HomeMy WebLinkAbout44-Planning and Building
~I~~ OF SAN BER~ARDINO - REQUEST90R COUNCIL ACTION
Date: April 21, 1992
",:::.,' . ~ }\Ppe.a1 of the Hearing Officer's
~u~~tStatement of Decision regarding
_ _ ! - '._ the Revocation of Conditional Use
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Pe~~t No. 262 (Golden Eagle Motel)
Mayor and Common Council Meeting
May 4, 1992 2:00 p.m.
From: Al Boughey, Director
Dept: Planning and Building Services
Synopsis of Previous Council action:
None
Recommended motion:
That the hearing be closed; that the Mayor and Common Council deny
the appeal and uphold the decision of the Hearing Officer subject
to the findings made in Statement of Decision.
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Al Boughey
Phone:
384-5357
Contact person:
Supporting data attached:
Staff Report
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (Acct. No.!
(Acct. DescriPtion)
Finance:
Council Notas:
'm~_ 'h_ .._ I./q
CiTY OF SAN BERNODINO - REQUEST I\)' COUNCIL ACTION
STAFF REPORT
SUBJECT: Appeal of the Hearing Officer's Statement of Decision
regarding the Revocation of Conditional Use Permit No.
262 (Golden Eagle Motel)
Mayor and Common Council Meeting of May 4, 1992
REOUEST
To appeal the March 10, 1992 decision of the city's hearing officer
for the revocation of Conditional Use Permit No. 262 [Golden Eagle
Motel] (see Attachment "B", Appeal Letter).
BACKGROUND
On December 4, 1962, the Planning commission reviewed a proposal
under Conditional Development Permit (COP) No. 262 to construct a
35 unit motel including one manager's unit at 668 West 5th Street.
COP No. 262 was recommended for approval by the Planning
Commission.
On December 17, 1962, the Mayor and Common Council approved COP No.
262 [changed to Conditional Use Permit (CUP) in 1982] subject to
the plot plan submitted and subject to compliance with the
requirements of the Department of Building and Safety. The case
file for CUP No. 262 does not contain a site plan, floor plan or
elevations. According to Code Enforcement staff, the motel
contained 36 units and a manager's unit which exceeds the approved
units by two units. Building Permits records do not indicate that
permits were obtained for the additional two units.
In early 1991, the Director of Planning and Building Services at
that time, Larry E. Reed initiated a request for the Planning
commission to revoke CUP No. 262 as the determination was made that
the permit was being exercised contrary to the conditions of
approval. At the same, he made the determination that the motel
had been out of business for more than one hundred and eighty (180)
days and therefore, has lost its legal non-conforming status as
stated in San Bernardino Municipal Code (SBMC) Section 19.66.040.
This matter was first prepared for the Planning Commission on July
30, 1991, however was not heard due to a lack of a quorum that
evening. The case was scheduled for the next regular Planning
Commission meeting of August 6, 1991. On August 6, 1991, a motion
was made to appoint Fred Wilson, Assistant City Administrator as a
hearing officer for the Golden Eagle Motel. The motion carried
with the abstention of Commissioner Cole.
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Appeal of Heari~g Officer's Decision -
Conditional Use Permit No. 262 (Golden Eagle Motel)
Mayor and Common Council Meeting of May 4, 1992
Page 2
city Attorney, Henry Empeno requested that CUP No. 262 be placed on
the August 20, 1991 Planning Commission meeting agenda for
discussion and reconsideration. He stated that the attorney for
the Golden Eagle Motel was not aware of the Planning Commission's
action on August 6, 1991 and that the attorney had objected to the
action. At the August 20, 1991 meeting after a long discussion,
the Planning Commission reaffirmed their August 6, 1991 decision to
appoint Fred Wilson as the hearing officer with a 5 to 1 vote.
Fred Wilson conducted a hearing at which time volumes of
documentary evidence and photographs were provided by the City and
the attorney for the Golden Eagle Motel. Both parties also
submitted written and presented oral arguments and points and
authorities on the factual and legal issues. Based on the evidence
presented, the hearing officer rendered six (6) findings pursuant
to SBMC Section 19.78.110 in his Statement of Decision (see
AttaclBlent "A").
0P'1':IOR8 AVA:ILABLB '1'0 TBB MAYOR AND COMMOR COmrC:IL
The Mayor and Common Council may:
1. Deny the appeal and uphold the decision of the hearing
officer:
2. Partially uphold the appeal and not revoke CUP No. 262,
but add additional conditions beyond those contained in
Exhibit "A" of the hearing officer's Statement of
Decision: or,
3. Uphold the appeal and not revoke CUP No. 262.
RBCOMMEHDAT:IOR
Staff recommends that the Mayor and Common Council deny the appeal
and uphold the decision of the hearing officer subject to the
findings made in Statement of Decision.
Prepared for: Larry E. Reed, Assistant Director
For Al Boughey, Director of Planning and Building
Services
Attachment:
A - statement of Decision of Fred Wilson, Hearing
Officer
B - Appeal Letter
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BEFORE THE PLANNING COMMISSION
CITY OF SAN BERNARDINO
FRED WILSON, HEARING OFFICER
In the Matter of the
Golden Eagle Motel
Revocation of Conditional
Permit No. 262
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Statement of Decision of
Fred Wilson, Hearing Officer
Owner: Hong Wen Yang and
Lin Mei-Yung Yang
STATEMENT OF THE CASE
The Director of Planning and Building Services ("Director")
has initiated this request for t~e Planning Commission to revoke
Conditional Development Permit No. 262 [changed to Conditional Use
Permit ("CUP") in 1982] pursuant to San Bernardino Municipal Code
("SBMC") * Section 19.78.110(A)(2) and (3). CUP 262 authorized
the operation of a motel known as the Golden Eagle Motel at 668 W.
