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HomeMy WebLinkAbout2000/11/15 - Agenda PacketCITY OF RAN C H,O-CUCAM O N GA 10500 Civic Center Drive Rancho Cucamonga~CA 91730 city office: (909) 477-2700 AGENDAS REDEVELOPMENT AGENCY FIRE PROTECTION DISTRICT CITY COUNCIL REGULAR MEETINGS: 1sT and 3rd Wednesdays, 7:00 p.m. November 15, 2000 AqencV, Board & City Council Members William J. Alexander ....................Mayor Diane Williams ...............Mayor Pro Tem Paul Biane ...............................Member James V. Curatalo .....................Member Bob Dutton ..............................Member Jack Lam .........................City Manager James L. Markman .............City Attorney Debra J. Adams .....................City Clerk ORDER OF BUSINESS 5:30 p.m. 7:00 p.m. Closed Session .................................. Tapia Conference Room Regular Redevelopment Agency Meeting ...... Council Chambers Regular Fire Protection District Meeting ....... Council Chambers Regular City Council Meeting ......................Council Chambers City Council Agenda November 15, 2000 All items submitted for the City Council Agenda must be in writing. The deadline for submitting these items is 6:00 p.m. on Tuesday, one week prior to the meeting. The City Clerk's Office receives all such items. A.~. CALL TO ORDER 1. Roll Call: Alexander , Biane , Curatalo__ Dutton __., and Williams__ B.~. ANNOUNCEMENTS/PRESENTATIONS 1. Presentation of a Proclamation to the Cucamonga County Water District Director Robert Neufeld for being selected as the "Board Member of the Year." 2. Presentation of a Proclamation to OPARC in celebration of its 50th Anniversary. 3. Presentation of a Proclamation proclaiming November 12 - 18, 2000, as "Geography Awareness Week." C.~. COMMUNICATIONS FROM THE PUBLIC This is the time and place for the general public to address the City Council. State law prohibits the City Council from addressing any issue not previously included on the Agenda. The City Council may receive testimony and set the matter for a subsequent meeting. Comments are to be limited to five minutes per individual. D. CONSENT CALENDAR The following Consent Calendar items are expected to be routine and non-controversial. They will be acted upon by the Council at one time without discussion. Any item may be removed by a Councilmember or member of the audience for discussion. Approval of Minutes: September 12, 2000 (Adjourned Meeting with Library Board of Trustees) October 18, 2000 Approval of Warrants, Register Nos. 10/25/00 and 11/02/00 and Payroll ending 10/26/00 for the total amount of $2,802,123.11. Approval to receive and file current Investment Schedule as of October 31, 2000. Approval of Alcoholic Beverage Application for On-Sale Beer and Wine for Barboni's Pizza (person-to-person transfer), Rebecca Ann & Robert William Clapper, 9792 19th St. 1 16 22 City Council Agenda November 15, 2000 Approval of Alcoholic Beverage Application for On-Sale Beer and Wine for the Sizzler (stock transfer), Forbco Management Corporation, 9588 Base Line. Approval to appropriate $2,448 in Account Number 01-4333-6028 to complete the process for Annexation No. 00-01. Approval of a Resolution of the City Council acting as the Legislative Body for Community Facilities District 2000-01 (South Etiwanda) declaring the results of a special election. RESOLUTION NO. 00-237 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT Approval of a Resolution of the City Council acting as the Legislative Body for Community Facilities District 2000-02 (Rancho Cucamonga Corporate Park) declaring the results of a special election. RESOLUTION NO. 00-238 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT Approval of a Resolution of the City Council acting as the Legislative Body for Community Facilities District 2000-01 (South Etiwanda) authorizing and providing for the issuance of bonds, approving the form of the Bond Indenture, Bond Purchase Agreement (CO 00-083), Preliminary Official Statement, and other documents and actions in connection with the issuance of bonds. RESOLUTION NO. 00-239 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA), AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF SPECIAL TAX BONDS OF THE DISTRICT, APPROVING THE FORM OF BOND INDENTURE, BOND 24 26 27 28 31 32 35 37 City Council Agenda November 15, 2000 PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT AND OTHER DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS 10. Approval of a Resolution of the City Council acting as the Legislative Body for Community Facilities District 2000-02 (Rancho Cucamonga Corporate Park) authorizing and providing for the issuance of bonds, approving the form of the Bond Indenture, Bond Purchase Agreement (CO 00-084), Preliminary Official Statement, and other documents and actions in connection with the issuance of bonds. RESOLUTION NO. 00-240 A RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK), AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF SPECIAL TAX BONDS OF THE DISTRICT, APPROVING THE FORM OF BOND INDENTURE, BOND PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT AND OTHER DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS 11. Approval to authorize the replacement purchase of one Stump Grinder from Vermeer-California, Inc., of Fontana, funded from Account No. 1- 712-001-5603 in the amount of $34,845.27. 12. Approval to reject all bids for the FY 2000/2001 Bus Bay Improvements at Various Locations on Haven Avenue south of Lemon Avenue, Vineyard Avenue south of Foothill Boulevard, and Red Oak Street north of Arrow Route, as non-responsive to the needs of the City. 13. Approval of a Professional Services Agreement with CH2MHILL, Inc., (CO 00-085) to provide hProect Study Report Services for Future Freeway Interchange at 6t Street and 1-15 Freeway in the amount of $149,983.00, and authorization of 10% contingency to be funded from Account No. 112430356501248124 (new), 22-4637-9956 (old). 14. Approval to award and authorize the execution of the Professional Services Agreement (amended CO RA00-008) for the Soils and Material Testing of the Foothill Boulevard Median Improvement Project, Phase II, to RMA Group in an amount not to exceed $98,095, to be funded from Account No. 32-4637-9824 (11763035650/11701760). 15. Approval to release Maintenance Guarantee Bond, Certificate of Deposit in the amount of $2,076.00 for CUP 95-32, located at 9777 Foothill Boulevard. 42 44 49 50 51 53 54 City Council Agenda November 15, 2000 4 CONSENT ORDINANCES The following Ordinances have had public hearings at the time of first reading. Second readings are expected to be routine and non- controversial. The Council will act them upon at one time without discussion. The City Clerk will read the title. Any item can be removed for discussion. ENVIRONMENTAL ASSESSMENT AND GENERAL PLAN AMENDMENT 00-02B - SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION - A request to change the General Plan land use designation from Commercial to High Residential (24-30 dwelling units per acre) for 1.3 acres at the southwest intersection of Malvern Ave. and Salina Street. APN: 209-041-47. Staff has prepared a Negative Declaration of environmental impacts for consideration. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT DISTRICT AMENDMENT 00-03 - SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION - A request to change the Development District zoning designation from General Commercial to High Residential (24-30 dwelling units per acre) with a Senior Housing Overlay District for 1.3 acres at the southwest intersection of Malvern Avenue and Salina Street. APN: 209-041-47. Staff has prepared a Negative Declaration of environmental impacts for consideration. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT AGREEMENT 00-02 - SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION - A Development Agreement between the City of Rancho Cucamonga and the Southern California Housing Development Corporation for the purpose of providing a Senior Housing Project pursuant to the requirements of the Senior Housing Overlay District (Section 27.020.040 of the Development Code), including deviation from certain development standards, for 48 senior apadment units and one manager unit on a High Residential (24- 30 dwelling units per acre) site of 1.3 acres of land at the southwest intersection of Malvern Avenue and Salina Street. APN: 209-041-47. Related files: General Plan Amendment 00-02B, and Development District Amendment 00-03. Staff has prepared a Negative Declaration of environmental impacts for consideration. ORDINANCE NO. 639 (second reading) AN ORDINANCE OF THE CiTY COUNCIL OF THE CiTY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING DEVELOPMENT DISTRICT AMENDMENT 00-03, A REQUEST TO AMEND THE DEVELOPMENT DISTRICTS MAP FROM GENERAL COMMERCIAL TO HIGH RESIDENTIAL (24-30 DWELLING UNITS PER ACRE) WITH A SENIOR HOUSING OVERLAY DISTRICT FOR 1.31 ACRES OF LAND LOCATED SOUTH OF THE INTERSECTION OF MALVERN AVENUE AND SALINA STREET, AND MAKING FINDINGS IN SUPPORT THEREOF. APN: 209-041-47 55 City Council Agenda November 15, 2000 ORDINANCE NO. 640 (second reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA APPROVING DEVELOPMENT AGREEMENT NO. 00-02, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF RANCHO CUCAMONGA AND THE SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION FOR THE PURPOSE OF PROVIDING A SENIOR HOUSING PROJECT IN ACCORDANCE WITH THE SENIOR HOUSING OVERLAY DISTRICT (SHOD), INCLUDING DEVIATIONS FROM CERTAIN DEVELOPMENT STANDARDS FOR 48 SENIOR APARTMENT UNITS AND ONE MANAGER UNIT LOCATED SOUTH OF THE INTERSECTION OF MALVERN AVE. AND SALINA ST., AS PROVIDED FOR IN SECTION 65864 OF THE CALIFORNIA GOVERNMENT CODE, FOR REAL PROPERTY DESCRIBED HEREIN, AND MAKING FINDINGS IN SUPPORTTHEREOF-APN: 209-041-47 CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-03 (RANCHO SUMMIT) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT ORDINANCE NO. 643 (second reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-03 (RANCHO SUMMIT) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT 60 75 75 F. ADVERTISED PUBLIC HEARINGS The following items have been advertised and/or posted as public hearings as required by law. The Chair will open the meeting to receive public testimony. CONSIDERATION OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 -THE HEIGHTS AT HAVEN VIEW ESTATES- An appeal ef the Planning Commission's denial of appeals filed on the City Planner's approval of a minor revision to the grading plan of Tract 14771, consisting of 40 single-family homes on 25.35 acres of land in the Very- Low Residential District (less than two dwelling units per acre), located east of Haven Avenue and north of Ringstem Drive. 86 City Council Agenda November 15, 2000 RESOLUTION NO. 00-241 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, DENYING AN APPEAL OF A PLANNING COMMISSION DECISION DENYING APPEALS OF A CITY PLANNER DETERMINATION THAT NO SUBSEQUENT ENVIRONMENTAL REVIEW IS NECESSARY AND APPROVING MODIFICATION TO DEVELOPMENT REVIEW 98-13 FOR FINAL TRACT 14771, A DESIGN REVIEW OF THE DETAILED SITE PLAN AND BUILDING ELEVATIONS FOR 40 SINGLE FAMILY HOMES ON 25.35 ACRES OF LAND, LOCATED EAST OF HAVEN AVENUE AND NORTH OF RINGSTEM DRIVE IN THE VERY LOW RESIDENTIAL DISTRICT (LESS THAN 2 DWELLING UNITS PER ACRE), AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 1074-511-27 THROUGH 31 AND 1074-621-01 THROUGH 35 HISTORIC LANDMARK DESIGNATION 00-02 - KIMBERLY AND JAY POCOCK - An application to designate the Grandma Issak House and property as an Historic Landmark, located at 9611 Hillside Road - APN: 1061-571-01 MILLS ACT AGREEMENT 00-01 - KIMBERLY AND JAY POCOCK - A request to implement the use of the Mills Act (CO 00-086) to reduce property tax on the Grandma Issak House, an Historic Landmark, located at 9611 Hillside Road - APN: 1061-571-01 RESOLUTION NO. 00-242 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING HISTORICAL LANDMARK 00-02 DESIGNATING THE GRANDMA ISSAK HOUSE, LOCATED AT 9611 HILLSIDE ROAD, AS AN HISTORICAL LANDMARK AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 1061-571-01 131 137 137 153 G,_: PUBLIC HEARINGS The following items have no legal publication or posting requirements. The Chair will open the meeting to receive public testimony. CONSIDERATION OF AN ORDINANCE TO ESTABLISH A PRIMA FACIE SPEED LIMIT OF 30 MPH ON SUGAR GUM WAY BETWEEN DAY CREEK BOULEVARD AND VICTORIA WINDROWS LOOP 156 City Council Agenda November 15, 2000 ORDINANCE NO. 644 (first reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AMENDING SECTION 10.20.020 OF THE RANCHO CUCAMONGA CITY CODE TO ESTABLISH A PRIMA FACIE SPEED LIMIT OF 30 MPH ON SUGAR GUM WAY BETWEEN DAY CREEK BOULEVARD AND VICTORIA WINDROWS LOOP 161 H. CITY MANAGER'S STAFF REPORTS The following items do not legally require any public testimony, although the Chair may open the meeting for public input. 1. CONSIDERATION OF REQUEST TO APPROPRIATE FUNDS RECEIVED FROM THE CHILDREN AND FAMILIES COMMISSION FOR SAN BERNARDINO COUNTY FOR A GRANT FOR YEAR ONE FUNDING IN THE AMOUNT OF $162,585 TO DEVELOP AND iMPLEMENT A YOUTH ENRICHMENT PROGRAM (FISCAL YEAR 2000-2001). 2. CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT 2000-01 (SOUTH ETIWANDA) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT ORDINANCE NO. 645 (first reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT ORDINANCE NO. 646 (first reading) AN ORDINANCE OF THE CiTY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANGHO GUGAMONGA CORPORATE PARK) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT 163 165 169 180 184 City Council Agenda November 15, 2000 I_. COUNCIL BUSINESS The following items have been requested by the City Council for discussion. They are not public hearing items, although the Chair may open the meeting for public input. 1. PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE 192 J. IDENTIFICATION OF ITEMS FOR NEXT MEETING This is the time for City Council to identify the items they wish to discuss at the next meeting. These items will not be discussed at this meeting, only identified for the next meeting. K.~. COMMUNICATIONS FROM THE PUBLIC This is the time and place for the general public to address the City Council. State law prohibits the city Council from addressing any issue not previously included on the Agenda. The Council may receive testimony and set the matter for a subsequent meeting. Comments are to be limited to five minutes per individual. ADJOURNMENT I, Debra J. Adams, City Clerk of the City of Rancho Cucamonga, or my designee, hereby certify that a true, accurate copy of the foregoing agenda was posted on November 8, 2000, seventy two (72) hours prior to the meeting per Government Code 54954.2 at 10500 Civic Center Drive. September 12, 2000 CITY OF RANCHO CUCAMONGA CITY COUNCIL AND LIBRARY BOARD OF TRUSTEES MINUTES Adjourned Meetinq A. CALL TO ORDER An adjourned meeting of the Rancho Cucamonga City Council and Library Board of Trustees was held on Tuesday, September 12, 2000 in the Tri Communities Room of the Civic Center, located at 10500 Civic Center Drive, Rancho Cucamonga, California. The meeting was called to order at 5:12 p.m. by Mayor Alexander. Present were Councilmembers: Paul Biane, James Curatalo, Bob Dutton, Diane Williams, and Mayor William J. Alexander. Present were Library Board of Trustees: Donna Bradshaw, Robed Howdyshell, Edward Swistock, Ravenel Wimberly, and Joyce Womack. Also present were: Jack Lain, City Manager; Pamela Easter, Deputy City Manager; Deborah Clark, Library Director; Robert Karatsu, Library Services Manager; Renee Tobin, Senior Librarian; Rick Gomez, Community Development Director; Larry Henderson, Principal Planner; Duane Baker, Assistant to the City Manager; Diane O'Neal, Assistant to the City Manager; and Debra J. Adams, City Clerk. B. ITEM OF BUSINESS B1. DISCUSSION OF ESTABLISHING GOALS FOR SMART LIBRARY GROWTH Deborah Clark, Library Director, introduced John Loomis of Thidieth Street Architects, Inc. who 'introduced Karen Galley and Margaret Sanchez. Mr. Loomis stated the purpose of the meeting was to see if the current demand for library services was being met. He stated some of the input from this meeting will be included in the General Plan. He stated they would like to get everyone's goals for the library at the conclusion of this meeting. Deborah Clark, Library Director, reported that staff took the goals to the Library Board first. What is before the Council tonight is what was developed from that meeting. Mr. Loomis gave background information through a power point presentation on the history of the development of the Rancho Cucamonga Library (copies of the power presentation are on file in the City Clerk's office). He talked about the population growth, age distribution of the residents of the City, education and income level of the residents of the City. Mr. Loomis talked about home prices and the increase in permits being issued for construction of homes. He mentioned the survey that was done and the publids awareness of the library. He pointed out the frequent use of the library and the improvements the public would like to see that were mentioned through the survey. He advised that the Rancho Cucamonga Library is open 64 hours per week which is more than many other communities are open. He stated the Rancho Cucamonga Library is the tenth busiest library in the State of California. He pointed out that Rancho Cucamonga is very low in volume count compared to other cities. He talked about the fill rate and stated 80% is a good place to be. Robert Karatsu, Library Services Manager, talked about all of the services the library has to offer. City Council/Library Board of Trustees Minutes September 12, 2000 Page 2 John Loomis went through the goals (short term, intermediate and long term) which were part of the power point presentation. It was pointed out it would be very difficult to expand the size of the current library; although things such as shelving can be done. Deborah Clark, Library Director, talked more about the short term goals. Various questions were asked about these. There was consensus on the short term goals as outlined. Councilmember Dutton felt it was a good idea to get the word out that the library does welcome donations. Boardmember Howdyshell asked what a good collection size would be for a City our size. John Loomis stated around the 350,000 range. A presentation was made on the Intermediate Goals. There was consensus on these as well. Councilmember Biane asked if 25,000 square feet of space would be more appropriate than 10 - 15,000 square feet. Boardmember Howdyshell stated yes, but that the cost factor was also being considered. More discussion continued on the size of the building needed. A presentation was made on the Long Term Goals. Boardmember Swistock asked Mr. Loomis to give an explanation of Proposition 14. John Loomis stated it is $350,000,000 grant for library services available throughout the state. He stated the guidelines for this will probably not be available until next September. Deborah Clark, Library Director, stated it is suggested there be cooperation between the schools and the library to use the money. She stated that is why the Bookmobile will help with this point. Boardmember Howdyshell stated when the City is developing other facilities they should think about putting in library services of some kind at those facilities. Councilmember Williams pointed out the high regard the citizens have for the library staff. The Council had consensus on the Long Term Goals. MOTION: Moved by Dutton, seconded by Williams to have consensus on the goals presented. Motion carried unanimously 5-0. C. COMMUNICATIONS FROM THE PUBLIC No communication was made from the public, City Council/Library Board of Trustees Minutes September 12, 2000 Page 3 D. ADJOURNMENT MOTION: Moved by Biane, seconded by Williams to adjourn. Motion carried unanimously 5-0. The meeting adjourned at 6:33 p.m. Respectfully submitted, Debra J. Adams, CMC City Clerk Approved by Library Board of Trustees: November 2, 2000 Approved by City Council: * October 18, 2000 CITY OF RANCHO CUCAMONGA CITY COUNCIL MINUTES Reqular Meetinfi A. CALL TO ORDER A regular meeting of the Rancho Cucamonga City Council was held on Wednesday, October 18, 2000 in the Council Chambers of the Civic Center, located at 10500 Civic Center Drive, Rancho Cucamonga, California. The meeting was called to order at 7:11 p.m. by Mayor William J. Alexander. Present were Councilmembers: Paul Biane, James Curatalo, Bob Dutton, Diane Williams, and Mayor William J. Alexander. Also present were: Jack Lam, City Manager; Pamela Easter, Deputy City Manager; James Markman, City Attorney; Larry Temple, Administrative Services Director; Lorraine Phong, Information Systems Analyst; Brad Buller, City Planner; Joe O'Neil, City Engineer; Bill Makshanoff, Building Official; Alan Brock, Plan Check Manager/Building; Paula Pachon, Management Analyst III; Deborah Clark, Library Director; Captain Rodney Hoops, Police Department; Chief Dennis Michael, Rancho Cucamonga Fire Protection District; Duane Baker, Assistant to the City Manager; Diane O'Neal, Assistant to the City Manager; Jenny Haruyama, Management Analyst I; and Debra J. Adams, City Clerk. B. ANNOUNCEMENTS/PRESENTATIONS B1. Presentation of a Proclamation to PJ & Jim Clark, celebrating their 60th Wedding Anniversary. Mayor Alexander presented the Proclamation to the Clark's and congratulated them. B2. Presentation of Certificates to Red Ribbon Week Button Design Winner and Honorable Mention Recipients. Paula Pachon, Management Analyst Ill, introduced the contest winners. B3. Proclamation declaring October23-31, 2000, as Red Ribbon Week in Rancho Cucamonga. Mayor Alexander presented the Proclamation to Paula Pachon, Management Analyst III. C. COMMUNICATIONS FROM THE PUBLIC C1. Lynda Faser, 4993 Garret, stated she is a Metrolink rider and has been talking to Ken Fung in Engineering about the parking lot situation. She told about her friend who recently tripped at the station. She also inquired about the number of handicap spaces required. She asked for the Council to help to get the parking lot improved as soon as possible. Joe O'Neil, City Engineer, stated the project is currently bidding and that the first lot will be across the street from the existing lot which should accommodate everyone and should be very nice. City Council Minutes October 18, 2000 Page 2 C2. Jeff Kudlac, General Dynamics, thanked the Council and staff for their assistance at the Buy. Corn Golf Tournament held at Empire Lakes last weekend. He stated he would be forwarding a report on the event to the City. D. CONSENT CALENDAR D1. Approval of Minutes: September 20, 2000 D2. Approval of Warrants, Register Nos. 9/20/00 and 10/4/00 and Payroll ending 9/28/00 for the total amount of $3,528,633.72. D3. Approval to receive and file current Investment Schedule as of September 30, 2000. D4. Approval of Alcoholic Beverage Application for Off-Sale Beer and Wine for Ultra-Mart Gas Station (transfer of license), Monica Eiman & Victor Ghattas Tadros, 7996 Archibald Avenue. D5. Approval to authorize the advertising of the "Notice Inviting Bids" for In~eld Renovation of Three Softball Fields at the Rancho Cucamonga Adult Sports Complex, to be funded from Fund 46 (133). RESOLUTION NO. 00-209 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING PLANS AND SPECIFICATIONS FOR INFIELD RENOVATION OF THREE SOFTBALL FIELDS AT THE RANCHO CUCAMONGA ADULT SPORTS COMPLEX AND AUTHORIZING AND DIRECTING THE CITY CLERK TO ADVERTISE TO RECEIVE BIDS D6. Approval to authorize the advertising of the "Notice Inviting Bids" for the Monte Vista Street Improvements between Amethyst Street and Archibald Avenue, to be funded with Community Development Block Grant funds, Account No. 28-4333-9721. RESOLUTION NO. 00-210 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING PLANS AND SPECIFICATIONS FOR THE "MONTE VISTA STREET IMPROVEMENTS BETWEEN AMETHYST STREET AND ARCHIBALD AVENUE" IN SAID CITY AND AUTHORIZING AND DIRECTING THE CITY CLERK TO ADVERTISE TO RECEIVE BIDS D7. Approval of a Resolution adopting the Five-Year Capital Improvement Program for Fiscal Years 2000/01 through 2004/05 and Twenty-Year Transportation Plan beginning in Fiscal Year 2000/01, as required for Measure "1" funds, and approval of a Resolution amending the Five-Year Capital Improvement Program for Fiscal Year 1998/99 through 2002/03. RESOLUTION NO. 00-211 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ADOPTING THE FIVE-YEAR CAPITAL IMPROVEMENT PROGRAM FOR FISCAL YEARS 2000/01 THROUGH 2004/05 AND TVVENTY-YEAR TRANSPORTATION PLAN BEGINNING IN FISCAL YEAR 2000/01 FOR THE EXPENDITURE OF MEASURE 'T' FUNDS City Council Minutes October 18, 2000 Page 3 RESOLUTION NO. 00-212 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AMENDING THE FIVE-YEAR CAPITAL IMPROVEMENT PROGRAM FOR FISCAL YEARS 1998/99 THROUGH 2002~03 D8. Approval of a Resolution amending Resolution 00-170, the Resolution of Intention to Establish Community Facilities District No. 2000-01 (South Etiwanda), to modity the types of facilities authorized to be financed by such Community Facilities District. RESOLUTION NO. 00-170A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AMENDING RESOLUTION NO. 00-170, THE RESOLUTION OF INTENTION TO ESTABLISH COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA), TO MODIFY THE TYPES OF FACILITIES AUTHORIZED TO BE FINANCED BY SUCH COMMUNITY FACILITIES DISTRICT D9. Approval of Change Order No. 1 to Holmes and Narver, Inc., for the preparation of a project study report at Base Line Road and the 1-15 Freeway, and appropriate $63,000 from Fund No. 22, to be funded from Account No. 224637-9922. D10. Approval of Improvement Agreement, Improvement Securities and Ordedng the Annexation to Landscape Maintenance District No. 3B and Street Lighting Maintenance District Nos. 1 and 6 for CUP 98-30, located on south side of Feron Boulevard, east of Hermosa Avenue, submitted by Northtown Housing Development Company. RESOLUTION NO. 00-213 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING IMPROVEMENT AGREEMENT AND IMPROVEMENT SECURITIES FOR CUP 98-30 RESOLUTION NO. 00-214 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ORDERING THE ANNEXATION OF CERTAIN TERRITORY TO LANDSCAPE MAINTENANCE DISTRICT NO. 3B AND STREET LIGHTING MAINTENANCE DISTRICT NOS. 1 AND 6 FOR CUP 98-30 D11, Approval of Agreement (CO 00-073) between the City of Rancho Cucamonga and Verizon (formerly GTE) to Underground existing Overhead Utilities along Hermosa Avenue from 4th Street to 350 feet south of 8 h Street. RESOLUTION NO. 00-215 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY AND VERIZQN (FORMERLY GTE) TO UNDERGROUND EXISTING OVERHEAD UTILITIES ALONG HERMOSA AVENUE FROM 4TM STREET TO 350 FEET SOUTH OF 8TM STREET City Council Minutes October 18, 2000 Page 4 D12. Approval and execution of Program Supplement No. 002-M1 to Administering Agency-State Agreement No. 08-5420 between the City of Rancho Cucamonga and State of California to provide funding for preliminary engineering, construction and construction engineering to expand the parking and south loading platform at the City's Metrolink Station at the southwest corner of Milliken and the AT&SF Railroad. RESOLUTION NO. 00-216 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AUTHORIZING THE EXECUTION AND SIGNING OF PROGRAM SUPPLEMENT NO. 002-M1 TO ADMINISTERING AGENCY-STATE AGREEMENT NO. 08-5420 BETWEEN THE CITY OF RANCHO CUCAMONGAAND THE STATE OF CALIFORNIA TO PROVIDE FUNDING FOR PRELIMINARY ENGINEERING, CONSTRUCTION AND CONSTRUCTION ENGINEERING TO EXPAND THE PARKING AND SOUTH LOADING PLATFORM AT THE CITY'S METROLINK STATION LOCATED AT THE SOUTHWEST CORNER OF MILLIKEN AVENUE AND THE AT&SF RAILROAD D13. Approval of Improvement Agreement Extension for Parcel Map 15234, located on the north side of Seventh Street, between Utica and Toronto, submitted by Joy's For Us, Inc. RESOLUTION NO. 00-217 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING IMPROVEMENT AGREEMENT EXTENSION AND IMPROVEMENT SECURITY FOR PARCEL MAP 15234 D14. Approval to accept Improvement, release the Faithful Performance Bond, and file a Notice of Completion for Improvements for CUP 9741, submitted by David Delrahim, located on the southwest corner of Hermosa Avenue and Arrow Route. RESOLUTION NO. 00-218 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE PUBLIC IMPROVEMENTS FOR CUP 9741 AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D15. Approval to accept the FY 1999/2000 Local Street Rehabilitation Slurry Seal, Contract No. 00- 109 as complete, release the Bonds and authorize the City Engineer to file a Notice of Completion and approve the Final Contract amount of $210,036.91. RESOLUTION NO. 00-219 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO. CUCAMONGA, CALIFORNIA, ACCEPTING THE PUBLIC IMPROVEMENTS FOR FY 199912000 LOCAL STREET REHABILITATION SLURRY SEAL, CONTRACT 00-019, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK City Council Minutes October 18, 2000 Page 5 D16. Approval to accept Improvements, release the Faithful Performance Bond, and file a Notice of Completion for Improvements for DR 95-33, submitted by Arrow Center L..L.C., located south of Arrow Route and east of White Oak. RESOLUTION NO. 00-220 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE PUBLIC IMPROVEMENTS FOR DR 95-33 AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK MOTION: Moved by Dutton, seconded by Biane to approve the staff recommendations in the staff reports contained within the Consent Calendar. Motion carried unanimously 5-0. E. CONSENT ORDINANCES No Items Submitted. F, ADVERTISED PUBLIC HEARINGS F1. ANNEXATION 00-01 - CITY OF RANCHO