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HomeMy WebLinkAbout29- Planning and Building Services CITY OF SAN BERNANDINO - REQUEST FOR COUNCIL ACTIOI Appeal of the Hearing Officer' s From: Al Boughey, Director --Sub)ecti Statement of Decision regarding the Revocation of Conditional Use Dept: Planning and Building Services permit No. 262 (Golden Eagle Mote] Date: April 21 , 1992 Mayor and Common Council Meeting May 4 1992 2 .00 p.m. 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. Al ignature Contact person: Al Boughey Phone: 384-5357 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: N/A Source: (Acct No.) (Acct Description) � Finance: Council Notes: 7/— Z �y CiTY OF SAN BERN. 1F- 'NO - REQUEST F F ^,OUNCIL 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 REQUEST To appeal the March 10, 1992 decision of the City's hearing officer for the revocation of Conditional Use Permit No. 262 [Golden Eagle Motel] (see Attachment "B" , Appeal Letter) . BACKGROUND On December 4 , 1962 , the Planning Commission reviewed a proposal under Conditional Development Permit (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 (SSMC) 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. 0 0 Appeal of Hearing 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 THE 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 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. 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 I BEFORE THE PLANNING COMMISSION 2 CITY OF SAN BERNARDINO 3 FRED WILSON, HEARING OFFICER 4 In the Matter of the ) 5 Golden Eagle Motel ) Revocation of Conditional Use ) Statement of Decision of 6 Permit No. 262 ) Fred Wilson, Hearing Officer 7 Owner: Hang Wen Yang and ) Lin Mei-Yung Yang ) 8 ) 9 STATEMENT OF THE CASE 10 The Director of Planning and Building Services ( "Director" ) 11 has initiated this request for the Planning Commission to revoke 12 Conditional Development Permit No. 262 [changed to Conditional Use 13 Permit ( "CUP" ) in 1982] pursuant to San Bernardino Municipal Code 14 ( "SBMC" ) * Section 19 . 78. 110(A) ( 2 ) and (3 ) . CUP 262 authorized 15 the operation of a motel known as the Golden Eagle Motel at 668 W. 16 5th Street. 17 The Director has also made a determination that the Motel has 18 been out of business for over one hundred and eighty ( 180 ) days 19 and is, therefore, no longer a permitted use pursuant to SBMC 20 Section 19. 66.040. The owners of the Motel have filed an appeal 21 of the Director' s determination. 22 This matter came before the Planning Commission in accordance 23 with SBMC Section 19 .78. 110. The Planning Commission appointec 21 Assistant City Administrator Fred Wilson to act as Hearing Offices 25 * Pursuant to Stipulation by all parties, all citations to Title 27 19 of the San Bernardino Municipal Code refer to those ordinances in effect prior to the adoption of the Development Code on June 3, 28 1991 - 4E Js ang.dec1 1 Attachment "A" 1 and to render a decision in this matter pursuant to SSMC Sections 2 2. 17.080 through 2. 17. 110. 3 A hearing has been held in which Acting Deputy City Attorney 4 John Martin presented the Director' s case. The Motel owners were 5 represented by Kenneth W. Nydam, an attorney with Sprague, 6 Tomlinson and Nydam. Witnesses have been examined and cross- 7 examined by both parties. The following witnesses have testified 8 during the hearings: 9 1 . Richard Lee Lyons, General Contractor; 10 2. Dany Nolfo, Code Compliance Officer; 11 3 . Sergeant Ernie Tull, San Bernardino Police Department; 12 4. John Lightburn, Consultant; 13 S. Debra Daniels, Code Compliance Supervisor; 14 6. Edalia Gomez, Associate Planner. 15 Both parties have submitted volumes of documentary evidence 16 and photographs which have been admitted as evidence and have been 17 reviewed by the Hearing Officer. Both parties have submitted 18 written and presented oral arguments and points and authorities on 19 the factual and legal issues. Both parties have reviewed and 20 provided comments on the Hearing Officer' s Tentative Decision. 21 STATEMENT OF DECISION 22 Based upon the evidence presented, the Hearing Officer hereby 23 makes the following findings pursuant to SBMC Section 19 .78. 110: 24 1 . Ccnditicnal Use Pernit No. 262 has been exercised 25 contrary to the conditions of such permit and in violation of 26 applicable licenses, permits, regulations, laws or ordinances. 27 [Section 19 .78. 110(A)( 2)] 28 2. The use for which CUP No. 202 was granted has beer 2 HE' )si ng.decl p 1 exercised so as to be detrimental to the public health and safety 2 and has constituted a nuisance. [Section 19 . 78. 110(A) (3 ) ] 3 3. CUP No. 262 shall not be revoked at this time if the 4 owners of the Motel accept the Amendments to Conditions of CUP No. 5 262 which are attached as Exhibit "A" and incorporated herein. 6 The grounds justifying a revocation of the CUP can be cured or 7 corrected by the imposition of new, additional or modified 8 conditions. [Section 19 .78. 