Here's the full video of what really happened at the San Francisco Board of Appeals, queued up to the correct starting time. KALW radio also has a story on it
What Tenderloin Housing Clinic and Randy Shaw isn't telling the public is that newly found documents have emerged that suggest that the Beach Motel was always a tourist motel since the 60's and that government bureaucracy and lost filings over the years have resulted in a zoning mess which Tenderloin Housing Clinic has been trying to capitalize on via lawsuits to convert the hotel into an permanent residential housing
The attorneys from both sides speak first and explain in detail exactly what's going on. Andrew Zacks, representing the owner, Patel, speaks first, followed by Tenderloin Housing Clinic attorney Steve Collier, followed by public comment. The entire video is 1 hour 21 minutes (queued from four hours of video)
full transcript after the jump
Monday, April 16. 2012
We will move back to item 5c.
The subject property is on judah street.
the appeal is protesting the issuance of a letter of determination to tenderloin
housing clinic on November 19,
1997, that find no legal nonconforming use of the
property as a tourist hotel has been established. At this hearing, the board
-- on April 1, 1998, the board voted to continue the matter to await action by the superior court.
This case was returned from the
college your calendar and with the consent of the party.
The President Has agreed to give
each party five minutes and we will start with the request.
>> let me explain to people.
Both sides -- five minutes is
more than a person would ordinarily get, not less.
" good evening, commissioners. I am the attorney for the request.
unlike the prior two cases , this case does present new facts.
These are new facts that
command the grant of a rehearing after these many years.
The main fact that we rely on in
requesting a rehearing is the
issuance in 2002 of a
certificate of use and a permanent to convert what the city had previously considered
to be a residential hotel to a tourist hotel.
The permit was issued after
application filed by my client from my office. After review by the department
of building inspection, and the
planning department, the
property was approved to be a 20-room tourist hotel.
Contrary to the arguments made
by the determination holder, the permit to convert that was
issued does involve a review of the planning code.
the permits specifically cannot
be issued without a determination that the proposed
use complies with the requirements of the planning code.
That can be found at section
41.15c of the san francisco administrative code.
Specific permits and certificate
that was issued to my client in 2002 was subject to both review by the planning commission and by the board of appeals.
that right was found in section 41.1 at six of the administrative code.
No appeal was filed this board in 2002.
The time to file an appeal of this particular certificate is long past.
He could have appealed that determination, tenderloin housing clinic could have appealed that determination.
the certificate and per cent
that was issued in 2002 is now final be determined that was
issued in to dozens to is now final.
This board needs to offer a rehearing.
I think the board' s inability to muster a decision shows how
difficult this case was for the boards, how complicated this question was for the board.
We think is fairly straightforward.
If you recall what occurred, it
was a motion made by commissioner to uphold the determination. That motion failed 1-4.
When a substantive motion was
made, one of the persons who
voted against it to uphold voted against the determination to overrule.
We had a person who voted no on the same issue in the same case.
Not sure why that happened. We regret that it happens.
that sense some signal to you that this is a troubling case to the board.
More importantly, it has been overtaken by events.
Case has been heavily litigated through numerous court proceedings involving but the city and the tenderloin housing clinic. The case was tried for rape
court here in san francisco -- the court -- the case was tried
for in court here in san francisco. The result in that case could be
viewed as a mixed in terms of
penalties that were awarded, the court refused to issue an injunction.
that case went up to the appellant court and the appellate court affirmed that decision. That decision is final.
The city filed a lawsuit trying to stop the operation of the property as the hotel.
Raise issues under the planning code, under the hotel ordinance.
the city abandoned that lawsuit and chose not to proceed. Here we are.
In the last 15 months, the superior court has dismissed that lawsuit.
We left with the certificate of use and the operation of the property over the last 10 years
as a tourist hotel.
There are significant other legal questions that we raised in our brief.
At the end of the day, it comes down to a question of fundamental fairness and trying
to avoid the manifest injustice.