CUCAMONGA - A request to approve annexation of an approximately 504+/- acre portion of San Bemardino County unincorporated area generally located north of Highland Avenue between Hanley Avenue and Rochester Avenue - APN: (see attached description). Staff report presented by Sal Salazar, Associate Planner. He referred to two letters of opposition to the annexation from Mrs. Knight and Mr. Lakos which are on file in the City Clerk's office. Mayor Alexander opened the meeting for public hearing. Addressing the City Council were: Ben Anderson, UCP in Ariahelm, stated with staffs help they were able to get this project to this point. He added they are in favor of staffs recommendation. John Lyons, Etiwanda, stated he supports the project. He felt this project is what will help to extend Banyan from Rochester to Day Creek. He felt this was a good plan. He thanked Councilmembers Dutton and Biane for their help on this project. He also urged everyone to vote for them in November. John Golden, Etiwanda School District, stated they support this annexation. There being no further response, the public hearing was closed. Councilmember Biane wanted to thank the Etiwanda School District, County Supervisor Jon MikeIs, City Staff and the applicant for pulling together on this. Councilmember Dutton stated he echoed Councilmember Biane's comments. City Council Minutes October 18, 2000 Page 6 RESOLUTION NO. 00-221 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING ANNEXATION 00-01 (LAFCO 2864) AND ORDERING TERRITORY ANNEXED TO THE CITY OF RANCHO CUCAMONGA MOTION: Moved by Dutton, seconded by Biane to approve Resolution No. 00-221. Motion carried unanimously 5-0. F2. ADDENDUM TO ENVIRONMENTAL IMPACT REPORT AND SUBAREA 18 SPECIFIC PLAN AMENDMENT 00-01 - JPI - A request to add multi-family residential as a permitted use in the Mixed Use Planning Area IX of the Subarea 18 Specific Plan, located on the northwest corner of 6th Street and Mifiiken Avenue. An Environmental Impact Report (EIR) was previously certified in June 1994. An addendure to the EIR is being prepared to allow multiple-family residential uses as an additional permitted use in Planning Area IX. The addendum is being prepared in compliance with the California Environmental Quality Act (CEQA) -APN: 290 272 !7 209-272-17. Staff report by Doug Fenn, Associate Planner. Mayor Alexander opened the meeting for public hearing. Addressing the City Council was: Chuck Buquet, Charles Joseph Associates, stated he represents the applicant, JPI. He talked about the addendure and stated it would do. He stated this is a very high quality use and that the design has been enhanced. He also introduced Jeff Kudlac, representing General Dynamics. Mr. Kudlac, General Dynamics, thanked staff, the Planning Commission and the City Council for their work on this project. There being no further comments, the public hearing was closed. Councilmember Williams stated quality has been an issue with this project and felt it would now be quite unique. She stated she is hoping that people living in this facility can be encouraged to start their businesses in Rancho Cucamonga. She felt it would be very handy for them to start a business near this project. She felt bus service to the Metrolink station would help to accomplish this. Debra J. Adams, City Clerk, read the title of Ordinance No. 638. ORDINANCE NO. 638 (first reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO GUGAMONGA, CALIFORNIA, APPROVING SUBAREA 18 SPECIFIC PLAN AMENDMENT 00-01, TO ADD MULTI-FAMILY RESIDENTIAL AS A PERMITTED USE IN THE MIXED USE PLANNING AREA IX OF THE SUBAREA 18 AND MAKING FINDINGS IN SUPPORT THEREOF MOTION: Moved by Williams, seconded by Biane to waive full reading and set second reading of Ordinance No. 638 for November 1, 2000. Motion carried unanimously 5-0. City Council Minutes October 18, 2000 Page ? F3. CONSIDERATION OF A RESOLUTION FORMING AND ESTABLISHING COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHQ CUCAMONGA CORPORATE PARK) AND AUTHORIZING SUBMITTAL OF A LEVY OF SPECIAL TAXES TO THE QUALIFIED ELECTORS, AND CONSIDERATION OF A RESOLUTION DECLARING NECESSITY TO INCUR BONDED INDEBTEDNESS AND SUBMITTING PROPOSITION TO QUALIFIED ELECTORS Mayor Alexander stated this is the time and place for two concurrent public hearings relating to the formation of Community Facilities District No. 2000-02 (Rancho Cucamonga Corporate Park). He added these public hearings relate to the formation of the proposed community facilities district and the authorization to levy special taxes within such district and to incur a bonded indebtedness to pay for the acquisition of authorized public facilities. He asked the City Clerk to report on the notice of the public hearings and for staff to give their report following the City Clerk. Debra J. Adams, City Clerk, stated that notice of public hearing has been given in the form and manner as required by law and a Certificate of Compliance is on file relating to the Publication of Notice of Intention to form Community Facilities District and authorize the levy of a special tax; and Publication of Notice of Hearing to Incur Bonded Indebtedness. Staff report presented by Duane Baker, Assistant to the City Manager. He asked that the voting on the Resolutions do not occur until the next meeting in order to complete some business with CCWD. Mayor Alexander opened the meeting for public hearing. Pare Steel, Catellus Development, stated she was present if there were any questions. RESOLUTION NO. 00-222 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, FORMING AND ESTABLISHING COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AND AUTHORIZING SUBMITTAL OF A LEVY OF SPECIAL TAXES TO THE QUALIFIED ELECTORS RESOLUTION NO. 00-223 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, DECLARING NECESSITY TO INCUR A BONDED INDEBTEDNESS, SUBMITTING TO THE QUALIFIED ELECTORS OI~ COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMQNGA CORPORATE PARK) A PROPOSITION TO INCUR A BONDED INDEBTEDNESS SECURED BY A SPECIAL TAX LEVY TO PAY FOR CERTAIN CAPITAL FACILITIES IN COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AND A PROPOSITION TO ESTABLISH AN APPROPRIATIONS LIMIT FOR SUCH DISTRICT, AND GIVING NOTICE THEREON MOTION: Moved by Curatalo, seconded by Biane to continue the item to November 1, 2000, 7:00 p.m. in the Council Chambers located at 10500 Civic Center Drive, Rancho Cucamonga. Motion carried unanimously 5-0. City Council Minutes October 18, 2000 Page 8 No Items Submitted. G. PUBLIC HEARINGS H1. UNIVERSITY FOUNDATION, CALIFORNIA CENTER FOR CHILDHOOD INJURY PREVENTION, FOR A GRANT IN THE AMOUNT OF $6,000 TO CONDUCT COMMUNITY EDUCATION PROGRAMS TO PREVENT/REDUCE ACCIDENTS AT OUR SKATE PARK FACILITY. (FISCAL YEAR 2000-2001 ). H. CITY MANAGER'S STAFF REPORTS APPROVAL TO APPROPRIATE FUNDS RECEIVED FROM THE SAN DIEGO STATE Staff report presented by Paula Pachon, Management Analyst III. MOTION: Moved by Biane, seconded by Curatalo to approve staffs recommendation. Motion carried unanimously 5-0. I. COUNCIL BUSINESS I1. PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE ACTION: Report received and filed. ****** J. IDENTIFICATION OF ITEMS FOR NEXT MEETING No items were identified for the next meeting. K. COMMUNICATIONS FROM THE PUBLIC No communication was made from the public. L, ADJOURNMENT MOTION: Moved by Curatalo, seconded by Williams to adjourn. Motion carried unanimously 5-0. The meeting adjourned at 8:20 p.m. Respectfully submitted, Approved: * Debra J. Adams, CMC City Clerk " ~ CITY OF RANCHO CUCAMONGA LIST OF WARRANTS FOR PERIOD~ 10-25-00 (00/01) RUN DATE: 10/25/00 PAGE: 1 VENDGR NAME ITEM DESCRIPTION WARR NO WARR. AMT. 1516 STOVER SEED COMPANY 32056 HILLSIDE COVE 469 MCVEY~ MARCIA 235 OWEN ELECTRIC 31877 HILLSIDE/SAPPHIRE VENTURES~ LTD. ,.~ CHECK~ OVERLAP LANDSCAPE SUPPLIES ~ 153458 {{{ 153459 - 157259 REIMBURSEMENT OF OVBRPMT. 157260 {<< 157261 - 157303 RECREATION 157304 {<{ 157305 - 157322 MAINTENANCE SUPPLIES ~ 157323 {<{ 157324 - 157399 MASTER PLAN STORM DRAIN REIMB. 157400* {<{ 157401 - 157403 2,311.24- 45,073.82- 76.00- 556.89- 45,073.82 10 A & R TIRE SERVICE VEHICLE MAINTENANCE # 157404 5,967.71 3785 ACTION ART RECREATION SUPPLIES # 157405 2,824.40 668 ADAMS III, ALDEN RECREATION REFUND 157406 30.00 6353 ADAPT CONSULTING, INC. MAINTENANCE SUPPLIES 157407 2.144~73 5509 AIR CONTROLLED ENVIRONMENTS PROFESSIONAL SERVICES 157408 268.85 684 ALCALA~ DAVID RECREATION REFUND # 157409 540.00 594 ALLEN-HOLMES, LISA RECREATION SUPPLIES # 157410 43.00 e73 ALPHAGRAPHICS OFFICE SUPPLIES 157411 53.62 2693 AMTECH ELEVATOR SERVICES MONTHLY SERVICE 157412 154.50 635 ANDERSON, LA DONNA ANNUAL MAINTENANCE AGREEMENT 157413 55.00 596 ANDMEWS, MELISSA RECREATION REFUND 157414 IO0. OO 5807 ARCHITERRA DESIGN GROUP PROFESSIONAL SERVICES ~ 157415 1,764.00 667 ARROWHEAD CREDIT UNION VISA MONTHLY BILLINGS # 157418 5,156. 05 5954 ARTISTAS PACIFIC MAINTENANCE SUPPLIES 157419 450.00 4782 ASBURY ENVIRONMENTAL SERVICES PROFESSIONAL SERVICES # 157420 345.21 4805 ASCE MEMBERSHIP STORMWATER PERMIT COMPLIANCE 157421 170. O0 6255 ASSI SECURITY MAINTENANCE SUPPLIES 157422 135. O0 26 ASSOCIATED ENGINEERS PROFESSIONAL SERVICES 157423 793. O0 2437 ASSOCIATED GROUP MONTHLY MAINTENANCE SERVICE 157424 2,150.19 402 AUTO RESTORATORS VEHICLE MAINTENANCE 157425 64.00 665 AVELS, ISABEL RECREATION REFUND 157426 38.50 4102 B & K ELECTRIC WHDLESALE MAINTENANCE SUPPLIES # 157427 772. 71 6747 B AND R AUTO SERVICE BUSINESS LICENSE REFUND # 157428 760. 92 578 BAQRO~ CATHY RECREATION REFUND 157429 200.00 592 BAKER, SARAH INSTRUCTOR PAYMENT # 157430 43. 00 586 BARBERI~ TERRY RECREATION REFUND # 157431 38.00 660 BARKER, MARCIA RECREATION REFUND 157432 70.00 4475 BARNES & NOBLE LIBRARY SUPPLIES 157433 223.35 595 BATIZi VERONICA RECREATION REFUND 157434 119.00 661 BEARD, TRACY RECREATION REFUND 157435 35.00 6748 BEARINGS ~ DRIVES~ INC. MEMBERSHIP DUES 157436 51. O1 47 BELL ~t HOWELL PROFESSIONAL SERVICE 157437 240.00 669 BERGA, NICOLE MAINTENANCE REPAIRS 157438 80.00 4441 BEST BUY CO., INC. OFFICE SUPPLIES 157439 677.48 597 BIBS, DANA RECREATION REFUND 157440 42.00 579 SLAMS, dOYCE RECREATION REFUND 157441 200.00 4833 BOOKS ON TAPE~ INC. LIBRARY SUPPLIES # 157442 1,346.45 588 BOPP, ANNETTE BUSINESS LICENSE REFUND 157443 60.00 ~4699 BORDNER, MARBIB INSTRUCTOR PMT 157444 200.00 577 BOXER-NORTHWEST CO. RECREATION SOPPLIES 157445 32.85 CITY OF RANCHO CUCAMONgA LIST OF WARRANTS FOR PERIOD: 10-25-00 (O0/O1) RUN DATE: 10/25/00 PAGE: VENDOR NAME ITEM DESCRIPTION WARR NO WARR. ANT. ~ CHECK~ OVERLAP 662 BRACKEN~ NANCY RECREATION REFUND 157446 35.00 632 BRATIS~ CHARLENE RECREATION REFUND # 157447 30.00 636 BRAUN, EBONY RECREATION REFUND 157448 58.50 4369 BRODART BOOKS LIBRARY SUPPLIES ~ 157449 4,495 49 670 BROOKS~ MELANIE RECREATION REFUND 157450 36.00 591 BR90KS-MELVIN~ CATHI RECREATION REFUND # 157451 113.00 659 BROWN, JASON RECREATION REFUND 157452 35.00 5341 BUCKHAM & ASSOCIATES~ INC CONSULTANT SERVICES ~ 157453 5~952.60 2440 DURRUSO, LISA INSTRUCTOR PAYMENT 157454 36.00 4949 C L 0 U T REGISTRATION 157455 48.00 6545 CAFE JUSTICE REFUND PARKING CITATION 157456 589.93 1223 CALSENSE OFFICE/MAINTENANCE EQUIPMENT # 157457 666.11 634 CAMPBELL, JILL RECREATION REFUND 157458 55. 00 68 CENTRAL CITIES SIGNS, INC. MAINTENANCE SUPPLIES 157459 2,221.14 266 CERTIFIED AUTO CARE MEMBERSHIP DUES # 157460 5,966.69 638 CERVANTES, ~LENA RECREATION REFUND 157461 27. O0 664 CHANO, BETTY RECREATION REFUND 157462 40. O0 590 CHANG, CHIN RECREATION REFUND 157463 100.00 587 CHARRETTE, IRENE RECREATION REFUND 157464 15,00 8052 CHARTER COMMUNICATIONS ADVERTISINO FEE # 157465 2~021.08 488 CHEVRON U S A~ INC GASOLINE CHARGES 157466 137, 97 713 CH~CK'S SPORTINQ GOODS INC RECREATION SUPPLIES 157467 44,59 6095 CHILDCRAFT EDUCATION CORP, RECREATION REFUND 157468 33.46 631 CIMINO, LISA RECREATION REFUND 157469 35.00 73 CITRUS MOTORS ONTARIO~ INC. VEHICLE MAINTENANCE/SUPPLIES # 157470 3,865.54 74 CITY RENTALS EGUIPMENT RENTAL/SUPPLIES ~ 157471 770.61 2470 COLTON TRUCK SUPPLY VEHICLE MAINTENANCE SUPPLIES 157472 77.78 6397 COMMISSION FOR SOUTHQATE YOUTH RECREATION REFUND 157473 90, O0 4119 COMPETITIVE EDGE CYCLERY EQUIPMENT REPAIR # 157474 85.89 <<< 157475 - 157477 SIGNAL MAINTENANCE/SUPPLIES # 157478 -COMPUTER MAINTENANCE/SUPPLIES # 157479 RECREATION REFUND 157480 RECREATION REFUND 157481 130 COMPUTER SERVICE CO 12,091.72 643 COMPUTERLAND 406.16 582 CgNTRERAS~ MARTHA 66.00 584 CORNELISON~ DEMISE 200. O0 <<<l 157482 - 85 CUCAMONGA CO WATER DIST MONTHLY WATER BILLINGS # 589 CURTIS, PAT RECREATION REFUND 580 CUSICK, SUE RECREATION REFUND i05 DAN GUERRA & ASSOCIATES CONTRACT SERVICES 1, .~1243 DASHER~ ERIN RECREATION REFUND 673 DE LOA~ STELLA RECREATION REFUND 36~8 DEALERS AUTO TRIM VEHICLE MAINTENANCE 12~0 DEER CREEK CAR WASH VEHICLE MAINTENANCE/SUPPLIES 676 DEHENAUI STACY RECREATION REFUND 4641 DEL MECHANICAL SERVICE ~ REPAIR 674 DELYSER, MSNIKA RECREATION REFUND 5809 DIETERICH-POST COMPANY OFFICE SUPPLIES 5968 DINELEY, TOM INSTRUCTOR PAYMENT 6467 DLT SOLUTIONS, INC. REIMD MASTER PLAN STORM DRAIN 8, 6474 DOOR HARDWARE SERVICES MAINTENANCE SERVICE/SUPPLIES 677 DORHAM, THOMAS RECREATION REFUND 157488 157489 157490 157491 1574~2 157493 # 157494 157495 902.74 90.00 82.50 114.50 16.00 125.00 45, O0 45.50 120.00 354.14 60.00 166.89 596.00 149.13 387.62 36.00 7 CITY OF RANCHO CUCAMONGA LIST OF WARRANT5 FOR PERIODz 10-25-00 (00/01) VENDOR NAME ITEM DESCRIPTION WARR NO WARR, AMT, ~ CHECK~ OVERLAP 678 DWORKIN, ROBERT RECREATION REFUND 157505 4205 DYNAMIC QRAPHICS, INC. OFFICE EQUIPMENT 157506 58.95 6716 ECONOMICS PRESS, INC,~ THE SUBSCRIPTION 157507 79,92 3614 ELITE TOWINS TOWINS SERVICE 157508 50.00 679 ENENARK~ KATHY RECREATION REFUND 157509 70.00 5262 EVANS SPORTiNS OOODS RECREATION SUPPLIES 157510 2,614, 62 229 EWiNO IRRIQATION PRODUCTS IRRIQATION SUPPLIES ~ 15751i 8~388.46 672 EXPECT A LOT SIGNS RECREATION REFUND 157512 350.00 324 FAN, LIN RECREATION REFUND 157513 27.50 680 FAUST, CHERI RECREATION REFUND 157514 30. 00 681 FERNANDES~ ANGELICA RECREATION REFUND 157515 35. O0 155 FILARSKY ~ WATT CONTRACT SERVICES 157516 467, 50 4371 FISHER SCIENTIFIC MAINTENANCE SUPPLIES 157517 178.61 683 FISHER~ DORIS RECREATION REFUND # 157518 65. 00 685 FLAMMANQ~ AMY RECREATION REFUND # 157519 60, O0 5351 FOOTHILL AUTO BODY VEHICLE MAINTENANCE 157520 748, 6746 ~. C. S. WESTERN POWER EQUIPMENT VEHICLE E~UIP/MAINT. ~ 1575~1 316.93 686 OARCIA~ ARMANDO MAINTENANCE SUPPLIES 157522 65.00 3356 ~ARCIA~ VIVIAN MILEAOE REIMBURSEMENT 157523 21.78 5502 OIORDANO~ MARIANNA INSTRUCTOR PAYMENT 157524 150. O0 1845 OONSALVES & SON, DOE A. LEOISLATIVE SERVICES 157525 687 ~ONZALES, JOLYNN RECREATION REFUND 1575~6 38. O0 41~61 OONZALEZ~ HAZEL RECREATION REFUND 157527 56,00 3827 QREEN ROCK POWER EQUIPMENT MAINTENANCE SUPPLIES # 157528 385,71 688 ~URULE~ ROB OCE MACHINE MAINTENANCE 157529 80. O0 689 QUTIERREZ~ MARIO RECREATION REFUND 157530 29. O0 690 QUZMAN, MARTHA RECREATION REFUND # 157531 49, O0 6383 H.V, CARTER CO. BUSINESS LICENSE REFUND ~ 157532 237.34 563 HACKLEY, SUSAN MAINTENANCE SUPPLIES 157533 55.00 559 HAQES~ SHANNON RECREATION # 157534 65,00 146 HAINES 8~ COMPANY~ INC. 12 MONTH LEASE SERVICE 157535 243.40 598 HAMMOND~MASINQ AND CLIFFORD REFUND OF OVERPAYMENT 157536 21308, 5699 HARALAMBOS BEVERAQE COMPANY RECREATION SUPPLIES 157537 314.05 462 HCS-CUTLER STEEL CO, EQUIPMENT MAINTENANCE 157538 62.67 2256 HI-LINE ELECTRIC COMPANY MAINTENANCE EQUIPMENT 15753~ 524. 4845 HILLSIDE COMMUNITY CHURCH MONTHLY RENT 157540 1~000.00 4516 HIRED GUN EXTERMINATINQ, INC. PROFESSIONAL SERVICE 157541 1467 HOBART CORPORATION MAINTENANCE SUPPLIES # 157542 143.71 158 HOLLIDAY ROC~ CO., INC, MAINTENANCE SUPPLIES # 157543 1~590.06 557 HOLMES~ STACY RECREATION 157544 87.50 1234 HOSEMAN MAINTENANCE SUPPLIES ~ 157545 39.21 3634 HOUSE OF RUTH 93/94 CDB~ CONTRACT 157546 633.00 161 HOYT LUMBER CO., S.M. MAINTENANCE SUPPLIES # 157547 261.61 651 HUMPHREY~ KAREN RECREATION 157548 15,00 495 HYDRO-SCAPE PRODUCTS~ INC LANDSCAPE MAINTEAANCE SUPPLIES # 157549 3736 INLAND EMPIRE SOCCER REFEREE ASSN. MEN~S SOCCER PROSRAM # 157550 6~251.00 6859 INLAND MAILINS SERVICES~ INC. RECREATION REFUND 157551 326.88 4718 INLAND TOP SOIL MIXES MAINTENANCE SUPPLIES 157552 107.75 92 INLAND VALLEY DAILY BULLETIN SUBSCRIPTIONS # 157553 309,92 122 INLAND VALLEY DAILY BULLETIN ADVERTISINQ 157554 391.20 2315 INLAND WHOLESALE NURSERY MAINTENANCE SUPPLIES # 157555 463.33 CITY OF RANCHO CUCAMONQA LIST OF WARRANTS FOS PERIOD~ 10-25-00 {00/01) RUN DATE: 10/25/00 PAQE: 4 VENDOR NAME ITEM DESCRIPTION WARR NO WARR, AMT. ~.~ CHECR~ OVERLAP 3452 INTRAVAIA ROCK & SAND MAINTENANCE SUPPLIES 157556 30.00 5147 IRRIQATION ASSOCIATION SAFETY TRAININS 157557 280. 00 5616 ISA MEMBERSHIP 157558 135.00 544 IZHAR~ QILLIAN RECREATION 157559 80.00 564 JAC~SON~ QINA RECREATION # 157560 47. O0 1941 JACOBSEN DIVISION OF TEXTRON~ INC. MAINT SUPPLIES # 157561 256.08 612 JAESCHKE INC.~ C+R. VEHICLE MAINTENANCE 157568 46.78 567 JAMES, VERONICA RECREATION # 157563 45.00 658 JAWOROWSKI~ SANDRA MILEAQE REIMBURSEMENT 157564 25.35 257 JENSEN PRECAST MAINTENANCE SUPPLIES 157565 2~756.98 6565 JSHNSON~ CHARLOTTE SUBSCRIPTION RENEWAL 157566 950.00 573 JONES~ CYDNEY RECREATION 157567 90.00 470 JONES~ RA~UEL RECREATION 157568 11.00 179 KAISER FOUNDATION HEALTH PLAN MEDICAL INSURANCE 157569 35~040+29 4822 KARATSU~ ROBERT REIMBURSEMENT 157570 558 KAYLOR~ JENNIFER RECREATION 157571 48.00 543 KEDQIOR~ JULIE RECREATION 157572 7.00 656 KEEHN~ DEBBIE RECREATION 157573 35,00 4128 kELLY E~UIPMENT VEHICLE SUPPLIES 157574 210+05 2220 KELLY PAPER COMPANY PAPER SUPPLIES # 157575 15+80 5894 KELLY, KRISTY RECREATION 157576 310,00 599 KEY ZONE ENTERPRISES RELEASE OF DAMAQE DEPOSIT 157577 500,00 6090 KQNQ, SOPHAK BUSINESS LICENSE REFUND 157578 480. O0 4982 KDRANDA CONSTRUCTION C.D,B. Q. # 157579 654 KREINHEDER~ CHARMAINE RECREATION 157580 48.00 1075 LAB SAFETY SUPPLY MAINTENANCE SUPPLIES 157581 171.00 4242 LAIDLAW TRANSIT~ INC. TRANSPORTATION SERVICES 157582 540,89 193 LAIRD CONSTRUCTION CO PROFESSIONAL SERVICES 157583 126,767.74 339 LAM~ JACK LEASUE MEETINS 157584 30. 69 551 LAMBELL~ CHRIS RECREATION 157585 42. 50 321 LANDSCAPE WEST~ INC, LANDSCAPE MAINTENANCE # 157586 115~942.61 575 LASHER~ CYNTHIA RECREATION 157587 55. O0 849 LAWSON PRODUCTS~ INC. MAINTENANCE SUPPLIES # 157588 1~026.35 197 LEASUE OF CALIFORNIA CITIES ANNUAL DUES 157589 280.00 i97 LEASUE OF CALIEORNIA CITIES ANNUAL DUES 157590 100.00 574 LEWIS~ ~UELYNN RECREATION # 157591 38.00 568 LEYVA~ CINDY RECREATION ~ 157592 50.00 5274 LITTLE BEAR PRODUCTIONS QRAPHIC DESIQNER 157593 107.00 548 LIZASUAIN~ KRISTEN RECREATION 157594 40.00 1455 LONQ'S DRUQS FILM PROCESSINS 157595 17.49 3156 LU'S LIQHTHOUSE, INC. OIL ANALYSIS # 157596 133, 57 541 LUNA~ SALVADOR RECREATION 157597 10.00 3987 M M A S C C/O QRADUATE CENTER FOR MEMBERSHIP DUES # 157598 150.00 671 MAC CALLUS, LINDA RECREATION REFUND 157599 55,00 7164 MANELA, ROSARiO REFUND PEPS DEDUCTION 157600 32.29 {{< 157601 - 157601 MARIPOSA HORTICULTURAL ENT. INC. LANDSCAPE MAINTENANCE # 157602 93~630. 54 MARK CHRIS~ INC. VEHICLE MAINTENANCE SUPPLIES ~ 157603 179.36 MARSHALL PLUMBINS REHA~, PROSRAM # 157604 1~168.86 MARTIN, SYLVIA RECREATION 157605 66.00 MARTINEZ TOWINS AND AUTOMOTIVE TOWINS SERVICES # 157606 260,00 CITY OF RANCHO CUCAMONGA LIST OF WARRANTS FOR PERIOD: 10-25-00 (00/01) RUN DATE: 10/25/00 PAGE: VENDOR NAME ITEM DESCRIPTION WARM NO WARM. AMT. 535 MARTINEZ, LISA 562 MATHAHS, DANA 554 MATHEWS, CRYSTAL 387i MATT'S HARDWARE 5283 HAYER, COBLE & PALHER 566 NCCAUQHAN, PATRICK 5&l MCOINN, PATRICK 6032 MCQRUFF SAFE KIDS 550 MCKEE, OLIVIA 46e MCVEY, MARCIA 556 MEDINA, OLIVIA 546 MELAYA~ SONIA 5852 MIDWEST TAPE 560 MILANES~ MARIA 553 MILLER, JOANNE 657 MILLER, SEVIM 4374 MOBILE STORAGE QROUP, INC. 842 MOUNTAIN VIEW SMALL ENG. REPAIR 3316 MR T'S 24-HR. TOWING 648 NUNDT, PAMELA 2248 NAPA AUTO PARTS 6687 NATION'S RENT 744 NATIONAL DEFERRED 593 NATIONAL NOTARY ASSOCIATION 4752 NBTMANAQE~ INC. 2548 NIGRD~ ANDREE' 655 NIKONCHUK, ANNA 433 NIXON-EQLI EGUIPMENT 712 NORRIS-REPKE, INC. 4853 OCLC, INC. 523 OFFICE DEPOT 5403 OFFICE MAX 6584 OLIVA, PHILIP 6722 OPEN APPS 1824 ORIENTAL TRADINQ 547 ORWIO, DOLLS 4904 OTT, LAURA 235 OWEN ELECTRIC 1441 PACIFIC BELL 5343 PACIFIC PLUMBINS SPECIALTIES 2592 PAQENTRY PRODUCTION 4223 PAPER DIRECT~ INC. 818 PARAQON BUILDINS PRODUCTS INC. 536 PARAMOUNT~ CITY OF 653 PEARSON~ DANA 757 PEP BOYS 5720 PERVO PAINT CO. 6205 PETERMAN LUMBER 6672 PETERS~ TAD 6211 pIONEER-STANDARD ELECTRONICS INSTRUCTOR PAYMENT RECREATION RECREATION MAINTENANCE SUPPLIES PROFESSIONAL SERVICE RECREATION RECREATION RECREATION REFUND RECREATION RECREATION MAINTENANCE SUPPLIES RECREATION LIBRARY SUPPLIES RECREATION RECREATION RECREATION EQUIPMENT RENTAL MAINTENANCE SUPPLIES TOWINQ RECREATION VEHICLE MAINTENANCE SETTLEMENT OF CLAIM DEFERRED COMP NNA MEMBERSHIP DUES MAINTENANCE SUPPLIES REINS. PLAYSCHOOL SUPPLIES RECREATION VEHICLE MAINTENANCE CONSULTINO SERVICES CORE SERVICES CHARQES <Z<< OFFICE SUPPLIES OFFICE SUPPLIES RECREATION REFUND RECREATION REFUNDS MAINTENANCE SUPPLIES RECREATION INSTRUCTOR SNR. EXERCISE CLASS MAINTENANCE SUPPLIES MAINTENANCE SUPPLIES MAINTENANCE SUPPLIES RECREATION EVENTS RECREATION SUPPLIES CONCRETE SUPPLIES REIMBURSEMENT RECREATION VEHICLE MAINTENANCE SUPPLIES MAINTENANCE SUPPLIES EARTHQUAKE PREPAREDNESS KIT RECREATION REFUND RECREATION REFUND ** CHECK~ OVERLAP 157607 125.00 157608 36.00 157609 74.37 157610 19.21 157611 25.00 157612 145. O0 # 157613 31.00 157614 2,199.00 157615 24.75 1576i6 65.00 157617 185.00 157618 240.00 ~ 157619 237.86 157620 29.00 157621 180. O0 157622 40.00 157623 135.34 ~ 157624 11~.39 ~ 157625 170.00 157626 35.00 ~ 157627 623.14 CITY OF RANCHO CUCAMSNQA LIST OF WARRANTS FOR PERIOD: I0-25-00 (00/01) RUN DATE: 10/25/00 PAGE: 6 VENDOR NAME ITEM DESCRIPTION WARR NO WARR. AMT. ~ CHECK~ OVERLAP 6148 PIRON~ SHAUN CONTRACT SERVICES 157660 198.00 255 PUMA DISTRIBUTINO CO VEHICLE MAINTENANCE & SUPPLIES # 157661 14,573.13 3952 POMONA INL VALLEY CNCL OF CHURCHES WEST END HUNSER PROSRAM 157662 465.75 1049 POMONA VALLEY KAWASAKI VEHICLE MAINTENANCE SUPPLIES # 157663 1,870,50 652 PORTKA~ TRACEE RECREATION 157664 36.50 693 POWERSTRIDE BATTERY CO., INC. VEHICLE MAINTENANCE SUPPLIES 157665 489.94 S68 PRECISION WELDING OF RIALTO MAINTENANCE SUPPLIES 157666 75.00 6399 PREMIER PERSONNEL RECREATION REFUND 157667 799.20 422 PRINTING RESOURCES SUPPLIES 157668 137.92 65 PRUDENTIAL OVERALL SUPPLY MAINTENANCE SUPPLIES # 157669 26.23 649 QUEZADA, MANUEL RECREATION 157670 48,00 ~ 157671 - 157671 251 R ~ R AUTOMOTIVE VEHICLE MAINT, SUPPLIES&SERVICE # 157672 4,328,62 1890 R & R LIGHTING MAINTENANCE SERVICE/SUPPLIES 157673 112.84 959 RADIO SHAC~ ACCOUNTS RECEIVABLE BUSINESS LICENSE REFUND 157674 206.44 11862 RAGAN C0MMUNICATIONS SUBSCRIPTION 157675 129.00 618 RAMIREZ, ANITA RECREATION REFUND 157676 10.00 70 RANCHO CUCAMONGA CHAMBER MEMBERSHIP MEETING 157677 20.00 5.174 RANCHO CUCAMONGA FAMILY YMCA PROGRAM ASSISTANCE PROGRAM 157678 500.00 8857 RAUL~S AUTO TRIM, INC. VEHICLE SEPAIRS 157679 198.88 5665 REGULATION COMPLIANCE, INC, TRAINING SERVICES ~ 157680 4,089. 05 6049 REMODELINS STORE~ THE BUSINESS LICENSE REFUND 157681 149.98 5914 REXEL CALCON ELECTRICAL SUPPLIES ELECTRICAL SUPPLIES 157682 ~25.~0 443 RHI CONSULTING PROFESSIONAL SERVICE # 157683 3,360.00 5618 RICHARDSo WATSON, & SERSHON LEGAL SERVICES ~ 157684 10,996,29 528 RIDGELINE ROOFING ROOFING REHAB 157685 5,000.00 617 RITZ-MONTSYA, KYM RECREATION REFUNDS 157686 67.50 876 RIVERSIDE BLUEPRINT PRINTS ~ 157687 311.21 3314 ROBINSON FERTILIZER LANDSCAPE SUPPLIES # 157688 6~365.03 626 RUBLES, RAUL P., SR. TIRE REPAIR # 157689 111.00 619 RODRIQUEZ~ YASMIN RECREATION REFUND ~ 157690 30.00 6673 RUTH STAFFINQ COMPANIES~ INC RECREATION REFUND # 157691 2,730,00 5538 SAN ANTONIO MATERIALS MAINTENANCE SUPPLIES 157692 155.06 214 SAN BERN COUNTY MONTHLY SERVICE 157693 455.99 581 SAN BERN COUNTY CAL-ID PROGRAM 157694 55.00 581 SAN BERN COUNTY CAL-ID PROGRAM # 157695 301 SAN BERN COUNTY SHERIFFS CONTRACT SHERIFFS SERVICE ~ 157696 850,524.00 301 SAN BERN COUNTY SHERIFFS CONTRACT SHERIFFS SERVICE 157697 176.16 152 SAN DIEQO ROTARY BROOM CO, INC MAINT SUPPLIES ~ 157698 633.58 621 SANDOVAL~ ERMA RECREATION REFUNDS 157699 115.00 697 SANDOVAL~ JERRY A TUITION REiMB 157700 74.00 622 SCHLEIF, ISABEL RECREATION REFUND 157701 26.00 623 SCHLESIN~ER~ ROBERT RECREATION REFUND 157702 200.00 624 SCHULTZ~ DIANE RECREATION REFUNDS 157703 54.00 625 SEALS, TIMOTHY RECREATION REFUNDS 157704 15.00 3896 SENECHAL~ CAL INSTRUCTOR PAYMENT ~ 157705 1829 SHARED TECH. FAIRCHILD TELECOM, INC TELEPHONE SERVICES ~ 157706 351.00 627 SHEA~ MARY RECREATION REFUND 157707 63.00 ~ 628 SKO~, SHARON RECREATION REFUNDS 157708 43. 50 1327 SMART ~ FINAL DAY CAMP SUPPLIES ~ 157709 562. 135 SO CALIF MUNICIPAL ATHLETIC PED, INC REGISTRATION 157710 235.00 CITY OF RANCHO CUCAMONOA LIST OF WARRANTB FOR PERIOD: 10-25-00 (00/01) RUN DATE: 10/25/00 PAGE: 7 VENDOR NAME ITEM DESCRIPTION WARR NO WARR, AMT. ~ CHECK# OVERLAP 1909 SO CALIF SCHOOL 8AND ~ ORCHESTRA RECREATION EVENTS 157711 1,600.00 {<{ 157712 - 187715 i432 SOUTHERN CALIFORNIA EDISON MONTHLY ELECTRIC BILLS ~ 157716 4,240.10 3432 STEELWORKERS OLDTIMERS FOUNDATION OLDTIMERS FOUNDATION 157717 708.33 5281 STERICYCLE, INC, SHARPS PROGRAM ~ 157718 138.82 i5i~ STOVER SEED COMPANY LANDSCAPE SUPPLIES ~ 157719 6,104,04 6355 SUNOARD BI-TECH INC. REIMBURSE FOR EAP WORKSHOP # 157720 1~811.35 5410 T ~ D INSTALLATIONS SUPPLIES ~ 157721 3,554.72 3735 TANNER, O.C, EMPLOYEE SERVICE AWARDS 157722 212.65 2344 TARGET YOUTH PROGRAM ~ DAY CAMP SUPPL ~ 157723 99.10 836 TAROET SPECIALTY PRODUCTS MAINT SUPPLIES # 157724 8,990. 639 TAYLOR, dUDITH RECREATION REFUND 157725 58.00 6159 TECHNOLOOY SERVICES CONSULTING GRP BUSINESS LICENSE REFUND # 157726 5,257.36 3942 TERMINIX INTERNATIONAL MONTHLY PEST CONTROL SERVICE # 157727 615.00 209 THOMPSON PUBLISHING GROUP SUDSCRIPTION 157728 325.00 629 THOMPSON~ TERI RECREATION REFUND 157729 60.00 6699 TIME-LIFE EDUCATIONi INC. PLANTS 157730 288.3~ 4351 TOBIN, RENEE RECREATION REIMBURSEMENT, 157731 14.02 615 TODD, WENDY RECREATION REFUND # 157732 76,00 lele TOMARK SPORTS INC. MAINTENANCE SUPPLIES ~ 157733 377.90 6244 TOOLS-R-US BUSINESS LICENSE REFUND 157734 26,82 640 TORREZ, NITA OFFICE SUPPLIES 157735 44.00 5238 TRANSAMERICAN SOIL LANDSCAPE SUPPLIES 157736 377.88 4448 TREADWAY GRAPHICS POLICE DEPT SUPPLIES 157737 65.00 4738 TRINITY DIVERSIFIED~ INC. SUPPLIES 157738 114.39 641 TRiNOR, ANNABELLE RECREATION REFUND 157739 24.00 642 TRONAAS, SUSAN RECREATION REFUND 157740 48.00 3388 TRUQREEN - LANDCARE REGIONAL PROFESSIONAL SERVICES # 157741 10~369.00 425 TWINS CLUB LUNCHEON MEETING 157742 300.00 2958 UMPS ARE US ASSOCIATION UMP SERVICES # 157743 3,532,00 4788 UNDERQROUND SVC. ALERT OF SO, CALIF UNDERGROUND SERVICE ALERT 157744 235.75 3437 UNIFIRST UNIFORM SERVICE UNIFORM SERVICES # 157745 563.71 4206 UNIGUE CREATIONS 1ST AID KITS # 157746 771.75 5601 UNIQUE MANAGEMENT SERVICES, INC. MANAGEMENT SERVICES 157747 276.07 6707 UNITED HORTICULTURAL SUPPLY REFUND DEPOSIT # 157748 1~260.68 1226 UNITED PARCEL SERVICE UPS SERVICE 157748 44.25 3844 UNITED RENTALS RENTAL # 157750 594.84 3141 VAN TECH MAINTENANCE SUPPLIES 157751 176.16 <<< 157752 - 157752 VERIZON CALIFORNIA MONTHLY TELEPHONE BILLINGS ~ 157753 3,118,17 VERIZON WIRELESS BUSINESS LICENSE REFUND 157754 163.79 VIDEO LANGUAGE PRODUCTS VIDEO SUPPLIES 157755 1$.48 VISTA PAINT MAINT SUPPLIES # 157756 933.58 WAMSLEY, DONNA REIMB LIBRARY SUPPLIES 157757 16.77 WAXiEi KLEEN-LINE CORP MAINT SUPPLIES ~ 157758 1,742.43 WEST END KIDS CLUB OF THE YMCA WEST END KIDS PROGRAM 157759 2,077,00 WEST END MATERIAL SUPPLY RECREATION REFUNDS 157760 WEST END YWCA RECOGNITION CELEBRATION 157761 WEST GROUP PUBLISHING 1577~2 98.32 WESTERN HIGHWAY PRODUCTS, iNC MAINT SUPPLIES 157763 2$8.72 WESTERN WHOLSALE MILEAGE REIMBURSEMENT 157764 15,448, 00 137 1103 213 5176 6727 4405 CITY OF RANCHO CUCAMONOA LIST OF WARRANTS FOR PE8IOD~ 10-~5-00 (00/01) RUM DATEI 10/25/00 PAOE; 8 VENDOR NAME ITEM DESCRIPTION WARR NO WARR. AMT. ~ CHECK~ OVERLAP 644 WHITINO~ LETiCIA RECREATION REFUND 157765 150.00 3080 WHITTIER FERTILIZER LANDSCAPE SUPPLIES 157766 247.83 ~i2 WILLDAM ASSOCIATES PROFESSIONAL SERVICES 157767 645 WILLIAMS~ SUNDEA RECREATION REFUND 157768 65.00 5838 WiRE CRAFTERS SUPPLIES 157769 646 WOOD~ SUE INSURANCE PREMIUM # 157770 400.00 6~7 WRi~HT~ PATTI MAINTENANCE SUPPLIES 157771 ~2,50 509 XEROX CORPORATION COPY MACHINE SUPPLIES/SERVICE ~ 157772 5658 XPECT FIRST AID SUPPLIES 157773 87.63 CITY OF RC IFAS (PROD) 11/02/00 C H E C K THU, NOV 02, 2000, 3:39 PM --req: JANSELMI--leg: GL JL--loc: Check Payee ID. Payee Name AP00161139 005243 ARLY SOUND AP00161140 000823 AP00161141 000085 AP00161142 003869 AP00161143 000824 AP00161144 000822 AP00161145 006381 AP00161146 000849 AP00t61147 000440 AP00161148 000319 AP00161149 000825 R E G I S T E R CHECK REGISTER Page 1 FINANCE---j ob: 8736 #S035 ...... prog: CK200 <l.37>--report id: CKREG--- Date Check Amount Type Subs Rel To Note 11/02/00 550.00 MW OH CC CARREON, MARY 11/02/00 CUC/LMONGA CO WATER DIST 11/02/00 DURO, KELLY 11/02/00 GRAN~DMA LOISES 11/02/00 HEAD FIRST 11/02/00 JUMp FOR FUN 11/02/00 LAWSON PRODUCTS INC 11/02/00 MS CASH DRAWER CORPORATION 11/02/00 SO CALIF GAS COMPANY 11/02/00 SONSATIONAL 11/02/00 GRAND TOTALS: Total Void Machine Written Total Void Hand Written Total Machine Written Total Hand Written Total Reversals Total Cancelled Checks GRAND TOTAL 300.00 MW OH CC. 2,365.10 MW OH 300.00 MW OH CC 600.00 MW OH CC 500.00 MW OH CC 464.00 MW OH CC 10,69 MW OH 40.39 MW OH 31.21 MW OH 3,350.00 MW OH CC 0.00 0.00 8,511.39 0.00 0.00 0.00 8,511.39 Number of Checks Processed: Number of Checks Processed: Number of Checks Processed: Number of Checks Processed: Number of Checks Processed: Number of Checks Processed: 0 0 0 0 0 CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 1 THU, NOV 02, 2000, 8:16 ~aM --req: CGONZALE--le~: GL JL--loc: FIN3~NCE---job: 8462 #5041 ...... pro~: CK200 <1.