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HomeMy WebLinkAboutBuilding Review Commission - Minutes - 05/26/2022City of Fort Collins Page 1 May 26, 2022 Alan Cram, Chair This meeting was Tim Johnson, Vice Chair held remotely Shaun Moscrip and in person Eric Richards Mark Teplitsky Staff Liaison: Vacant Seat Marcus Coldiron Vacant Seat Chief Building Official Meeting Minutes May 26, 2022 A regular meeting of the Building Review Commission was held on Thursday, May 26, 2022, at 9:00 a.m. via Zoom and in person at 281 North College Avenue, Fort Collins, Colorado. • CALL TO ORDER Chair Cram called the meeting to order at 9:00 a.m. • ROLL CALL PRESENT: Cram, Johnson, Moscrip, Richards,Teplitsky ABSENT: None STAFF: Coldiron, Guin, Brennan, Matsunaka • PUBLIC COMMENT ON ITEMS NOT ON THE AGENDA None. • DISCUSSION AGENDA [Timestamp: 9:03 a.m.] 1. CONSIDERATION AND APPROVAL OF THE MINUTES OF THE FEBRUARY 28, 2022 MEETING. Johnson moved to approve the minutes of the April 28, 2022 meeting. Teplitsky seconded. The motion passed 5-0. Building Review Commission DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 2 May 26, 2022 2. ADOPTING BUILDING REVIEW COMMISSION (“BRC”) AND FIRE BOARD OF APPEALS (“FBA”) OPERATIONS AND PROCEDURES DESCRIPTION: In accordance with Chapter 9, Article I of the City Code and Section 109.1 of the 2018 International Fire Code, as amended and adopted by the City of Fort Collins, the members of the Building Review Commission constitute the Fire Board of Appeals. Section 109.1 of the City's Fire Code, as amended, provides that "all processes and procedures for an appeal shall be as stipulated in the International Building Code, Section 113 as amended and adopted by the City of Fort Collins." Disclosure of Conflicts None. Staff Presentation Chair Cram outlined the appeal procedures. Assistant City Attorney Aaron Guin noted the appeal procedures are specific to the Building Review Commission and should the Commission vote to accept them, they will be put on file with the City Clerk and Council may or may not consider them. He noted there is no City Code requirement for the Building Review Commission to have appeal procedures in writing. Motion Teplitsky made a motion to adopt the Building Review Commission Procedures for Hearings on Appeal. Richards seconded. The motion passed 5-0. [Timestamp: 9:08 a.m.] 3. FINESSE FOODS, LLC dba WOK AND ROLL APPEAL DESCRIPTION: Mr. Steve Lesondak, owner of the Wok and Roll Restaurant (“Restaurant”), has filed an appeal with the Building Review Commission (“BRC”) to review the Fire Code Compliance Division’s interpretation and enforcement of the fire code at the Restaurant, including its determination that there are unapproved conditions in the commercial kitchen, hazardous cooking operations, and an unapproved lower-level dining space. Poudre Fire Authority Presentation Kelly Duke, Poudre Fire Authority (PFA) attorney, introduced Assistant Fire Marshalls Kevin Sullivan and Steve Christensen and summarized the permits granted to the restaurant and the fire inspection which found issues with what was permitted in addition to hazardous conditions. Assistant Fire Marshall Sullivan discussed the routine fire inspection of the restaurant during which it was discovered two of the pieces of kitchen equipment were used in such a manner that they now produced grease-laden vapors, which would require a type I cooking hood with a fire suppression system. Additionally, it was found the kitchen appliances by and large deviated from what was initially approved. Mr. Sullivan commented on the obligations of PFA in these situations, first a moral obligation to work with all customers to offer solutions when appropriate and to be a resource to help businesses understand how to reach compliance, to be successful, and to be safe, and second a legal obligation to uphold the requirements of the adopted Fire Code fairly and consistently for all businesses to ensure the safety of employees, patrons, neighboring businesses, and responding fire fighters. He noted it is never the goal of PFA to have these types of hearings and stated PFA worked in partnership successfully with 38 other businesses on similar issues last month and would continue to offer that to this restaurant. Mr. Sullivan outlined the International Fire Code sections under which violations were found and noted the Code language has been in place for many Code cycles. Regarding the lower-level dining area, Mr. Sullivan stated it is his understanding the City has approved it; however, PFA never had the opportunity to review a change of use application. He stated the obligation of getting those approvals lies with the applicant. DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 3 May 26, 2022 Mr. Sullivan outlined the PFA request that the Commission uphold its determination of the Fire Code violations and required actions for bringing the property into compliance as defined in the Fire Code. He stated Fire Code compliance is necessary for fire and life safety and the requirements are the same as those of any other business in the PFA jurisdiction. Ms. Duke stated the stop work orders based on the Fire Code violations are not meant to shut the restaurant down but to allow the restaurant to come into compliance with the equipment it is using or to return to using the equipment as originally permitted. Appellant Presentation Fred Long, attorney for the appellant, stated there has not been a change in the kitchen equipment or its location since the original approval and Mr. Lesondak reasonably relied on that