In this particular case, allowing the kinds of inconsistencies that we see
incident -- we see in this city decision making to happen.
It had the effect of shutting
down his business after 35 years.
Allowing that to happen would send a poor message to our
i ask that you correct that injustice.
>> you represented him in the hearing that took place before this board?
>> I have represented them since 1996 in every proceeding before the city.
>> to make something clear, when
there is an lod, it is not a hearing.
Someone requests a letter of determination, that is not a hearing. >> correct.
The only hearing is when an aggrieved party files an appeal to this body.
i suspect the question May go to the question of whether advice was given by the city attorney' s office.
>> you can go wherever you want to go.
I am trying to get somewhere.
>> there was no hearing when it was issued. There was a request for information.
the information that we obtained determined that the determination was wrong.
It was sitting in the planning department' s files.
We did not even know about it. >> you might be answering the next question.
It was going to go towards why were you on able before this
demonstrate that this
business had been operating as a
tourist hotel since 1957?
>> the city did not bother to look at its zoning file.
This happened in a 30-day period. We were in court with the tenderloin housing clinic. We were defending ourselves against a whole array of claims.
By the end of the day, at those
records turned up in discovery in the litigation with the city.
Could we have found it? Perhaps I should have been more diligent.
The zoning administrator, when he issues a decision that was
shut down a small business an
intact family, should have looked at is on file. >> you are going beyond the question.
The next question has to do
with -- never mind, I will wait.
>> I very much appreciate your time.
>> I know you like cases that span many years.
the certificates of use that
was the principal part of your
President -- presentation, you
cited the section that talks
about what is involved in that .
In this specific case, it in the
issuance of this certificate, what review was there? >> I am not certain exactly how much review occurred.
I do know that I would be very surprised if the city attorney' s office did not have a look at it.
I do not believe whether there was a planning department review of that determination.
>> there is no categories where there are signatures required?
>> the application does have a procedure. It should. It should.
The code itself requires that a
review and requires that
approval in order for the permit to issue. i think that is fine on now.
This determination is not final,
which creates two competing decisions by the city.
>> even though this hotel -- hotel, motel, which is it? >> motel.
>> it has operated as a motel
ever since then, it was never a residential -- >> that is correct.
>> some procedure in order to
satisfy some administrative need
of the courts or the planning department?
>> involves the effort to trump the requirement of the administrative code.
The property had to be withdrawn from the residential market.
I do not believe you will see
any names, no evictions, nobody
was displaced from the property when that happens. I do not believe there is any
evidence of any substantial residential use. Of course, people do live in motels.
This property has been operating commercially since day one.
There was a mistake made.
i mean, the form was sent to the wrong place. It never got returned.
When you ever owned the property
before my client, the form never
got returned to say, no, we are not a residential hotel.
By default, at this property was classified as a residential hotel.
we reminded that with our litigation.
---- we remedied that with our litigation.
I hope this board does the right
thing and perhaps this inequity.
>> not that I want you to lead me where this court might I to
go, but with that represent the fact that it was never anything
but a tourist hotel ?
Without lead one to think that -- with that lead one to think that it should have been
overturned based on manifest injustice? >> it should have been overturned based on the facts in front of the board.
Four of the commissioners refused to uphold this.
>> you did not try to have it
>> we are here now doing that.
>> when I went back before the board in 1997, that was not the plea?
>> the plea was error of law.
The facts did not support the determination. That is the only facts in this record.
I do not know if you' ve had a chance to look at it. If you look at the rapid
, there are no facts of this hotel
was -- did this property was ever operated as a residential hotel because it was not.
>> there is no record when it was constructed and those permits were issued that said it was being billed as a hotel?
>> it is a motel, they are in the records, yes. There are also fell and broke records.
-- there are also found a book records. This is a motel.
>> y do you think a the zoning administrator did not take this into the account?
>> they were involved with litigation with a property owner.
The determination was part of a litigation strategy.
