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Home My WebLink AboutTC Agd Pkt 2015-01-08 (2):F Ragghianti (Freitas LLP Riley F. Hurd III rhurd@r0awllp.com January 7, 2015 Via E -Mail Only Ann Danforth Town Attorney Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Re: 110 Gilmartin Dear Ann: LATE MAIL # AT I Attorneys at Law 1101 Fifth Ave, Suite 100 San Rafael, CA 94901 telephone 415.453.9433 facsimile 415.453.6269 v w .rflawllpxom This letter is in response to your email of January 6, 2015 (attached as Exhibit A), regarding the above -referenced project. While your email contained a number of personal comments, I consider this purely a legal matter, so I intend to respond with facts herein. No permit extension was requested Rob Osborne never requested a permit extension on December 181h, or any other day. Mr. Osborne journals important interactions he has with Town staff. The two important entries regarding your allegation are September 3rd and December 18th. These notes reveal discussions about project valuation issues, not permit extensions. The September 3rd note reads as follows: "Meeting at TOT Bldg Dept w/Tarun: I submitted an estimated final valuation to Tarun so that he could run the re-evaluation fee estimate through the TOT system and provide an approximate cost. I asked about the process for completing the re-evaluation fee process and Tarun told me that we simply submit a completed FV form, he enters the data into the system to produce an amount due, if any. I asked if there was anything else required as part of the process or if we could expect an immediate tum around for amount due and for which we'd write a check. Tarun assured me that the process is exactly that simple and quick. We have a copy of the estimate from Tarun on file in the Permit History binder." \F RagghiantilFreitas LLP January 7, 2015 Page 2 of 3 The notes from December 181h are longer and are therefore attached as Exhibit B. The notes undeniably indicate that the interaction on the 18th was only about permit valuation issues, and had nothing to do with requesting a permit extension. It is incorrect to state that Mr. Osborne requested an extension. Second, Neil Sorensen never formally requested a permit extension, and, contrary to your email, did explicitly state he was not making an extension request. In a December 10th email to Neil, you offered the option of going before the Town Council. In a December 11th reply, Neil stated: "I was not intending to make a formal request for a rain delay extension, but certainly there is an extraordinary weather event going on as we speak, to put it mildly." This seems like a very clear statement. Neil went on to state, "It is still the expectation of TBI and Whiteside that all work necessary to obtain a final clearance from the Town will be complete by December 23rd. We will need the good faith cooperation of Town staff to provide prompt inspections to keep the project on course." Unfortunately, on the 23rd, the project was inspected in an admittedly different fashion than all other projects, and a final permit was not issued. In any event, no one has requested an extension, because one is not needed. The next step is an appeal To answer the question posed in your email regarding our next steps: Yes, it is our intention to leave the project as -is, without the final that should have been issued, and to appeal the failure to properly issue a final. This is not a process we need to "ask" the Council for, as it is one provided by law. We have proof that a) this project was treated differently in the withholding of a final, and b) that no work, if done in isolation, would require a building permit remains to be done. An example of this is the fountain, which you oversimplify in your email by essentially saying, "then why didn't you just turn it on." The fact is, all the work on the fountain that, if done in isolation, would require a building permit, was finished on the 23rd except for connecting a drain, which could have been done on the deadline day, but the contractor was prohibited from doing by the Town. All of the other admittedly minor issues were either completed on the 23rd, do not require a building permit, or both. Proof of this will be presented with the appeal, but the preliminary evidence is attached as Exhibit C. Conclusion In conclusion, it was not me who came up with the illegally excessive fees proposed for the Petersons. I was engaged after the passage of Resolution No. 14-2013 and entered into an agreement with the Town that admittedly relied on the Town acting in good \F Ragghianti Freitas LLP January 7, 2015 Page 3 of 3 faith and treating this project in a manner commensurate with industry standards in regards to the issuance of a final permit. That did not occur here (as