SEPTEMBER 19, 2002
| Members Present
Patricia Childs Mike Colletto Michael Friess Peter Hemingway Barbara Koffron Larry Litchfield Scott Mardian Herman Orcutt Greg Russell Steve Speer Darrell Wilson
Members Absent |
Staff Karen Beckley,, City of Phoenix, DSD Carole Borrego,City of Phoenix, DSD Bob Goodhue, City of Phoenix, DSD Derek Horn, City of Phoenix, DSD Don Jones, City of Phoenix, Law Joe McElvaney, City of Phoenix, DSD Kelly O'Neal, City of Phoenix, DSD Joanne Owens, City of Phoenix, DSD John Watson, City of Phoenix, DSD Chaun Hill, City of Phoenix, Streets
Ex-Officio's Present
Ex-Officio's Absent
Others in Attendance
|
Pete Hemingway, DAB Chairperson, convened the meeting at 3:10 p.m.
MINUTES OF July 18, 2002:
It was discussed by members of the Board that there were many blanks in the meeting minutes due
to the fact that the taped discussion could not be heard. Herman Orcutt suggested that the
staff go back and fill in the blanks. Pete Hemingway stated that this would not verbatim.
Rick Doell, Deputy Director, Building Official, stated that the key to the minutes was the
motion made as recorded. If the motion was correct and the result of the motion is correct the
question of the majority of the minutes should be referred back to Don Jones, City Attorney.
Mr. Jones concurred with Mr. Doell, that if the motion if the motion was correct, the minutes are acceptable. Mr. Orcutt agreed.
MOTION was made by Larry Litchfield, seconded by Steve Speer, to approve the meeting minutes of July 18, 2002. Motion carried unanimously. seconded
REQUEST FOR FUTURE AGENDA ITEMS:
Herman Orcutt suggested that the DAB take a look at the performance of the Development Services
Department, along with the Development Advisory Board. He suggested that a public hearing be
conducted inviting City customers and City departments.
Pete Hemingway stated that he would like the listing of items that the Development Advisory Board has worked on. He requested to see a listing of what items the DAB has accomplished and what the Board has not worked on to date.
DISCUSSION OF SUBCOMMITTEE REPORTS:
Executive
DID NOT MEET
Fiscal and Performance Subcommittee
DID NOT MEET
Process and Procedures Subcommittee:
Process and Procedures did meet in the month of August. Patricia Childs stated that she did
not bring her notes with her to this meeting and she will report next month on the items that
the subcommittee discussed.
Technical Subcommittee:
DID NOT MEET
Hillside Subcommittee:
DID NOT MEET
On-Site Retention/Flood Plain Management:
DID NOT MEET
DISCUSSION/UPDATE/POSSIBLE ACTION ON THE NATIONAL FIRE PROTECTION ASSOCIATION (NFPA)
5000 CODE:
Joe McElvaney, Fire Protection Engineer, gave a brief update what stage the NFPA 5000 was at.
He stated that he attended the Process and Procedures Subcommittee meeting to discuss what role
the subcommittee would have in implementing this process. Mr. McElvaney stated that the
subcommittee will be very useful in reviewing Chapters 1, 2, 3, and 4.
Many people have asked Mr. McElvaney how many people belong to the NFPA and the technical committees. NFPA informed Mr. McElvaney that in the state of Arizona there is 58 individuals on 73 committees. Out of the 58, there are approximately 25 that are members of the fire line jurisdictions. There is a very good mix of people on the various committees.
Mr. McElvaney stated he has received a cost comparison between NFPA and ICC, ROC, and UBC. He is expecting an updated copy within two weeks for the Boards review. He reported to the Board that subcommittees need to be formed for the review process of the NFPA 5000 Code, NFPA 70, and the elevator codes which are all related to the NFPA 5000.
Herman Orcutt stated that last year, the Development Advisory Board voted to recommend not to approve the NFPA 5000. Mr. Mike Colletto stated that he recalled that the committee voted to make a recommendation to the City Council to reverse their position. He stated that Council did make the recommendation to approve NFPA 5000 because of the ordinance that council had adopted.
Mr. Orcutt mentioned that he is still having difficulty in accepting a code that has not been tested for a lot of reasons and stated that there should be additional discussion about it. Mr. Larry Litchfield, stated that he has worked with the NFPA 5000 for the last two years and has been preparing a training session for it. He mentioned that the code is not really new. It’s new in the fact that it’s been put together as a building code with all the parts, but some of them have been around for 30 to 40 years. The codes have been extracted from a lot of the NFPA documents that have been used and referenced in all the model codes for years. When the document is being used, you can see that it’s based on years and years of logic and application to thousands of buildings throughout the country. It’s been used, not in the format, which is presented, but the technical parts of the codes have been used extensively and have gone through the consensus development process over the years, some which have started back in the early 1950’s.
Mr. Hemingway stated that the point of issue was from City Council who directed the Development Advisory Board that the NFPA 5000 was a consensus code and that they would accept this. A discussion did take place with a recommendation to City Council to reconsider the NFPA 5000. At that time, they dismissed the Boards recommendation. Given that information, Mr. Hemingway stated that the Board will move forward with the NFPA 5000 with notation that some of the Development Advisory Board Members do have concerns in regards to this new code and the City of Phoenix utilizing it.
DISCUSSION/UPDATE/POSSIBLE ACTION OF APPOINTING A NEW DEVELOPMENT ADVISORY BOARD SUBCOMMITTEE
TO REVIEW THE ADOPTION PROCESS OF THE NEW BUILDING CODE:
Mr. McElvaney stated that in accordance with the new code that has been adopted, the Development Advisory Board
is required to make recommendations to the Building Official and to the City Council, along
with helping to make proposed code changes and amendments.
Currently the code is at Step 3 of the Five-Step Process. Mr. McElvaney suggested that the Board form subcommittees made up of the Development Advisory Board members along with outside support; Engineers, Architects, Contractors, Residence, or anyone else that would like to be on the committees. Development Services Staff will be supporting the committees. Six subcommittees will be formed. They would fall under the categories of the following:
SUB GROUP 1 - ADMINISTRATION
DAB Members: DAB Process and Procedures subcommittee
Outside Support:
DSD Staff:
SUB GROUP 2 - RESIDENTIAL
DAB Members: Pete Hemingway
Outside Support: Russ Brock
DSD Staff: Tom Wandrie, Bob Goodhue, Joe McElvaney, Rick Doell
SUB GROUP 3 - COMMERCIAL
DAB Members: Larry Litchfield, Barbara Koffron
Outside Support:
DSD Staff: Joe McElvaney, Rick Doell
SUB GROUP 4 - ACCESSIBILITY
DAB Members: Scott Mardian
Outside Support:
DSD Staff: Janet Reed, Joe McElvaney, Rick Doell
SUB GROUP 5 - ENERGY
DAB Members: Michael Fries, Greg Russell, Steve Speer
Outside Support: Russ Brock
DSD Staff: David McCarthy, Joe McElvaney, Rick Doell
SUB GROUP 6 - STRUCTURAL
(Quality assurance, soil/foundations, materials.)
DAB Members: Ben Barcon, Danny Ortega
Outside Support: SEAOA
DSD Staff: Mark Sipes, Joe McElvaney, Rick Doell
Mr. McElvaney asked the Board for volunteers to serve on the various groups. He stated that the DAB Technical Subcommittee would b the correlating committee, which will take care of all s ubgroups to make sure that they all meet their deadlines.
Mr. McElvaney asked that all subcommittee volunteers go to their associations that they belong to and ask anyone if they are interested in being on the various subcommittees. Now is the time to get involved, because once the code has been finalized, it will be too late for input. A letter/memo will be sent out by City staff informing various organizations of the code change and requesting input from them.
Mr McElvaney continued to explain that when NFPA 5000 is adopted NFPA 70 (NEC) would be upgraded. This will be at Step 3. The Electrical Focus Group that is made up of Electrical Reviewers, Electrical Inspectors, and Supervisors has been reviewing this code and are ready to go. They need input and volunteers from the DAB to work with them.
He continued to explain that related to the NFPA 5000 is the adoption of three elevator codes; ASME A17.1, ASME A18.1A for lifts, and B.11 for conveyors. A list has been received from companies, consultants, repair people, etc. to assist in the review of the code. Mr. McElvaney asked for volunteers for this group, also. A letter will be sent to all Board members to ask for volunteers on the various NFPA subcommittees.
Mr McElvaney stated that the goal is to have the final changes by the end of December 2002. A form has been developed for anyone who wishes to submit a code change. If anyone has any questions on this code, please inform Joe regarding this issue.
Mr. McEvaney introduced Ray Bizal, NFPA Staff Liaison. Mr. Bizal distributed a handout describing the code process.
Mr. Russ Brock asked if the Board would take a look at the form to make code changes. He suggested that an electronic version of the form needs to be developed. There will be hundreds of comments that need to be tracked electronically and the form needs to be workable for everyone’s usage. Mr. Rick Doell stated that DSD would work with the Information Section of the department and create a form that is readable and workable over the internet.
Mr. Scott Mardian asked if there was time period for this code. Mr. McElvaney stated that this process would begin in the fall of 2002 and hopefully conduct public hearings to go to Step 4 sometime in December 2002 or January 2003 with the full DAB. We anticipate having all the subcommittee work completed by the beginning of December 2002 or mid December 2002.
Ms. Courtney Gilstrap, Arizona Multi-Housing Association, asked Mr. McElvaney how many meetings will take place on the subcommittee level and how does she guide her association with them? Mr. McElvaney, stated as long as it takes to get through it. He stated that the NFPA 70 code should be relatively a short time. As far as the other codes, it just depends on the agreement of the subcommittee members and how quickly they proceed with this.
Ms. Gilstrap, respectively requested possible further consideration on the financial and economic impact. She stated that she has heard that NFPA will be cost comparison, but she stated that the City needs to take this on themselves to do a fair and equitable UBC/NFPA comparison that is not driven by a building code. She asked if cost comparison was brought up as one of the issues from the DAB.
