HomeMy WebLinkAboutMinutes 122184 - Special Mtng J C� "1C I L MEETING : 1/14/85
A ,. ,IDA ITEM NO A 2
SPECIAL MEETING OF THE ATASCADERO CITY COUNCIL
Friday, December 21, 1984
Atascadero Administration Building
Page 1
PURPOSE:
Public Hearing to consider an appeal by Mr. Don Vaughn of the Planning
Director' s revocation of a grading permit at 4511-19 Mananita.
PRESENT:
Councilmen Molina and Handshy, Councilwoman Mackey and Mayor Nelson
ABSENT:
Councilwoman Norris
The meeting was called to order by Mayor Nelson at 3 :47 p.m.
Acting City Manager, Ralph Dowell, said the purpose of the meeting was to
consider the appeal of Mr. Don Vaughn of the Planning Director' s revocation
of a grading permit at 4511-19 Mananita. This meeting has been properly noticed
and copies of the agenda packet have been provided to all interested parties.
Henry Engen, Planning Director presented the staff report and exhibits pertain-
ing to this subject. Mr. Engen stated that he had revoked the permit on the
property at 4511-19 Mananita on October 12, 1984. Subsequently on December
10, 1984, Stephen Sefton, attorney for Don Vaughn, submitted an appeal of this
revocation which is included as part of the agenda packet.
Mr. Engen summarized the following chronology of events:
August 1,1983 - application for grading permit was submitted.
October 31, 1983 - approved permit was available for pick-up.
November 11, 1983 - Permit No. 1814 was issued to Donald K. Vaughn. It permit-
ted 2, 300 cubic yards of fill to be put on this property. It called for the
relocation of a 42-inch pipe on the adjoining property. The pipe exited onto
some rock material and back into the channel down the rear of the lot line of
the property facing Estrada.
On August 27, 1984 at the Council Meeting there was a discussion of drainage
problems in that area thar had come to the Council ' s attention.
On August 28, 1984 , Mr. Engen sent a memorandum to Larry McPherson, Public
Works Director, advising of Mr. Vaughn' s indication that he would be willing
to work with respect to offsite drainage problems related to the project.
On September 10, 1984 Council Meeting - Thomas Baumberger and neighbors
appeared under public testimony time and complained of the project and their
concerns about damage to rheir property. Mayor Nelson called a meeting on
September 13, 1984 of the interested parties to try to resolve the issue.'
On September 13, 1984 there was a meeting and City staff pointed out that
this was a private project and the matter was to be resolved by the developer
to make sure that his drainage improvements did not hurt anyone else and the
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SPECIAL MEETING
' Friday, December 21, 190 0
Page 2
end result was that the neighbors conceptually agreed to share the cost among
the owners to extend the 42-inch line offsite toward San Jacinto Street.
On September 17, 1984 the Planning Commission held a meeting at which time
they heard the concerns of the neighbors and the commission shared those con-
cerns and subsequently adopted a resolution urging the Council to also agree
to make changes on the project.
On October 8, 1984 there was a status report to the City Council which went
through the history of the project and noted that the improvements were the
responsibility of the developer and a civil matter and indicated that it looked
like the matter had been put to rest, that everyone was in agreement as to the
solution of the matter. However, we wound up with a situation where Mr. Vaughn
and Mr. Kennaly expressed other concerns and need for additional information
and participation by the City to develop a solution to the problem. Subsequent-
ly, Larry McPherson, past Public 'Works Director, in a memorandum to the Acting
City Manager reported- on .Kennalt7's needing help with respect to the site; in-
dicating that he- would not support any City participation- in any resolution of
the problems of the developer.
On October 12, Mr. Engen revoked the grading permit that had been issued last
year, based on there not having been a resolution of the problem as we had
anticipated earlier at the October 8th meeting. H'e also asked the appellant
in this case to correct the problems on the site either by restoring the
natural topography or coming up with an acceptable drainage solution.
On October 17, 1984, John Wallace, Consulting City Engineer, who replaced
Larry McPherson, provided a plan review check list for plans submitted by John
Kennaly, the appellant's engineer, on the day before. Correspondence to Mr.
Kennaly noted the corrections that would be needed to the grading plan to make
it acceptable.
By October 22nd the city approved re-issuance of grading permit #1814-R which
was available for pick up and acceptance by the applicant. One of the con-
ditions was that there would be an off-site agreement made for putting that
pipe line down off the property towards San Jacinto. Mr. Vaughn advised the
in-take clerk that he did not :plan to obtain the permit. Subsequently
on October 29, 1984 a letter from Mr. Stephen Sefton to Allen Grimes, City
Attorney, sought to revoke the revocation that occurred on October 12, 1984 .
Mr. Engen responded with a letter on November 2, 1984 outlining the authority
under Title 8 of the Uniform Building Code, the building and construction
regulations of the City, which says in part "The issuance of a permit based
upon plans, specifications and other data, shall not prevent the building offi-
cial from thereafter requiring the correction of errors in said plans, specifi-
cations and other data, or from preventing building operations being carried
on thereunder" . Further, "The building official may, in writing, suspend or
revoke a permit issued under the provisions of this code and technical codes
whenever the permit is issued in error or on the basis of incorrect information
It was our understanding that everyone agreed that the original permit that
was granted would not work to insure that there would not be damage to Scott
and Susan Vasgird' s property and perhaps other property.
