that also include the deck issue that is supposed to be ground cover? >> planning is going to have their day in court reviewing it. >> i don't know if we can condition it on a new permit being issued on a different property. i think we just revoke. >> it's actually denying the permit. it's not issued yet. it's not a revocation. it's a technicality. it's a denial of the permit. >> i thought the erment was issued? the issuance by ddi but appealed. >> are you in disagreement with what i said that we could do? >> i don't understand how the board could do it. i would need to understand it better. if you are talking about a second

permit which would need to be taken out by a different property owner, i'm not sure how. >> i don't think we can condition it. >> you could have done it with the same property owner. all right. >> i just, as the only member of the this board who heard this previous times, this case came in front of us and having to get through all of those conditions because it's extremely complex and convoluted, i was trying to put it to rest for all the parties concerned but i can't. i would support denial of the permit. >> any other comments?

>> i'm going to move that permit be denied with the finding that the designated property owner on the permit was incorrect. >> commissioner, would you consider also adding that the permit was on the wrong parcel in addition, maybe that's the same designated property owner. >> the permit location was okay. was it not? okay. all right. then let's add that to it. >> so the basis is that the designated property owner and

parcel were incorrect? >> right. >> we have a motion from commissioner fong to deny this permit and it's on the basis that the designated property owner was incorrect and that the address parcel was also incorrect. >> right. >> on that motion to deny this permit with those findings, that basis, president wong? aye, tad oh, aye, lazarus, aye, thank you. the vote is 5-0. this permit is denied on that basis. >> then we'll call the next and

last item on our calendar. no. 13 -- 7. subject property at 4871 mission street pealing a notice of violation of penalty dated february 6, 2013. addressed to lucky group investments l l c regarding the operation of a financial service use. >> could you keep your voices down and take your conversation outside the hearing room. doing business as lucky money check cashing without authorization and violation of the planning code. we will begin with the appellant. you have seven minutes. >> thank you, board president, wong, my name is charles smith. i'm the attorney. i represent the lucky group. we appeal the notice of violation in the

finding that lucky check cashing was operating without the required conditional use authorization. the predicate for that finding for the finding z a was that this business was a new fringe financial service therefore requiring such a conditional use authorization. our argument as setforth in our brief and as i will articulate here tonight is that this business not a new business and had operated continuously without disruption in that location for almost 20 years. i have a map which i hope will display. may i use the overhead? >> yes. >> i have extra copies that would be easier for the commissioners to view them. >> i would like an extra copy. >> there are six there. as our

map sets forward. the business was operated at location no. 1, 4929 mistreat from 1984 to july of 1998. it moved to mission street which operated until july of 2007. the history of the maendz -- amendments to the substitute -- statute which are in hearing tonight was as of may of 2007. the board viewed as shown by public record of the board was a location for my clients business at that 5036 mission street. that's where it was located when the legislation

was proposed. by the time the legislation was passed in june of 2008, the business moved to the location no. 3 at the top of the map which is 4569 mission street. there was no requirement, no argument by the city or anyone else that that move constituted a new fringe financial business in that location. the business operated there for four years when it then moved to its current location. as the map demonstrates, all of these locations are within a jesus -- geographical location and all in the neighborhood which is essentially the same during that half mile or so of the city. no difference in terms of the neighborhood where the

businesses whatsoever. as the map demonstrates, the current location is within less than two city blocks from the location which was implicitly approved as an existing business when the legislation was passed in 2008. now, significantly, so, based on that argument and based upon that continuous use in operation over all those years in essentially the same half mile stretch despite the different locations, that business has operated continues ously in that location. therefore the findings that we were a new business subject to in 2008 in the legislation. the legislation is clear and the board of supervisors conduct shows that it's clear that the

amendments in 2008 clearly applied to new fringe financial businesses in this district. the word new is in the history of legislation and in the language of the legislation. we clearly were not a new business. now, there is obviously an argument and i think perhaps where the confusion might have come in for the zoning administrator is the legislation was part of a broader legislation which also included the excels or alcohol. the expressed language of the statute requires that a change of location for a liquor store and alcohol business will trigger a requirement for a new permit, a new review, a determination whether or not that was in the best interest of the neighborhood. but as we lawyers like to use latin terms and there is a latin term in

clues i don't see union use. scluz ex-sclus the inclusion of one is the exclusion of others where in the context where it's clear that the legislative body had the power to indicate a change of location is a significant item and subject to review and they include that in one statute as they did in the alcohol issue and they leave it out as to the other statute. it's not included when we deal with such fringe business. the law says that we must conclude that the legislative body knew they could have in included that change of location language if they had chosen to, but they

did not and that is a significant point which i argue to the commission. if this was not a new fringe financial business but rather one that had operated there for all those years. now, as to the other point regarding the interior wall. that has been taken care of. it's no longer an issue. it's been done with the approval of the planning and zoning department and the signing is done by the determination by this board. this business has operated there with the proper local and state license since 1994.