Mr. Hemingway stated that this was a consideration in the past. Ms. Gilstrap stated that the Arizona Multi-Housing Association would like a cost comparison done between UBC and NFPA. Mr. Doell stated that this would be difficult to do, but the City could look at the cost comparison generated by other municipalities from the UBC to the IBC since the documents were very similar, the effect on construction might be the same.
Mr. Litchfield stated that if you break down the code into various groups, the accessibility has not comparison because it’s all going to be the same, this is state driven. The structural requirements are driven by ASE7, which is a national recognized standard, which the model codes are based on, so the cost comparison for those section is nil. There is no comparison, it’s all the same. The height and area tables are basically the same. There are slight variations by 5% to 10% at best. In some cases, the occupancies is better in the NFPA 5000, in come cases it’s better in the IBC, so it’s almost a wash. The purpose of the code is to provide life and safety. That becomes an intangible. You cannot figure that. The cost of the life is saved, by enforcing the code properly. What is the cost enforcing the code properly and saving a building because this property is sprinklered. Mr Litchfield continued to explain that it’s almost impossible to compare. The accessibility has always been claimed to have cost factors assciated to that. It’s identical between all the codes, because again, it’s state driven. He stated that it would be fruitless to come up with a comparison because it’s basically all the same.
Mr. Herman Orcutt stated that he would research the information that Ms. Gilstrap has requested.
DISCUSSION/UPDATE/POSSIBLE ACTION TO CLARIFY THE NEW BRET TARVER SPRINKLER ORDINANCE:
Ms. Barbara Koffron asked the DAB to look at their handouts regarding the minor changes that the
Fire Safety Advisory Board made to the Bret Tarver Sprinkler Ordinance. There are five changes
as follows:
1) Section 1003.2.2, Item 5 change to read as follows:
Detached equipment or storage buildings for commercial use not exceeding 250 300 square feet
2) Section 1003.2.2., Items 6 and 7:
Delete both items and renumber the subsequent items.
3) Section 1003.2.2.1, Item 3 change to read as follows:
One or more additions within any 3-year period are made to an R-3 occupancy and comply with all
of the following:
Mr. Litchfield asked if it would be the applicant’s responsibility for supplying information on the 3-year time period on Item No. 3. Ms. Koffron stated that that information was in KIVA. She stated that the applicant is not really responsible.
A Motion was made by Pete Hemingway, seconded by Larry Litchfield that the proposed changes to the Bret Tarver Sprinkler Ordinance are recommended for approval.
Appeal Hearing
PARISH DATA SYSTEMS
14425 North 19th Avenue, Phoenix, AZ 85023
Applicant: Francis J. Slavin, P.C.
September 19, 2002
Applicant submitted a Building Code Modification to Section 109.2, Change in Use; Section 109.3, Certificate issued, and Section 3405-Change in use, and allow the proposed project to comply with the site plan as approved with stipulations dated April 30, 1987 instead of the site plan approved by the Phoenix City Council’s decision of April 18, 2002.
This issue was heard on May 21, 2002, and the designated Development Services Building Official denied the Building Code Modification. The customer was advised to seek advice from the Planning Department on how to address site plan stipulations compliance with, or appeal of, the Phoenix City Council decision of April 18, 2001.
The designated Building Official’s decision is now being appealed to the Development Advisory Board for their approval or denial.
Mr. Larry Litchfield asked if he should be dismissed from the hearing because of his past association with this project. Mr. Don Jones, City Attorney, stated that this was not a lawful conflict for Mr. Litchfield, but if he has personal feelings about this case, this may make it difficult for him to judge the case. Mr. Litchfield stated that he has a predisposition on this case and requested that he not be a part of this appeal. Mr. Francis Slavin, applicant for this appeal, had no objection to Mr. Litchfield leaving the hearing.
Pete Hemingway
At this time we’re going to begin the hearing. Again we ask that you state your name before
you speak and identify who you’re associated with. At this time, the Building Code Modification
deals with the Parish Data Systems, located at 14425 North 19th Avenue, Phoenix, AZ.
Pete Hemingway
Pete Hemingway I believe Mr. Slavin is here speaking on behalf of the Parish Data Systems.
I’ll read, Applicant submitted a Building Code Modification to Section 109.2, Change in Use;
Section 109.3, Certificate issued, and Section 3405-Change in use, and allow the proposed
project to comply with the site plan as approved with stipulations dated April 30, 1987 instead
of the site plan approved by the Phoenix City Council’s decision of April 18, 2002.
This issue was heard on May 21, 2002, and the designated Development Services Building Official denied the Building Code Modification. The customer was advised to seek advice from the Planning Department on how to address site plan stipulations compliance with, or appeal of, the Phoenix City Council decision of April 18, 2001.
The designated Building Official’s decision is now being appealed to the Development Advisory Board for their approval or denial.
At this time, Mr. Slavin, we asked that you step forward and make your presentation. We ask that you limit it to ten minutes of presentation time, following which we will have the ten minutes of your presentation, followed by ten minutes of staff presentation, we have ten minutes of community input. If we have more than five people in attendance, they’ll be a two-minute per person, per item time limit. We’ll have five minutes for summation by the applicant and summation and rebuttal by staff of five minutes, following which time we’ll have open board discussion, which the Board will ask questions of yourself, the applicant or the staff in regards to any items that they have presented.
At this time we’re ready to begin.
Francis Slavin
Thank you Mr. Chairman. I’m Francis Slavin, also known as Buzz Slavin. I’m a practicing
attorney in the City of Phoenix for over 30 years and my practice is devoted entirely to
representation to owners, developers, and builders, real property and property improvements.
I’ve had the distinct privilege with working at the City of Phoenix with the great departments
for that entire period of time and enjoyed that relationship over the years.
We have a situation here. Also, I would like to apologize for not being here in July. I understand we were scheduled for July and there was miscommunication with our office and Ms. Borrego and I sincerely apologize for that. We’re delighted to be here today.
Also, Mike Boyle, who was the president of Parish Data Systems, is sitting in the third row, and he’s also here and available if any of you have any questions of Mr. Boyle. Also, Steve Porak, who was our contractor back in 1989, when the premises was converted from a residence to a garden office building, also is here in case any of you might have questions.
The problem that we have simply is the way that the Uniform Building Code is adopted by the City of Phoenix as applied as being applied to a very special unique set of facts and circumstances.
As you know the Phoenix Building Code requires compliance with the Zoning Code and well as with the Building Code provisions. The life safety provisions of the building code, before you can be issued building permits and a certificate of occupancy upon completion of a structure and upon final building inspections.
In this case we have a situation where in 1989, what was once a residential occupancy located at North 19th Avenue and it was purchased by a sister company of Parish Data Systems. Parish Data Systems occupies the premises under a long-term lease. The purpose of the purchase was to convert the property from residential to commercial use. The property was rezoned in 85’ and amended in 87’ to allow commercial office use of the subject property.
In 1989 the property was purchased. My clients hired license contractor. Mr. Porak had architectural plans drawn and for the conversion of the internal parts of this building from residential to commercial use. Basically it consisted of rearranging the bedrooms and some of the common space and it eventually was converted in approximately inaudible . . . upgrade at a time from residential to office use.
Mr. Porak at the time obtained building permits from the City of Phoenix and the final building inspection was done. But apparently there was not certificate of occupancy that was ever issued for this work. Acting at the advice of Mr. Porak who told my client it was ok to take occupancy, my client did take occupancy and has been occupying the premises since January of 1990. In 1999, my client decided to make a substantial addition, hiring an architect to prepare plans to his specifications. The architect came to the City. Also at the time the plans were drawn, my client also hired a building contractor. The building contractor advised my client to do some preliminary work before the building permits were issued, inaudible . . In any event there were some footings that were excavated and some brick vaneer was removed from the exterior of the residence.
At that time my client learned for the first time that it did not have a certificate of occupancy on record with the City of Phoenix. He was told that it was very important to do that. Prior to that period of time, my client did not know or understand that. Mr. Porak had moved on and my client was contacted by Mr. Porak and told him at approximately six weeks reestablished connection with Mr. Porak to see what his records indicated as well.
Mr. Porak destroyed his records when he moved his office two years ago, and does not have any proof of records maintained for this property. He could not locate any particular occupancy that might or should have been issued by the City before my client took occupancy in 1989.
The problem that we have, Mr. Chairman, is simply this.
Pete Hemingway
Excuse me, so Mr. Porak, is he saying that there was a certificate of occupancy?
Francis Slavin
Mr. Porak does not recall whether or not a certificate of occupancy was issued, but he does
remember that he obtained final building inspections. The final inspection that he obtained
was for a gas line. Acting on the basis of final inspections, he then authorized Parish Data
Systems to take occupancy.
Pete Hemingway
Ok. I just didn’t understand that. Go ahead.
Francis Slavin
Interestingly in 1991 my client wrote a letter to Zoning Enforcement and Neighborhood Services
informing them, among other things, that the residential structural had been converted to an
office, as being occupied for office use. My client, also, obtained a transaction privilege
license and has been paying transaction privilege taxes to the City of Phoenix ever since.
At no time did my client know or understand that it was required, or it did not have, a
residential certificate of occupancy.
The major problem is being raised for this is simply to change our occupancy. To change from residential to commercial, as we all know, there are different building code requirements applied to commercial use and office use, as there is to residential use.
The way that the building code works is that in the City of Phoenix we tie together both the building side of the code and the zoning ordinance together in one overall signoff, so that it’s a way for the City to make sure that zoning is complied with. The certificate of occupancy is used as a basis for insuring that both the zoning side, as well as the building code side is being complied with. They created a catch twenty-two for my client.
The catch twenty-two is simply this. In 1999, when my client went through seeking permission to make an addition, he was informed that the particular’s, the plans developed for the subject property, did not generally conform to the plans to the development of the chain of the City of Phoenix and approved in 1987. Therefore, the plans could not be processed and listed until there was an amendment made for the 1987 stipulations.
