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JOHN FISHER
Attorney at Law
323 West Court Street, Suite 311
San Bernardino, California 92401
(714) RR4-R504
RECEIVED-CITY CLERK
"84 IE 12 P2 :33
Attorney for Applicants
Jerry M. Lair and Mary E. Lair
IN THE MATTER OF THE APPEAL OF )
)
Variance No. 84-16. )
)
REPLY TO AGREED
STATEMENT OF FACTS
AND CONTENTIONS
OF THE PARTIES
I
PRELIMINARY STATEMENT
Agreed statement of facts and points of contention in regard to
Variance No. 84-16, Gerald M. Lair and Mary E. Lair, applicants.
will be taken up only so far as they affect whether or not the variance
being sought has any addition or amendments to the issues in question.
To this point, applicants feel that the proceedings that have been gone
through have not been in accordance with the ultimate ideas and projections
of the City.
Under the heading of "Facts" we have the following, beginning with
Line 24 on Page 1:
"A copy of the findings relative to the granting of house
moving number 570 is attached hereto as Exhibit B and made a
part hereof as though fully set forth. "
Applicants cannot believe that in view of the letter of the City of
San Bernardino dated May 13, 1980, and not marked Exhibit B but Exhibit A,
that the City believed that anything in connection with the permit that was
granted to applicants was in any way illegal.
As far as Exhibit B is
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concerned, as mentioned in the agreed statement of facts of the City,
we did not receive it. This statement of facts resulted in the inference
by the City that applicants have no I'ight to cl,nt inue thei I' towing ()pel'at i()n",
at its present location, when the Fire Department was using Applicant
Jerry Lair to clean up the lot, when he was towing for the City Police,
and the California Highway Patrol. The final conclusion on Page 1 0
is as follows, beginning with Line 11:
"That pursuant to both case law and statutory law, the applicant
has no right to either continue his towing operations at its present
location, or to expand his towing operation, in any form, to the
subject property. "
Please note that in Paragraph 19 of Page 9, it is stated as follows:
''It is the City's contention that: A. The present use of
the location at 530 West Tenth Street is an illegal use (emphasis
ours) and as such it exists only at the sufferance of the City, and
that expansion of such illegal use is a direct violation of San
Bernardino Municipal Code Section 19.66. 080 (A) (1) and should
be prohibited. "
That threat comprising the original property, comprises no part of this
case and is not an issue, and we refuse to stipulate or agree that the City
has been acting illegally.
Of the greatest importance in this case is the finding of the Planning
Commission as follows: (See City's points and authorities, beginning on
Line 20, Page 7)
''It was the finding of the Planning Commission staff, that the
existence of said impound yard in the central business district
would have a negative impact on the future commercial development
in the vicinity of the impound yard. "
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In connection with that, the City has required that the south and east
portions of the existing wall that applicants have built in accordance with
representations of representatives of the City, would have to be reduced
from the present height of six feet, as to which applicant was advised,
to the height of three feet.
Section 19.22,090 (A) deals, we think,
with property fronting residential property, of which there is none.
The purported issue is not involved and if enforced as a condition, would
completely negate the benefits conferred by this application.
II
ISSUES, FACTS, AND CONTENTIONS
That document entitled "Observations of the City of San Bernardino
Planning Department" has previously been discussed in my "Reply of
Applicants to Summary of Planning Department:. We see nothing that has
happened in the interim period that changes the issues in this case as set
forth in Sections 19,74.010, which I quote:
19.74.010 Purpose and principle.
A. When practical difficulties, unnecessary hardships or results
inconsistent with the general intent and purpose of this title
occur by reason of the strict interpretation of any of tis provi-
sions, the Commission, upon its own motion, may, or upon
the verified application of any interested person shall, initiate
proceedings for consideration of the granting of a variance
from the provisions of this title under such conditions as may
be deemed necessary to assure that the intent and purpose of
the ordinance and the master plans upon which it is based
will be observed and that the health, safety and public welfare
be secured and that substantial justice be done, not only to
the applicant, but to the persons other than the applicant,
who might be affected by the variance.
B. A variance shall not be construed as an amendment to this
title or cause the maps which are part of this title to be
changed.
(Ord, 1991 ~ 26.1, 1953.)
19.74.020 Conditions prior ot issuance of variance.
The Commission, before it may grant a variance, must make
a finding in writing that in the evidence presented, all of the
following conditions exist in reference to the property being
cons ide red :
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A. That there are exceptional or extraordinary circumstances or
conditions applicable to the property involved, or to the
intended use of the property, which do not apply generally to
other property in the same zoning district and neighborhood;
B. That such variance is necessary for the preservation and
enjoyment of a substantial property right of the applicant.
C. That the granting of the variance will not be materially detri-
mental to the public welfare or injurious to property and improve-
ments in the zoning district and neighborhood in which the
property is located;
D. That the granting of such a variance will not be contrary
to the objectives of the master plan.
(Ord. 2312 (part), 1960; Ord. 1991 ~ 26.2, 1953)"
The issues are the same, unless there has been an attempt to enlarge
them. The contentions of the parties are the same although every material
aspect of applicants' case has been submitted to the Planning Department.
This includes photographs, letters that were presumably lost, and testimony
indicating the type of operation contemplated. If somebody had changed
his mind, by this time there must have been some complaints, and insofar
as is known to your applicants, there are none, except complaints by one
person, that have been made from the inception of this matter, vocal
and abusive, to any variance. The only change insofar as it is known to
applicants is that applicants' property has been watched by members
of an agency or agencies of the City.
The other change is that applicant Gerry Lair has attended an Uptown
Redevelopment Agency workshop. That was just a "workshop" ;
Mr. Ezell James advised applicants' attorney that the agency would be
unable to place applicants on their agenda for Thursday, December 6, 1984,
since that meeting was being held without notice, but after applicant
had shown the workshop the photographs involved. The next meeting of
the Redevelopment Agency, Uptown area, is set for some time in January,
1985, according to Mr. James, but he does not know when.
Applicants have appealed from each and every finding or observation
of the Planning Department. If it is necessary, from some technical
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reason that does not appear in the ordinances that a change of zoning
from C- 4 to C-4 does not state a cause of action and that an application
for a change to M-l, for instance, would be required, then 1 Rhall make
the appropriate motion.
The issues are the same. I find that nothing has been resolved.
There are unusual things that have happened in connection with this
case, such as the City's refusing to file the application for a variance
at all. That happened in April of 1984. This is not a Federal Judge
who wants something double-spaced which is usually single-spaced, so
a Writ of Mandate, in my opinion, was necessary, and I was working on
it when Mr. Schuma's, or whoever's, mind was changed. Then you lost
the letters which told of what an improvement it was to the neighborhood.
We have submitted another group of letters that show that the lot looks
better now than it ever has; that it has upgraded the neighborhood.
III
CONCLUSION
From what was generally agreed, as to the lot, to be a slum where
applicant Jerry Lair was requested, although it was not his property,
to help in cleaning it up, by the Fire Department, we now have a situation
which is so considerably more favorable to the people connected with
the City and to the neighbors, except, I think, to one, it is applicants'
position that the Council should most seriously consider the prior
ruling on this matter.
DATED: December 12, 1984
~ectfUllY s~~.. itt~d,
c. J rL-7 ~~
Jq~N FISHER,
.Mtorney for Applicants
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