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HomeMy WebLinkAbout50-Planning and Building . "C:I~Y OF SAN BER~ARDINO - REQUEST ~OR COUNCIL ACTION r 1: Al Boughey, Director "::~-"-Jl.ppe9-l_of the Hearing Officer's SubtKt: Statement of Decision regarding -" the Revocation of Conditional Use "." - '"" permat No. 262 (Golden Eagle Motel) Mayor and Common Council Meeting May 4, 1992 2:00 p.m. Dept: - Planning and Building Services Date: April 21, 1992 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. ~. I '/&/{CJiA, / AIB~ ignature Al Boughey Phone: 384-5357 Contact person: Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: NIA Source: (Acct. No.) (Acct. DescriPtionl Finance: l.nCiINotes:"'''~Ar-t ".I--"z. ,/IW A~"'. ".m NO~ ~iTY' OF SAN BERNODINO - REQUEST FQR 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 REOUBST 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). BACltGROUlfD On December 4, 1962, the Planning Commission reviewed a proposal under Conditional Development Permit (CDP) No. 262 to construct a 35 unit motel including one manager's unit at 668 West 5th Street. CDP No. 262 was recommended for approval by the Planning Commission. On December 17, 1962, the Mayor and Common Council approved CDP 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. I \ o -..... \...) 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 Attachment "A"). OPTIONS AVAILABLE TO TEE MAYOR AND COMMON COUNCIL 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 ~onditions 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. RECOMMENDATION 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 18 19 20 21 22 23 o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 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 Owner: Hong Wen Yang and Lin Mei-Yung Yang ) ) Use ) ) ) ) ) ) ) Statement of Decision of Fred Wilson, Hearing Officer STATEMENT OF THE CASE The Director of Planning and Building Services I"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 I"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 appoi~ted 2-1 Assistant City Administrator Fred Wilson to act as Hearing Officer 25 27 . 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. 28 1 :-IE. jS' anq.decl Attachment "A" II HE: Jsi o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and to render a decision in this matter pursuant to SBMC Sect~ons 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 Co~?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 ~ral arguments and points and authorities on the factual and legal issues. Both parties have reviewed and provided comments on the Heari~g 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: l. ':::::".di tio:".al Use Pe=i t :-10. 262 has been exercised contrary to the conditions of such permit and 1:1 violation of applicable li::enses, permits, regulations, laws or ordinances. [Section 19.78.l101A)(2)] 2. The use for which CUP No. 2 262 was granted has been ng.deeJ II o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 subj ect 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 IU'.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 d1strict. 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 Sect~en 19.66.040 because its use was discontinued for more than 130 =ays. 6. Because the Motel's legal non-conforming use lapsed, ~~e Motel cannot reopen as a motel use until the property owners apply I for and the City grants an amendment of the General Pla~ Land Use I i Map to designate a land use district which permits ~ motel use fer i 3 1 I I HE; ;s[ nq.decl II 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2i 28 o o 1 this site, and until the City issues a new Certificate of 2 Occupancy for the Motel. 3 4 5 6 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 i Council by paying the appropriate appeal fee and filing a written notice of appeal wi th the Ci ty Cleric, directed to the Common Council, within fifteen (15) days after the date the Hearing Officer adopts these Findings and Statement of Decision. The notice cf appeal shall be in writing and shall set forth (a) the specific action appealed from, lb) the specific grounds of appeal, and lc) the relief or action sought from the Common Council. The foregoing Findings of Fact and Statement of Decision were adopted this 10t~ day of March , 1992. J{~ Assistant City Administrator Hearing Officer HE;;s( anq.decJ 4 II 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2i 25 26 27 28 HE:js o o 1 2 3 4 5 6 EXHIBIT "A" AMENDMENT TO THE CONDITIONS OF CONDITIONAL USE PERMIT NO. 262 1. The permittee ?hall not reopen the motel for business until the property owners apply for and the City grants an ~~endment to the General Plan Land Use Map to designate a land use district which permits a motel 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: la) 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, steves, 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 5 i anq.c!eel II o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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 roomls) 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 vehiclels) 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 17 18 19 20 21 22 23 are required. I 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 roomls) for more than two weeks. (e) All occupants over 18 years old must register with the ~i; 251 I 26' 27 28 :nanager. 6. The permittee shall install sufficient security lighting on walkways and in the parking lot as approved by, the San Bernardino Planning Department but in no event less than one foot :;:t:JS( anq.d.ecJ 6 II o o 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 prosti tutes to be present on the motel premises at 11 anytime. 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 al.l costs of the review 17 hearing incl.uding 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. 21 22 23 24 25 26 27 28 KE:Js[ nq.c!ec:I 7 II I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II o o Sprague, Tomlinson and Nydam (SPACE BELOW FOR FILING STAMP ONLY) Attorneys at Law 290 North 0 Street. Suite 807 San Bernardino. California 92401 Telephone; (714) 888.1000 Facsimile: (714) 888-6601 Attorneys for Hong Wen Yang CITY OF SAN BERNARDINO ) ) CLOSING ARGUMENT vs. ) ) HONG WEN YANG ) ) 1. 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 -1- I ~J.j'1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c ,- V 1 2 with all existing city codes. It seems only obvious, just and fair that if, in fact, the City's complaint is that the motel needed fixing up, 3 4 5 6 7 matter should then be concluded to the satisfaction of both 8 then the solution is for the Yangs to proceed with their plans as indicated in and this the hearing repair to do the work accomplishes what each side has stated was their intent and the parties. The hearing officer can conclude the revocation of the 9 permit will conditionally on the motel not occur, being 10 refurbished, given a reasonable period of time, and the City of San Bernardino will then not have an empty building, boarded up, 11 being of no use to anyone including the City of San Bernardino 12 13 which claims they can use the tax money for business license and bed tax income and the Yangs can proceed with their business enterprise. II. EFFORTS OF THE YANGS The record shows that the Yangs operated this motel successfully for several years without any problems of code h . I T e Yang fam~ly violations or claims of operating a nuisance. operated the premises in the two story apartment next to an above the office of the motel and involved themselves in the day to operation of the motel until, in 1989, they sold the motel to day I Mr. I and Chen. Mr. Chen, in turn, sold the motel to Mr. Wong according to Mr. Larry Reed when the City set its priorities in March 1990 to investigate, examine and determine if motels San Bernardino are were in compliance with the City in the I Codes, I directed the enforcement officers to target the motels in their II -~- c ,- '~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inspections. In March 1990 inspectors spoke to Mr. Wong and made recommendations for certain repairs. Apgarently 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 'fangs 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 'fang spoke with Mr. Danny Nofo, the Code enforcement officer, in August 1990 in an attempt to dete=ine what the city's position was with respect to the motel. He asked if the 'fangs 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 'fangs, it is clear II -3- - - o o 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 11 12 september 12,1990 was unanswered. The fact of the matter is the Yangs were able to 13 again obtain legal title to the property on January 15, 1991. 