5th Street.
The Director has also made a determination that the Motel has
been out of business for over one hundred and eighty (180) days
and is, therefore, no longer a permitted use pursuant to SBMC
Section 19.66.040. The owners of the Motel have filed an appeal
of the Director's determination.
This matter came before the Planning Commission in accordance
with SBMC Section 19.78.110. The Planning Commission appointed
Assistant City Administrator Fred Wilson to act as Hearing Off~cer
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* Pursuant to Stipulation by all parties, all citations to Title
19 of the San Bernardino Municipal Code refer to those ordinances
in effect prior to the adoption of the Development Code;on June 3,
1991.
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HE:jS ang.clee]
Attachment "A"
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and to render a decision in this matter pursuant to SBMC Sections
2.17.080 through 2.17.110.
A hearing has been held. in which Acting Deputy City Attorney
John Martin presented t~e Director's case. The Motel owners were
represented by Kenneth W. Nydam, an attorney. with Sprague,
Tomlinson and Nydam. witnesses have been examined and cross-
examined by both parties. The following witnesses have testified
during the hearings:
1. Richard Lee Lyons, General Contractor:
2. Dany NOlfo, Code Compliance Officer:
3. Sergeant Ernie Tull, San Bernardino Police Department.:
4. John Lightburn, Consultant:
5. Debra Daniels, Code Core?liance Supervisor:
6. Edalia Gomez, Associate Planner.
Both parties have submitted volumes of documentary evidence
and photographs which have been admitted as evidence and have been
reviewed by the Hearing Officer. Both parties have submitted
written and presented oral arguments and points and authorities on
the factual and legal issues. Both parties have reviewed and
provided comments on the Hearing Officer's Tentative Decision.
STATEMENT OF DECISION
Based upon the evidence presented, the Hearing Officer hereby
makes the following findings pursuant to SBMC Section 19.78.110:
1. '==:'ldi tio:'lal Use PerT.i t ~o. 262 has been exercised
contrary to the conditions of such permit and i:1. violation of
applicable licenses, permits, regulations, laws or ordinances.
[Section 19.78.ll0(A)(2)]
2. The use for which CUP No. 252 was granted has been
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exercised so as to be detrimental to the public health and safety
and has constituted a nuisance. [Section 19.78.110(A)(3)]
3. CUP No. 262 shall not be revoked at this time if the
owners of the Motel accept the Amendments to Conditions of ~JP No.
262 which are attached as Exhibit "A" and incorporated herein.
The grounds justifying a revocation of the CUP can be cured or
corrected by the imposition of new, additional or modified
conditions. [Section 19.78.110(0)]
4. Written notice of the date, time, place and purpose of
the public hearing were served on the owners of the Motel by
registered mail, postage prepared, return receipt requested, not
less than ten days prior to the date of the hearing. [Section
19.78.110 (B)]
5. The subject site is located at 668 W. 5th Street,
generally situated on the north side of 5th Street, approximately
201 feet east of the centerline of "G" Street in the R~.H,
Residential Medium High, General Plan land use designation. After
the City adopted the General Plan on June 3, 1989, the Golden
Eagle Motel became a legal non-conforming use. A motel is not a
permitted use in the RMH land use district. The Motel was
voluntarily abandoned by its prior owners for more than 180 days,
beginning June 25, 1990. The Motel's legal non-conforming use
lapsed on or about December 25, 1990, pursuant to SBMC Section
19.66.040 because its use was discontinued for more than lSO days.
6. Because the Motel's legal non-conforming use lapsed, t~e
Motel cannot reopen as a motel use until the property owners apply
for and the City grants an amendment of the General Pla~ Land Use
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Map to designate a land use district which permits 3 motel use for
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this site, and until the City issues a new Certificate of
Occupancy for the Motel.
NOTICE OF TIME LIMITS FOR APPEAL
Pursuant to Section 19.78.l10(e) and Chapter 2.64 of the San
Bernardino Municipal Code, any person aggrieved or affected by the
decision of the Hearing Officer regarding the revocation of
Conditional Development Permit No. 262, may appeal to the Common
Council by paying the appropriate appeal fee and filing a written
notice of aiJpeal with the City Clerk, directed to the Common
Council, within fifteen (15) days after the date the Hearing
Officer adopts these Findings and Statement of Decision~ The
notice of appeal shall be in writing and shall set forth (a) the
specific action appealed from, (b) the specific grounds of appeal,
and (c) the relief or action sought from the Common Council.
The foregoing Findings of Fact and Statement of Decision were
adopted this 10th day of
March , 1992.
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Assistant City Administrator
Hearing Officer
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EXHIBIT RAft
AMENDMENT TO THE CONDITIONS OF
CONDITIONAL.USE PERMIT NO. 262
1. The permi ttee ~hall not reopen the motel for business
until the property owners apply for and the City grants an
~nendment to the General Plan Land Use Map to designat~ a land use
district which permits a motal use for this site and until the
City issues the motel a new Certificate of Occupancy.