The city attorney was prosecuting that litigation and appeared here in front of this board and gave a presentation in an effort to get that determination of put.
it was being done as a part of a litigation strategy that failed.
>> is the documentation -- did it show up in the rehearing process?
>> we did not have any access to it.
Thank you very much, commissioners. >> I have a question.
I am looking at your papers on page 6.
It seems to me that commissioner
fung was asking questions, the
focus of your view, the the certificate of use, right?
>> it qualifies for a rehearing under your specific role.
It was a new fact before the board. >> ok.
The second paragraph under 0.3,
page 6, 2002 certificate
postdates 1998 determination. Therefore, to the extent they are in conflict, the certificate should be deemed to supersede the determination.
Is there any authority for that?
>> when you have a final
administrative decision, not
appealed, a permanent trumps and non-final one.
That is a straight forward doctrine.
I hope that is correct.
That doctrine comes from traditional law.
>> I do not see any citations of any law, that is why I am asking you. >> I think it is a very
straightforward and --
>> it is a case involving the
I would be happy to get you a citation on that.
Where there is an appellate
process, to challenge something, that process is not taken
advantage of by somebody wants to come back later and challenges.
There has to be some finality of a permanent.
>> the basis, related to the desire bite your client to dig out of the business of right -- by your client she gets out of the business of renting?
wasn' t related to evidence
submitted with respect?
>> that happened years earlier.
>> that was the basis.
>> the certificate had to be issued.
>> that is what you submitted in support, correct?
>> one of several things I submitted.
>> I have nothing further for now. >> thank you.
>> good evening, commissioners.
On behalf of the tenderloin housing clinic.
i want to address -- I would like to touch on one matter.
If I could have it on the screen. .
I want to clarify this flier
went out, apparently sending misinformation about our
involvement in trying to convert this particular hotel.
As stated, in two rooms for homeless people, welfare recipients, and felons.
We have had no involvement in any effort to house homeless people at the hotel.
we have not had any involvement
with the beach motel since it was resolved in 1998.
Mike understanding is that the mayor' s office has no designs on this hotel. I want to make that very clear.
We did not get involved with
this process until I got a call saying the board wants to resolve this matter.
it has been pending on your calendar for many years.
There will be some public testimony that somehow we will force this to be a homeless shelter. That is not the case.
That could continue as
apartments, the restriction on
renting houses -- has expired .
There is no move to try to turn this into any homeless shelter or housing for homeless people.
the problem with the argument is
that the face of the certificate
of use issued in 2002 the allies eight. It specifically states that the
designation does not supersede the requirements of any other city code.
those designations -- is only issued because the entire property has been withdrawn from residential use.
That is the reason the certificate of use was issued.
The court of appeals says the hotel owner does not have to
comply with the provisions of
the hotel ordinance.
Both the city and Mr. Patel agreed to be bound.
It specifically said it has nothing to do with the zone or the planning code and the court of appeals said their decision has nothing to do with the zoning and planning code.
Also, the courts of appeal have
routinely stated that the invocation does not give the
property owner are right to do it yourself zoning. Ok?
They cannot invoke it and not
complied with zoning provisions
that uniformly applied to this property and other properties in the neighborhood and get some other the subsequent use of the
property other than residential
housing, residential rental housing, excuse me.
They do not get a right to surpass the planning code provisions that generally applied to the neighborhood.
Every single court of appeal
decision has confirmed that. It is and the statute itself.
All this appeal is about is
whether the zoning administrator determination must correct.
And it clearly was because
under standard nonconforming
law, it is up to the property
owner to show evidence of the nonconforming use.
All the evidence that is evidence that was cut and was presented at the initial hearing.
As you can tell from reading the transcripts, it was a full and fair hearing.
No additional evidence was
provided that convinced this
body to overturn the zoning administrator' s decision. Therefore, it is upheld.
He is also incorrect but somehow
the cou -- designing administrators determination was final at the time this board failed to uphold that. It was final.