14 They immediately called the City of San Bernardino and took steps 15 to meet and confer concerning what needed to be done to reopen 16 their establishment. While there were a few days I delay in 17 accomplishing the setting up of the meeting, on January 29, 1991 18 the record clearly indicates the Yangs and their counsel met with 19 City Attorney James Penman, John Martin and Larry Reed, 20 indicating their clear intent to fix up the motel and continue on 21 with his operation. It I s clear at this meeting the Yangs were 22 told that the City was going to revoke the Conditional Use 23 Permit, but following this meeting they didn I t do so and in 24 February 1991 the Yangs contacted their contractor and began 25 working on obtaining a bid for the work of making corrections to 26 the building. In March 1991 the City refused to take the 27 28 -4- II o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 application for the permit on a couple of occasions and finally, in the first part of April 1991, Mr. John Lightburn 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 ill5 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 buildi~g 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 obje~tion 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 -4a- o o 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 business enterprise. 4 5 III. THE CITY HAS NOT MET THEIR BURDEN OF PROOF The City has contended that the business ceased to 6 7 be used for a motel for a period in excess of ISO days. 8 This argument fails in that they have not been able 9 to demonstrate any other use for the motel and it has always existed as a motel with the business license intact through 10 December 1990 and the certificate of occupancy still in 11 existence. Further, the motel has not been altered for 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 utilization for any other purpose. While the City has tried to maintain that the motel was abandoned, it's clear that the city acted to not only shut down the motel but to board it up so that it couldn't be used. Additionally, the point is very clear that as to the Yangs, they were not in a position to make the repairs until such time as they had a right to occupy the property in January 1991 when they obtained the title to the building through their foreclosure process. They certainly never abandoned this building as is demonstrated by their immediately calling the City and arranging the meeting with the City Attorney that occurred on January 29, 1991. This is further demonstrated by their attempt to obtain their building permit when the City lagged in presenting any hearings and in the attempts of Mr. Yang to occupy the property. Further, the Yangs were prejudiced because the II -5- - o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 ISO 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 ISO 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 IS 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 -6- II o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 indications 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 _7_ II c o 1 2 3 4 5 6 7 8 9 10 11 12 13 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 EVIDENCE CONCERNING NUISANCE IS INADEOUATE In calling Sgt. Tull of the San Bernardino Police Department, the ci ty only demonstrated that the Golden Eagle Motel is in a relatively high crime area and that Mr. Wong cooperated with the police every time they talked to him 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 merely pulled out contacts with either victims or alleged criminals for being in the area of this motel and in no way 14 suggested that the management of the motel was operating the 15 premise;; in such a condition so as to constitute a nuisance as 16 would be required to shut down the motel for these reasons and as 17 indicated by Larry Reed in his testimony that these police i 18 I reports were not even collected until January 1991, they 19 20 21 22 231 certainly had no bearing on the City's actions herein. VI. ZONING I I I been I i The I I the! i has I The Yangs contend that the motel has always zoned as CR-2 which is the appropriate zoning for a motel. application for the certificate of occupancy as prepared by City shows the motel to be in the CR-2 zone. John Lightburn 24 25 26 27 28 i testified there is no map or description of the general plan that: I would exclude the motel as being in the CR-2 zone as the- II -8- o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enactment for the general plan did not specify the meets and bounds or other legal description of what property was in CR-2 vs. what was excluded. Further, there doesn't appear to be any rational basis as to why the Golden Eagle Motel is not in the CR- 2 zone. When a dispute exists as to the zone and the line of demarcation between the RMH zone and the CR-2 zone, it's not that distinguishable. There is little reason to pick one zone over and above the other, particularly when this motel was built when this was a CR-2 zone. Clearly, there's no reason for the City to prevail in their claim that this is a non-conforming use. It appears the city is contending that the demarcation line between CR-2 and RMH lies along the western property line of the Golden Eagle Motel., What's so strange is the entire area of the motel is surrounded by CR-2 zoning and it appears the City has provided for an RMH zone for a couple of existing buildings which house senior citizens. It seems apparent the city has not considered the economic issues involved. The evidence is undisputed that the Yangs sold the property in 1989 for the sum of $980,000.00 and the property was thereafter sole for $1,050,000.00. There is no evidence to suggest this sum is not the fair market value of the property. Evidence from the Yangs further indicates that vacant land without the building in this area would at most be worth $200,000.00, but in view of the fact the property is .48 acres in size and the evidence demonstrates that for RHM zoning this is of insufficient size, it is submitted that the city's position would put this property in a classification as being valueless for the -9- o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immediate future. Further, while the City has maintained the owners can do what they want to with the property, evidence introduced demonstrates that the City, after assisting in an analysis as what use the motel can have, has concluded they can't find any use for it that would comply with the City ordinances. They haven't suggested to the hearing officer any use which is compatible with zoning and it appears that their attempt has been to zone this property right off the face of the earth. It seems inconceivable that this is any kind of a fair or appropriate resul t when examining the map of the City I S general plan which shows motels allover the area as the most prevalent business in the area. As is indicated in the exhibit demonstrating the Budget Motel, Royal, Sahara, Super 8, Best Western, Villa Viejo, Via. Bernadine, Desert Inn, Super 7 and Sunset all exist within two bl~cks of the subject property. VII. POLITICAL MOTIVATION At the onset, the Yangs have maintained that the City has set upon the program of eliminating the motels from the downtown area. While the hearing officer declined to require James Penman to appear at the hearing, a statement written by him as published in the Sun newspaper would indicate that the Code violations were the method that the City has hit upon to make this change. Larry Reed indicated that the directions came to him to target the motels in March 1990. It is not suggested that the City doesn I t have the right to make their plan for the best city possible. It is -10- II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II o o 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. It is respectfully submitted that the hearing officer should conclude that the conditional use permit is not to be revoked. The permit itself has no conditions attached to it and, further, the City's last ditch attempt to claim there are more motel units than allowed by the permit, is a fabrication as this is a 34 unit motel which should be allowed operating status. Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM Kenneth W. Nydam -11- I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II -' V Sprague, Tomlinson and Nydam Attorneys at Law 290 Nonh 0 Street. Suite 807 San Bernardiao. CaliCornia 92401 Telepbone: (714) 888.1000 Facsimile: (714) 888-6601 o (SPACE BELOW FOR FlUNG STAJIP ONLY) Attorneys for Hong Wen Yang CITY OF SAN BERNARDINO vs. ) ) ) ) ) 1 I. The city has asserted that the use of the motel POINTS AND AUTHORITIES RE CLAIMED ABANDONMENT OF PROPERTY HONG WEN YANG has been abandoned and the property, therefore, having' been abandoned for a period of 180 days, no lonqer is entitJ.ed to their conditiona1 use permit as the zoninq chanqed in 1988 and, therefore, they are entitJ.ed to revoke the conditional use permit. :. First of al~, it is suqqested that the use of the languaqe "conditional use permit" is miSleading. 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 imposed in the permit. There, therefore, can be ' no arqument made that the conditiona1 use permit has been 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 agents, posted notices on this property in June -1- o () 1 1990, copies of which notices are in the recorcl, indicatinq these 2 notices stated "Notice to Vacate". These notices specifica1ly 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 valid. This was issued by the City of San Bernardino. Also, the 14 city license was in effect and was not suspended and continued as 15 long as the fees had been paid up through December 1990. 16 Specifically, the Yangs are able to cite a case 17 which is exactly on point. citv of Fontana v. Atkinson (1963) 18 212 CA 2d 499 clearly states that when a public entity has taken 19 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 27 28 -2- o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ~ 23 24 25 26 27 28 else as to the time frame in which repairs need to be made. The court in the citv of Fontana case SUDra, specifically stated that the mere shutting down of the operation for purposes of making repairs, even though it exceeds 180 days, does not constitute an abandonment. For this reason, the City's argument concerning the 180 day requirement is not meritorious. Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM -3- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - o o Sprague, Tomlinson and Nydam (SPACE BELOW FOB FlUNG ST.uIP ONLY) 1 2 Attorneys at law 290 Nonb 0 Serect. Suite 807 SaD Bernardino. California 9240 I TclcpboDc: (714) 888.1000 Facsimile: (714) 888.6601 :3 4 5 Hong Wen Yang Attorneys for 6 7 8 CITY OF SAN BERNARDINO ) ) POINTS AND AUTHORITIES RE ) CONSTITUTIONAL ISSUES ) ) ) 9 vs. 10 11 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, therefore, 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 $I,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 i is worth around $200,000.00, particularly in view of the fact there would be costs in removing the building. The economic loss -1- II o o 1 2 3 to the parties that are caught with this process the city is 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. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II 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 Dieoo v. McClureken (1959) 37 Cal 2d 683. Immediate termination of a non-conforminq 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 peoole v. Oeoartment of Housino and Ccmmunitv Oevelooment (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 reviewinq 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 -2- o o 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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II -3- Kenneth w. Nydam o .- u Sprague, Tomlinson and Nydam (SPACE BELOW FOR FlUNG STAMP ONLY) 1 2 Attorneys at Law ~90 North D Street. Suite 807 San Bernardino. California 9240 I Telephone: (714) 888-1000 Facsimile: (714) 888.6601 3 4 5 6 Attorneys for Hong Wen Yang 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 16 officers. the San Bernardino City Code section 15.020. The City then proceeded to present evidence as 17 to the condition of the ~~ilding 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 a much sever problem of 25 police control than does the Golden Eagle and, further, that 26 the operator of the Golden Eagle Motel always took steps to correct what problems the city Police Department brought to 27 28 II o o 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 specifically refers to some seventeen features to be examined 16 in making a determination of dangerous. It basically 17 describes there being major 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 -2- o o 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 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM Kenneth W. Nydam -3- II -~ - - - ..,..'.... .....-...... - v 11al:lor and Cornman CouncIl ,~!ty of San Bernardino 3C'(} "Jort!) D Street '3an eernanjino. C;:' ~24Ci i "1C{'r:" ,- "2 ,."- ':'; . 15' r'r ,<""'/ . ,.~ '-'.0 narct'l 19, 1992 ~8j~rence: Re\/ocotion ot Con,ji t.i:)neJI Use P~r~l1t tIJO. 262. GOlden Eell~le Hotel 666'''/ Fiith ::l,reet , Dear nauor and Councl1 11erntJer': ':'n ;!ar':h 10,1992. the Cit'd" Mannq oiflc:?r, 1"1r, Fred \o,il1,;on, Assistant ,::iI.i:l AIJrril m:3 tnltor, :Jetenlli ne,j tJrat I,M aDO"le ref '?rence con,jlt i onol use perrnit MS been e;<ercl~:ed In ,~ tnanner contron~ to the condItIons of suen ~[ern'tlt., ,~nrJ In violation of applicattle lIcenses, permits, requiations, laws or c'rdlnances, etc Fun!"ler, the Marlnq officer determIned that the Trlote!'s leqal non-cOnfOrTn1nl~ use Md lap:::e,J ;~nd, tMrefore, the motel ',o-'='Ul[J not be ;~Ilowelj to reopen untIl tne City qranu:, ;~ i3eneral Plan land '.Ise ctlanqe, By way of thIS letter ',lye dre d~lpeajir!l~ U'le t'learinq office(:3 deci:;ions in U'le ,'Mtter of the Re',iocallon of COnrJlt1onol Use Perrnli. No. 262 aM re!Jue~::t. t.hijt tt.ll~; rfnjt.t.sr ~'8 rn?anj t(i~ q"!8 i'~:~;~(lr- ,,:""j C('frHfll)n Councll elf. .~ ~-et~u1 ~rll~ '::crI8fJul elj r"(re~t i nil -; 1 -...-3-3; -2656 rD) rn @ rn ~ \Yl rn I'jj1 LnJ MAR 1 9 1992 l!lJ CITY OF SAN BElINARDINO OEPARTMENT OF PlANNING & 8UllDING SERVICES p~u",*,I'1 G"'1-4f1. ~~ ~ , , /- , . ""..' ~ 2 to U> '< 0 ~ ~ (") ~ III - - -l " (l) en c -< ~ 0 ii m 0 z r- "T1 ~ ~ CIl I , )> ;; Z Z I m to n 0 m S 0 c: :D 3 en Z ~ )> 0 :D n 0 . J> , . en z .- ::I 0 I n :2l = , m ~ ~ 0 " \D m ; ~ ~ I ~~ 0 . ~ ~ 3 ,,::5 ;;.; . en a N " " :T1 0 ;; - ~.::; . , , lQ 0 ~ " \;; I 0 -., . - ! '" Cl Z c - 3 ~ " -l 1; n 0 0 " n , -l 0 ~ )> \I c: .. z .... N z W ? ~ > C1' l ;: 0 .p- . c: '-D z lJ .... -i~ ~ C C1' '. I 1 ~ ..t;y t Oprague, Tomlinson and NYdaQ Attorn~ at Law 290-North 'D' Street. SUire 807 . San Betnardino, California 92401 . (714)8880 1000 J iIl~: .. \fax SUft!ord TOllllinsoA . ~IUlfCh w. ~y4111. G. Keith SPI'1gv.c, a uw C"'...orpor.uioA .1 J~':}J11 Facsimile: (714)888-6601 July 17, 1992 Henry Empeno, Jr. Office of.. City Attorney 300 Nor1:.hfD Street San Berna~d~no, Ca. 92401 Re: G01d.8n,Eagle Motel a&vocation of conditional Use Permit No. 262 Dear Mr. Empeno: After we ~poke on July 9, 1992, you indicated you would have the heari~ ~fficer consider the a~just~ents which we spoke about an4'~nd1cated I would be gett1ng a new decision by July 13, 1992. .On July IS, 1992 I did recehe the amendments we spoke about. There are, two minor points which need to be addressed. Pirst of all, yo~ agreed to a change with regard to Item #4 and in making the adjustments, there should have also been a deletiono~ Item #6(e) which, by virtue of the changes we made to It~ #4, should have been eliminated also. Also, my: client has taken note of the fact that. as to paragraphflO there is the provision that the permittee shall pay all c:;oats of a review hearing and ~ll I would like is some assurance that these costs are no!!:inal and should be kept below a $500.00 amount. You are"'c:orrect in that we assume the City Council will ~ continue e a ea period so that all of ese adJustments can fall into place and perhaps make the appeal moot. As indioated in my last letter to you, we don't agree with the hearing officer's decision and still reserve the right to appeal beoause of the decision made. 45'0 ,:;o'~ E:::::Sr8Z 01 l"jfjG,'Jrst.jI]:3N I lWOl '3nf:Jf.j,:;=3 ~'~02=1 [Z: !! c66! -L!