HomeMy WebLinkAboutItem 2 - Memo and Draft ResolutionsCity Attorney's Office
990 Palm Street, San Luis Obispo, CA 9 3401 -3249
805.781.7140
slocity.org
May 4, 2021
TO: Administrative Review Board
FROM: Markie Jorgensen, Assistant City Attorney and Advisor to the Board
SUBJECT: Draft Resolutions for the May 11, 2021 Special Meeting of the
Administrative Review Board
Per the direction of the Board at its meeting of April 26, 2021, the attached resolutions
(Attachment #1 and Attachment #2) were drafted to uphold administrative citations #22409
and #22410 as well as #22649 and to deny the appeals of Shane Kramer on behalf of the Sub
Corporation, LTD and Square Deal Recordings and Supplies, Inc. The resolutions state the
Board's decisions including a summary of the evidence the Board relied on in making each
decision and written findings of fact and law, and include all other components required under
Municipal Code Section 1.24.130. The draft resolutions are being brought back before the
Board for further discussion and refinement, or adoption.
Should any Board Member, representative of either party, or other person have concerns with
the language of the resolution, including the findings of fact or law, or summary of evidence
relied on, those concerns may be directed to Assistant City Attorney Jorgensen for evaluation
in advance of the noticed meeting of May 11, 2021. If Assistant City Attorney Jorgensen
concludes that such concerns or proposed edits are warranted, she will submit a redline
revision of the draft resolution as agenda correspondence. There will also be opportunity for
further discussion and refinement of the resolution at the May 11, 2021 meeting.
Finally, at said meeting, the Board may specify the due date for payment of the fine as directed
by Municipal Code Section 1.24.130(A)(13) to be between ten (10) and (30) days from the
date of mailing of the decision. The resolution currently includes a due date of thirty (30) days
from mailing, but this may be shortened if the Board so desires.
RESOLUTION NO. XXX
A RESOLUTION OF THE CONSTRUCTION BOARD OF APPEALS OF THE CITY OF
SAN LUIS OBISPO, CALIFORNIA, DENYING THE APPEAL OF SHANE KRAMER, ON
BEHALF OF THE SUB CORPORATION, LTD, AND UPHOLDING ADMINISTRATIVE
CITATIONS NO. 22409 AND NO. 22410.
WHEREAS, the Construction Board of Appeals of the City of San Luis Obispo conducted
a public hearing via teleconference at 1:00 p.m. on April 26, 2021, on the appeal of Shane Kramer
of Administrative Citations 22409 and 22410 issued to the Sub Corporation, LTD, (the
"Appellant") on September 21, 2020, for violation of Municipal Code 15.40.300(B)(Prohibited
Signs) ("Administrative Citations"); and
WHEREAS, notice of said public hearing was made at the time and in the manner required
by law; and
WHEREAS, Section 1.24. 100 of the San Luis Obispo Municipal Code establishes a right
to appeal an administrative citation issued by the director; and
WHEREAS, the Construction Board of Appeals of the City of San Luis Obispo (the
"Board") duly considered all documents and information, including the Administrative Citations;
the City's staff report and accompanying presentation; the City's Agenda Correspondence, oral
argument by the City, the Appellant's appeal and subsequent letter brief; oral argument by the
Appellant's representative; all written or other evidence; and evaluation and recommendations by
staff presented at such hearings.
NOW, THEREFORE, BE IT RESOLVED by the Construction Board of Appeals of the
City of San Luis Obispo as follows:
SECTION 1. Findings. The Construction Board of Appeals finds:
1. The above statements are true.
2. The names of all people participating in the hearing and their capacity:
a. Appellant: Sub Corporation, LTD;
b. Representative of the Appellant: Shane Kramer, attorney (the "Designated
Representative");
c. City staff. Mark Amberg, Assistant City Attorney, legal advisor to City Code
Enforcement staff; Markie Jorgensen, Assistant City Attorney, legal advisor to the
Board; Rodger Maggio, Fire Marshal/Chief Building Official, Liaison to the
Board; Cassia Cocina, Code Enforcement Supervisor; and John Mezzapesa, Code
Enforcement Officer;
d. Witnesses (either for or against appellant): none.
3. The hearing was recorded by simultaneous audio and video recording, and such
recordings are in the custody of the City Clerk.