The request for rehearing does not suspend the determination.
It was a final decision.
Even if it were to be determined
to apply only -- to apply it to limit the planning codes
provisions, which it does not,
even if it was, it was not prior
to this zoning administrator' s determination. Therefore, it is not binding on this board. >> let' s deal with the first thing you started with. The flier. what was the original reason
that they got involved with this to begin with?
>> we have been interested in
maintaining the supply of residential hotels in san francisco. If you know the history of residential hotels, you know there was a tremendous amount of demolition and removal of residential hotels back in the
tenderloin back in the late 1970' s and early 1980' s.
That is why the ordinance was enacted.
The tenderloin housing clinic
was one of the chief sponsors, one of the major organizations
pushing for the preservation of residential hotels.
That has been our historic mission.
We have uniformly monitored
residential hotels to make sure they are in compliance. Since the beach hotel had a 20
residential certificate of use,
and zero tourist use, we noted
that it was
the owner agreed and signed a stipulation.
That was appealed, lost at the
court of appeals >> you have pretty much answer that question.
The original intent was to
maintain whatever housing was
there even though it has been testified to that there was no housing.
>> the report said that there was residential tenants in the hotel.
>> you would dispute that it ever operated as a hotel?
the reason to do that was to preserve what it considered to
be housing was the same next -- the reason to do that was to
deserve as considered housing or
was this a mischaracterized use?
>> we have never seen it characterized at the time that the zoning change.
We requested the lod to see whether this was a lawful
>> you know where I am going.
i am much more concerned about the legal finery are around this. Was it really a hotel that someone had not done proper
paper work on and so therefore
it is classified as residential when in fact as a matter of operation, it was actually a
>> because the bird and -- >> yes, I know.
-- because of the burden .
>> yes, I know.
>> there was a residential use
as well as a tourist to use
i can assure you that on the screen.
>> they were able to operate as
residential and they were required to.
>> yes, this would be under the
hotel convergence use.
>> so, to protect their own interest, they were possibly lied about the use in order to
>> or, they could be operating as a residential mixed use hotel, of which there are many
in san francisco.
>> they are under violation because they' re not allowed to operate as a hotel? >> correct.
>> I will show you some random
the report to the city and and
the data that is.
The 15th, 1985, this has two residential units.
>> they are making a declaration against their own interest.
>> you can read by the week for a number of weeks.
>> any other questions? Thank you.
>> Mr. Sanchez.
>> thank you, good afternoon.
I am coming to this with fresh chives.
I was not the zoning administrator when the letter of determination was issued but I
did review the materials and tried to compile a history of facts.
We can go through what May have
happened and the background.
It appears that the permit in 1957 to build a building that
would contain 12 -- 1012 in units. They did convert that to a motel
use and as appellant showed,
this shows minutes from a planning commission meeting
which was in 1957, 1958.
As reported, a letter from the property owners that they wanted
to convert this to a motel use.
The motel use was converted.
The records from 1960-61 show this as a motel.
there is one dwelling unit associated with it.
That to continue for many years.
>> was this ever occupied as the residential use?
>> no, it does not appear that
it would have been occupied as residential. Maybe they had received a
permit, been granted a permit, and then decided to change their mind.
we have a survey that shows this as a motel. How long are they doing this for? One night? Seven nights?
Is probably is a feel
fluctuation and variation in the construction and operation.
1979 is a critical year, that is the hotel conversion and
demolition ordinance which said that if you are a hotel that has
residential use and was looking
at occupancy of 32 days or more , that would be covered under
this conversion ordinance.
Itseems that they did have at
that time, I did review the same
records that was presented and the department of housing inspection services. There is variation.
it could be 17 units or a variation in the 80' s.
In 1997, the level of the termination says that this is a
residential hotel, which would be correct.
Based upon our records, looking
at the 1979
hco, this was continue at the call of the chair in 1998.
This almost came back and this
request was on the agenda in 2002, 2006.