- lilt JUly 17, 1992 Page Two ("'0 Nonetheless, I indicated to you that if mad. would allow the motel to re-open, purpose to continuing on with the appeal. Yours very truly, . ,,..,:-, .,/' , ~"YV'"'~'- SPRAGUE, TOMLINSON AND NYDAM , Kenneth w. Nydam KWN/tg " /1 !/(,.,",- - y , ::;,~4.:'':;'_;C' - .,' . ~ - w the a4justments we there is not any TiJTRL F'. D 1 0' 0 ~.\\'''\'>' .:;' ".:.~~~ .;; ".', \, C I T Y 0 F ,I:." , ~ San Bernardino OFFICE OF THE CITY ATTORNEY JUly 15, 1992 Kenneth W. Nydam, Esquire SPRAGUE, TOMLINSON & NYDAM 290 North "D" Street, Suite San Bernardino, California Via Facsimile 807 92401 Re: In the Matter of the Golden Eagle Motel, Revocation of Conditional Use Permit No. 262 Dear Mr. Nydam: Attached please find a copy of the First Amended Statement of Decision of Fred Wilson, Hearing Officer, in the above-referenced matter. This document incorporates the revisions you requested in your letter to me dated July 9, 1992. If you approve of these revisions please Fax to me at 384-5238 as soon as possible a letter confirming your 1pproval and requesting that the Council continue the hearing on your appeal of the Hearing Officer's decision for six months to allow your clients time to process their applications for a General Plan Amendment, building permits, and Certificates of Occupancy, and to complete repairs of the Motel. The hearing on your appeal of this matter is currently scheduled for the July 20, 1992 Council Meeting at 2:00 p.m. Once received, I will forward a copy of your letter and the First Amended Statement of Decision to the Mayor and Courcil advising that they agree to your request for the six months continuance. Thank you for your cooperation and courtesy in this matter. Sincerely, ~~ Henry Empeno, Jr. Deputy City Attorney cc: James F. Penman, City Attorney Fred Wilson, Assistant City Administrator Al Boughey, Director of Planning and Building [HEI jo/Nyda'kl.ltrj. 7 t ~ 3 B 4 - 5 3 5 5 Services PRIDE -f 1IW" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c - V 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 Owner: Hong Wen Yang and Lin Mei-Yung Yang ) ) Use ) ) ) ) ) ) ) First Amended Statement of Decision of Fred Wilson, Hearing Officer This First Amended statement of Decision supersedes that statement of Decision issued on March 10, 1992. This First Amended statement of Decision includes a Revised Exhibit "A", Amendment to the Conditions of Conditional Use Permit No. 262, which is issued with revisions as requested by the attorney for the Motel owners on July 9, 1992 STATEMENT OF THE CASE The Director of Planning and Building Services ("Director") has initiated this request for the Planning Commission to revoke Conditional Development Permit No. 262 [changed to Conditional Use Permit ("CUP") in 1982] pursuant to San Bernardino Municipal Code I"SBMC") 1* 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 * 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. HE:js ang.dec] 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c c) 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 Officer 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 the 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 Compliance 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. / / / / / / HE:js ang.dec] 2 c o 1 STATEMENT OF DECISION 2 Based upon the evidence presented, the Hearing Officer hereby 3 makes the fOllowing findings pursuant to SBMC Section 19.78.110: 4 1. Condi tional Use Permit No. 262 has been exercised 5 contrary to the conditions of such permit and in violation of 6 applicable licenses, permits, regulations, laws or ordinances. 7 [Section 19.78.ll0(A)(2)] 8 2. The use for which CUP No. 262 was granted has been 9 exercised so as to be detrimental to the public health and safety 10 and has constituted a nuisance. [Section 19.78.1l0(A)(3)] 11 3. CUP No. 262 shall not be revoked at this time if the 12 owners of the Motel accept the Amendments to Conditions of CUP No. 13 262 which are attached as Exhibit "A" and incorporated herein. 14 The grounds justifying a revocation of the CUP can be cured or 15 corrected by the imposition of new, additional or modified 16 conditions. [Section 19.78.110(0)] 17 4. Written notice of the date, time, place and purpose of 18 the public hearing were served on the owners of the Motel by 19 registered mail, postage prepared, return receipt requested, not 20 less than ten days prior to the date of the hearing. [Section 21 19.78.110 (B)] 22 5. The subject site is located at 668 W. 5th Street, 23 generally situated on the north side of 5th Street, approximately 24 201 feet east of the centerline of "G" Street in the RMH, 25 Residential Medium High, General Plan land use designation. After 26 the City adopted the General Plan on June 3, 1989, the Golden 27 Eagle Motel became a legal non-conforming use. A motel is not a 28 permi tted use in the RMH land use district. The Motel was HE:js ang.dec] 3 Ii Ii \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 o -. u voluntarily abandoned by its prior owners for more than 180 days, beginning June 2S, 1990. The Motel's legal non-conforming use lapsed on or about December 2S, 1990, pursuant to SBMe Section 19.66.040 because its use was discontinued for more than 180 days. 6. Because the Motel's legal non-conforming use lapsed, the Motel cannot reopen as a motel use until the property owners apply for and the City grants an amendment of the General Plan Land Use Map to designate a land use district which permits a motel use for this site, and until the City issues a new Certificate of Occupancy for the Motel. NOTICE OF TIME LIMITS FOR APPEAL Pursuant to Section 19.78.110(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 appeal with the City Clerk, directed to the Common Council, wi thin fifteen (IS) 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 la) the specific action appealed from, (b) the specific grounds of appeal, and (c) the relief or action sought from the Common Council. The foregoing First Amended Statement of Decision was adopted this ISth day of July, 1992. ~ 25 26 27 28 Assistant City Administrator Hearing Officer HE:js ang.dec] 4 HE:js o - 'v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REVISED EXHIBIT "A" AMENDMENT TO THE CONDITIONS OF CONDITIONAL USE PERMIT NO. 262 1. The permittee shall not reopen the motel for business until the property owners apply for and the City grants an amendment to the General Plan Land Use Map to designate a land use district which permits a motel 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 codes as it relates to electrical wiring, plumbing, cleanliness and general repairs regarding the habitability of the structure, but the permittee will not be required to bring the site up to current San Bernardino Municipal Code standards as it relates to parking, setbacks, landscaping, number of units, or any other factor which would require major remodeling or removal of the building or repositioning the building on the property. Permi ttee will correct the Code violations that were noted in the correction notices issued by the City in the criminal complaint filed in the San Bernardino Municipal Court as to the former owner 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 5 ang.dec] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o .:> any refrigeration or cooking utensils or appliances, including but not limited to refrigerators, freezers, hot plates, microwave ovens, 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 appliances. Any such impounded items shall be returned to the occupant after 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(s) so as to remain on the premises for more than two weeks in a one month period. 