|
OAH 3-1902-21008-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE DEPARTMENT OF LABOR
AND INDUSTRY
|
ORDER ON CROSS MOTIONS FOR SUMMARY DISPOSITION |
This matter is before
Administrative Law Judge Kathleen D. Sheehy on cross motions for summary
disposition. The motion record closed on
April 27, 2010, upon receipt of correspondence from the parties.
Robin M. Wolpert, Esq., Greene Espel,
appeared for the City of
Based upon all of the files, records, and
proceedings herein, and for the reasons set forth in the accompanying
Memorandum, the Administrative Law Judge makes the following:
ORDER
IT IS HEREBY ORDERED
that:
1. The City of
2. The Respondent’s Motion for Summary
Disposition is DENIED; and
3. The Decision of the State Board of
Appeals dated September 30, 2009, is AFFIRMED.
Dated: May 14,
2010
_/s/
Kathleen D. Sheehy _
KATHLEEN
D. SHEEHY
Administrative
Law Judge
NOTICE
The Commissioner of Labor and Industry has ordered pursuant
to Minn. Stat. § 14.57 (2008) that the Report of the Administrative Law Judge
shall constitute the final decision in this case.[1] Accordingly, this Order is the final decision
in this case. Any person aggrieved by
this decision may seek judicial review pursuant to Minn. Stat. §§ 14.63 to
14.69.
MEMORANDUM
This is an appeal from the
determination of the State Appeals Board of the Department of Labor and
Industry (Department or DOLI) that a change in the occupancy classification of
the Respondents’ property required the issuance of a new certificate of occupancy. Under the State Building Code (SBC), such a
change may trigger the requirement to comply with other code provisions.
The issues presented on the
cross motions for summary disposition are (1) whether the Respondents’ appeal
of the building official’s decision is time-barred under Minn. Stat. § 326B.139
and Minn. R. 1300.0230; and (2) whether the Respondents’ installation of a
grinder on the property changed the use of the building at 1255 Cope Avenue in
Maplewood to an “F-1” occupancy classification, which requires a new certificate
of occupancy. Summary disposition is the
administrative equivalent of summary judgment.[2] Summary disposition is appropriate when there
is no genuine dispute about the material facts, and one party is entitled to
judgment as a matter of law.[3] The parties have agreed that this issue is amenable
to summary disposition. Although the parties
were unable to reach agreement on a statement of stipulated facts, no party has
argued that genuine issues of material fact require a hearing. Both sides argue that they are entitled to
judgment as a matter of law.
There are different kinds
of regulations referenced in the Background Facts described below, which are described
here in the interests of clarity. The
The building code is the
State Building Code (SBC), which is applicable to the construction,
reconstruction, alteration, and repair of buildings and other structures throughout
the state of
The fire code is the State
Fire Code (SFC). The State Fire Marshal
is a division of the Department of Public Safety.[7] The SFC contains its own occupancy
classifications and is also applicable throughout the state, except where
municipalities have adopted more stringent requirements.[8]
Background
Facts
Patricia Gearin is the
principal owner of Gearin LLC. In the
summer of 2007, Gearin LLC purchased a building located at
Northern
Hydraulics was the business located at
The
Respondents do not dispute that Northern Hydraulics sold retail equipment and
did not manufacture products on the premises.
They assert in their memorandum, however, that in addition to its retail
business, Northern Hydraulics also repaired small engines on the premises. This assertion is not supported by reference
to any affidavit or other document in the record.[10]
In
1991 the City had issued to Northern Hydraulics a certificate of occupancy,
which classified the occupancy of the building at
Drinking and dining establishments having an
occupant load of less than 50, wholesale and retail stores, office buildings, printing plants, municipal police
and fire stations, factories and
workshops using materials not highly flammable or combustible, storage and
sales rooms for combustible goods, [and] paint stores without bulk handling . .
.[12]
The
building at
In
June 2007, the Respondents ordered a $150,000 ReTech Single Shaft Shredder from
Vecoplan, LLC, a company located in
The
Respondents did not seek an opinion from David Fisher, the Maplewood Building
Official, as to how installation of the grinder might affect the occupancy
classification of the building.[16] In July 2007, the Respondents moved into the
building. The grinder was shipped on
July 25, 2007, and the electrical upgrades necessary to operate it (at a cost
of $17,000) were installed shortly thereafter.[17]
Soon
after the Respondents moved in, David Fisher observed that the building was
occupied, and he went there to speak to Ms. Gearin. He observed that large quantities of used
clothing, shoes, rubber and leather products, and textiles were being stored in
the building. He formed the impression
that Gearin intended to sell some of these items at retail. There was so much material, however, that
doors and exits were blocked, and was difficult to move through the building
because the aisles were not cleared.