approval and has been operating safely since 2019 when the restaurant opened. He stated the compliance items identified by PFA are extremely expensive and could result in periods of closure for the restaurant. Steve Lesondak, restaurant owner, stated he is a commercial contractor and he has worked with PFA on many commercial kitchen projects. He also stated his original restaurant on College was an exact replica of this kitchen in function and equipment. Additionally, he stated he contacted PFA prior to submitting plans for the second location. Mr. Lesondak discussed the manufacturer’s recommendations for the conveyor ovens and stated they are not considered to be grease-laden vapor producers. He outlined the process he went through to get approvals for both of the restaurant locations and stated the City agreed in both cases they are not grease-producing. He further detailed the PFA inspection process from 2019 and stated operations have continued since then with no changes and no violations. He discussed the detailed cleaning process used at the restaurant and stated there is no measurable accumulated grease in the ducts. He agreed a type I hood would be necessary if he cooked with oil, but he does not, and stated it is a local interpretation the oven is grease producing. Mr. Long discussed the notice of violation and previous PFA approvals for the kitchen and downstairs dining area and reiterated nothing has changed since those approvals. He discussed Colorado case law that prevents a municipality or local government body from taking action to force compliance contrary to what was already approved. He requested the notice of violation be withdrawn and no further action be taken as long as Mr. Lesondak continues to operate under the original approvals that were granted. Mr. Lesondak stated Mr. Sullivan acknowledged there were previous approvals for both restaurants, but stated they were done so incorrectly. Poudre Fire Authority Rebuttal Ms. Duke agreed nothing has changed from the original approval, stating the conveyor oven was approved, but it could not be used in a manner that would produce grease-laden vapors, which is what is occurring, and which was specifically exempted from the original permit. She stated there have been no inspections since the original approval and stated the oven has been moved. Mr. Sullivan argued there is no interpretation involved on the part of PFA; the Code requirements apply and PFA has the obligation to uphold those standards. He commented on studies showing these ovens produce substantial grease-laden vapors when used to cook meat and present an urgent fire hazard. He stated PFA has not been furnished with any cleaning records despite that being a requirement of the Fire Code. Additionally, he stated PFA has no records of any annual inspections as mentioned by Mr. Lesondak. Appellant Rebuttal Mr. Long stated the use of the oven to cook meat was discussed at the time of approval and the approval was granted. Additionally, he stated Mr. Lesondak was the only party currently present who was also present at the approval process meeting with PFA. Mr. Lesondak stated current PFA representatives were not willing to bring in the officials who were present during the initial approval process. He stated his hoods are cleaned daily and he was unaware he was to be reporting the cleaning. He stated his restaurant would not survive being shut down to make kitchen changes he cannot afford. DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 4 May 26, 2022 Board Questions and Discussion Teplitsky asked about the official approved use of the lower level from the perspective of the certificate of occupancy. Mr. Lesondak replied it was approved for the current dining use. Ms. Duke stated it may have been approved for the current use by the City; however, the approval is a two-part process and PFA never had the opportunity to provide approval. Richards asked how it was possible for the City to approve a certificate of occupancy for a dining use, but PFA does not see the application or approval. Mr. Sullivan replied he could not speak to the City’s process but knows the dual PFA approval process is required and it is ultimately the applicant’s responsibility to submit plans to any necessary regulatory body. He stated the plans PFA received had no indication the lower level was to be used for dining, no indication that the occupant load had been calculated with respect to seating, and no indication the exit plan had been evaluated. Johnson stated the approved permit has an occupancy of 49 and asked about the source of that number. Mr. Sullivan replied that is his concern as requirements become significantly higher when occupancy goes above 49. Teplitsky asked if tables and chairs were present in the lower level when final inspections were done. Mr. Lesondak replied the use was obvious, though it may not have been totally complete. He stated the retired PFA employee who did that inspection required an illuminated exit sign because of the use. Mr. Sullivan noted PFA would never approve a lower-level dining space without understanding the seating conditions. Mr. Lesondak stated the seating arrangements were on the drawing submitted to the City and PFA. Fire Marshall Jerry Howell asked what agency is responsible for the compliance of fire suppression systems in kitchens. Mr. Sullivan replied it falls under the authority of the Fire Code and PFA. Moscrip asked about the fryer in the photos. Mr. Lesondak replied it was not used in this restaurant, it just happened to be in the basement. Moscrip