2. The permittee shall bring the subject site up to current
San Bernardino Municipal Code standards, including but not limited
to correcting those code violations noted in Correction Notices
issued by the City in 1990-92, and those noted in the Criminal
Complaint in San Bernardino Municipal Court Case No. MSB 53608.
3. The permittee shall prohibit long-term occupancy and
shall assure that the motel is used only for short-term occupancy
by complying with the following:
(a) The permittee shall require daily maid service Of all
occupied rooms, including but not limited to a daily cleaning and
vacuuming and a daily change of all linens such as sheets, pillow
cases, and towels.
(b) The permittee shall prohibit all occupants from using
any refrigeration or cooking utensils or appliances, including but
not limited to refrigerators, freezers, hot plates, microwave
evens, stoves, toaster ovens, and toasters.
(c) The permittee shall require daily inspections by the
manager of all motel rooms and the manager shall immediately
impound all refrigeration and cooking utensils and a~pliances.
Any such impounded items shall be returned to the occupa~t after
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he/she has checked out of the motel.
(d) The permittee shall not rent any room for less than a 24
hour rate. No occupant shall be permitted to rent any room(sl so
as to remain on the pr~mises for more than two weeks in a one
month period.
4. The permittee shall require every occupant over 18 years
old to sign the motel register and produce a valid driver' s
license or other valid photo identification. The manager of the
motel shall record on the motel register the complete name, date
of birth, and the photo identification card number of each
occupant over 18 years old. The manager shall also record the
make, model, year and license number of any motor vehicle( s)
driven by the occupant onto the motel premises.
5. Permittee shall post conspicuous signs in the motel lobby
and in each motel room which shall include but will not be limited
to the following:
(a) Daily inspections by the manager and daily maid service
are required.
(b) Refrigeration or cooking utensils or appliances are
prohibited and will be impounded by the manager.
(c) Daily rental rates.
(d) No one shall be permitted to rent any room(s) for more
than two weeks.
(el All occupants over 18 years old must register with the
manage'!:'.
6. The permittee shall install sufficient security lighting
walkways and in the parking lot as approved by. the San
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Bernardino Planning Department but in no event less th~n one foot
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1 candle of light evenly distributed on these surfaces during hours
2 of darkness.
3 7. The permittee shall employ a state licensed security
4 guard between 7:00 p.m, and 4:00 a.m., seven days a week, to
5 regularly patrol the parking lot and common areas of the motel.
6 8. The permittee shall make the motel register and records
7 avai:able for inspection by the San Bernardino Police Department
8 anytime upon demand.
9 9. The Permittee shall not rent to nor allow any known or
10 suspected prostitutes to be present on the motel premises at
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12 10. The Planning Commission shall hold a noticed pUblic
13 hearing six months after the motel is reopened to determine
14 whether the motel has complied with these conditions and whether
15 the Planning Commission should impose new, additional or modified
16 conditions. . The Permittee shall pay all costs of the review
17 hearing including but not limited to the costs for mailing public
18 notices and staff. time.
19 11. A single violation of any of these conditions may lead
20 to a revocation of the Conditional Use Permit.
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HE; js! ng.decl
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Mo,:!c'r i5nd Common Coune),
:> tq M S,~n Bernardino
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":::ll'jen ~~:r~ ;,,);.~: 6-:-'; ',f"' ;, it.:~ :'h.~9t
j;~.::.r 1-1;..' '1-". ~nQ j-'flu';c'l 1"1p."(IhQ'-':
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;:...: i".1~~...l"t 1("; .1q,~,.; triP. ;.~t".:: h~~~-'~II' '-ifi1(~~r t"1r r~r.p.a' ''I'/''11:~o', A" '-'-=-l'.;;t"t'lt
_" . . _ '._.. ....... .' .' _. I' _ .... : _ I: _ _ ..,~ _ . _ _ ," I . _ . _ I' _' ,:..........
r:'lt!~ Aarnif'll~3t.(;:~(!(f :~t"~(:"f:;"'J?1 t.h:t ~.r'r:o:~!0"/o? "'8!,=,rE'''''~e -::t)nditicr'!el use
~''?'''r.!it :.-!_:>::- J:'een e~~-:o'ci-:e,j !r1: :'h7:r:nt?~- ':':ln~r,~nj r.o t.he cOfllj1t!en-; (If '::'Jl:r)
;n?rrntr.., erllJ In Viljl~t.ilJn (lj' ~opil("ee!~ it':'l:!rt':8S.. permHs,. (e~ljlotions) iaws
nr '..r....;!'"tf"!'v:O:'.:. ,:.1',-. ~'Ir.'l'"!,:r;. trio:, ;,,':'';''.~''''' l"'tffitQr rtp.t~r""""1I'''~d th~t t....e
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~'not.'?i':3 lE'g::rl r)(In-':.onf!)r.r~'ll(r,; use nf2d i6pS8!J !~nd.. therefore, the ry!otel
,""t:-IJi.~ not ~!'? ;::iio',<'f!?-tj to (eOCr~n until t.ne C1t9 !~r;jnts. ,~ ;:erter~l Plan land
'Jse chOnge
5y Wel\:! of tnls letter we ore appealing tne hearing officer's aeeisj':ns ill
the mott.~r of the RI>."ocoi.ion of COMllioMl Use Pe,..-r,!~ Ne. 262 and
request that this mot'.er t'e heard by the ;10';':'( Ofpj C,)tllf(Wf! CO'Jf1cl1 et .~
!'"i?'~I:~~rl'~ .::ch8rjiJ',?lj rY!'?~t.!!'1n.