directly noted by the Building Official on site on the 23rd), which is why we find ourselves in this situation. The 2014/2015 budget for the Building Department is $577,9721. As of today, the Peterson have paid the Town double this amount. At some point, this extraction needs to stop, and this is that point. Assuming the Town does not properly final the permit, the Peterson will be seeking the release of the escrowed funds, and are prepared to take all legal action necessary to protect their rights. Very Truly Yours, �- k - Riley F. Hurd III CC: Stuart Peterson David Whiteside Rob Osborne Neil Sorensen David Feingold 'As a side note, when Tiburon adopts a resolution amending its fee structure, it implicitly represents that the building permit and plan review fees are valid. This determination of validity requires an accounting of operating expenses and revenues, resulting in a determination of surplus revenue, a deficit, or no required change in fees. Under the present circumstances, it may be assumed that Tiburon has a substantial surplus from the severe fees already collected from the Petersons, and that therefore very significant fee reductions will be forthcoming. From: Ann Danforth To: Riley Hurd; Scott Anderson; Clay Salzman Cc: Peoay Curran; nsoren(alsorynet.com Subject: RE: 110 Gilmartin Date: Tuesday, January 06, 2015 5:25:31 PM Dear Riley: You are mistaken. Rob Osborne requested an extension on December 18, 2014, offering to pay all extension fees at that time. Neil Sorensen and I also discussed taking up the extension issue on January 8th as a contingency plan. He never objected. Riley, your position is simply untenable. It is also insulting. Town staff-- the Building Division, the Planning Division, the Department of Public Works and my own self -- have bent over backwards and done cartwheels to help your clients to finish this project on time; the only special treatment was the extraordinary efforts that we have made to avoid the current situation. The admittedly high penalties for failure were your idea, to ensure timely completion. If the Petersons are unhappy with the deal that you made for them, they should take that up with you. Because the Petersons did not complete the project on time. Your suggestion that the only significant issue was the failure to turn on a water feature is absurd. If that were the case, why didn't they just turn it on? There were a number of other deficiencies that prevented the project from complying with the deadlines that the Peterson accepted in the July 1, 2013 Agreement and the Council adopted in Resolution No. 29-2013. Those deficiencies must be corrected so that Petersons can finish the project, move into their home and restore some peace to the long-suffering neighborhood. Under the express terns of Resolution Nos. 14-2013 and 29-2013, the Peterson cannot do most of the necessary work without a Council -approved extension. Is it your position that the Petersons wish to maintain the project as -is, unfinaled, and wait for a Building Code appeal? You can ask the Council for that if you wish. But I believe that a better plan would be to get the extension, take the steps necessary to complete the work and ask the Council to grant partial relief from the charges that are now clearly due under the Agreement and Council resolutions. I do not know if the Council will entertain such a request, but they might if they project is close enough to completion. Yours truly, Ann R. Danforth Town Attorney, Town of Tiburon adanforth R.ci.tiburon.ca.us Office: 415-435-7370 NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient of this communication, or an employee or agent responsible for delivering this communication to the intended recipient, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. From: Riley Hurd [rhurd@rflawllp.com] Sent: Tuesday, January 06, 2015 11:00 AM To: Scott Anderson; Clay Salzman Cc: Ann Danforth; Peggy Curran Subject: RE: 110 Gilmartin Scott, No extension of the building permit has been requested, so I am unclear how the Council can hold a hearing on a permit extension. Who is the applicant? No extension was requested because one is not needed. In a memo dated 12/23/14, the Town Building Official came to the conclusion that the building permit for the project at 110 Gilmartin had expired per the 2007 CBC. This memo sets forth essentially one major item - an exterior decorative water fountain not being turned on. The work on this fountain that would require a building permit if performed in isolation was complete before 12/23/14. Accordingly, we do not agree with the Town Building Official's conclusion. Section 108.8.1 and 112 of the CBC requires the Town to establish an appeals board for CBC issues. Section 108.8.3 states that any person adversely affected by a