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HomeMy WebLinkAbout1995-04-19 BAA MINUTESr - MINUTES BOARD OF ADJUSTMENT AND APPEALS ENGLEWOOD.COLORADO April 19, 1995 The continuation meeting of the Englewood Board of Adjustment and Appeals was called to order by Chairman Clayton at 7:30 p.m. Members present: Seymour, Christman, Smith, O'Brien, Welker, Barber and Chairman Clayton. Members absent: None. Also present: Dan Brotzman, City Attorney Nancy Reid, Assistant City Attorney Becky Baker, Chief Building Inspector Jim Blumenthal, Fire Marshal 1 The Chairman stated that with seven members present, five affirmative votes will be required to grant a request. Chairman Clayton entertained a motion to open the public hearing for Case #3-95, continued from April 12, 1995. Mr. Welker made the motion, and Mr. Smith seconded the motion. Upon the call of a vote on the motion all seven members voted in the affirmative. CASE #3-95 Thomas ·Plating Inc. 4695 South Windermere The Chairman asked Mr. Brotzman, City Attorney, to approach the podium. Mr. Dan Brotzman, City Attorney, informed the Board that he had received a letter from Carlos Leal, who was Mr. Thomas' attorney, dated April 17, 1995, stating that they, the attorneys for Mr. Thomas, will not be appearing at this hearing, nor will they be appearing at the Water and Sewer Board hearing. At this time the Chairman accepted the letter and asked that the secretary incorporate it into the record. I I I ~~~' -· City Attorney, discussed for the Board the issues of consideration for the appeal. Mr. Brotzman stated the powers and duties under the code on an appellate issue require you to be in the same position as the fire marshal and the building code official. He stated the issue of consideration is to interpret the code in the same manner that the fire marshal does and the building code official does; that the code interpretation cannot be varied from those officials. He stated you can use the code sections that allow you items such as alternate means and methods; as would a building code official or fire marshal, but you cannot simply vary from the building code and/or the fire code. Mr. Brotzman continued that the Cease and Desist Order is twofold. One is the authority to issue the Cease and Desist Order. The second issue is the remedy provided in the Cease and Desist Order. He added that there are other contents in the Cease and Desist Order which are a basis for the use of the cease and desist and the remedy that's provided; however, those have expired as to the limitations period for appealing those issues. Chairman Clayton clarified, stating the appeal is strictly to consider whether or not the City through the fire marshal and the building code official, has the authority and used that authority properly to issue the Cease and Desist Order, and if the remedy that they have provided is appropriate. The Chairman asked City staff to identify those issues. Mr. Jim Blumenthal, Fire Marshal, was sworn in for testimony. Mr. Blumenthal began by discussing the authority under the Uniform Fire Code, Section 103.4.5, unsafe buildings, and read the section into the record: "Buildings or structures which are structurally unsafe or not provided with adequate egress, or which constitute a fire hazard are otherwise dangerous to human life, or which in relation to existing use constitute a hazard to safety or health or public welfare by reason of inadequate maintenance, dilapidation, obsolescence, fire hazard, disaster damage or abandonment as specified in this code or any other ordinance, are, for the purpose of Section 103.4.5, unsafe buildings. Such unsafe buildings are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal. See the procedure specified in Chapters 4 through 9 of the Uniform Code for the Abatement of Dangerous Buildings." Mr. Blumenthal concluded stating that the significance of "shall be abated" is interpreted as a code issue that we (City officials) are ordered to do. He clarified for the board that the issuance of the Cease and Desist Order was done jointly with the building official. 