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MAR 1 9 1992 L!U
CITY OF SAN IIEIINNlolHO
D~ARTMENT OF I'UINNIHG 6
IIUIUltNG SEIMCES
Attachment "B"
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Sprague, Tomlinson and Nydam
Attorneys at law
290 North 0 Street, Suite 807
San Bernardino. California 9240 I
Telephone: (714l 888-1000
Facsimile: (714) 888-6601
(SPACE BELOW FOR FlUNG STAMP ONLY)
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Hong Wen Yang
Attorneys for
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CITY OF SAN BERNARDINO
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) CLOSING ARGUMENT
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vs.
HONG WEN YANG
I. FACTS PRESENTED
The bulk of the testimony presented by the city of
San Bernardino in the hearing concerned the alleged condition of
the Golden Eagle Motel as the city contends was discovered
throughout inspections made in March and again in June and July
1990. "The City maintains that the motel was in a general state
of disrepair such that it needed cleaning, general maintenance,
and repairs in order to be habitable. The conclusion of the City
was that the motel would be closed because of numerous code
violations and the City issued a 91 count criminal complaint
against Mr. Wong who was the owner/operator of the motel at the
time.
In contrast to the testimony as offered by the City !
of San Bernardino, the Yangs, present owners, presented evidence
that they have done everything they can possibly do since the
inception of their involvement to have the motel properly
repaired, to refurbish same and to bring the motel in compliance
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1 with all existing city codes.
2 It seems only obvious, just and fair that if, in
3 fact, the City's complaint is that the motel needed fixing up,
4 then the solution is for the Yangs to proceed with their plans as
5 indicated in the hearing to do the repair work and this
6 accomplishes what each side has stated was their intent and the
matter should then be concluded to the satisfaction of both
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8 parties. The hearing officer can conclude the revocation of the
9 permit will not occur, conditionally on the motel being
refurbished, given a reasonable period of time, and the city of
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11 San Bernardino will then not have an empty building, boarded up,
being of no use to anyone including the City of San Bernardino
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which claims they can use the tax money for business license and
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bed tax income and the Yangs can proceed with their business
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enterprise.
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II. EFFORTS OF THE YANGS
The record shows that the Yangs operated this motel
successfully for several years without any problems of code
violations or claims of operating a nuisance. The Yang family
operated the premises in the two story apartment next to an above
the office of the motel and involved themselves in the day to day
operation of the motel until, in 1989, they sold the motel to Mr. I
Chen. Mr. Chen, in turn, sold the motel to Mr. Wong and
according to Mr. Larry Reed when the City set its priorities in
March 1990 to investigate, examine and determine if motels in the
San Bernardino are were in compliance with the City Codes,
directed the enforcement officers to target the motels in their
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inspections. In March 1990 inspectors spoke to Mr. Wong and made
recommendations for certain repairs. Ap];larently in June 1990
additional inspections were made and the motel units were posted
with a Notice of Violation, which notice provided that the units
could not be occupied. Pursuant to this closure, the city in
July 1990, caused a contractor to board up the property and in
August 1990 sent a contractor into the premises to complete the
board up.
The application for the certificate of occupancy
dated in August 19089 demonstrated that the motel was in an
operating condition and the inspection conducted demonstrated
everything was in satisfactory condition and the certificate
issued. This was about the same time as the Yangs surrendered
possession of the property to Mr. Chen, the new owner.
When Mr. Wong ceased to make his payments to Mr.
Chen, Mr. Chen took possession of the property by a foreclosure
and a deed of trust dated July 20, 1990. The evidence reflects
that he continually told the Yangs that he was going to repair
the property and would continue making the payments on the
underlying notes as he was obligated to do. The unrefuted
evidence is that Jennie Yang spoke with Mr. Danny NOfo, the Code
enforcement officer, in August 1990 in an attempt to determine
what the City's position was with respect to the motel. He asked
if the Yangs owned the property and having been advised that they
did not at that time, he indicated it was none of their business
and the city wouldn't talk to them. While the city maintained
that all appropriate notices were sent to the Yangs, it is clear
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1 that in September 1990 the city became aware of the Yangs' new
2 address as was indicated in the unopened material sent to them
3 when the post office set forth on these envelopes the new address
4 for them. In spite of this fact, the city continued to send
5 notices to them at their old address with the notices being
6 returned to them. Other than the one statement that the Yangs
7 received indicating the City's bill in the amount of $~,550.00
8 no other notices were received by the Yangs in connection with
9 the process undertaken by the city. John Lightburn's letter of
10 May 7, 1991, written to the members of the Board of Building
commission asking for a reconsideration of their decision of
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12 september 12,1990 was unanswered.
13 The fact of the matter is the Yangs were able to
again obtain legal title to the property on January 15, 1991.
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15 They immediately called the City of San Bernardino and took steps
to meet and confer concerning what needed to be done to reopen
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their establishment. While there were a few days I delay in
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accomplishing the setting up of the meeting, on January 29, 1991
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the record clearly indicates the Yangs and their counsel met with
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20 city Attorney James Penman, John Martin and Larry Reed,
indicating their clear intent to fix up the motel and continue on
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wi th his operation. It I s clear at this meeting the Yangs were
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told that the City was going to revoke the Conditional Use
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permi t, but following this meeting they didn I t do so and in
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February 1991 the Yangs contacted their contractor and began
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working on obtaining a bid for the work of making corrections to
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the building. In March 1991 the City refused to take the
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application for the permit on a couple of occasions and finally,
in the first part of April 1991, Mr. John Lightl:lurn went with
them to the city to have the building permit issued. While Mr.