>> mr. sanchez? >> sure. >> thank you. scott sanchez with the planning department. it's located in the nc 3 zone center with the alcohol restricted use district. the controls of the fringe financial special use district in planning code. to provide a little bit of background very briefly. we received a complaint regarding the establishment about this location in 2011. we sent our first enforcement of this project and we didn't get it until july of 2012 because of backlog. we also received

subsequent complaints about permits and we had two separate notices that went out regarding this and change of use location and subsequent to that staff realized this was within the fringe financial special use district which prohibited new establishment and sent enforcement notice says the use with a prohibited. the appellant has stated they tried after that time to discuss with staff the proposal and they have no record of any e-mail or phone calls from the sponsor or the number and lost communication with them in may with someone with lisa who no longer worked with the company. but ultimately we issued a notice of violation penalty and in november the hearing request on that and we received that and staff sat down with them

and before the hearing the staff went over the that with me and -- allows a non-conforming business to relocate within a district and we informed the sponsor that we can issue conditional use that they can rely at this location. this provision 18 is would allow them to legalize and asked if we wanted to continue with the hearing and they said no. and we made them available to this process to legalize and they said no, they wanted to have this matter brought before the board of appeals and we obliged with the issue of notice of penalty. as stated they can, planning code section 181 allows that and i would

point that in section 29.35 that they have provided in subsection e which the the fringe financial service district there is a section on a continuations of fringe financial uses. it may i continue in accordance and again emphasizing in accordance with 186.2 and 186.1 allows for relocation of existing non-conforming use within the

same district with cu authorization. so i believe that it is very clear what the path for relocating an existing non-conforming use. this section says for relocation you need a cu. the appellant through some nice latin tried to throw this with use district. in like they would like you to believe they are were adopted as separate legislation. the ordinance 70 -- 08 that established the control fringe for the financial. they are not actually part of the same piece of legislation and not part of the same section of the planning code. the section of the planning code that deals with this location, the fringe financial use district. this

allows the non-conforming relocate to the non-conforming use district and they have not sought to a veil themselves which allows to relocate and they brought this matter before the board of appeals. i request that the board request the violation and penalties and i'm available for any questions. >> what is your understanding of the pediments or challenges they face in getting a c u? >> for the authorization. it's a matter of timeful certainly

have they applied when we noticed them. >> is there any opposition in the community to this type of news is >> we received one complaint but i'm not aware of any opposition. that is something that would be found out during the enforcement process. i don't think anyone came in regards to this item. >> the complaints were anonymous, weren't they? >> i believe so. >> question for you is it seems like the premise that for your determination hinges on the definition of what is non-conforming. if this use is

allowed in that district, and it's not a new use, is it non-conforming? >> so in this special use district, it states that these uses are allowed to continue subject to the limitation of planning code section 180 which are non-conforming uses and 1861 only allows with the conditional use authorization. it's a strict line connecting the special use district to the cu requirement. >> we keep asking about the intent of these statutes. what's the intent to limit these types of establishment because there is so many in the city and concerned about the interest rates. >> that it's causes the city to

regulate these uses. the concern about that and no new uses are allowed hover they have the ability to continue an existing legal use which is what we have offered to them. >> i have a question as well. so, after the legislation was law, they already have already moved one time prior? so, does that mean that they were operating non-conforming the whole time? >> that is an excellent question and i think that in our presentation of this to the appellant that we were probably somewhat liberal and flexible and saying they can -- a veil themselves of this process an they have been changing the location but found that they did establish that the previous