There was a hearing, Mr. Verdugo, just happened to be the very first planning hearing officer, basically he made the determination that there were some violations on the site and that was just based on some testimony given. Most importantly, Mr. Verdugo stated in his ruling that my client is obligated to solve the change of occupancy or certificate of occupancy problems before he could get site plan approval. The sneer snag that we run into is that basically DSD will not process our request for certificate of occupancy because we don’t have a complying site plan. The reason why we don’t have a complying site plan is not because of what Mr. Verdugo did, we accepted Mr. Verdugo’s actions on October 20, 1999, but Mr. Verdugo after the fact, went back and changed one of the stipulations. That one’s the appeal to the City Council, and the City Council at that time piled on a lot of other stipulations that greatly restrict my clients use in inaudible . . . property including a stipulation that says, that my client may only use some 20 parking spaces on the site that are in the Northeast corner of the property twelve times a year. So we filed a law suite to try to challenge that. In the meantime we have repeatedly attempted to at least move forward to try and get something from the City, like a change of occupancy or certificate of occupancy for what occurred back in 1989 and 1990. At least we’re legally occupying the premises.
I’m sorry if I’m taking more time. This tends to be a shaggy dog story and I’m giving you a very cut down version.
Pete Hemingway
You’re all right.
Francis Slavin
Ok. So we were proceeding along and were attempting to follow the stipulation number one of
Mr. Verdugo’s action that he approved in October 20, 1999. It says, “the applicant obtain a
change of occupancy for the existing structures prior to obtaining site plan approval and prior
to obtaining building permits for any new building construction.” So we knew and understood
that before we could process and obtain approval of the site plan, we had to correct the C of O
problem, that there’s a inaudible . . . with the C of O in the City’s records.
So we attempted to do that but we were told because the site plan that we turned in did not conform with the new stipulation that the City of Phoenix piled on inaudible . . . Council did to what Mr. Verdugo did in 1999, we objected and said those were not applicable to this site. So we were suing Superior Court to challenge us. We have repeatedly tried to get a C of O from the change of occupancy back in 1989 and 1990 and we have been inaudible . . . this entire process.
Quite frankly, I have worked with the City for over 30 years, and I’m a Phoenix Lawyer. I don’t live in the City of Phoenix, but I’ve practiced here for years and this is the most befuddling case I’ve ever handled in my life. I have a lot of major conflicts with litigation matters, but it’s frustrating for us because, if in fact there are life safety issues out there, we need to know about those life safety issues and they need to be addressed now. We’ve attempted to address those life safety issues by seeking an out of sequence review of what we have there. If the change off occupancy or C of O can be issued to us for what’s there now, and then it will allow Mr. Jones and I to continue in Superior Court to litigate over whether or not what the City of Phoenix did and adding a bunch of stipulations to our zoning.
One of the things we ask for in Superior Court was a, we were then sited. We were sited by DSD because DSD believed we could not have a building permit for a new addition. DSD also sited us for not having a C of O. We ask the court for stay of enforcement on that so we had an opportunity to work through these issues. We asked the judge for stay on that.
Mr. Jones brought forth some statements in court that basically said that we could resolve this administratively, at the City inaudible . . . So the judge said fine, in that case go back to the City of Phoenix and resolve it. I wrote Don a letter, Don writes back and says, “here’s the form, there are two ways you can go about doing this. You can get an appeal on the decision or you can seek a modification of the code.” But he also went on to say in this letter that we’re still not going to get the C of O until we comply with the zoning that applicable with the property. Again here comes the catch twenty-two from my client.
My client has and always will agree to abide by all of the laws of the City of Phoenix. To the extent that any work done out their, there were some footings dug in the hillside area, which is problem. That is suppose to be corrected and restored and we’ve attempted to do everything possible to at least maintain our lights to challenge all the other stipulations that would severely restrict our property and would make us under parked on the site with the amount of square footage we have. That’s very serious for us in terms of our business, and if we’re under parked then we can’t conduct our business operations here. We have to move we have to cut back out business one to two.
By the way the amount of development my client has placed on this site and inaudible . to place in the future is about 2/3 of that was that was approved by the City Council back in 1987. City Council approved something like 18,000 square feet of space and a inaudible . . . parking spaces where somewhere at are ultimately similar to 12,000 feet with 70 parking spaces or something like that. We are inaudible . . . these using at a reduced level beyond that was already approved.
What we’re asking your help on is this. We made the application and we had the hearing with Bob Goodhue and we might lead to the confusion in the hearing with Bob Goodhue. I had a transcript made of that and I came back and looked at our application and we did state in there that we’d be willing to comply with the 1987 zoning stipulation.
The way we look at it, the 1987 zoning stipulations, as amended by Mr. Verdugo in 1999, we believe those are the only legally applicable ones at the present time. When we said that, if we had to comply with the zoning stipulations we made that statement and both in our application and in our hearing before Mr. Goodhue.
Again, we were being told that we had to submit a conforming site plan and work with the zoning stipulations that we would be willing to submit to in 1987. Mr. Goodhue them comes back and believes that we’re asking him to somehow pass upon the legitimacy of the validity of the 1987 zoning stipulations. I apologize to him if I mislead him in away shape or form during the hearing. That is precisely what we’re not seeking here.
Pete Hemingway
Ok, if you could kind of wrap it up, then we'll hear from Mr. Goodhue.
Francis Slavin
Ok, what we’re basically seeking here if you will allow us to take this out of sequence. The
building code does not allow out of sequence review. When we can’t have the, if we can go
through and obtain a certificate of occupancy separate apart from whether or not we concurrently
conform to the, whatever the zoning stipulations are, whatever version the stipulations are.
We have stated on the record, stated in the record the other day, that we do not contend to
avoid or use this process in any way shape or form to avoid or limit compliance with what are
finally determined to be the lawful zoning stipulations provided for this property. Nor do we
understand that in seeking this modification request of the code, that your modification request
would have that effect at all. It’s just simply we’re asking you to modify the building codes
so that we can have the life and safety issues that we’re all concerned about. DSD concerned
about it, the building official is concerned about it, I am, and I know you all are.
So that’s what we need to get. You can help us get there if we can fashion a way to do that here today. I will repeat to you, I’m not asking, nor is my client asking you to pass a inaudible . . . on this stipulations. What we’d like to do is simply say to Mr. Doell, that his staff can accept an application from us for certificate of occupancy. That someone came out, that he sent, we will submit an asbuilt plan. We've been told my Mr. Goodhue that we need to prepare an asbuilt inaudible . . .and our architect needs to do a code compliance against that and submit that so that Mr. Doell’s department can look at it and see whether or not we conform. If we don’t, then we will conform. With no problem with that. Thank you Mr. Chairman.
Pete Hemingway
Thank You. At this time we'll hear from staff.
John Parks
Mr. Chairman and members of the Board, I know you have a wealth of information in front of you.
What I’m going to attempt to do is highlight some key points from out perspective.
Mr. Slavin had noted that the property was rezoned to a commercial office in 1985. The commercial office zoning district requires site plan approval. In 1985 to the present time, there is never a site plan that was submitted that was approved in conformance with council zoning stipulations. The zoning stipulations have been modified several times with the whole history, I won’t go through that.
Suffice to say, that the City Council in August 18, 2001, your “Exhibit E”, those are the final zoning stipulations that were approved by the City Council. They have site improvements that were required, in addition to building code issues. There are some violations on the property, grading and other things, that were important to the neighborhood.
I just want to highlight briefly, not only the building code, but the Phoenix Zoning Ordinance. I’m going to quote from Section 507J1, “No building permit shall be issued when building a structure not in accordance with approved development reviewed documents and conditions of approval.” Another portion, again Section 507J4, of the Zoning Ordinance, “In the final Certificate of Occupancy should be issued if a project does not meet requirements of the approved development review documents.”
Its staff’s position that the Council approved zoning stipulations have never been met, and there were a series of stipulations going back to 1985. The only stipulations that remain at this point are the latest council stipulations from 2001. They have not been met. Staff cannot issue a C of O, which in essence would overturn the Council stipulations.
At the end of your packet, I’d like to quote just briefly from the Building Code, Section 109.1, “issuance of a certificate of occupancy shall not be construed as an approval of violations of provisions of this code or other ordinances of the jurisdiction.” Section 109.3 says, “after the Building Official inspects the building of structure and finds no violations the provisions of this code or otherwise have been enforced by the code enforcement agency, the Building Official can then issue a C of O.”
We would state that the applicant has other avenues to address the issue. If the applicant does not like latest inaudible . . . the Council’s only stipulations, the Planning Hearing Officer and Planning and Zoning has to delete or modify stipulations. If the applicant with that action, it could appeal to Council. The other issue that is available, and none of these have been taken, would be the applicant could appeal to the Board of Adjustments and argue that they have determination invested with the property.
The Board could determine whether they do or not. In summary, staff would summit that Development Services Staff doesn’t have the ability to override the Council stipulations and I would submit that the Development Advisory Board does have the ability to override the latest Council stipulations. With that, I’ll turn it over to Mr. Goodhue, if he has any comments. I’ll be available for questions.
Bob Goodhue
I really don’t have much more to add, other than the appeal request proposed an interesting
question. One of which acceptance of a difference set of stipulations that is currently
approved by City Council. Mr. Parks already went into the approval of C of O, or even if you
go into Section 106 of about approving plans issuing permits.
When plans are submitted and are not in conformance with the Zoning Ordinance, being that the request in essence placed me in determining the legitimacy of the zoning issues. That is part of my decision was to direct the applicant back to the Planning Department to make that determination of whether or not of the site plan, the approved site plan need to be submitted to us. Also, that the appropriate stipulations be assigned to that site plan for our staff to eventually enforce.
Pete Hemingway
Ok, that's it.
At this time, we would like to open it up for community input. If there’s anyone, or if we received any cards at all in the community.
Ok, I have not received any cards. Is there anyone from the community perspective that would like to speak.
Ok, at this time we’ll have Mr. Slavin five minutes for summation and anything else that you want to add that you add to it you presented or ?
Scott Mardian
When do we have an opportunity for questions?
Pete Hemingway
After he and the other staff rebuts, then the floor is open for questions.
Francis Slavin
Is it your understanding that staff goes last? I thought I was last.
Staff just responded to what I had to say and I have a chance to rebuttal to staff.