2 •• At this time because there were questions from the Board concerning both fire and building codes, the Chairman asked that the Chief Building Official be sworn in for testimony. Becky Baker, Chief Building Official, was sworn in for testimony. Ms. Baker answered the question as to the Building Department's authority in issuing the Cease and Desist Order by citing the second paragraph of Section 102 of the UBC: "As an alternative, the building official, or other employee or official of this j urisdiction as designated by the governing body, may institute any other appropriate action to prevent, restrain, correct or abate the violation". Ms. O'Brien asked Mr. Blumenthal if he considered the building a fire hazard. Jim Blumenthal, Fire Marshal , stated he did not. He affirmed that he acted under Section 103.4.5, Unsafe Buildings of the UPC. He cited Section 103.4.1.3. of the UPC which authorizes the chief to order an operation or use stopped or the evacuation ofany premises, building or vehicle or ·portion thereof which has or is a fire hazard. Ms . Baker, Chief Building Official, continued her testimony asking that the entire packet for the case be entered into the public record. She stated that the building and fire codes are adopted by the City, that it is the responsibility of the officials to oversee that those codes are enforced in order to provide a minimum level of safety for its citizens, and the public. She explained that the authorization for the Cease and Desist Order for the Building Department is referenced from Section 102 and 104.2.5 of the UBC, the Abatement of Dangerous Buildings, Chapter 3, Section 301, and 302, Subsections 1,2,9, and 16. She cited a paragraph from Section 302: "For the purpose of this code, any building or structure which has any or all of the conditions or defects hereinafter described shall be deemed as a dangerous building." and explained that any one of those items (conditions) in that list of 16 alone can classify a building as dangerous. Discussion ensued on the Abatement of Dangerous Buildings codes. 3 Jim Blumenthal, Fire Marshal, reviewed the violation history of the subject property: May 1994-The Chief Building Official and Fire Marshal spoke to Mr. Thomas concerning issues relating to the non-complying use. June 2, 1994-A Notice and Order was sent to Mr. Thomas outlining steps that he would need to take to confirm compliance for his operation. Due date for his response was to the City was August 1, 1994. August 5, 1994-A Summons and Complaint was issued to Thomas Plating for failure to comply with the Notice and Order. September 8, 1994-City received document from Mr. Thomas with a proposal from an architect detailing the cost for remodeling the facility. This was only a cost estimate and did not detail any floor plan or specifics. •• City staff had requested (in the Notice and Order) detailed plans, (blueprints) and a preliminary submittal from the architect. Mr. Thomas's letter stated that he and his architect, Mr. Morris, believed the requirements were more than necessary to accomplish • safety needs. October 3, 1994-Court Hearing. Mr. Thomas was issued a deferred prosecution. He was ordered by the court to accomplish the items in the Notice and Order. Quarterly reviews were ordered to track his progress. October 25, 1994-Mr. Thomas requested a meeting with City staff. The Fire Marshal, Chief Building Official, and the City Attorney met with Mr. Thomas. Mr. Thomas indicated that the cost estimate, between 3/4 to 1 million dollars, was more than he could afford. He wanted to provide an alternative plan that · would be reasonable, yet safe. Staff agreed to look at a different proposal. The City stressed that they needed a plan of the facility for review. November 1, 1994-A letter was sent to Mr. Thomas repeating that he would need to "prepare a document addressing "code" related items" and three expectations of what the document should provide. Again a deadline was established: December 1, 1994. Mr. Thomas failed to provide any "plan" by December 1, 1994. November 1994-A permit was issued for installation of exit doors. In the Plan Review Summary it was stated that the doors was only one item of compliance from the Notice and Order of June, 1994. It did accomplish a requirement given to him by OSHA. 4 •• December 7, 1994-City received a FAX from Mr. Thomas stating he had studied the 1994 UFC , particularly existing buildings, and determined that his building currently met all of the minimum requirements of the UBC, concluding his building would require no alterations. He did concede that he may have identified a storage problem and that a containment system needed to be implemented. December 12, 1994-City received a FAX from Mr. Thomas repeating that "existing conditions" apply to his facility. December 15, 1994-City received a FAX from Mr. Thomas stating he was planning on installing a concrete sill 4" in height wall to wall. Mr. Blumenthal stated that containment of all chemicals wall to wall would make matters worse if a spill occurred. Mr. Blumenthal stated at this time City staff began working on the "Cease and Desist Order". Faxes were received from Mr. Thomas-January 12, and February 23, 1995. Copies were entered into the