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+ SPECIAL MEETING
Friday, De.cemhex 21, 198f
Page 3
On November 7th we began getting a series of telephone calls on damage con-
cerns because of the rains. Mr. David Kenney, an upstream property owner,
where the existing 42-inch pipe had to be relocated, said his property had
holes in it and he was worried about children playing there which had been
a problem to him. Mr. Engen communicated this to Mr. Kennaly. Mr. Engen
also had subsequent calls also from Susan Vasgird and Bernice Rockwell, who
lives on the corner, expressing concerns regarding sedimentation and the
water surge that was hitting thier property and causing damages.
On November 15, 1984, John Wallace communicated to John Kennaly indicating
the problems he saw with an on-site proposal that had been offered which Mr.
Wallace will review shortly. This would have taken the 42-inch pipe, essential-
ly and turned it straight up just short of the Vasgird' s property to cut down
the velocity of the water going off the property. We didn't get any further
with Mr. Vaughn, who was upset with the letter from Mr. Wallace. The Council
received letters from the Vasgirds and others indicating that they would no-E.
contribute the amount of money that was now being suggested, $1,200 instead
of $600 towards the cost of the improvement. Mr. Engen sent a memorandum on
November 30th to Don Leib, Public Works Department, indicating the public
drain across San Jacinto and Estrada had been plugged from sedimentation
from this area.
On December 3rd staff learned that Mr. Vaughn had cleaned up the Kenney proper-
ty the prior Friday.
On December 3 a letter was sent to Mr. Vaughn asking what his intentions were
in respect to the property and on December 10th we received a hand-delivered
copy of Mr. Sefton' s appeal which is in the packet. This brings us to today,
December 21st. Mr. Engen then turned it over to Mr. Wallace to discuss the
engineering aspects.
Mr. John Wallace, Consulting City Engineer, stated the previous Director of
Public Works, Larry McPherson, confirmed in a conversation by telephone, that
he had been concerned about the project since it was initiated. He had made
comments to Mr. Kennaly to the effect that the drainage would have to be taken
care of in a manner different than what was shown on the original submittal
that had been issued in error.
Mr. Wallace stated that there has been a lot of talk about the standards in
the appeals and there are different standards that apply to different situa-
tions for drainage. These are contained in two different sets of ordinances
of the City but in this case the outstanding fact is this property had a con-
duit coming to it, of 42 inches in size, and in the Engineering Department' s
opinion was obligated to take that facility through their project without
constricting or down-sizing the facility. In relation to the size of the
conduit, it is our position that it was proper to take the size coming to
their property to the opposite side. Mr. Wallace stated that he has reviewed
the plans that have been submitted specifically since October 11th. At that
time he reviewed the plan that included a complete drainage system from the
upstream end of the property and that would discharge to San Jacinto Ave.
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SPECIAL MEETING
Friday, December 21, 1984
Page 4
Mr. Wallace said this as he undertands was suggested by the applicant' s
engineer. There were various plan checks performed so that on October 22
or 23rd as mentioned by Mr. Engen, we had made a number of plan checks so
that the system as shown was acceptable by the Engineering bepartment. After
that time on November 9th, Mr.. Kennaly made a different submittal to our
office (exhibit J in the staff_ report) . It is a sketch rather than a plan.
That sketch shows the termination of the pipe at the property line and in a
90-degree elbow and discharging the water flowing through a concrete wall
with a V-notch directly toward the end of the property. We rejected that
sketch for several reasons. It did not consider any erosion control off-site
as a result of discharging in that manner, it did not consider any detention
of storm water run-off as elaborated upon by the applicant's engineer in
his calculations and finally in our opinion it did not discharge the water
safely because the V-notch was still aligned towards the back and rear of
the Vasgird' s property. His letter to the applicant' s engineer rejected
that plan and as we said gave them three alternatives: Restore the pipe,
go back to the original solution or restore the property to its original
condition.
Mr. Wallace continued by saying that since that time grading that exists on
the site has been eroded causing siltation and a surcharging Ton neighbor' s
fences. Specifically it has caused an erosion of the fence line to the rear
as shown in the sketch. It has caused siltation off-site down the natural
water course to San Jacinto flowing down San Jacinto, across the street and
plugging .a City culvert at that location. Mr. Wallace submitted several
pictures taken on December 10th that demonstrate those conditions.
Mr. Wallacehad prepared a sketch which shows an approximation of the original
ground line across the rear of Mr. Vaughn' s property of the block wall in
question with an arrangement -of the house near by. The original water course
was low in nature and flowed fairly broadly across the property. When the
fill was place it forced the water to a higher level which in turn eroded
the ground adjacent to the block wall. However, in Mr. Sefton' s letter of
December 17th, which Mr. Wallacereceived approximately at noon on Thursday,
was an attachment which was a plan for another drainage scheme. Mr. Sefton
said in his letter on page 5 inthelast paragraph, "in an attempt to resolve
this matter, attached to this letter is a revised plan prepared by the appli-
cant' s engineer which is concurrently being delivered to the Planning Director.
This compromise plan shows the drainage system as previously proposed for a
42-inch pipe to a point for future connections if desired, or constructed
by other people. What is not shown here is an arrow indicating that the pipe
line from this point of termination over to San Jacinto Avenue would be phase
two of this construction. This "compromise plan" is phase one as you can see.
The structure itself is shown in two views. It is approximately a 52 foot
deep concrete box that has a V-notch at its end. The pipe is turned at 90
degrees so that it bubbles up_inside the box and flows through the notch
against the solid concrete wall which turns it again 90 degrees which would
in turn flow it down towards San Jacinto Ave.