Pete Hemingway
Yes, you have five minutes for summation by staff, then you need to rebut. Staff do
you have anything you want to add or additonal summation? Ok?
Francis Slavin
First of all, I’d like to address a couple of things that John Parks stated to you. First of
all, any suggestion by DSD that we go back to the PHO and have the PHO address the stipulations
that the Council placed on us at 2001, at the inaudible . . . change that, it doesn’t go back
to the City Council, unless the City Council changes it would be a fugal act. I don’t think
that there’s any question about that.
Simply put, and this is just parts chasing our tail situation, we find ourselves. Also, vested rights doesn’t come into play here in terms of simply, Mr. Verdugo’s stipulations are still alive and well, and living in inaudible . . He has the stipulation that he put on and I guess I don’t understand, quite frankly, when we say that, I think Mr. Parks said, that the only stipulations apply are the ones that the Council put on in 2001. That’s just not the case.
There are stipulations that are put on October 20, 1989 and are part of the package that I submitted and several of those have not been touched whatsoever by the City Council stipulations.
Pete Hemingway
So October 20, 1999, summary of planning of hearing officer, ok.
Francis Slavin
If you look at number 1, that was never changed by the City of Phoenix, by the new stipulations.
Number 6, did not get changed. That stipulated us to only three stories in height at 30 feet
through. I guarantee if we came through and tried to build a taller building we’d be told that
applied. The FAR was not changed, the maximum inaudible .. was not changed, because if it has
changed, then fine, we need to know that. The architectural compatibility stipulation number 8
was never addressed by the City Council.
So we have, we have the 1987 stipulations. They’re amended by Mr. Verdugo in 1999 and then stipulation number 3 was appealed by the council, the council placed a bunch of additional stipulations on it. Mr. Vergudo’s stipulation it says, that we obtain a change of occupancy before we get a site plan approved is still there, and it still applies to this case. So we have that we’re facing, so to suggest that somehow we go back and continue to deal with the zoning stipulations is responsive to the normal.
I don’t believe that any act that we’re asking you to take today would all trump what the City Council did or change any of these stipulations. All we’re asking for is that Mr. Doell’s group have the opportunity to come out and check to see if we comply with the building code and fire code, and whether or not we do. If we do, then fine. We are in a change of occupancy ought to be issued back to the time that we got our building permits and their instruction in 1989 and 1990.
We are in front of Municipal Court, I can tell you that. We are being prosecuted by the City
Prosecutors Office for violating the building code, because we don’t have a C of O. We’ve been
trying to get the C of O and we’ve tried to state those proceedings so by the court so we could
with DSD to get the C of O issued for at least so we’re legally occupying this place. We’ve
been there over ten years. That’s what we’re trying to do.
If you could help us, you would have our undying perpetual appreciation.
But to get involved in we have to go to the inaudible . . .we had to go back there. We got to go to the Board of Adjustments, we have to continue around, everybody keeps referring us to someone else at the City.
I would like to end this way, Mr. Chairman. I attended a meeting a meeting with Alton Washington, David Richert, and Mr. Boyle back in February 9, 2001. At that time, we explained our dilemma to Mr. Richert in particularly about this idea that what we were occupying there did not conform with the zoning site plan in 1987.
Mr. Richert told my client that it has in fact, what we had there did comply with the zoning site plan. Moreover he apologized to Mr. Boyle for having to hire a lawyer to come to the City of Phoenix to do business with the City of Phoenix, because the City wanted him to know that he was a valued customer and citizen of the City of Phoenix. That apology came to us about two months before the City Council went ahead with all these new stipulations.
My client has spent tens of thousands of dollars on this process with me, with architects, on filing fees with the City and so and so forth. Now we’re in Municipal Court. We’re going to be doing our third day of trial over in Municipal Court in November. This is a citizen that needs some understanding and needs some relief, we are seeking that. Thank you.
Pete Hemingway
Thank you. At this point of time we will open it up to questions from the Board.
Herman Orcutt
Mr. Chariman, I'd like to ask Mr. Jones.
Mr. Jones the original stipulations from Mr. Verdugo and the stipulations from the City Council, if those don’t conflict, can they been seen as all being in effect or not?
Don Jones
Could your restate that and be a little bit more specific.
Herman Orcutt
I as understand, Mr. Slavin suggested that we had two sets of stipulations and they really
don’t work together. I guess my question is could they been seen to be working together as
long as they don’t conflict with each other.
Don Jones
Mr. Chairman and members of the Board, if you’re referring to the 1987 stipulations and the
2001 stipulations, they are different stipulations of similar nature. They cannot be blended,
if that’s what the question is.
Herman Orcutt
How about the 1999 stipulation?
Don Jones
The 1999 stipulation was clarified, Mr. Slavin, can help me a little bit with events here, I
believe in 2000 by the Planning Hearing Officer. Then 2001, those were amended further by the
City Council.
Francis Slavin
Don, I can help you here. In December of 2000, John Verdugo amended Stip No. 3 only. That was
by initiation of the Planning Commission to only amend stipulation no. 3. We had a hearing with
Mr. Verdugo, in December of 2000. The only rule on stip 3 basically said that we couldn’t park
at all at the inaudible . . .site. We appealed that to the Council and then the Council not
only doubled that, but added some more stipulations. That’s the history of it.
Pete Hemingway
Ok, additional questions. Yes Mike.
Michael Fries
This would be to John. Of the 87’ stipulations, are all of those not in conformance, because
there was never a submitted site plan. Whatever was tied to the 87’, I’m assuming that’s the
start of it, right? 87’, which was tied to the first round, which is when the building was
done without a submitted site plan, an approved site plan, correct?
John Parks
Right. In other words, we still have an issue of …..
Michael Fries
So we have outstanding 87’ issues? Correct?
John Parks
Correct.
Michael Fries
Ok, and the C of O for this building is tied to the 87’, or is C of O tied to present day.
How does the Uniform Building Code look at that?
John Parks
It’s staff’s position when the C of O is tied, the latest inaudible . . .
Pete Hemingway
Other questions? Go ahead.
Darrell Wilson
These stips were related to a specific site plan associated with the zoning case. Is that
correct?
John Parks
That’s correct. It’s been modified several times over the course.
Darrell Wilson
Originally the site plan was based on raising the existing structure and then replace it with a
commercial structure. Is that right?
John Parks
Correct.
Darrell Wilson
Subsequent site plans were based on though, use of the existing residential structure in it’s
current condition. Let me restate that. The stipulations that apply today, are they based on
affectivity, setting aside either physical criteria that haven’t been met yet, is it based on
the structure as it is on the property today?
John Parks
The last Council approved stips did inaudible . . .to structures. In some previous cases it’s
been denied.
Francis Slavin
Mr. Verdugo’s October 20, 1991 stipulations addressed the structure that currently exists and
those stipulations were acceptable to my client.
Darrell Wilson
Ok. It’s my understanding that there are stipulations that physically are not being complied
with today. Is that correct?
Francis Slavin
That’s correct, sir.
Darrell Wilson
Mr. Slavin, I have a question for you. You commented that you thought it was futile to go
through the PHO process to amend stipulations that were added to this case from City Council.
I guess I’d like to understand that position a little bit better. I think that’s fairly common
practice for a series of stipulations to be placed upon a given property a given zoning case
and have the developer may come back and seek to appeal or amend the stipulations inaudible . . .
each other. I’ve been personally involved in that in multiple occasions. I’m not sure I
understand why you say that that’s a futile process when it would be applicable in this
situation.
Francis Slavin
Mr. Chairman and Mr. Wilson, I didn’t do inaudible. . .over my career here. And I totally
agree with you that normally what you would do if you wish to address and amend a stipulation
through a PHO, now that we have a PHO. I’ve had a PHO and then we worked our way from there.
Typically if you agree with a PHO inaudible . . . then that, unless the neighbors not inaudible . . .
The composing factor here is that in 1999, the neighborhood to the north became involved and inaudible. . . to the north upon the property and became involved and investigated the project and so they came to the hearing. They became energized and two or three different people that are located throughout the site. They became involved in one, they had certain stipulations based on this property to better their circumstance into what was there in 1987 when the neighborhood, in fact showed up, and approved the 1987 stipulations.
So for instance, the neighborhood did not want any parking in the Northeast portion of the site in 2001 when this came up before the City Council. Yet, in 1987 the zoning case the stipulation for inaudible . . . in the Northeast portion of the site. It’s not untypical of garden office buildings all over the city where parking is placed with the appropriate inaudible . . . then there’s an existing concrete block wall that interfaces with the neighborhood. In the neighborhood inaudible . . . want to be not to have us park in that certain location unless there is an location that will be right wherever the neighborhood had the best view of the hillside. That’s on the second property. It explains that that is one of the concerns is that it interfered with the views of the hillside.
The second issue for the neighborhood is that there new inaudible. . . backing driveway. The inaudible . . .relief is it’s probably about a 10 foot drop between where the residence is and where the north parking area is located next to the neighborhood. There is an internal connecting drive, and that’s the only way it’s connected to parking areas together that are on the site. Both of these areas would be to support the parking inaudible . . . to the site.
The neighbors wanted that in terms inaudible . . .shut down so that there could no longer be driving between the parking lots. They complained that in the early morning lights would shine down in their properties if someone came down that driveway. What we said will stop that. We will make sure that that doesn’t occur again. What happened is that they took their case to the mayor and council and the mayor and council did this. They said we won’t shut down entirely the 20 parking spaces that you have in the Northeast corner of your site, but we’ll say you can only use them 12 times a year. We still die from the cure, whether we use it 12 times a year and there’s a hell of a lot to be left there that we can’t use. During his period of time inaudible . . .do what we can do to our site.
If we don’t have the internal connection driveway, we then have to drive up on 19th Avenue, which is a busy arterial street, and we have to drive back and forth between the parking areas if we want to. If ones filled up, someone pulls in there and can’t find a space, they have to drive back out to 19th Avenue to have access over to the other side.
