8) and the sentence Page 3 1 Board of Appeals & Advisors Minutes March 11, 2019 would read: Staff informed the Board that they confirmed with Sacramento County that Michael Cindrich was in trials February 25, 2019 and that the trial may last seven to eight days. Mr. Chen said his client would like to have on the record, with the board's approval, that he has been in trial since February 7, 2019. Ms. McClurg said she would find a way to incorporate Mr. Chen's information to accurately reflect for the record that he represented to the board that Mr. Cindrich had been in trial since February 7th. Mr. Chen concurred with that. Deputy City Attorney Trujillo said she would make the corrections to the Findings and Decision document today and Vice Chair Combs could sign it. They would provide Mr. Chen with a copy of it. OTHER BUSINESS 2. STAFF COMMENTS- None 3. CHAIR'S COMMENTS- None 4. COMMISSIONERS'/BOARD MEMBERS' COMMENTS- None ADJOURNMENT At 6:06 p.m., Chair Doria adjourned the meeting to a Regular Meeting on April 8, 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 March 11, 2019