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SPECIAL MEETING
Friday, December 21, 1984
Page 5
Mr. Wallace stated that after reviewing that compromise solution suggested by
the applicant' s engineer, we feel that it is marginal but can be made acceptable
providing that certain actions are taken. We would recommend at this time
that those be noted: 1. That there be minor engineering revisions made to
this solution which would include such items as concrete footings for the walls
for stability, chain-link fencing because it is more than two feet deep and
would provide protection from children in the neighborhood and that the plan
be properly incorporated into the grading plans so that all elevations can be
readily seen from the one plan, and you don't have to refer to two separate plan
in one place; 2. That some reasonable approach and work be done for down-stream
erosion control crossing the Vasgird' s property down toward San Jacinto;
3. Because this is a substantial structure that is open to the environment that
will need maintenance from time to time, that some notation be made so that
the buyer of lot 50 who Vill own the structure be notified through either a
recorded document or deed restrictions that it will be his responsibility to
provide maintenance on that structure in the future.
At this point Mr. Wallace turned it back to the Planning Director, Henry Engen.
Mr. Engen stated that the recommendation of staff is the resolution No. 63-84
which is included in the agenda packet which essentially rejects the appeal
based on a variety of findings and, secondly, declares the council' s intention
to have a public hearing on January 14, 1985 of the Council to proceed under
section 7004 of the Uniform Building Code which speaks to hazardous conditions
on the property and the creation of a nuisance and the hearing to thereby
direct the owner of the property to repair and conform to the direction that
may be given at that time.
Alternatives that the Council would have are several. One would be to approve
the appeal; second would be to deny the appeal per the resolution in the agenda
packet or third would be to deny the appeal, deny the declaration of 'intention
and proceed with the approval of the latest plan with conditions if the
appellants are inclined to accept that plan. A fourth, if there is a need
.for more information after this hearing, would be to continue the hearing.
City Attorney, Allen Grimes, asked that the official packet that the City
distributed to the Council be made a part of the public hearing.
Mr. Stephen Sefton, attorney for appellant Don Vaughn, stated an objection to
the introduction of the photographs that the Council had been shown.
Mr. Sefton said that Mr. Vaughn has taken some protective measures to prevent
any further damage in that regard but also the present state of the condition
of the property is not an issue at this particular hearing. The issue in his
mind is strictly that of whether this permit should be revoked or not. Through
conversations with staff, Mr. Sefton deferred to Mr. Kennaly to state whether
he feels that the proposed changes at this point would be acceptable to the
appellant.
Mr. Kennaly said that they have provided for a three inch wall, three inches
above the existing grade all along the property line where the water currently
leaves the property so as to insure that they recreate the exact condition
and that they don' t have a riverlet formed and then a new channel form and
the water would sometime in the future be able to leave the property in a
different manner than it is leaving the property right now. Mr. Kennaly said
he had no problems with the corrections.
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SPECIAL MEETING
, Friday, December 21, 19£
Page 6 -
Mr. Sefton said that Mr. Vaughn had indicated his willingness to proceed with
his proposed plan and based upon Mr. Kennaly's recommendations something could
probably be worked out with the City, however, their main concern is that
there may be difficulty in the offsite improvements and obtaining the consent
of the various owners. Just as a matter of history, he believed that this is
where the problem came about in the first place, because there was a conceptual
agreement reached, but as it was in the process of being implemented certain
other conditions were taken into consideration, the cost factors were increased
and therefore a dispute arose. And that is why that agreement was never fully
consuma.ted. At this time he recommended to the Council that they would be
agreeable to negotiate with the owners in developing the plan provided that
they also on the record indicate their willingness to do so and they request
that the Council continue his hearing to another date so that if those items
cannot be worked out, they still reserve their right to appeal the revocation
because they do feel there is firm legal ground why the revocation can not
stand as it is. In all good faith they would like to resolve this problem.
He asked for Council consideration at this time.
Allen Grimes, City Attorney, said he had no problem with that.
Mr. Engen, City Planning Director, asked whether the most recent plan submitted
by Mr. Kennaly is an on-site solution to the projector are we going backto
the off-site solution. He asked which was their preference.
Mr. Sefton, ,attorney for the .appellant, stated this is predicated upon matter
that is not contained in the record and did not necessarily want to restate
it for the record. But based on conversations prior to the hearing that he
thought that the staff had indicated there may be some additional concerns
that would affect the, off-site.
John Wallace-, Consulting City Engineer, stated that he indicated it is his
feeling that in his conversations with Mr. Kennaly that it would be prudent
to provide for some down-stream erosion control leading from the termination
of this structure to San Jacinto Ave. That was point number two in his summa-
tion. He is not sure whether the engineer, Mr. Vaughn and the attorney are
willing to provide that from their statements.
Mr. Sefton asked for more specifics as to what type of erosion control might
be required.
Mr. Wallace said he preferred to have the applicant' s engineer address that
since that is an engineering matter.
Mr. Sefton asked .for a minute to confer with Mr. Vaughn and Mr. Kennaly.
Mr. Sefton said at this time the appellant had decided to go ahead and proceed
with the formal appeal for consideration. After the evidence has been intro-
duced he will ask that the matter be continued for further negotiations with
the staff.
Mr. Sefton said that one of the facts that he discovered is relative to the
timing as far as the permits, but he didn' t think it changed the substance
of the presentation that he was going to make.
