Mr. Chair, just so you know, the three-family dwelling is a pre-existing non-conforming use.
None of this work was done by my client.
Thank you.
We're going to vote on this on January 7th at 9.30 a.m.
We should have everything then.
That's when we'll vote, Bert.
Thanks very much.
Thank you very much.
Number nine.
Number nine, MI 2025, 006149, 3411 Baring Street.
Paul Bonney is the attorney.
I think we have a representative from the city here is Jim Kelly, am I correct?
And also Rachel Pritzker is the attorney for the permit holder.
well while you're sitting there mr kelly could you please state your name
and spell it for the stenographer sure jim kelly k-e-l-l-y right do you swear or affirm
to tell the truth the whole truth nothing but the tooth truth i do uh mr bonnie
Mr. Bonnie. Oh, hi. Mr. Bonnie, could you please state your name and spell for the stenographer?
Yes, my name is Paul Bonnie, B-O-N-I. Right. Do you swear or affirm to tell the truth,
the whole truth, nothing but the truth? Yes, I do. Rachel Pritzker, are you there?
Yes, I'm here. Rachel, you've already been sworn just for the record. Could you please
just state your name.
Rachel Pritzker, R-A-C-H-A-E-L
P-R-I-T-Z-K-E-R.
So this is an appeal against L&I
and Mr. Bonnie, you'll start.
Thank you, Mr. Chair.
Is that the mic on?
Or maybe just get a little closer.
Okay, should I leave my audio
on or off on the Zoom?
I got it. All right.
Okay. Let me know. Let me know.
I guess I'll just give you an overview.
Why don't you give us an overview and then give us a little overview and then you'll present your case, right?
Okay. And also, I don't know when Mr. Kelly wants to present his LMI examiner.
This is a case against LMI.
Mr. Kelly, when do you want to present your...
I would leave that to the board.
I mean, I believe he's on...
Why don't you do your overview, and if you call the examiner, then we'll put the examiner on.
Thank you.
Is that right, Mr. Kelly?
That's fine.
Either way, it's fine with me.
Rachel, you're fine with all that?
Please proceed.
The appellant in this case, my client is the Powelton Village Civic Association.
The property at issue is 3411 Bering Street.
And the city issued in August of this year a building permit for the renovation of four units.
This building permit relies on a variance issued in 1940, a 1940 variance.
The underlying zoning is for two units as a limit of two dwelling units, but in 1940, a previous owner obtained a variance from this board for four units.
Probably not this board, but the board, right? I mean, Lincoln 40, but go ahead.
Right. Thank you. So it's our contention that the variance from 1940 was not used for a long period of time and therefore lapsed and that the underlying zoning and therefore the property reverted to the underlying zoning.
When my client became aware, and neighbors became aware also, that this property was on Zillow for four units, they did a few things.
First, they emailed L&I, and they said, actually, I think before it went on Zillow, they emailed L&I.
They knew it was going to be on the market.
Just for the record, why don't you identify your client?
powell and village civic association very good thank you the rco for the neighborhood pvc pvca
and i have two representatives here from pvca so the first thing they did was they emailed lni
through the lni website and said hey this variance is abandoned please mark the file
as such.
The second thing that they did
was they contacted the real estate agent
and said the same thing.
Hey, this
variance has not been used
for many, many years, decades.
And the
third thing that they did
was once the property
was sold, they hand-delivered
a letter to the property
to tell the owner that addressed to the owner to say this has been in this variance has not
been used for decades um you know if the limited the underlying zoning is is two so when the um
two units so when uh pvca learned that the build that a building permit was issued in august of
this year, they contacted council and we filed this appeal because we believe that the building
Because we believe that the building permit was issued in error, relying on a 1940 variance that, in fact, had lapsed due to it being abandoned.
permit was issued.