Larry Reed at first initialed the permit so that it could be
issued, he later talked to Mr. James Penman and then the decision
was not to not issue the permit. The letter admitted in evidence
as #15 from Mr. John Martin dated April 17, 1991 suggested the
city was required by law to issue the permits but they didn't do
so and this was the first written notice to the Yangs that the
permit would be revoked. However, again nothing further occurred
to start the process.
The Yangs have introduced testimony that the
contractor was going to make the repairs as needed for the sum of
$30,000.00. In addition, they were going to install carpeting,
replace the windows and buy furniture. Of importance is that the
contractor fully inspected the building, finding no structural
defects, indicating the building was very sound and only cosmetic
repairs were required. Again, the city did nothing further until
in May 1991 the first notification of the meeting of the Building
commission was set for June 30, 1991 to consider the revocation
of the permit. Due to the failure of the Commission to either
ave a quorom or be able to take the time to consider the matter,
this proceeding was continued into September and over the
objection of the Yangs, the Board eventually set the matter for
hear~ng before a hearing officer.
The Yangs have introduced testimony that this motel
requires an expenditure of $6,000.00 a month. The expense
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1 occurred to date of $60,000.00 is at prejudice to them and the
2 City has not demonstrated any reason for the delay and the Yangs
3 at this point should be allowed to continue on with their
4 business enterprise.
5 III. THE CITY HAS NOT MET THEIR BURDEN OF PROOF
The City has contended that the business ceased to
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be used for a motel for a period in excess of 180 days.
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This argument fails in that they have not been able
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to demonstrate any other use for the motel and it has always
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existed as a motel with the business license intact through
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December 1990 and the certificate of occupancy still in
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existence. Further, the motel has not been altered for
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utilization for any other purpose. While the City has tried to
13
maintain that the motel was abandoned, it's clear that the city
14
acted to not only shut down the motel but to board it up so that
15
it couldn't be used.
16
Additionally, the point is very clear that as to the
17
Yangs, they were not in a position to make the repairs until such
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time as they had a right to occupy the property in January 1991
19
when they obtained the title to the building through their
20
foreclosure process. They certainly never abandoned this
21
building as is demonstrated by their immediately calling the City
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and arranging the meeting with the City Attorney that occurred on
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January 29, 1991. This is further demonstrated by their attempt
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to obtain their building permit when the City lagged in
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presenting any hearings and in the attempts of Mr. Yang to occupy
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the property. Further, the Yangs were prejudiced because the
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city precluded them from being fully informed as to the city's
actions in 1990 when they refused to talk to them and incorrectly
mailed the notices to them. Further, the case cited in the
attached Points and Authorities demonstrates that when a premise
is closed by a public entity with orders to make repairs, this
does not constitute either an abandonment or a discontinuance of
use such as the City maintains. There has been no demonstration
that the property has "willingly been vacant" for more than 180
days and, therefore, is no longer considered a legally non-
conforming use as is set forth in San Bernardino Municipal Code
19.66.040. The City cannot demonstrate that the building had a
use which was discontinued for a period of 180 days as it's
always continued to be a motel. Further, had the Yangs been
properly notified as to the decision of the BBC they would have
been in a position to better protect their interests by
attempting a judicial foreclosure because of "waste" which would
have entitled them to immediately occupancy of the premises.
IV. CONDITION OF THE PROPERTY
witnesses for the city have testified as to the
condition of the motel. A 91 count criminal complaint has been
introduced and a series of photographs presented.
An analysis of the material shows the fOllowing:
They are missing smoke detectors in 18 of the rooms. They are
missing electrical lights in 3 units. There was a spliced
electrical lighting in 2 units. There were bugs in 7 of the
units and ventilating equipment was not operating in an
additional 6 units. While unsanitary conditions were cited for 10
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units, there is no indicating the Health Department was ever
called for an inspection. There were missing electric covers in
2 rooms and an allegation of general dilapidation and maintenance
for 6 rooms. There was indication there was a cracked ceiling in
one room and deteriorating plaster in 5 other rooms and an
indicating the ceiling was buckling in two rooms and,
additionally, there was indication of the ceiling caving in in
two bathrooms. Other violations noted were electrical outlet not
maintained in two rooms, two broken windows, a broken toilet seat
cover, a broken shower door, two water damaged ceilings, trash
and beer bottles in one unit, exposed wiring in four units,
presumably where electric lighting had been removed and there was
a citation in Room 202 because a towel rack had been removed.
There was indication of a missing exhaust fan in one bathroom and
in the same unit, an allegation of some hazardous plumbing and
indic~tions in two rooms that the wash basins weren't maintained.
There was an indication that some furniture was broken in two of
the rooms and one room didn't have heating and air conditioning.
One room was cited for having a missing toilet tank cover and an
unsanitary toilet seat cover and another room having a missing
toilet seat and another with just general improper maintenance in
the bathroom.
It is submitted that the violations all deal with
rather minor repair items and when one considers the definition
of a dangerous building as is contained in the city ordinance
15.28.010, none of the 17 subsections apply and as this building
is structurally sound, it can be brought to Code with nothing
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1
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more than cosmetic type repairs.
Clearly it is not in a
condition that it's so bad it should be torn down.
V.