asked about the use of grease in the wok. Mr. Lesondak replied it is used exclusively with water. Mr. Sullivan agreed that was part of the conversation and noted that aspect would not require a type I hood. He commented on grease being visible on other appliances which caused concern. Mr. Long noted the conversation about the use of water in the wok is not included in the permit but the use was understood to be grease-free based on a conversation. He then questioned why the conversations regarding the use of the oven were not treated the same way and reiterated Mr. Lesondak was the only person currently present who was party to those conversations. Ms. Duke disagreed and noted the permit specifically calls out type II hoods and no grease production ovens, wok, and rice cookers. Teplitsky asked how many routine fire inspections have occurred at the restaurant between its opening in 2019 and now. Mr. Lesondak replied they came in once for an extinguisher rerouting issue and annual inspections were skipped because of the pandemic. Ms. Duke stated PFA has no records of any fire inspections. Richards asked who schedules fire inspections with PFA. Mr. Sullivan replied the business owners are not responsible and PFA typically schedules inspections informed by its community risk assessment. He noted a recent increase in kitchen fires has moved those types of occupancies to a higher hazard category thereby increasing the focus on those types of inspections. He noted there are not enough resources to provide desired annual or semi-annual inspections; however, PFA is always available as a resource for owners. Chair Cram asked where a photo, labeled exhibit I, was taken. Mr. Sullivan replied it was taken by him in the basement. Chair Cram asked about the presence of a dishwasher next to a fryer in the photo that was not present in the plans. He expressed concern about the location of the two appliances and expressed concern about the rice cookers using plastic lines. Mr. Lesondak clarified the floors are waterproof, not wood, and the plastic lines are tucked against a wall. Mr. Sullivan stated PFA shared some of the same concerns and there were numerous items found that indicated changes have been made since the original approval. DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 5 May 26, 2022 Mr. Long asked about the role of the Commission. Assistant City Attorney Guin replied the role of the Commission is to hear an appeal of the notice of violation. Teplitsky asked about the use of the conveyor oven and whether PFA believes the use is different than that of a sandwich shop. Mr. Sullivan replied using the conveyor oven to charbroil meat does not constitute the same type of hazard or use as if it were used for sandwiches. The appliance would be then evaluated differently, and its power source and quantity of grease created would need to be examined for compliance with the Code. Ms. Duke stated any restaurant using this type of oven to cook meat without a type I hood is in violation of the Fire Code. Mr. Sullivan noted manufacturer requirements may go above and beyond Fire Code requirements. He discussed the non-operational nature of the suppression components of the hood at the restaurant and stated there is no way a manufacturer would approve that. Mr. Lesondak replied PFA required him to disable the Ansul system on the hood because it is a type II hood. He stated PFA inspector Garnett, who has since retired, was the inspector for the original approval. Ms. Duke disagreed and stated Nancy Roberts was the inspector per the inspection report and noted inspector Garnett retired two years prior to the restaurant opening in 2019. Mr. Lesondak reiterated he was planning to leave the Ansul system intact; however, PFA required it to be disabled. Board Deliberation Richards stated there appears to be some obvious life and safety concerns at the restaurant. He expressed concern about the process given the lack of full records possessed by PFA. Teplitsky concurred with the concerns but stated it must be taken into consideration if the manufacturer of the oven has approved it to be used as it is in the restaurant. Fire Marshall Howell stated the approval that was issued was specifically for non-grease laden vapors. He stated permits are specific. Johnson stated the formal documentation is the evidence upon which decisions will be made and it seems that while the oven itself was approved, the way it is being used was not. Moscrip commented on his personal experience with inspections and noted changes are frequently required for various reasons. Teplitsky questioned how a certificate of occupancy could be rescinded. Moscrip replied certificates of occupancy are frequently rescinded. Teplitsky stated approvals remain whether the Building Code changes or not. Moscrip replied that would not be the case if the initial review was improper or the use was changed. Fire Marshall Howell stated changing hazards or processes can result in changing approval and, in this case, the initial approval was very specific and conditions have changed. Teplitsky agreed with Johnson that the formal documentation and permit do not allow for grease-laden vapors; however, there seems to be some anecdotal testimony that the use was approved. He stated there would need to be come clear evidence presented in order to not require compliance on the hood issue. He stated the occupancy issue seems a bit more vague as the certificate of occupancy exists, and unless the applicant deceived PFA or PFA did not have the necessary information to make the