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SPECIAL MEETING
Friday, December 21, 1984
Page 7
Mr. Sefton, Attorney for Mr. Don Vaughn stated, "Firstly, it is our contention
that the enforcement officer, in this case the Planning Director, exceeded his
authority in revoking Mr. Vaughn'.s permit without adequate due process safeguards
As a matter for the record, Mr. Vaughn has expended in excess of twenty-five
thousand dollars for the improvement of his property based upon his justifiable
reliance on the grading permit in question. As such, he has _accrued a vested
right which cannot be unilaterally or capriciously taken away without adequate
due process protections.
Also in regard to Mr. Vaughn's due process rights, I have been told that on at
least one occasion a meeting took place between certain Planning Commissioners
and Council members to discuss the revocation of Mr. Vaughn's permit. Also,
it' s my understanding that there is a memo contained in Mr. Vaughn' s permit
file from the consulting engineer which indicates that a questionable attempt
was to be made to resolve the drainage problem thereby solidifying the revoca-
tion proceedings. Even though neither Mr. Vaughn nor myself question.the veracity Or
the good faith intent of the Council, the Commission or the staff, such action
could demonstrate bias toward him; however, of most importance is the fact
that the information given by Mr. Vaughn which predicated these actions was
done so without any notice that it could lead to the revocation of his permit.
There are however moresubstantial grounds showing that due process has not
been met in this case. As pointed out in my Notice of Appeal, the vested rights
conferred by your code is contained in Title 9, yet the Planning Director has
attempted to circumvent the procedures by ascertaining that Mr. Vaughn' s permit
was issued pursuant to Title 8 . For your review, I put forth the following
facts:
1. Title 8, Section 8--2. 101 of your c.ode adopts various chapters of the Uniform
Building Code, specifically as it pertains to this case, Chapter 70,
"Excavation and Grading" .
2. Chapter 70, Section 7003 of the Uniform Building Code which pertains to per-
mits required, states in pertinent part, "No person shall do any grading _
without first having obtained a grading permit from the building official" ,
and
3. Title 9, Section 9-104 of the Atascadero Code states, "A grading permit
shall be obtained where required by Title 8 of this Code. "
Therefore, it is impossible to find that Mr. Vaughn's permit was issued under
Title 8, when in fact the provisions of Title 9 set forth the criteria for
the issuance of the grading permit.
In further support of the proposition that due process has not been met in
this case, attention is directed to the Notice of October 12, 1984 , wherein
it vaguely states that the action taken by the Director is due to omissions
in the design of drainage facilities on Mr. Vaughn's property. We state the
proposition that any notice of the nature concerned here must set forth specific
information so the affected party can properly protect his interest.
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SPECIAL MEETING
Friday, December 21, 1984
Page 8
Mr. Sefton continued by saying, "based upon the above facts, the :appellant
contends that the Council can legally do only one thing, that is to send this
matter back to the Enforcement Officer. -with directions to comply with Title 9.
Further, seeing that the Director has not complied with the proper Code Sec-
tion, Mr. Vaughn' s permit cannot be, deemed revoked.
Realizing that the Council and other parties desire for this matter to be
resolved, we wish to introduce facts which will give guidance to the Planning
Director in determining that enforcement proceedings are unnecessary. It
must be noted that the following presentation is predicated upon an uncer-
tainty as to the specific facts for the revocation, other than as just dis-
closed here today.
Mr. Sefton said it is apparant that the detailed provisions for the issuance
of a grading permit are contained in Tithe 9 beginning at Section 9-4.143 .
Part of the requirements of these sections, as well as the standards of
Chapter 70 of the Uniform Building Code, are to provide a grading plan
sufficient for staff to properly evaluate compliance with the code; parti-
cularly the adverse affects on adjacent property owners. As indicated in
the Staff Report and the exhibits attached to it, the Director ascerts that
the grading plan:- and the data upon which Mr. Vaughn' s permit was issued
omitted to meet this criteria. However, for the initial review process,
the City has promulgated certain criteria upon which a determination can be
made that the project will not result in erosion, stream sedimentation or
other adverse offsite affects. For "example, the City has incorporated into
its design criteria a basis for the discharge of run off waters relative to
minor waterways by its historical practice . The criteria as it pertains to
Mr. Vaughn' s project is that the drainage way is to be designed upon a ten-
year plan. In reference to the approved plans this was done and accepted
by the City.
Mr. Sefton said next, as it pertains to the basis of the Director 's revocation
action, the plan must require a deposit of water to the nearest practical _
drainage way which is safe. This is promulgated by Section 7412 (d) of
Chapter 70 in the Uniform Building Code. By looking at the draft of the
predevelopment topography map upon which the Grading Permit was based, the
Council will see that the discharge of the water is in the same basic his-
toric location.
Also, said section of the Uniform Building Code requires that erosion, which
is undoubtedly due to an increase in concentration and velocity, be controlled
by the installation of down drains or other devices. In this case, the
approved plans call for approximately 12 tons of rock.