4. The Appellant or Designated Representative was present for the public hearings.
5. Pursuant to Municipal Code Section 1.24.110(E), the Board received the Administrative
Citations and supporting information (documents, exhibits, or materials prepared by city
staff) concerning the Appellant's violations of Municipal Code Section 15.40.300(B) as
prima facie evidence of the Appellant's code violations and of the facts stated in such
documents.
6. The following submissions were submitted to the record, including, but not limited to
photographs, drawings, and documents:
a. City staff report, dated March 31, 2021, and accompanying Attachments 1-19;
b. Agenda correspondence from Appellant's Designated Representative, received by
the City on April 15, 2021;
c. Agenda correspondence from Assistant City Attorney and legal advisor to City
staff, Mark Amberg, dated April 23, 2021.
7. The Board has decided to uphold the Administrative Citations issued to Appellant for
violations of Municipal Code Section 15.40.300(B).
8. The Board found the following information credible in support of its decision to uphold
the Administrative Citations and deny the appeal:
a. San Luis Obispo Municipal Code Section 15.40.300(B) prohibits "Banner signs,"
defined in relevant part as "a flexible sign including feather banners and pennants
of lightweight fabric of similar material typically supported at two or more points
and hung on a building or otherwise suspended down or across its face, or across
a public right-of-way," subject to certain exceptions.
b. On September 14, 2020, City Code Enforcement received a request for
investigation regarding two unpermitted banner signs attached to Appellant's
buildings located at 299 Higuera Street, San Luis Obispo, CA 93401, and one
banner sign attached to Appellant's buildings located at 150 Pismo Street, San
Luis Obispo, CA, 93401 (the "Properties"). Code Enforcement staff inspected
Appellant's Properties that same day and observed banner signs affixed to
Appellant's buildings in violation of San Luis Obispo Municipal Code Section
15.40.300(B). The Appellant's banner signs did not fall within any exceptions to
the banner sign prohibitions identified in Municipal Code Section 15.40.300(B).
c. The Administrative Citations, together with the attachments contained in the staff
report, admitted as prima facie evidence under Paragraph 5 above, demonstrate
that the citing code enforcement officer, personally observed the violation.
d. Appellant failed to submit any information that the violations did not occur and
failed to submit any credible information that there is a defense to the citations.
9. The due date for payment of the fine shall be thirty (30) days after the date the decision is
mailed.
SECTION 2. Action: Based on the above findings, documentation, and information
submitted in support thereof, the Construction Board of Appeals does hereby deny the appeal of
Sub Corporation, LTD, and upholds the Administrative Citations.
SECTION 3. Appeal or Review by Writ. This Resolution is the City of San Luis
Obispo's final administrative decision, under Municipal Code Section 1.24.140(A), on the
Administrative Citations. A person contesting this decision may do so in either of two ways. First,
pursuant to California Government Code Section 53069.4(b)(1), within 20 days after the service
of this Resolution, a person contesting this decision may seek review by filing an appeal to be
heard by the Superior Court of the County of San Luis Obispo. Alternatively, a person contesting
this decision may file a petition for writ with the Superior Court of the County of San Luis Obispo.
The time within which the petition must be filed, and the applicable requirements are governed by
the California Code of Civil Procedure. Either the appeal or the petition for writ filed with the
court must contain proof of service showing a copy of the appeal or petition for writ was served
upon the city clerk. The petitioner must pay the superior court the appropriate court filing fee when
the appeal or petition is filed.
Upon motion of Vice Chair Eckrich, seconded by Board Member Wiedeman, and on the
following roll call vote:
AYES: Vice Chair Eckrich, Board Member Wiedeman, Board Member Garza, Board Member
Graves, Board Member Martinez, and Chair Dilworth
NOES: None
ABSENT: Board Member Vessely
The foregoing resolution was adopted this 1 lt" day of May 2021.
Niel Dilworth, Chairperson Date of Signature
RESOLUTION NO. XXX
A RESOLUTION OF THE CONSTRUCTION BOARD OF APPEALS OF
THE CITY OF SAN LUIS OBISPO, CALIFORNIA, DENYING THE
APPEAL OF SHANE KRAMER, ON BEHALF OF SQUARE DEAL
RECORDINGS AND SUPPLIES, INC., AND UPHOLDING
ADMINISTRATIVE CITATION NO. 22649.