So we appealed that stipulation. The neighborhood wanted that and they really consumed a lot
of influence with Councilwoman Bilstein. I had some meetings with them during that time, that
I can simply say this to you, I know that the mayor and council are adamant about these two
stipulations. Mr. Jones and I are litigating over those in Superior Court. If there is a way
around that simply by going to Mr. Verdugo, I would have done that in a heartbeat, right off
the bat. But under the circumstances, there is no way that can happen. Everybody is sent in
inaudible . . . the ways and there is no light out of that until we get to use the parking
spaces so that we can have the necessary parking for our property or not.
In the last decision of the council was simply, you can’t park there. Now, is it worth taking
another shot and going back and asking the council to give us relief, I would do that. I
would suggest to you that Mr. Jones, could merely give me that relief by entering this stipulation in
our litigation that would let us in fast.
Darrell Wilson
I thank you for clarifying why you feel that you’ve been inaudible . . . I feel bad that you
had to go through PHO and overturned that kind of a situation. There is one thing that I would
like to clarify though. This kind of discussion about whether that kind of access would cause
hardship on the adjacent property and so forth. It is typically the kind of discussion that I
would have expected would have taken place during a zoning case, particularly in light of the
sight plan for this specific zoning case.
This kind of discussion about whether that kind of access would cause hardship in the adjacent property, and so forth. Typically the kind of discussion I would have expected would have taken place during a zoning case, particularly in light of the site plan for this specific zoning case. If I understand correctly, this is based on the issues discussed here are based on physical improvements that were already put there. Correct?
Francis Slavin
Yes, partially correct. The physical improvements that were already placed there is the
residential structure that was completed for an office and from residential office use. There
is a lower parking area that was a inaudible . . . for parking area, and my client
inaudible . . . in the parked area. In fact when the City of Phoenix and the CIP project
between my client bought this property, a curb cut for both driveways and this site went for
the lower parking area, there is a curb cut there and a curb cut for the upper parking area
next to the residence. That’s really the only improvements that my clients done to this site.
Darrell Wilson
That parking area and the access between upper and lower parking area, did they relate to
a site plan?
Francis Slavin
No, that was based upon the use inaudible . . . if it was a residence. It was being used as a
residence and there was a parking area below and a parking area up above. There is an
outbuilding in the back that was constructed as part of the residence. We since learned that
maybe there was a cabinet maker was in there making cabinets back when this was zoned for
residential use. It might have been the owner himself on the premises. In any event, there
was parking occurring both in the upper area and the lower area and there was a paved driveway
that went in the upper area to the lower area. It was there when we bought it. It wasn’t
necessarily a site plan issue, it’s just simply it was there.
When we went in to get out building permits, and by the way, with the new design review ordinance, and I don’t know if it’s the ones that John in quoting are back to 85’ or not, but in 1990 to 1991 the current Design Review Board was in acted and made part of the City Zoning Ordinance. I don’t know if this section is quoted precedes this or came in as part of this 1990-1991 amendments. If it came in afterwards, it inaudible . there at the time that my client converted this to an office use and began occupancy.
I will not disagree with John Parks when he said in 1985 there was a inaudible . . .
Don Jones
Mr. Chairman
Pete Hemingway
Yes
Don Jones
Can I ask Mr. Slavin to clarify one thing?
Pete Hemingway
Sure
Don Jones
Is it your position that the interior drive was part of the 1987 site plan?
Francis Slavin
It’s my position that the interior was existing at the time my client bought the property.
Don, yesterday in Municipal Court, when my client was shown a 1991, I think it was 1991, maybe
it was 1985, earth photograph he identified the driveway in the photograph as existing.
Don Jones
But it was not part of the site plan. It’s not part of the 85’-87’ stips.
Francis Slavin
Well ok, good point. In the 87’ stipulations what happened was that there was significant
concurrsion into the hillside with the new office building. There was no longer any lower or
upper parking. All the parking took place along the north side and along the frontage on 19th
Avenue. My clients have chosen have not to tear down the structure and rebuild it according to
the 87’ approved zoning approved site plan. There is very little room for parking, in fact,
there’s no room for a parking lot on 19th Avenue. Most of the hillside remains in tact. All
the parking has to approve virtually on the north side next to the resident neighborhood.
Pete Hemingway
Ok, question.
Herman Orcutt
Mr. Chairman, between 1987 the original stipulations and 1999, why weren’t the original
stipulations adhered to?
Francis Slavin
Here’s my understanding as to why that didn’t occur. Ignorance is no excuse, I’m going to tell
you what happened. My client bought the property without a C of O and was told by the real
estate agents that he could use it for office use. Confirming that there was
inaudible . . . zoning on the site, he then hired an architect and a contractor to convert the
residence facility to be ready for an inaudible . . . building. He was never advised by any
consultants that he needed to do any sort of a site plan. He didn’t understand that and his
training is not in this area.
So it would be like a person not knowing or being familiar, like you and I are, with this stuff. It would be just like taking anybody off of the street and who would buy property and be told that you could occupy this as office and then went in and did it. They obtained building permits, how did they get building permits and get through and went to work by understanding small plans. But they had building permits and was signed off according to Mr. inaudible . . .
In 1991 they notified zoning enforcement because another matter was on the site, Neighborhood Services that we converted it from a residential to offices. Then in 1991, the City inaudible . . . you can’t do that. There’s no C of O record and they never did anything at all. We could have forgot our architect and our inaudible . . .and said straighten this out. That never happened. So what happened, we were, if I could use the word, dumb and happy for nine years until we found this out. That is, I understand, the truth. How this slipped through for nine years is amazing.
Pete Hemingway
Other questions, yes.
Scott Mardian
Mr. Chairman, I’m not sure that you or the City can answer this, but I’d like to ask. If the
City were to make fulfill your request and check for life safety issues, is the goal then for
you to get a Certificate of Occupancy based on that inspection?
Francis Slavin
Our goal is to inaudible . . . the, what I understand is the most serious issue for my client
right now is the change in occupancy from residential to office use. We would like to get the
change of occupancy approved. If that takes a certificate of occupancy or whatever type of
piece of paper that takes to absolve us so that we are at least there occupying the premises
and we can conform to the building code that applies to office, that is what we’re attempting
to do. I don’t know what you would call that. I believe it’s called a Certificate of Occupancy.
But whatever it’s called, that’s what we’re looking for.In no way shape or form would argue,
and would take a conditional permit, whatever you want to call it, we’ll take a conditional
permit that says that this does not at all bind the City for this homeowners failure to comply
with all applicable zoning ordinances and zoning stipulations.
I think the concern is that simply somehow we can whipsaw the City, into saying ha ha, we’ve
got a C of O, now we don’t have to do any of this other stuff. I think that there was a
problem because of the way the two codes are connected together.
We need to be able to solve these zoning stipulations. As soon as there solved we will be a
inaudible . . . to John Parks door and anybody else and the Development Services Department
and get a site plan approved for this site. There is no reason for us not to do that.
We want to comply. There are certain things in there that we have to do. There’s some
landscaping that we have to do, we got to do that. We’re afraid to go do that, because we do
it without a permit then we’re doing something that’s not in accordance with the site plan.
The stuff we’ve done there that we didn’t know any better, well we will correct that, if
that’s not done right, we will correct that.
Whenever you call to get us legally occupying that place right now without the City’s hands being tied to enforce design review anything else on this site, that’s what we’re looking for.
Scott Mardian
Let me clarify. I thought that you were asking for the City who will make an evaluation in
order to get some kind of a certain inaudible . . . for life safety issues. I’m wondering if
the City, if you’re at inaudible . . .with the City over the stipulations themselves and that
that’s what the real issue is.
Francis Slavin
That’s correct
Scott Mardian
Whether that it’s the City Council stipulation, the latest City Council stipulations versus
the stipulations that you would understand would be 87’ or 90’ whatever that is. So that’s the
issue that you’re asking the Board to assist you with is essentially permission to occupy that
space without complying with 2001 stipulations which are catastrophic for your business.
Francis Slavin
Yes, but with a further clarification. That whatever the outcome in this, of the disagreement
between my client and the City on those 2001 stipulations, on the outcome of that we conform,
we comply.
I’ll tell you an easy way I think we can do this. I propose this and returned the site plan and it didn’t work. That we put in the parking spaces that will leave the driveway in place for the present time. That we comply with all of these other stipulations and we inaudible . . . the two biggest issues, which is, are we going to be allowed to use those parking spaces more that 12 times a year and whether or not we can continue to use the internal connecting driveway.
There is a possibility, and this is suggested by Don Jones, that we look at a way of maybe relocating that internal driveway so it can come down off the hill. That is certainly something that we could consider doing. We are really prepared to submit a site plan that complies with all of the stipulations stated, except the two that we find most inaudible . . . If there’s a way to do that and save the fight then at the end of the day, if we can’t use it use those spaces more than 12 times a year, we can’t use those spaces more than 12 times a year. If we can’t use the internal connecting driveway down the hill, will stop using the internal connecting driveway coming down the hill.
Pete Hemingway
Additional questions, Scott? Any other questions from the Board?
Herman Orcutt
Mr. Chairman, I guess I have a question for Don Jones.
I’m looking for inaudible . . . consequences here. If we go along with Mr. Slavin, are we going to inaudible . . . unless something starts with moving up and moving on. Are there some other intended intentional consequences here? Such as the ability to skip all the other stipulations and things like that?
Don Jones
One unintended consequences is I’m not sure that the 87’ stipulations aren’t somewhat different
than the 1999-2001 stipulations just in terms of inaudible . . . with that fact in so on and so
forth in the parking lots.
Beyond that in terms of other amended consequences, legally, Mr. Slavin has taken some steps to besiege by fears that he would comply to use the outcome to use this proceeding and our pending law suite. I would be interested in hearing from staff as to any other concerns that they might have. I’m also concerned that this particular action to the extent that we’re waiving code requirements instead of modifying it.
John Parks
This is just a comment. I don’t believe DSD would have any objections to new building plans
for code compliance. The certificate of occupancy is another issue with the neighborhood.
Council members don’t want it. The site and stipulations addressed so, in my perspective, can
ignore that. Staff can’t pick and choose council stipulations or the various stipulated plans
are out there for zoning.