During this visit, Ms. Gearin told Fisher that she intended to install
an industrial grinding or shredding machine to grind items such as shoes into
an absorption material to be resold.
Shoes contain plastic and rubber, which are combustible items. When these items are ground, they create combustible
dust.[18]
Fisher
informed Gearin that she would need a new certificate of occupancy to conduct
manufacturing activities in the building, because this was a change in
use. He told her to apply for a new
certificate of occupancy, and she reluctantly did so. On August 1, 2007, the City issued a
temporary occupancy permit. The
temporary permit provided that approval by the fire marshal and building
official were required before manufacturing activities could begin.[19]
On
August 3, 2007, Fisher and Fire Marshal Butch Gervais inspected the building
and subsequently provided Gearin with a list of items she had to address in
order to operate the grinder. In the
report, Fisher identified the proposed use as a change “from Mercantile to
Factory,” and he identified the proposed occupancy classification as “F-1.” The highest priority item on the list was to provide
certification of the fire sprinkler system by a
To
obtain a new certificate of occupancy, Fisher advised Respondents they would
have to meet code accessibility requirements, including handicap-accessible
parking, entrance, door hardware, restrooms, and handrails.[21] Over the next several months, however, additional
issues arose pertaining to the Respondents’ compliance with the conditional use
permit and with the SFC, after a licensed sprinkler contractor reported that
the Respondents would either have to reduce the amount of material stored on
the premises or upgrade the existing sprinkler system.[22] The Respondents’ attorney (not current
counsel) did not dispute the need for a new certificate of occupancy and
proposed a schedule for making the required accessibility changes by the summer
of 2008. Instead of upgrading the
sprinkler system, the Respondents indicated they would reduce the amount of
material stored in the building.[23]
On
January 8, 2008, Vecoplan technicians arrived in
After
the fire, the building official posted one or more “stop work” notices on the
building.[28] On January 16, 2008, the building official
again wrote to Gearin, asking her to verify in writing the details of her
business plan. It was his understanding
at that time that the business recycled boots, shoes, and clothing, and that it
also sold used boots and shoes. Some of
the clothing was packaged or bundled and sent overseas. If boots, shoes, and other leather goods were
not reusable, the plan was to grind them up and sell the resulting pellets as
absorbent material. He also summarized
the steps necessary to amend the conditional use permit, bring the building
into compliance with the fire code and building code, and call for inspections
upon completion of the work.[29] On January 18, 2008, the city issued a
building permit to a contractor to do fire damage cleaning on the premises.[30]
When
Gearin later refused to allow the building official to inspect the property to
ensure its safety after the fire, the building official applied for and
obtained an administrative search warrant from the Ramsey County district
court, and criminal charges were filed against Gearin for obstructing legal
process and failing to obtain a new occupancy permit.[31] The status of those charges is not clear from
the record.[32] In April 2008, after completion of the fire
damage clean-up work, the building official conducted a final inspection of
that work and issued a certificate of occupancy to the Respondents for the M
(Mercantile) occupancy classification so that Respondents could use the
property for retail purposes.[33]
In
November 2008, the Respondents sent a Request for Reconsideration and a Request
for Hearing to the City of
The
State Appeals Board met on September 21, 2009.
The Board unanimously determined that the installation of the grinder
changed the occupancy classification to F-1 (Moderate Hazard), and that a new
certificate of occupancy was required. On
September 30, 2009, the Board confirmed its decision in writing. The Respondents appealed this determination
by requesting a contested case hearing pursuant to Minn. Stat. § 326B.139. On December 16, 2009, the Commissioner issued
the Notice and Order for Prehearing Conference and Statement of Charges in this
matter.