110(D )] 9 4 . Written notice of the date, time, place and purpose of 10 the public hearing were served on the owners of the Motel by 11 registered mail , postage prepared, return receipt requested, not 12 less than ten days prior to the date of the hearing. [Section 13 19 . 78. 110 ( B ) ] 14 5. The subject site is located at 668 W. 5th Street, 15 generally situated on the north side of 5th Street, approxi mately 16 201 feet east of the centerline of "G" Street in the RMH, 17 Residential Medium High, General Plan land use designation. After 18 the City adopted the General Plan on June 3, 1989, the Golden 19 Eagle Motel became a legal non-conforming use. A motel is not a 20 permitted use in the RMH land use district. The Motel was 21 voluntarily abandoned by its prior owners for more than 180 days, 22 beginning June 25, 1990. The Motel ' s legal non-conforming use 23 lapsed on or about December 25, 1990, pursuant to SSMC Section 211 19 . 66 . 040 because its use was discontinued for more than 132 dais. 25 6 . Because the Motel ' s legal non-conforming use lapsed, 'he 26 Motel cannot reopen as a motel use until the property owners apply 27 for and the City grants an amendment of the General Plan Land Use 28 Map to designate a land use district which permits s motel use for 3 XE:]s' ng.decd I this site, and until the City issues a new Certificate of 2 Occupancy for the Motel. 3 NOTICE OF TIME LIMITS FOR APPEAL 4 Pursuant to Section 19 . 78. 110( e ) and Chapter 2. 64 of the San 5 Bernardino Municipal Code, any person aggrieved or affected by the 6 decision of the Hearing Officer regarding the revocation of 7 Conditional Development Permit No. 262, may appeal to the Common 8 Council by paying the appropriate appeal fee and filing a written 9 notice of appeal with the City Clerk, directed to the Common 10 Council, within fifteen ( 15 ) days after the date the Hearing 11 Officer adopts these Findings and Statement of Decision. The 12 notice of appeal shall be in writing and shall set forth (a) the 13 specific action appealed from, ( b) the specific grounds of appeal, 14 and (c ) the relief or action sought from the Common Council. 15 The foregoing Findings of Fact and Statement of Decision were 16 adopted this loth day of March 1992. 17 18 ✓ FRE WILSON 19 Assistant City Administrator 20 Hearing Officer 21 22 23 24 251 26 27 28 HE:,s( an9.tlec1 4 0 1 EXHIBIT "A" 2 AMENDMENT TO THE CONDITIONS OF 3 CONDITIONAL USE PERMIT No. 262 4 1 . The permittee shall not reopen the motel for business 5 until the property owners apply for and the City grants an 6 a.aendment to the General Plan Land Use Map to designate a land use 7 district which permits a motel use for this site and until the 8 City issues the motel a new Certificate of Occupancy. 9 2. The permittee shall bring the subject site up to current li 10 San Bernardino Municipal Code standards, including but not limited 11 to correcting those code violations noted in Correction Notices 12 issued by the City in 1990-92, and those noted in the Criminal 13 Complaint in San Bernardino Municipal Court Case No. MSB 53608. 14 3. The permittee shall prohibit long-term occupancy and 15 shall assure that the motel is used only for short-term occupancy 16 by complying with the following: 17 ( a ) The permittee shall require daily maid service of all 18 occupied rooms, including but not limited to a daily cleaning and 19 vacuuming and a daily change of all linens such as sheets, pillow 20 cases, and towels. 21 (b ) The permittee shall prohibit all occupants from using 22 any refrigeration or cooking utensils or appliances, including but 23 not limited to refrigerators, freezers, hot plates, microwave 241 ovens, stoves, toaster ovens, and toasters. 25II ( 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 occupant after 5 HE 1n anq.Gec� C o 1 he/she has checked out of the motel . 2 (d) The permittee shall not rent any room for less than a 24 3 hour rate. No occupant shall be permitted to rent any room( s ) sol 4 as to remain on the premises for more than two weeks in a one 5 month period. 6 4. The permittee shall require every occupant over 18 years 7 old to sign the motel register and produce a valid driver' s , $ license or other valid photo identification. The manager of the 9 motel shall record on the motel register the complete name, datei 10 of birth, and the photo identification card number of each 11 occupant over 18 years old. The manager shall also record the 12 make, model, year and license number of any motor vehicle( s) 13 driven by the occupant onto the motel premises. 14 5. Permittee shall post conspicuous signs in the motel lobby 15 and in each motel room which shall include but will not be limited ) 16 to the following: 17 ( a) Daily inspections by the manager and daily maid service 18 are required. 19 ( b) Refrigeration or cooking utensils or appliances are 20 prohibited and will be impounded by the manager. 21 ( c ) Daily rental rates. 22 (d) No one shall be permitted to rent any room( s ) for more 23 than two weeks. 