City's Response {Finally} to Pythian Castle

LAW
DEPARTMENT MEMORANDUM
PRIVILEGED AND CONFIDENTIAL
Redacted for public release pursuant to Section 610.024.2 RSMo
.
TO: Mayor Tom Carlson, Members of City Council and City Manager
FROM: Thomas E. Rykowski, Assistant City Attorney
SUBJECT: Pythian Castle – Issues raised by Tamara Finocchiaro at December 17,
2007 City Council Meeting
DATE: January 7, 2008
This report is in response to issues raised at the December 17, 2007, City Council
meeting regarding Pythian Castle. While this matter may appear to be a recent
controversy, these issues began in 2004. While Ms. Finocchiaro implies that her
problems only began with the City Law Department in 2007, she has been dealing with
City staff in various departments for over three years. This memo will outline the
timeline in which the Pythian Castle owner has had to complete all necessary items to
operate the castle in accordance with all applicable City ordinances. If anyone wishes
to receive a more detailed review of this matter, I will be happy to meet with you.
Under City code, all businesses are required to have a license except those exempted
by state statute. Since 2004, or earlier, the Castle has operated without a business
license or valid Certificate of Occupancy. Springfield requires businesses to be licensed
to (a) keep a record of businesses operating in the City; (b) provide a mechanism for the
City to track sales taxes once a Tax ID number is provided by the State; (c) insure that
buildings being used for business operations are safe for the public; and (d) verify that
the uses of the building are permissible within the City’s zoning ordinances.
Additionally, if the business is an eating establishment, the licensing process triggers
health inspections.
Normally, someone applying for a business license must establish that his or her
proposed business is permitted by the applicable zoning classification for that particular
area. In addition, any structure open to the public must meet certain building code
requirements. Springfield, like many other communities, has adopted and follows the
International Building and Fire Codes. These standards vary for residential versus
commercial uses and safety requirements are even greater for an establishment
providing overnight accommodations. One of the initial uses explained to the City by
1
Ms. Finocchiaro was to use the facility as a bed and breakfast, boutique hotel, or themeevent
sleeping quarters.
From 2004 to 2007 staff from Planning, BDS, Finance and Fire Departments have had
intermittent contact with Ms. Finocchiaro. Staff has repeatedly advised Ms. Finocchiaro
that she needs to comply with City Code on various items and that she needs to obtain
a business license and Certificate of Occupancy. On occasion, these meetings would
involve Laura Derrick, an architect hired by Ms. Finocchiaro. Staff has also received
anonymous complaints regarding the operation of the Castle without a valid business
license.
In late August or early September of 2007, the law department was approached with an
issue regarding Pythian Castle. Ms. Finocchiaro may have been operating her business
since late 2003 or early 2004 without either a business license or final Certificate of
Occupancy. While City staff was aware of this, enforcement was stayed since Ms.
Finocchiaro appeared to be trying to work through various building issues. However, it
had become apparent to the Building Development Services and Planning Departments
that Ms. Finocchiaro either did not have the means or the desire to fulfill Code
requirements by completing her development plans and making the required building
changes. The requirements placed upon Ms. Finocchiaro were essentially the same
throughout the entire process.
Based upon the apparent unwillingness or inability of Ms. Finocchiaro to complete the
development plans, BDS and Fire requested the Law Department take steps to require
the owner of the Castle to cease operating until the necessary permits and licenses
were obtained. Prior to taking steps to close the business, the City, through various
departments, continued to work with Ms. Finocchiaro to encourage her to comply with
the development process. Ms. Finocchiaro continued to ignore repeated requests to
cease business operations and had been booking parties greater than 60 people and
allowing the public access to all floors in the building. In fact, when inspectors went to
the building on November 16, 2007 to terminate the illegal uses, inspectors discovered
an occupancy sign allowing 300 customers.
Even though immediate closure was warranted due to Ms. Finocchiaro’s willful
violations for over three years, staff continued to assist Ms. Finiocchiaro by trying to find
a way she could continue to operate in order to avoid placing her in breach of future
contracts. It is important to keep in mind that these bookings should never have been
made since the Castle was not licensed at any time. In an effort to show good faith,
staff obtained permission from the City Manager to meet with Ms. Finocchiaro and her
architect to establish a timeline for finalization of her development plans and completion
of the required building modifications while allowing her to continue to operate under her
original proposal.