Analysis
A municipality is not required to administer and enforce
the SBC, but it “may choose to administer and enforce the State Building Code
within its jurisdiction by adopting the code by ordinance.”[36] When a municipality designates a building
official, the Department must review and certify that specified qualifications
are met. Once designated, the building
officials shall “in the municipality for which they are designated, be
responsible for all aspects of code administration for which they are certified,
including the issuance of all building permits….”[37] The building official receives permit
applications, reviews construction documents, inspects the premises, and
interprets and enforces compliance with the Building Code.[38] The City of
Municipalities are authorized to create a local board of
appeals to hear and decide appeals of orders, decisions, or determinations made
by the building official relative to the application and interpretation of the
SBC. Appeals must be heard within ten
working days from the date the municipality receives a properly completed
application for appeal. If a
municipality has no local board of appeals, an appeal may be made to the State
Appeals Board assembled by the Department of Labor and Industry’s Construction
Codes and Licensing Division.[39] A person aggrieved by the final decision of
any municipality as to the application of the code may appeal to the
commissioner within 180 days of the decision.
An appeal must be heard as a contested case under chapter 14. The party not prevailing shall pay the costs
of the contested case hearing, including fees charged by the Office of
Administrative Hearings.[40]
Is the Appeal of the Building
Official’s Decision Time-Barred?
The City argues that the State Appeals Board should not
have heard the Respondents’ appeal because Respondents waited too long to
challenge the building official’s decision.
The City asserts that, despite the absence of any express deadline in
Minn. R. 1300.0230 for appealing an order, decision, or determination made by a
building official, the deadline can be no longer than the 180 days specified in
Minn. Stat. § 326B.139 for the appeal of a final decision to the
Commissioner. Otherwise, the City
contends, a decision would never be final unless it is appealed. In addition, the City argues that the
definition of a “final” decision in Minn. Stat. § 326B.082, subd. 5, provides
support for the proposition that a “final” order limits the time for appeal,
because the statute defines a final decision as one that has not been appealed
in the time frame permitted.
The Respondents argue that there is no limitations period
for seeking review of a building official’s decision by an appeals board. In addition, the Respondents point out that
the DOLI representative at the State Appeals Board hearing advised the Board
that DOLI has always interpreted the statute to provide no limitations period
for appeals to the Board of Appeals. In
the Department’s view, the 180-day deadline applied only to appeals to the
Commission from the final decision of the Board of Appeals.
As noted above, Minn. R. 1300.0230, subp. 1, contains no
express limitation on the time for bringing an appeal to a local appeals board. In addition, the 180-day limitation period
contained in Minn. Stat. § 326B.139 expressly applies to an appeal to the
commissioner from a municipality’s final decision. Moreover,
The permitting process is not, and should not be,
comparable to litigation. Building
construction is a fluid process; building plans are often changed multiple
times in the course of a project, in response to conditions not originally
anticipated, cost considerations, or other factors. Until a certificate of occupancy is issued,
the process is not complete.[41] A building official’s decisions accordingly are
not stamped with the “finality” language of a court or administrative
order. The Administrative Law Judge
concludes there is no legal or policy basis for reading a separate 180-day
deadline into the rule. In this case,
the State Appeals Board served in place of a local appeals board and made the
municipality’s final decision on September 30, 2009. The Respondents appealed to the Commissioner
within the requisite 180-day timeframe.
The City’s motion for summary disposition on the basis that the appeal
is time-barred is denied.
Did Installation of
the Grinder Change the Occupancy Classification?
The second issue is whether the installation of the grinder
changed the occupancy classification of the building and required a new
certificate of occupancy. The City
argues that installation of the grinder changed the use of the building from
B-2 or M to F-1, requiring a new certificate of occupancy. The Respondents argue that the 1991 B-2
occupancy classification included their proposed use of the property, that B-2
is equivalent to F-2, and that no new certificate of occupancy was required.[42]
Under the SBC, the owner of property is responsible for ensuring
that a proposed use of the property, or a proposed modification to property, is
permitted. In the normal course of
events, an owner who
intends to alter or change the occupancy of a building or structure, or who
intends to install any mechanical system or other equipment, applies for a
building permit before any work is done.