public record. February 23, 1995-the Cease and Desist Order was issued to Thomas Plating Company. Mr. Blumenthal, Fire Marshal, responded to a question concerning Thomas Plating submitting information on what hazardous materials existed in their building. He discussed occupancy classification based on types of hazardous materials. He stated that Thomas Plating had reported having approximately 4,000 gallons of corrosives, and that Thomas Plating would only be allowed 100 gallons in open systems. or 500 gallons in closed systems. When the EPA did an inventory of the facility, the actual total amount of hazardous materials was in excess of 20,000 gallons. Board Member Smith questioned the City Attorney regarding the occupancy classification of the building, and if construction is an issue, then is Mr. Thomas bound to meet the UBC and the UFC codes. Mr. Brotzman, City Attorney, affirmed Mr. Smith's questions that Mr. Thomas must meet compliance with those specific issues and sections pertaining to the Thomas Plating building as outlined in the Notice and Order of June 2, 1994. 5 Mr. Smith stated, then we must concluded that Mr. Thomas is bound to the Notice and Order •. of June 2, 1994, because he did not appeal the classification of the building as a Group H occupancy which was assigned due to the quantities of hazardous materials present. Mr. Smith further stated since the appellant did not appeal the June 2, 1994 Notice he was bound by that Notice to have: · " the building housing those materials must be constructed and maintained as a Group H Occupancy, thus requiring proper housing of hazardous materials." Mr. Blumenthal, Fire Marshal, discussed the Cease and Desist. He stated most of the issues have to do with building codes, that the fire code is a maintenance code that addresses issues such as the maintenance of exits, sprinkler system, etc. Mr. Blumenthal discussed Section 80.101 with respect to storage use and handling of hazardous materials. He submitted for the record the EPA report and photographs of the subject property. He described the condition of a storage tank, the corrosion surrounding the tank, stating it indicates there is a lot of airborne corrosive, oxidizers in this area. At this time the Chairman asked the person responsible for the report and photographs to be sworn in for testimony. Steven Way, On-Scene Coordinator, United States Environmental Protection Agency • was sworn in for testimony. Mr. Way stated he did not take the photographs but has been in the facility and witnessed the conditions. Mr. Way explained that the photograph is an example of a storage vessel at the facility exhibiting significant corrosion, either from the atmosphere in the facility due to spillage, and it is one of many photographs indicating storage tanks deteriorating due to conditions of the facility. Mr. Blumenthal, Fire Marshal, continued with his illustration of the conditions present by referring to the photographs. He pointed out areas of rust, corrosion and holes in the tanks. He directed the Board's attention to improper maintenance under a tank, the presence of hazardous chemicals spills, improper walkways for employees, electrical cord running through spilled material, and the deterioration of concrete blocks used as supports under tanks. Ms. Baker, Chief Building Official, answered questions from the Board members. She was asked if the conditions depicted from the photographs characterize Thomas Plating as a dangerous building based on violations of the building code alone. She affirmed, referencing the abatement of dangerous buildings citing: 6 •• "any use of buildings constituting a hazard to safety, health or public welfare." Ms. Baker stated the facility does present a danger to the public welfare. She entered into the record (exhibit #7) a report from the Technical Assistance Team {TAT) for the U.S . EPA that conducted a site assessment at the Thomas Plating facility at 4695 South Windermere. The study resulted in reporting that the facility is within 100 yards of the City of Englewood's drinking water reservoir, that the nearest residence is immediately adjacent to and north of the site, and that the South Platte River is approximately 112 mile west of the site. Ms. Baker directed the Board's attention to additional areas of concern in the report. Highlighted issues were: electrical cords were in contact with water and product spillage; evidence of historic spillage having impacted soils outside the process building; material tha t appeared to be consistent with the dried wastewater filter sludge was observed in a drainage ditch west of the facility; spills, leaks, and improper storage, handling