At that meeting, the City laid out the evidence of improper uses for Ms. Finocchiaro and
her attorney. Once again, Ms. Finocchiaro, her architect and her attorney all expressed
a desire to continue to operate. Following the October 17 meeting, an Interim Use
Agreement was proposed by the Law Department. Ms. Finocchiaro provided a copy of
2
that Interim Use Agreement to each of you, she omitted page 2 of the document and a
copy of that page is attached as Exhibit 1. The proposal was not negotiable, but
nothing in the Interim Use Agreement was more than had been required by the City
since November 2004.
In the normal process, building permits are not issued until plans have been completely
approved. To allow her to continue to operate under the Interim Use Agreement, one
requirement was the immediate inspection by BDS and the Fire Department. This
inspection resulted in a punch list being provided to Ms. Finocchiaro of items that
needed to be rectified in the final plan, but was designed more to provide a list of
temporary “fixes” that would allow her to continue to operate while more permanent
modifications were being completed. This punch list was essentially the same list that
had been given to her originally in 2004. See Exhibit 2. To the extent building permits
would have been required to make any of the temporary immediate repairs needed for
continued operation under the agreement, those permits would have been issued. Ms,
Finocchiaro ultimately rejected this proposal, and therefore none of the terms of the
agreement were in effect, including the provision allowing her to obtain “special” building
permits without fully complying with standard procedures.
There were two or three events planned during the period that the City was allowing Ms.
Finocchiaro to review the proposed Interim Use Agreement. Since adequate fire safety
measures were not in place in the building, the City offered to allow her to proceed with
these events under the condition that a Fire Marshall was present. This proposal was
not unique to Ms. Finicchiaro. The City had previously utilized this same arrangement
with the Gillioz Theatre. The cost for utilizing a Fire Marshal was set as the cost of
salary and benefits for the Marshal position in the City Salary Schedule. This is the
same process used in calculating the cost of staff time to reply to Sunshine Law
requests.
Thereafter, Ms. Finocchiaro’s attorney advised Mr. Rykowski that his client had decided
that rather than attempting to comply with the Interim Use Agreement she would shut
down her business to devote her attention to completing her development plan and
restoring the Castle. In that discussion it was mentioned that, although she was
rejecting the Interim Use Agreement, there were a few upcoming events that she would
like to host and that she would do so with the presence of a Fire Marshal. Since Ms.
Finocchiaro did not agree to enter into the Interim Use Agreement, this option was not
available to her. A confirmation email was sent to Ms. Finocchiaro’s attorney, a copy is
attached as Exhibit 3.
From advertisements on radio, the “Sci-Fi” cable network and the Castle’s website, the
city learned that Ms. Finocchiaro was continuing to operate a business at the Castle.
On November 16, 2007, inspectors from the Building Development Service Department
and the Fire Marshal’s office went to the premises and discovered individuals being
allowed to roam freely on all floors of the building. The Castle was once more held
open to the public without a proper business license or Certificate of Occupancy and
contrary to the representations made by Ms. Finocchiaro’s attorney.
3
4
During the November 16, 2007 inspection, cars were parked on either side of the
driveway approaching the Castle. To the east side of this driveway, the vehicles are
parking on land that is apparently owned by Evangel University. One of the
requirements for final approval of Ms. Finocchiaro’s development plan was establishing
a parking area sufficient to accommodate the number of patrons she intended to bring
into the facility. Photographs taken during this inspection are attached: Exhibit 4 –
cars parking on both sides of the driveway; Exhibit 5 – dangerous building placards
posted on the building; Exhibit 6 – 300 maximum occupancy sign; Exhibit 7 – guests
descending from the second story; Exhibit 8 – basement door open to occupancy.
Due to the violations noted above, the building was posted as a dangerous building for
failure to comply with the Springfield Building Code. The building was closed for use by
the public as it does not possess a valid Certificate of Occupancy, is not in compliance
with building and fire regulations to allow public use, and was illegally operating without
a business license.
Staff has made every effort to assist Ms. Finnochiaro in obtaining proper permits and
licensing for her business. She has refused to comply and is very belligerent when
advised of her continuing violations. In addition to building code issues, we have
received telephone calls from caterers requesting temporary liquor licenses for events
at Pythian Castle. Since there is no valid Certificate of Occupancy or business license
for the address, caterers have been advised that no temporary liquor licenses could be
issued. This has been ongoing since 2004 and Ms. Finocchiaro has not obtained
easements from Evangel University or the U.S. Military for access or parking, yet she
continues to operate illegally.
____________________________
Thomas E. Rykowski
Assistant City Attorney
Complete Timeline
The following represents a timeline of the city involvement regarding Pythian Castle.