Now, it is being heard by the board.
the residential units, whether or not they were there, they got
out of the residential rental game.
2002, there was a permit to convert. We don' t have any records that
indicate that this was done.
If you look at the note on
there, it says that it is really
addressing just chapter 41 of the administrative code, not
dealing with the planning code compliance issues.
What we have here is no longer a
residential hotel . what use is it?
This is under a permit that was not available at the time.
That does seem to be new information.
A little bit about the zoning
history, 1957, up to 1960, this
would have been located in the commercial district.
we had about six or seven zoning
districts in the city that was commercial.
In 1960, it resound to r-four.
This allowed any nonconforming motel to maintain, carry on as
they were panther 1978, there
was rezoning to the residential
district prohibiting any hotels
of more tha and it can' t do away with the ability
for that motel to continue operating. There would be the expiration for that and that would be in 2007.
The nearest commercial district
is a block away and it also
prohibits tourist hotels.
That is the presentation, I' m available for any questions should there be any.
>> and Mr. Zoning administrator, a couple of questions. Let' s go back to the question
that I asked the appellant, this certificate of use process, can you explain in a
little further detail for us what is involved in that and
specifically what kind of review
then correlates to the issuance
>> yes, I have limited knowledge of that.
that is within the department
of building inspection services.
That is different .
I did speak with the head of housing services and we did discuss the process a little bit. Typically, we are notified of
these and we respond to them but I don' t have any record of us responding to this. I' m understand there was active litigation around this at that
time and I was not personally involved in this and I cannot speak to any of the litigation issues that might have been
going on with this back in 2002 but it is my understanding that
we do typically review the permit. >> ok.
Perhaps this is not necessarily
germain to the decision making
tonight but should it go into a rehearing process, there will be
questions relating to some of
the previous department actions
related to termination clauses, related to the use, things like
that that popped out when I was revealing some of the information.
would you share any thoughts on this particular case?
>> well, the big question is,
now that it is no longer a
residential, they can go to any
member of permitted uses within
the zoning district, be this the apartments, the density here lot
allows one unit per 1000 square feet. There are requirements for parking and open space.
Open space come other things
like that need to be satisfied.
So, there are other options within the current zoning.
The question that should this be
before the board, I think that would be one of the questions that the board would be able to answer.
what is the produce? Should this be reverted back to
the previous nonconforming tourist hotel use?
That is something that could be within the purview of this board
to decide, given that that is what it had been in the past.
Because of the unique nature of the ellis act, does that mean that they can go back to that?
That is a question that the board has the jurisdiction to answer.
>> it does not really matter of brother or not we had grant and the rehearing and some determination was made that they could become apartments or
become a residential motel,
which they claim they are now.
If they wanted to do 10 apartments, would they have to go through -- >> not at all.
Right now, the question is
exactly what is the current use.
If we were just to classify the
current use as group housing, and they wanted them to have that be dwelling units, they could do that without any kind
of dwelling unit -- that would
be required now.
>> does the department others on the administrator have the direction for this board as to how we should go in terms of granting or not granting a rehearing?
>> the bourse typical rules are
that there are new information manifesting, this was heard by
the board in 1998.
There is argument that there is new information which I believe
is pretty slim given what has happened past 14 years.
>> of the new information, it
does that even have -- given what you have stated on the face
of it alone, it has no bearing.
Does it have any impact on planning and zoning, which is what the -- is all about, right?
to what extent is that worth
>> we' re looking at the
residential hotel aspect of it.
That is not the case because of the 2002 decision. In some ways, you could argue
that this is moved because the primary question is is this a residential hotel?
That would be answered by the 2002 action.
That kind of overrides the aspect of the lod.
The core question was, whether or not it was a residential hotel.
You did not submit any written materials for this rehearing? >> no, I apologize for that.
I was looking at it on the basis
of the facts.
is seem like there was no information that would justify --
>> no greater, right? >> well, not on this one.
I believe that it would be well handled by this board.
