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This is the predicate that caused Respondents to spend $6,141.25 on a <br />stamped Hogan Land Services engineering report. The Hogan Report <br />met the test O’Connell laid out. Engineering then rejected the report. <br />JJ-2. The City Engineer accepted the Article 33 nonconforming- <br />structure argument (Lines 240-249): <br />Burns: “That [code section] was written in 1995, and this wall was <br />put up in the 70s, so it’s a pre-existing non-conforming structure, <br />perhaps, along with every other fence or structure built along that <br />creek.” <br />O’Connell: “We can call that wall a pre-existing non-conforming <br />structure. And I think that’s a decent argument to make, again, if <br />you can have a structural engineer certify it… yeah, I can consider <br />that.” <br />The senior Engineering official agreed on the record that the pre-existing <br />nonconforming-structure argument applies. This is the same Article 33 <br />argument set out in Section 3 of this brief — except here it is conceded by <br />the City Engineer, not contested. <br />JJ-3. The City Engineer acknowledged the safety paradox of a 3-foot <br />wall (Lines 122-132): <br />Burns: “If you put a three foot fence there, the kids are going to sit <br />on it and fall down into the creek and kill themselves. They’re going <br />to fall 10 feet to their death. So, and who’s liable? It’s my property <br />they’re on because, so I’m liable and I want it to be safe.” <br />6.A. - Page 41 of 64 <br />43