CITY'S
IS
EVIDENCE
CONCERNING
NUISANCE
3
4
5
6
Motel is in a
7
8
INADEOUATE
In calling Sgt. Tull of the San Bernardino Police
Department,
the City only demonstrated that the Golden Eagle
relatively high crime area and that Mr.
Wong
him
cooperated
with
police
time
the
they
talked
to
every
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concerning making adjustments to keep down the level of criminal
activity.
Other than these two points, the evidence from Sgt.
Tull in no way indicated the motel itself is a nuisance.
An
analysis
of the 76
police contact reports indicate the city
contacts with either victims or alleged
12
merely
13
pulled out
14
criminals for being in the area of this motel and in no way
suggested that the management of the motel was operating the
15
premise~ in such a condition so as to constitute a nuisance as
16
17
18
would be required to shut down the motel for these reasons and as
indicated by Larry Reed
in his testimony that these police I
collected until January 1991, they
reports
19
not
even
were
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22
23
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certainly had no bearing on the City's actions herein.
City shows the motel to be in the CR-2 zone.
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1 enactment for the general plan did not specify the meets and
2 bounds or other legal description of what property was in CR-2
3 vs. what was excluded. Further, there doesn't appear to be any
4 rational basis as to why the Golden Eagle Motel is not in the CR-
5 2 zone. When a dispute exists as to the zone and the line of
6 demarcation between the RMH zone and the CR-2 zone, it's not that
7 distinquishable. There is little reason to pick one zone over
8 and above the other, particularly when this motel was built when
9 this was a CR-2 zone. Clearly, there's no reason for the city to
10 prevail in their claim that this is a non-conforming use. It
11 appears the city is contending that the demarcation line between
12 CR-2 and RMH lies along the western property line of the Golden
13 Eagle Motel. What's so strange is the entire area of the motel
14 is surrounded by CR-2 zoning and it appears the city has provided
15 for an RMH zone for a couple of existing buildings which house
16 senior citizens.
17 It seems apparent the City has not considered the
18 economic issues involved. The evidence is undisputed that the
19 'fangs sold the property in 1989 for the sum of $980,000.00 and
20 the property was thereafter sole for $1,050,000.00. There is no
21 evidence to suggest this sum is not the fair market value of the
22 property. Evidence from the 'fangs further indicates that vacant
23 land without the building in this area would at most be worth
24 $200,000.00, but in view of the fact the property is .48 acres in
25 size and the evidence demonstrates that for RHM zoning this is of
26 insufficient size, it is submitted that the City'S position would
27 put this property in a classification as being valueless for the
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1 immediate future.
2 Further, while the City has maintained the owners
3 can do what they want to with the property, evidence introduced
4 d_onstrates that the City, after assisting in an analysis as
5 what use the motel can have, has concluded they can't find any
6 use for it that would comply with the City ordinances. They
7 haven't suggested to the hearing officer any use which is
8 compatible with zoning and it appears that their att_pt has been
9 to zone this property right off the face of the earth. It seems
10 inconceivable that this is any kind of a fair or appropriate
result when examining the map of the City'S general plan which
11
shows motels allover the area as the most prevalent business in
12
the area. As is indicated in the exhibit demonstrating the
13
Budget Motel, Royal, Sahara, Super 8, Best Western, Villa Viejo,
14
Via Bernadine, Desert Inn, Super 7 and Sunset all exist within
15
two blocks of the subject property.
16
VII. POLITICAL MOTIVATION
17
At the onset, the Yangs have maintained that the
18
City has set upon the program of eliminating the motels from the
19
downtown area. While the hearing officer declined to require
20
James Penman to appear at the hearing, a stat_ent written by him
21
as published in the Sun newspaper would indicate that the Code
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violations were the method that the City has hit upon to make
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this change. Larry Reed indicated that the directions came to
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him to target the motels in March 1990.
25
It is not suggested that the City doesn't have the
26
right to make their plan for the best city possible. It is
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to get rid of the motel without the City compensating the owners
for same and every avenue the city seems to be using at this
point is highly suspect and clearly an attempt to mask the real
issues involved.
1
2
3
4
5 It is respectfully submitted that the hearing
officer should conclude that the conditional use permit is not to
6
7 be revoked. The permit itself has no conditions attached to it
and, further, the city's last ditch attempt to claim there are
8
more motel units than allowed by the permit, is a fabrication as
9
this is a 34 unit motel which should be allowed operating status.
10
Respectfully submitted,
11
SPRAGUE, TOMLINSON AND NYDAM
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Kenneth W. Nydam
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1
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o
Sprague, Tomlinson and Nydam
Attorneys II law
290 North 0 Screet. Suite 807
San Bernardino. California 9240 1
Telephone: (714) 88J..IOOO
Facsimile: (714) 888-6601
o
(SPACE BELOW roB PlUNG STAMP ONLY)
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Honq Wen Yanq
Attorneys for
8
CITY OF SAN BERNARDINO
POINTS AND AUTHORITIES
RE CLAIMED ABANDONMENT
OF PROPERTY
)
)
)
)
)
\
I. The City has asserted that the use of the motel
9
VB.
10
11
HONG WEN YANG
has been abandoned and the property, therefore, havinq been
abandoned for a period of 180 days, no lonqer is entitled to
their conditional. use permit as the zoninq chanqed in 1988 and,
therefore, they are entitled to revoke the conditional use
permit...