proper judgement about the use of the space, it would be difficult to revoke that certificate of occupancy, particularly given nothing has changed from what was submitted to the Building Department. Chair Cram commented on deferring to experts and noted the occupancy makes a difference as to how the permit is structured, and an occupancy over 49 has different requirements. Assistant City Attorney Guin reminded the Commission any motion and decision must be based on the evidence presented. Richards asked if there are different occupancies for main levels versus basement levels. Moscrip replied both levels are combined and the occupancy is based on square footage. Johnson stated a certificate of occupancy is hard to achieve without getting approval by PFA; however, it was presented from an evidence standpoint that some of the confusion will need to be sorted out between PFA and the restaurant without that piece having input from the Commission. DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 6 May 26, 2022 Richards clarified what PFA is specifically asking the Commission to decide. Ms. Duke replied PFA is requesting the Commission uphold the notices of violation and stop work orders until compliance is reached. She clarified the stop work order does not mean the restaurant has to close, just that the oven must not be used to cook meat and that appropriate plans for the lower level be submitted so any issues can be addressed through the proper permitting process. Mr. Sullivan noted other options were offered for the business to explore, such as using another restaurant to stay operational or having off-hours inspections to help accommodate keeping the business operational. He also noted PFA has offered the opportunity for the restaurant to develop a corrective plan of action. Assistant City Attorney Guin suggested the appellant be offered an opportunity to respond. Mr. Long commented on the evidence presented by Mr. Lesondak that what is identified in the notices of violation as changes are not actually changes, which is the basis of the appeal. Teplitsky asked if that evidence is anecdotal. Mr. Long replied it is fair to say it is unwritten, but he would not call it anecdotal but rather crucial information. Mr. Lesondak noted his original restaurant was granted the same approvals and operated in exactly the same way at the same time. He stated it should be obvious the ovens are used to cook meat as it is the only way it could be done. Teplitsky suggested having the appellant provide a path toward compliance as requested by PFA and either file another appeal, or through another process, and present evidence that was not presented today. Assistant City Attorney Guin stated the Commission must determine, based on the evidence before it today, whether the fire official’s decision was in error or determine if it has enough evidence to make a decision. Richards asked about the path moving forward for the appellant if he is unsuccessful with this appeal. Assistant City Attorney Guin replied there is the opportunity for a further appeal to Council. Teplitsky asked if there is any concrete published industry evidence stating the oven can be used to cook meat without using the type I hood as required by the Fire Code. Mr. Lesondak replied there is plenty of published evidence that the ovens can be used for meat, even fatty meats which he does not use, without a hood, only with direct vent. He reiterated PFA knew the use of the oven during the original approval process and nothing has changed from that time. Assistance City Attorney Guin provided additional details about the quasi-judicial nature of the Commission and read definitions from the Code. He noted decisions are subject to appeal to Council and the courts. Chair Cram noted no new evidence would be allowed to be presented at an appeal of this decision. Assistant City Attorney Guin clarified there is the opportunity to provide new evidence if there is an allegation of being denied an unfair hearing. Richards asked if it would be possible for the Commission to uphold parts of the notice of violation. Assistant City Attorney Guin replied in the affirmative. Ms. Duke outlined the three items included in the notice of violation. Teplitsky stated he would be inclined to craft a motion that upholds the notice of violation for items 1 and 2, but not for item 3 as there is not sufficient evidence to uphold that item, the Building Department approved the use, and there is a certificate of occupancy. Johnson stated he would be inclined to uphold the entire notice of violation as item 3 should be able to be solved by the restaurant providing information to PFA. Richards stated it is tough to uphold the occupancy violation because there is a certificate of occupancy and the notice of violation states it was modified from storage to dining; however, there is no evidence it was submitted as storage. Moscrip asked if the lower level could remain occupiable until the restaurant provides necessary plans and makes any needed changes per PFA. He also asked if the Commission should break the item into three different motions for the three different elements. Assistant City Attorney Guin outlined the motion-making process and stated only one motion can be considered at a time. He stated the full notice of violation will need to be addressed in some manner. DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 7 May 26, 2022 Fire Marshall Howell read from the notice of violation regarding the lower-level change of use and stated, if it was approved for a use that has