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00160820 000797 A HARLEQUIN COSTUME 11/01/00 23.00 AP00160821 000001 ~3~ EQUIPMENT RENTALS CO INC 11/01/00 9,248.84 MW OH AP00160822 006507 ~ PORTABLE RESTROOM CO 11/01/00 131.55 AP00160823 002732 ABC LOCKSMITHS 11/01/00 9,636.46 MW AP00160824 000007 ABLETRONICS 11/01/00 97.91 MW OH AP00160825 003785 ACTION ART 11/01/00 598.82 MW AP00160826 006309 AD/~MSON, RONALD 11/01/00 1,152.00 AP00160827 005231 AEF SYSTEMS CONSULTING INC 11/01/00 6,280.00 MW AP00160828 006775 AFFA TATI CORPORATION 11/01/00 1,358.64 MW AP00160829 021700 AIR LIQUIDE AMERICA CORPOP. ATI 11/01/00 157.85 MW AP00160830 000798 ALLEN ~2qD ASSOCIATES 11/01/00 8.10 MW OH AP00160831 006226 ALLIED STORAGE CON~fAINERS 11/01/00 2,528.25 MW OH AP00160832 000787 ALLST~.R IN]DUSTRIAL CONSTRUCTI 11/01/00 17.23 ~ OH AP00160833 000786 ALT COMPUTERS INC 11/01/00 45.82 MW OH AP00160834 005725 ~4ERICjkN HEAVY MOVING ~2qD RIG 11/01/00 3,000.00 MW AP00160835 000792 APPLIED POLYTECH SYSTEMS INC 11/01/00 30.10 ~F~ OH Ap00160836 001291 ARCUS DATA SECURITY 11/01/00 397.25 MW AP00160837 002299 ARROW TRAILER SUPPLIES 11/01/00 35.40 AP00160836 000799 ADTDIO BOOKSHELF 11/01/00 40.00 N~q OH Ap00160839 006115 AUFBAU CORPORATION 11/0t/00 9,925.00 ~F~ OH AP00160840 004102 B ~LND K ELECTRIC WHOLESALE 11/01/00 4,371.78 MW OH AP00160841 006747 B ~2qD R AUTO SERVICE 11/01/00 495.64 MW OH Ap00160842 000262 BARCO OUTDOOR PRODUCTS 11/01/00 246.01 MW AP00160843 004475 BAPdqES ;LMD NOBLE 11/01/00 107.50 ~F~ OH Ap00160844 032124 BARNETT, SUSAN 11/01/00 188,00 MW OH CITY OF RC IFAS {PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page TBU, NOV 02, 2000, 8:16 ~34 --req: CGON~LE--leg: GL JL--loc: FIN~_NCE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Ap00160845 000033 BASELINE TRUE VALUE ~ARDWARE Ap00160846 005522 BEAR STATE PUMp E EQUIPMENT AP00160847 000047 Ap00160848 000794 AP00160849 000605 AP00160850 004441 AP00160851 000793 AP00160852 000800 AP00160853 000808 AP00160854 001247 AP00160855 006301 AP00160856 000805 AP00160857 005993 AP00160858 004369 AP00160859 032543 AP00160860 005341 AP00160861 001851 AP00160862 022063 AP00160863 000806 AP00160864 000804 AP00160865 006434 AP00160866 006266 AP00160867 000802 AP00160868 003001 AP00160869 001270 Date 11/01/00 56.14 11/01/00 392.25 BELL ~ HOWELL 11/01/00 514.00 BELLCOURT DEVELOPMENT I LLC 11/01/00 20.00 BEST BEST E KRIEGER 11/01/00 3,285.00 BEST BUY CO INC 11/01/00 588.28 BICYCLE COMPONENT EXPRESS INC 11/01/00 195.74 BILLINGS, CURT 11/01/00 31.25 BIO INTEGRAL RESOURCE CENTER 11/01/00 85.00 BLAKE PAPER CO INC 11/01/00 103.06 BLUE OCEAN SOFTWARE INC 11/01/00 1,316.25 BRACKEN, N~LNCY 11/01/00 40.00 BROCK, kLLEN 11/01/00 50.00 BRODART BOOKS 11/01/00 3,979.55 BROWN, JACK 11/01/00 50.00 BUCKNAM ~ ASSOCIATES 11/01/00 1,897.50 CAL WESTERN PAIN"T 11/01/00 2,020.31 CALVARY CPLAPEL OF P3LNCHO CUCA 11/01/00 2,000.00 CARIDI, LAURA 11/01/00 35.00 CARLSON, ~a~DREA 11/01/00 21.21 CARREON, LISA 11/01/00 150.00 CASTILLO, JESSIE 11/01/00 250.00 CEJA, URIEL 11/01/00 320.00 CENTEX HOMES 11/01/00 88,260.00 CPLAFFEY COMMUNITY FOUNDATION 11/01/00 30.00 Check Amount Type Subs Rel To Note MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OR MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OH MW OR CC MW OH MW OH MW OH CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 3 TEU, NOV 02, 2000, 8:16 ~J4 --req: CGONZJ~LE--leg: GL JL--loc: FIN~/qCE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00160870 001270 AP00160871 000796 AP00160872 000795 AP00160873 000713 AP00160874 000073 AP00160878 000074 AP00160876 000914 AP00160877 000949 AP00160878 000788 AP00160879 021959 AP00160880 000643 AP00160881 000633 AP00160882 004507 AP00160883 000421 AP00160884 004316 AP00160885 000807 AP00160886 000801 CHAFFEy CO~LTNITy FOLRqDATION C[IAUDHURI MEDICAL GROUP CPL~LrDHURI SPECIALTY ~DICAL G CHICKS SPORTING GOODS INC CITRUS MOTORS ONTARIO INC CITY RENT~LS CLAREMONT C~MERA E VIDEO IN CLARK, KAREN COLOR FLOORS CO~4I/NITY BAPTIST CHURCH COMPUTERI~A/qD CONSOLIDATED ELECTRIC~Ja DISTR CONSOLIDATED PLASTICS COPdDOBA GRAPHICS CORPORj~TE EXPRESS OFFICE PROD COYLE MEISBFER, ~UREEN CREATIVE BUILDING CONCEPT AP00160887 VOID.COK~FINn3 Void - Continued Stub AP00160888 000085 AP00160889 000789 AP00160890 000239 AP00160891 000775 AP00160892 000347 AP00160893 000347 AP00160894 004641 CUC~MONGA CO WATER DIST CUTTING EDGE LJtNDSCAPE INC D ~ K CONCRETE COMP~/~Y DAVIS, ROBIN DAY TIMERS INC DAY TIMERS INC DEL MECHANICAL n/oi/oo 6o.oo MW OH 11/01/00 67.80 ~F~ OH 11/01/00 69.00 MW OH 11/01/00 158.93 ~ OH 11/01/00 413.34 ~F~ OH 11/01/00 2,504.04 MW OH 11/01/00 363.01 MW OH 11/01/00 152.00 MW OH 11/01/00 23.00 MW OH 11/01/00 450.00 MW OH !1/01/00 807.94 MW OH 11/01/00 724.32 MW OH 11/01/00 87.27 MW OH 11/01/00 2,269.75 FB~ OH 11/01/00 99.99 MW OH 11/01/00 120.00 MW OH 11/01/00 1,S00.00 MW OH 11/01/00 0.00 VM OH 11/01/00 36,825.18 MW OH 11/01/00 50.00 MW OH 11/01/00 603.40 MW OH 11/01/00 72.00 MW OH 11/01/00 112.34 MW OH 11/01/00 22.61 MW OH 11/0t/00 696.82 MW OH Void CITY OF RC IPAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 4 THU, NOV 02, 2000, 8:16 ~3~ --req: CGONZALE--leg: GL JL--loc: FIN/LNCE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note Ap00160895 004366 DEMCO INC 11/01/00 311.84 b~q OH Ap00160896 000107 DETCO 11/01/00 63.58 b~q OH AP00160897 006515 DJ TEK 11/01/00 50.00 ~F~ OH AP00160898 006474 DOOR H3~RDWARE SERVICES 11/01/00 758.06 N~q OH AP00160899 003875 DUNN EDWARDS CORPORATION 11/01/00 101.88 MW OH AP00160900 041323 DLPRKIN HAYES PUBLISHING LTD 11/01/00 7.12 ~5q OH AP00160901 004937 DYNASTY SCREEN PRINTING 11/01/00 391.39 MW OH AP00160902 000439 EAST~L~N KODAK CO 11/01/00 3,000.00 MW OH AP00160903 008017 ELLIOT, WALTER 11/01/00 144.00 AP00160904 000118 EMPIRE CO 11/01/00 350.00 ~q OH AP00160905 006586 EMPIRE COMPUTER SOLUTIONS 11/01/00 21,420.71 N~q OH AP00160906 005137 EMPIRE MOBILE HOME SERVICE 11/01/00 5,377.50 ~q OH AP00160907 002349 ESGIL CORPORATION 11/01/00 40,560.05 ~sq OH AP00160908 000977 ESRI INC 11/01/00 400.00 b~q OH AP00160909 003806 ETIW~/qDA SCHOOL DISTRICT 11/01/00 1,540.00 N~q OH AP00160910 000776 F T PIPELINE CONST CO 11/01/00 1,000.00 ~FW OH AP00160911 002510 FAIRVIEW FOR/3 11/01/00 50,323.56 ~F~ OH AP00160912 006161 PAXON CO, THE 11/01/00 33.29 MW AP00160913 000123 FEDERAL EXPRESS CORP 11/01/00 61.35 MW OH AP00160914 000777 FIN LINE TOOLS LLC 11/01/00 6.00 ~ OH AP00160915 006556 PIN~ESSE PERSONNEL ASSOCIATES 11/01/00 3,084.50 ~FW OH AP00160916 000125 FIRST ~4ERIC~/g TITLE INS CO 11/01/00 75.00 MW OH AP00160917 005892 FIRST PLACE TROPHIES 11/01/00 17.24 ~q OH AP00160918 000778 FISCHER PLDT~BING 11/01/00 1,000.00 MW OH AP00160919 004371 FISHER SCIENTIFIC 11/01/00 912.78 ~ OH CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CRECK REGISTER Page 5 THU, NOV 02, 2000, 8:16 AM --req: CGONZALE--leg: GL JL--loc: FINANCE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00160920 006685 FOOTHILL BEVERAGE COMPNAY 11/01/00 106.50 MW OR AP00160921 000526 FOOTHILL CARPET ~ MATTRESS 11/01/00 2,800.00 MW OH AP00160922 001082 FRANKLIN COVEY CO 11/01/00 76.72 MW OH AP00160923 005833 FRITTS FORD 11/01/00 8,553.71 MW OH AP00160924 004540 G~LE GROUP,THE 11/01/00 210.47 MW OH AP00160925 003356 GARCIA, VIVIAN 11/01/00 23.08 MW OH AP00160926 000263 GATEWAY 11/01/00 8,319.83 MW OH AP00160927 005928 GE SUPPLY 11/01/00 448.45 MW OH AP00160928 000780 GEOGPj~PHIC DATA ~L~/gAGEMENT SO 11/01/00 2,083.18 MW OH AP00160929 000781 GILBERT, GINA 11/01/00 45.00 MW OH AP00160930 000782 GOLDEN STATE FIRE PROTECTION 11/01/00 245.63 MW OH AP00160931 005955 GOLDEN WEST DISTRIBUTING 11/01/00 49.68 MW OH AP00160932 041101 GOOD FELLAS FINE CIGARS 11/01/00 30.65 MW OH AP00160933 000650 GRAINGER, WW 11/01/00 696.73 MW OH AP00160934 000783 GREAT QUALITY CONST 11/01/00 250.00 MW OH AP00160935 003827 GREEN ROCK POWER EQUIPMENT 11/01/00 58.10 MW OH AP00160936 000784 GRIBBIN, ELIZABETH 11/01/00 38.50 MW OH AP00160937 004913 GROLIER PUBLISHING CO INC 11/01/00 784.28 MW OH AP00160938 004486 GUARDIAN 11/01/00 971.98 MW OH AP00160939 000785 GUTIERREZ, STACEY 11/01/00 48.00 MW OH AP00160940 041328 GWYN~g, JO2~qN 11/01/00 600.00 MW OH AP00160941 006383 B.V. CARTER CO. 11/01/00 35.03 MW OH AP00160942 004846 HAAS DICTATING SYSTEMS 11/01/00 1,091.95 MW OH AP00160943 000710 HACIENDA WOODWORKS AND DESIGN 11/01/00 36.00 MW OH Ap00160944 000462 HCS CUTLER STEEL CO 11/01/00 397.35 MW OH CITY OF RC IFAS (PROD) 11/02/00 C B E C K R E G I S T E R CHECK REGISTER Page 6 THU, NOV 02, 2000, 8:16 AM --req: CGONZALE--leg: GL JL--loc: FIN~/~CE---jOb: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Ap00160945 000704 HOERTIG IRON WORKS 11/01/00 Ap00160946 000158 Ap00160947 006587 AP00160948 000705 AP00160949 005577 AP00160950 001234 AP00t60951 000161 AP00160952 000731 AP00160953 000495 AP00160954 004254 AP00160955 000709 AP00160956 003452 AP00160957 006238 AP00160958 001941 AP00160989 000612 AP00160960 000714 AP00160961 000706 AP00160962 006618 AP00160963 006139 AP00160964 000729 AP00160965 002220 AP00160966 000721 AP00160967 006090 AP00160968 000722 AP00160969 000707 HOLLIDAY ROCK CO INC 11/01/00 HOLMES P~ND NARVER INC 11/01/00 HOME DEPOT ~ 645 11/01/00 HOOPS, RODNEY R 11/01/00 BOSE MAN INC 11/ol/oo HOYT LU}~BER CO, S M 11/01/00 HUMPHREY, PAT 11/01/00 HYDROSCAPE PRODUCTS INC 11/01/00 IBM CORPOPj~TION 11/01/00 INLAND EMPIRE AUTO SALES 11/01/00 INTRAVAIA ROCK AND SAND 11/01/00 IRELAND SOUND SYSTEMS 11/01/00 JACOBSEN DIVISION OF TEXTRON 11/01/00 JAESCHKE INC, C R 11/01/00 JARCO ROOFING 11/01/00 JOHNSON AND ASSOCIATES 11/01/00 K A S EQUIPMENT ~ RENTAL IN 11/01/00 KAUFMP~N AN~3 BRO~ KEENEY, J~ET KELLY PAPER COMP~/qY KIMBROUGH, N~NCY KONG, SOPF~K KRUEPER, MICHELE L A NAILS n/oi/oo ii/oi/oo n/oi/oo li/oi/oo n/oi/oo n/oi/oo ii/oi/oo Check Amount Type Subs Rel To Note 7.36 MW OH 1,047.14 MW OH 13,676.35 MW OH 97.99 MW OH 200.00 b~q OH 129.86 MW OH 38.67 MW OH 20.00 MW OH 523.59 MW OH 838.99 MW ON 60.00 MW OH 379.47 MW ON 301.49 MW OH 916.30 MW OH 9.90 MW OH 39.96 MW ON 13,609.35 MW OH 240.66 MW OH 20.00 MW OH 9.48 MW OH 61.25 MW OH 960.00 MW OH CC 109.00 MW OH 29.20 MW OH CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CNECK REGISTER Page 7 THU, NOV 02, 2000, 8:16 AM --req: CGONZALE-~leg: GL JL--loc: FINANCE---j ob: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00160970 000715 LASCO BATHWARE 11/01/00 13.04 MW OH AP0016D971 000809 LAUREN DEVELOPMENT INC 11/01/00 126.00 MW OH AP00160972 000708 LAW OFFICES OF CHERYL C. MURP 11/01/00 42.03 MW OH AP00160973 000849 LAWSON PRODUCTS INC 11/01/00 267.00 MW OH AP00160974 006298 LAYNE, T~aMARA 11/01/00 125.03 MW OH AP00160975 000728 LEAVITT, TINA 11/01/00 101.00 MW OH AP00160976 000727 LOGUE, SALLY 11/01/00 18.11 MW OH AP00160977 001455 LONGS DRUGS 11/01/00 5.92 MW OH AP00160978 000736 LOPEZ, NESTER 11/01/00 50.00 MW OH AP00160979 005662 LOS ]UgGELES COCA COLA BTL CO 11/01/00 330.63 MW OH AP00160980 000718 M & B WATER TRUCK SERVICE 11/01/00 101.70 MW OH AP00160981 001062 M C I WORLDCOM 11/01/00 2,211.73 MW OH AP00160982 001062 M C I WORLDCOM 11/01/00 607.03 MW OH AP00160983 003987 M M A S C . 11/01/00 50.00 MW OH AP00160984 000828 MAGIC ~ VARIETY ENTERTAINME 11/01/00 1,100.00 MW OH CC AP00160985 000730 MALOCH, LINDA 11/01/00 50.00 N~N OH AP00160986 007164 N~NELA, ROSARI0 11/01/00 62.23 MW OH AP00160987 000716 MANPOWER, INC OF S~aq BERNARDI 11/01/00 19.43 MW OH AP00160988 000296 MARCIEL,PATRICIA 11/01/00 4,999.00 MW OH AP00160989 000549 MARIPOSA HORTICULTURAL ENT IN 11/01/00 1,408.72 MW OH AP00160990 002542 METROPOLIT~/q WATER DISTRICT 11/01/00 22,000.00 MW OH AP00160991 000602 MEYER, PAT 11/01/00 40.19 MW OH AP00160992 002198 MICHAELS STORES INC 3019 ll/01/OO 25.13 MW OH AP00160993 006170 MICROAGE COMPUTEPd~I~RT 11/01/00 92.67 MW OH Ap00160994 000258 MICRON E ADDITIONS 11/01/00 226.53 FEN OH CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 8 THU, NOV 02, 2000, 8:16 ~4 --req: CGONZALE--leg: GL JL--loc: FIN~2qCE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00160995 000711 Ap00160996 002548 AP00160997 006687 AP00160998 000717 AP00160999 000606 AP00161000 000433 AP00161001 000523 AP00161002 005403 AP00161003 006584 AP00161004 000725 AP00161005 000235 AP00161006 001823 AP00161007 000737 AP00161008 000818 AP00161009 000733 AP00161010 000726 AP00161011 003547 AP00161012 006205 AP00161013 004267 AP00161014 006211 AP00161015 006148 AP00161016 000791 AP00161017 000255 AP00161018 000723 AP00161019 000719 MINCHEW TOWING 11/01/00 59.64 MW OH NATIONAL ARBOR DAY FOUNDATION 11/01/00 25.00 MW OH NATIONS RE~rF 11/01/00 269.44 MW OH NEWPORT MEAT COMP~Ny 11/01/00 12.00 N~ OH NITE AND DAYBEDS ETC 11/01/00 290.82 MW OH NIXONEGLI EUIPMENT 11/01/00 188.01 MW OH OFFICE DEPOT 11/01/00 417.63 ~F~ OH OFFICE ~ 11/01/00 162.75 MW OH OLIVA, PHILIP 11/01/00 320.00 MW OH CC OWEI, VANESSA 11/01/00 121.50 MW OH OWEN ELECTRIC 11/01/00 269.96 MW OH PAGENET 11/01/00 1,064.04 MW OH PANALIG~N, ~B~RILON 11/01/00 250.00 ~ OH PARAGON BUILDING PRODUCTS INC 11/01/00 129.18 MW OH PEDERSEN, LU 11/01/00 32.00 ~FN OH PELTEKIAN, K}L~JAG 11/01/00 125.00 MW OH PERPETUAL ETOPJ~GE 11/01/00 21.35 NSg OH PETERMAN LLrMBER 11/01/00 43.10 ~FN OH PETES ROAD SERVICE 11/01/00 603.32 ~Sq OH PIONEER STANDARD ELECTRONICS 11/01/00 3,495.83 NW OH PIRON, SH/~Ulg 11/01/00 342.00 MW OH CC PMIDELTA CARE 11/01/00 1,154.98 MW OH POMA DISTRIBUTING CO 11/01/00 25,376.09 ~ OH PORTRA, TRACEE 11/01/00 233,25 ~FN OH PREFERRED ROOF M~/gAGEMENT INC 11/01/00 16.25 ~F~ OH CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 9 THU, NOV 02, 2000, 8:16 AM --req: CGONZALE--le~: GL JL--loc: FIN~_NCE~--job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00161020 000732 PRIORE, MICHAEL 11/01/00 27.00 MW OH AP00161021 000734 QUICENO, PATRICIA 11/01/00 35.00 MW OH AP00161022 000418 R M A GROUP 11/01/00 532.50 MW OH AP00161023 000264 RALPHS GROCERY COMP~2gY 11/01/00 62.89 MW OH AP00161024 011769 Pj~NCHO DEFENDERS EUCLID LAW C 11/01/00 175.00 MW OH AP00161025 000545 RED WING SHOE STORE 11/01/00 546.74 MW OH AP00161026 000740 REFRIGERATION SERVICE & INSTA 11/01/00 7.99 MW OH AP00161027 000741 REMLINGER, ROGER R 11/01/00 35.00 MW OH AP00161028 000742 RESCOM OVEREEAD DOORS INC 11/01/00 33.25 MW OH AP00161029 005914 REXEL CALCON ELECTRICAL SUPPL 11/01/00 133.76 MW OH AP00161030 000743 RIVAS, KEITH 11/01/00 33.00 MW OH AP00161031 000276 RIVERSIDE BLUEPRINT 11/01/00 210.38 MW OH AP00161032 000746 RODRIGUEA, EP~4A 11/01/00 48.12 MW OH AP00161033 006673 ROTH STAFFING COMPANIES INC 11/01/00 1,820.00 MW OH AP00161034 000748 S M CONSTRUCTIONS 11/01/00 5.88 MW OH AP00161035 005745 SAFELITE GLASS CORP 11/01/00 224.68 MW OH AP00161036 000753 SALON EXCELLENCE 11/01/00 115.20 MW OH AP00161037 000754 SAigDOVAL, ERMA 11/01/00 10.00 MW OH AP00161038 000756 SCHAUMANN COMMLrNICATION SERVI 11/01/00 32.98 MW OH Ap00161039 004350 SCHNEIDERWENT, KAREN 11/01/00 26.50 MW OH AP00161040 000759 SCHWETZ, BRENDA 11/01/00 35.00 MW OH Ap00161041 001829 SHARED TECHNOLOGY FAIRCHILD T 11/01/00 89.89 MW OH AP00161042 000222 SHELBYS CAR STEREO ~2gD ~J~ARMS 11/01/00 492.15 ~ OH Ap00161043 002760 SKILL PATH INC 11/01/00 199.00 MW OH AP00161044 000760 SLS SHEET METAL 11/01/00 30.00 MW OH CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 10 TEU, NOV 02, 2000, 8:16 AM --req: CGONZALE--leg: GL JL--loc: FINANCE---job: 8462 ~S041 ...... prog: CK200 <1.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00161045 001327 SMART ~ FINAL 11/01/00 145.99 MW OH AP00t61046 000319 SO C2~LIF GAS COMP/~NY 11/01/00 2,523.19 MW OH Ap00161047 000761 SONSATIONAL ACTIVITIES 11/01/00 1,650.00 MW OH AP00161048 001432 SOUTHEP~N CALIFORNIA EDISON 11/01/00 2,127.56 MW ON AP00161049 000762 SOWARD, SF~ON 11/01/00 70.00 MW OH AP00161050 003093 STATE OF CALIFORNIA 11/01/00 160.00 MW OH AP00161051 003017 STATE OF CALIFORNIA 11/01/00 60.00 MW ON AP00161052 000763 STEEL-TECN INDUSTRIAL CORP 11/01/00 90.00 MW ON AP00161053 000764 STRAIT, BRENT FLORIC POLY T 11/01/00 72.50 MW ON AP00161054 004733 SUNRISE FORD 11/01/00 65.40 MW ON AP00161058 000836 TARGET SPECIALTY PRODUCTS 11/01/00 327.00 MW ON AP00161056 000814 THEME WAREHOUSE INC 11/01/00 738.50 MW OH AP00161057 000813 TOP VALUE 11/01/00 1,047.88 MW OH AP00161058 092100 U S B~/qK 11/01/00 4,500.00 MW ON AP00161059 007271 UNGASEICK, JULIE 11/01/00 750.00 MW OH AP00161060 003437 UNIFIRST UNIFORM SERVICE 11/01/00 746.27 MW OH AP00161061 003912 UNIQUE CREATIONS 11/01/00 48.54 MW ON AP00161062 001226 UNITED PARCEL SERVICE 11/01/00 60.76 MW ON AP00161063 000765 UNITED RENTALS NORTHWEST, INC 11/01/00 71.99 MW OH AP00161064 006004 UNITEK TECHNOLOGY INC 11/01/00 7,683.66 MW OH AP00161065 003214 URISA 11/01/00 132.00 MW OH AP00161066 000766 VELOCITY BUSINESS PUBLISHING 11/01/00 138.00 MW OH AP00161067 006661 VERIZON WIRELESS 11/01/00 79.47 MW OH 11/01/00 0.00 VM OH 11/01/00 4,781.10 ~ ON AP00161068 VOID.CONTINU Void - Continued Stub AP00161069 000137 VERIZON Void CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 11 THU, NOV 02, 2000, 8:16 AM --req: CGONZALE--leg: GL JL--loc: FIN~CE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note AP00161070 000137 AP00161071 000137 AP00161072 006721 AP00161073 000768 AP00161074 000769 AP00161075 000213 AP00161076 012720 AP00161077 000770 AP00161076 000772 AP00161079 000772 AP00161080 000772 AP00161081 000772 AP00161082 000772 AP00161083 000772 AP00161084 000829 AP00161085 000767 AP00161086 000773 AP00161087 000771 VERIZON VERIZON VESTRA RESOURCES INC WATER BY DESIGN WATSON, THERESA WAXIE WESTERIg CONTAINER WESTGATE HOTEL WESTIN, S~/qTA CLJ~RA WESTIN SANTA CLARA WESTIN SANTA CLARA WESTIN S~jqTA CLARA WESTIN S~/qTA CL~/~A WESTIN S~/qTA CLA/{A WHITE CINDY WOMACK GARY ZBEST CONCRETE CONSTRUCTION ZWERNER, JENNIFER 11/01/00 495.37 MW OH 11/01/00 122.48 MW OH 11/01/00 3,232.50 MW OH n/01/oo 52.00 r~w oH 11/01/00 los.00 MW OH ll/01/00 1,864.84 ~ OH 11/01/00 144.00 MW OH 11/01/00 560.24 MW OH 11/01/00 114.98 MW OH 11/01/00 229.95 MW OH 11/01/00 229.95 MW OH 11/01/00 229.95 MW OH 11/01/00 229.95 MW OH 11/01/00 229.95 MW OH 11/01/00 400.00 MW OH 11/01/00 7.00 MW OH 11/01/00 10.01 MW OH ii/ol/oo 95.00 MW OH Cc CITY OF RC IFAS (PROD) 11/02/00 C H E C K R E G I S T E R CHECK REGISTER Page 12 THU, NOV 02, 2000, 8:16 AM --req: CGONZALE--leg: GL JL--loc: FINANCE---job: 8462 #S041 ...... prog: CK200 <l.37>--report id: CKREG--- Check Payee ID. Payee Name Date Check Amount Type Subs Rel To Note GRAND TOTALS: Total Void Machine Written Total Void Hand Written Total Machine Written Total Hand Written Total Reversals Total Cancelled Checks GRAND TOTAL 0.00 0.00 506,876.16 0.00 0.00 0.00 506,876,16 Number of Checks Processed: 2 Number of Checks Processed: 0 Number of Checks Processed: 266 Number of Checks Processed: 0 Number of Checks Processed; 0 Number of Checks Proceesed: 0 City of Rancho Cucamonga Portfolio Management Portfolio Summary October 31, 2000 City of Rancho Cucamonga Par Market Book % of Investments Value Value Value Portfolio Term Local Agency Investment Funds 18,230,632.80 18,230,632.80 18,230,63280 16.64 1 Cerlificates of DeposiuNeg * Bank 5,325,532.00 5,335,231 +71 5,325,532.00 4.86 365 Federal Agency Issues - Coupon 78,000,000.00 77,012,927.25 77,964,84375 71.18 1,666 TreasuW Securities - Coupon 8,0C0,000.00 7,983,019,71 7,971,25000 7.28 726 Modgage Backed Securities 41,779.46 42,730.59 38,982,74 0.04 7,958 Investments 109,597,944.26 108,604,542.06 109,531,241.29 100.00% 1,259 Cash and Accrued Interest PasspooldChecking 865,47465 865,474.65 865,474.65 1 (not included in yield calculations) Accrued Interest at Purchase 3,945.00 3,94500 Subtotal 869,419.65 869,419.65 Total Cash and Investments 110,463,418.91 109,473,961.71 110,400,660.94 1,259 Total Earnings October 31 Month Ending Fiscal Year To Date Current Year 581,798.60 2,357,776.90 Average Daily Balance 111,295,113.88 112,960,801.14 Effective Rate of Return 6.15% 6.19% Days to YTM YTM Maturity 360 Equiv. 365 Equiv. 1 6.428 6.517 205 6923 7.019 999 6.150 6.235 381 6.092 6.177 3,121 9.782 9.918 750 6.231 6,317 1 1,973 2.000 750 6.23t 6.317 I cerljfy that this report accurately reflects all City pcoled investments and is in comformity with the investment policy adopted October 4, 2000. A copy of the investment policy is available in the Administrative Services Department. The Investment Program herein shown provides suffident cash flow liquidity to meet the next six months estimated expenditures. The month-end market values were obtained from (IDC)-Interactive Data Corporation pricing service. Investment Policy, The provisions of the individual bond documents Portfolio CITY CP PM (PRF_PM1) SymRepl VS.01f Average CUSIP Investment # Issuer Balance Local Agency Investment Funds 00005 LOCAL AGENCY INVST FUND Subtotal and Average 18,58t,813.52 Certificates of DepositJNeg. - Bank 06O50EJG1 1061 BANK OF AMERICA 06050EMS1 1064 BANK OF AMERICA 06050ERH0 1070 NATIONSBANK NA Subtotal and Average Federal Agency Issues - Coupon 31331RAA3 00988 31331RDX0 00996 31331RMS1 01002 3133IRMA0 01004 31331 RUG8 01022 31331RQ65 01036 31331R2Y0 01042 31331R306 01045 31331R4R3 01046 31331R7E9 01052 3133M2US4 01003 3133M6NE4 01035 3133M75D4 01038 3133M86L3 01043 3133MBB78 01044 3133M94J8 01050 3133M9501 01051 3133M96K3 01053 3133M9CG5 01054 3133MARK7 t059 3133MBHV2 1062 3133MBM46 1067 3134AILB4 00994 3134AIH45 01000 3134A2PN2 01030 3134A2XJ2 01033 5,325,532.00 FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL FARM CREDIT BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FBDERAJ. HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN BANK FEDERAL HOME LOAN MORTG. CORP. FEDERAL HOME LOAN MORTG. CORP, FEDERAL HOME LOAN MORTG. CORP. FEDERAL HOME LOAN MORTG. CORP. City of Rancho Cucamonga Portfolio Management Portfolio Details - Investments October 31, 2000 Date Par Value Market Value Book Value 18,230,632.80 18,230,632+80 18,230,632.80 t8,230,632.80 18,230,632.80 t8,230,632.80 03/15/2000 1,810,532.00 1,808,261.95 1,810,532.00 06/05/2000 2,000,000.00 2,005,858.40 2,000,000,00 06/02/2000 1,515,000.00 1,521,111.36 1,515,000+00 5.325,532.00 5,335,231.7t 5,325,532.00 03/27/1997 2,000,000,00 2,003,897.71 2,000,000.00 07/17/1997 2,000,000.00 1,992,948.00 1,999,375.00 01/07/1998 1,000,000.00 992,608.95 1 ,O00,00000 01/06/1998 2,000,000.00 1,990,077.82 2,000,000.00 06/27/1998 2,000,000.00 1,980,579+83 1,999,375.00 12/15/1998 2,000,000.00 1,949,015,81 2,000,000.00 03/16/1999 3,000,000.00 2,934,581,91 3,000,000,00 04/07/1999 2,000,000.00 1,967,757.87 1,997,500.00 04/25/1S99 4,000,000,00 3,901.351.93 3,997,500,00 06/21/1999 2,000,000+00 1,990,611,88 2,000,000.00 01/06/1998 1,000,000.00 990,312.50 1,000,000.00 12/08/1998 2,000,000.00 1,940,625,00 2,000,000.00 01/21/1999 1,000,000.00 968,437,50 1.000,000+00 03/23/1999 3,000.000,00 2,956,875.00 3,O00,000.00 04/06/1999 2,000,000.00 1,941.250.00 2,000,000.00 06/1711999 3.000,000.00 2,971,875,00 2,984,531.25 06/21/1999 2,000,000.00 1,984,375.00 1,999,375.00 06/26/1999 2,000,000.00 1.977,500,00 1,996,875.00 07/13/1999 1,000,000,00 995,625.00 1.000,000.00 02/26/2000 2,000,000.00 2,006,875.00 1,999,687.50 05/25/2000 2,000,000.00 2,029,375,00 1,994,375,00 06/13/2000 1,000,000.00 1,004,062.50 1,000,000.00 06/25/1997 3,000.000.00 2,992,500.00 3,000,000.00 10/22/1S97 2,000,000,00 1,985.000.00 2.000,000,00 06/20/1998 2.000,000.00 1,967,500.00 2,000,000,00 11/24/1~98 2.000,0OO.00 1,953,125.00 2,000,000.00 Page 2 Stated YTM Days to Maturity Rate Moody's 360 Maturity Date 6.517 6.428 1 6.428 I 6.560 6,560 134 03/16/2001 7.330 7.330 216 06/06/2001 6.820 6.820 274 08~2/2001 6.923 205 6.620 6.240 6.330 6.220 6.290 5.660 5.930 5.850 5.850 6.375 6.230 5+530 5.510 5.755 5.700 6.230 6.529 51t 03/27/2002 6.162 623 07/17/2002 6.243 797 0t/07/2003 6,135 796 01/06/2003 6.211 937 05/27/2003 5.582 1,139 12/16/2003 5.849 1,231 03/16/2004 5.805 887 04/07/2003 5.784 1,273 04/27/2004 6,288 597 06/21/2002 6,145 796 01/06/2003 5.454 1,132 12/08/2003 5.435 1,176 01/21/2004 5.676 691 06/23/2002 5,622 1,252 04/~612004 6,265 1,324 06/17/2004 6,077 597 06/21/2002 6.428 1,335 06/26/2004 5.957 254 07/13/2001 6.910 846 02/25/2003 7,850 1,657 05/16/2005 7.447 772 12/13/2002 6.537 449 01/24/2002 6.233 720 10122/2002 5.967 1,022 06/26/2003 5.711 1,118 11/24/2003 Portfolio CITY CP PM (PRF_PM2) SymRept V5.01f CUSIP Investment # Federal Agency Issues - Coupon 3134A2N20 01037 3134A3NS1 01047 312902ZL6 1066 31364FC33 01016 31364FG96 01018 31364GBE8 01032 31364GJM2 01034 31:3e4GTJ8 01039 31364KPT1 1065 Treasury Securities - Coupon 312902E96 1072 9128275H1 01049 9128275X6 1058 Mo~gage Backed Securities 313401ww7 00071 31360BJ21 00203 36215WX74 00002 36215XZS4 00069 Average Issuer Balance FEDERALHOME LOAN MORTG, CORP. FEDERALHOME LOAN MORTG. CORP. FEDERAL HOME LOAN MORTG. CORP. FEDERAL NATL MTG ASSN FEDERAL NATL MTG ASSN FEDERAL NATL MTG ASSN FEDERAL NATLMTGASSN FEDERAL NATLMTGASSN FEDERAL NATL MTG ASSN Subtstaland Average 77,964,843.75 FEDERAL HOME LOAN MORTG. CORP. TREASURY NOTE TREASURY NOTE Subtotal and Average 7,971~50.00 FEDERAL HOME LOAN MORTG. CORP. FEDERAL NATL MTG ASSN GOVERNMENT NATIONAL MORTG ASSN GOVERNMENT NATIONAL MORTG ASSN Subtotal and Average 39,663.73 Total Investments and Average 109~83,103.01 City of Rancho Cucamonga Portfolio Management Portfolio Details - Investments October 31, 2000 Purchase Date Par Value Market Value Book Value 01/14/1999 2,000,000.00 1,961,250.00 2,000,000.00 05/04/1999 5,000,000.00 4,873,437.50 5,000.000.00 06/13/2000 2,000,000.00 2,002,487,79 2,000,000,00 05/04/1998 3,000,000.00 2,972, 16888 3,000,000.00 05/15/1998 2,000,000.00 1,984,765.93 2,000,000.00 10/06/1998 2,000,000.00 1,953,293.76 2,000,000.00 12/01/1998 2,000,000.00 1,943,087.77 2.000,000.00 02/11/1999 4,000,000.00 3.908,691,41 3.996.250.00 05/06/2000 3,000,000.00 3,045,000.00 3,000,000.00 78,000,000.00 77,012,927~5 77,964,843.75 08/07/2000 2,000,000.00 2,006,769.71 1,997,812,50 06/09/1999 4,000.000,00 3.972,500.00 3,977.500.00 01/31/2000 2,(300.0(30,00 2.CO3.75000 1,995,937,50 02/23/1987 3,872.15 3,900.30 3,844.30 09/15/1987 36,082,53 36,997,58 33,331.24 06/23/1986 1,602.30 1.608.44 1,580.27 05/23/1986 222.48 224.27 226.93 41,779.46 42,730.59 38,982.74 109,597,944.26 108,604,542.06 t09,531~4t.29 Page 3 Stated YI'M Days to Maturity Rate Moody's 360 Maturity Date 5.600 5.523 804 01/14/2003 5,900 5,819 1,280 05/04/2004 7.610 7.506 407 12/13/2001 6.280 6,194 915 05/05/2003 6.125 6.041 929 05/19/2003 5.670 5.592 1,069 10/06/2003 5.520 5.444 1,125 12/01/2003 5.860 5,801 1,197 02/11/2004 7.875 7,767 1,678 06/0612005 6.150 999 7,050 7.012 644 08/07/2002 5.250 5.478 211 05/31/2001 6.375 6.396 456 01/31/2C02 6.092 381 8.000 8.219 426 01/01/2002 8.500 10.018 3,591 09/01/2010 8,500 8.778 195 05/15/2001 9,000 8.547 134 05/15/2001 9.782 3,t21 6.231 750 Portfolio CITY CP PM (PRF_PM2) S~InRept VS.01f CUSIP Cash Accounts Inveetment # Issuer 00180 BANK OF AMERICA Cash Subtotal and Average Balance Total Cash and Investments 1,412,010.88 t11,295,113,88 City of Rancho Cucamonga Portfolio Management Portfolio Details - Cash October 31, 2000 Purchase Date Par Value Market Value BOOk Value 865,474.65 865.474,65 Cash Account Total 865,474.65 Accrued Interest at Purchase 3,945,00 3,945.00 Subtotal 869,419.65 869,419.65 tt0,463,418.91 109,473,961.71 110,400,660.94 Page 4 Stated YTM Days to Ra~ Moody~ 360Matadty 2.000 1,973 1 6.231 750 Portfolio CITY CP PM (PRF_PM2) SymRepl V5+01f CUSIP Investment # Issuer Local Agency Investment Funds (Monthly Summary) 00005 LOCAL AGENCY INVST FUND Subtotal Savings/Miscellaneous Accounts (Monthly Summary) 00180 BANK OF AMERICA Subtotal Certificates of Deposit/Neg. - Bank Federal Agency Issues - Coupon Treasury Securities - Coupon Mortgage Backed Securities 313401~NW7 00071 31360BJ21 00203 36215WX74 00002 36215XZS4 00069 City of Rancho Cucamonga Portfolio Management Investment Activity By Type October 1, 2000 through October 31, 2000 Beginning Stated Transaction Purchases Balance Rate Date or Deposits 18,687,849.67 1,672,200.71 Subtotal 5,325,532.00 Subtotal 77,964,843.75 Subtotal 7,97t,250.00 FEDERAL HOME LOAN MORTG+ CORP, FEDERAL NATL MTG ASSN GOVERNMENT NATIONAL MORTG ASSN GOVERNMENT NATIONAL MORTG ASSN Subtotal 40,151.61 Total ttt,661,827.74 6.517 1,342,783.13 t,342,783.13 2.000 4,533,666,94 4,533,666.94 Sales/Maturities or Withdrawals 1,800,000.00 1,800,000.00 5,340,393.00 5,340,393.00 8.000 10116/2000 0.00 410.58 8.500 10125/2000 0.00 397.52 8.500 10/16/2000 0.00 289.77 9.000 10/16/2000 0.00 71.00 0.00 1,168.87 5,876,450.07 7,141,561.87 Page 5 Ending Balance 18,230,632.80 865,474.65 5,325,532.00 77,9~4,843.75 7,971,250.00 38.982.74 City of Rancho Cucamonga Summanj of Cash and Investments with Fiscal Agents For the Month Ended September 30, 2000 Bond Issue Assessment District No 93-1 Masi Plaza Trustee and/or Payim3 Aaent US Bank Purchase Account Name investment Date Imprvmnt Fund First American Treasury Obligation 08/04/1997 Imprvmnt Fund Cash N/A Reserve Fund First American Treasury Obligation 08/04/1997 Reserve Fund Cash N/A Redemp. Fund First American Treasury Obligation 08/04/1997 Redemp. Fund Cash N/A Maturity Date N/A* N/A N/A* N/A N/A N/A Yield 5.90% N/A 5.90% N/A 5.90% N/A Cost Value $ 257,311.00 0.78 245,085.00 0.75 1,404.00 0.77 $ 503,802.30 PFA RFDG Rev Bonds series 1999 A (Sr) & 1999 B (Subord) US Bank Expense Fund FirstAmerican Treasury Obligation 07/01/1999 Cash N/A Sub Resrv. Fund First American Treasury Obligation 07/01/1999 Cash N/A Sr. Resrv. Fund FirstAmerican Treasury Obligation 07/01/1999 Cash N/A Redemption Fund FirstAmerican Treasury Obligation 07/01/1999 Cash N/A Revenue Fund FirstAmerican Treasury Obligation 03/02/2000 Cash N/A N/A* N/A N/A* N/A N/A' N/A N/A* N/A N/A* N/A 5.90% N/A 5.90% N/A 5.90% N/A 5.90% N/A 5.90% N/A $ 26,594.00 0.15 586,547.00 0.09 1,101,899.00 0.36 192,434.00 0.51 $ 1,907,475.11 $ 2,411,277.41 TOTAL CASH AND INVESTMENTS WITH FISCAL AGENTS * Note: These investments are money market accounts which have no stated maturity date as they may be liquidated upon demand. ~ i:lfinancelCash with FiscalAgents.xls 11/06/2000 5:19 PM State of California Depa APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE(S) ABC 211 (6/99) TO: Department of Alcoholic Beverage Control 3737 Main Street Suite 900 Riverside, CA 92501 (909)782-4400 DISTRICT SERVING LOCATION: First Owner: Name of Business: RIVERSIDE BARBONIS LLC BARBONIS PIZZA :nt of Alcoholic Beverage Control File Number: 370521 Receipt Number: 1299784 Geographical Code: 3615 Copies Mailed Date: September 26, 2000 Issued Date: Location of Business: County: Is premise inside city limits? Mailing Address: (If different from premises address) 9792 19TH ST RANCHO CUCAMONGA, CA 91730 SAN BERNARDINO Yes 10635 RIDGE CANYON RD ALTA LOMA, CA 91737 Type of license(s): 41 Transferor's license/name: 226253 / BARBON ROBER' Dropping Partner: Yes No XX License Type Transaction Type Fee Type Master Dup Date 41 ON-SALE BEER AND PERSON TO PERSON TRANSF NA Y 0 09 / 26 / 00 41 ON-SALE BEER AND ANNUALFF/i NA Y 0 09/26/00 41 ON-SALE BEER AND STATE HNGERPRINTS NA N 2 09 / 26 / 00 Total Fee $150.00 $205.00 $78.00 $433.00 Have you ever been convicted of a felony? N o Have you ever violated any provisions of the Alcoholic Beverage Control Act. or regulations of the Department pertaining to the Act? No Explain any "Yes" answer to the above questions on an attachment which shall be deemed part of this application. Applicant agrees (a) that any manager employed in an on-sale licensed premise will have all the qualifications of a licensee. and (b) that he will not violate or cause or permit to be violated any of the provisions of the Alcoholic Beverage Control Act. ~ STATE OF CALIFORNIA County of SAN BERNARDINO Date: September 26, 2000 Under penalty of perjury, each person whose signature appears below, certifies and says: (1) He is an applicant. or one of the applicants. or an executive officer of the applicant corporation, named in the foregoing application, duly authorized to make this application on its behalf; (2) that he has read the foregoing and knows the contents thereof and that each of the above statements therein made are true: (3} that no person other than the applicant or applicants has any direct or indirect interest in the applicant or applicant's business to be conducted under the licenseIs) for which this application is made; (4) that the transfer application or proposed transfer is not made to satisfy the payment of a loan or to fulfill an agreement entered into more than ninety (90) days preceding the day on which the transfer application is filed with the Department or to gain or establish a preference to or for any creditor or transferor or to defraud or injure any creditor of transferor; (5) that the transfer application may be withdrawn by either the applicant or the licensee with no resulting liability to the Department. Applicant Name(s) Applicant Signature(s) BARBONIS LLC ~ CLAPPER, ll:t ~ ~ ABC 211-A & 227 Attached Alcoholic BeveraGe License Description: Application: Applicant: Address: Description: Type 41 (On sale Beer and Wine - RESTAURANT) Barbonis, LLC - BARBONIS PI77A 9792 19th Street Person-to-person transfer, existing business (existing legal) Site and Surroundin¢l ZoninG: Site: Neighborhood Commercial (NC) North: Foothill Freeway (SR-30) Right-of-Way West: Low Medium (LM) Residential East: Medium High (MH) Residential South: Low Medium (LM) Residential P1ARKET LLLLLLU 19th STR E ET . State of California APPLICATION FOR ALCOIt ABC 211 (6/99) TO: Department of Alcoholic Beverage Control 3737 Main Street Suite 900 Riverside, CA 92501 (909)782-4400 DISTRICT SERVING LOCATION: First Owner: Name of Business: Location of Business: County: Is premise inside city limits? Mailing Address: (If different from premises address) Type of license(s): 41 Transferor's license/name: Department of Alcoholic Beverage Control .,IC BEVERAGE LICENSE(S) File Number: 106256 Receipt Number: 1292776 Geographical Code: 3615 Copies Mailed Date: ~ Issued Date: RIVERSIDE FORBCO MANAGEMENT CORPORATION SIZZLER 9588 BASELINE RANCHO CUCAMONGA, CA 91730 SAN BERNARDINO Yes 27121 TOWNE CENTRE DR 250 FOOTHILL RANCH, CA 92610 106256 /FORBCO MANA( Dropping Partner: Yes No XXX License Type Transaction Type Fee Tvne Master Dup Date 41 ON-SALE BEER AND STOCK TRANSFER MULTIPI.