First of all, it is suqqested that the use of the
lanquaqe "conditional use permit" is misleadinq. The Yanqs have
submitted a copy of the permit issued in 1962 and there are no
conditions other than that this be operated as a motel and no
conditions were :iJnposed in the permit. There, therefore, can be
no arqument made that the conditional. use permit has been I
violated because of the failure to comply with certain
conditions.
The argument the City makes concerninq the
abandonment is not supported by the evidence. Clearly the City,
throuqh their aqents, posted notices on this property in June
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1 1990, copies of which notices are in the record, indicating these
2 notices stated "Notice to Vacate". These notices specifically
3 stated that the units in the motel were not to be operated until
4 repairs had been made and tenants were no longer allowed to
5 occupy the rooms. By this action, the City caused the property to
6 be vacated and the tenants there were in the property were
7 removed. This does not demonstrate any voluntary abandonment and
8 the City's claim that they found the motel at some point
9 unoccupied with no manager on the premises, does not support this
10 position when they, that being the City, caused this result.
11 Further, there is no demonstration this motel was
12 ever put to any other use and the use was not abandoned. The
13 motel continued to have a certificate of occupancy which is still
14 valid. This was issued by the City of San Bernardino. Also, the
city license was in effect and was not suspended and continued as
15
16 long as the fees had been paid up through December 1990.
Specifically, the Yangs are able to cite a case
17
18 which is exactly on point. City of Fontana v. Atkinson (1963)
19 212 CA 2d 499 clearly states that when a public entity has taken
steps to require repairs or alteration of property and the
20
property ceases to be utilized because of the action of the
21
municipality, there is no demonstration of abandonment and when
22
the property is then repaired, it again can be utilized for the
23
very same purpose. The court very specifically indicated the
24
reason for their finding was the action of the municipality in
25
requiring the repairs. That is exactly what happened in the
26
instant case. There is no indication in the Code or anywhere
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else as to the time frame in which repairs need to be made. The
1
court in the citv of Fontana case su~ra, specifically stated th~t
2
the mere shutting down of the operation for purposes of making
3
repairs, even though it exceeds 180 days, does not constitute an
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abandonment.
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For this reason, the city's argument concerning the
180 day requirement is not meritorious.
Respectfully submitted,
SPRAGUE, TOMLINSON AND NYDAM
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Sprague, Tomlinson and Nydam
Attorneys at Law
290 Nonh D Street, Suile 807
SaD Bernardino. California 92401
Telephone: (714) 888.1000
Facsimile: (714) 888.6601
(SPACE BELOW FOil FlUNG STAIIP ONLY)
3
4
5
Attorneys for
Hong Wen Yang
6
7
8
CITY OF SAN BERNARDINO
)
) POINTS AND AUTHORI'I'IES RE
) CONS'I'I'I'U'I'IONAL ISSUES
)
)
)
9
vs.
HONG WEN YANG
The City of San Bernardino has maintained that the
conditional use permit for the Golden Eagle Motel located at 668
West Fifth Street, San Bernardino, California, should be revoked,
in part because they allege the zoning for the lot on which the
Golden Eagle Motel is located no longer is in a CR-2 zone and it,
,
therefoX'e, it a non-conforming use and certain City ordinances
concerning non-conforming, uses now apply. Without conceding this
fact, a remaining issue to determine is the unconstitutional
taking of private property by ordinances and actions of the city.
Evidence introduced demonstrates that the Yangs sold
the business in 1989 for the sum of $980,000.00, that later in
the same year the premises were sold for $1,050,000.00,
indicating with the very best evidence available that the
property had this value.
Evidence was also introduced that if
the building is no longer viable, that vacant land at this site
is worth around $200,000.00, particularly in view of the fact
there would be costs in removing the building. The economic loss
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1 to the parties that are caught with this process the City is
2 undertaking would demonstrate a loss to the parties herein of
some $700,000.00 to 800,000.00 or some 70-80% of the value of the
property.
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Basically, there is then a demonstration of the need
"to do equity" which means that the parties are entitled to
resort to a sense of fairness.
For a city to merely assert that a continuance of a
non-conforming use is not allowed becomes very doubtful from a
standpoint of the constitutionality of their basically taking the
property is the termination of the use is eminent. San Dieao v.
McClureken (1959) 37 Cal 2d 683.
Immediate termination of a non-conforming building
or structure is improper. Jones v. Los Anaeles (1930) 211 Cal.
304. Los Altos v. Silvev (1962) 206 Cal 2d 606. Finstein v. San
Bernardino (1957) 147 CA 2d 549. McCaslin v. Monterev Park
(1958) 163 CA 2d 339.
The courts have found that the prejudice to the
property owners is a factor that may disallow the action of the
governmental entity. In PeolJle v. DelJartment of Housina and
Communitv DevelolJment (1975) 45 CA 3d 185, the court specifically
held that where there was a $40,000.00 amount spent by an owner,
the municipality was precluded from taking action that would wipe
out that type of investment. Particularly in view of reviewing a
map wherein it's indicated that the south side of Fifth Street is
zoned for motel use and a very small segment north of Fifth
Street has been isolated for high density housing, the City's
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1 interest in having the motel no longer to exist certainly seems
2 de minimus in comparison with the damage being done to the owners
3 of the property should the City succeed. Clearly this
4 constitutes a taking which is unconstitutional.