The permit application requires the owner to identify the work to be
done by the permit; indicate the use and occupancy for which the proposed work
is intended; and provide other information as required by the code. The application triggers review by the
building official, who typically specifies what, if anything, must be done to
ensure that the proposal conforms to the requirements of the code and other applicable
laws and ordinances.[43]
In addition, the SBC provides that no building or structure
shall be used or occupied, and no change in the existing occupancy
classification of a building, structure, or portion of a building or structure
shall be made until the building official has issued a certificate of occupancy
for the building or structure.[44] The legal occupancy of any structure existing
on the date of adoption of the code, however, shall be permitted to continue
without change, except as specifically required in Chapter 1311 (Guidelines for
the Rehabilitation of Existing Buildings).[45] Similarly, changes in the character or use of
an existing structure shall not be made except as specified in Chapter 1311.[46]
Chapter 1311 of Minnesota Rules adopts by reference
chapters 1 through 6 of the 2000 Guidelines for the Rehabilitation of Existing
Buildings (GREB), as promulgated by the International Conference of Building
Officials.[47] Section 501.1 of the GREB addresses changes
to existing buildings as follows:
The character or the occupancy of existing buildings and structures may
be changed, provided the building or structure meets the requirements of this
chapter and provided the requirements of Chapter 4 are applied throughout the
area of the building where the new use occurs.
Where no specific requirements are included herein, the building or
structure shall comply with the Building Code.
Every change of occupancy
to one classified in a different group or a different division of the same
group shall require a new certificate of occupancy regardless of whether any
alterations to the building are required by these guidelines.[48]
In
2007,
The
Respondents maintain that their proposed use is within the scope of the B-2 or F-2
occupancy classification and that they are not required to obtain a new
certificate of occupancy or make any other changes to comply with the SBC. They argue, somewhat cavalierly, that even if
installation of the grinder turned the premises into a “factory,” there was no
change in character or use of the building because B-2 occupancy included
“factory use.” The B-2 occupancy, however, did not include all possible factory
use. It included factories and workshops
“using materials not highly flammable or
combustible.” Under the 1988 UBC, occupancies
with combustible dusts, either in suspension or capable of being put into
suspension in the atmosphere of the room or area, were classified as H-2 (moderate
explosion hazard); other occupancies with combustible fibers or dusts were classified
as H-3 (high fire or physical hazard).[50]
Under
the current code, the occupancy
classification corresponding to B-2 factory use is F-2, which is specifically
defined as factory industrial uses that involve the fabrication or
manufacturing of noncombustible materials, which during finishing, packing or
processing do not involve a significant fire hazard. This category expressly includes, for
example, the fabrication and assembly of metal products.[51] In contrast, the F-1 (Moderate Hazard)
occupancy classification under the current code includes all factory industrial
uses that are not classified as F-2 Low Hazard.
The F-1 occupancy classification includes, but not limited to, the
fabrication or processing of clothing, leather products, shoes, and textiles.[52]
The
Respondents have not disputed that the processing of leather products and shoes
into absorbent pellets generates combustible dust, which is a significant fire
hazard. The
Moreover,
the SBC requires that when a change of occupancy of a building places the
building in a different division of the same occupancy group or in a different
occupancy group, the building shall have all the following accessible
features: (1) at least one accessible
building entrance; (2) at least one accessible interior route from an
accessible building entrance to primary function areas; (3) accessible parking,
where parking is provided; (4) at least one exterior accessible route from accessible
parking to an accessible building entrance; and (5) at least one accessible
unisex or male and female toilet room.[53] These are the same requirements the
There
is debate between the parties about whether the building official’s knowledge
of how Northern Hydraulics operated is relevant to the question whether a
change of occupancy has occurred. What
the building official knew about the previous operation of Northern Hydraulics
may have informed his judgment that there was a change in the use of the
property and the corresponding occupancy classification, but it is not
dispositive. The greater weight of the
evidence suggests that Northern Hydraulics was operating in compliance with its
certificate of occupancy by using the building for retail sales; if Northern
Hydraulics were using the property for small engine repair, it may have been
operating outside the limitations of its certificate of occupancy. Whether Northern Hydraulics was in or out of
compliance with its occupancy certificate, however, is not particularly
relevant to this case.
What
matters is whether there is a change in the use of the property that moves it
to a different occupancy group or a different division within the same
occupancy group. The record demonstrates
unequivocally that installation of the grinder changed the occupancy
classification of the property from a low hazard factory use (under either the
1988 UBC or the 2006 IBC) to a moderate hazard factory use and that this change
requires a new certificate of occupancy under the SBC. Regardless of the thought process used to
reach this conclusion, the Maplewood building official correctly concluded, from
the very first contact that he had with the Respondents, that installation of
the grinder changed the occupancy of the building to F-1 and that a new
certificate of occupancy was required.