decision of the Town regarding the application of the CBC may appeal said decision to the Appeals Board. Appendix B of the CBC, Section 8101, allows 20 -days in which to file an appeal, which we intend to do. This is why I suggested that the Council hearing would be premature. If the Town holds the hearing anyway, we will appear and note the forthcoming appeal. The grounds for our appeal will be set forth in writing. We have a response to each and every one of what should have been punch list items, and also direct evidence that this project was not treated like every other project and subjected to increased scrutiny. The Town had a unique and lucrative incentive to treat this project differently and withhold a TCO or final permit on 12/23/14 in order to obtain approximatively $1 million more dollars from the Petersons. On a more general point, I know that I would not want to be the one to argue to a jury that the Town should get another $1 million because a fountain wasn't turned on. Please let us know if you still intend to hold the Council hearing in light of the fact that no extension request has been made by the applicant. Riley F. Hurd III, Esq. RAGGHIANTI I FREITAS LLP 11015th Avenue, Suite 100 San Rafael, CA 94901 Tel: 415.453.9433 ext. 126 Fax: 415.453.8269 Email: rhurd@rflawllp.com Website: http://www.rflawlip.com/ CONFIDENTIALITY NOTICE This communication and any accompanying documents are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, distributing, orthe taking of any action in reliance upon this communication is strictly prohibited. Moreover, any such inadvertent disclosure shall not compromise or waive the attorney client privileges as to this communication or otherwise. (See State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644.) If you have received this communication in error, please contact the sender at: rhurd(@ rflawllp.com<mailto:rhurd(@rflawllocon >. Thank you. From: Scott Anderson [mailto:sanderson@townoftiburon.org] Sent: Tuesday, January 06, 2015 9:44 AM To: Riley Hurd; Clay Salzman Cc: Ann Danforth; Peggy Curran Subject: RE: 110 Gilmartin Riley, Pursuant to your request, I am attaching a copy of the Town of Tiburon Notice of Appeal form. However, it is not evident to us that the matter at hand is subject to appeal. Sending this form simply complies with your request for a copy of the appeal form. The Town Council meeting set for January 8th will be held as set forth in the agenda. If you wish to share with us additional information regarding project completion, please send it. Yours very truly, Scott Anderson From: Riley Hurd[mailto:rhurd(olrflawllp com] Sent: Monday, January 05, 2015 4:44 PM To: Clay Salzman Cc: Ann Danforth; Scott Anderson Subject: 110 Gilmartin Clay; Hello. I am writing to request an appeal form pursuant to the California Building Code, Appendix B, Section B101.1, which states that Board of Appeals appeal form is to be obtained from the building official. We will be appealing the findings made in the memo received on 12/24/14 regarding the completion of work at 110 Gilmartin, as we believe the project is complete in regards to work requiring a building permit if performed in isolation. The Town has not been open over the past days, so I am requesting this from you today. Thank you. Riley F. Hurd III, Esq. RAGGHIANTI ( FREITAS LLP 1101 5th Avenue, Suite 100 San Rafael, CA 94901 Tel: 415.453.9433 ext. 126 Fax: 415.453.8269 Email: rhurd@iflawiln.com Website: htto //www.iflawlip.com :om! CONFIDENTIALITY NOTICE This communication and any accompanying documents are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, distributing, or the taking of any action in reliance upon this communication is strictly prohibited. Moreover, any such inadvertent disclosure shall not compromise or waive the attorney client privileges as to this communication or otherwise. (See State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644.) If you have received this communication in error, please contact the sender at: rhurd@trflawllp.com<mailto:rhurdPrflawllo com>. Thankyou. 12.18.14 Meeting, Tarun (TOT Building Dept Technician) to submit revised Final Valuation forms and receive an updated amounts due: Tarun told me that he now had to reconcile all of the permit revisions to make sure that the total of the revisions plus the SFD and associated permits do not exceed the submitted valuations. He advised that there are 23 revisions that he would have to review, and that he had two "emergency permits" that he must complete prior to beginning work on the Gilmartin FV and revisions reconciliation. I told Tarun that Clay Salzman had directed us to have all inspections, letters and other close out requirements completed no later than 12/18 so that all he had to do —since he would be the only