5 Respectfully submitted,
6 SPRAGUE, TOMLINSON AND NYDAM
7
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Kenneth W. Nydam
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o
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Sprague, Tomlinson and Nydam
(SPACE BELOW FOR FlUNG STAMP ONLY)
1
2
Attorneys at Law
290 North 0 Street. Suite 807
San Bernardino. California 92401
Telephone; !7]4) 888-1000
Facsimile: (714) 888-6601
3
4
5
6
Hong Wen Yang
Attorneys for
7
8
CITY OF SAN BERNARDINO
) REVOCATION OF PERMIT ON
) BASIS OF NUISANCE
)
)
)
)
9 vs.
10 HONG WEN YANG
11
The City, as part of the proceeding to declare
12
the permit revoked, has alleged that because the property
13 constituted a nuisance, the permit should be revoked. In
14
support of this proposition, they have cited to the hearing
15 officers the San Bernardino city Code section 15.020.
16
The City then proceeded to present evidence as
17 to the condition of the building by the use of photographs,
18 testimony of Danny Nofo, testimony of Deborah Daniels and,
19 for testimony from Sgt. Tull of the San
some reason,
20 Bernardino City Police Department.
21 First of all, it is submitted that the
22 testimony of Sgt. Tull, which basically consisted of his
23 testimony that the Golden Eagle Motel is in a high crime area
24 and that three other motels have much problem of
a sever
25
police control than does the Golden Eagle and, further, that
the operator of the Golden Eagle Motel always took steps to
correct what problems the City Police Department brought to
26
27
28
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1 his attention, nonetheless constituted some problem for the
2 city. It is submitted that this testimony is irrelevant to
3 the proceedings as in cases where the pOlice entity claims
4 there is a nuisance because of violation of law, their
5 exclusive remedy is the red light abatement act which is
6 contained in the Penal Code sections 11225 through 11235.
7 These sections specifically deal with property used for
8 illegal gambling, prostitution or bath houses. The City has
9 no evidence concerning these issues and have not presented
10 their temporary injunction request to the Superior Court and
11 the testimony has nothing to do with the hearing at hand.
12 Specifically, the standard which the City must deal with is
13 that which is contained in the city Code Section 15.28.010
14 which defines a "dangerous building". This section
15 spec~fically refers to some seventeen features to be examined
16 in making a determination of dangerous. It basically
17 describes there being maj or structural problems which would
18 cause harm to occupants" or bypassers and doesn I t concern
19 itself with the cosmetic or superficial problems which can be
20 easily corrected. A review of the list of violations as is
21 contained in the citation submitted on Mr. Yang clearly don't
22 state there is major structural damage or major structural
23 defects in connection with this property and, in fact, Mr.
24 Richard Lyon, the contractor testified that he examined the
25 attic and the building and found it to be structurally very
26 sound. The violations consist of things like missing smoke
27 detectors and electric wall cover plates and spliced
28
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1 electrical wire and bugs. Some of these repairs deal with
2 the placement of a 29 cent item and basically consist of a
3 general clean up. The greatest damage occurred when the City
4 caused a contractor to board up the windows and the
5 contractor smashed out all of the glass but this occurred
6 after the City took steps to vacate the building and was done
7 at their own hand and certainly shouldn't be chargeable to
8 the Yangs.
9 It is respectfully submitted that the hearing
10 officer review the provisions of city Code Section 15.28.010.
11 It is submitted that none of these items were testified to by
12 Sgt. Tull and the building clearly does not constitute a
13 dangerous premises.
14
15
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20
21
22
23
24
25
26
27
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Respectfully submitted,
SPRAGUE, TOMLINSON AND NYDAM
Kenneth w. Nydam
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Mal~or and Common Coune 11
;:ity of San Bernardino
300 r'Jorth D street
~3an Bernanjino, CA~24Ci I
:::'Cf'r,. "-,,
1. '. ' _' '= ~ _
-'-2
':;J : '.~..'
!1e!rc~-1 19, 1992
Rei erence: Revocot.i un of Condit i ,:ona I Use Perml I. No. 262,
Go 1 den EOI~l e f'lote i 668 "r,! Fifth ::tr-eet
,
Deer f1eyor end Counci 1 f1emtler',:.
On [-larch 10. 1992, the CitlJ" h';!ijrinq offlC,?r, f1r. Fred "l'lllson., Assistent
Ci tld Adrnltll strijtor, :jetenrti nelj HIi'll. the eOove ref '?rence conditione 1 use
permit rlijS been e;<erTlsed in ,j rnenner contrij(l:l to the condltlOns of sucn
pen-mt, and in violl'ltlOn of eppliceOle licenses, permits, reguietions, lews
or ::ordinenc'?s, etc. Further, tM Menng officer determltled thet the
rnotel's leqi:J] non-confor-mlrll~ use Md 1l'lpse1j ijnd, therefore, the motel
'N.:.ul,j not. be allowed to reopen untIl the City grents a Generel Plan lend
IJse cl1l'lnge.
By way of this letter we are appealinq U-Ie r-,eering officer's decisions ill
the metter of the Revoce1.ion of COnditIOne] Use Perrnli. No. 262 end
request t.hat. t.rlls rnatter t'e rlel'lnj t'ld tt"le fl:~'d'Y ~r"j ConHnon Councll ijt. a
t-eTll ~rlld '3cr,elju! e,j rnee1.i rill
,_ hf Li ghtburn
.081. Office Box 1622
_ n' ernerdino, -:e. 92402
00 rn@rn~wrn f01
MAR 1 9 1992 ~
CITY OF SAN BEIlNARDlNO
DEPARTMENT OF PlANNING to
BUILDING SERVICES
.
19
r!f) :.26
yy.
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