21 ( e ) All occupants over 18 years old must register with the 25I manager. 26 6 . The permittee shall install sufficient security lighting 27 on walkways and in the parking lot as approved by. the San 28 Bernardino Planning Department but in no event less than one foot eE.]af ang.decl 6 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 B. The permittee shall make the motel register and records 7 available for inspection by the San Bernardino Police Department 8 anytime upon demand. 9 9 . The Permittee shall not rent to nor allow any known or 10 suspected prostitutes to be present on the motel premises at 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 all costs of the review 17 hearing including but not limited to the costs for mailing public 18 notices and staff time. 19 11 . A single violation of any of these conditions may lead 20 to a revocation of the Conditional Use Permit. 21 22 23 24 25 26 27 28 HE'.]s( ng.decl 7 p O ma or anu Common Councii _ y of _on Bernarano NeAn _ Street _nn _r'n!rmnr' - . _-;!' t AW - - 63, year i v,or and C.ounr^1 i'emher_ ...,..- t ;y! i442, the ._:t,r ne°r.ng of"ic Mr. Fred ''*IiMn, ASSIstant Wig Acme •tef. . ry ieferrwosd tr:a ire r -efarervce tirlditientl use -1,no 7_ _ en vv coel In _ miner _mr+r': to the condivon'L of ::umi permit , _iv_ in 'viiilavien of aepticivi.e imen?es, permit;. regulations; laws or orlinances, etc Partner We oetr-g officer deter-ni-ea that the moteFs ie'gal non-curifo,'Tong Use nao lapse-a and, therefore, the motel -sviln not ve allowed i'1 reuosen ut'Itli the i_Ity grants .a ?eneral Flan land use enainge, vy way ^_i this letter we are appealing the hearing officer's decision in the matter of the RBvneation of Conditional Use Per,r!t me. 262 and request that this matter to heard by fhe Payer 9nd CorntnUrt Council at a romp �rl rheauled mesting - !tted 512 roLigntburn e Box 1622 r71no, a. 4240 MAR 1 9 1992 CITY OF SAN BERNARDINO DEPARTMENT OF PLANNING d BUILDING SERVICES Attachment "B" Sprague, Tomlinson and Nydam (SPACE BELOW FOR FILING STAMP ONLY) 1 Attorneys at Law 2 290 North D Street, Suite 807 San Bernardino. California 92401 3 Telephone: (714) 888-1000 Facsrmde: (714) 888-6601 4 5 Attorneys for Hong Wen Yang - 6 7 8 CITY OF SAN BERNARDINO ) CLOSING ARGUMENT 9 vs. ) 10 HONG WEN YANG ) 11 I. FACTS PRESENTED 12 The bulk of the testimony presented by the City of 13 San Bernardino in the hearing concerned the alleged condition of 14 the Golden Eagle Motel as the City contends was discovered 15 throughout inspections made in March and again in June and July 16 1990 . The City aintains that the motel was in a y general state 17 of disrepair such that it needed cleaning, general maintenance, ' 18 and repairs in order to be habitable. The conclusion of the City 19 was that the motel would be closed because of numerous code 20 violations and the City issued a 91 count criminal complaint 21 against Mr. Wong who was the owner/operator of the motel at the 22 time. 23 In contrast to the testimony as offered by the City 24 of San Bernardino the Yan s g present owners, presented evidence 25 that they have done everything they can possibly do since the 26 inception of their involvement to have the motel properly 27 repaired, to refurbish same and to bring the motel in compliance 28 1 with all existing City codes. 2 It seems only obvious, just and fair that if, in 3 fact, the City's complaint is that the motel needed fixing up, 4 then the solution is for the Yangs to proceed with their plans as 5 indicated in the hearing to do the repair work and this 6 accomplishes what each side has stated was their intent and the 7 matter should then be concluded to the satisfaction of both 8 parties. The hearing officer can conclude the revocation of the 9 permit will not occur, conditionally on the motel being 10 refurbished, given a reasonable period of time, and the City of 11 San Bernardino will then not have an empty building, boarded up, 12 being of no use to anyone including the City of San Bernardino 13 which claims they can use the tax money for business license and 14 bed tax income and the Yangs can proceed with their business 15 enterprise. 16 II. EFFORTS OF THE YANGS 17 The record shows that the Yangs operated this motels 18 successfully for several years without any problems of codes 19 violations or claims of operating a nuisance. The Yang family ) 20 operated the premises in the two story apartment next to an above 21 the office of the motel and involved themselves in the day to days 2 operation of the motel until, in 1989, they sold the motel to Mr. l 2 22 Chen. Mr. Chen, in turn, sold the motel to Mr. Wong and 24 according to Mr. Larry Reed when the City set its priorities in 25 March 1990 to investigate, examine and determine if motels in the 26 San Bernardino are were in compliance with the City Codes, 27 directed the enforcement officers to target the motels in their 28 -z- 0 1 inspections. In March 1990 inspectors spoke to Mr. Wong and made 2 recommendations for certain repairs. Apparently in June 1990 3 additional inspections were made and the motel units were posted 4 with a Notice of Violation, which notice provided that the units 5 could not be occupied. Pursuant to this closure, the City in 6 July 1990, caused a contractor to board up the property and in 7 August 1990 sent a contractor into the premises to complete the 8 board up. 9 The application for the certificate of occupancy ' 10 dated in August 19089 demonstrated that the motel was in an 11 operating condition and the inspection conducted demonstrated 12 everything was in satisfactory condition and the certificate 13 issued. This was about the same time as the Yangs surrendered 14 possession of the property to Mr. Chen, the new owner. 