location prior to the -- and that was the location no. 3, they established their prior to this special use district coming into effect whether or not they have a permit at that location indicate we were trying to apply some flexibility here and an allowing them to go through process. >> all the cases are sounding alike today, aren't they? conforming, non-conforming, limited use. >> one maybe for giving for not object obtaining a permit for use. >> the permit has been declared. >> they would need a permit for legalizing the business upon authorization. >> okay. thank you. >> mr. sanchez. one last question on that. the

conditional use process runs with the property; not the business. how does that work. >> the conditional use authorization requires the previous use to be abandoned and so a check cashing space can not relocate at the previous location as part of the planning commission's decision to allow relocation to this establishment because right now, i think other use t previous location no. 3, is my understanding to a converted use so that has effectively been abandoned but the new location has not been legalized through the proper process. they should have gotten a cu when they moved in 2011. >> thank you. >> is there any public comment on this item? seeing no public

comment we'll start with rebuttal. >> i have listened during the time in here during the interesting exchange with the whole thing regarding non-conforming with the conforming uses. the fact is that the business has been there since 1994 in that neighborhood. no legislation prohibited it. no legislation outlawed it and no legislation made it a non-conforming or any other term. always been a legal use. when the legislation came into effect, that didn't make it an illegal or non-conforming use, i would argue. it remained that way and just factually in terms of commissioner fong's questions about the change of location, the facts are that the three previous locations were all rented where the

business owner was at the whim of a landlord. the current business is owned by the lucky group. so it's different. so unlike the residential cases where we lived to before where the owner has decide to change the use of his property, those are in opposite to what we are dealing with here. i also listened mr. sanchez talk about procedural mistakes that perhaps my client made in not following the right procedural path, but i would simply argue that i ask the board to put substance over procedure. if at the end of the day the argument is accepted that this is not a new fringe financial business in that neighborhood, but rather the continuations of an existing one and the city for good decent reasons has been argued should limit businesses of this nature. well, fine.

don't let anyone else into that neighborhood. there are already several businesses in that neighborhood doing what my clients do. to punish my client by simply changing locations by a few blocks doesn't make sense. >> how do you get around 18 -- how do you get around that? >> i asked my architect which is much more -- >> let's say you are saying you want us to look at substance over procedure. the conditional use process is one that goes down a whole different path. we don't review those. so it would never come back to us. >> okay. >> and yes, okay your architect

can ask us. >> architect for the project. could you repeat the question? >> is there any argument to contradict to what the zoning administrators mention to its applicability to your clients situation. >> actually i tried to refer to code section 180 through 186.2. the zoning administrator is referring to this code section if the fringe financial surface using it they move is subject to those code sections. a lot, yes, it's subject to code section but it doesn't mean it's non-conforming use. they refer to nop conforming use to the regulation but they do not say this is non-conforming use

and you have to use this code section. they say, this is something we want to you do and refer you to that code section for regulation. we never realize that's a non-conforming use. we just you use regulation a, regulation a to regulate b. >> are you saying you don't agree that that's an applicable section. you disagree in >> i disagree that's non-conforming use. >> you disagree? >> yeah. >> okay. >> i guess i have a question for mr. sanchez. did you say that there was an explicit provision in the 2008 legislation for businesses that were already in existence before 2008 as fringe financial services? >> can i have the overhead to

show up on 249, it's actually included in. >> we can't see that. why don't you read it? >> okay. thank you. this part of the appellant's brief 249.5 continuing existing prohibited fringe financial, exhibit 2 of appellant's brief and it's referenced to the code section. so any fringe financial service subject to the restrictions setforth continue planning code of section 186 following and when you refer to 186.1 allows for any non-conforming use may

allow within that commercial district only upon approval of a new conditional use application with according to the this article 3 code. >> you have rebuttal if you would like to use it. >> i have nothing further to add. >> okay. >> i have trouble in spanish. >> commissioners, the matter is submitted. >> all right. any comments. >> i have a comment. commissioners, i think the crux here is really whether the use is non-conforming or not. i think it's quite clear that the legislation says that there are no new. this is not a new one. yes, the issues of relocation based upon a non-conforming use

triggers 186, however the question is still not clear in my mine that it's a non-conforming use. >> i didn't see that in the statute. >> it says, the za is saying that because it's a non-conforming use that it's a restricted use for relocation. >> i didn't hear it that way. >> i didn't either. sorry. >> sections under 249 existing prohibit financial fringe uses may i continue in accordance with planning code section 186.2. if it's