• August 18, 2004 – application received for commercial development.
Reported anticipated uses exceed current zoning. Applicant provided GI
regulations, and advised to contact Planning and Zoning to begin process.
• October/November 2004 – preliminary assessment of the items that might be
needed to bring building into compliance provided to owner. See Exhibit 2.
(Note: all major issues identified in this document continue to be unresolved
today.)
(It appears as though applicant was already operating the business without obtaining a
business license, Certificate of Occupancy, necessary zoning changes, or submitting and
obtaining approval of plans.).
• Fall 2004 – Licensing Department contacted with questions regarding obtaining a
liquor license. No information reported to suggest business already operating.
Record reflects applicant was unhappy with information provided as to the
procedures necessary to obtain business and liquor license. Blank application for
business license sent to Tamara Finocchiaro.
• November 22, 2004 – to assist applicant, city provided documents from a similar
PD to guide her in preparing her development request.
• January 10, 2005 – letter to Pythian Castle owner advising that her application to
the Planning and Zoning Commission was tabled at her request while she waits
for sealed drawings to attach to her application.
• January 14, 2005 – Licensing Department receives anonymous call inquiring if
Pythian Castle is legitimate business and has all necessary licenses. Check by
Licensing Department and BDS show no registered business at that address.
Anonymous individual leaves advertising flyers for Pythian Castle at licensing
desk.
• January 20, 2005 – PD 277 approved by Planning and Zoning Commission 5-0.
• February 10, 2005 – Licensing Department sends letter to Pythian Castle advising
of the illegality of operating without a business license. Pythian Castle is given
10 days to file appropriate paperwork and pay license fee or request a hearing.
• February 10, 2005 – Pythian Castle mentioned in Springfield News-Leader article
regarding Valentine’s Day activities.
Pythian Castle Timeline
January 7, 2008
1
• February 2005 – License application dated October 25, 2004 received in return
envelope provided by Licensing Department following earlier inquiry.
• February 22, 2005 – City Council approves PD 277. Applicant advised to submit
final development plans for review, comment and approval before building
permits and licensing can be obtained.
• March 2005 – facility toured by development review team. Letter sent advising
of requirements for plan submittal.
• October 2005 – complaint received by BDS that business is operating without
license or Certificate of Occupancy. BDS calls designer and receives no
response.
• November 2005 – BDS sends letter to owner outlining steps to comply, orders
public occupancy to cease and business operations to terminate until property is in
compliance with city ordinances. Plans for phase 1 are still not approved, and
only suggest occupancy limit of 60 and all uses confined to first-floor. Complaint
and investigation reveal occupancies greater than 60 and uses on other floors
being allowed by owner.
• December 2005 – letter to owner outlining required corrections.
• January 2006 – code administrator sends additional letter advising owner to cease
operations until in compliance. Code administrator met with owner and designer
to discuss. Owner advised to discontinue business activities until properly
licensed.
• January 2006 – Fire Department comments that site does not have adequate fire
apparatus access. Structure needs to have sprinkler system for public use.
Existing private hydrant may not be operational and is unlikely to be sufficient to
fight fire. Hydrant must be tested for proper pressure and sit may need new
hydrants installed. Parking issues still not addressed from initial submission,
storm water issues still pending, Landmark Board approval still pending, no
lighting plan or signage plan submitted.
• February 2006 – ARC meeting held with designer and owner. Unresolved issues
discussed. Designer promises plans to be resubmitted within two weeks.
• February 24, 2006 – Fire Department notes road must be paved, fire truck turn
around must be improved, sprinkler system may be required depending upon uses
of the building.
(No further contact with city by owner or designer until March 2007. During that time,
Licensing Department was contacted regarding temporary liquor licenses for catering
services and a permanent liquor license for facility. No action was taken at this time as
Pythian Castle Timeline
January 7, 2008
2
licensing believed owner was working with appropriate city departments to obtain
necessary permits.)
• March 2007 – BDS investigator contacts owner twice to establish time frame for
plan submittal and repeats order to cease business uses.
• Plans for phase 1 resubmitted, they are incomplete and are not approved. Plan
review letter sent.
• August 2007 – Law Department sends letter to property owner outlining steps to
comply, orders public occupancy to cease until in compliance.
• Phase 1 plans resubmitted but not approved.
• City Departments meet to discuss the continued illegal operation of this business
and consider options for obtaining cooperation from the owner in moving forward
with the development plans.
• October 2007 – Law department contacts owner advising legal action will be
taken to stop illegal operation. Meeting offered to determine if agreement could
be reached to allow limited uses and a timeframe with definite deadlines to
complete development of phase 1.