15 When Mr. Wong ceased to make his payments to Mr. 16 Chen, Mr. Chen took possession of the property by a foreclosure 17 and a deed of trust dated July 20, 1990. The evidence reflects 18I that he continually told the Yangs that he was going to repair 19 the property and would continue making the payments on the 20 underlying notes as he was obligated to do. The unrefuted 21 evidence is that Jennie Yang spoke with Mr. Danny Nofo, the Code 22 enforcement officer, in August 1990 in an attempt to determine 23 what the City' s position was with respect to the motel. He asked 24 if the Yangs owned the property and having been advised that they 25 did not at that time, he indicated it was none of their business 26 and the City wouldn't talk to them. While the City maintained 27 that all appropriate notices were sent to the Yangs, it is clear 28 -3- p 4 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 $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 10 May 7, 1991, written to the members of the Board of Building 11 Commission asking for a reconsideration of their decision of 12 September 12 , 1990 was unanswered. 13 The fact of the matter is the Yangs were able to 14 again obtain legal title to the property on January 15, 1991. 15 They immediately called the City of San Bernardino and took steps 16 to meet and confer concerning what needed to be done to reopen 17 their establishment. While there were a few days ' delay in 18 accomplishing the setting up of the meeting, on January 29 , 1991 19 the record clearly indicates the Yangs and their counsel met with 20 City Attorney James Penman, John Martin and Larry Reed, 21 indicating their clear intent to fix up the motel and continue on 22 with his operation. It' s clear at this meeting the Yangs were 23 told that the City was going to revoke the Conditional Use 24 Permit, but following this meeting they didn't do so and in 25 February 1991 the Yangs contacted their contractor and began 26 working on obtaining a bid for the work of making corrections to 27 the building. In March 1991 the City refused to take the 28 -4- 1 application for the permit on a couple of occasions and finally, 2 in the first part of April 1991, Mr. John Lighthurn went with 3 them to the City to have the building permit issued. While Mr. 4 Larry Reed at first initialed the permit so that it could be 5 issued, he later talked to Mr. James Penman and then the decision 6 was not to not issue the permit. The letter admitted in evidence 7 as #15 from Mr. John Martin dated April 17, 1991 suggested the 8 City was required by law to issue the permits but they didn't do 9 so and this was the first written notice to the Yangs that the 10 permit would be revoked. However, again nothing further occurred it to start the process. 12 The Yangs have introduced testimony that the 13 contractor was going to make the repairs as needed for the sum of 14 $30, 000. 00. In addition, they were going to install carpeting, 15 replace the windows and buy furniture. of importance is that the 16 contractor fully inspected the building, finding no structural 17 defects, indicating the building was very sound and only cosmetic 18 repairs were required. Again, the City did nothing further until 19 in May 1991 the first notification of the meeting of the Building Commission was set for June 30, 1991 to consider the revocation 20 21 of the permit. Due to the failure of the Commission to either 22 ave a quorom or be able to take the time to consider the matter, 23 this proceeding was continued into September and over the 24 objection of the Yangs, the Board eventually set the matter for 25 hearing before a hearing officer. The Yangs have introduced testimony that this motel 26 27 requires an expenditure of $6, 000. 00 a month. The expense 28 -4a- C 0 1 occurred to date of $60, 000. 00 is at prejudice to them and the ' 2 City has not demonstrated any reason for the delay and the Yangs 3 at this point should be allowed to continue on with their 4 business enterprise. 