Here’s one the lawyers will have to work out. The existing Gateway Code states, in very clear language:

4. The review authority may approve a Gateway Use Permit only after finding all of the following:

d. Granting the permit will not be detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zoning district in which the property is located.

So, to the lawyers among us:  Who or what entity determines if a new building is or is not detrimental to the public health and safety? Or would (or could) be materially injurious to persons or property?

Would it be the Community Development Director? The Planning Commission? Or would it be the acknowledge professional experts in the fields of health, safety, and personal and property material injury:  The Arcata Fire Protection District Board of Directors and the AFD Fire Chief.

The Arcata Fire Protection District has stated exremely clearly, in writing, on multiple occasions that they cannot provide adequate fire and emergency protection for a building that is taller than three stories.

If, against the stated view of the AFD, that building is approved and should there be a problem, at any time in the future — Who would be liable?  In such a case, the City of Arcata would have issued a permit for a building, in opposition to its own established Building Code.

My vote is that the Arcata Fire Protection District is the ultimate decision-maker on this. But the City’s attorney may have a different view. 

Regardless of what one attorney and his firm may say, it sure seems that this wording leaves the City open to all kinds of lawsuit opportunities.  We here in Arcata hope there will never be an injury to any person that might result in a lawsuit. But if the City issued a permit while knowing that the Fire District considered the building design to be unsafe — what might happen?

Any personal injury lawers out there?
Please weigh in.

AI says:

• • A “dangerous condition” existed: The hazard must pose a substantial, not trivial, risk of injury to people using the property with reasonable care.
  • The city had notice of the condition: The city must have known about the unsafe condition, either through:
    • Actual notice: A city employee or official was directly informed about the hazard (for example, receiving a resident complaint).
    • Constructive notice: The hazard existed long enough that the city should have discovered it through a regular, reasonable inspection process.

• The city had time to act: There was a sufficient amount of time for the city to have taken measures to protect against the danger before the injury occurred.

• The city’s negligence caused the injury: The city’s failure to address the hazard must have been the direct cause of the injury. 

The Arcata Municipal Code Chapter 9.110 — The Gateway Area Code

9.110.020 – Permits and Approvals
Pages 4 – 12
“4. The review authority may approve a Gateway Use Permit only after finding all of the following:” is on Page 9.