I just want to draw your attention to, again looking at the code, the last council stips had two issues here to begin. I refer to the PHO resolution. The last stips is all prior approved plan to inaudible . . . That’s the way the council stips directing staff to void inaudible . . . plans. The other one is stip two. There is a time limit that has come and gone. That staff can’t modify or delete.
I guess in summary on the inaudible . . . argument that doesn’t make sense to go back to PHO. I’d just like to point out that Mr. Verdugo is no longer the planning hearing officer. There’s a new planning hearing officer. There is probably an avenue, in my opinion, to address some of these issues with inaudible . . .
Pete Hemingway
Scott do you have a question?
Scott Mardian
If the Board, and I don’t know if these even works for the staff, if the Board were to
recommend that the staff accepts the drawings for review for life safety issues and
inaudible . . . they would issue a conditional certificate of occupancy based upon your
fulfilling whatever zoning stipulations that are the outcome of your lawsuits, I’m not sure
that would get you where you need to be. Would it? I guess that’s the question.
Originally I thought you asked us to direct the staff to make this survey. I don’t’ think that’ll get you where you need to be. Is that correct or not?
Francis Slavin
Mr. Chairman and Mr. Mardian, I’m not quite sure I understand exactly the question.
Scott Mardian
After hearing our presentation, what is it that you would like the Board to do?
Francis Slavin
What I’d like for the Board to do would allow my client to make an application, Mr. Doell and
his staff, and whatever we have to submit so it would be for existing construction. What is it
that we have to submit? Then have him assign inspectors to go and inaudible . . . Basically
whatever they have to do to go and inspect the premises to ascertain the work for code
compliance. If we are inaudible . . . then address what those are and we will correct those.
Let’s say Mr. Doell does that and then we made piece with Mr. Doell, as far as compliance just with the Building Code, I don’t think I need a certificate of occupancy if the City will not pursue my clients lack of the C of O and a inaudible . . . criminal or civil action in Municipal Court.
As long as we can stay and continue and occupy the premises and until we get resolved these zoning stipulations, we’ll be glad to do that. I would offer something further, as I stated to you before. I have a lot of confidence in the Development Services Department and in John. I think that we could file the site plan and we could make some improvements that no one would object to. Maybe we could file a phased site plan where the phase that are not objectionable to us, the landscaping. Don I don’t care about the 2001 stipulations when it comes to landscaping, that’s ok with us.
Simply we could do a phased site plan and we would build these. We’ll go and put the trees in and whatever we have to do there to make sure the neighbors feel comfortable. The other part, the neighbors don’t see any action going on, so their calling the councilwoman’s office, and I’m sure she’s inaudible . . . in DSD saying what are you guys doing with this. We could do a inaudible . . . here until we get to that point. I don’t want anybody to get the impression that we believe that anything that occurs on that site has to inaudible . . . the outcome what Don and I inaudible . . That might take us yet a while.
I will be willing to do a phased site plan. Don’t give me a C of O, don’t give it to me. Let me do a phased site plan. We’ll build what we have on the phased site plan, let us get complied with the building code. Don’t give us a C of O. Once we get the final plat over on the main stipulations, we comply with those. Once we comply with those, we get the C of O. I don’t see how that would place anybody in harms way. It should address the neighbors concerns to address DSD’s concerns.
Pete Hemingway
Patricia
Patricia Childs
I have a couple of questions. One I have a tendency to side with Mr. Jones on doing a code
modification. It concerns me because this might just be just once case before us. I’m not
sure what the ramifications of that would be. Secondly there’s been a lot of discussion about
the neighborhood. I don’t see anybody from the neighborhood here. That concerns me as well.
We’re going to make some decisions and they have no opportunity to voice an opinion on.
I’m not sure that the question was answered, Mr. Slavin, I’m not sure if it was Darrell or Herman that asked you, why wasn’t there original compliance with the first set of stipulations? Part of me is inaudible . . .find it hard to believe that someone that has a licensed architect and a builder that no one said, oh by the way you need to do this stuff, that concerns me.
So I guess my question to you Pete, why was there no effort initially to conform with the first set of stipulations?
Francis Slavin
Mr. Chairman and Ms. Childs, I can’t give a clearer explanation that what I gave Mr. Orcutt.
Imagine inaudible . . . and I know that inaudible . . . I can’t explain it but, and the only
thing that I can say is that I would bet that these have as much scar tissue inside his nose as
I have inside mine. We’re getting our noses bloody for the various things we get into with our
clients all the time.
But I’ve seen stranger things happen than this, but I’m not trying to be flippant with you, I’m trying to be straight forward with you and I share your concern about the neighborhood. There are some issues inaudible . . . and they don’t want lights shining in their house. I wouldn’t want that either, I’d be raising cane over that.
I can’t explain it to you. My client is not educated in these fields at all. He’s got a degree in Theology. He believed whoever he hired he got the necessary permits through the City and they were inspected and approved. According to our contractor, he got those inspections done.
It sounds a little inaudible . . . because back at that time there were site plans. Why didn’t someone at the City say wait a minute, you got to go upstairs and get your site plan, or where ever else he had to go. I can’t explain that. All I can tell you is simply my clients has never had a problem complying with, once they understood, and they’ve been up here again and not realizing they needed a site plan.
Even though they were operating in the opening and had been given inaudible . . .to the City even after the building code situation that they were converting this to an office. All I can tell you is simply is that it’s the darnest thing I’ve ever seen of this type of a thing that they could have been there inaudible . . .
So we pledge to you that we correct the problem and we’ve tried to do it, but there’s always these catch 22 that come up. I think that DSD wants to work with us. I think that the neighbors want to work with us. We’ve had meetings with the neighborhood We’ve negotiated some of these stipulations, but the two we couldn’t go for are the two I told you about.
And that’s not a problem. I’ve been bold in negotiating hundreds of sets of zoning stipulations and we can’t meet them. All is I can say is Maricopa. We didn’t do what we were suppose to do, but we didn’t know that then.
Darrel Wilson
Can you tell me how long the lower parking lot is been in its current condition, its size, its
shape.
Francis Slavin
The lower parking lot has been in that condition since the time my client acquired the
property. In terms of it’s size and shape it’s the only non inaudible . . . private property.
It’s up next to the residences. Cars have been parked on there for years. When my client
bought the property, it was rather large.
Darrell Wilson
And it was paved
Francis Slavin
It’s gravel
Pete Hemingway
Well, your client paved it.
Francis Slavin
It was paved two or three years ago. If you’d like that story, I’ll tell you that one.
The paving man came by and said you’re using an existing parking lot you don’t need a permit to
pave it.
Darrell Wilson
The last thing from my perspective is considering all the inaudible . . .per year, would you
mind just restating in the clearest terms that you can, what do you think would be
inaudible . . . prescription to your request at this point.
Francis Slavin
We are seeking a modification of the construction code so as to allow this property to proceed
forward out of sequence, if you will. That instead of going through the normal site plan
requirement and getting design review done and accomplishing all that with the zoning
stipulations, we’re asking to out of sequence and we’re asking the code be modified so that the
inspections can be done and the property can be code compliance as far as the Phoenix Building
Code is concerned.
We are willing to accept I’d like to suggest to you, we would be willing to file a phased site plan. That phased site plan would address all of these stipulations you inaudible . We’d process that through DSD and we get an approval of that phased site plan with no C of O. Once we can prove our case in court we can prove without litigation, I don’t know.
At the conclusion of that when it’s ultimately decided all the applicable stipulations inaudible . . . will remaining documents necessary for a second phase of the site plan towards issuance of a C of O.
You might not be able to go there as far as a phased site plan. You’re dealing with an appeal, excuse me, a modification of the building code. Because the building code is tied to the zoning code, I believe we can make that recommendation. We will promptly file, with Mr. Doell, inaudible . . . plans together with the inaudible . . architect code compliance check and place in those plans any inaudible . . . to the code. Although we had done some improvements in 89’ and 90’.
We will submit all of that and approve all that with Mr. Doell and the people in his department. We would also expect that DSD would drop it’s classification of the municipal court citations against my client with the right to refile those if there is failure to comply or whatever else. I’d like those dismissed without prejudice
Don Jones
Mr. Chairman in regard to that last light, it’s beyond the scope of this Board.
Pete Hemingway
Yes, I was going to say, that’s a bit beyond our . . . go ahead.
Patricia Childs
I have two questions. One I want to ask Mr. Jones, if we have the authority to change the code?
Pete Hemingway
I think item 1 on 5.3 in the Uniform Building Code 97’ says’, Limitation of Authority of the
Board: The Board shall have no authority relative to interpretation of the administrative
provisions of this code, nor shall the Board be empowered to waive requirements of this code.
The Board shall have no jurisdiction over any requirement that a permit must be obtained
decision to pursue enforcement actions in accordance with the provisions of the City code or
the amount of any fee prescribed by the City Code.
In line with Patricia’s question, Don, is that saying we cannot. Because he’s asking for a change in the code, is he not?
Pete Hemingway
Mr. Chairman that provision means that you cannot lay the provision of the code. You can only
exercise the same degree of authority that the Building Official in granting a modification
which is found in 104.2.73. Without unusual or unreasonable physical difficulties involved in
carrying out literal provisions of this code, the Building Official may grant modifications for
individual cases. The Building Official shall first find that a special individual reason
makes this letter of this code impractical and that the modification is in conformance with the
intent and purpose of this code. Such modification does not lesson any life safety
requirements, any fire protection requirements, or any degree of structural integrity. A
request of a modification of a code requirement shall be made in writing on a form provided by
the Building Official and shall be accompanied by a non-refundable fee as set forth in the
inaudible . . . City Code.
Don Jones
In deciding a case, the Building Official may consider or require alternate methods of
assistance to use and compensate the particular code provision to be modified. The details of
any action granting a modification shall be recorded and entered into the files of the
Development Services Department.
Pete Hemingway
Ok, go ahead Patricia.
Patricia Childs
The last question I have is, we’ve heard from everyone else, are we allowed to hear from Rick
as to why he made this decision on this case.