5 III. THE CITY HAS NOT MET THEIR BURDEN OF PROOF 6 The City has contended that the business ceased to 7 be used for a motel for a period in excess of 180 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 10 existed as a motel with the business license intact through 11 December 1990 and the certificate of occupancy still in 12 existence. Further, the motel has not been altered for 13 utilization for any other purpose. While the City has tried to 14 maintain that the motel was abandoned, it's clear that the city 15 acted to not only shut down the motel but to board it up so that it couldn't be used. 16 17 Additionally, the point is very clear that as to the 18 Yangs, they were not in a position to make the repairs until such 19 time as they had a right to occupy the property in January 1991 20 when they obtained the title to the building through their ) 21 foreclosure process. They certainly never abandoned this 22 building as is demonstrated by their immediately calling the City 23 and arranging the meeting with the City Attorney that occurred on 241 January 29 , 1991. This is further demonstrated by their attempt 251 to obtain their building permit when the City lagged in 261 presenting any hearings and in the attempts of Mr. Yang to occupy 27 the property. Further, the Yangs were prejudiced because the 28 -5- I 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 8 that the property has "willingly been vacant" for more than 180 9 days and, therefore, is no longer considered a legally non- 10 conforming use as is set forth in San Bernardino Municipal Code 11 19 . 66. 040. The City cannot demonstrate that the building had a 12 use which was discontinued for a period of 180 days as it's 13 always continued to be a motel. Further, had the Yangs been 14 properly notified as to the decision of the BBC they would have 15 been in a position to better protect their interests by 16 attempting a judicial foreclosure because of "waste" which would 17 have entitled them to immediately occupancy of the premises. IV. CONDITION OF THE PROPERTY 18 19 Witnesses for the City have testified as to the 20 condition of the motel. A 91 count criminal complaint has been 21 introduced and a series of photographs presented. 22 An analysis of the material shows the following: 23 They are missing smoke detectors in 18 of the rooms. They are 24 missing electrical lights in 3 units. There was a spliced 25 electrical lighting in 2 units. There were bugs in 7 of the 26 units and ventilating equipment was not operating in an 27 additional 6 units. While unsanitary conditions were cited for 10 28 -6- o 1 units, there is no indicating the Health Department was ever 2 called for an inspection. There were missing electric covers in 3 2 rooms and an allegation of general dilapidation and maintenance 4 for 6 rooms. There was indication there was a cracked ceiling in 5 one room and deteriorating plaster in 5 other rooms and an 6 indicating the ceiling was buckling in two rooms and, 7 additionally, there was indication of the ceiling caving in in 8 two bathrooms. Other violations noted were electrical outlet not 9 maintained in two rooms, two broken windows, a broken toilet seat 10 cover, a broken shower door, two water damaged ceilings, trash 11 and beer bottles in one unit, exposed wiring in four units, 12 presumably where electric lighting had been removed and there was 13 a citation in Room 202 because a towel rack had been removed. 14 There was indication of a missing exhaust fan in one bathroom and 15 in the same unit, an allegation of some hazardous plumbing and 16 indications in two rooms that the wash basins weren't maintained. 17 There was an indication that some furniture was broken in two of 1s the rooms and one room didn't have heating and air conditioning. 19 One room was cited for having a missing toilet tank cover and an 20 unsanitary toilet seat cover and another room having a missing 21 toilet seat and another with just general improper maintenance in 22 the bathroom. 23 It is submitted that the violations al- deal with 24 rather minor repair items and when one considers the definition 25 of a dangerous building as is contained in the City Ordinance 26 15. 28 . 010, none of the 17 subsections apply and as this building) 27 is structurally sound, it can be brought to Code with nothing 28 -7- I more than cosmetic type repairs. Clearly it is not in a 2 condition that it's so bad it should be torn down. 3 V. CITY ' S EVIDENCE CONCERNING NUISANCE IS 4 INADEQUATE 5 In calling Sgt. Tull of the San Bernardino Police 6 Department, the City only demonstrated that the Golden Eagle 7 Motel is in a relatively high crime area and that Mr. Wong 8 cooperated with the police every time they talked to him 9 concerning making adjustments to keep down the level of criminal 10 activity. Other than these two points, the evidence from Sgt. it Tull in no way indicated the motel itself is a nuisance. An 12 analysis of the 76 police contact reports indicate the City 13 merely pulled out contacts with either victims or alleged 14 criminals for being in the area of this motel and in no way 15 suggested that the management of the motel was operating the 16 premises in such a condition so as to constitute a nuisance as 17 would be required to shut down the motel for these reasons and as indicated by Larry Reed in his testimony that these policed 1s reports were not even collected until January 1991, they 19 20 certainly had no bearing on the City' s actions herein. VI. ZONING 21 The Yangs contend that the motel has always been 221 231 zoned as CR-2 which is the appropriate zoning for a motel. The 24 application for the certificate of occupancy as prepared by the 25 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 ! 