Mr. Sefton continued by saying the purpose of all this data is to show that
at the time Mr. Vaughn' s permit was issued, the existing criteria surrounding
the concerns raised by the Director had been met. To further support this
contention .reference is made to the following official City files which
contain grading permits that were issued within the general regional area of
the subject property: 4850 Estrada, 4898 Estrada, 4590 Mananita, 4532a Mananita,
4570 Mananita, 4658 Mananita and 4680 Mananita.
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SPECIAL MEETING
Friday, December 21, 198
Page 9
Mr. Sefton said, "Together with appellant' s property, these files deal with
basically all of the development in the area which affects the drainage course,
that is the root of the revocation proceedings again Mr. Vaughn. All but one
file contains a grading plan, and those that have grading plans are based
on a ten-year flood criteria except one, which was approved upon a two-yeas
criterea. In relation to the Director' s action, the revocation is predicated
on certain information which was disclosed to you by Mr. Kennaly at your
October 8, 1984 meeting. The difficulty with this basis is that the informa-
tion provided to you was predicated upon a hundred-year flood plain, a
standardwhich has not been imposed by the City for any developments surround-
ing Mr. Vaughn' s property. The use of such a criteria would discriminate
against Mr. Vaughn, particularly in light of the fact that the City has not
taken. action against other approvals in the area either before or after the
issuance of Mr. Vaughn' s permit. "
Mr. Sefton continued by saying, -"another-policy which can be established by
reference to the files, is that the City has established a policy requiring
incremental improvements; that is, each developed parcel has been required
to install drainage improvements controlling the channel within its bound-
aries, and no more. In looking at Mr. Vaughn' s plan, it was designed and
approved based upon the same criteria. In contradiction to the various state-
ments in the staff report purporting that Mr. Kennaly and/or Mr. Vaughn agreed
that the original plan would not work, Mr. Kennaly will present certain pic-
torials demonstrating that the ultimate affect after development of the prop-
erty will not endanger life or property of the downstream users. But first,
the Council must keep in mind that as pointed out in Mr. Wall_ace' s November
15th communication marked as Exhibit "K" to the staff report: (1) the regional
area has been designated by the City Engineer as being a historic flood problem
and (2) the City' s main purpose in issuing approvals is to not worsen the
situation on neighboring properties" .
Mr. John Kennaly said that the numbers can be generated in a. number of ways,
and numbers could be argued all day. Mr. Kennaly pointed out a cross section
taken at the bottom of Mr. Vaughn' s property. He said they put into that
cross section the amount of water that was leaving their site, the existing
flows that were leaving their site, as the site sat there when the survey was
done. They plotted the water surface elevation for both the 10-year and 100-
year, as depicted in the picture. They recalculated the flows based upon the
impacts that their project made on the downstream property owners. Those
figures are under the design flow.
Mr. Sefton, attorney for Mr. Vaughn, said "based upon the presented facts it
seems clear that the criteria upon which Mr. . Vaughn' s permit was issued has
been met, and as indicated in the Staff Report, once a permit is issued,
implementing proper drainage provisions is the responsibility of the developer
- not a requirement of the City - and, hence, a. civil matter.
Mr. Sefton said, "For this reason, it appears that the City has attempted to
refer to technical code violations, which questionably exist, to resolve a
regional. problem. For example, the proposed resolution attached to the Staff
Report requests a finding that the project did not comply with the ordinanc-e
requirements for completion. This is undoubtedly supported by the assertion
that no inspections have been called for in regard to this project. However,
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SPECIAL MEETING
Friday, December 21, 1.984
Page 10
reference is made to Section 9-4. 153 of the Code which states that an inspec-
tion agreement shall be entered when required by the City Engineer. We are
aware of no such agreement nor was one required. Further, the official plans
for this project indicate the soil ' s preparations and/or slight grading shall
be inspected by a soil 's engineer during grading operations. Therefore, there
appears to be no requirement that a City inspection be made. Further, Mr.
Vaughn has had a compaction report prepared for this project which he stands
ready, willing and able to submit, which has historically been acceptable to
the City in regard to inspections.
Mr. Sefton said, "as to the expiration of the Permit, the plans clearly state
that a permit will expire only if work is not commenced prior to one hundred
and eighty days (180) of the issuance of the permit. Here, Mr. Vaughn com-
menced work on or about February 15, 1984 and has continued work in progress
until mid-September. Further reference is made to Section 9. 2-114 of your
Code.
After presentation of this data surrounding the controversy, it is imperative
that the Council understand why this problem arose in the first place. As
indicated to you earlier, all but one permit issued in the vicinity of Mr.
Vaughn' s property, including his, was predicated upon proper engineering plans
supporting incremental development. The reason for the failure to not require
improvements on this one project is not certain but, the following facts may
provide guidance.
Mr. Sefton continued by saying, "the permit issued at 4898 Estrada was based
upon a grading plan prepared by John Kennaly, an employee at that time of
Twin Cities Engineering. At the time of its approval, in 1982, Mr. Kennaly
had conversations with the. then acting Planning Director_ concerning the
drainage channel affecting the region. Based on those conversations it was
determined that to accomplish the City' s policy of incremental improvement,
and resolution of the historic drainage problem, a drop inlet should be in-
stalled at 4850 Estrada to accept the water .from the entire regional run off.
This again was confirmed on or about August 1, 1983 when Mr_ . Kennaly submitted
the plans to Mr. Vaughn' s project. However, when the permit for the develop-
ment of 4850 Estrada was approved on July 8, 1.983 and amended on September 9,
1983, no grading or drainage plan was required, nor did the staff require any
incremental improvements. This is further compounded by the fact that the
engineering report for that property at 4850 Estrada specifically brought to
staff' s attention the concern for the drainage channel. "
Mr. Sefton said, "Even though Mr. Vaughn' s permit was issued subsequent to
that of 4850 Estrada, at which timetheregional problem could have been
addressed, the staff, for whatever reason and with full knowledge of the facts,
decided not to do so. Therefore, to now attempt the revocation of Mr. Vaughn's
permit under an argument that it was issued in error or upon incorrect infor-
mation is totally unfounded. of final note, the Council must now realize
that it would be inequitable to continue with the revocation of Mr_ . Vaughn's !,
permit, particularly after an expenditure in excess of $25,000. We request
therefore that the Council suspend any further action of revocation, or at
least in the alternative send the matter back to the Planning Director for
proper revocation proceedings. Another acceptable solution would be the
continuance of this hearing with a direction to staff to earnestly proceed in
establishing the criteria and a plan for an onsite solution to the concerns
of this City" .