~ NA Y 0 08/08/00 Total F¢~ $ I 00.00 $100.00 Have you ever been convicted of a felony? N o Have you ever violated any provisions of the Alcoholic Beverage Control Act, or regulations of the Department pertaining to the Act? No Explain any 'Yes" answer to the above questions on an attachment which shall be deemed pan of Ihis application. Applicant agrees (a) that any manager employed in an on-sale licensed premise will have all the qualifications of a licensee, and (b) that he will not violate or cause or permit to be violated any of the provisions of the Alcoholic Beverage Control Act. STATE OF CALIFORNIA County of SAN BERNARDINO Date: August 8, 2000 Under penn ly of perjury, each person whose sienatug appears below. certifies and says: ( ) He is an applicant. or one of the applicants. or an executive officer of The applicant corporation, named in the foregoing appli~ration. duly eutl~orized to make this application on its oehnif; (2) that he has read the for=going and knows the contents thereof and that each of the above statements therein made are tree; (3) that no person other than the applicant or applicants has any direct or indirect interest in the applicant or applicnnt's business to be conducted under the license(s) for which this application is made; (4) that the transfer application or proposed transfer is not made to satisfy the payment of a loan or to fulfill an agreement entered into more than ninety (90) days preceding the day on which the transfer application is filed with the Department or to gain or establish n preference to or for, any creditor or transferor or to defraud or injure any creditor of trnnsferor; (S) that the transfer applicationmay be withdrawn by either the applicant or the licensee with no resulting finbiliry to the Department. Applicant Name(s) Applicant Signature(s) FORBCO MANAGEMENT CORPORATION( P- 12 ) See 2! 1 Signature Page Alcoholic Bevera.qe License Description: Application: Applicant: Address: Description: Me 6/46 Type 41 (On sale Beer and Wine - RESTAURANT) Forbco Management Corporation - SI77LER '-~-/I~ 9588 Base Line Rd Stock transfer (existing legal) Site and Surroundinq Zonina: Office Park (OP) High (H) Residential General Commercial (GC) Neighborhood Commercial (NC) Low (L) Residential · r ~URT ~ t~r. Parcel/,,lop No, 12,504, RM. 146/3,4 P~, Porcel Map No, 7827 RM.90147-48 Porcel Mop NO. 5545, R ~J. 54/49-,50 Par~l Map No. 7;93, ~,M.b/IO A~SESSED P6 15 Pot, Por. 2 Site: North: West: East: South: Per. I e.~l,.~,l!° Roncho Cucomongo City Tox Rote Areo 15004 Assessors Mop oz ~x~ L~O~ Poge 16 Son Bemordino County THE C ITY OF ~ANCIIO CIJCAMONGA SmffRepor DATE: November 15, 2000 TO:. Mayor and Members of the City Council Jack Lam, AICP, City Manager FROM: Brad Buller, City Planner BY: Salvador M. Salazar, AICP, Associate Planner SUBJECT: AUTHORIZATION TO APPROPRIATE $2,448 IN ACCOUNT NUMBER 01-4333-6028 TO COMPLETE THE ANNEXATION PROCESS 00-01. RECOMMENDATION It is recommended that the City Council by minute action authorize an appropriation in the amount of $2,448 into account number 01-4333-6028 to fund the payment to the Local Agency Formation Commission for expenses associated with the annexation proposal (Annexation 00-01) initiated by the City of Rancho Cucamonga. The appropriation will be funded from the development fee reserve established in FY 1999/2000. BACKGROUND During the FY 1999-2000 budget process, the City of Rancho Cucamonga was in the process of negotiating a settlement agreement with the County of San Bernardino and U.C.P. Inc. (developer). As a result of the conditional settlement agreement, the City agreed to file an application with LAFCO to annex the University Planned Development project plus an additional 250 acres of unincorporated territory. The total annexation area is approximately 504 acres. The $2,448 requested in this staff report will allow the City to fulfill its obligations as described in the conditional settlement agreement. Brad Buller City Planner BB:SS:mlg T H C ITY ]~AN HO 0 F CUCAHONGA Staff Report DATE: TO: FROM: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager Duane A. Baker, Assistant to the City Manager APPROVAL OF A RESOLUTION QF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) DECLARING THE RESULTS OF A SPECIAL ELECTION Recommendation It is recommended that the City Council approve the attached resolution declaring the results of a special election held on November 7,2000 pursuant to the direction of the City Council. This election was held among the property owners in Community Facilities District (CFD) 2000-01 (South Etiwanda) to decide if a special tax should be levied, if a bonded indebtedness not to exceed $2,750,000 should be authorized and if an appropriations limit should be set at $2,750,000. On November 7, 2000 the one property owner in the CFD voted in favor of the proposals.. The election was overseen by the City Clerk and conducted in accordance with state law. Approval of this resolution will officially declare the results of this vote. Respectfully submitted, Duane A. Baker Assistant to the City Manager RESOLUTION NO. 00 - ~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (the "City Council"), has previously undertaken proceedings to create and did establish a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982," being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"). This Community Facilities District shall hereinafter be referred to as COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) (the "District"); and, WHEREAS, this City council did call for and order to be held an election to submit to the qualified electors of the District a proposition relating to the levy of special taxes and the issuance of bonds and a separate proposition relating to the establishment of an appropriations limit for the District; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3's vote of the qualified electors, and this City Council desires to declare the results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This City Council hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit "A", referenced and so incorporated. SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST. PASSED, APPROVED, And ADOPTED this day of , 2000. AYES: NOES: ABSENT: ATTEST: William J. Alexander, Mayor Debra J. Adams, CMC, City Clerk 2 EXHIBIT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) ss. CITY OF RANCHO CUCAMONGA ) The undersigned, ELECTION OFFICIAL OF THE CITY OF RANCHO CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DOES HEREBY CERTIFY that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF RANCHO CUCAMONGA COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) SPECIAL ELECTION in said City, held November 7, 2000. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. I. TOTAL NUMBER OF VOTES CAST: 64 II. VOTES CAST ON PROPOSITION A: Ill. VOTES CAST ON PROPOSITION B: WITNESS my hand and Official Seal this YES 64 NO YES 64 NO day of ////'2 ry?J"'- ,2000. ELECTION OFFICIAL CITY OF RANCHO CUCAMONGA STATE OF CALIFORNIA 3 T H E CITY OF DANCHO CUCAFIONGA Staff Report DATE: TO: FROM: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager Duane A. Baker, Assistant to the City Manager APPROVAL OF A RESOLUTION OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) DECLARING THE RESULTS OF A SPECIAL ELECTION Recommendation It is recommended that the City Council approve the attached resolution declaring the results of a special election held on November 7,2000 pursuant to the direction of the City Council. This election was held among the property owners in Community Facilities District (CFD) 2000-02 (Rancho Cucamonga Corporate Park) to decide if a special tax should be levied, if a bonded indebtedness not to exceed $7,000,000 should be authorized and if an appropriations limit should be set at $7,000,000. On November 7, 2000 the one property owner in the CFD voted in favor of the proposals. The election was overseen by the City Clerk and conducted in accordance with state law. Approval of this resolution will officially declare the results of this vote. Respectfully submitted, Duane A. Baker Assistant to the City Manager RESOLUTION NO. 00 - ~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (the "City Council"), has previously undertaken proceedings to create and did establish a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982," being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"). This Community Facilities District shall hereinafter be referred to as COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) (the "District"); and, WHEREAS, this City Council did call for and order to be held an election to submit to the qualified electors of the District a proposition relating to the levy of special taxes and the issuance of bonds and a separate proposition relating to the establishment of an appropriations limit for the District; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3's vote of the qualified electors, and this City Council desires to declare the results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This City Council hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit "A", referenced and so incorporated. SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST. PASSED, APPROVED, And ADOPTED this 2000. day of AYES: NOES: ABSENT: ATTEST: William J. Alexander, Mayor Debra J. Adams, CMC, City Clerk EXHIBIT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) ss. CITY OF RANCHO CUCAMONGA ) The undersigned, ELECTION OFFICIAL OF THE CITY OF RANCHO CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DOES HEREBY CERTIFY that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF RANCHO CUCAMONGA COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) SPECIAL ELECTION in said City, held November 7, 2000. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. I. TOTAL NUMBER OF VOTES CAST: 138 II. VOTES CAST ON PROPOSITION A: III. VOTES CAST ON PROPOSITION B: WITNESS my hand and Official Seal this YES 138 NO YES 138 NO day of /") Z~/7'. ,2000. ELECTION OFFICIAL CITY OF RANCHO CUCAMONGA STATE OF CALIFORNIA 3 TH CITY ~ANCIIO OF CUCAMONGA SlaffReport DATE: TO: FROM: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager Duane A. Baker, Assistant to the City Manager APPROVAL OF A RESOLUTION OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT 2000-01 (SOUTH ETIWANDA) AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF BONDS, APPROVING THE FORM OF THE BOND INDENTURE, BOND PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT, AND OTHER DOCUMENTS AND ACTIONS IN CONNECTION WITH THE ISSUANCE OF BONDS Recommendation It is recommended that the City Council approve the attached Resolution authorizing the issuance of bonds to acquire storm drains, streets, water and sewer improvements in Community Facilities District (CFD) 2000-01 (South Etiwanda). This Resolution would also approve the various documents necessary for the sale of bonds. These documents include the Bond Indenture, Bond Purchase Agreement, and Preliminary Official Statement. This Resolution will also authorize the City Manager to approve the final pricing of the bonds as long as it falls within the parameters set forth in the Resolution. These actions are consistent with prior actions of the City Council declaring the necessity and intent to sell bonds in this CFD. Back,clround On November 1, 2000 the City Council, acting as the Legislative Body for CFD 2000-01, approved Resolutions 00-235 and 00-236. These Resolutions authorized an election in the CFD to incur bonded indebtedness and also declared the necessity to incur bonded indebtedness. The election was held on November 7,2000 and was unanimous in favor of incurring the bonded indebtedness. Page 2 November 15, 2000 APPROVAL OF A RESOLUTION OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT 2000-01 (SOUTH ETIWANDA) AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF BONDS, APPROVING THE FORM OF THE BOND INDENTURE, BOND PURCHASE AGREEMENT, P The bonds are being sold to provide funds to acquire needed public facilities in the South Etiwanda CFD. The facilities are storm drains, streets, water and sewer improvements. The debt service for these bonds will be secured by the special tax levied in this CFD, Only the property owners in this CFD will be responsible for the obligations of the bonds. This Resolution also approves the forms of the Bond Indenture, Bond Purchase Agreement, Preliminary Official Statement and Continuing Disclosure Certificate and authorizes the City Manager to approve the final forms of these documents subject to review by the City Attorney and Bond Counsel. These documents are required for the bond sale to proceed, These documents are included under separate cover. The Bond Indenture spells out the responsibilities of the CFD to the bondholders, The Bond Purchase Agreement covers the arrangement of the sale of the bonds to the underwriter. The Preliminary Official Statement is a document for potential investors disclosing necessary information about the CFD, the bonds and the subject properties. The Continuing Disclosure Certificate is required by the Securities and Exchange Commission to insure that changes in conditions in the CFD that will be of interest to investors and bondholders will be reported. Finally, this Resolution authorizes the City Manager to approve the final pricing of the bonds that will be negotiated with the underwriter within the parameters set forth in the Resolution. Because this action is consistent with the intent and past actions of the City Council, your approval is recommended. ~.ectfully s~.~,~J/_j_/~ Assistant to the City Manager RESOLUTION NO. 00-_~..~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-1 (SOUTH ETIWANDA), AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF SPECIAL TAX BONDS OF THE DISTRICT, APPROVING THE FORM OF BOND INDENTURE, BOND PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT AND OTHER DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (this "City Council"), did previously conduct proceedings to form and did form a community facilities district pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"), such Community Facilities District designated as COMMUNITY FACILITIES NO. 2000-1 (SOUTH ETIWANDA) (the "Community Facilities District") for the purpose of financing the acquisition of certain public improvements; and, WHEREAS, as required by the Act, this City Council has previously adopted a statement of local goals and policies concerning the use of the Act entitled the "City of Rancho Cucamonga Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts" (the "Goals and Policies"); and WHEREAS, this City Council has previously declared its intention to issue bonds to finance the acquisition of such improvements, such bonds to be issued pursuant to the terms and provisions of the Act and the Goals and Policies; and, WHEREAS, at this time this City Council desires to set forth the general terms and conditions relating to the authorization, issuance and administration of such bonds; and, WHEREAS, the forms of the following documents have been presented to and considered for approval by this City Council: .A. Bond Indenture by and between the Community Facilities District and Wells Fargo Bank, National Association, as fiscal agent (the "Fiscal Agent") setting forth the terms and conditions relating to the issuance and sale of bonds (the "Bond Indenture"); Bond Purchase Agreement authorizing the sale of bonds to Stone & Youngberg LLC, the designated underwriter (the "Bond Purchase Agreement"); Preliminary Official Statement containing information including but not limited to the Community Facilities District and the bonds, including the terms and conditions thereof (the "Preliminary Official Statement"); and Continuing Disclosure Certificate pursuant to which the Community Facilities District will be obligated to provide ongoing annual disclosure relating to the bonds (the "Continuing Disclosure Certificate"); and WHEREAS, this City Council, with the aid of City staff, has reviewed and considered the Bond Indenture, the Bond Purchase Agreement, the Continuing Disclosure Certificate and the Preliminary Official Statement and finds those documents suitable for approval, subject to the conditions set forth in this resolution; and WHEREAS, all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of the bonds as contemplated by this resolution and the documents referred to herein exist, have happened and have been performed or have been ordered to have been preformed in due time, form and manner as required by the laws of the State of California, including the Act and the applicable policies and regulations of the City of Rancho Cucamonga; and WHEREAS, this City Council has also been presented with and considered the approval of the form of an Acquisition/Financing Agreement (the "Acquisition Agreement") by and between the City of Rancho Cucamonga, acting for and on behalf of itself and the District, and Pacific Communities which establishes the terms and conditions pursuant to which the authorized public improvements are to be acquired by the City, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Recitals. The above recitals are true and correct. SECTION 2. Determinations. This legislative body hereby makes the following determinations pertaining to the proposed issuance of the Bonds: (a) The Act authorizes the City Council, acting as the legislative body of the Community Facilities District, to sell the Bonds only if the City Council has determined prior to the award of the sale of the Bonds that the value of such properties will be at least 3 times the principal amount of the Bonds and the principal amount of all other bonds outstanding that are secured by a special tax levied pursuant to the Act on property within the Community Facilities District or a special assessment levied on property within the Community Facilities District (collectively, "Land Secured Bonded Indebtedness"). The value of the property within Community Facilities District which will be subject to the special tax to pay debt service on the Bonds will be at least 3 times the Land Secured Bonded Indebtedness AIIocable to such properties. The foregoing determinations are based upon the full cash value of such properties and development areas as shown upon an appraisal of the subject properties prepared by Bruce Hull & Associates, a state certified real estate appraiser, as defined in Business and Professions Code Section 11340(c). Such determination was made in a manner consistent with the Goals and Policies. (b) The terms and conditions of the Bonds as contained in the Bond Indenture are consistent with and conform to the Goals and Policies. (C) As a result of the current status of development of the property within the Community Facilities District and the relative overall lack of diversity of ownership of property within the Community Facilities District, the private sale of the Bonds will result in a lower overall cost to the Community Facilities District. SECTION 3. Bonds Authorized. Pursuant to the Act, this Resolution and the Bond Indenture, special tax bonds of the Community Facilities District designated as "City of Rancho Cucamonga Community Facilities District No. 2000-1 (South Etiwanda) Special Tax Bonds, Series 2000" (the "Bonds") in an aggregate principal amount not to exceed $1,750,000 are hereby authorized to be issued. The date, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption and other terms, covenants and conditions of the Bonds shall be as provided in the Bond Indenture as finally executed. SECTION 4. Authorization and Conditions. The City Manager and such other official or officials of the City as may be designated by this City Council (each, an "Authorized Officer") are each hereby authorized and directed to execute and deliver the final form of the various documents and instruments described in this Resolution, with such additions thereto or changes therein as such Authorized Officer may deem necessary and advisable provided that no additions or changes shall authorize an aggregate principal amount of Bonds in excess ef$1,750,000, an annual interest rate on the Bonds in excess of seven percent (7%) per year and a purchase price for the Bonds not less than ninety seven percent (97%) of the par amount of the Bonds (excluding original issue discount, if any). The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of such documents or instruments by an Authorized Officer, following consultation with and review by the City Attorney and Best Best & Krieger LLP, the Community Facilities District's bond counsel. SECTION 5. Bond Indenture. The form of Bond Indenture by and between the Community Facilities District and the Fiscal Agent, with respect to the Bonds as presented to this City Council and on file with the City Clerk is hereby appreved. An Authorized Officer is hereby authorized and directed to cause the same to be completed and executed on behalf of the Community Facilities District, subject to the provisions of Section 4 above. SECTION 6. Official Statement and Continuin.q Disclosure Certificate. The City Council hereby approves the form of the Preliminary Official Statement as presented to this City Council and on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by the City Manager or, in the absence of the City Manager, another Authorized Officer. Pursuant to Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule") the City Manager or, in the absence of the City Manager, another Authorized Officer is authorized to determine when the Preliminary Official Statement is deemed final, and the City Manager or such other Authorized Official is hereby authorized and directed to provide written certification thereof. The execution of the final Official Statement, which shall include such changes and additions thereto deemed advisable by the City Manager or, in the absence of the City Manager, another Authorized Officer pursuant to the Rule, shall be conclusive evidence of the approval of the final Official Statement by the Community Facilities District. The City Council hereby authorizes the distribution of the final Official Statement by the Underwriter as the initial purchaser of the Bonds. The form of Continuing Disclosure Certificate as presented to this City Council and on file with the City Clerk is hereby approved. An Authorized Officer is hereby authorized and directed to cause the same to be completed and executed on behalf of the Community Facilities District, subject to the provisions of Section 4 above. SECTION 7. Sale of Bonds. This City Council hereby authorizes and approves the negotiated sale of the Bonds to Stone & Youngberg LLC (the "Underwriter"). The form of the Bond Purchase Agreement is hereby approved and an Authorized Officer is hereby authorized and directed to execute the Bond Purchase Agreement on behalf of the Community Facilities District upon the execution thereof by the Underwriter, subject to the provisions of Section 4 above. SECTION 8. Bonds Prepared and Delivered. Upon the execution of the Bond Purchase Agreement, the Bonds shall be prepared, authenticated and delivered, all in accordance with the applicable terms of the Act and the Bond Indenture, and any Authorized Officer and other responsible City officials, acting for and on behalf of the Community Facilities District, are hereby authorized and directed to take such actions as are required under the Bond Purchase Agreement and the Bond Indenture to complete all actions required to evidence the delivery of the Bonds upon the receipt of the purchase price thereof from the Underwriter. SECTION 9. Actions. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Community Facilities District and the sale and issuance of the Bonds are hereby approved, confirmed and ratified, and the proper officers of the City, acting for and on behalf of the Community Facilities District, are hereby 4 authorized and directed to do any and all things and take any and all actions and execute any and all certificates, agreements, contracts, and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with the Act, this Resolution, the Bond Indenture, the Bond Purchase Agreement, the Continuing Disclosure Certificate, and any certificate, agreement, contract, and other document described in the documents herein approved, SECTION 10. Acquisition Agreement. The form of Acquisition Agreement as presented to this City Council and on file with the City Clerk is hereby approved. An Authorized Officer is hereby authorized and directed to execute and deliver the final form of the Acquisition Agreement, with such additions thereto or changes therein as such Authorized Officer may deem necessary and advisable. The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of the Acquisition Agreement by an Authorized Officer, following consultation with and review by the City Attorney and Bond Counsel. SECTION 11. Effective Date. This resolution shall take effect from and after its adoption. 