changed and the hazard has subsequently changed, the Fire Code requirements have changed. Moscrip questioned how the Commission is to know if the use changed as the plans have no description of the use. Mr. Lesondak stated he submitted the plans with the seating charts and he was unsure why that was not shown on PFA’s plans. Additionally, he stated the dining plans were submitted with the City and those plans are readily available. Fire Marshall Howell stated, if it is discoverable that the use has not changed, it is possible the position of PFA might change. Teplitsky clarified his assumption that the plans were submitted to the Building Department as a lower- level dining area and a certificate of occupancy was issued as such; however, PFA accepted plans that showed the lower-level as storage and now assumes the applicant modified the use to dining. Ms. Duke stated there is no evidence the lower level was submitted to the City as a dining use, there is only evidence that it was submitted to PFA as storage. Mr. Long agreed the Commission must make a decision based on the evidence presented, but disagreed with the assertion there was no evidence this was submitted for use as a dining area as Mr. Lesondak testified to that, which makes it evidence. He also stated Fire Marshall Howell is an interested party as he works for PFA. Assistant City Attorney Guin clarified the Fire Marshall cannot vote on this issue. Teplitsky stated he is having a hard time stating there is enough evidence given the lack of seeing the entire permit submittal package. Assistant City Attorney Guin clarified the presentation of evidence via verbal testimony is still evidence. Richards suggested upholding items one and two but granting relief to the appellant regarding item 3 as there is insufficient evidence to support that violation. Fire Marshall Howell commented the Fire Code would still apply to the lower level regardless of its use. Teplitsky made a motion as follows: Based on PFA’s report, analysis, and recommendation as well as the evidence and testimony presented today, I move to deny in part and grant in part the appellant’s request for reversal of the fire code official’s notice of violation. I move to deny the relief requested by the appellant as to items 1 and 2 in the notice of violation, but move to grant the relief requested by the appellant with reversal of the PFA notice of violation as to item 3. In making this motion, I rely upon the following evidence: the permit by PFA was approved for a non-grease producing oven but the inspection determined it is not being used in the way that it was permitted. Also, the Type II hood doesn’t address the fire code issues with production of grease-laden vapors. I find that the appellant has not demonstrated that, if the relief he has requested were granted, there would not be substantial detriment to the public good and would not substantially impair the intent and purpose of the Fire Code. However, as to item 3, it has been testified the plans were approved, and a certificate of occupancy was issued and there has not been presented to me sufficient evidence to support the violation for item 3 that the actual use of the space differs from what was approved and the building department issued a certificate of occupancy. Tim Johnson seconded. Moscrip stated he cannot agree safety, health, and welfare are being protected by not allowing PFA to inspect and approve the basement use. He suggested making the lower level temporarily available for 30 days in order to get PFA approval. Members had a discussion about the certificate of occupancy issued for the lower level. Moscrip proposed an amendment to the motion to grant temporary relief regarding item 3 for 30 days to allow time to establish complete permitting. DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394 City of Fort Collins Page 8 May 26, 2022 Members questioned which Fire Code would be applicable and it was clarified the current Code would apply if additional evidence provided does not demonstrate it was submitted as a dining room; however, if the current certificate of occupancy was issued based on the dining room use, that would not be the case. (**Secretary’s Note: The Commission took a brief recess at this point in the meeting.) Assistant City Attorney Guin stated attorneys from both parties have a desire to make a joint statement. Ms. Duke spoke regarding item 3 and stated PFA’s position was there was a change of use and that Mr. Lesondak’s position was that there was not a change of use. She requested the Commission rule in favor of PFA if it believes there was a change of use and in favor of the appellant if it believes there was not a change of use. Mr. Long concurred with Ms. Duke and stated both parties would prefer the Commission find in favor of the notice of violation or against it. Assistant City Attorney Guin stated the Commission would uphold the notice of violation as to item 3 if it finds there was a change of use and would not if it does not find there was a change of use. Moscrip withdrew the amendment he proposed to the motion. The motion passed 4-1 with Moscrip dissenting. [Timestamp: 12:31 p.m.] • OTHER BUSINESS None. • ADJOURNMENT Chair Cram adjourned the meeting at 12:32 p.m. Minutes prepared by TriPoint Data and respectfully submitted by Melissa Matsunaka. Minutes approved by a vote of the Commission on _________________________________ ______________________________ Marcus Coldiron, Chief Building Official Alan Cram, Chair July 28, 2022 DocuSign Envelope ID: 5BE8EBC0-DFF0-40C2-8196-3C3981C30394