>> if you were the zoning administrator in 1997, would you have made the same determination that was made given what you have seen in the files?
>> I think perhaps I would have
come to the same conclusion but
I would have arrived at it differently.
I think that there are facts to establish that there had
originally been a tourist hotel but I do believe that there is also substantial evidence that
shows that it did change into a
residential hotel over time. >> prior to 1960.
>> not prior to 1960 but prior to at least 1979.
There is also the question of a nonconforming use and they are
moving away from that to another
use which is widely permitted.
Group housing is principally permitted in the district at this density.
They move more closely towards a permitted use category.
This changes from year to year.
There are numbers that show maybe 17 one-year, three the next, 17 the next.
There is a variation and I am not able to be definitive on anything.
We have an appeal, we have
public notice, we have hearings at the board of appeals. maybe the board of appeals is better equipped to deal with something like this. >> thank you.
>> it looks like -- would like to be able to speak again.
We will have public testimony
and then we will grant with everyone' s intelligence, both sides.
We will deviate from our normal
course and we will grant each
side two or three minutes.
We are going to restrict, and I
will explain why, we will restrict public testimony to one minute because what we' re dealing with is a very narrow issue. We' re not dealing whether this
should be a motel or that it is
going to be sro.
We are dealing with whether this board should grant a rehearing of those issues.
We are not deciding those issues this evening.
you are free to talk that anything, you could come up here
and talk about the giants, but I
would prefer that you stick to
what is at issue and that is a
request for a rehearing and that narrow issue. You don' t need to repeat what someone else said. we' re going to lead off with everyone else' s permission the
supervisor to who has patiently waited to address this board.
>> I think we have a backlog
across the city so I appreciate it. This is not a question whether it should be tourism or residential use, this is about whether we should grant a rehearing.
Based on the conversation we
have had, there is a standing for that. This has been out there since the 1990' s. the board could not muster the
votes to deny a rehearing.
14 years later, had there been evidence of a legitimate case for that.
The minister believes that there is that information.
This is an entirely new body that should hear this case and the merits of it.
The zoning administrator has explained this.
They would really benefit from the public process.
In addition, all of our records
have shown that this is a tourist hotel.
I think that it wants this board to really take a look at it with fresh eyes and resolve this issue once and for all.
>> can I have a show of hands on how many people that like to speak on this item?
>> if people would like to, you
can line up along the far wall to be the next to speak.
>> my name is daniel donnelly.
This is a neighborhood that has starbucks and we have schools in
the area, this is a business
there are street cars nearby, there are other hotels and
motels in the area and they are
residential areas also.
we have schools in the area of there is no reason to have this in the sunset district.
King street has and the
buildings, the candlestick park
building -- area has and the buildings. They can put this anywhere in the city, why the sunset district?
>> thank you. Next speaker. Please step forward.
>> thank you for letting me speak, commissioners.
I would like to show a support for a rehearing and this might encourage your decision. >> I appreciate that suggestion.
>> please state your name.
>> daniel stricter, I owned a bar in the building.
it is pittsburgh' s bar.
>> is there any other public comment?
>> I am the son and, of the gentleman that this case is about.
>> as a member of his family, your time is included with the attorney.
>> any other public comment?
>> I just want to make sure, there are a lot of people that
showed up and anyone does not
want to make this meeting any longer. We just all wanted to show up
and say that we are here because
we do want it to be granted for
this to go through and be seen through to the end.
>> your name? >> ricks' now
Collects any other public comment?
>> any other public comment?
Seeing none, we will start with rebuttal.
>> does anyone have any feelings about this? It seems like this is a little bit complex.
I should be able to do this less.
I will focus very specifically on the conclusive effect of the
certificate of use.
the hotel conversion ordinance, the code speaks to this issue.
It speaks to the requirement before the certificate of use can be issued that that
particular use proposed by the application complies with the planning code.
I brought my ministry of code with me.
the provision that I' m talking about, there is a whole scheme that set forth in the ordinance that deals with how we deal with
applications for a permit to convert.