200O. PASSED, APPROVED, And ADOPTED this AYES: NOES: ABSENT: day of ATTEST: William J. Alexander, Mayor Debra J. Adams, CMC, City Clerk 5 THE CITY OF I~ANCHO CUCAMONGA StaffRe rt DATE: TO: FROM: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager Duane A. Baker, Assistant to the City Manager APPROVAL OF A RESOLUTION OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF BONDS, APPROVING THE FORM OF THE BOND INDENTURE, BOND PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT, AND OTHER DOCUMENTS AND ACTIONS IN CONNECTION WITH THE ISSUANCE OF BONDS Recommenda~on It is recommended that the City Council approve the attached Resolution authorizing the issuance of bonds to acquire storm drains, streets, landscaping, water and sewer improvements in Community Facilities District (CFD) 2000-02 (Rancho Cucamonga Corporate Park). This Resolution would also approve the various documents necessary for the sale of bonds. These documents include the Bond Indenture, Bond Purchase Agreement, and Preliminary Official Statement. This Resolution will also authorize the City Manager to approve the final pricing of the bonds as long as it falls within the parameters set forth in the Resolution. These actions are consistent with prior actions of the City Council declaring the necessity and intent to sell bonds in this CFD. Backclround On November 1, 2000 the City Council, acting as the Legislative Body for CFD 2000-02, approved Resolutions 00-222 and 00-223. These Resolutions authorized an election in the CFD to incur bonded indebtedness and also declared the necessity to incur bonded indebtedness. The election was held on November 7,2000 and was unanimous in favor of incurring the bonded indebtedness. Page 2 November 15, 2000 APPROVAL OF A RESOLUTION OF THE CITY COUNCIL ACTING AS THE LEGISLA'I'IVE BODY FOR COMMUNITY FACILITIES DISTRICT 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF BONDS, APPROVING THE FORM OF THE BOND INDENTURE, BOND PURC The bonds are being sold to provide funds to acquire needed public facilities in the vicinity of this CFD. The facilities are storm drains, streets, landscaping, water and sewer improvements. The debt service for these bonds will be secured by the special tax levied in this CFD. Only the property owners in this CFD will be responsible for the obligations of the bonds. This Resolution also approves the forms of the Bond Indenture, Bond Purchase Agreement, Preliminary Official Statement and Continuing Disclosure Certificate and authorizes the City Manager to approve the final forms of these documents subject to review by the City Attorney and Bond Counsel. These documents are required for the bond sale to proceed. These documents are included under separate cover. The Bond Indenture spells out the responsibilities of the CFD to the bondholders. The Bond Purchase Agreement covers the arrangement of the sale of the bonds to the underwriter. The Preliminary Official Statement is a document for potential investors disclosing necessary information about the CFD, the bonds and the subject properties. The Continuing Disclosure Certificate is required by the Securities and Exchange Commission to insure that changes in conditions in the CFD that will be of interest to investors and bondholders will be reported. Finally, this Resolution authorizes the City Manager to approve the final pricing of the bonds that will be negotiated with the underwriter within the parameters set forth in the Resolution. Because this action is consistent with the intent and past actions of the City Council, your approval is recommended. Respectfully submitted, Duane A. Baker Assistant to the City Manager RESOLUTION NO. 00- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000- 02 (RANCHO CUCAMONGA CORPORATE PARK), AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF SPECIAL TAX BONDS OF THE DISTRICT, APPROVING THE FORM OF BOND INDENTURE, BOND PURCHASE AGREEMENT, PRELIMINARY OFFICIAL STATEMENT AND OTHER DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (this "City Council"), did previously conduct proceedings to form and did form a community facilities district pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"), such Community Facilities District designated as COMMUNITY FACILITIES NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) (the "Community Facilities District") for the purpose of financing the acquisition of certain public improvements; and, WHEREAS, as required by the Act, this City Council has previously adopted a statement of local goals and policies concerning the use of the Act entitled the "City of Rancho Cucamonga Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts" (the "Goals and Policies"); and WHEREAS, this City Council has previously declared its intention to issue bonds to finance the acquisition of such improvements, such bonds to be issued pursuant to the terms and provisions of the Act and the Goals and Policies; and, WHEREAS, at this time this City Council desires to set forth the general terms and conditions relating to the authorization, issuance and administration of such bonds; and, WHEREAS, the forms of the following documents have been presented to and considered for approval by this City Council: Bond Indenture by and between the Community Facilities District and Wells Fargo Bank, National Association, as fiscal agent (the "Fiscal Agent") setting forth the terms and conditions relating to the issuance and sale of bonds (the "Bond Indenture"); Bond Purchase Agreement authorizing the sale of bonds to Stone & Youngberg LLC, the designated underwriter (the "Bond Purchase Agreement"); Preliminary Official Statement containing information including but not limited to the Community Facilities District and the bonds, including the terms and conditions thereof (the "Preliminary Official Statement"); and Continuing Disclosure Certificate pursuant to which the Community Facilities District will be obligated to provide ongoing annual disclosure relating to the bonds (the "Continuing Disclosure Certificate"); and WHEREAS, this City Council, with the aid of City staff, has reviewed and considered the Bond Indenture, the Bond Purchase Agreement, the Continuing Disclosure Certificate and the Preliminary Official Statement and finds those documents suitable for approval, subject to the conditions set forth in this resolution; and WHEREAS, all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of the bonds as contemplated by this resolution and the documents referred to herein exist, have happened and have been performed or have been ordered to have been preformed in due time, form and manner as required by the laws of the State of California, including the Act and the applicable policies and regulations of the City of Rancho Cucamonga; and WHEREAS, this City Council has also been presented with and considered the approval of the form of an Acquisition/Financing Agreement (the "Acquisition Agreement") by and between the City of Rancho Cucamonga, acting for and on behalf of itself and the District, and Catellus Development Corporation which establishes the terms and conditions pursuant to which the authorized public improvements are to be acquired by the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Recitals. The above recitals are true and correct. SECTION 2. Determinations. This legislative body hereby makes the following determinations pertaining to the proposed issuance of the' Bonds: The Act authorizes the City Council, acting as the legislative body of the Community Facilities District, to sell the Bonds only if the City Council has determined prior to the award of the sale of the Bonds that the value of such properties will be at least 3 times the principal amount of the Bonds and the principal amount of all other bonds outstanding that are secured by a special tax levied pursuant to the Act on property within the Community Facilities District or a special assessment levied on property within the Community -Facilities District (collectively, "Land Secured Bonded Indebtedness") 2 The value of the property within Community Facilities District which will be subject to the special tax to pay debt service on the Bonds will be at least 3 times the Land Secured Bonded Indebtedness AIIocable to such properties. The foregoing determinations are based upon the full cash value of such properties and development areas as shown upon an appraisal of the subject properties prepared by Bruce Hull & Associates, a state certified real estate appraiser, as defined in Business and Professions Code Section 11340(c). Such determination was made in a manner consistent with the Goals and Policies. (b) The terms and conditions of the Bonds as contained in the Bond Indenture are consistent with and conform to the Goals and Policies. (c) As a result of the current status of development of the property within the Community Facilities District and the relative overall lack of diversity of ownership of property within the Community Facilities District, the private sale of the Bonds will result in a lower overall cost to the Community Facilities District. SECTION 3. Bonds Authorized. Pursuant to the Act, this Resolution and the Bond Indenture, special tax bonds of the Community Facilities District designated as "City of Rancho Cucamonga Community Facilities District No. 2000-02 (Rancho Cucamonga Corporate Park) Special Tax Bonds, Series 2000" (the "Bonds") in an aggregate principal amount not to exceed $7,000,000 are hereby authorized to be issued. The date, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption and other terms, covenants and conditions of the Bonds shall be as provided in the Bond Indenture as finally executed. SECTION 4. Authorization and Conditions, The City Manager and such other official or officials of the City as may be designated by this City Council (each, an "Authorized Officer") are each hereby authorized and directed to execute and deliver the final form of the various documents and instruments described in this Resolution, with such additions thereto or changes therein as such Authorized Officer may deem necessary and advisable provided that no additions or changes shall authorize an aggregate principal amount of Bonds in excess of $7,000,000, an annual interest rate on the Bonds in excess of seven percent (7.00%) per year and a purchase price for the Bonds not less than ninety eight percent (98%) of the par amount of the Bonds (excluding original issue discount, if any). The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of such documents or instruments by an Authorized Officer, following consultation with and review by the City Attorney and Best Best & Krieger LLP, the Community Facilities District's bond counsel. SECTION S. Bond Indenture. The form of Bond Indenture by and between the Community Facilities District and the Fiscal Agent, with respect to the Bonds as presented to this City Council and on file with the City Clerk is hereby approved. An Authorized Officer is hereby authorized and directed to cause the same to be completed and executed on behalf of the Community Facilities District, subject to the provisions of Section 4 above. SECTION 6. Official Statement and Continuing Disclosure Certificate. The City Council hereby approves the form of the Preliminary Official Statement as presented to this City Council and on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by the City Manager or, in the absence of the City Manager, another Authorized Officer. Pursuant to Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule") the City Manager or, in the absence of the City Manager, another Authorized Officer is authorized to determine when the Preliminary Official Statement is deemed final, and the City Manager or such other Authorized Official is hereby authorized and directed to provide written certification thereof. The execution of the final Official Statement, which shall include such changes and additions thereto deemed advisable by the City Manager or, in the absence of the City Manager, another Authorized Officer pursuant to the Rule, shall be conclusive evidence of the approval of the final Official Statement by the Community Facilities District. The City Council hereby authorizes the distribution of the final Official Statement by the Underwriter as the initial purchaser of the Bonds. The form of Continuing Disclosure Certificate as presented to this City Council and on file with the City Clerk is hereby approved. An Authorized Officer is hereby authorized and directed to cause the same to be completed and executed on behalf of the Community Facilities District, subject to the provisions of Section 4 above. SECTION 7. Sale of Bonds. This City Council hereby authorizes and approves the negotiated sale of the Bonds to Stone & Youngberg LLC (the "Underwriter"). The form of the Bond Purchase Agreement is hereby approved and an Authorized Officer is hereby authorized and directed to execute the Bond Purchase Agreement on behalf of the Community Facilities District upon the execution thereof by the Underwriter, subject to the provisions of Section 4 above. SECTION 8. Bonds Prepared and Delivered. Upon the execution of the Bond Purchase Agreement, the Bonds shall be prepared, authenticated and delivered, all in accordance with the applicable terms of the Act and the Bond Indenture, and any Authorized Officer and other responsible City officials, acting for and on behalf of the Community Facilities District, are hereby authorized and directed to take such actions as are required under the Bond Purchase Agreement and the Bond Indenture to complete all actions required to evidence the delivery of the Bonds upon the receipt of the purchase price thereof from the Underwriter. SECTION 9. Actions. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Community Facilities District and the sale and 4 issuance of the Bonds are hereby approved, confirmed and ratified, and the proper officers of the City, acting for and on behalf of the Community Facilities District, are hereby authorized and directed to do any and all things and take any and all actions and execute any and all certificates, agreements, contracts, and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with the Act, this Resolution, the Bond Indenture, the Bond Purchase Agreement, the Continuing Disclosure Certificate, and any certificate, agreement, contract, and other document described in the documents herein approved. SECTION 10. Acquisition Agreement. The form of Acquisition Agreement as presented to this City Council and on file with the City Clerk is hereby approved. An Authorized Officer is hereby authorized and directed to execute and deliver the final form of the Acquisition Agreement, with such additions thereto or changes therein as such Authorized Officer may deem necessary and advisable. The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of the Acquisition Agreement by an Authorized Officer, following consultation with and review by the City Attorney and Bond Counsel. SECTION 11. Effective Date. This resolution shall take effect from and after its adoption. 2000. PASSED, APPROVED, And ADOPTED this AYES: NOES: ABSENT: day of ATTEST: William J. Alexander, Mayor Debra J. Adams, CMC, City Clerk 5 C H 0 CUCAMONGA ENGINEERING DEPARTSlENT S' fReport DATE: TO: FROM: BY: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP City Manager William J. O'Neil, City Engineer Jeff Barnes, Maintenance Superintendent APPROVAL TO AUTHORIZE THE REPLACEMENT PURCHASE OF ONE STUMP GRINDER, FROM VERMEER-CALIFORNIA, INC. OF FONTANA, CALIFORNIA FUNDED FROM ACCOUNT 1-712-001-5603 IN THE AMOUNT OF $34,845.27 RECOMMENDATION: It is recommended that the City Council authorize the replacement purchase of one Stump Grinder, from Vermeer-California, Inc. of Fontana, California, funded from account 1-712-001- 5603. BACKGROUND/ANALYSIS: City Staff has reviewed several different stump grinder manufacturer models for the replacement of the current 1989 that is currently used by the City Tree Crew. As a result of the reviews, staff is recommending replacing the existing stump grinder with a similar, though improved unit. Based on past performance of our current Vermeer Stump Grinder unit along with the excellent local service and pads availability; Staff recommends replacement approval. Respectfully Submitted, William J. O'Neil City Engineer WJO:JB:ju I~ A C H O C U C A M O N G A Staff Report DATE: November 15, 2000 TO: Mayor and Members of the City Council Jack Lam, AICP, City Manager FROM: William J. O'Neil, City Engineer BY: Jerry Dyer, Project I~na;~ng:rln~gTe Richard J. Oaxaca, chnician -/~ SUBJECT: REJECT ALL BIDS FOR THE FY 2000/2001 BUS BAY IMPROVEMENTS, AT VARIOUS LOCATIONS, ON HAVEN AVENUE SOUTH OF LEMON AVENUE, VINEYARD AVENUE SOUTH OF FOOTHILL BOULEVARD, AND RED OAK STREET NORTH OF ARROW ROUTE, AS NONRESPONSIVE TO THE NEEDS OF THE CITY It is recommended that the City council reject all bids for the FY 2000/2001 Bus Bay Improvements, at Various Locations, as nonresponsive to the needs of the City. BACKGROUND ANALYSIS: Per previous Council action, bids were solicited, received and opened on October 17, 2000, for the subject project. The Engineer's estimate was $55,872.00. All bids exceeded the Engineer's Estimate. Staff will study and redesign the project and seek permission to re-bid the project at a future date. Respectfully submitted, William J. O'Neil City Engineer WJO:JRD:RJO RANC hO ENGINEEDING CUCAMONGA DEPAI~TMENT Sk/fRe rt DATE: TO: FROM: BY: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager William J. O'Neil, City Engineer Jon A. Gillespie, Traffic Engineer APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH CH2MHILL INC. TO PROVIDE PROJECT STUDY REPORT SERVICES .FOR FUTURE FREEWAY INTERCHANGE AT 6TM STREET AND 1-15 FREEWAY' IN THE AMOUNT OF $149,983.00, AND AUTHORIZATION OF 10% CONTINGENCY TO BE FUNDED FROM ACCOUNT NO. 112430356501248124 (NEW #) 22-4637-9956 (OLD #) RECOMMENDATION: It is recommended that the City Council approve, award and execute the Professional Services Agreement with CH2MHILL, Inc. to provide Project Study Report Services for future freeway interchange at 6th Street and 1-15 Freeway in the amount of $149.983.00, and authorization of 10% contingency to be funded from Account No. 112430356501248124 (new #) 22-4637-9956 (old #). BACKGROUND/ANALYSIS: The City is currently experiencing a lot of new development in the vicinity of 6th Street and the 1-15 Freeway. City staff anticipates that a new freeway interchange at 6th Street and the 1-15 Freeway will be needed in the near future. The preparation of a project study report is the first step in the process required by Caltrans before any improvements can be constructed on a State owned facility. The improvement of the 6th Street at the 1-15 Freeway interchange is included in the City's Transportation Development Fee Program. City staff sent out requests for proposals to six qualified engineering consultants. After carefully reviewing the Consultant's proposals, staff recommends CH2MHILL, Inc. as the most qualified and responsible firm. The Professional Services Agreement has been reviewed by and is acceptable to the City Attorney. City Engineer WJO:JAG:Is ,ERSEY 8~H r~ 6TH Location 61'8 VICINITY MAP 6th Street and Interstate 15 RANCHO CUCAMONGA ENGINEERING DEPARTMENT S affRel rt DATE: TO: November 15, 2000 Mayor, Members Of the City Council Jack Lam, AICP, City Manager FROM: BY: SUBJECT: William J. O'Neil, City Engineer Cindy Hackerr, Associate Engineef~ AWARD AND AUTHORIZE THE EXECUTION OF THE PROFESSIONAL SERVICES AGREEMENT (AMENDED CORA00-008) FOR THE SOILS AND MATERIAL TESTING OF THE FOOTHILL BOULEVARD MEDIAN IMPROVEMENT PROJECT, PHASE II, TO RMA GROUP'. IN AN AMOUNT NOT TO EXCEED $98,095, TO BE FUNDED FROM ACCOUNT 32-4637-9824 (11763035650/11701760) RECOMMENDATION: It is recommended that the City Council award and authorize the Professional Services Agreement (Amended CORA00-008) for soils and materials testing for the Foothill Boulevard Median Improvement Project, Phase II, to RMA Group in an amount of $98,095, to be funded from account 32-4637-9824 (11763035650/11701760). BACKGROUND / ANALYSIS: An agreement was executed with RMA Group on March 15, 2000, to provide soils and testing services under CORA00-008. During construction, the scope of work was expanded due to the requirements of CalTrans and unforeseen site conditions. This amended agreement has been prepared and signed by RMA Group to cover the expanded scope of work. Res ully submitted~f.j~ ' ell WJO:CH Attachment R A C H O C U C A M O N G A St/fffReport DATE: TO: FROM: BY: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager William J. O'Neil, City Engineer Linda R. Beek, Jr. Engineer..d~ RELEASE OF MAINTENANCE GUARANTEE BOND, CERTIFICATE OF DEPOSIT IN THE AMOUNT OF $2,076.00 FOR CUP 95-32, LOCATED AT 9777 FOOTHILL BOULEVARD ' ' '- RECOMMENDATION: It is recommended that the City Council authorize the City Clerk to release Maintenance Guarantee Bond, Certificate of Deposit in the amount of $2,076.00 for CUP 95-32, located at 9777 Foothill Boulevard. BACKGROUND ANALYSIS: The required one-year maintenance period has ended and the street improvements remain free from defects in materials and workmanship. Developer: Foothill Auto Body 9777 Foothill Boulevard Rancho Cucamonga, CA ~Neis~~ City Engineer WJO:LRB:Is City of Rancho Cucamonga Engineering Department CUP 95-32 <1 BASE HLRGH LINE 'ST: FOOTHILL PROJECT,//] · ,SITE ARROW AVE, z BLVD. z BLVD. N.T.S. VICINITY MAP fi NORTH AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING DEVELOPMENT DISTRICT AMENDMENT 00-03, A REQUEST TO AMEND THE DEVELOPMENT DISTRICTS MAP FROM GENERAL COMMERCIAL TO HIGH RESIDENTIAL (24-30 DWELLING UNITS PER ACRE) WITH A SENIOR HOUSING OVERLAY DISTRICT FOR 1.31 ACRES OF LAND LOCATED SOUTH OF THE INTERSECTION OF MALVERN AVENUE AND SALINA STREET, AND MAKING FINDINGS IN SUPPORT THEREOF. APN 209-041-47. A. Recitals. 1. The Southern California Housing Development Corporation filed an application for .Development Distdct Amimdment No. 00-03, as described in the title of this Ordinance. Hereinafter ~n this Ordinance, the subject Development Distdct Amendment is referred to as "the application." 2. On September 27, 2000, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public headng on an associated application and issued Resolution No. 00-108 recommending to the City Council that the associated General Plan Amendment No. 00-02B be approved. 3. On September 27, 2000, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public headng on the application and issued Resolution No. 109, recommending to the City Council that the application be approved. 4. On November 1,2000, the City Council of the City of Rancho Cucamonga conducted a duly noticed public headng on an associated application and issued Resolution No. * approving the associated General Plan Amendment No. 00-02B. 5. On November 1,2000, the City Council of the City of Rancho Cucamonga conducted a duly noticed public headrig the application 6. All legal prerequisites pdor to the adoption of this Ordinance have occurred. B. Ordinance. NOW, THEREFORE, it is hereby found, determined, and ordained by the City Council of the City of Rancho Cucamonga as follows: 1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct. 2. Based upon the substantial evidence presented to this Council dudng the above- referenced public headrig on November 1, 2000, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows: a. The application applies to approximately 1.31 acres of land, basically an "L" shaped configuration, located south of the intersection of Malvem Avenue and Salina Street, which is presently vacant. Said property is currently designated as Commercial General; and CiTY COUNCIL ORDINANCE NO. DDA 00-03 - SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORP. NOVEMBER 1, 2000 Page 2 b. The property to the north of the subject site is designated General Commemial and is developed with a parking lot for use by the City's Senior Center and beyond there is a neighborhood shopping center. The properties to the west are designated General Commercial and are developed with office structures. The property to the east, on the east side of Malvem Avenue, are designated Low Residential (2-4 dwelling units per acre) and developed with the Rancho Cucamonga Senior Center, and further east the land is developed with single family houses. The property to the south is within the Low Residential (2-4 dwelling units per acre) designation and is developed with the Cucamonga Elementary School; and; and c. This amendment does not conflict with the Land Use Policies of the General Plan and will provide for development within the distdct in a manner consistent with the General Plan and with related development through the land use review process of this application; and d. This amendment does promote the goals and objectives of the Land Use Element by designating appropriate land use designations for senior housing on the subject site; and e. This amendment would not be materially injurious or detrimental to the adjacent properties and would not have a significant impact on the environment nor the surrounding properties as evidenced by the findings of the environmental analysis. 3. Based upon the substantial evidence presented to this Council during the above- referenced public headrig and upon the specific findings of facts set forth in paragraphs 1 and 2 above, this Council hereby finds and concludes as follows: a. That the subject property is suitable for the uses permitted in the proposed district in terms of access, satisfying the location requirements of the Senior Housing Overlay District, and compatibility with existing land use in the surrounding area as evidenced by its close proximity to a senior recreation center; and b. That the proposed amendment would not have significant impacts on the environment nor the surrounding properties as evidenced by the conclusions listed in the Initial Study Parts I and II; and c. That the proposed amendment is in conformance with the General Plan and with the Development Code by the consideration of a Development Agreement which contains provisions for the Senior Housing Oveday Distdct designation. 4. Based upon the facts and information contained in the proposed Negative Declaration, together with all wdtten and oral reports included for the environmental assessment for the application, the City Council finds that there is no substantial evidence that the project will have a significant effect upon the environment and adopts a Negative Declaration based upon the findings as follows: a. That the Negative Declaration has been prepared in compliance with the California Environmental Quality Act of 1970, as amended, and the State CEQA guidelines promulgated thereunder; that said Negative Declaration and the Initial Study prepared therefore reflect the independent judgment of the City Council; and, further, this Council has reviewed and considered the inforrnation contained in said Negative Declaration with regard to the application. CITY COUNCIL ORDINANCE NO. DDA 00-03 - DEVELOPMENT DISTRICT AMENDMENT Page 3 b. That based upon the changes and alterations, which have been incorporated into the proposed project, no significant adverse environmental effects will occur. c. Pursuant to the provisions of Section 753.5(c) of Title 14 of the California Code of Regulations, the City Council finds as follows: In considering the record as a whole, the Initial Study and Negative Declaration for the project, there is no evidence that the proposed project will have potential for an adverse impact upon wildlife resources or the habitat upon which wildlife depends. Further, based upon substantial evidence contained in the Negative Declaration, the staff reports and exhibits, and the information provided to the City Council during the public hearing, the City Council hereby rebuts the presumption of adverse effect as set fodh in Section 753.5(c-1 -d) of Title 14 of the California Code of Regulations. 5. Based upon the findings and conclusions set forth in paragraphs 1,2, 3, and 4 above, this Council hereby recommends approval of Development District Amendment No. 00-03 to establish a High Residential (24-30 dwelling units per acre) District and accompanying Senior Housing Overlay Distdct at the site described in this Ordinance and shown in Exhibit "A" of this Ordinance. 