So we have five witnesses, two representatives from the Civic Association, the PVCA, which will tell you what they did.
yeah and as i've laid out in broad strokes and then we have um three neighbors who will tell
you their um you know firsthand observations about this property over the years i think there's also
the lni examiner that um is ready to testify which i think is relevant as to what he did and why
And then I think there's, I think Ms. Pritzker has agreed to make available the owner, the purchaser of this property, Mr. Jaden Chen, who purchased in the spring of this year.
All right, so do you want to start with the L&I examiner?
I think that probably makes sense.
Is that okay?
Sure, if I can give a brief opening similar and then I'm happy to provide the testimony.
So, I mean, I'll lay this out.
little bit more in testimony with uh examiner wilson but um oh sure um so as the testimony
i think will show um and and as counsel stated in 1940 the property got a variance uh to be
utilized as a four dwell four unit dwelling space that was confirmed in a 1960 certificate of
legality of use um confirming the same and specifically stating that it had four uh
separate cooking facilities um when the owner this owner applied for the building permit at issue
here um the department had noted in its request for information uh that the use of that property
as for dwelling units needed to be confirmed to that end and as requested the owner submitted
both an affidavit of continuous use stating that the property had been used as four units
and photographs showing that there are still four mailboxes four gas meters and four cooking
facilities um all of which appear to have been there for a significant amount of time um based
on that the permit was issued um i do not believe that the city would have had a basis to deny
this permit um if we were in sort of an alternate universe here where we had denied the permit
and um miss pritzker's client had appealed i i don't believe that the city would have had a
basis to stand on um based on the information available at the time to deny that permit um and
And I will have his examiner, Wilson, testify if he's available.
Thank you.
Why don't we bring – what's the person's name?
Harry Wilson.
Mr. Chair, can we just let Ms. Prisker make a statement as well?
Thank you.
Thank you.
So as mentioned, I represent the current owner who purchased the property.
The prior owner of the property was in his late 90s.
And so he's not here to tell his side of this.
But I just also think it's worth mentioning that there's law that we have to follow here.
While these facts are interesting, I just want to give the board a little bit of an understanding of the law here.
So basically, the property has to be looked at based on a couple of factors under the code and state law.
So specifically under 143054 nonconforming uses, which basically can continue and you have to show very specific facts to support if something has been not continued.
Things like a neighbor looked at something or they feel this way or they think it was for a long time is not good enough proof.
It has to have evidence, significant evidence to show an overt acts by the owner to discontinue the use.
So, for example, something not being operated on the property, that doesn't mean a lessening of the use, meaning if it's four units and they only occupy one or two, that doesn't mean it's abandoned or discontinued.
Also, for example, removing things from the property, removing kitchens, removing meters, demoing the entire interior.
Those are things that show an overt act that would be obvious that they would want to change these pulling another permit for two units or a commercial store, things like that.
Something that would be an overt act is really important to distinguish.
In addition to things like no longer paying for electric or water or things like that, in this instance, we don't have any of that, which I'll go through a little bit towards the end.
There also has to be both intent to abandon and cessation of the use. So it can't be something that somebody else looks at. It has to be overt acts of the owner of the property. And we don't have them here to show their intention or we can't speak to what he was thinking, but we can look at the things he did or didn't do.
There also has to be both intent to abandon and cessation of the use.
That would be obvious. And anybody who is seeking to change the use of this or state that it should be a two unit or a one unit or whatever in any of these cases are, they have a heavy burden of proof that they must present clear affirmative evidence.
And any ambiguity is resolved in favor of the continuation of the use, given we're dealing with constitutional property rights.
A non-use due to hardship like age or illness or disability, again, the prior owner was in his 90s, doesn't demonstrate intent to abandon.
And it requires, again, overt acts showing intention.
So maintaining the structure as four units with four kitchen, with four bathroom, which is what was here, is consistent with the use and completely negates the abandonment.
And again, which I'll go into detail if needed, even substantial non-use, meaning he only used one of the units, is not abandonment without evidence of intent, meaning removal of things.
That would be obvious to any of us because, again, non-conforming use is a constitutionally protected property right that cannot be extinguished absent clear abandonment.