The specific session -- section
is 41.14, 41.15, 41.16 of the do not trigger code.
-- of the administrator code .
"a permit to convert shall be
denied by the director of the apartment building inspection if the proposed conversion or
the use to which the unit would be converted is not permitted.
This certificate that I heavily rely on, could not have been
issued if the use was not allowed under the city and the planning code. Whatever words are written on it, that does not change the
requirements and the law. If there was an error in the
issuance of this, this is a process to undo that.
They had a right to come here and appeal that in 2002.
When they did not do that, it became final. People need to be able to rely
on the finality of permits and not worry that 10 years later, they will have to be dealing
with some argume this does not have the effect that
the law says it has. The effect is to allow a tourist hotel in this location under
both of the initiative code and the planning codes. That is the main legal point of why we are here.
I want to deal with some of the records which reported to, which by the way, I don'
t have and and when you talk about a residential units, you are talking about the use by the
weak, not a permanent residence,
not the use by the occupancy on
the long term basis tend to the transient hotel taxes are paid on that.
that is a commercial use.
The weekly use which is
technically a residential use, a commercial use.
I am asking to have this be heard.
>> counselor, if you feel that
the 2002 is final, why do you need this hearing?
>> I am concerned how the tenderloin housing and it would use its determination and some sort of litigation with my clients. That determination is out there. it will become final.
Now, we will have two competing decisions coming out of the city
under which one would argue, and I am sure the clinic will argue this.
They make a lot of ordinances and many cases.
they have argued that this does not comply with the zoning because this somehow tromps the certificate of use.
You folks should clarify this.
You should make these decisions makes sense but it does not make any sense right now.
>> it should be clarified the
possibility that this could
become a sro?
>> I am not sure I could do that tonight but as part of an overall decision.
I regret the fire.
perhaps vice have some
responsibility for it but it is the issue. I' m here talking about the law.
You are a cause I judicial body. I know that you' re committed to
making a correct judicial
decision and this truncated process is not the best way to do it.
>> I was surprised when some person voted no on the same issue. It did not make any sense and you should clarify.
thank you, members of the board.
The ultimate issue
, it does the 2002 certificates of use create
any new fact that justifies every hearing? I do not think it does.
It does not apply to the planning code or any other zoning laws.
The invocation of the ellis act does not give the owner the right to rezone the property.
because of that, the new
certificate of use, because they
filed the ellis act and withdrawn the property, and that was the only evidence presented
to support the certificate of use.
Because of that reason, and because of the court of appeals
decision, it is not determining anything under the planning
code, the issue becomes, what is the fact that merits rearing?
The certificate of -- merits
it is not a fact that would change the zoning.
The fact they have lessened the nonconforming use during the 1980' s to have more residential
use indicates to me that this is
not a 100% tourist hotel.
lastly, it would still have to
be terminated under the nonconforming use provisions of the planning code. It would have had to be
terminated by 2007 unless they
received a certificate -- a conditional use authorization
from the planning code based on
an application filed before 2007. which they did not do.
There is no reason to grant rehearing, it because it will
not get any different result as
far as whether the hotel is in compliance with the planning code.
I do not think the certificate
of use has any percussive effect
because it was not prior in time to the zoning administrator' s determination.
The application to convert was
clearly based on the hotel conversion ordinance being pre- empted. The court of appeals specifically said the city cannot impose the hotel
conversion ordinance requirements on the hotel.
That is why the certificate was
changed to permit the hotel
conversion ordinance on a -- 200
i do not think it is a new fact that changes the zoning.
>> I do have a question.
most of the reasons he gave had
to do with hurdles that would
have to be over, by the request for rehearing.
That would be things that would
be harmful to the request.
a side of the fact that you have to prepare briefs and appear
before us --
>> I think we have a long period
of time in which this hotel has continued to operate in
violation of the determination under the planning code. There' s been no determination by any city agency that he is exempt from that.