WHEREAS, the Construction Board of Appeals of the City of San Luis Obispo conducted
a public hearing via teleconference at 1:00 p.m. on April 26, 2021, on the appeal of Shane Kramer
of Administrative Citation No. 22649 issued to the Square Deal Recordings and Supplies, Inc. (the
"Appellant") on October 15, 2020, for violations of Municipal Code 15.02.010, California
Building Code Section 105.1 (Permit Required), and Municipal Code Section 17.36.020 (Service
Commercial (C -S) Zone) ("Administrative Citation"); and
WHEREAS, notice of said public hearing was made at the time and in the manner required
by law; and
WHEREAS, Section 1.24. 100 of the San Luis Obispo Municipal Code establishes a right
to appeal an administrative citation issued by the director; and
WHEREAS, the Construction Board of Appeals of the City of San Luis Obispo (the
"Board") duly considered all documents and information, including the Administrative Citation;
the City's staff report and accompanying presentation; the Appellant's appeal; oral argument by
the Appellant's representative; all written or other evidence; and evaluation and recommendations
by staff presented at such hearings.
NOW, THEREFORE, BE IT RESOLVED by the Construction Board of Appeals of the
City of San Luis Obispo as follows:
SECTION 1. Findings. The Construction Board of Appeals finds:
Resolution No. Page 2
1. The above statements are true.
2. The names of all people participating in the hearing and their capacity:
a. Appellant: Square Deal Recordings and Supplies, Inc.;
b. Representative of the Appellant: Shane Kramer, attorney (the "Designated
Representative");
c. City staff. Mark Amberg, Assistant City Attorney, legal advisor to City Code
Enforcement staff; Markie Jorgensen, Assistant City Attorney, legal advisor to the
Board; Rodger Maggio, Fire Marshal/Chief Building Official, liaison to the
Board; Cassia Cocina, Code Enforcement Supervisor; and John Mezzapesa, Code
Enforcement Officer;
d. Witnesses (either for or against appellant): none.
3. The hearing was recorded by simultaneous audio and video recording, and such
recordings are in the custody of the City Clerk.
4. The Appellant or Designated Representative was present for the public hearings.
5. Pursuant to Municipal Code Section 1.24.110(E), the Board received the Administrative
Citation and supporting information (documents, exhibits, or materials prepared by city
staff) concerning the Appellant's violations of San Luis Obispo Municipal Code Sections
17.36.020 and 15.02.0 10 (for violation of California Building Code Section 105.1) as
prima facie evidence of the Appellant's code violation and of the facts stated in such
documents.
6. The following submissions were submitted to the record, including, but not limited to
photographs, drawings, and documents:
a. City staff report, dated March 31, 2021, and accompanying Attachments 1-21;
b. Agenda correspondence from Appellant's Designated Representative, received
April 16, 2021;
c. Agenda correspondence from Appellant's Designated Representative, received
April 21, 2021.
7. The Board has decided to uphold the Administrative Citation issued to Appellant for
violation of Municipal Code Sections 17.36.020 and 15.02.010 (for violation of
California Building Code Section 105.1).
Resolution No.
Page 3
8. The Board found the following information credible in support of its decision to uphold
the Administrative Citation and deny the appeal:
a. San Luis Obispo Municipal Code Section 15.02.010 incorporates by reference the
California Residential Code and California Building Code into the City's
Municipal Code.
b. The 2019 California Building Code defines a "Building" as "Any structure
utilized or intended for supporting or sheltering occupancy." (California Building
Code § 202)
c. The California Building Code provides that "any owner or authorized agent who
intend to construct, enlarge, alter, repair, move, demolish or change the
occupancy of a building or structure, or to erect, install, enlarge, alter, repair,
remove, or replace any electrical, gas, mechanical or plumbing system, the
installation of which is regulated by this code, or to cause any such work to be
performed, shall first make application to the building official and obtain the
required permit." (California Building Code § 105. 1.)
d. In 2019, pursuant to the interpretive authority reserved for the City's Chief
Building Official in Section 104.1 of the California Building Code, the City
amended Section 101.2 of the California Building Code to clarify existing law
that shipping or storage containers with a floor area of over 120 square feet are
considered structures under the California Building Code, and therefore, require a
permit per the California Building Code and by extension, the City's Municipal
Code.