26 27 would exclude the motel as being in the CR-2 zone as the 28 -e- p O 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 11 appears the City is contending that the demarcation line between 12 CR-2 and RMH lies along the western property line of the Golden 13 Eagle Motel. What' s so strange is the entire area of the motel 14 is surrounded by CR-2 zoning and it appears the City has provided 15 for an RMH zone for a couple of existing buildings which house 16 senior citizens. 17 It seems apparent the City has not considered the 18 economic issues involved. The evidence is undisputed that the 19 Yangs sold the property in 1989 for the sum of $980, 000.00 and 20 the property was thereafter sole for $1, 050, 000. 00. There is no 21 evidence to suggest this sum is not the fair market value of the 22 property. Evidence from the Yangs further indicates that vacant 23 land without the building in this area would at most be worth 24 $200, 000. 00, but in view of the fact the property is . 48 acres in 25 size and the evidence demonstrates that for RHM zoning this is of 26 insufficient size, it is submitted that the City's position would 27 put this property in a classification as being valueless for the 28 -9- I immediate future. 2 Further, while the City has maintained the owners 3 can do what they want to with the property, evidence introduced 4 demonstrates that the City, after assisting in an analysis as 5 what use the motel can have, has concluded they can't find any 6 use for it that would comply with the City ordinances. They 7 haven't suggested to the hearing officer any use which is 8 compatible with zoning and it appears that their attempt has been 9 to zone this property right off the face of the earth. It seems 10 inconceivable that this is any kind of a fair or appropriate 11 result when examining the map of the City's general plan which 12 shows motels all over the area as the most prevalent business in 13 the area. As is indicated in the exhibit demonstrating the 14 Budget Motel, Royal, Sahara, Super 8, Best Western, Villa Viejo, 15 Via Bernadine, Desert Inn, Super 7 and Sunset all exist within two blocks of the subject property. 16 17 VII. POLITICAL MOTIVATION 18 At the onset, the Yangs have maintained that the 19 City has set upon the program of eliminating the motels from the 20 downtown area. While the hearing officer declined to require 21 James Penman to appear at the hearing, a statement written by him 22 as published in the Sun newspaper would indicate that the Code 23 violations were the method that the City has hit upon to make 24 this change. Larry Reed indicated that the directions came to 25 him to target the motels in March 1990. 26 It is not suggested that the City doesn't have the 27 right to make their plan for the best city possible. It is 28 -10- C Q 1 to get rid of the motel without the City compensating the owners 2 for same and every avenue the City seems to be using at this 3 point is highly suspect and clearly an attempt to mask the real 4 issues involved. 5 It is respectfully submitted that the hearing 6 officer should conclude that the conditional use permit is not to 7 be revoked. The permit itself has no conditions attached to it 8 and, further, the City' s last ditch attempt to claim there are 9 more motel units than allowed by the permit, is a fabrication as 10 this is a 34 unit motel which should be allowed operating status. 11 Respectfully submitted, 12 SPRAGUE, TOMLINSON AND NYDAM 13 Kenneth W. Nydam 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- I I Sprague, Tomlinson and Nydam (SPACE BELOW FOR F712NG STAMP ONLY) 1 AOarrm at L.. 2 290 North D Street. Suite 807 San Bernardino, California 92401 3 Telephone: (714) 888-1000 Faesimde: (714) 888-6601 4 5 Attorneys for Hong Wen Yang 6 7 8 CITY OF SAN BERNARDINO ) POINTS AND AUTHORITIES RE CLAIMED ABANDONMENT 9 vs. ) OF PROPERTY 10 HONG WEN YANG ) 1 11 I. The City has asserted that the use of the motel 12 has been abandoned and the property, therefore, having been 13 abandoned for a period of 180 days, no longer is entitled to 14 their conditional use permit as the zoning changed in 1988 and, 15 therefore, they are entitled to revoke the conditional use 16 permit. . 17 First of all, it is suggested that the use of the 18 language 11conditional use permit" is misleading. The Yangs have 1 19 submitted a copy of the permit issued in 1962 and there are no 20 conditions other than that this be operated as a motel and no 21 conditions were imposed in the permit. There, therefore, can be 22 no ent made that the conditional use argum permit has been 23 violated because of the failure to comply with certain 24 conditions. 