and/or hazardous substances from this facility. The report concluded that these substances have affected the environment both on-site and off-site, and that the facility contains tanked materials that meet the definitions characteristic of hazardous waste. Also entered into the record was a chemical database sheet on Hydrochloric Acid with fire and health hazard information. She was asked if the EPA report was before or after the Cease and Desist Order. Ms. Baker replied that it was after the City's order. Discussion ensued on the issue of when the City staff concluded the facility to be a dangerous building. Ms. Baker, Chief Building Official, responded stating that when the Notice and Order of June 1994 was issued, the facility was more dangerous than we had first thought. She stated they knew that there were multiple serious problems; that there were a lot of chemicals, an unsprinklered building, inadequate secondary containment, and inadequate exiting. Mr. Blumenthal, Fire Marshal, was questfoned by Mr. Barber as to what communication exchange was there when Mr. Thomas notified them that he considered the use of his bu ilding as grandfathered. He replied he could not recall. 7 A recess was called from 9:00 p.m. to 9: 15 p.m When the meeting was reconvened all seven • - members were present. Mr. Blumenthal, Fire Marshal, responded that up to the time of the Notice and Order of June 1994, Mr. Thomas had not referred to his building as being "grandfathered", that as far as they were concerned when the Notice and Order was not appealed by Mr. Thomas that it was pretty much a moot issue. During the time frame of the Summons and Complaint on August 5, the deferred prosecution on October 3, and again at the meeting on October 25, at no time was the 11 grandfathered 11 issue brought up for discussion. Mr. Blumenthal answered a question on what prompted the City to determine this a hazardous building. He replied that OSHA notified them after an employee fell into a acid tank. He referenced the City Manager's letter to Mr. Way asking for assistance in the investigation of the facility, and it was with their assistance that the City observed hazardous waste, spillage, and inadequate containment at Thomas Plating. Steven Way, U.S. EPA On-Scene Coordinator approached the podium for testimony. He stated that his presentation was to present the findings of the investigation conducted in the course of responding to the request from • the City to provide support with investigating the conditions at the facility. Entered into the record was the report from the Technical Assistance Team for Emergency Response and Removal and Prevention for EPA. Mr. Way discussed their findings stating that the facility contains approximately 20,000 gallons of hazardous materials and that the focus of the investigation was to evaluate or determine the potential or actual release of hazardous substances. Their findings resulted in evidence of release of both visual observation as well as chemical analysis of samples taken both inside and outside the building. There was evidence of spillage out of tanks; deterioration of concrete in foundations, and walls inside the building as well as outside the building. Soils indicated elevated levels of various heavy metals, those used in plating processing: chromium, nickel, zinc, in addition to other compounds such as lead, all of which are hazardous substances under the National Contingency Plan. Mr. Way was questioned about the safety of the City's water supply due to the proximity and operation of the Thomas Plating facility. He responded that the evidence of release suggests that the water supply, that being the Platte River, with an intake downstream where Dry Creek enters the Platte River, has a potential to be impacted by any chemical releases from the Thomas Plating facility. 8 •• Mr. Thomas approached the podium stating he had questions for Mr. Way. Mr. Jerome Thomas Thomas Plating, Inc. 4695 South Windermere was sworn in for testimony. Mr. Thomas questioned Mr. Way regarding the findings at his facility. He questioned the description of a leaking tank, explaining that the tank was in the process of its ingredients being processed through their pollution control system. He furthered stated that the presence of metals in the soils sample(s) could have been there before he started his business. He added that the soils of Colorado are considered to have high mineral contents. He concluded that the lead found could be a result of Highway 85 being adjacent to the facility. Nancy Reid, Assistant City Attorney, asked Mr. Way questions on the chemicals found inside as well as outside the building. Mr. Way, EPA