It is just delaying the process further and to lead the city' s
position -- deleading that the city' s position that it is not a
lawful nonconforming use.
There is no other hardships to -- there is no particular
hardship to the letter of determination holder. >> thank you, sir.
>> Mr. Sanchez?
>> regarding the nonconforming
termination, it has been
department practice, they can
still go to the planning commission. They did have this question pending before the board of appeals.
They didit would have been prevented from going in 2007.
They could still go to the planning commission and seek an extension of the nonconforming use. This was done several times for the bar in the same building.
first, in 1990.
They have extended hours, the operate until 2:00 A.M.
again in 2009 and finally removed that determination. That is the thing that has been nonconforming in the building.
They could still come in for a
conditional use to seek the
operation if this board finds they are in nonconforming tourist hotel.
On the permit to converge, I do
not have any records that the planning department did review that.
I do not have any indication or record that the planning department did review and authorize anything related to the permit to convert.
I think that is all the wanted to say.
>> I think it would be beneficial to us to have that
individual from a different department. >> definitely.
She was going to come this evening and I said this is just a request.
ultimately, no matter what road we go down, it is going to be back at the board of appeals. But said the board does not pursue or doesn' t allow the
rehearing, are we going to enforce on the tourist hotel?
If we do, that is something that is appealable back to this board. Someone would could request
another letter of determination and bring it back to the board of appeals.
I really appreciate the time of
all the parties involved. I feel is something that is
something best dealt with it -- dealt with the appeals process.
>> commissioners, the matter is submitted.
>> I will start.
I appreciate the briefing.
I definitely would like written at something from the zoning administrator.
he spoke so quickly, I could not retain all the information. I thought that would have been helpful.
It is clear that I am inclined
to grant -- grab the rehearing
request, especially when I
heard the letter of
determination holder suggest there would not be great harm.
>> I would concur.
on of whether there is
new information, I find the 2002 certificate of use is new information.
More important, the community deserves a resolution of this.
Perhaps, I am being optimistic,
this board can come to a resolution.
We will attempt it. We have attempted many difficult issuesin the past.
I would support a rehearing.
>> it looks as though there are no other comments.
I hope I did not cause someone
who had come here to testify not testimony -- not to testify.
It seems like most people in the room are going to get what they wanted. I hope everyone is satisfied carry [Applause]
-- I hope everyone is satisfied. [Applause]
Thank you for entertaining us tonight.
That was an interesting ping- pong game.
I move that we grant aid -- grant a rehearing.
The new facts have to do with
the 2002 certificates of use.
>> we would need a hearing date.
I would recommend something in it didn' t so the parties have time to prepare their briefs --
something in June so the parties have time to prepare their
briefs and have everyone in attendance.
>> it looks as though they might be conferring on a date.
>> what are the dates?
>> June 13 and 20.
Those are the two board meetings
>> 20 would be better.
>> up to you.
>> I am sorry, that is not a good day for me.
>> we would not have a full cadre of board members on the 20th.
>> the 13th does not work for one of the?
>> and the board is meeting on July 11 and July 25. >> you May have a new board by then. [Laughter]
there are three members that go up for reappointment or substitution.
>> the people --
>> I might be able to make the June 20. It depends when I am back in town. Maybe I can try.
I will prioritize the list. >> ok.
>> if we find out that we have
to reschedule, someone will be in touch with you all for alternate dates.
Maybe you could tomorrow send in those states anyway as the contingency.
>> you need to speak into the microphone.
>> we would like to have a full
panel of five members to hear the matter. We want to schedule on a day when everybody is here.
There is a motion to --
>> a motion to grant the rehearing request and set the meeting for June 20.
[Roll call vote]
Thank you. The vote is 5-0. the rehearing request is granted. The board' s original decision
of 1998 is set aside and the new rehearing on the merits is to and 20th. Thank you.
>> let' s take a quick break.
my apology is -- to whoever is waiting on the next case. We are taking a break.
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