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SPECIAL MEETING
December 21, 1984 •
Page 12
work done under a grading permit with that done under a building permit.
So far these efforts have been unsuccessful. He cited the case of Sprindler
Realty Corp. vs.the City of Los Angeles. It was held in that case that work
performed and money spent under 'a validly issued grading permit, did not
stop_ the City from refusing to issue a building permit after the zoning
ordinance of the city had been amended. That is the landmark case in this
field.
Mr. Tom Baumberger, a civil engineer, spoke representing the property owners
immediately adjacent to the property that is being developed. One of these
is lot 46, owned by June and Franco Federici, Lot 47 owned by Bernice Rockwell
and lot 48 which is owned by Scott and Susan Vasgird. Mr. Baumberger stated
that he has appeared previously to express a concern over the drainage in-
stallations proposed for construction immediately upstream from these lots
and warned of pending damage to these three property owners if the facilities
were constructed in the manner proposed. There is nothing he has seen to date
which would alter his opinion that the three owners mentioned are going to
suffer extensive storm damage, hardships and expense from projects being
completed upstream Courts have recently held that where upstream development
materially alters the character of run-off or the course of water downstream
to exceed the capacity of existing channels then a liability does exist. These
owners do not question the fact the natural drainage course traverses some of
their property; however, you need only visit the site to see the vastly in-
creased runoff even from the minor recent storms which is causing extensive
erosion on lots 46, 47 and 48 . The runoff water is carrying so much debris
it has completely silted the culvert under San Jacinto St. and the water has
topped the street.
Mr. Baumberger said the increased runoff is directly due to upstream develop-
ments, which have utilized vast paved areas and installation of leaching fields,
filling and grading of natural drainage courses and replacement with metal
pipes and line ditches. They believe that this improvementshould include
drainage facilities and safeguards for the three mentioned downstream owners.
The developers have a moral obligation toaccomplishthis. The fairness of
the division of the cost and the manner in which this is completed is subject
to agreement between the owners and the developers and of course the governing
body, the City certainly has a say in this , too, but a court would have to
decide in a legal responsibilities as far as cost goes.
Scott Vasgird said that when Mr. Vaughn first came to their house and said
he had a solution to the problem, that he would run an open ditch back through
their property but they did not want an open ditch because of mosquitos and
for safety reasons. Also they never had a ditchbeforeand because he was
building up there, they didn' t want one now. An agreement was made that they
didn' t want a ditch. It was decided that if they went with the pipe Mr.
Vaughn would pay for the backhoe work but wanted the cost of the pipe to be
split. Mr. Vaughn figured it out and it came to $600 each. Mr. Vasgird said
at that time he didn't feel that he had any responsibility because when the
City issued his permit he didn' t have any water problems, and that is why they
didn' t have to put in any of the improvements that are being discussed now.
Mr. Vasgird said at the meeting at the City they decided that it was part of
their responsibility, Mr. Vaughn came up with the proposal of $600 and he said
he would take care of the digging, and put in the pipe. As you are aware
there have been many problems that have happened since then. Mr. Vasgird
said he feels the City is doing everything that they should be doing and
appreciates everything the City has done to this point.
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SPECIAL MEETING •
December 21, 1984
Page 13
Susan Vasgird said Mr. Kennaly pointed out that they should have had a pipe
when they built on their property. There was no pipe upstream to connect
into and there was no pipe downstream to connect into, so what would be the
sense of having a pipe out in the middle of nowhere. Mr. Kennaly engineered
Bernice Rockwell's property. She has a more severe problem than the Vasgird's
do, but yet Mr. Kennaly didn' t have Mrs. Rockwell put in a pipe. Mrs. Vasgird
said she feels that they did not need to make any improvements and that they
fixed their property to solve their water problem. What Mr. Vaughn has done
has changed it, and now the Vasgird's do need a pipe and they want a pipe and
are willing to go with Mr. Vaughn' s original proposal.
Mr. Sefton stated the judicial interpretation by Mr. Baumberger is generally
correct as far as theresponsibilityof upstream people and downstream people
and burdens and things of that nature But he thinks what has been pointed
out in his presentation that this project, if it causes any burden at all, it
is minimal which means their damages are going to be minimal. The permit was
not issued in error and it addressed the issue and of even more importance is
the fact that everyone keeps referring to what the project looks like now.
They admit that it is in pretty bad shape but why is it. Because it hasn't
been able to be completed pursuant to the permit. Unfortunately he doesn't
know if people are thinking of it this way, but he feels there is a duty on
the part of the Council to try to anticipate what the project would be like
if it was completed based upon the plans and specifications because that is
truly the issue that is before the Council, not what it looks like now.