Rick Doell
In this particular case, Bob Goodhue was delegated as the Building Official. I do support his
decision, though, because what is being requested is a change of the code. It is also a change
of a directive from out department head that we also have to comply to every stipulation before
we issue a permit.
???
Including zoning
Rick Doell
Well those are the stipulations I’m referring to. As a Building Official modifications are
high because our department head has basically said, “because of planning request and some of
issues of having stipulations of the past, that we do not issue permits until zoning is
satisfied.”
Pete Hemingway
Right now, if I understand it, because you haven’t complied with these stipulations, the zoning
has not been satisfied. Is that the essence of what we’re talking about?
Francis Slavin
That is correct but we have filed site plans with Development Services Department that we
believed complied with the stipulations stating inaudible . . . accept the ones that we filed
in protest.
Rick Doell
Once those site plans are filed that have preliminary site plan approval, we can then issue you
the building permits.
Pete Hemingway
And you’re not providing that preliminary site plan approval because?
Rick Doell
I believe in this case that we’re not showing compliance to the stipulations. But I’m not that
familiar with the . . .
Pete Hemingway
Ok, go ahead.
Scott Mardian
Mr. Slavin maybe given a simple answer that’s more appropriate. If you go ahead and file for
the permit with the stipulations that the City Council put on you, that won’t preclude your
civil action where your protesting those actual stipulations. Is there any provisions for him
then to come back to the City and say, hey, I got a permit that was issued and now I’ve had
those in the civil proceedings, those stipulations were overturned. Is there anything in this
construction process and all that that would be delaying at the same time as this legal process?
Herman Orcutt
Let me ask a question. Can he file a site plan looking for a permit to do all the stipulations
that he agrees with, and not include the two that under contest.
Francis Slavin
Can I respond to that because I think we’re getting somewhere with the question Mr. Mardian
asked. If Don and I can work something out in the litigation that if we came in file a totally
informal site plan with the 2001 stips. As long as that does not tie my hands, unless we go
all the way through that and get a C of O and then all of a sudden Don would plead in the law
suite that I can’t go behind the C of O now, it’s to challenge those two stips. If I could
work that out with Don, and the law suite will be precisely what you’re suggesting, I think
that’s a wonderful way to do it.
Scott Mardian
Mr. Chairman and Rick would that work for you that’s he’s agreeing . . .
Pete Hemingway
He’s agreed to submit a revised site plan with everything except for the two.
Scott Mardian
And in 2003 inaudible . . .he wins in civil court or whoever, hey he didn’t really have to, he
didn’t need this, he’s not restricted for the use of his parking. Is there a provision where
he then come back and say, I got a building permit under these terms.
Rick Doell
I think what we’re talking about is the normal process. He’s going to bring in a site plan
which can be approved with the stipulations that are in at effect at the time. He gets an
approved site plan, he brings in the building plan related to that development that complied to
the building code, we issue the permit, which has a two year life. During that period of
construction to meet the building code, he gets the stipulations overturned or somehow changed,
he files an amended site plan to change the site plan referred to approved to get the permit,
he’s done.
Pete Hemingway
So what you’re saying is, you go through the approval process, he gets a two year reprieve, so
to speak, because it’s been approved. Then he’s got two years to resolve his, or within . . .
Rick Doell
The permit is good for two years, he has to keep it live with certain parts of the code. The
occupancy issue is still a valid thing because . . .
Pete Hemingway
But then you’re pursuing him still on the civil case for the certificate of occupancy in
essence saying he can’t occupy the building.
Rick Doell
Right, because he won’t get that balance certificate of occupancy until construction is
finished.
John Parks
Mr. Chairman, I hate to spoil the party. The only problem I have that I need to defer to
Mr. Jones is I don’t believe we can approve the final site plan because:
1) The stips
2) Time has come and gone, 90 days from council action
Pete Hemingway
That the only agreed to complete stipulations 1A through 1H within 90 days of the City Council
action or the property will be subject to the provision of Section 506 of the Zoning Ordinance,
which is?
John Parks
It was in essence, I think council was talking about positive parking and zoning. DSD staff
would need clarification needed from PHO or someone. I believe DSD staff would not interpret
that stip.
Pete Hemingway
It seems like even if we did what we did, it doesn’t apply, because according to City Council
that 90 days have expired and he’s… we’re trying to overturn something that we can’t overturn.
Rick Doell
I would suggest that we look at the original decision made by Mr. Goodhue that that’s a very
valid decision. The second part was the applicant should seek advice from the Planning
Department on how to address compliance with or appeal of the Phoenix City Council decision.
What we’re saying is, go to Planning, have them come up with some sort of agreement as how we
can accept this in Development Services and we will issue the permit. We will allow you to
occupy if Planning is in compliance with that or ok with that. We don’t have the authority to
overrule Planning.
Francis Slavin
Let me understand if I can, Mr. Chairman, what Mr. Doell is saying is that, and I respect what
John is saying. First of all, it totally impossible for us to do all this work in 90 days,
that’s just a ridiculous stipulation and I’m not going to go there. If we come in and go to
this new PHO and he gives us a longer time period and taking in account the 24 months we have
inaudible . . . I need a clarification first of all from John or from Rick.
Francis Slavin
If we got the 90 day period extended, does that mean that we just have to come in and get the
final site plan approval and get the permit issued within whatever time period it is that we
actually psychically construct the improvements.
Rick Doell
I’ll refer to John on that.
John Parks
No, we would process the site assuming we didn’t have the time stip issued. We could approve
the site plan, assuming the stipulation complied. That site plan is valid for two years.
Francis Slavin
If we did within the grace period. Let’s say, council said do this within 90 days, if had come
in and done this successfully in 90 days, would had been bias the two years we’re talking about?
Pete Hemingway
I think what you’re asking is, what he’s saying is that you have to go back to the Planning
Hearing Officer, get the 90 days waived. If that’s waived then you come in and get the site
plan approved, we know that you have two that you have issues with, but that gives you a two
year window to resolve your civil issues. I would kind of suggest that the rest of the items
beside those two, that you go ahead and take care of all of those. I understand that your
client may not want to spend the dollars right now, but. . .
Francis Slavin
I have a couple of additional questions. If for some reason or another the PHO does not give
us any time, then we’re still being pursued by DSD for not having a valid Certificate of
Occupancy.
Pete Hemingway
Right.
Francis Slavin
And I want to keep in mind that’s why we originally came here. So that if we proceed to go to
PHO and get this time period pushed back and get sign off on our site plan. I’d like to work
something out with Don that whatever my client submits does not waive anything to do with
litigation. I don’t want that taken across the street and we’re told inaudible . . . I think
we can work that out, can’t we Don?
Don Jones
Mr. Jones acknowleged Mr. Slavin’s comment
Francis Slavin
If we get that done we come in and the PHO grants us a time period fine. If the PHO doesn’t
grant us the time period and/or the Council, if it gets appealed to the council, let’s say they
grant us the time period and the neighborhood inaudible . . . council turns us down, we’d still
be in the catch 22 of occupying these premises without a change of occupancy.
Pete Hemingway
But what that does for us, I think, is then we’re not trying to overturn the City Council
action of putting the 90 day extension, which we as the Development Advisory Board, according
to what we’ve read today, we really, that’s outside of our purview to overturn a 90 day
extention.
Francis Slavin
I don’t think we’re asking you to do that. I mean inaudible . . .this is a solution, but I’ve
never asked you for that.
Pete Hemingway
I know you haven’t specifically asked.
Francis Slavin
In essence of what you’d be doing, I want to correct that. I think we’re going to get right
back into the inaudible . . . that we got in with Bob Goodhue. As it’s simply this, no matter
the zoning stipulations said, we’re asking for a modification of the code, so irrespective of
whatever zoning stipulations are out there, that we inaudible . . .as far as life safety issues
are concerned under the building code that we get those complied with.
Pete Hemingway
But what is the specific modification to the code that you’re asking us to modify to allow you
to move forward.
Francis Slavin
What I’m asking you to do is to modify, we we’ve made application, and we’re asking you to
modify the provisions that talk about you can occupy without complying to the zoning
stipulations. You can’t occupy without a change of occupancy. What we’re asking you to do is
modify those provisions so that the Development Services Department could go ahead and check
for code compliance without saying our hands are tied and we’re not allowed to do this because
they haven’t filed a site plan that conforms with all the zoning stipulations.
I realized that maybe the director of the department has said to Mr. Doell in most circumstances you are to do the following and that would be new because I didn’t know about that until just today, that was never raised in my hearing.
There are special circumstances that apply here, Mr. Jones, has read those to you. It does allow you to modify the code as it applies to this property under those special circumstances. We are attempting to get code compliance. We will come back in and do what’s been suggested. We’re trying to get code compliance.
DSD under their charge has determined that we don’t have, they searched their records, we don’t’ have a C of O, and we’re still going to pegged that way. They’re pursuing what the code said, they’re pursuing this with a foundation. They also said that we’ve done some construction out there that we did without a building permit and I specifically refer to inaudible . . . the residence heard inaudible . . .
Francis Slavin
He’s continuing, his department has continued to pursue my client, which they’re to be in it
for failurance of legal occupancy. First of all I want to avoid that. Second of all, I want
to make sure that our premises are in compliance with the building code. We can’t go out there
and touch one thing with Mr. Doell’s permission and him issuing us a building permit where we
will be in violation for doing that.
So we are absolutely at a stand still. We’re not allowed to move and yet we’re being prosecuted because we haven’t done this. That’s the concern I have and that’s why I think you can modify the code and no matter what the director of the department might say, you have the authority to modify this code. To grant the relief under special circumstances. If you do that you’re not at all picking or choosing from or inaudible . . the zoning stipulations that apply. I just want to be code compliant.
Pete Hemingway
I understand, any other questions or comments?
Darrell Wilson
You’ve referenced a couple of times this morning to have DSD deal with the inaudible and you
the project and code compliance. Is your interest with regard to current code compliance
specific to the structure itself, or would that also include code issues related to the site,
site plans, such as parking.