4. The permittee shall require every person renting the motel rooms to sign the motel register and produce a valid driver's license or other valid photo identification. The manager of the motel shall record in the motel register the complete name, date of birth and photo identification card of each person who rents the room. The manager shall also record the make, model, year and license number of any motor vehicle driven by the occupant onto the motel premises. The motel manager shall require that the renter state on the motel register the number of persons who are to occupy the room. 5. The Permittee shall not rent to nor allow any known or suspected prostitutes to be present on the motel premises at anytime. 6. 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: HE:js ang.dec) 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o (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. (e) All occupants over 18 years old must register with the manager. 7. The permittee shall install sufficient security lighting on walkways and in the parking lot as approved by the San Bernardino Planning Department but in no event less than one foot candle of light evenly distributed on these surfaces during hours of darkness. 8. The permittee shall employ a state licensed security guard between 9: 00 p. m. and 2: 00 a. m., seven days a week, to regularly patrol the parking lot and common areas of the motel. This condition shall be reviewed and may be modified if warranted by the City at the CUP review hearing noted in Condition No. 10. 9. The permittee shall make the motel register and records available for inspection by the San Bernardino Police Department anytime upon demand. III III III III III III HE:js ang.dec] 7 _._-1 o o 1 10. The Planning Commission shall hold a noticed public 2 hearing six months after the motel is reopened to determine 3 whether the motel has complied with these conditions and whether 4 the Planning Commission should impose new, ,additional or modified 5 condi tions. The Permittee shall pay all costs of the review 6 hearing including but not limited to the costs for mailing public 7 notices and staff time. 8 III 9 III 10 III 11 III 12 I I I 13 I I I 14 III 15 I I I 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 I I I 27 III 28 III HE: js ang. dec] 8 o 0 Sprague, Tomlinson and Nydam Attorneys at Law 290 North'D' Street. Sunc H07 . San fiernardino. Califnrm<t \)2..!01 . (71.t )8AA-1OOO \tax SIJnford Tnmlinson . Kenneth W, ~yd,lm (i Keith Spra~ue. a L1W Corporation Facsimile: (714)888,6601 July 9, 1992 Mr. Henry Empeno Office of City Attorney 300 North D street San Bernardino, Ca. 92401 Re: Golden Eagle Motel Conditional Use Permit 262 Dear Mr. Empeno: In our last two phone conversations you asked that I write you a letter concerning the decision of Fred Wilson, hearing officer, as it relates to the appeal pending before the City Council. As I have discussed with you and with the city Council, we take exception to everything that Fred wilson has decided in the Decision and, particularly, the finding that the permit was exercised contrary to the conditions and in violation of applicable license permits and regulations. We also object to a finding that the property was abandoned and have even objected to the finding that the motel is in a zone which does not permit the operation of a motel. without waiving any of these rights to assert these positions, however, it being the concern of my clients that they be able to re-open the motel as quickly as possible, we understand that by some few modifications to the decision, we can accomplish that result and, therefore, it's our plan that if these modifications can be made that we will merely continue the appeal process or suspend it until the motel is operating. You indicated there is no legal impediment and your office would be of assistance in having the land re-zoned to CR2 and that Fred Wilson would consider making the changes to the Decision as are set forth herein. You also indicated that the city would grant a permit for the repairs to the motel once an application for the re-zoning had been made. o o July 9, 1992 Page Two The changes to Exhibit A that you indicated could be made would be as follows: Item No.2: The permittee shall bring the subject site up to current codes as it relates to electrical wiring, plumbing, cleanliness and general repairs, but the permittee will not be required to bring the site up to current San Bernardino Municipal Code standards as it relates to parking, setbacks, landscaping, number of units, or any other factor which would require major remodeling or removal of the building or repositioning the building on the property. Permittee will correct the Code violations that were noted in the correction notices issued by the city in the criminal complaint filed in the San Bernardino Municipal Court as to the former owner Case No. MSB 53608. Item No.4: The permittee shall require every person renting the motel rooms to sign the motel register and produce a valid driver's license or other valid photo identification. The manager of the motel shall record in the motel register the complete name, date of birth and photo identification card of each person who rents the room. The manager shall also record the make, model, year and license number of any motor vehicle driven by the occupant onto the motel premises. The motel manager shall require that the renter state on the motel register the number of persons who are to occupy the room. Item No.7: The permittee shall employ state licensed security guard between 9 p.m. and 2 a.m. seven days a week to regularly patrol the parking lot and common areas of the motel. Item No. 11: This item will be deleted in its entirety. I believe these are the changes we discussed when I was last in your office. Yours very truly, SPRAGUE, TOMLINSON AND NYDAM ~- Kenneth w. Nydam KWNjtg CV~~ OF SAN BE~ARDINO I'"'" - REQUESHOR COUNCIL ACTION From: Al Boughey, Director C'~"" ~ _ Appeal of the Hearing Officer's . - -SubJect: Statement of Decision regarding " " the ,~evocation of Conditional Use ; Permit No. 262 (Golden Eagle Motel Mayor and Common Council Meeting May 4, 1992 2.00 p.m. Dept: Planning and Building Services Date: April 21, 1992 Synopsis of Previous Council action: None RKommended 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. (' / ignatu re Al Boughey Phone: 384-5357 Contact person: Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: NIA Source: (Acct. No.) (Acct, DescriPtion) Finance: Council Notes:-f"I'Ufl1l....1y ~-"-f'l. ill/II "nann.l>a", Nn.SO_ CiTY OF SAN BERt+-' IDINO - REQUEST r'" rI COUNCIL ACTION . '~ f f 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). BACltGROUlfD 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. CDP No. 262 was recommended for approval by the Planning Commission. On December 17, 1962, the Mayor and Common Council approved CDP 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.~dditional 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. c ..".."" ,.~ 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"). OP'l':IONS AVA:ILABLE TO THE MAYOR AND COMMON COUNC: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. RECOMMElfDAT:IOllf 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 r- --- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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 Owner: Hong Wen Yang and tin Mei-Yung Yang ) ) Use ) ) ) ) ) ) ) Statement of DeciSion of Fred Wilson, Hearing Officer 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 I"CUP") in 1982] pursuant to San Bernardino Municipal Code I"SBMC") * Section 19.78.l10(A)(2) and (3). CUP 262 authorized the operation of a motel known as the Golden Eagle Motel at 668 W. 5th Street. 17 The Director has also made a determination that the Motel has 18 19 20 21 22 23 been out of business for over one hundred and eighty (180) days and is, therefore, no longer a permi tted 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 2-1 Assistant City Administrator Fred Wilson to act as Hearing Of!icer 25 2i * 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. 28 1 ME; jS' an;.clecl Attachment "A" II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HE. JS i -, ~ "-' '.../ and to render a decision in this matter pursuant to SBMC Sect~ons 2.17.080 through 2.17.1l0. 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 Co~?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 Heari~g 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. -:=~di tio~al Use Pe=i t :-10. 