6. The Secretary to this Commission shall certify to the adoption of this Ordinance. APPROVED AND ADOPTED THIS 1ST DAY OF NOVEMBER 2000. CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA BY: A'I'FEST: I, Debra Adams, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Ordinance was duly and regularly introduced, passed, and adopted by the City Council of the City of Rancho Cucamonga, at a regular meeting of the City Council held on the 1st day of November 2000, by the following vote-to-wit: AYES: NOES: ABSENT: DDA 00-03 - Development Districts Map Arrow Hwy. ~(24-30 dwelling units/acre) ,_:.i::i:~~ iiii Alpine S,~ ODAO~3 ¢~::iii:.i: ii:::!:i:i :i:iiii::i!i2i :::::i :~i:::~: Chan9e to HighResidential ;t~**'~ i~ 'ii :~ii:iii: iii ~:iii: i : : ::.: ::: Salena St. single family neighborhood m Application site Development Districts ~ LOW ~ LOW MEDIUM ~ MEDIUM II~ MEDIUM HIGH ~ HIGH ~ OFFICE PROFESSIONAL ~ GENERAL COMMERCIAL ~ GENERAL INDUSTRIAL ~ ELEMENTARY SCHOOL no scale ORDINANCE NO. AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA APPROVING DEVELOPMENT AGREEMENT NO. 00-02, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF RANCHO CUCAMONGA AND THE SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION FOR THE PURPOSE OF PROVIDING A SENIOR HOUSING PROJECT IN ACCORDANCE WITH THE SENIOR HOUSING OVERLAY DISTRICT (SHOD), INCLUDING DEVIATIONS FROM CERTAIN DEVELOPMENT STANDARDS FOR 48 SENIOR APARTMENT UNITS AND ONE MANAGER UNIT LOCATED SOUTH OF THE INTERSECTION OF MALVERN AVENUE AND SALINA STREET, AS PROVIDED FOR IN SECTION 65864 OF THE CALIFORNIA GOVERNMENT CODE, FOR REAL PROPERTY DESCRIBED HEREIN, AND MAKING FINDINGS IN SUPPORT THEREOF- APN 209-041-47 A. Recitals. (i) California Government Code Section 65864 now provides, in pertinent part, as follows: "The Legislature finds and declares that: a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other developments to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development." (ii) California Government Code Section 65865 provides, in pertinent part, as follows: "Any city...may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property as provided in this article..." (iii) California Government Code Section 65865.2 provides, in part, as follows: "A Development Agreement shall specify the duration of the Agreement. the permitted uses of the property, the density of intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The Development Agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for discretionary actions shall not prevent development of the land for the uses and to the density of intensity of development set forth in the Agreement..." CiTY COUNCIL ORDINANCE NO. SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION November 1, 2000 Page 2 (iv) "Attached to this Ordinance, marked as Exhibit "A" and incorporated herein by this reference is proposed Development Agreement 00-02, concerning that property located at the southwest corner of Malvern Avenue and Salina Street, and as legally described in the attached Development Agreement. Hereina~er in this Ordinance, the Development Agreement attached hereto as Exhibit "A" is referred to as the "Development Agreement." (v) On September 27, 2000, the Planning Commission of the City of Rancho Cucamonga held duly noticed headng concerning associated land use and zoning applications and concluded said hearings on that date and recommended approval of General Plan Amendment 00-02B and Development District Amendment 00-03 through adoption of its Resolutions. (vi) On September 27, 2000, the Planning Commission of the City of Rancho Cucamonga held a duly noticed hearing concerning the Development Agreement and concluded said hearing on that date and recommended approval through adoption of its Resolution. (vii) On November 1, 2000, the City Council of the City of Rancho Cucamonga held duly noticed hearing concerning associated land use and zoning applications and concluded said hearings on that date and approved General Plan Amendment 00-02B and Development District Amendment 00-03 through adoption of its Resolution and Ordinance. (viii) On November 1, 2000, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing concerning the Development Agreement. (ix) All legal prerequisites prior to the adoption of this Ordinance have occurred. B. Ordinance. NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does hereby find, determine, and ordain as follows: SECTION 1: This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct. SECTION 2: Prior to the adoption of this Ordinance, this Council has reviewed the Initial Study, Parts I and II, and the Development Agreement, and certified the Negative Declaration, in compliance with the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder. SECTION 3: Based upon substantial evidence presented during the above-reference public hearings on September 27 and November 1, 2000, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows: a) The location, design, and proposes uses set forth in this Development Agreement are compatible with the character of existing development in the vicinity. b) The Development Agreement conforms to the General Plan of the City of Rancho Cucamonga. CITY COUNCIL ORDINANCE NO. SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION November 1, 2000 Page 3 SECTION 4: It is expressly found that the public necessity, general welfare, and good zoning practice require the approval of the Development Agreement. SECTION 5: This Council hereby approves Development Agreement 00-02, attached hereto as Exhibit "A". SECTION 6: The Mayor shall sign this Ordinance and the City Clerk shall cause the same to be published with 15 days after its passage at least once in the Inland Vallev Dailv Bulletin, a newspaper of general circulation published in the City of Ontario, California, and circulated in the City of Rancho Cucamonga, California. DEVELOPMENT AGREEMENT NO. 00-02 SENIOR CITIZENS' HOUSING THIS AGREEMENT is entered into as of the "Effective Date" set forth herein by and between SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORPORATION, a California NON PROFIT PUBLIC BENEFIT CORPORATION ("Developer") and the CITY OF RANCHO CUCAMONGA, a municipal corporation organized and existing under the laws of the State of Califomia ("City"). WITNESSETH: 'A. Recitals. California Government Code Sections 65864 et seq. Authorizes cities to enter into Binding development agreements with persons having legal or equitable interests in real property for the development of such property. California Govemment Code Section 65915 provides that a City may, by agreement with a developer, grant a density bonus over that allowed by the maximum density established in the Development Code and Land Use Element of the General Plan when a developer agrees to construct housing for low income senior households. The Developer has requested City to consider the approval of a development agreement, with a density bonus, pertaining to that real property located entirely within City, the common and legal description of which is set forth in Exhibit "A," attached hereto and incorporated herein by this reference. The site is now zoned High Residential (24-30 dwelling units per acre) with a Senior Housing Overlay District, as enacted by Development District Amendment 00-03, pursuant to the provisions of City's Development Code, as amended to date hereof. Developer and City desire to provide through this Development Agreement more specific development controls on the site which, will provide for maximum efficient utilization of the site in accordance with sound planning principles. The Developer proposes to construct a senior housing residential project, including low- income units, within the City. Said project contemplated by Developer will require an increase in the maximum density as currently provided in the High Residentia~ (24-30 dwelling units per acre) District with a Senior Housing Overlay District. It is the desire of City to encourage developments designed to provide affordable rental units for senior residents of the City. In furtherance of that desire, the City is hereby willing to grant a density bonus, in addition to the Development District Amendment 00-02B designation of High Density (24-30 dwelling units per acre), to Developer as provided by the terms of this Agreement. The City reserves the right to change the land use designation of the real property from High Residential (24-30 dwelling units per acre) to the previous land use designation, General Commercial, if the City has evidence before construction has commenced that the Developer no longer has legal or equitable interests rights with the real properly. That any housing project developed pursuant to this agreement, and any subsequent land use approvals required by City ordinances, shall comply with all appropriate provisions of the California Environmental Quality Act. On __, 2000, City adopted its Ordinance No. , thereby approving this Development Agreement with Developer and said action was effective on ,2000. B. A.qreement. NOW, THEREFORE, the padies hereto agree as follows: Definitions. In this Agreement, unless the context otherwise requires, the following terms shall have the following meaning: a. "City" is the City of Rancho Cucamonga, "Project" is the development approved by City comprised of approximately forty-eight (48) senior apartment units, one manager unit, recreational and common area facilities, parking spaces, and other amenities on the Site. "Qualified Project Period" means the first day on which the residential units in the development are first available for occupancy by Qualified Tenants and continuing for thidy years, except that the limitation that all tenants, occupants, and residents by Qualified Tenants shall continue in perpetuity, except for any resident employee occupying the manager's unit. "Qualified Tenants" shall mean persons or households who are at least fifty-five years or older and are senior citizens as defined in Section 51.3 of the Califomia Civil Code as amended from time to time. (i) "Very Low Income Qualified Tenants" shall mean Qualified Tenants who possess an income equal to or less than the amounts as specified in California Health and Safety Code Section 50105, as amended. (n) "Ninety Percent Income Qualified Tenants" means a household whose annual income does not exceed ninety percent (90%) of the Area Median Income. (iii) "Area Median Income" as may be used in determining income status or rent rate herein, shall mean that determined median for the County of San Bernardino, as set forth in California Health and Safety Code Section 50093, as amended. "Affordable Rents" shall mean the total charges for rent, and utilities, to a Very Low Income Qualified Tenant shall not exceed one-twelfth of thirty percent (30%) of Very Low Income, adjusted for household size. The total charges for rent, and utilities to a Ninety Percent Income Qualified Tenant shall not exceed one-twelfth of thirty percent (30%) of ninety percent (90%) of the Area Median Income, adjusted for household size. Initial rents for each unit shall be set by the Developer at the time of initial occupancy of the Development. Rents may be adjusted annually by the same percentage that income has increased, if any, for a Very Low Income Qualified Tenant or a Ninety Percent Income Qualified Tenant, based on changes in the Area Median Income. At least sixty calendar days prior to increasing rents on any unit restricted by this Agreement, the Developer shall submit to the City the Developer's calculation of such increase. Tenants occupying units restricted by this Agreement shall be given at least thirty days written notice prior to any rent increase. "Effective Date" shall mean the 31 st calendar day following adoption of the ordinance approving this Agreement by City's City Council. Recitals. The recitals are part of the agreement be~veen the parties and shall be enforced and enforceable as any other provision of this Agreement. Interest of Property Owner. Developer warrants and represents that it has entered into an escrow or an agreement by which it is to acquire full legal title to the real property of the site and that it has full legal right to enter into this Agreement. Bindinq Effect of AQreement. The Developer hereby subjects the development and the land described in Exhibit "A" hereto to the covenants, reservations and restrictions as set forth in this Agreement. The City and the Developer hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Developer's successors and assigns in title or interest to the Development. Each and ever`/contract, deed, Regulator`/ Agreements with the Rancho Cucamonga Redevelopment Agency or other instrument hereinafter executed, covering or conveying the development or any portion thereof shall conclusively be held to have been executed. delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument. City and Developer hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that the Developer's legal interest in the development is rendered less valuable thereby. The City and Developer hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Development by Qualified Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Agreement is adopted. Further, the parties hereto agree that such covenants, reservations and restrictions benefit all other real property located in the City of Rancho Cucamonga. Relationship of Parties. It is understood that the contractual relationship between City and Developer is such that Developer is an independent party and is not the agent of City for any purpose whatsoever and shall not be considered to be the agent of City for any purpose whatsoever. Requlatorv Aclreement: In addition to the requirements of this Agreement, the Developer shall comply with all the terms and conditions of the Regulator-/Agreement with the Redevelopment Agency. Term of AQreement. The term of the Agreement shall commence on the effective date and shall expire thirty years after the commencement of the Qualified Project Period, so long as Developer remains in material compliance with this Agreement, as from time to time amended. This Agreement shall be deemed to be terminated automatically if Developer does not obtain a Certificate of Occupancy for the entirety of the Project within three (3) years of the effective date. Restrictions on Rental Units. During the term of this Agreement, all tenants, occupants and residents shall be Qualified Tenants except for one resident manager. However, it is expressly understood by the parties hereto that the Project has been specifically designed to meet the unique needs of senior tenants. Accordingly, even after the expiration of the term, the limitation that all tenants, occupants, and residents of apartment units in the Project shaU be Qualified Tenants shall remain in perpetuity, unless the Project is made to conform with all then applicable Development Code provisions pertaining to multi-family dwellings. Said apartment units shall not be rented, occupied, leased or subleased to occupants who are not Qualified Tenants except as provided as follows: A person or persons who is not a Qualified Tenant, but is a "Qualified Permanent Resident as defined in Civil Code Section 51.3; A person or persons under fifty-five years of age may occupy apartment units as temporary tenants for a period of time not to exceed three months during any calendar year. Rental ReGuirements. During the Qualified Project Period at least twenty percent (20%) of the units in the Project, shall be rented, leased or held available for Very Low Income Qualified Tenants at affordable rents. All remaining units shall be rented, leased or held available for Ninety Percent Income Qualified Tenants at affordable rents. 10. Maintenance of Apartments as Rentals. During the term hereof, all apartment units in the Project shall remain rental units. No apartment unit in the Project shall be eligible for conversion from rental units to condominiums, townhomes or any other common interest subdivision without consent of the City Council. 11. On-site ManaGer. A full-fime resident manager shall be provided on the Project site. 12. Tenant Committee. Residents shall have the right to establish a committee composed of tenants for the purpose of organizing social activities and providing comments and suggestions to the Developer regarding the operation and facilities of the Project. Nothing in this section shall be deemed to restrict the rights of individuals to organize activities and provide comments to the Developer. 13. Submission of Materials and Annual Review. Prior to occupancy, the Developer shall submit to City tenant selection procedures which shall detail the methods which Developer shall use to advertise the availability of apartments in the Project and screening mechanisms which Developer intends to use to limit the occupancy of the apartments to Qualified Tenants and Low Income Qualified Tenants. On or before March 15 of each year following the commencement of the Qualified Project Period, the Developer, or its representative, shall file a certificate of continuing program compliance with the City. Each such report shall contain such information as City may require including, but not limited to, the following: a. Rent schedules then in effect, including utility charges (if any); b. A project occupancy profile; A description of the physical condition and maintenance procedures for the Project, including apartment units, landscaping, walkways, and recreational areas. The report may be combined with, or form a pad of, the Annual Report required by the Redevelopment Agency's Regulatory Agreement as long as it contains the above listed items. 14. City shall be allowed to conduct physical inspections of the Project as it shall deem necessary, provided that said inspections do not unreasonably interfere with the normal operations of the Project and reasonable notice is provided. The City shall further be allowed to conduct an annual survey of residents in the Project in order to assess senior needs. Tenant Selection, Contracts and Rules and Requlations. On receipt of an application for low- income occupancy, Developer shall determine the eligibility of the occupancy under the terms of this Development Agreement. Verification of tenant eligibility shall include one or more of the following factors: Obtain an income verification form from the Social Security Administration and/or the California Department of Social Services, if the applicant receives income from either or both agencies; b. Obtain an income tax return for the most recent tax year; C. Conduct a TRW or similar financial search; d. Obtain an income verification from all current employers; and If the applicant is unemployed and has no tax return, obtain another form of independent verification. Developer shall be entitled to rely on the information contained in the application sworn to by the applicant. All agreements for rental of all apartment units in the Project shall be in writing. The form of proposed rent or lease agreement shall be reviewed and approved by City prior to the commencement of the Qualified Project Period. Such agreement shall include all rules and regulations governing tenancy within the Project. The rules and regulations shall include regulations which specifically authorize the keeping of small pets within all apartment units. 15. Termination and Eviction of Tenants. A tenancy may be terminated without the termination being deemed an eviction under the following circumstances; a. The death of the sole tenant of the unit; By the tenant at the expiration of the term of occupancy or other wise upon thirty days' written notice; By abandonment of the premises by the tenant; or d. By failure of a tenant to execute or renew a lease. e. Tenant income increases above qualified amount. Any termination of a tenancy other than those listed above in this paragraph 14 shall constitute an eviction. Developer shall only evict in compliance with the provision of California law. 16. Local ResidencV. Residency preference shall be given where possible and to the extent permitted by law to applicants to the Project who have been residents of the City of Rancho Cucamonga. However, that factor shall not be given priority over the other elements of Qualified Tenant selection as stated herein. 17. Hazard Insurance. Developer shall keep the Project and all improvements thereon insured at all times against loss or damage endorsement and such other risks, perils or coverage as Developer may determine. During the term hereof, the Project shall be insured as provided in the Regulatory Agreement of the City's Redevelopment Agency. 18. Maintenance Guarantee. Developer shall comply with all City maintenance standards enacted from time to time. 19. Standards and Restriction Pertainincl to Development of the Real Property. The following specific restrictions shall apply to the use of the Site pursuant to this Development Agreement: Only residential uses of the real property, including provisions of services needed or desired by the residents, shall be permitted in the Project; and The final Site Plan and development design shall be subject to a City approved development review procedure, to be applied for by the owner; and Notwithstanding the minimum lot sizes set forth in Section 17.08.040 of the Development Code, the development of the project shall be permitted at the high end of the density range, at 30 dwelling units per acre, plus a 25% bonus density as provided under the Senior Housing Overlay District, for a maximum density of 37.5 dwelling units per acre; and The maximum height for the highest proposed building in the Project shall be forty- two (42) feet, and its location with respect to adjacent single family houses shall be subject to a City approved development review application; and The maximum size for all the buildings and the proposed square footage for each of the apartment types located in the Project shall be as set forth in a City approved development review application; and The provisions for reservation or dedication of land for public purposes shall be established through the development review process. The maximum number of required off-street parking spaces shall be subject to the Development Review process, but shall be no less than .7 parking space per unit and no less that 1 space for the manager's unit, and The minimum private open space requirement for ground floor units shall be subject to the Development Review process, and The minimum private open space requirement for upper floor units shall be subject to the Development Review process; and The minimum number of washer/dryer facilities shall be modified from the Development Code and subject to the Development Review process, but not less than one washer/dryer for every 14 units; and The minimum building setback from the drive aisle shall be reduced to an amount not less than 9 feet; and Recreational amenities may be duplicated in order to fulfill the total number of recreational amenities required for the project; and m. A perimeter wall, if any, shall be subject to the Development Review process; and. The existing temporary easement for students' access along the eastern portion of the parcel from Salina Street to the neighboring elementary school, may be retained, or modified, through an agreement between the Developer and the Cucamonga School District and subject to City Staff approval. 20. Project Desiqn Amenities for Senior Citizens. The Project open space, buildings and individual apartments shall be designed with physical amenities catering to the needs and desires of the senior citizen residents. In addition to those conditions set forth in the development review process, following physical amenities shall be substantially included in the Project, but may be modified by the City during the Development Review process: a. Elevator service shall be provided to all upper story apartments; Units shall be designed to comply with the State requirements for disabled access for multiple family housing; c, All units shall possess secured entryways off a common enclosed hallway. d. Handrails shall be provided in all hallways; e. Building space shall be devoted for tenant group meetings; and Recreational amenities shall be oriented towards senior needs and may include, but not limited to, lawn bowling, gazebos, and barbecue areas and be subject to the Development Review process. 21. Indemnification. Developer agrees to indemnity, defend and hold City and its elected officials, officers, agents, and employees free and harmless from liability for damage or claims for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect operations of Developer or those of its contractor, subcontractor, agent, employee or other person acting on its behalf which relate to the Project. Developer agrees to indemnity and shall defend City and it s elected officials, officers, agents, and employees with respect to actions for damages caused or alleged to have been caused by reason of Developer's activities in connection with the Project with a counsel reasonably satisfactory to the City. This indemnification provision applies to all damages and claims the operations referred to in this Development Agreement regardless of whether or not the City prepared, supplied or approved the plans, specifications or other documents for the Project. Notwithstanding the foregoing, this provision shall not apply to any such claims which arise out of, or by reason of, the gross negligence or willful misconduct of the City, its elected officials, agents and employees. 22. Non-Liability of Aqencv Officials. Employees, and Aqents. No member, official, employee, or agent of the City shall be personally liable to the Developer or any permitted successor-in- interest of the Developer in the event of default or breach by the City or the Rancho Cucamonga Redevelopment Agency under this agreement or for any amount which may become due to the Developer, its successors or under any obligation under the terms of this Agreement. 23. Amendments. This Agreement may be amended or canceled, in whole or in part, only by mutual written consent of the parties and then in the manner provided for in California Government Code Section 65868 et seq. 24. Federal. State Preemption: As provided in State Government Code Section 65869.5, where state or federal laws or regulations enacted after this Development Agreement has been entered into prevent or preclude compliance with the provisions of the Development Agreement, such provisions shall be modified or suspended as may be necessary to comply with such State or federal laws or regulations. 25. Administrative Modifications: Minor conflicts resulting from the strict interpretation of this Agreement with the application of the City's development regulations may be modified administratively by the City Planner. 26. Enforcement. In the event of a default under the provisions of this Agreement by Developer, City shall give written notice to Developer (or its successor) at the address of the Project, and by registered or certified mail addressed to the address stated in this Agreement, and if such violation is not corrected to the reasonable satisfaction of City within thirty days after such notice is given, or if not corrected within such reasonable time as may be required to cure the breach or default if said breach or default cannot be cured within thirty days (provided that acts to cure the breach or default must be commenced within said thirty days and must thereafter be diligently pursued by Developer), then City may, without further notice, declare a default under this Agreement and, upon any such declaration of default, City may bring any action necessary to specifically enforce the obligations of Developer growing out of the operation of this Development Agreement, apply to any court, state or federal, for injunctive relief against any violation by Developer of any provision of this Agreement or apply for such other relief as may be appropriate. After completion of the Project pursuant to the terms of this Agreement, any default may alternatively be enforced as any normal violation of the standards and provisions of the Rancho Cucamonga Municipal Code. Accordingly, the following penalty is specifically included as part of this Agreement: "It shall be unlawful for any person, firm, partnership, or corporation to violate any provision or to fail to comply with any of the requirements of this Agreement. Any person, firm, partnership, or corporation violating any provision of this Agreement by failing to comply with any of its requirements shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding One Thousand Dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment. Each such person, firm, partnership or corporation shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of any of the provisions of this Agreement is committed, continued or permitted by such person, firm, partnership or corporation, and shall be punishable therefore as herein." 27. Event of Default. Developer is in default under this Agreement upon the happening of one or more of the following events or conditions: If a material warranty, representation or statement is made or furnished by Developer to City and is false or proved to have been knowingly false in any material respect when it was made; If a finding and determination is made by City following an annual review pursuant to paragraph 13 herein above, upon the basis of substantial evidence that Developer has not complied in good faith with any material terms and conditions of this Agreement, after notice and opportunity to cure as described in paragraph 34 herein above; or A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in paragraph 34 herein above. 28. No Waiver of Remedies. City does not waive any claim of defect in performance by Developer if on periodic review City does not enforce or terminate this Agreement. Nonpefformanqe by Developer shall not be excused because performance by Developer of the obligations herein contained would be unprofitable, difficult or expensive or because of a failure of any third party or entity, other than City. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements are available to the parties to pursue in the event that there is a breach of this Development Agreement. No waiver by City of any breach or default under this Development Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder. 29. Riqhts of Lenders Under this Aareement. Should Developer place or cause to be placed any encumbrance or lien on the project, or any part thereof, the beneficiary ("Lender") of said encumbrance or lien, including, but not limited to, mortgages, shall have the right at any time during the term of this Agreement and the existence of said encumbrance or lien to: Do any act or thing required of Developer under this Agreement, and any such act or thing done or performed by Lender shall be as effective as if done by Developer itself; Realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the security document evidencing the encumbrance or lien (hereinafter referred to as "the trust deed"); 7/ Transfer, convey or assign the title of Developer to the Project to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and Acquire and succeed to the interest of Developer by virtue of any foreclosure sale. whether the foreclosure sale be conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed. The City agrees that the terms of this Agreement are subordinate to any such financing instrument and shall execute from time to time any and all documentation reasonably requested by Developer or Lender to effect such subordination. 