25 The argument the City makes concerning the 26 abandonment is not supported by the evidence. Clearly the City, 27 agents,through their a posted notices on this g g p property is June i 28 -1- 0 0 1 1990, copies of which notices are in the record, indicating these 2 notices stated "Notice to Vacate". These notices specifically 3 stated that the units in the motel were not to be operated until 4 repairs had been made and tenants were no longer allowed to 5 occupy the rooms. By this action, the City caused the property to 6 be vacated and the tenants there were in the property were 7 removed. This does not demonstrate any voluntary abandonment and 8 the City's claim that they found the motel at some point 9 unoccupied with no manager on the premises, does not support this 10 position when they, that being the City, caused this result. 11 Further, there is no demonstration this motel was 12 ever put to any other use and the use was not abandoned. The 13 motel continued to have a certificate of occupancy which is still 14 valid. This was issued by the City of San Bernardino. Also, the 15 city license was in effect and was not suspended and continued as 16 long as the fees had been paid up through December 1990. 17 Specifically, the Yangs are able to cite a case 18 which is exactly on point. City of Fontana v. Atkinson (1963) 19 212 CA 2d 499 clearly states that when a public entity has taken 20 steps to require repairs or alteration of property and the 21 property ceases to be utilized because of the action of the 22 municipality, there is no demonstration of abandonment and when 23 the property is then repaired, it again can be utilized for the 24 very same purpose. The court very specifically indicated the 25 reason for their finding was the action of the municipality in 26 requiring the repairs. That is exactly what happened in the 27 instant case. There is no indication in the Code or anywhere 28 -2- p 4 1 else as to the time frame in which repairs need to be made. The 2 court in the city of Fontana case supra, specifically stated that 3 the more shutting down of the operation for purposes of makino 4 repairs, even though it exceeds 180 days, does not constitute an abandonment. 5 6 For this reason, the City's argument concerning the 180 day requirement is not meritorious. 7 8 Respectfully submitted, SPRAGUE, TOMLINSON AND NYDAM 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- © O Sprague, Tomlinson and Nydam (SPACE BELOW FOR FILING STAMP ONLY) 1 Alto...vs at La. ,2 290 North D Street, Suite 807 San Bernardino. California 92401 3 Telephone: (714) 888-1000 Facsimile: 1714) 888-6601 4 5 Attomeye for Hong Wen Yang 6 7 8 CITY OF SAN BERNARDINO ) POINTS AND AUTHORITIES RE 9 vs. ) CONSTITUTIONAL ISSUES 10 HONG WEN YANG ) 11 The City of San Bernardino has maintained that the 12 conditional use permit for the Golden Eagle Motel located at 668 13 West Fifth Street, San Bernardino, California, should be revoked, 14 in part because they allege the zoning for the lot on which the 15 Golden Eagle Motel is located no longer is in a CR-2 zone and it, 16 therefore, it a non-conforming use and certain City ordinances 17 concerning non-conforming uses now apply. Without conceding this 18 fact, a remaining issue to determine is the unconstitutional 19 taking of private property by ordinances and actions of the City. 20 Evidence introduced demonstrates that the Yangs sold 21 the business in 1989 for the sum of $980, 000. 00, that later in 22 the same year the premises were sold for $1, 050, 000. 00, 23 indicating with the very best evidence available that the 24 property had this value. Evidence was also introduced that if 25 the building is no longer viable, that vacant land at this site 26 is worth around $200, 000. 00, particularly in view of the fact 27 there would be costs in removing the building. The economic loss 28 -1- 0 0 1 to the parties that are caught with this process the City is 2 undertaking would demonstrate a loss to the parties herein of 3 some $700, 000.00 to 800, 000. 00 or some 70-80$ of the value of the 4 property. 5 Basically, there is then a demonstration of the need 6 "to do equity" which means that the parties are entitled to 7 resort to a sense of fairness. 8 For a city to merely assert that a continuance of a 9 non-conforming use is not allowed becomes very doubtful from a 10 standpoint of the constitutionality of their basically taking the 11 property is the termination of the use is eminent. San Dieco v. 12 McClureken (1959) 37 Cal 2d 683 . 13 Immediate termination of a non-conforming building 14 or structure is improper. Jones v. Los Anceles (1930) 211 Cal. 15 304 . Los Altos v. Silvev (1962) 206 Cal 2d 606. Finstein v. San Bernardino (1957) 147 CA 2d 549. McCaslin v. Monterey Park 16 17 (1958) 163 CA 2d 339 . 