262 has been exercised contrary to the conditions of such permit and i~ violation of applicable L.:enses, permits, regulations, laws or ordinances. [Section 19.78.1l0(A)(2)] 2. The use for which CUP No. 262 was granted has been 2 ng.4ec:J II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ... - , 1'" '-' ."..... exercised so as to be detrimental to the public health and safety and has constituted a nuisance. [Section 19.78.1l0(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 Rf'I.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 permi. tted 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 l=~ =a7s. 6. Because the Motel's legal non-conforming use lapsed. ~~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 . Map to designate a land use district which permits! motel use for 3 KEo ;.[ II ng.decl 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2i 28 ,,,-- .~ , ' 1 2 3 4 5 6 ........ 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.ll01e) 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 atJpeal with the City Clerk, directed to the Common Council, within fifteen (IS) 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 lc) the relief or action sought from the Common Council. The foregoing Findings of Fact and Statement of Decision were adopted this 10t~ day of M~r~h , 1992. Jfi!r Assistant City Administrator Hearing Officer HE:.::s( anv.deeJ 4 II "".. ... ",... 1 2 3 4 5 6 EXHIBIT "A- AMENDMENT TO THE CONDITIONS OF CONDITIONAL USE PERMIT NO. 262 1. The permittee ~hall not reopen the motel for business until the property owners apply for and the City grants an ~~endment to the General Plan Land Use Map to designate 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 i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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 . I vacuuming and a daily change of all linens such as sheets, p1llow' 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 2~ cvens, stoves, toaster ovens, and toasters. 25 (c) The permittee shall require daily inspections by the 26 manager of all motel rooms and the manager shall immediately 27 impound all refrigeration and cooking utensils and appliances. 28 Any such impounded items shall be returned to the occupa~t after 5 KE; j. ang.decl II ,'..... '-' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Ii 18 19 20 21 22 23 he/she has checked out of the motel. ( c1) The permi ttee 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( 5 I 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 I Daily inspections by the manager and daily maid service are required. (b I Refrigeration or cooking utensils or appliances are prohibited and will be impounded by the manager. (cl Daily rental rates. (d) No one shall be permitted to rent any roomls) for more than two weeks. (e) All occupants over 18 years old must register with the ~!. 251 261 27 28 manage~. 6. The permittee shall install sufficient security lighting on walkways and in the parking lot as approved by. the San Bernardino Planning Department but in no event less th~n one foot at; JS( ng.decJ 6 II ,............ v ' 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 Oepartment 8 anytime upon demand. 9 9. The Permittee shall not rent to nor allow any known or 10 suspected prosti tutes to be present on the motel premises at 11 anytime. 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 con.ditions. The Permittee shall pay all costs of the review Ii hearing including but not limited to the costs for mailing public 18 notices and staff ti~l!. 19 11. A single violation of any of these conditions may lead 20 to a revocation of the Conditional Use Permit. 21 22 23 24 25 26 27 28 HE: jst ftll.dec! 7 II -'"" , '-" '-." MIj:~':'r ,:nd ;:'ummon Councli =, t.~ of S ,:n Bernardi no -: <'I~:" ~";C"rt. 01 D 5treet ::,:r"1 c;,,:,'-"!'.:(G~rl':'. _ ;~~i:i i :".~r.:::.. ::-i " , : .;:;.: =~;'-:-,--:-,-;(~ ~~,...t:..:-:!.,._,~.. t.'," ,-.'.,".:1;:: ';"~' ..:.:. =.w.-......;!t r'le ~ # ::,'~~d.:.r"t =,~,"iw ;,nt,:.; ,.;.:..,:. .... -. '- ..... '- -.~'." . - -.' - - - -, ' ~ ,f '.:-; ':-' .-'?'?t r:':-Ar 10'AI'~' ".". .:.no r '-lur-'r:! 1 i~~"(I~I':''''': __ _.... - ': .'. _.. -t'. '." . .0. _ _ .. C:~': r'''~e~~:'?: ~ 0. i 9'~2, the C:t'r3 nt?~:-~n'J ,~:fi1(::?f.. !1r. F(ed '':"i11:50n. Assl-:.tant t:'itl~ 4.IJ(n~"'i:::r.(-:t.!:,(. :1~t~n'f:~r'.~.1 t.f=-:t t.r'~ :~l';\"'? ....~t~r'?,..'=e .::t)r!ljit;~rel use ::',?'-~.~qt, o',.a.o':: ;--_'~~_-,:'! '?~~-:-' ':j":t"J !n : :',"r:.,w'" '-'-rn;.r-_~t-;l !(! th~ ',":,'''"'''j!!;-:n';; I.'" '::'..1,-,) . ,-....1 _" _ _ .. ..... ~ _. " . '.. ~ . _ ... _' . .... ,-!,:,r-Yft1f '='rll~ In I"'lni::.tl'-i'" tlf':"'-.ntll-''='(';~ ll'-l:'!'-r:-;:'O::- n~rm;'O:- r~I'IJioti!~r':: 1.aWO:- ... _" , .' '.. _ . _ . _ oJ, '... _' .......... . _.. ,_ _' -. . '.''''.' ,. .' ...._ . .::1 1_ "...; t',J I oJ or Clr'~;ncrJ'::'?':'. ~t.c. J:'".H.r.!"!!~~.., t.n'? ;"'~::r-;f"~ !:.ffi(~!'" det'?r"'r!!"\~!j thet. +.ne .....,L-.t~:..:- '1';'1'~1 r'lu-rl-'-u'I'I','n,...,.,l""" II';'~ r',~.., I'"CI''':'~''' ;Jo"I'~ th.:.r::.fn.r~ tn',:, ""'uol"l ... .... -J ...--:'-~ _'. ,. ..: ~......- .WU '.4_ '......... . . Y,. ...... ....... .... .. ~... ... -"-!I~'i.J;': ..-!t)!. t,,? '::iiov-telj t.) (-?ocl~n untH t!le Clti~ 9f;~f1t~, .: ;:erter~l Plan lend 'J::;!'? cnonge. 5~ Wlj~ Q1 trl1s letter we ~re ec'pe,~iing tne heljring officer's aecisi':n~; ill the rnelt~er oi the Pe'''xoi.ion oi CQrHlltloMl Use Per'r" ~ Nt), 262 dnd request tnot thlS matt.er t''? he.~fa bl~ the ;1el~('( ::r!,j CI)nur'wf! CO!Jnc!i e:t, ,~ ...~I;'!~-:r-l..~ '::I:,lo-!I?'J'J'~lIj rY!~~t.!!1g, =e"~""=T"';~;'': C,_ ~ttE'oj 8ll, . . .~ i. L !O~,,!, D'Jrn %l Off'ce Box 1622 0, 92402 oorn@~~w~~ MAR 1 9 1992 L!U CITY OF SAN BERNNlDINO DEPARTMENT OF PlANNING " BUILDING SEIlVICES Attachment "B" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II '"' '-' '-" Sprague, Tomlinson and Nydam (SPACE BELOW FOR FlUNG STAMP ONLY) Attorneys at Law 290 North 0 Street. Suite 807 San Bernardino. California 9240 I Telephone: (714) 888.1000 Facsimile: (714l 888.6601 Attorneys for Hong Wen Yang CITY OF SAN BERNARDINO ) ) CLOSING ARGUMENT vs. ) ) HONG WEN YANG ) ) 1. 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! -1- .\ :tf H f-j <-.__.__.11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II - '- ~ "-'" with all existing city codes. It seems only obvious, just and fair that if, in fact, the City's complaint is that the motel needed fixing up, then the solution is for the Yangs to proceed with their plans as indicated in the hearing to do the repair work and this accomplishes what each side has stated was their intent and the matter should then be concluded to the satisfaction of both parties. The hearing officer can conclude the revocation of the permit will not occur, conditionally on the motel being refurbished, given a reasonable period of time, and the City of San Bernardino will then not have an empty building, boarded up, being of no use to anyone including the City of San Bernardino which claims they can use the tax money for business license and bed tax income and the Yangs can proceed with their business enterprise. II. EFFORTS OF THE YANGS The record shows that the Yangs operated this motel successfully for several years without any problems of code I 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 operation of the motel until, in 1989, they sold the motel to day I Mr. I and I Chen. Mr. Chen, in turn, sold the motel to Mr. Wong according to Mr. Larry Reed when the City set its priorities in March 1990 to investigate, examine and determine if motels in the I San Bernardino are were in compliance with the City Codes, directed the enforcement officers to target the motels in their -~- - '-' '-.-.,,/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 251 26 27 28 inspections. In March 1990 inspectors spoke to Mr. Wong and made recommendations for certain repairs. Ap12arent1y 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 tole. 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 II -3- '""" '- '" ,,~ 1 that in september 1990 the City became aware of the Yangs I 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 $5.,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 May 7, 1991, written to the members of the Board of Building 10 commission asking for a reconsideration of their decision of 11 12 september 12,1990 was unanswered. The fact of the matter is the Yangs were able to 13 again obtain legal title to the property on January 15, 1991. 