30. Notice to Lender. City shall give written notice of any default or breach under this Agreement by Developer to Lender and afford Lender the opportunity after service of the notice to: Cure the breach or default within sixty days after service of said notice, where the default can be cured by the payment of money; Cure the breach or default within sixty days after service of said notice, where the breach or default can be cured by something other than the payment of money and can be cured within that time; or Cure the breach or default in such reasonable time as may be required where something other than payment of money is required to cure the breach or default and cannot be performed within sixty days after said notice, provided that acts to cure the breach or default are commenced within a sixty day period after service of said notice of default on Lender by City and are thereafter diligently continued by Lender. 31. Action by Lender. Notwithstanding any other provision of this Agreement, a Lender may forestall any action by City for a breach or default under the terms of this Agreement by Developer by commencing proceedings to foreclose its encumbrance or lien on the Project. The proceedings so commenced may be for foreclosure of the encumbrance by order of court or for foreclosure of the encumbrance under a power of sale contained in the instrument creating the encumbrance or lien. The proceedings shall not, however, forestall any such action by the City for the default or breach by Developer unless: They are commenced within sixty days after service on Lender of the notice described herein above; They are, after having been commenced, diligently pursued in the manner required by law to completion; and Lender keeps and performs all of the terms, covenants and conditions of this Agreement requiring the payment or expenditure of money by Developer until the foreclosure proceedings are complete or are discharged by redemption, satisfaction or payment. 32. Rent Control. In consideration for the limitations herein provided, City agrees that it shall not. during the term of this Agreement, take any action, the effect of which will be to control, determine or affect the rents for those tow income rental units located in the Project. except as otherwise provided in this Agreement. 33. Notice. Any notice required to be given by the terms of this Agreement shall be provided by certified mail, return receipt requested, at the address of the respective parties as specified below or at any other such address as may be later specified by the parties hereto, Developer: Southern California Housing Development Corporation 8265 Aspen Street, Suite 100 Rancho Cucamonga, CA 91730 city: City of Rancho Cucamonga 10500 Civic Center Drive P.O. Box 807 Rancho Cucamonga, CA 91730 35. Attornev's Fees. In any proceedings arising from the enforcement of this Development Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs and its reasonable attorneys' fees incurred during the proceeding as may be fixed within the discretion of the court. Bindinq Effect. This agreement shall bind, and the benefits and burdens hereof shall inure to, the respective parties hereto and their legal representatives, executors, administrators, successors, and assigns, wherever the context requires or admits. 36. Applicable Law. This Agreement shall be construed in accordance with and governed bythe laws of the State of California. 37. 38. Partial Invalidi~. If any provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions hereof shaft not in any way be affected or impaired thereby. Recordation. This Agreement shall. at the expense of Developer, be recorded in the Official Records of the County Recorder of the County of San Bernardino. 75 IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the effective date set forth herein above. CITY OF RANCHO CUCAMONGA Dated: By William J. Alexander, Mayor SOUTHERN CALIFORNIA HOUSING DEVELOPMENT CORP. Dated: By Rebecca Clark, Acting Executive Director 7'/ ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-03 (RANCHO SUMMIT) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the "Act"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 2000-03 (RANCHO SUMMIT) (the "District"). The City Council of the City of Rancho Cucamonga, California, acting as the legislative body of Community Facilities District No. 2000-03 (Rancho Summit), does hereby ordain as follows: SECTION 1. This City Council does, by the passage of this ordinance, authorize the levy of special taxes pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto (the "Rate and Method") and incorporated herein by this reference. SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special tax to be levied for the then current tax year or future tax years, except that the special tax to be levied shall not exceed the maximum special tax calculated pursuant to the Rate and Method, but the special tax may be levied at a lower rate. SECTION 3. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorera property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorera taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. SECTION 4. The special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the City Council in the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. Introduced at a regular meeting of the City Council of the City of Rancho Cucamonga, California, on ,2000; Enacted at a regular meeting of the City Council of the City of Rancho Cucamonga, California, held on the day of ,2000, by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST APPROVED AS TO FORM: CITY CLERK CITY ATTORNEY 2 EXHIBIT A CITY OF RANCHO CUCAMONGA COMMUNITY FACILITIES DISTRICT NO. 2000-03 (RANCHO SUMMIT) RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX Special Tax applicable to each assessor's parcel or portion thereof in the CFD shall be levied and collected according to the tax liability determined by the Council, through the application of the rate and method of apportionment of the Special Tax set forth below. All of the property in the CFD, unless exempted by law or by the provisions of this Rate and Method of Apportionment of Special Tax, shall be taxed to the extent and in the manner herein provided. I. DEFINITIONS "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California. "Acre or Acreage" means the land area of a Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable final map, parcel map, condominium plan, or other map or plan recorded with the County. "Administrative Fees or Expenses" means the actual or estimated costs incurred by the City to determine, levy and collect the Special Taxes, including salaries of City employees and the fees of consultants, legal counsel, paying agents, fiscal agents, and trustees; the costs of collecting installments of the Special Taxes; cost of arbitrage calculation and arbitrage rebates, preparation of required reports; and any other costs required to administer the CFD as determined by the City. "Administrative Services Director" means the Administrative Services Director of the City or his or her designee. "Allocated Share" means, as applicable, the greater of the Assigned Facilities Special Tax for a Parcel divided by the Assigned Facilities Special Tax Revenue or the Backup Facilities Special Tax for a Parcel divided by the Backup Facilities Special Tax Revenue. "Assessor" means the Assessor of the County. "Assigned Facilities Special Tax" means the Special Tax for each Land Use Class of Developed Property as determined in Section Ill, Table 1. A-1 77 "Assigned Facilities Special Tax Revenue" means the sum of the Assigned Facilities Special Tax for all Developed Property projected at buildout of the CFD, as determined in accordance with Section Ill, Table 1. "Backup Facilities Special Tax" means the Backup Facilities Special Tax applicable to each Assessor's Parcel of Developed Property, as determined in accordance with Section III below. "Backup Facilities Special Tax Revenue" means the sum of the Backup Facilities Special Tax for all Developed Property projected at buildout of the CFD, as determined in accordance with Section Ill below. "Bonds" mean any bonds issued by the CFD or other debt as defined in Section 53317 (d) of the Act incurred by CFD 2000-03. "Bond Share" means the share of Bonds assigned to a Developed Parcel calculated pursuant to Section VI. "CFD" means the City of Rancho Cucamonga Community Facilities District No. 2000-03 (Rancho Summit). "City" means the City of Rancho Cucamonga, California. "Council" means the City Council of the City of Rancho Cucamonga acting as the legislative body of the CFD pursuant to the Act. "County" means the County of San Bernardino, California. "Debt Service" means for each calendar year, the total scheduled amount of the principal of and the interest payable on any Outstanding Bonds during the calendar year commencing on January 1 of such Fiscal Year. "Developed Property" means for each Fiscal Year, all Taxable Property, for which a building permit for new construction was issued after March 1, 2000 and prior to March 1 of the prior Fiscal Year. "Facilities Special Tax Requirement" means for any Fiscal Year, the total of (i) Debt Service for such Fiscal Year; (ii) related Administrative Expenses for such Fiscal Year; (iii) any amounts needed to replenish the Reserve Fund to the Reserve Requirement and (iv) the amount, if any, equal to reasonably anticipated Special Tax delinquencies for the current Fiscal Year [subject to the limitations of Government Code Section 53321(d)], less any credit from earnings on the bond reserve fund. A-2 "Fiscal Year" means the period starting on July 1 and ending the following June 30. "Indenture" means the bond indenture, fiscal agent agreement, indenture of trust, trust agreement, resolution of issuance of other instrument pursuant to which the Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Maintenance Special Tax" means the amount of Special Tax, determined in accordance with Section III, which may be levied for maintenance in any Fiscal Year on Developed Property. "Maintenance Special Tax Requirement" means for any Fiscal Year the total of i) the amount necessary to maintain the authorized facilities as determined by the City Engineer or his/her designee, ii) the amount necessary to pay for the annual costs of administering the maintenance services and the levy and collection of the Maintenance Special Tax, and, iii) an amount necessary to fund an operating reserve for maintenance, unanticipated increases in the cost of providing such maintenance services and unanticipated expenditures. "Maximum Facilities Special Tax" means the greater of the Assigned Facilities Special Tax or the Backup Facilities Special Tax, determined in accordance with Section Ill, which can be levied in any Fiscal Year on any Parcel. "Maximum Special Tax" means the combination of the Maximum Facilities Special Tax, as determined in accordance with Section III, and the Maintenance Special Tax, as determined in accordance with Section III. "Non Residential Property" means any Developed Property which is not assigned to Land Use Classes 1 through 5, inclusive. "Outstanding Bonds" means the total principal amount of Bonds that have been issued and not retired or defeased. "Parcel" means any County assessor's parcel that is within the boundaries of the CFD, based on the equalized tax rolls of the County as of January 1 of the prier Fiscal Year. "Parcel's Allocated Share" means the Maximum Facilities Special Tax for a Parcel divided by the aggregate Maximum Facilities Special Tax for all Parcels. "Payoff Parcel" means any Developed Parcel for which a prepayment of the Facilities Special Tax Obligation is being calculated pursuant to Section VI. "Reserve Fund" means the total amount held in any bond reserve fund established for the Outstanding Bonds of the CFD. A-3 "Reserve Requirement" shall have the meaning given such term in the Indenture. "Reserve Fund Share" means the total Reserve Fund amount multiplied by the Parcel's Allocated Share. "Residential Floor Area" means, for a Parcel of Developed Property assigned to one of Land Use Classes 1 through 5, all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area for a Parcel shall be made by reference to the building permit(s) issued for such Parcel. "Special Tax" means the special tax to be levied pursuant to the Act and this Rate and Method of Apportionment of Special Tax in each Fiscal Year on each Parcel of Developed Property or Undeveloped Property within the CFD to fund the Facilities Special Tax Requirement and Maintenance Special Tax Requirement. "Special Tax Obligation" means the total obligation of a Taxable Parcel to pay the Facilities Special Tax or the Maintenance Special Tax, as applicable, for the remaining term of the Facilities Special Tax or the remaining life of the CFD in the case of the Maintenance Special Tax. "Subdivided Undeveloped Property" means lots created by the recordation of a Tract Map and assigned an individual Assessor Parcel number by the Assessor. "Taxable Parcel" means any Parcel that is not a Tax-Exempt Parcel. "Tax-Exempt Property" means not to exceed 27.5 acres of land presently designated on the land use entitlements approved by the City for development within the CFD for public use as parkways, parks and trails. Should any of these areas become subject to private development, they shall become subject to the Special Tax described in Section III, from the time the appropria:~e public agency acts to permit the property to become available for private development. "Tract Map" means a final subdivision map or parcel map approved by the City to create lots which may be developed in accordance with the approved land use entitlements applicable to such lots, "Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified as Developed Property. A-4 II. III. CLASSIFICATION OF PARCELS At the beginning of each Fiscal Year, using the definitions above, the Council shall cause each Parcel to be classified as Developed Property, Subdivided Undeveloped Property, Tax-Exempt Property or Undeveloped Property and each such Parcel shall be subject to the levy of Special Taxes in accordance with the Section III below. MAXIMUM SPECIAL TAX RATES A. Facilities Special Tax Developed Property Each Parcel's Maximum Facilities Special Tax shall be calculated by using the greater of the Assigned Facilities Special Tax or the Backup Facilities Special Tax. Each Parcel of Developed Property which involves residential development shall be assigned to Land Use Classes 1 through 5 as listed in Table I below based on the Residential Floor Area Footage allocated to the dwelling unit constructed or permitted to be constructed on such Parcel. Non Residential Property shall be assigned to Land Use Class 6. TABLE I Land Use Residential Floor Class Area I <2,500 Sq. Ft 2 2,500-2,999 Sq. Ft 3 3,000~3,499 Sq. Ft 4 3,500-3,999 Sq. Ft 5 4,000 Sq. Ft and above 6 Non-Residential Property Assigned Facilities Special Tax $243.00 per unit 300.00 per unit 566.00 per unit 998.00 per unit 1,259.00 per unit $2,591.00 per Acre On each July 1, commencing on July 1, 2002, the Assigned Facilities Special Tax shall be increased by two percent (2%) of the amount in effect for the previous Fiscal Year. Backup Facilities Special Tax Taxes may exceed the levels set forth in Table 1 if the Backup Facilities Special Tax is greater than the Assigned Facilities Special Tax. For Fiscal Year 2001/02 the Backup Facilities Special Tax for Developed Property is $0.063 per Square Foot of lot space. On each July 1, commencing on A-5 ?/ July 1, 2002, the Backup Facilities Special Tax shall be increased by two percent (2%) of the amount in effect for the previous Fiscal Year. Undeveloped Property The Fiscal Year 2001/02 Maximum Facilities Special Tax for Undeveloped Property shall be $2,979 per Acre or $600 per subdivided lot. On each July 1, commencing on July 1, 2002, the Maximum Facilities Special Tax for Undeveloped Property shall be increased by two percent (2%) of the amount in effect for the previous Fiscal Year. IV. B. Maintenance Special Tax In addition, each parcel shall be subject to a Maintenance Special Tax as described in Table II TABLE II LAND USE CLASS Developed Property (Classes 1-5) Non-Residential Property Subdivided Undeveloped Property Undeveloped Property MAINTENANCE SPECIAL TAX $900.00 per unit 4,462.50 per Acre 900.00 per Parcel 4,462.50 per Acre The Maintenance Special Tax shall be levied beginning in Fiscal Year 2001/02. On each July 1, commencing July 1, 2002, the Maintenance Special Tax shall be increased by two percent (2%) of the amount in effect for the previous Fiscal Year. APPORTIONMENT OF SPECIAL TAX A. Facilities Special Tax Commencing with Fiscal Year 2001/02 and for each following Fiscal Year, the Council shall determine the Facilities Special Tax Requirement and levy the Facilities Special Tax until the amount of Facilities Special Taxes levied equals the Facilities Special Tax Requirement. The Facilities Special Taxes shall be levied each Fiscal Year as follows: First: The Facilities Special Tax shall be levied on Developed Property in an amount up to 100% of the applicable Assigned Facilities Special Tax; Second: If additional monies are needed to satisfy the Facilities Special Tax Requirement after the first step has been completed, the Facilities Special Tax A-6 VI. shall be levied Proportionately on each Parcel of Undeveloped Property up to 100% of the Maximum Facilities Special Tax for Undeveloped Property; Third: If additional monies are needed to satisfy the Facilities Special Tax Requirement after the first two steps have been completed, then the levy of the Facilities Special Tax on each Parcel of Developed Property whose Maximum Facilities Special Tax is determined through the application of the Backup Facilities Special Tax shall be increased Proportionately from the Assigned Facilities Special Tax up to the Maximum Facilities Special Tax for each such Parcel. B. Maintenance Special Tax First: The Maintenance Special Tax shall be levied on Developed Property in an amount up to 100% of the Maintenance Special Tax; Second: If additional monies are needed to satisfy the Maintenance Special Tax Requirement after the first step has been completed, the Maintenance Special Tax shall be levied Proportionately on each Parcel of Subdivided Undeveloped Property up to 100% of the Maximum Facilities Special Tax for Subdivided Undeveloped Property; Third: If additional monies are needed to satisfy the Maintenance Special Tax Requirement after the first two steps have been completed, the Maintenance Special Tax shall be levied Proportionately on each Parcel of Undeveloped Property up to 100% of the Maximum Facilities Special Tax for Undeveloped Property; MANNER OF COLLECTION Collection of the Maintenance Special Tax and the Facilities Special Tax shall be by the County of San Bernardino in the same manner as ordinary ad valorem property taxes. The Special Tax shall be subject to the same penalties and the same lien priority in the case of delinquency as ad valorera taxes; provided, however, that the CFD may provide for (i) other means of collecting the Special Tax, including direct billings thereof to the property owners and (ii) judicial foreclosure of delinquent Special Taxes. SATISFACTION OF SPECIAL TAX OBLIGATION Property owners may prepay and permanently satisfy the Special Tax Obligation for the Facilities Special Tax on Developed Property ("Facilities Special Tax Prepayment") by a cash settlement with the CFD as permitted under Government Code Section 53344. Prepayment is permitted only under the following conditions: A-7 The CFD determines that the prepayment of the Facilities Special Tax Obligation does not jeopardize its ability to make timely payments of Debt Service on Outstanding Bonds and any authorized but unissued Bonds. No Facilities Special Tax prepayment shall be allowed unless the Maximum Facilities Special Tax that may be levied on all Taxable Property other than the Parcel for which the Special Tax Obligation is being prepaid is at least 110% of the maximum annual Debt Service on the Outstanding Bonds and any authorized but unissued Bonds. Any property owner prepaying the Special Tax Obligation for the Facilities Special Tax must pay any and all delinquent Special Taxes and penalties for the Payoff Parcel prior to prepayment. PREPAYMENT AMOUNT FOR FACILITIES SPECIAL TAX The amount of the Facilities Special Tax Prepayment shall be established by the following steps: Step A. 1: Determine the Assigned Facilities Special Tax and the Backup Facilities Special Tax for the Payoff Parcel based on the assignment of the Maximum Facilities Special Tax described in Section Ill above. Step A.2: Divide the Assigned Facilities Special Tax for the Payoff Parcel from Step A.1 by the Assigned Facilities Special Tax Revenue. Divide the Backup Facilities Special Tax for the Payoff Parcel by the Backup Facilities Special Tax Revenue. The greater amount calculated in this Step shall be the Payoff Parcel's Allocated Share. Step A.3: Determine the Bond Share for the Payoff Parcel by multiplying the Parcel's Allocated Share from Step 2 by the total amount of Outstanding Bonds issued by the CFD plus the total amount of all authorized but unissued Bonds. Step A.4: Determine the Reserve Fund Share associated with the Bond Share determined in Step 3. The Reserve Fund Share is equal to the lesser of Reserve Requirement or existing monies in the Reserve Fund, if any, for the Outstanding Bonds multiplied by the Allocated Share. Step A.5: Calculate the amount needed to pay interest on the Parcers Allocated Share from the first Bond interest and/or principal payment date established pursuant to the Indenture following the current Fiscal Year until the earliest redemption date for the Bonds on which Bonds may be redeemed from A-8 VI. the proceeds of a Facilities Special Tax Prepayment. Subtract from this amount, the amount of interest that is reasonably expected to be earned from the' reinvestment of the Parcel's Allocated Share from such first Bond interest and/or principal payment date following the current Fiscal Year until such redemption date for the Bonds. Step A.6: Determine the total Facilities Special Tax Prepayment amount by subtracting the Reserve Fund Share calculated in Step 4 from the Bond Share calculated in Step 3, adding the interest amount calculated in Step 5 and by adding Debt Service not yet paid for the current Calendar Year to the date of bond redemption and all fees, call premiums, and expenses incurred by the City in connection with the prepayment calculation or with the application of the proceeds of the Facilities Special Tax Prepayment. Prepayment Amount for the Facilities and Maintenance Special Tax a) Determine the amount to prepay and permanently satisfy the Facilities Special Tax by computing Steps 1 .A through A.6 as described above. b) Add the present value of the Parcel's remaining Maintenance Special Tax payments at the average yield on Bonds issued for the CFD. This shall be calculated by using the current maximum Maintenance Special Tax determined pursuant to Section III.B. increased by 2% annually for 100 years to determine remaining payments. TERM OF SPECIAL TAX Subject to prepayment of the Special Tax Obligation for a Parcel pursuant to Section V, the term of the levy of the Special Tax shall be as set forth below. The Facilities Special Tax shall be collected only so long as required to make payments on the Bonds, but in no event shall it be levied after Fiscal Year 2036- 2037. Taxable Property in the CFD shall remain subject to the Maintenance Special Tax in perpetuity. A-9 THE CITY OF I~ANCtlO CUCAMONGA DALE: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager Brad Buller, City Planner Tom Grahn, AICP, Associate Planner CONSIDERATION OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 - THE HEIGHTS AT HAVEN VIEW ESTATES - An appeal of the Planning Commission's denial of appeals filed on the City Planner's approval of a minor revision to the grading plan of Tract 14771, consisting of 40 single-family homes on 25.35 acres of land in the Very-Low Residential District (less than 2 dwelling units per acre), located east of Haven Avenue and north of Ringstem Drive - APN: 1074-511-27 through 31 and 1074-621-01 through 35. RECOMMENDATION Staff recommends that the City Council deny the appeal filed in opposition to the project and uphold the decision of the City Planner in approving modification to Development Review 98-13, and the decision of the Planning Commission in upholding the decision of the City Planner. BACKGROUND~NALYSIS On August 22, 2000, the City Planner approved modification to Development Review 98-13. Following approval, two separate appeals were filed requesting Planning Commission consideration. The first appeal raised questions regarding the replacement channel and compliance with CEQA requirements; the second appeal did not raise any project specific issues. On September 27, 2000, the Planning Commission upheld the decision of the City Planner and denied the appeals filed in opposition of the proposed modification. Following the Planning Commission action, the project was appealed to the City Council. The appeal was filed by Thomas Bradford, representing CURE, and is based on the grounds that the approval violates the California Environmental Quality Act (CEQA) and the City's Hillside Ordinances. CITY COUNCIL STAFF REPORT CONSIDERATION OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 November 15, 2000 Page 2 A. Hillside Development Ordinance: The appeal filed in opposition to the Planning Commission's decision to uphold the decision of the City Planner states that the proposed project violates the Hillside Ordinance; however, without the identification of a specific aspect of that ordinance, it is not possible to address which section the appellant feels has been violated. During the review of the applications filed on the proposed development of the project site, each and every application has been subject to the requirements of the Hillside Development Ordinance (Section 17.24 of the Development Code). This includes the original subdivision (Tract 14771), the original Development Review application (DR 97-11) that was denied by the City Council, the approved Development Review application (DR 98-13), and the proposed modification to the approved Development Review application. The approvals for each aspect of the project have all been reviewed for consistency with the Hillside Development Ordinance, and each project has been determined to be consistent with the objectives and requirements of the Hillside Development Regulations. The proposed modification to Development Review 98-13 is in compliance with each of the applicable provision of the Development Code. The project was designed to comply with the building and grading provisions of the Hillside Development Ordinance. The minor revisions to the conceptually approved project that include a reduction in the overall height of the slope along the northern portion of the site, a revision to the base elevation and design of the channel along the northern boundary of the tract, and providing retaining walls directly north of the channel are in compliance with each of the applicable provisions of the Hillside Development Ordinance. The proposed modifications involve a reduction in the overall height of the slope along the northern portion of the site, a revision to the base elevation and design of the channel along the northern boundary of the tract, providing retaining walls directly north of the channel, and the elimination of grading north of the project. The only aspect of the modification that was not included with the prior project design are the retaining walls located between the northern boundary of the tract and the north side of the channel. The Hillside Development Ordinance requires that when retaining walls are use they are limited to a maximum height of 3 feet. When additional retaining height is necessary, an additional retaining wall may be utilized, however, the walls are to be separated by a minimum of 3 feet, and landscaping may be provided to soften the appearance of the wall. The retaining walls located between the northern project boundary and the north side of the replacement channel were designed to be in conformance with these requirements by providing 2 separate retaining walls up to a maximum height of 3 feet, and separated by a minimum of 3 feet. B. Environmental: The California Environmental Quality Act (CEQA) establishes requirements and procedures for evaluating potential environmental impacts resulting from development of a project. Section 15162 of the State CEQA Guidelines establishes specific criteria for determining when subsequent environmental review of a project is required. The following addresses Section 15162 and the substantial evidence to support the Council determination as to whether a new EIR, a new Negative Declaration, or other environmental document is required in this matter. a. When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, CITY COUNCIL STAFF REPORT CONSIDERATION OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 November 15, 2000 Page 3 on the basis of substantial evidence in the light of the whole record, one or more of the following: 1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Proposed revisions that reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts. Reducing the height of the slope will result in a slight increase in the amount of grading; however, as with the prior approval, the cut and fill of the project grading is designed to balance. Revising the design of the channel will not change its capacity. Proposed changes to the design of the project will not affect the majority of the project including street designs, pad elevations, and equestrian trails. These are not substantial changes in the proposed project because the minimal amount of proposed grading, the relatively insignificant changes to the channel design, and the minimal changes to the project's design. Without any substantial changes in the project that would result in new or severe environmental impacts, major revisions to the Negative Declaration adopted at the time of subdivision approval would not be required at this time. 2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. No substantial changes have occurred with respect to the circumstances under which the project is undertaken, which will require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were evaluated under the Negative Declaration approved with the subdivision of the property. The proposed revisions will not change the number of homes or their general location within the tract. Characteristics of the surrounding properties have not changed significantly since the-tract was approved, the property to the nodh and east is vacant, and the property to the south and west contains residential lots, many of which have been developed with custom and semi-custom homes. