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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 -1- cl 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. -2- + 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. -3- 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. -4- 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. -5- ! , 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. -6- 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. -7- f �' 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. -8- 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, -9- f 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" . -10- 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. -12- �� 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. -13- 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