bldg. dept staff working Christmas week—was a "few re -inspections" and sign off the final. I also told Tarun that the Owners were standing by to write a check. I asked him to do the data input so that we could have an amount for the check and he would not do so. Finally, under pressure, Tarun agreed to do the reconciliation immediately and said he would call by 2:OOPM with an amount due. 2:00: 1 had not heard from Tarun as promised, so I borrowed Mark Vandersea's truck (my car was blocked into the driveway @ Round Hill) and drove to TOT Bldg. Dept. Tarun told me that he still could not input the data nor offer a total amount due because he had handed off the FV to Clay Salzman for review. When I asked to speak directly w/Clay, I was told he was "in a meeting" and unavailable. I told Tarun I would wait for Clay, which prompted him to attempt to extract Clay from his meeting with the Town Manager. Per Clay Salzman: he needs some time to "review the [submittal] properly" and will not issue an amount due today. I reminded him that the Re-evaluation Fee payment is a requirement that must be completed and paid for prior to final sign off and that we had the Owners standing by to write a check for any amount due. Clay still would not release Tarun to input data/produce fees due. I asked Clay as clearly as I could: "So you are refusing to accept the Owners' payment for Re- evaluation fees due?". Clay said "yes". Clay told me that he would not be withholding final approval of the project in the absence of completion of this requirement. I thanked Clay for his remarks and retired immediately to the building lobby to notify the Owners, DPW, Sorensen and Feingold. As I was writing, Clay announced across the room that I was welcome to meet with the Town Manager if I wanted to ask for special consideration regarding the Re- evaluation fee process and/or working on Saturday. He then clarified that he was certain no dispensation would be granted for Saturday work. I declined the invitation to meet w/Town Manager stating that Clay and I had already had the discussion. I had the impression that he was trying to shift responsibility for not accepting payment away from himself. NOTE: Steve Smith was at the counter at this point on some other non -related business and overheard the last part of the discussion. Water features must be complete and operable Final Inspection Issues 2007 CBC Section 108.4.4, Appendix Chapter 1, Section104.4 and 109.3.10 WHITED Y AA AOI\[AI This item is landscaping and not "Major Work". See item #16, below. 3 _p , a jam e Mild, � BuIGd r Ay »tl, 5e' ons, u. r d There was one exterior egress light Finish installing all 2007 CEC not working upon inspection 12/23. 2 controls for exterior lights 210.70 (A), (2), This was due to a defective Module at all exterior doors as (b) Interface which was replaced prior to needed. BO leaving site. Landings are installed. Building Inspector George Dailey specifically directed TBI to not install concrete landings at the areas under Finish installing exterior 2007 CBC discussion. These are to be stone 3 landings where doors 1008.1.5, if/when the product arrives from open to the exterior. 1019.2 (2), and China. Mr. Dailey understood that 808.4.4. concrete stepping stones would be temporary and suggested the Owners need not waste money for secondary egress landings. Remove materials, supplies and equipment There were bookshelves against the from the middle and 2007 CBC Upper Garage back wall when the 80 4 upper garage areas to 108.4.4. Appendix �'''' was on site that blocked access for allow inspection of manual testing. The BO would not receptacles and Chapter 1, accept moving the bookshelves verification of garage door Section 109.1. during the course of the inspection. openers. 1/6/2015 WHITE® Final Inspection Issues •' • °' ~ "' 1/6/2015 The Owners & Architects prefer this configuration and it was approved Relocate receptacle through all rough -in and/or other outlets to within 12 inches 2007 CEC inspections. This is specifically at one 5 of counter top surface at 210.52 (D), powder room. There is no Powder Room near entry. Exception. countertop receptacle noted in the Permit Documents. There is a receptacle below the vanity. 