The
Respondents have relied in part on the Affidavit of Adam S. Richardson, who
apparently telephoned a Mr. Fallon at the Department of Labor and Industry and
had the following exchange about this case:
Gearin LLC purchased the building which used
to house Northern Hydraulics in
This
telephone conversation is not persuasive evidence of anything. First, Mr. Richardson asserted, incorrectly,
that the Respondents’ use of the building fit within the B-2 designation,
without providing the critical information that Respondents had installed a
grinder to turn shoes and leather products into absorbent pellets. Moreover, his information about how the B-2
classification corresponds to the factory occupancy classifications under the
IBC is imprecise, because there are two possible classifications: one that is low hazard, and one that is
moderate hazard. The conversation as
related in the affidavit would not be admissible evidence at a hearing, and it
does not create any genuine issue of material fact.
The Respondents
also contend that the district court’s determination in the criminal case that “no
new COO was necessary” is persuasive here.
The issue the district court decided was whether the administrative
warrant application was incomplete because it failed to reference the 1991
certificate of occupancy. The district court did not decide that a new
certificate of occupancy was unnecessary.
Finally, there apparently is a dispute as to whether the Respondents
complied with the terms of a conditional use permit issued to Northern
Hydraulics, which contains restrictions related to the hours of operation,
outside storage, and fencing.[56] These are matters of zoning law that are
unrelated to occupancy issues under the SBC.
The building official, however, has the responsibility to determine
whether proposed work meets the requirements of the SBC as well as other
applicable laws and ordinances.[57] This appeal does not present the issue whether
Fisher was right or wrong on the merits of the advice he gave to Respondents about
the steps necessary to comply with or change the terms of the conditional use
permit. By raising these issues with
Respondents, however, Fisher did not exceed his authority as a building
official.
The Administrative Law Judge concludes there is no genuine issue of
material fact, and the City has proved as a matter of law that a new
certificate of occupancy is required before the Respondents may operate the
grinder on the premises. The City’s
motion for summary disposition on the merits is granted, and the Respondents’
motion for summary disposition is denied.
The decision of the State Appeals Board is AFFIRMED.
The Respondents in this case have been persistently confused
about the complexity of the regulations governing their proposed business.[58] Moreover, when Fisher gave the Respondents a
certificate of occupancy for retail sales after the fire clean-up work had been
inspected, they viewed this as “crazy,” even though it was done to facilitate
their use of the property for retail purposes, while they continued to work on
the updates required by installation of the grinder.[59] The Respondents did not seek advance approval
of the planned use of the property from the building official. If they had, their path to operating the business
as planned may have been straighter, and much of the delay that they complain
about now may have been avoided. The
fact that they did not seek approval in advance, however, does not mean that the
building official lacked authority to require a new occupancy certificate or compliance
with the code when he discovered the plan to operate the grinder.
Minn. Stat. § 326B.139 provides that the party not prevailing on an
appeal to the Commissioner shall pay the costs of the contested case hearing,
including fees charged by the Office of Administrative Hearings.[60] The parties have not addressed this
provision, and it is possible that the Department of Labor and Industry intends
to absorb those costs without charging them back to the parties. If those costs are charged back, however, the
Administrative Law Judge believes they should be shared equally, because each
party prevailed on one of the issues presented.
K. D. S.
[1] See Notice and Order for Prehearing Conference at page 2. All citations to Minnesota Statutes are to the 2008 edition; all citations to Minnesota Rules are to the 2009 edition.
[2] Pietsch
v. Bd.of Chiropractic Examiners, 683 N.W.2d 303, 306 (
[3] Sauter
v. Sauter, 70 N.W. 2d 351, 353 (
[4]
[5]
[6]
[7]
[8]
[9]
Affidavit of Butch Gervais (Assistant Chief and Fire Marshal for City of
[10] Appellants’ Memorandum in Support of Motion for Summary Disposition at 2.
[11] Affidavit of Jill Clark Ex. B (Mar. 29, 2010).
[12] See Clark Aff. Ex. C (1988 Uniform Building Code) (emphasis added); Affidavit of Robin Wolpert Ex. B (Mar. 29, 2010) (1988 UBC); Minn. R. 1305.0100 (1991) (adopting 1988 UBC).