Coordinator, responded that the samples of heavy metals were in excess of background levels in the soil. He agreed that lead could be present in the soil as a result of historical lead gasoline; however, he found lead inside the building as well as outside the building. Scott Klarich, Environmental Protection Specialist- Colorado Department of Public Health and Environment, Hazardous Waste Control Program, was sworn in for testimony. Mr. Klarich gave a brief history of the Department's involvement with Thomas Plating. He stated he found from the department's historical files a reference that the Englewood Fire Department had made a referral to the EPA alleging that Thomas Plating was illegally disposing of hazardous _ waste which prompted the EPA to conduct an investigation. The Department records were inconclusive as to the findings of that inspection and subsequent resolution of that issue. In 1987 the Department of Health became involved when numerous investigations were conducted regarding Thomas Plating's inability to operate the facility in a manner to prevent the potential releases of hazardous wastes or hazardous substances to the environment. Those investigations resulted in the issuing of a compliance order ordering Thomas Plating to take corrective actions to abate the mismanagement of hazardous waste at the facility. The Department is still trying to conclude the outstanding issues that Thomas Plating was ordered to comply with in that order. 9 Mr. Klarich explained regarding following up, that the Department conducted an • . additional inspection in 1994 which resulted in the identification of additional violations of the Colorado Hazardous Waste Act. As a result of that inspection, in October of 1994, the Department issued a Notice of Violation of the Colorado Hazardous Waste Act. Additionally, a subsequent investigation of the facility resulted in a compliance order issued to Thomas Plating for the illegal disposal of hazardous waste to the facility Sewer system. Mr. Klarich concluded that the Department has been unsuccessful in getting Thomas Plating to operate their facility in a manner that is protective of public health and the environment. Mr. Klarich discussed photographs from the 1994 inspections, stating that they were of importance because they were taken prior to the issuance of the Cease and Desist Order. He added they are typical of ones taken by the EPA. He stated the photographs exhibit the structural deficiencies in storage tanks, spillage and corrosion to the floor, and areas of releases to the environment from the Thomas Plating facility. The Chairman asked the appellant to come forward for testimony. Mr. Jerome Thomas, Thomas Plating, 4695 South Windermere Mr. Thomas stated his facility was inspected by the Fire Department on July 21, 199 3 • and at that time no violations were noted. On a previous inspection they (fire • department) found an electrical wire going through the west wall which we removed. Mr. Thomas submitted for the record copies of several inspections performed by the Fire Department. Mr. Thomas briefed the Board on his business. He stated he opened the business began in 1959, that chemicals are used in the plating processing operation. He explained he added a 6,000 square foot building in 1961 and that all permits were approved. Another building was added and all permits approved. He concluded that at no time during those additions and while conducting his business was he informed of containment requirements. Mr. Thomas stated that to adhere to the issues in the Notice and Order would cost close . to a million dollars to remodel the building and bring it into compliance. Mr. Thomas concluded that in his opinion if the facility was legal in the past it should be legal today; ie: that it is grandfathered. He added that they have a good state comp rate and have a lower percentage of accidents than other platers in the area. He stated that . OSHA conducted an investigation when one of his employees fell into a tank, but that they have not' been cited since that accident. 