John Kennaly stated that he would like to go over what happened when the City
inherited this project fromtheCounty. The City was left with the 6 lowest
lots, 4 of Don Vaughn, the Vasgirds and Bernice Rockwell 's . Bernice Rockwell ' s
was the first one to be developed. He .was contacted by Mrs. Rockwell 's
daughter and had several conversations as to the needs and what might be able
to be done there and with the City also. Several options were explored, there
was no pipe coming from upstream and he never recommended a pipe for anyone
in this whole area, but showed them what their options might be, an open
channel or closed conduit. They made the choices themselves. In respect to
Mrs. Rockwell 's property, her property is relatively low lying, the culvert
was higher, and they filled much of that property to take care of it. They
did not install a culvert .at her property because there wasno defined channel
coming onto her property. It was rather wide, some of the flooding was occur-
ing from 4500 San Jacinto, some of it was coming from 4850 Estrada. So
rather than at that point install a drop inlet or-a drop structure, they had
two conversations with Larry Stevens, Planning Director, as to what might be
the solution for this problem. They discussed at that time that where the
drainage course came and made a 90-degree turn, that was the logical place
to either put a drop inlet ,or drop structure of if they had a pipe they could
continue a pipe. The Vasgird' s would have had the same problem that Mrs.
Rockwell did installing a pipe. After the discussion with Larry Stevens it was
decided that it made more sense to install a drop structure at that point.
A drop structure is merely a concrete box set in the ground for the water to
fall into and then flow out of. This lowers the velocity downstream. He
said he explained to Mrs . Rockwell when she got hers, that she needed to plant
extensive erosion control measures and they discussed thick ice plant in
order to control erosion on her property because of the excessive slope.
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v
SPECIAL MEETING .
Dec6mber 21, 1984
Page 14
Mr. Kennaly said he doesn't know what happened on the Vasgird's property
because he didn't do the engineering on their property however, the conten-
tion that they had no water problem is in error. Mr. Kennaly read from a
letter in the Vasgird ' s file from their engineer to Mr. O.D. Smith, Chief
Building Inspector, "Some of these minimum separation considerations will
not be necessary if the residents could be located for the rest of the streets,
however, the rear of this parcel is subject to periodic flooding, which in
my opinion is more of a concern thantheproposed minimum tolerances". No
drainage study was required and no grading plan was prepared and no improve-
ments were installed. Mr. Kennaly said when he submitted his plan he was not
aware of any activity downstream. The City never made his project aware of
the project down stream and the project down stream was never aware of them.
There was an opportunity at one time to coordinate an original solution be-
tween all propertiesandapparently that didn't happen. What was inherited
on Mr. Vaughn' s property was a 42-inch pipe coming onto the property. They
carried it across the property to deposit it in a manner which was found to
be acceptable by the City and were given a permit in three months.
Mr. Don Vaughn said that at the September 13th meeting it wasdiscussedabout
the culvert going out to the street. The $600 figure came in. By his ordering
all the culvert at one ,time, 300 feet instead of 200, he could get it cheaper.
Also it was discussed how far above the ground the culvert would be, approxi-
mately 2 feet. All these ideas were given to them through discussion with
Larry McPherson, Henry Engen and himself. The City would open an open drain
or a culvert above the ground. When the plan to take the culvert out to the
street was submitted to the City, Mr. Wallace, John Kennely, Mr Vaughn, Mr.
Dowell, Mr. Engen and Mr. Wallace discussed this. Mr. Vaughn stated that the
neighbors are always going to remember $600 but with the stipulations that are
required of him how, the fact that it has to be buried in the ground, the cost
has gone up, and Mr. Wallace indicates that the neighbors are still willing
to pay their share, but their share is now $1,200 not $600 .
Susan Vasgird asked Mr. Vaughn if ,the reason the pipe costs more now is because
he didn't order it all at one time.
John Wallace, Consulting City Engineer, said it is important for the record
for the appellant to state in their opinion whether the original plan drawn
on November ll, 1983 plan was sufficient from a drainage stand point and
would cause no problems to offsite property.
John Kennaly responded that yes it their contention that for the 10 year
flow, 12 tons of ripp-raff properly placed through which this pipe would dis-
charge, would cause virtually no downstream increase in erosion. This is an
area that always experienced it. The first year Mrs. Rockwell was in her
house before the other properties were developed at all, there were problems
there. There were foundation problems in the existing house at 4500 San
Jacinto and water was coming onto her property from all directions. There
were significant amounts of erosion coming onto her property because of the
velocity up stream. Their project would not change the downstream configura-
tions and virtually not change the water surface elevations downstream.
Henry Engen, Planning Director, gaveanoutline of alternatives ,: l) To approve
the appeal .; 2) to deny the appeal pursuant to the resolution in the packet and
set a declaration of intention to establish a nuisance and proceed as a hazard
situation; 3) to deny the appeal but to delete the nuisance procedures if the
appellants agree to pursue the modified plan with the conditions that the
-14- 2 _
SPECIAL MEETING
December 21, 1984
Page 11
Mr. Don Vaughn said that over a year ago he purchased the 4 lots with the in-
tention of improving them. He quoted from a news article that Scott and Susan
Vasgird built at 4850 Estrada and had a small creek bed in back where water
ran when it rained:. He described the creek bed in its original state. In
February when he began the work on his property, the small creek bed on the
property yiel..ded. 4, 000 auto and tractor tires, a dozen old appliances and
truck loads of garbage from the site. It cost $6 ,000 to $7, 000 just to haul
off the garbage and the tires and the work that was required on the site. A
bulldozer went approximately 10 feet down just to hit dry dirt so that soil.
could be brought up to the proper compaction levels, ,it had been saturated
that much at the site. An existing 42-inch dr&in from upstream had put water
on the site and three property owners on the back of the lots to this day have
drains from their property dumping water on this site. The drain area at the
largest point was approximately 40 feet in width and narrowed to about 15
feet at the downstream neighbor's property and then when it cr ssed the prop-
erty towards the street, one neighbor built a fence around the channel, one
built a porch on piers so- that the water could run underneath, and the other
one put in an open drain channel to take it out to the street.