e. San Luis Obispo Municipal Code Section 17.36.020, Table 2-20, provides in
relevant part that within the Service Commercial Zone there is "no setback unless
adjacent to zone with minimum setback requirement, in which case the adjoining
setback shall be provided in zone of adjacent lot."
f. Appellant's property located at 2146 Parker Street, San Luis Obispo, California
93401 ("Property") is in the Service Commercial Zone adjacent to the Medium -
Density Residential Zone, which has a minimum setback of five feet per San Luis
Obispo Municipal Code Section 17.18.020. Therefore, Appellant's Property is
subject to an interior side and rear setback of five feet.
g. On April 17, 2019, San Luis Obispo Fire Marshal and Chief Building Official,
Rodger Maggio, contacted City Code Enforcement staff regarding potential
violations of the California Building Code and the City's Municipal Code relating
to unpermitted electrical, shelving, and use of metal shipping containers as rented
personal storage on Appellant's Property.
h. On June 4, 2019, City Code Enforcement staff inspected the Property and
observed unpermitted interior shelving racks and storage containers on the south
and east property lines within the required setback.
i. On June 17, 2019, Code Enforcement staff issued a Notice of Violation to the
Appellant for violations of San Luis Obispo Municipal Code Sections 17.36.020
Resolution No.
Page 4
and 15.02.010 (for violation of California Building Code Section 105. 1),
specifically for unpermitted installation of shelving racks on the interior of the
Property and utilization of shipping containers over 120 square feet as an S-1
Storage occupancy without a permit and within the required rear and side
setbacks.
j. Code Enforcement Staff postponed the issuance of citations based on the June 4,
2019 inspection to allow Appellant to submit plans to address the identified
Municipal Code and California Building Code violations. Appellant submitted
permit submittal plans for the shelving racks only on September 27, 2019.
k. After a temporary hold on issuance of administrative citations due to the COVID-
19 pandemic and after no attempt by Appellant to bring the shipping containers
on the Property into compliance with the Municipal Code and California Building
Code, Code Enforcement staff issued Administrative Citation No. 22649 to
Appellant on October 15, 2020 for the violations observed on June 4, 2019.
1. The City Attorney's Office received an appeal for Administrative Citation No.
22649 on October 27, 2020 for Appellant's violations of the Municipal Code and
California Building Code related to its use of shipping containers on the Property
only.
m. The Administrative Citation, together with the attachments contained in the staff
report, admitted as prima facie evidence under Paragraph 5 above, demonstrate
that the citing Code Enforcement Officer personally observed Appellant's
violations.
n. Appellant failed to submit any information that the violations did not occur and
failed to submit any credible information that there is a defense to the citation.
9. The due date for payment of the fine shall be thirty (30) days after the date the decision is
mailed.
SECTION 2. Action: Based on the above findings, documentation, and information
submitted in support thereof, the Construction Board of Appeals does hereby deny the appeal of
Square Deal Recordings and Supplies, Inc., and upholds the Administrative Citation.
Resolution No.
Page 5
SECTION 3. Appeal or Review by Writ. This Resolution is the City of San Luis
Obispo's final administrative decision, under Municipal Code Section 1.24.140(A), on the
Administrative Citation. A person contesting this decision may do so in either of two ways. First,
pursuant to California Government Code Section 53069.4(b)(1), within 20 days after the service
of this Resolution, a person contesting this decision may seek review by filing an appeal to be
heard by the Superior Court of the County of San Luis Obispo. Alternatively, a person contesting
this decision may file a petition for writ with the Superior Court of the County of San Luis Obispo.
The time within which the petition must be filed, and the applicable requirements are governed by
the California Code of Civil Procedure. Either the appeal or the petition for writ filed with the
court must contain proof of service showing a copy of the appeal or petition for writ was served
upon the city clerk. The petitioner must pay the superior court the appropriate court filing fee when
the appeal or petition is filed.
Upon motion of Board Member Wiedeman, seconded by Board Member Garza, and on the
following roll call vote:
AYES: Board Member Wiedeman, Board Member Garza, Board Member Graves,
Board Member Martinez, Vice Chair Eckrich, and Chair Dilworth
NOES: None
ABSENT: Board Member Vessely
The foregoing resolution was adopted this 11th day of May 2021.
Niel Dilworth, Chairperson Date of Signature