10 •• A recess was taken from 10:45 p.m. to 10:55 p.m. The meeting reconvened with the seven members present. Mr. Thomas, Thomas Plating, 4695 South Windermere continued with his testimony. Mr. Thomas stated that a plating business is a corrosive business and that it is a constant maintenance struggle. He responded that he has been in business for 34 years and has not caused anybody problems. He concluded stating that the chemicals in the plating tanks are non-explosive. Mr. Barber asked the appellant questions. Mr. Thomas, answered questions from Board members. When asked why he took no action on the Notice and Order, he responded that he was overwhelmed. He responded to the question of safety using concrete blocks as supports for walking surfaces and vats, stating it was common practice. He commented on cyanide stating that it is a basic chemical used in many industries. He discussed being forced out of the processing of gold, silver, brass, copper, and zinc. Discussion ensued on his business being a hazard. Mr. Barber concluded stating that a business owner is responsible for keeping abreast of code changes and changes in the classification of chemicals. Mr. Smith asked Mr. Thomas questions regarding notices from the City. Mr. Thomas, Thomas Plating Inc., admitted he did not provide a hazardous materials plan by August 2, 1994 as stated in the Notice and Order of June 2, 1994. He also admitted he did not comply with the requirements stated in the November 1, 1994 letter because he was of the opinion that if he was legal when he first started business, he was legal today. Mr. Barber asked Mr. Thomas questions on plans submitted to the Building Department for the additions. He questioned if the plans accurately reflected the type of operation being conducted inside the building, showing the location of vats, chemical storage, and quantities of chemicals. Mr. Thomas, Thomas Plating Inc., stated that he assumed the building department inspectors would know from the name, Thomas Plating, what kind of operation was taking place. 11 Ms. Reid, Assistant City Attorney, directed questions to Mr. Thomas regarding OSHA inspections. Her questions concerned injuries, subsequent inspections, citations and penalties. Mr. Thomas, Thomas Plating Inc., admitted there was an injury in 1991 when one of the workers fell in a vat and another injury in the fall of 1993. He added he was cited for things that previous inspectors had approved such as a plan for blood-borne pathogens. He explained that recently an inspector required new doors be installed when previous inspectors had approved the overhead door for emergency exits. Mr. Thomas acknowledged that there were 15 counts in the first citation, and two repeat violations on the second. He admitted that there was a $36,000 penalty fine assessed by OSHA. Ms. Reid, •• Assistant City Attorney, e asked that the Citation and Notification of Penalty report from OSHA be entered into the public record. The Chairman asked City staff if they would like to make a brief closing statement. Ms. Baker, Chief Building Official, stated that "grandfathered" does not apply in this case; that the City and its officials consider the building to be unsafe; that we properly notified the owner of code violations that existed at the time of the June 2, 1994 Notice and Order; and that if the building had been properly maintained action would not have been necessary. Mr. Thomas, Thomas Plating Inc., gave his summation stating that if any chemicals are in the ground they were there 30 years ago; if they were going to migrate into the Platte River it would have occurred years ago; and that in his opinion the building is safe. He concluded he does not consider his business a hazard to the public, and that they have a good safety record. The Chairman entered all exhibits, photographs, and reports into the public record and asked for a motion to close the Public Hearing. 12 •• Mr. Seymour made a motion to close the public hearing for Case #3-95, Thomas Plating Inc. Mr. Barber seconded the motion. I · MR. SEYMOUR MADE A MOTION THAT THE APPLICANT, rnJ oME THOMAS, THOMAS PLATING COMPANY, INCORPORATED, 4695 SOUTH\ WINDERMERE STREET, ENGLEWOOD, COLORADO, FOR CASE NO. 3-95, BE GRANTED AN APPEAL TO THE UNIFORM FIRE CODE 1994, SECTION 103.4.5; UNIFORM BUILDING CODE. 1994, SECTION 102 AND 104.2 .5; UNIFORM CODE FOR ABATEMENT OF DANGEROUS BUILDINGS, CHAPTER 3, SECTION 301 AND 302, SUBSECTIONS 1,2,9, AND 16, WHICH AUTHORIZES THE SERVING OF THE CEASE AND DESIST ORDER RELATING TO ALL OPERATIONS ASSOCIATED WITH THE HANDLING AND USE OF HAZARDOUS MATERIALS . Mr. Clayton seconded the motion . All members voiced in the affirmative. Chairman Clayton adjourned for an executive meeting with Mr. Brotzman to discuss procedure. A recess was taken from 11:42 p .m . to 11:50 p .m. The meeting reconvened with all seven members present. Mr. Smith made a motion to continue the meeting to April 26th at 7:00 p.m. Ms. O'Brien seconded the motion. A voice vote affirmed the motion. The Chairman stated that the public hearing is closed for testimony, and that the continuation i s for the purpose of deliberations and findings of fact. The meeting adjourned at 11:55 p.m . Respectfully submitted, Cathie Mahon , BOA Recording Secretary 13