4 " Repair landing at door 2007 CBC This landing is a removable 6 that leads to roof top deck 1008.1.5, and furnishing. It was complete 12/23. at office area. 1019.2(2). - Install supports for flexible 7 metal conduit located at Appendix Complete 12/23 eve to the right of the wet bar entry door. Repair inoperable receptacle outlet in lower This was a tripped GFCI circuit. It was 8 reservoir pool equipment reset/corrected 12/23 area. 1/6/2015 WHITE® Final Inspection Issues a I+, ° , • I • I 1/6/2015 Anchor Pool filter cylinder 9 to floor in lower and; Complete 12/23 upper reservoir areas.' Anchor equipment to floor at mechanical room 10 behind water heater Complete 12/23 (lower floor equipment room). Raise duct off the floor at 11 mechanical room behind Complete 12/23 water heater (lower floor equipment room). The gas burner at the Dining/Family Room fireplace has an electronic gas Provide access to gas shut valve/shutoff. There is an additional 12 off valve at gas fireplace safety shutoff valve located in the near kitchen. wall between the rooms. No additional gas safety shut offs are required by code. 1/6/2015 WHITE® Final Inspection Issues •AM..I•.•I 1/6/2015 The landscape is designed such that once plantings are established no water intrusion beyond the drain system will occur. Per the Landscape Architect (support by the Civil Repair drainage as needed Engineer of record), the installed 13 at retaining wall exterior drains are functioning as designed. of lower bedrooms. The recent super -storm allowed for excessive water runoff from the slope above, which would have/will be mitigated once plantings have established. The door referenced was installed and fully operational at the time of 14 Install door at lower final inspection and fully visible to the reservoir B0. We do not understand this correction requirement. w Finish concrete work at water feature at covered area adjacent to changing Complete. Additionally, this work is 15 room where vertical _'" exterior to the building and is reinforcing steel dowels '= considered landscaping. are covered with protection caps. 1/6/2015 16 17 WHITE Final Inspection Issues • • " • . . • l l All of the plumbing, electrical and structural work was complete on 12/23 with one exception: Final connection for drains at the entry water feature were not completed, though they easily could have been had the BO not specifically told the Show operation of all GC to NOT do any further work on the water features when water features after his completed. inspection. The BO in effect ordered the GC to leave the drains incomplete. Note that these drain connections constitute —5,18", pieces of plastic pipe and both ends of each connection were open and accessible; they would have been completed prior to the BO leaving the site on the 23rd except as noted. Install sheet steel wall cap cover at wall adjacent to IMMIMk rooftop deck near office and m,.' Complete 12/23 complete/anchor/weather seal other exterior finishes as needed. 1/6/2015 Re: 110 Gilmartin Dr. Construction General Contractor: Thompson Brooks Owner: Stuart and Gina Peterson January 7, 2014 To the Honorable Mayor Frank Doyle, Town of Tiburon: LATE MAIL #Ai RECE4VE`.'.. JAN - 8 2015 TOM MANAGERS or au:. T04S'�i Ur "l7k3ti<`-tOtQ Our home is at 5 Gilmartin Ct., in Tiburon, and is the nearest property to the ongoing construction project, the subject of a special council meeting of the Town on the evening of January 8, 2014. It is our understanding that the project failed completion as of December 23, 2014 and a "stop work" order has been issued. It is our understanding that the special meeting is to consider the extension of another work permit and the relevant terms of its pending issue. Following approval in 2009, we have endured 5 1/2 years of demolition and heavy construction far beyond the usual residential construction in this area that was planned for 24 months. The past month, in a scramble to complete by the deadline, there was no parking on either Gilmartin Dr. and Gilmartin Ct., flagmen directed traffic, heavy equipment was brought on site, and there was no effort to abate the noise, dirt, smell, and loud conversations which has disturbed our homelife for so many years. I request the Council in its deliberations to know that our efforts and requests for consideration were rebuffed and ignored by the Contractor, sub -contractors, and home owner. We request that the conditions for approval include: no further construction traffic or worker's private vehicles on Gilmartin Ct. to comply with the request for shuttle transportation to the job site. We request an agreement that the construction damaged pavement on the Court is satisfactorily repaired and replaced at the expense of the owners of 110 Gilmartin. We request in light of 5 extensions and failure to finish as agreed by all parties by December 23, 2014, that another extension should be for no more than 30 days, and i necessary to comply, additional contractors be employed. The high fees levied by the Town have not and will not incentivize this contractor or the owners. Another extension of six months is unacceptable to us, is unreasonable, inequitable, and sets further precedents for abuse of neighbors in the Town of Tiburon. Respectfully submitted, Judy A. Sing� homeowner: 5 Gilmartin Ct. Tiburon, CA. 94920 ..Jw i �I M� F L ®T i