Mr. Vaughn said that there were a. lot of concerns by the neigh ors and held a
lot of meetings. An openchannelwit.h. no cost to the neighbors was offered,
but a basic plan of extending the culvert to the street was co ceptually
agreed upon A plan to take the culvert out to the street was approved by
the City on October 22nd. This permit is not agreeable becaus it states
"no off-site construction shall occur until owner submits acce table evidence
that owners of the affected lots _agree to the installation of guch improve-
ments which are to be privately maintained. At this time ther is no agree-
ment with the owners, other than the proposal that the neighbo s pay $600 each
toward the installation of 400 feet of culvert buried in the g. ound. The cost
of doing this will probably be close to $7 ,000 which represent about 180
of his original cost of the project.
Mr. Vaughn stated that his last proposal to the neighbors was _o pay $1,200
each, at $1.00 per month for 12 months. In. the meantime the Plnning Director
has revoked his permit and everyone who sees the site, sees an unfinished
project. The soil that has washed away was not compacted because that is the
area where the culvert was to be installed, A retaining wall for holding the
dirt still is not being built, and the final grading has not been completed.
Everyone' s perception seems to be that the project is complete in its present
state. He believes that if allowed to continue the work, his obligation of
keeping the water in the same channel that it has always traveled, would be
achieved as the City has indicated.
Allen Grimes, City Attorney, stated for the record that the appeal in this
case was not filed within the time required by the Atascadero Municipal Code,
but the Council kindly indicated that it would allow the appellant to have an
opportunity to present its case anyway and not stand on procedural grounds.
Mr. Grimes commented on the basic point made by the appellant that some vested
right had been accrued. He stated that such vested right has been accrued for
a grading permit not a building permit. A prolific source of .litigation in
the field of vested rights has arisen from attempts by developers to equate
-11
SPECIAL MEETING
December 21, 1984
Page 15
consulting city engineer has recited today;or 4) continue the hearing with the
appellant, engineer and staff working together toward a solution. Mr. Engen
stated that his preference would be to deny the appeal and have staff work
with the appellants to come up with an acceptable modified plan.
John Wallace, Consulting City Engineer, said that he feels, the appeal should
be denied but that they are willing to work with the applicant in reviewing
and refining the compromise solution as proposed and submitted to the City
yesterday.
Allen Grimes, City Attorney, said he would suggest that if the appeal be denied
only section one of the resolution that denies the appeal be approved and that
the Council withhold the matter of initiating action under the ?.Building Code,
etc. with a hearing until the January 14th meeting.
Councilman Molina said that we have put quite a bit of time including staff
time into this. He would like to go with the staff ' s original recommendation
and adopt the resolution and in the meantime, they can work it out. Let's
resolve the problem.
Councilwoman Mackey said that if they had gone with the original plan with
the 42-inch pipe continuing clear up to San Jacinto, everybody could have been
happy and you could have saved a lot of attorney fees, engineer fees, etc.
You could have been ahead, Mr. Vaughn, and you could have had your project
all done by now.
Councilman-Handshy said we have worked on this problem for a long, long time.
He hoped we would have a solution to this drainage problem and hopefully we
will get one. The only alternative he could see is maybe to put a building
moritorium on this area until we get this drainage problem taken care of.
City Attorney, Allen Grimes, said the cCity's position from the beginning is
that the City wanted to be helpful but we didn't want to be the negotiator
between the Vasgird' s and the Vaughn' s. It is Vaughn' s responsibility to
provide drainage. If he finds that some neighbors are going to help him,
that' s great, but he is either to find some help or he is going to do it him-
self or he is not going to build buildings.
MOTION: By Councilman Molina to adopt Resolution 63-84 . He stated that he
would hope that the 'appellants and the City Engineer and Planning
Director would get together and resolve this within the time the
resolution states. Motion was seconded by Councilwoman Mackey.
Passed 4 :0 by roll call vote, with Councilwoman Norris absent.
Mayor Nelson asked John Wallace and Henry Engen basically if the resolution
was passed and the next hearing would be set for January 14th what would be
the basis for that hearing What would happen at that hearing? ;
Mr. Engen responded that section 7004 of the Building Code would be applied
that has to do with excavation and grading and hazardous conditions. He said
that if nothing is resolved the City could proceed to come down on the owner
to clean up the property and put it back in its natural state and then have the
Department of Public Works proceed to do that and lay the cost on the property
owner.
Mayor Nelson asked if there was a valid permit that is waiting to be picked
up right now. 4o
-ILI
o
SPECIAL MEETING
December 21, 1984
Page 16
Mr. Engen said yes, the one that has the pipe to San Jacinto.
The Mayor then asked John Wallace, Consulting City Engineer, if he is talking
about an alternative to have ,an open ditch and if that is acceptable to him
and the City. Mr. Wallace responded that would be acceptable provided some
modifications were made as stated before.
Councilwoman Mackey asked if they can go right ahead and do things so that
they don't have to wait until the 14th, they could be all done by then.
Mayor Nelson said they can be all done with the design.
Councilwoman Mackey said what if we have a rain between now and then. - What
will happen to all of those downstream people. Can they proceed with more than
just the design.
Mr. Engen said if they had an approved permit, they can construct the project.
Mayor Nelson asked what has been waived as far as fees as of this date.
Mr. Engen said the permit was prepared to be reissued without the $132 fee.
MEETING ADJOURNED AT 5: 25 p.m.
RECORDED BY:
GR GER JPKEX, CIMCLFRK