Mr. Chair and Mr. Wilson, it would not apply to site issues at all. It’s merely the structure. Whether or not the structure complies with the inaudible . . . built, that’s what we’re looking for. We’re not looking for Mr. Doell to pass any site issues, design review issues, just looking for the code.
Any other questions? I just want to remind the Development Advisory Board that we have options as far as our decision.
? Affirm the decisions of the Building Official or Development Services Director
? Remand the matter for further proceedings before the Building Official or Development
Services Director
? Reverse or modify the decision of the Building or Development Services Director
? Have a formal motion stating what our modification would be to the Building Official’s
recommendation
Patricia Childs
May I ask a clarification on the second item that you said?
Pete Hemingway
Remand the matter for further proceedings before the Building Official or Development Services
Director. I think in essence what we would be doing there is sending back to Mr. Goodhue for
further resolution, which case he could take, I don’t know if he would, he could look at it
again and make another recommendation.
Rick Doell
Mr. Chair, I also refer to the administrative part of the code, Section 105.2, subsection to
appeals. It basically describes what can be appealed and what cannot. Those three items
listed have to be the essence of this appeal. It’s not just looking at the decision of the
Building Official.
Pete Hemingway
You actually have a copy of this. It’s part of the packet that Joe McElvaney handed out where
it says that one page, page 1-6.2 where it says under appeals items 1, 2, and 3, under the
second column, that’s what Mr. Doell’s referring to.
Francis Slavin
Is that in this packet that was handed out. Where would that be found.
Pete Hemingway
On the very first cover page, where it talks about these three items. It shows appeals, it
says,
Item 1, The true intent of the Phoenix Construction Code has been incorrectly interpreted or
the provision of the Phoenix Construction Code do not fully apply or an alternate method of
complying with code requirements should be approved because the standards set for below are met
and the inaudible . . . shall be on the agreed person, which is you, to demonstrate that the
standards are met. Then it lists the special circumstances or conditions that apply to this
permit, which I guess where we fit under, but
Yes, Barbara
Babara Koffron
I have a question for Mr. Parks, please. If it went back to the Planning Hearing Officer,
could that be arranged that council staff and planning meet to discuss the 90 days, get the 90
day issue. Once that is resolved that this could move forward. It would see to me that you
have a solution at hand, the 90 days is the hold up. I would think that for the sake of the
neighborhood the City Council would be willing to look at somehow moving this forward and that
if there was a good effort on part of the appellant that this actually move forward and get out.
There’s been a number of opportunities to move forward and get this done. Everytime there’s a meeting additional stipulations come on. I think it’s an indication of frustration in the process to. If we could perhaps see that a Planning Hearing officer inaudible . . . taken care of and then move this along that way.
John Parks
We’re certainly willing to work with Planning and the Council Office. The request inaudible . . .
Barbara Koffron
Would the appellant be willing to do that?
Francis Slavin
Mr. Chairman, yes we would. We’d be willing to go back and mend that time period so it
commences the process inaudible . . .if we get that done, I think we would solve this.
Barbara Koffron
To look at perhaps inaudible . . . our decision for 30 days and seeing what the Planning Officer can do.
Pete Hemingway
Right, I’d be willing to concur with that.
Greg Russell
I’d like to make a recommendation that the hearing officer can actually be here to speed it up.
Pete Hemingway
To expedite the process.
Rick Doell
Mr. Chair, we have a representative from the Zoning Department, Sandy Zwick.
Pete Hemingway
Sandy, can you come up?
Sandy Swick
Sure. I’m actually the City’s Planning Officer for the Planning Department. It’s been very
helpful for me in order to able to have heard this discussion. I do concur with what the Board
has been doing in that what obviously needs to be done is there has to be a PHO request with a
recommendation to City Council to do an amendment on that 90 day time stipulation because
essentially the project is shut down because the 90 day period has gone past. There isn’t
anyway to get around that without amendments to that stipulation. That would be the first
thing to do.
Once that’s done the applicant can submit a revised site plan or submit the site plan to comply with inaudible . . . stipulations in their inaudible . . . and moving along with your project. They do have the two year time period from the time the final site plan had been approved in order to be able to work out their court situation. As Rick Doell has said, during that period of time if the court finds in their favor they can certainly file an amended site plan and not comply with the stipulations in question. The City does have the process to go through.
The one thing that I would like to suggest to the Board, however, we do have advertising requirements for the Planning Hearing Officer. They are public hearings. We have to put them in the newspaper and we have to notice the surrounding neighborhood. What the Board wants to do is to get the decision from the Planning Hearing Officer before you come back for your continuance. I would suggest that you wait longer than a one month or 30 day continuance in order to do that.
Pete Hemingway
What would we need, Sandy?
Sandy Zwick
From the time that an applicant actually submits an application to get on the Hearing
Officer’s agenda it’s usually about three to four weeks. Because it’s a noticed meeting, we
are also required to ask the Village Planning Committees whether or not they would like to
review the request. If the Planning Committee would like to review the request, that could, in
fact, delay the Planning Hearing Officer hearing to a time until just after the Village hears
the request. I would say maybe three months. That would be the worst case scenario. I think
that Mr. Slavin would agree that maybe would want to keep this request.
Mike Colletto
I’ve got a suggestion that may work. If the applicant was to simply withdraw at this point and
move forward that way, he can always come back again. There is no provision that he can’t
reappeal or reapply is there?
Rick Doell
Not that I’m aware of, but I will defer that to Mr. Jones.
Herman Orcutt
We could also continue this, too.
Pete Hemingway
Yes, we can continue it. I would like as a minimum as if the Board would consider, I think 90
days is a bit far out there. I understand that you’re under a time constraint, that at least,
as a minimum, at the 60 day period we at least hear back a report, if nothing else, a status on
where it is so that we can, whether we want to move forward on a continuous basis or render
decision in 60 days or two months from now.
Sandy Zwick
Mr. Chairman, we can certainly do that. What I would also suggest is that we can’t do anything
to set up the hearing until we actually get an application from the applicant.
Pete Hemingway
Sandy, I’m sure that if the applicant doesn’t get it in, you’ll tell us in a couple of months,
and we won’t be happy with the applicant.
Francis Slavin
Mr. Chairman I have to apologize to Sandy, I forget she was a PHO too, or I wouldn’t have made
those comments.
Sandy Zwick
Your forgiven.
Darrell Wilson
One thing that I’m curious about is there a mechanism in DSD that might allow the applicant to
choose to go at risk and prepare his preliminary site plan and have DSD review that site plan,
so at least that portion of the process, timewise, is not being lost while the PHO is being
pursued.
Pete Hemingway
I’m sure that Development Services wouldn’t have a problem with that.
John Parks
We can initiate that process. In all likelihood if the PHO hasn’t happened, will put that
site plan on a time extension.
Pete Hemingway
You could process and start on that process.
Francis Slavin
Yes, that’s great, thank you.
Pete Hemingway
Mr. Chairman, I would move that the applicant meet with the hearing officer and report back
to the DAB within 60 days regarding the status of the progress and that we continue this for
that period of time.
Mike Colletto
Instead of saying 60 days, why don’t we say the second regularly scheduled meeting, which gives
us 60 days.
Pete Hemingway
OK. Mr. Jones so in essence we’re going with Item 2 remanded back to the matter for further
proceedings or is this taken as a continuance?
Don Jones
Mr. Chairman, no it’s not a remand. It’s a continuance for consideration by the Board.
Pete Hemingway
Ok, so everybody understands the motion.
Herman Orcutt
Mr. Chairman, I’d just like to make one comment. I think generally this Board, since it’s the
last court of appeals, so this is the last step, we need to emphasize inaudible . . .to act if
we possibly can. Having said that I think in this case, I think if it could be worked out
another way, we need to try it. I think that’s what we’re doing here.
Pete Hemingway
No further comment.
All those in favor - All in favor
Any Opposed - None
CALL TO PUBLIC:
Mr. Rus Brock, Homebuilders Association, stated that he had a request from a builder regarding
adhered veneers, which is a type of artificial rock that is usually put in front of homes for
landscaping. He mentioned that the some of the builders have been notified that they are
required to get a special inspection on the adhered veneer. The builders have raised several
questions and requested an appeal to that decision.
Mr. Brock reported that one builder has gone through several inspection companies to get a certified engineering company that would do inspections. Unfortunately, they have not been able to locate any one to do these inspections. The builder also suspects that this is not being uniformly required throughout all of the adhered veneered being installed throughout the entire city. The builders are asking, “what other firms are doing these inspections?” Mr. Brock continued to explain that they need an answer to help validate that this is a standard requirement and is being consistently required throughout the city.
Mr. Hemingway suggested that City staff prepare a response to Mr. Brock for clarification of this process.
Mr. Brock distributed a memo in regards to Codes Standards and a Case for Good Government, along with a article out of the July-August 2002 Building Standards magazine. He stated that the NFPA 5000 would be adopted in January 2003. He continued to explain that the DAB has an obligation to make a recommendation to City Council and that that recommendation that the NFPA Code, in its newness, is not appropriate to be adopted and maybe the City stay where they’re at. He stated that he would like to encourage the Board to keep an open mind to the whole NFPA 5000 issue. Mr. Brock stated that he has not seen the final version and he’s not sure whether or not there’s anything to be concerned about, but he’s very reluctant to see this code as the final word.
ADJOURNMENT:
MOTION was made by Herman Orcutt, seconded by Mike Colletto, to adjourn the September 19, 2002 DAB Meeting. Motion carried unanimously.
Session adjourned at 5:45 p.m.
Respectfully submitted:
Rick Doell, P.E.
Deputy Director, Building Official
Minutes Prepared by:
Carole Borrego, Secretary III
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Board Member Mayor Skip Rimsza City Council Members Mr. Fairbanks Mr. Washington City Clerk Mr. Lyons
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Mr. Wendt Mr. Doell Mr. Dolasinski Mr. Goodhue Ms. McKinley Ms. Beckley Mr. Bunyard Mr. Fleming Mr. Horne Mr. Kienow Mr. Mundy |
Mr Parks Ms. Reed Mr. Singbush Ms. Stotler Mr. Thurman Ms. Owens
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Last Modified on 10/29/2002 08:40:20