14 They immediately called the City of San Bernardino and took steps 15 to meet and confer concerning what needed to be done to reopen 16 their establishment. While there were a few days' delay in 17 accomplishing the setting up of the meeting, on January 29, 1991 18 the record clearly indicates the Yangs and their counsel met with 19 city Attorney James Penman, John Martin and Larry Reed, 20 indicating their clear intent to fix up the motel and continue on 21 with his operation. It's clear at this meeting the Yangs were 22 told that the City was going to revoke the Conditional Use 23 permi t, but following this meeting they didn I t do so and in 24 February 1991 the Yangs contacted their contractor and began 25, I working on obtaining a bid for the work of making corrections to 26 the building. In March 1991 the City refused to take the 27 28 -4- II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25, 26 27 28 ,........ "-' ".... application for the permit on a couple of occasions and finally, in the first part of April 1991, Mr. John Lightburn 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 'fangs 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 buildi~g 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 obje~tion of the 'fangs, the Board eventually set the matter for hear~ng before a hearing officer. The 'fangs have introduced testimony that this motel I requires an expenditure of $6,000.00 a month. The expense -4a- II 1 2 3 business enterprise. 4 5 6 7 8 9 10 11 12 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 15 it couldn't be used. 16 17 Yangs, they were not in a position to make the repairs until such 18 time as they had a right to occupy the property in January 1991 19 20 21 building as is demonstrated by their immediately calling the City 22 I and arranging the meeting with the City Attorney that occurred on 231 January 29, 1991. This is further demonstrated by their attempt 241 I to obtain their building permit when the City lagged in 25 I presenting any hearings and in the attempts of Mr. Yang to occupy 261 the property. 27 28 ,- V .......-""' occurred to date of $60,000.00 is at prejudice to them and the city has not demonstrated any reason for the delay and the Yangs at this point should be allowed to continue on with their III. THE CITY HAS NOT MET THEIR BURDEN OF PROOF The City has contended that the business ceased to be used for a motel for a periOd in excess of 180 days. This argument fails in that they have not been able to demonstrate any other use for the motel and it has always existed as a motel with the business license intact through December 1990 occupancy and the certificate of still in existence. Further, the motel has not been altered for acted to not only shut down the motel but to board it up so that Additionally, the point is very clear that as to the when obtained their they title the to the building through foreclosure They certainly process. abandoned this never Further, the Yangs were prejUdiced because the II ..."'".., '- ,-, ,,..! 1 City precluded them from being fully informed as to the city's 2 actions in 1990 when they refused to talk to them and incorrectly 3 mailed the notices to them. Further, the case cited in the 4 attached Points and Authorities demonstrates that when a premise 5 is closed by a public entity with orders to make repairs, this 6 does not constitute either an abandonment or a discontinuance of 7 use such as the City maintains. There has been no demonstration that the property has "willingly been vacant" for more than 180 8 days and, therefore, is no longer considered a legally non- 9 conforming use as is set forth in San Bernardino Municipal Code 10 19.66.040. The City cannot demonstrate that the building had a 11 use which was discontinued for a period of ISO days as it's 12 13 14 15 16 17 18 19 20 21 22 23 24 25! 26 27 28 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 IS 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 -6- II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II ,......, V ,.-,.- ...,,~ 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 indications 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 -7- ,"-' . '-/ ;"../ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 221 231 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 EVIDENCE CONCERNING NUISANCE IS INADEOUATE In calling Sgt. Tull of the San Bernardino Police Department, the City only demonstrated that the Golden Eagle Motel is in a relatively high crime area and that Mr. Wong cooperated with the police every time they talked to him 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 merely pulled out contacts with either victims or alleged criminals for being in the area of this motel and in no way suggested that the management of the motel was operating the 24 25 26 27 28 premise~ in such a condition so as to constitute a nuisance as would be required to shut down the motel for these reasons and as indicated by Larry Reed in his testimony that these pOlice i . I reports were not even collected unt~l January 1991, they! , certainly had no bearing on the City's actions herein. I i , VI. ZONING i I The Yangs contend that the motel has always been I I zoned as CR-2 which is the appropriate zoning for a motel. The I I application for the certificate of occupancy as prepared by the i I city shows the motel to be in the CR-2 zone. John Lightburn has, testified there is no map or description of the general plan that would exclude the motel as being in the CR-2 zone as the II -8- /~'.... V '-. "f 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 distinguishable. 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 appears the City is contending that the demarcation line between CR-2 and RMH lies along the western property line of the Golden Eagle Motel. What's so strange is the entire area of the motel is surrounded by CR-2 zoning and it appears the city has provided for an RMH zone for a couple of existing buildings which house senior citizens. It seems apparent the city has not considered the economic issues involved. The evidence is undisputed that the Yangs sold the property in 1989 for the sum of $980,000.00 and the property was thereafter sole for $l,OSO,ooo.oo. There is no evidence to suggest this sum is not the fair market value of the property. Evidence from the Yangs further indicates that vacant land without the building in this area would at most be worth $200,000.00, but in view of the fact the property is .48 acres in size and the evidence demonstrates that for RHM zoning this is of insufficient size, it is submitted that the City's position would put this property in a classification as being valueless for the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- II -- v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immediate future. Further, while the City has maintained the owners can do what they want to with the property, evidence introduced demonstrates that the City, after assisting in an analysis as what use the motel can have, has concluded they can't find any use for it that would comply with the city ordinances. They haven't suggested to the hearing officer any use which is compatible with zoning and it appears that their attempt has been to zone this property right off the face of the earth. It seems inconceivable that this is any kind of a fair or appropriate result when examining the map of the city's general plan which shows motels allover the area as the most prevalent business in the area. As is indicated in the exhibit demonstrating the Budget Motel, Royal, Sahara, Super 8, Best Western, Villa Viejo, Via Bernadine, Desert Inn, Super 7 and Sunset all exist within two blocks of the subject property. VII. POLITICAL MOTIVATION At the onset, the Yangs have maintained that the City has set upon the program of eliminating the motels from the downtown area. While the hearing officer declined to require James Penman to appear at the hearing, a statement written by him as published in the Sun newspaper would indicate that the Code violations were the method that the City has hit upon to make this change. Larry Reed indicated that the directions came to him to target the motels in March 1990. It is not suggested that the City doesn't have the right to make their plan for the best city possible. It is -10- II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II ""'''''-'' ---. '"'. ./ v to get ridof the motel without the city compensatinq the owners for same and every avenue the City seems to be usinq at this point is highly suspect and clearly an attempt to mask the real issues involved. It is respectfully submitted that the hearinq officer should conclude that the conditional use permit is not to be revoked. The permit itself has no conditions attached to it and, further, the City's last ditch attempt to claim there are more motel units than allowed by the permit, is a fabrication as this is a 34 unit motel which should be allowed operating status. Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM Kenneth W. Nydam -11- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I 2 ,r"".... '-' Sprague, Tomlinson and Nydam Attorneys at Law 290 Nonb 0 Street. Suite 807 San BementinG. California 9240 I Telephone: (114) 88g..IOOO Facsimile: (114) 881-6601 ,SPACE aELOW FOR FILING STAJIP ONLY) "'".,,;1 3 4 5 Honq Wen Yanq Attorne}'ll for 6 7 8 CITY OF SAN BElUlARDINO POINTS AND AUTHORITIES RE CLAIMED ABANDONMENT OF PROPERTY ) ) ) ) ) 1 I. The City has asserted that the use of the motel 9 vs. 10 11 HONG WEN YANG has been abandoned and the property, therefore, haviDq been abandoned for a period of 180 days, no lonqer is entitled to their conditional use pumit as the zoninq chanqed in 1988 and, therefore, they are entitled to revoke the conditional use permit. '. First of all, it is suqgested 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 pumit. There, therefore, can be no arqument made that the conditional use pumit has been 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 II -1- ..' ..~ ~ v -"",..,;1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1990, copies of which notices are in the record, indicating these notices stated "Notice to Vacate". These notices specifically stated that the units in the motel were not to be operated until repairs had been made and tenants were no longer allowed to occupy the rooms. By this action, the City caused the property to be vacated and the tenants there were in the property were removed. This does not demonstrate any voluntary abandonment and the city's claim that they found the motel at some point unoccupied with no manager on the premises, does not support this position when they, that being the City, caused this result. Further, there is no demonstration this motel was ever put to any other use and the use was not abandoned. The motel continued to have a certificate of occupancy which is still valid. This was issued by the City of San Bernardino. Also, the city license was in effect and was not suspended and continued as long as the fees had been paid up through December 1990. Specifically, the Yangs are able to cite a case which is exactly on point. Citv of Fontana v. Atkinson (1963) 212 CA 2d 499 clearly states that when a public entity has taken steps to require repairs or alteration of property and the property ceases to be utilized because of the action of the municipality, there is no demonstration of abandonment and when the property is then repaired, it again can be utilized for the very same purpose. The court very specifically indicated the reason for their finding was the action of the municipality in requiring the repairs. That is exactly what happened in the instant case. There is no indication in the Code or anywhere -2- II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II J", ~~ v \.,..,,'" else as to the time frame in which repairs need to be made. ~he court in the citv of Fontana case su~ra, specifically stated that the mere shutting down of the operation for pUrposes of making repairs, even though it exceeds 180 days, does not constitute an abandonment. For this reason, the city's argument concerning the ISO day requirement is not meritorious. Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM " -3- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I 26 27 28 ~~ I 2 v Sprague, Tomlinson and Nydam Attorneys at Law 290 North 0 Street. Suite 801 SaD Bernardino. California 92401 Telepbone: (114) 888.1000 Facsimile: (714) 888..6601 '....,,""" (SPACE aELOW .oR nuNC STAKP ONLY) 3 4 5 6 7 Attorneys for Honq Wen Yanq 8 CITY OF SAN BERNARDINO ) ) POINTS AND AUTHORITIES RE ) CONSTITUTIONAL ISSUES ) ) ) 9 vs. HONG WEN YANG The City of San Bernardino has maintained that the conditional use permit for the Golden Eaqle Motel located at 668 West Fifth Street, San Bernardino, California, should be revoked, in part because they alleqe the zoning for the lot on which the GOlden,Eagle Motel is located no lonqer is in a CR-2 zone and it, therefot'e, it a non-conforming use and certain City ordinances concerning non-conforminq,uses now apply. Without concedinq this fact, a remaininq issue to determine is the unconstitutional takinq 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 lonqer viable, that vacant land at this site I is worth around $200,000.00, particularly in view of the fact there would be costs in removing the buildinq. The economic loss -1- II 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II - V ,p-..... .....,J to the parties that are caught with this process the city is 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 1 2 3 4 5 6 7 8 9 10 11 McClureken (1959) 37 Cal 2d 683. 12 property. 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 Dieoo v. Immediate termination of a non-conforming building or structure is improper. Jones v. Los Anoeles (1930) 211 Cal. 304. Los Altos v. Silvey (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 Peoole v. Deoartment of Housina and Community Develooment (1975) 45 CA 3d 185, the court specifically held that where there was a $40,000.00 amount spent by an owner, the municipality was precluded from taking action that would wipe out that type of investment. Particularly in view of reviewing a map wherein it's indicated that the south side of Fifth street is zoned for motel use and a very small segment north of Fifth Street has been isolated for high density housing, the City'S -2- ,-, v r, ,,"-,;..'; 1 interest in having the motel no longer to exist certainly seems 2 de minimus in comparison with the damage being done to the owners 3 of the property should the City succeed. Clearly this 4 constitutes a taking which is unconstitutional. 5 Respectfully submitted, 6 SPRAGUE, TOMLINSON AND NYDAM 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II -3- Kenneth W. Nydam r '-' ~ , '" Sprague, Tomlinson and Nydam (SPACE BELOW FOR FlUNG STAMP ONLY) 1 2 Attorneys at Law 290 North D Street. Suite 807 San Bernardino. California 92401 Telephone: (714) 888-1000 Facsimile: (714) 888-6601 3 4 5 Hong Wen Yang Attorneys for 6 7 8 CITY OF SAN BERNARDINO ) REVOCATION OF PERMIT ON ) BASIS OF NUISANCE ) ) ) ) 9 vs. 10 HONG WEN YANG 11 The City, as part of the proceeding to declare 12 the permit revoked, has alleged that because the property 13 constituted a nuisance, the permit should be revoked. In 14 support of this proposition, they have cited to the hearing 15 16 officer$ the San Bernardino City Code Section IS.020. The City then proceeded to present evidence as 17 to the condition of the b:uilding 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 a much problem of sever 25 police control than does the Golden Eagle and, further, that 26 the operator of the Golden Eagle Motel always took steps to correct what problems the City Police Department brought to 27 28 II -- '- - '-.n_"J' . 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 specifically refers to some seventeen features to be examined 16 in making a determination of dangerous. It basically 17 describes there being major 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 maj or structural damage or maj or 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 -2- II ,...,..... v - . 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 I t be chargeable to 8 the Yangs. 9 It is respectfully submitted that the hearing 10 officer review the provisions of City Code Section IS.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 16 Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM Kenneth W. Nydam 17 18 19 20 21 22 23 24 25 26 27 28 -3- II