• October 17, 2007 – property owner, designer and owner's attorney meet with city
attorneys to discuss project status. Further advised that her activities must cease,
and she must comply with regulations as required of every other business. It was
determined that specific deadlines for compliance should be implemented to assist
the owner in completing her development plans, obtaining permits and finalizing
building modifications. This agreement would also allow her to continue
operating her business while the development process continued, provided such
operations were limited to a maximum of 60 persons on the first floor of the
structure.
• October 26, 2007 – Interim Use Agreement provided to owner and her attorney.
Deadline to accept is set forth. See Exhibit 9.
• November 3, 2007 – attorney for owner advises city attorneys that owner will shut
down to devote full efforts and time to completion of the development project.
• Fire Marshal, and BDS inspectors requested to monitor site.
• November 16, 2007 – inspection by the Fire Marshal, and BDS investigator
reveals castle is still operating with the public being given access to all floors and
the owner has posted a sign indicating an occupancy maximum of 300. Building
posted as a dangerous building and closed.
Pythian Castle Timeline
January 7, 2008
3
Pythian Castle Timeline
January 7, 2008
4
[Paragraph redacted pursuant to Section 610.024.2 RSMo]
Regarding specific issues raised by Tamara Finocchiaro and her supporters
1) “They are good neighbors and friends to many in Springfield. . .”
City response: Ms. Finocchiaro’s character and “neighborliness” is not at issue, she is required
to comply with City ordinances just like all other citizens.
2) “Tamara is doing a brilliant job of restoring the castle to its original grandeur. She
invested a great deal of work in the castle the first year, then applied for a business license three
and a half years ago. Her business plan included exact uses the castle was originally built to
accommodate, yet she has been delayed by Planning and Zoning, red tape, and senseless
requirements for years.”
City response: The amount of time and or money Ms. Finocchiaro has invested in the property is
unknown to the City as no building permits were ever applied for to show what, if any, work was
done to restore the building. Regarding the statement relating to “red tape and senseless
requirements,” the City has only asked Ms. Finocchiaro to comply with fire and building codes
just like every other business in the City. The primary requests involve basic safety equipment
such as sprinklers, fire hydrants, fire apparatus access, appropriate egress exits and emergency
exit lighting. Any improvements made by Ms. Finocchiaro were not inspected as they were
completed without proper building permits. Ms. Finocchiaro has indicated that her intended uses
of the property may include offices, meeting/banquet rooms, art galleries, theater, an indoor
sports facility, a boarding house, a restaurant, retail uses, schools/studios, a bed and breakfast
inn, and residential uses.
3) “Improper administration and denial of permits, unfairly closing the Castle in the face of
events, and plastering dangerous building on the face of a fireproof castle.”
City’s response: At no time was the applicant advised she would be allowed to take out permits
until her final plans were approved. Interim building permits were offered as part of an Interim
Use Agreement which she declined.
The building is dangerous in as much as it meets the code definition of a dangerous building by
its lack of sufficient life safety and other necessary building requirements. The castle was closed
due to continued illegal operation of the business without obtaining a proper business licensing
or passing an inspection.
4) “Little technical details should be overcome.”
City response: Technical details such as requiring adequate ingress and egress, proper
emergency lighting, and fire safety equipment are hardly “little technical details.” All of the
code compliance requirements could have been completed in a matter of months if Ms.
Finocchiaro had continued to move forward with her project. Ms. Finocchiaro is not being asked
to follow any additional or special procedures that are not required of any other citizen.
5) “The City blocked everything and would not leave their desk to inspect the castle.”
City response: The building has been inspected by the City of Springfield on more than one
occasion and Ms. Finocchiaro has been provided with numerous memos and letters regarding the
steps needed to proceed with development of the property. The first memo came from Bob
Hosmer in November 2004. Additional correspondence outlined the findings of the development
review site inspection in March 2005, ARC responses and findings, and the findings of the
inspection done in late 2007 in connection with the proposed interim use agreement.
6) “Tamara Finocchiaro was forced to sign a contract.”
City’s response: Ms. Finocchiaro has never been “forced” to sign anything. An interim use
agreement was proposed and she voluntarily refused to enter into that agreement. The City has
attempted to accommodate Ms. Finocchiaro and has patiently waited for the final development
plan. After nearly two and half years, it became apparent that absent extreme measures on the
part of the City, Ms. Finocchiaro would continue to illegally operate this business and ignore
City regulations which are applicable to every business within the City.