18 The courts have found that the prejudice to the 19 property owners is a factor that may disallow the action of the 20 governmental entity. In People v Department of Housing and 21 Ccmmunity Development (1975) 45 CA 3d 185, the court specifically 22 held that where there was a $40, 000.00 amount spent by an owner, 23 the municipality was precluded from taking action that would wipe 24 out that type of investment. Particularly in view of reviewing a 25 map wherein it' s indicated that the south side of Fifth Street is 26 zoned for motel use and a very small segment north of Fifth 27 Street has been isolated for high density housing, the City's 28 -2- p 4 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 Kenneth W. Nydam 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- C 0 Sprague, Tomlinson and Nydam SPACE BELOW FOR FILING STAMP ONLY) 1 Auomi,,, at Law 190 North D Street. Suite 807 2 San Bernardino, California 92401 3 Telephont. (7141 888-1000 Facsimile: 1-14) 888-6601 4 5 Attorneys for Hong Wen Yang 6 7 B CITY OF SAN BERNARDINO ) REVOCATION OF PERMIT ON BASIS OF NUISANCE 9 Vs. ) 10 HONG WEN YANG ) 11 The City, as part of the proceeding to declare 12 the permit revoked, has alleged that because the property 13 constituted a nuisance the permit should be revoked. In 14 support of this proposition, they have cited to the hearing 15 officers the San Bernardino City Code Section 15. 020. 16 The City o y then proceeded present evidence as 17 to the condition of the building by the use of photographs, 18 testimony of Danny Nofo, testimony of Deborah Daniels and, 19 for some reason, testimony from Sgt. Tull of the San 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 i 25 police control than does the Golden Eagle and, further, that 261 the operator of the Golden Eagle Motel always took steps to 27 correct what problems the City Police Department brought to 28 I 0 0 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'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- C 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 i 12 Sgt. Tull and the building clearly does not constitute a 13 dangerous premises. I 14 Respectfully submitted, 15 SPRAGUE, TOMLINSON AND NYDAM 16 17 Kenneth W. Nydam 18 19 20 21 22 23 24 25 26 27 28 -3- A Mayor and Common Council q c•• __ Citq of San Bernardino 7rii" North D Street %2 - l y ^!� Sari Bernardino, CA. March 19, 1992 Reference: Revocation of Conditional Use "rmlt !'10. 162. Goiden Eagle Hotel 666 `rn' Fifth !'treet !?ear Mat4or and Council Memoers. "i P1erCh lr, i992, the Ciu13 nearing offic?r, Mr. Fred 'Wilson, Assistant City Adrrimstrator, determined that !.he apo e reference conditional use permit has been exercised in a riianner contrary to the conditions of sucn permit, and in violation of applicaole licenses, permits, regulations, laws or ordinances. etc. . Further, the nearing officer determined that the motel's legal non-c:onforminq use had lapsed and, therefore, the motel would not be allowed to reopen until the Citu grants a General Plan land use change. By way of this letter we are appealing the nearing of flcer's decisions in the matter of the Revocation of Conditional Use Perrin? No. 262 and request that this matter he heard to the i`A_VO' ?Y•1 i= tTitfiiiri (Council nt t re^,.Partq scheduled meeting. Z:acr tf at a fitted By, hl Lightburn ost Office Box 1622 n ernardino, .a. 92402 MAR 19 1992 CITY OF SAN BERNARDINO DEPARTMENT OF PLANNING 6 BUILDING SERVICES c 3 3 v CL m 0 T r 0 z a o a D f 3 Z Z M m n N a\ D SSS v n v_ d a N Z = O m n Sk m n �r m x � � 0 °a 4I v o � v e 2 s D n � D � O r � N o 111 o Cl 3 ON V p A CN Z Q e 0 Sprague,Tomlinson and Nydam Attorneys at Law 290 North'D'Street•Suim 807•San Bernardino,California 92401 -(909)888-1000 Mix Sranford Tomlinson•Kmnuh W.Nydam C.Keith Sprague,a Law Corporanon Facsimile: (909)888-6601 April 19, 1993 Mr. Henry Empeno office of City Attorney 300 North D Street San Bernardino, Ca. 92401 Re: Golden Eagle Motel Conditional Use Permit Occupancy Permit Dear Mr. Empeno: Previously we had agreed to continue the appeal of the revocation of the Conditional Use Permit which was pending before the City Council with the understanding that the Golden Eagle Motel could reopen and would be issued a permit at such time that it was repaired and a zone change was granted. On April 16, 1993, an Operator's Permit and a Business License were issued. As the motel is operating pursuant to our agreement, we request that you advise the City Council that the appeal be dismissed. While I personally appreciate the assistance you have given us in this lengthy process, my clients' are very dismayed at the two year and three month delay occasioned by this process. After being initially advised they would not be given a permit to rehabilitate the property, they were eventually given permission to do so and by October 1992 the motel had been repaired and was ready to open yet the process the City imposed was not completed for another six months, at great expense to my clients. My clients are concerned about their financial loss occasioned by this unnecessary delay. Yours very truly, SPRAGUE, TOMLINSON! AM enneth Nydam KWN/tg q 21