[13] Affidavit of David Fisher ¶ 2 (Mar. 29, 2010).
[14] Clark Aff. Ex. L.
[15] Clark Aff. Ex. Q.
[16] Fisher Aff. ¶¶ 4-6.
[17] Wolpert Aff. Ex. D. Exhibit D is an Affidavit of Robin Wolpert dated September 15, 2009, which itself has attached Exhibits A through N, some of which (confusingly) have their own lettered attached exhibits. The documents the ALJ intends to reference here are the invoices from Vecoplan and White Bear Electric, which are Exs. E & F to the 9/15/09 Affidavit.
[18] Fisher Aff. ¶¶ 7-8.
[19] Clark Aff. Ex. K-I & K-ii.
[20] Clark Aff. Ex. E.
[21]
[22] Clark Aff. Ex. H; (10/11/07 letter); Ex. I (11/6/07 letter); Ex. J (12/17/07 letter).
[23] Wolpert Aff. Ex. D. The document the ALJ intends to reference here is the letter dated Dec. 3, 2007, from Allan Barnard to David Fisher, which is Ex. C to the Affidavit of David Fisher dated Dec. 15, 2008.
[24] Clark Aff. Ex. S at pages 7-8, ¶¶ 6-9.
[25] Wolpert Aff. Ex. D (application for administrative search warrant ¶ 13).
[26] Clark Aff. Ex. S at pages 7-8, ¶¶ 6-9.
[27]
Wolpert Aff. Ex. C. The mechanical code
regulates the “design, installation, maintenance, alteration, and inspection of
mechanical systems that are permanently installed and utilized to provide
control of environmental conditions and related processes within buildings,” in
addition to systems specifically addressed in the International Mechanical Code
and the IFGC. See
[28] Wolpert Aff Ex. D (Exhibits E, F & G to the Affidavit of David Fisher dated 12/15/08).
[29] Clark Aff. Ex. H; Wolpert Aff. Ex. D (Ex. F to application for administrative search warrant).
[30] Clark Aff. Ex. M-i & M-ii.
[31] Wolpert Aff. Ex. D (Ex. J to the application for administrative search warrant); Clark Aff. Ex. Nii (criminal citations dated 2/15/08).
[32] It appears the district court dismissed some charges and suppressed evidence of the code violations found during the search, on the basis that the building official had failed to disclose the 1991 certificate of occupancy in the warrant application. See Clark Aff. Ex. G.
[33]
[34] Clark Aff. Ex. V.
[35] Clark Aff. Ex. W.
[36]
[37]
[38]
[39]
[40]
[41] See generally Minn. R. 1300.0220.
[42] Appellants’ Memorandum in Support of Motion for Summary Disposition at page 1 (“This issue is very simple. B-2 = F-2.”). The Respondents have also argued, inconsistently, that a B-2 occupancy is now equal to an F-1 occupancy. See Appellants’ Responsive Memorandum at page 2.
[43] See Minn. R. 1300.0120, subps. 1, 7, & 8.
[44]
[45]
[46]
[47]
[48] Wolpert Aff. Ex. E (2006 International Building Code § 501.1) (emphasis added); see also Minn. R. 1311.0301 (change in use or change in occupancy means a change in the character or use of an existing building or portion of a building that would place it in a different division of the same group of occupancy or a different group of occupancies).
[49]
Wolpert Aff. Ex. A (2006
[50] Second Affidavit of Robin Wolpert dated 4/5/2010 Ex. B. Lumberyards using only power saws were exempted from H-2 classification, as were small woodworking shops using no more than two dust-producing machines, provided the machines were equipped with approved dust collectors. The building official, however, retained the authority to revoke these exemptions for good cause. See id.
[51]
Wolpert Aff. Ex. A (2006
[52]
Wolpert Aff. Ex. A (2006
[53]
[54] See generally GREB §§ 401.1 & 403.1 (life safety requirements).
[55] Affidavit of Adam S. Richardson.
[56] See Clark Aff. Exs. A & X.
[57] See
[58] See, e.g., Wolpert Aff. Ex. D (Gearin
Declaration in Support of Motion for a Temporary Restraining Order at ¶15) (“I
have no idea what an ‘occupancy permit’ is.
I have never heard of such a thing, and I don’t believe that it is a
real document. I believe that
[59]
[60]