I'll pause and just go and say, I understand that the community wants to see a two unit here because they think that it would be a more attractive tenant or situation if that was the case of its two unit versus four units.
However, even if I walked by the property and I thought it should have been something, it's irrelevant.
It's the intent of the prior owner and the acts and overt acts of the property.
And you have to show clear, unambiguous evidence that there was intent to not have this be a two unit for the for the board to be in agreement with that.
And I want to just add to the point that while L&I was emailed and called and everything, there was never any violations on this property related to it not being a four unit.
There was never a vacant structure relations that was asked to be issued.
In fact, L&I, to the affirmative, not only approved, went out to see the property, if it's been called many times, which we know they'll do and go out and look at it, but they approved a permit in the affirmative for four units.
I'll rest there, but I just want to make sure that we're thinking about clear, obvious intent and clear, obvious evidence of intention.
And anything that's ambiguous or not obvious is not good enough evidence to abandon a constitutionally protected property right.
Mr. Chair, I'd like to say before we call the L&I examiner that I disagree with pretty much everything that Ms. Pritzker said about what the law is, but that I'll wait until the end of the case.
I think I got it. Yes, you will have your chance at the end. All right. All right. So let's let's call the L&I person.
Thank you, Mr. Wilson. Can you state your name for the record?
Harry Wilson, H-A-R-R-Y-W-I-L-S-O-N.
do you swear or affirm to tell the truth the whole truth nothing but the truth
i do and mr boney will start the testimony you want to i i can start go ahead yeah good um
mr wilson where are you currently employed department of licenses and inspections and
what's your position there i'm a building planes examination engineer one how long have you been
working there i've been with l and i for five and a half years okay and what are your primary duties
and responsibilities? Predominantly, it's review of permit documents for residential and commercial
construction and issuance of the related permits. Would you say that you've reviewed hundreds,
potentially thousands of permits in that time? Yes. In the course of your duties,
did you become familiar with the property at 3411 Bering Street? Yes. And have you also had
the chance to review the L&I case file for this property? Yes. Are those records made and kept in
regular course of lni's business yes all right um i'm gonna ask to share my screen
it's up it's coming up okay
we see the notice of commercial building permits up okay is that uh is that viewable for everyone
or do i need to zoom uh i i think i think we can see you might want to make it a little bit bigger
um do you recognize this document yes uh what is it it is the commercial building
permit that's issued after the fee has paid the plan has been approved
to commence construction was this for uh alterations to be done to this property with
four dwelling units yes um and when was this permit issued
i can't read the date so um it was august if i recall correctly august 5th august 6th right
yes um as part of this application process did you send back a request for revisions
yes i did i'm gonna move down in uh city exhibit four could you try to just i think you got to
do your whole screen is that is this better it's a little no that's better that's it that's it you
gotta go right we're good i think i'd be better at this by now yep um do you recognize this document
yes uh what is it so request for information documents generated by the system based on
markup plans that we add to um the review before we send it back for revisions by the applicant
it. So it's the summary of all the comments that are made.
And these are all comments that you made in reviewing the permit?
That's correct.
Okay. I'm going to take you down here to the second comment on this page. Is that...
Okay. What was this comment for?
So in review of available records, it was identified that before family use was permitted,
While there is nothing subsequent to the issuance of that permit for any changes to the use, I did notice that a rental license for one unit had been issued.
Because of that, I put into question the continuous use and basically requested by means of an affidavit of continuous use that the applicant verified that the use that was granted in 1940 had never been abandoned.
okay was an affidavit of continuous use submitted along with some photographs yes
let me go back up try this again do you recognize this document yes that was the applicant's uh
affidavit of continuous use that they submitted to get their building permit and this at least
for you confirmed that there was that this had been used continuously as a four unit dwelling
yes i have to rely on that document in order to uh verify the continuous use since we have
no other records to show otherwise okay um and you said there were photographs uh submitted
alongside this as well right correct the separate documents i'm going to reshare my screen