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The circumstances under which the project is undertaken does not result in the involvement of new or significant environmental effects or the increase in the severity of significant effects. 3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: a) The project will have one or more significant effects not discussed in the previous EIR or negative declaration. CITY COUNCIL STAFF REPORT CONSIDERATION OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 November 15, 2000 Page 4 The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site, are changes that will reduce project related impacts, and will not have one or more significant effects not discussed in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. Although the minor revision to the project design includes various retaining walls north of the channel not contemplated in the original design of the project, the walls are designed to be consistent with the use of retaining walls in other areas of the tract, to comply with the requirements of the Hillside Development Ordinance, and as required by the Design Review Committee, the walls will be provided with landscaping to soften their appearance. In addition, assertions regarding the capacity of the Deer Creek Detention Basin and related facilities do not show that the project would have one or more effects not previously considered. b) Significant effects previously examined will be substantially more severe than shown in the previous EIR. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have significant effects more severe than shown in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The changes in the channel design will have minimal impacts to grading, water flow, and aesthetics. These changes are not resulting in significant effects substantially more severe than shown in the 1990 Negative Declaration. c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative. There are no mitigation measures or alternatives that were previously found not to be feasible that would in fact be feasible, but the project proponents decline to adopt. The project applicant designed improvements to reflect the Conditions of Approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. d) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. CITY COUNCIL STAFF REPORT CONSIDERATION OF MODIFICATION TO DEVELOPMENT REVIEVV 98-13 November 15, 2000 Page 5 The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will result in a project that is substantially similar to the currently approved project. There are no mitigation measures or alternatives that were considerably different from those previously analyzed. The project applicant designed improvements to reflect the Conditions of Approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. b. If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or nor further documentation. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and does not result in new or more severe environmental impacts that would require major revisions to the Negative Declaration adopted at the time of subdivision approval. The project applicant designed improvements to reflect the Conditions of Approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. Consequently, the lead environmental agency has determined that no further environmental documentation is required. CORRESPONDENCE This item was advertised as a public hearing in the Inland Valley Daily Bulletin newspaper, the property was posted, and notices were mailed to all property owners within a 300-foot radius of the project site. Although not necessarily required by law, this item was noticed at the direction of the City Council. Respectfully submitted, Brad Buller City Planner BB:TG/ma Attachments: Exhibit "A" - Letter of appeal from Thomas Bradford dated October 9, 2000 Exhibit "B" - Planning Commission Staff Report dated September 27, 2000 Exhibit "C" - Adopted Planning Commission Resolutions dated September 27, 2000 Exhibit "D" - Minutes of the September 27, 2000 Planning Commission meeting Resolution of Approval October 9, 2000 HAND DELIVERY Gall Sanchez Deborah Adams City of Rancho Cucamonga 10500 East Civic Center Rancho Cucamonga, CA 91730 RE: Appeal of September 27, 2000 Modification to Development Review 98-13 Dear Ms. Adams and Sanchez: Californian's United for Reasonable Expansion (CURE) Inc., hereby appeals the Planning Commission's denial of its September 27, 2000 appeal. CURE appeals on the grounds that the approval of the modification of Development Review 98- 13 is in violation of the California Environmental Quality Act ('CEQA") and the City's Hillside Ordinances. Enclosed is the $126 filing fee. Please provide confirmation of the timel,~ ~ling this appeal. Additionally, on September 28, 2000, Ms. McKeith faxed a request pursuant to the Public Records Act. Those documents are now due. Please advise me of the copying costs associated with the production of the above documents and produce them immediately. Thank you... Sincerely, Tho~nas Bradford For CURE, Inc. THE CITY OF ~ANCHO CUCANONGA DATE: TO: FROM: BY: SUBJECq': September 27, 2000 Chairman and Members of the Planning Commission Brad Buller, City Planner Tom Grahn, AICP, Associate Planner ARoEAL OF MODIRCATION TO DEVELORVENT REVIEW g8-13 - THE HEIC4HTS AT HAVEN VIEW ESTATES - An appeal of the City Planners approval of a minor revision to the grading plan of Tract 14771, consisting of 40 single-family homes on 25.35 acres of land in the Very-Low Residential Distdct (less than 2 dwelling units per acre), located east of Haven Avenue and north of Ringstem Ddve - APN: 1074-511-27 to 31 and 1074-621-1 to 35. BACKGROUND Tract 14771 was approved by the Planning Commission on November 14, 1990, and received final approval by the City Council on October 15, 1997. Development Review 98-13 was approved by the Planning Commission on August 12, 1998. appealed to the City Council, and appreved on November 18, 1998. The approval of Tract 14771 provided for the subdivision and conceptual grading of the project site. The approval of Development Review 98-13 provided the detailed site plan identifying pad locations, building elevations, and conceptual grading. The conceptual grading approved with Development Review 98-13 was determined to be in substantial conformanca with the originally approved grading plan and was designed to minimize the amount of grading associated with the project, while maintaining the contour characteristics of the existing topography. On August 22, 2000 the City Planner approved Modification to Development Review 98-13 to allow for a minor revision to the approved grading plan. Following City Planner approval of Modification to Development Review 98-13, two separate appeals were filed contesting the project approval thereby requesting Planning Commission consideration. The first appeal was filed by William Hawkins and raises questions regarding the replacement channel and compliance with CEQA requirements. The second appeal was filed by Malissa McKeith, from the law office of Loeb and Loeb, representing Californians United for Reasonable Expansion (CURE). PLANNING COMMISSION STAFF REPORT APPEAL OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 September 27, 2000 Page 2 ANALYSIS Project Revisions: Conditions of Approval for Tract 14771 require the installation of a channel along the northern boundary of the tract prior to the removal of the existing levee. The original channel design proposed off-site grading on the property to the north of the channel. The property owner, Los Angeles Department of Water and Power, has denied permission to grade on their property and consequently. the applicant is proposing a minor revision to the project design to eliminate the need to grade off-site. This change results in various minor revisions to the project's design. The design change to eliminate off-site grading reduces the overall height of the slope along the northern portion of the project site (along the rear of Lots 1, 2, 3, 10, 11, 12, 19, 20, 21, 22, 32, 33, 34, and 35), revises the base elevation and design of the channel along the nodh boundary of the tract, and provides retaining walls directly north of the channel. Eliminating off-site grading results in a lower base elevation of vadous elements along the northern portion of the tract. Street grades, pad elevations, and equestrian trails throughout the remainder of the tract will not be affected by the design revision. The slope along the northern portion of the tract will be reduced in height at a range of approximately 1 to 5 feet. This results in a corresponding decrease in the elevation of the community trail and drainage channel that parallels the northem boundary of the tract. A series of retaining walls are proposed that parallel the north property line and north side of the channel. The retaining walls are a maximum height of 3 feet and range from 50 to 310 feet in length. In conditions where additional retaining height is needed, a second 3-foot high retaining wall is proposed, and is separated by a minimum of 3 feet to create a terraced effect consistent with the Hillside Development Ordinance. A 6-foot split face block wall is proposed at the downhill (south) edge of the service road adjacent to the channel that wilt block most of the views of the retaining walls. The revised rectangular concrete channel is approximately 10 feet wide, 4 feet deep, and is located 12 feet from the property line. The uphill (north) channel wall will also be extended to retain up to 2¼ feet of slope in addition to the proposed retaining walls. A 12-foot wide paved access road will be provided on the south side of the channel for maintenance. The drainage area for the channel contains the area south of the Deer Creek Detention Basin and the northern boundary of the project site. The drainage area contains approximate 125 acres. The channel is designed to receive the tributary drainage area south of the debris basin and convey !t to the Deer Creek Channel. The drainage area will generate, approximately, a Q~0o bulked flow of 440 cfs. City Planner Meeting Discussion: Various questions were raised at the City Planner meeting that address the time limits of both the proposed modification and the original approval. The Conditions of approval for Development Review 98-13 identified, "approval shall expire, unless extended by the Planning Commission, if building permits PLANNING COMMISSION STAFF REPORT APPEAL OF MODIFICATION TO DEVELOPMENT REVIEVV 98-13 September 27, 2000 Page 3 are not issued.. . within 24 months from the date of approval." This condition was established consistent with Development Code requirements that provided an initial 24- month approval and the opportunity for three 12-month time extensions. The Development Review was approved by the City Council on November 18, 1998, and a building permit was issued for rough grading on October 12, 1999. The issuance of a building permit for rough grading satisfies the time limits condition of the initial approval. Conditions of approval for Modification to Development Review 98-13 identify "modification to Development Review 98-13 shall expire if building permits are not issued within 5 years from the date of approval. No extensions are allowed." This condition was established consistent with current Development Code requirements that provides for a five-year approval for land development approvals (§ 17.02.100, page 17.02-8). ENVIRONMENTAL: The Califomia Environmental Quality Act (CEQA) establishes requirements and procedures for evaluating potential environmental impacts resulting from development of a project. Section 15162 establishes the specific procedures when a Subsequent Environmental Impact Report or Negative Declaration is necessary. The following addresses Section 15162 and the substantial evidence to support that the proposed revision does not require either changes to the 1990 Negative Declaration or the preparation of an EIR. (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (t) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; Proposed revisions that reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts. Reducing the height of the slope will result in a slight increase in the amount of grading, however, as with the pdor approval, the cut and fill of the project grading is designed to balance. Revising the design of the channel will not change its capacity. Proposed changes to the design of the project wilt not affect the majodty of the project including street designs, pad elevations, and equestrian trails. These are not substantial changes in the proposed project because the minimal amount of proposed grading, because of the relatively insignificant changes to the channel design, and the minimal changes to the project's design. Without any substantial changes in the project that would result in new or severe environmental impacts, major revisions to the Negative Declaration adopted at the time of subdivision approval would not be required at this time. PLANNING COMMISSION STAFF REPORT APPEAL OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 September 27, 2000 Page 4 (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or No substantial changes have occurred with respect to the circumstances under which the project is undertaken which will require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were evaluated under the Negative Declaration approved with the subdivision of the property. The proposed revisions will not change the number of homes or their general location within the tract. Characteristics of the surrounding properties have not changed significantly since the tract was approved, the property to the north and east is vacant, and the property to the south and west contains residential lots, many of which have been developed with custom and semi-custom homes. Both the odginal design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The cimumstances under which the project is undertaken does not result in the involvement of new or significant environmental effects or the increase in the sevedty of significant effects. (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have one or more significant effects not discussed in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the odginal design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the nodhem boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. Although the minor revision to the project design includes various retaining walls north of the channel not contemplated in the original design of the project, the walls are designed to be consistent with the use of retaining walls in other areas of the tract, to comply with the requirements of the Hillside Development Ordinance, and as required by the Design Review Committee the walls will be provided with landscaping to soften their appearance. In addition, assertions regarding the capacity of the Deer Creek Detention Basin and related facilities do not show that the project would have one or more effects not previously considered. PLANNING COMMISSION STAFF REPORT APPEAL OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 September 27, 2000 Page 5 (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have significant effects more severe than shown in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The changes in the channel design will have minimal impacts to grading, water flow, and aesthetics. These changes are not resulting in significant effects substantially more severe than shown in the 1990 Negative Declaration. (c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or There are no mitigation measures or altematives that were previously found not to be feasible that would in fact be feasible, but the project proponents decline to adopt. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures cenditioned on the approval of.Development Review 98-13. (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will result in a project that is substantially similar to the currently approved project. There are no mitigation measures or alternatives that were considerably different from those previously analyzed. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. (b) If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise the lead agency PLANNING COMMISSION STAFF REPORT APPEAL OF MODIFICATION TO DEVELOPMENT REVIEW 98-13 September 27, 2000 Page 6 shall determine whether to prepare a subsequent negative declaration, an addendum, or nor further documentation. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and does not result in new or more severe environmental impacts that would require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proje~ct applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures cenditioned on the approval of Development Review 98-13. Consequently, the lead environmental agency has determined that no further environmental documentation is required. CORRESPONDENCE: This item was advertised in the Inland Valley Daily Bulletin newspaper, the property was posted, and notices were mailed to all property owners within a 300-foot radius of the project site. Although not necessarily required by law, this item was noticed at the direction of the City Council. RECOMMENDATION: Staff recommends the Planning Commission deny the appeals filed in opposition to the project and uphold the decision of the City Planner approving Modification to Development Review 98-13. Respectfully submitted, Brad Buller City Planner BB:TG/Is Attachments: Exhibit "A" - Letter of Appeal, William Hawkins, dated August 31, 2000 Exhibit "B" - Letter of Appeal, Malissa McKeith, dated August 31, 2000 Exhibit "C" - City Planner Staff Report dated August 22, 2000 Exhibit "D" - Minutes from the August 22, 2000 City Planner meeting Exhibit "E" - Adopted City Planner Resolutions dated August 22, 2000 Resolutions of Approval ii..,,,.. coNTRAcToRs August 31, 2000 Planning Commission City of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91730 Dear Members of the Planning Commission, I wish to appeal the August 22, 2000 City Planner meeting item A Modification to Development Review 98-13- The Heights at Haven View Estates. This is a revision to the grading plan, which includes replacement channel and the removal of a levee. A study by Doug Hamilton from Exponent Failure Analysis has raised question regarding the replacement channel, which have not been addressed. We would like the Planning Commission to be aware of our concerns regarding that issue as well as the statements made during that meeting regarding compliance with CEQA requirement. i!iere]~ 10400 Banana Ave., · Fontana, CA 92337 Office: 909/357-0711 · Lie.: #618716 · Fax: 909/357-0715 Website: www. araspaving. com· Eraall: sales~amspaving. com ~u~ 31 gO 02:11~ mal 909-91-8702 p,2 LOEB6 I.OEBu_p ~000 WlLSHIR. E BOULF. VAILD SUIT~ 1800 LOS ANGI~LE$, CA 98017-2475 TELEPHONE: 213.688.341~ FACSIMILE: 213.688.3460 www. loeb. com Direct Dial: 2 | 3-688-3622 e.-maih mm&e~@keb.com VIA MESSENGER August 31, 2000 Received Oail Sanchez Clerk to the Planning Commission City ofRancho Cucmnonga 10500 East Civil Center Drive Rancho Cuc, amonga, CA 91737 AU6312 30 Cily ot Rancho Cucarnonge Planning Di~v!s:on Appeal from thc August 2.2, 2000 Planning Commission Permit Issuance to The Heights atHaven View Estates Dear Ms Sanchez: Californians United for Roasonablo Expansion, Inc. ("CURE") hereby appeals from the above Planning Commission decision to the City Council. Please advise us at your earliest convenience of the date on which this matter will be heard. Thank you. Very truly yours, Malisse Hathaway MeKeith MHM:jd 93163102408 \ (3RADNS LESF, FD LAUREN DEVELOPMENT INC. MDS~ DATE PREPARED: APRIL 21, 1998 THE CII'Y OF ~ANCHO CUCANONCA DATE TO:. FROM: BY: SUBJECT: August 22, 2000 Brad Buller, City Planner Dan Coleman, Principal Planner Tom Grahn, AICP, Associate Planner MODIRCATION TO DEVELOPIVENT REVIEW 9813 - THE HEIGHTS AT HAVEN VIEW ,ESTATES - A minor revision to the grading plan of Tract 14771, consisting of 40 single-family homes on 25.35 acres of land in the Very-Low Residential Distdct (less than 2 dwelling units per acre), located east of Haven Avenue and north of Ringstem Drive - APN: 1074-511-27 to 31 and 1074-621-1 to 35. ANALYSIS: Backqround: Tract 14771 was appmved by the Planning Commission on November 14, 1990, and received final approval by the City Council on October 15, 1997. Development Review 98-13 was approved by the Planning Commission on August 12, 1998, appealed to the City Council, and approved on November 18, 1998. The approval of Tract 14771 provided for the subdivision and conceptual grading of the project site. The approval of Development Review 98-13 provided the detailed site plan identifying pad locations, building elevations, and conceptual grading. The conceptual grading approved with Development Review 98-13 was determined to be in substantial conformance with the originally approved grading plan and was designed to minimize the amount of grading associated with the project, while maintaining the contour characteristics of the existing topography. Conditions of Approval for Tract 14771 require the installation of a channel along the northern boundary of the tract pdor to the ramoval of the existing levee. The odginal channel design proposed off-site grading on property to the north of the channel. The property owner, Los Angeles Department of Water and Power, has denied permission to grade on their property and consequently, the applicant is proposing a minor revision to the project design to eliminate the need to grade off-site. This change results in various minor revisions to the project's design. B. Review Process: The Development Code provides that the City Planner may approve minor revisions or modifications to conceptually approved grading plans. Section 17.02.027(A)(5) states, "Minor revisions and modifications include grading alterations which do not change the basic concept, increase slopes, or building elevations, or CITY PLANNER STAFF REPORT MODFICATION TO DEVELOPMENT REVIE'~/98-13 August 22, 2000 Page 2 change the course of drainage which could adversely affect adjacent or surrounding properties." Proiect Revisions: Revisions to the proposed project will reduce the overall height of the slope along the northern portion of the project site (along the rear of Lots 1, 2, 3, 10, 11, 12, 19, 20, 21, 22, 32, 33, 34, and 35), revise the base elevation and design of the channel along the north boundary of the tract, provide retaining walls directly north of the channel, and eliminate off-site grading north of the project. Revising the project to eliminate off-site grading results in the Iowedng in elevation of various elements along the northern portion of the tract. Street grades, pad elevations, and equestrian trails throughout the remainder of the tract will not be affected by the design revision. The slope along the rear of the lots previously identified will be reduced in height at a range of approximately 1 to 5 feet. The extreme east and west portions of the tract will be reduced the least, with the greatest reduction ocourdng through the middle of the tract. This results in a corresponding decrease in the elevation of the community trail and drainage channel that parallels the northern boundary of the tract. Similar to the condition of the adjacent slope, the more extreme change in elevation will occur in the middle of the tract. Various retaining walls are proposed between the north property line and north side of the channel. The retaining walls are a maximum height of 3 feet and range from 50 to 310 feet in length. In conditions where additional retaining height is needed, a second 3- foot high retaining wall is proposed, and is separated by a minimum of 3 feet to create a terraced effect consistent with the Hillside Development Ordinance. A 6-foot split face block wall is proposed at the downhill (south) edge of the service road adjacent to the channel that will block most of the views of the retaining walls. Committee Review: The Grading Committee and Design Review Committee reviewed the project on July 18, 2000. The Grading Committee conceptually approved the project. The Design Review Committee conceptually approved the project, and recommended that split face block and appropriate landscaping be used on the retaining walls north of the channel to soften their appearance. Replacement Channel: The revised rectangular concrete channel is approximately 10 feet wide, 4 feet deep, and is located 12 feet from the property line. The uphill (north) channel wall will also be extended to retain up to 2~ feet of slope in addition to the proposed retaining walls. A 12-foot wide paved access road will be provided on the south side of the channel for maintenance. The drainage area for the channel contains the area south of the Deer Creek Detention Basin and the northern boundary of the project site. The drainage area contains approximate 125 acres. The channel is designed to receive the tributary drainage area south of the debris basin and convey it to the Deer Creek Channel. The drainage area will generate, approximately, a Q~0o bulked flow of 440 cfs. /a2.. CITYPLANNER STAFF REPORT MODFICATION TO DEVELOPMENT REVIEW9~13 August22,2000 Page 3 ENVIRONMENTAL: The California Environmental Quality Act (CEQA) establishes requirements and procedures for evaluating potential environmental impacts resulting from development of a project. Section 15162 establishes the specific procedures when a Subsequent Environmental Impact Report or Negative Declaration is necessary. The following addresses Section 15162 and the substantial evidence to support that the proposed revision does not require either changes to the 1990 Negative Declaration or the preparation of an EIR. (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; Proposed revisions that reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts. These are not substantial changes in the proposed project because the minimal amount of proposed grading, because of the relatively insignificant changes to the channel design, and the minimal changes to the project's design, Without any substantial changes in the project, no new or severe environmental impacts would be created to require major revisions to the Negative Declaration adopted at the time of subdivision approval. (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or No substantial changes have occurred with respect to the circumstances under which the project is undertaken which will require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proposed project provides for the development of 40 homes within the area of Tract 14771. The proposed revisions would not change the number of homes or their general location within the tract. Both the odginal design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the nodhem boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the CITY PLANNER STAFF REPORT MODFICATION TO DEVELOPMENT REVIEVV 98-13 August 22, 2000 Page 4 previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have one or more significant effects not discussed in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northem boundary of the tract. Although the minor revision to the project design includes various retaining walls north of the channel not contemplated in the odginal design of the project, the walls are designed to be consistent with the use of retaining walls in other areas of the tract (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have significant effects more severe than shown in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or There are no mitigation measures or altematives that were previously found not to be feasible that would in fact be feasible, but the project proponents decline to adopt. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. Thera were no new mitigation measures conditioned on the approval of Development Review 98-13. (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, 'but the project proponents decline to adopt the mitigation measure or alternative. CITYPLANNER STAFF REPORT MODFICATION TO DEVELOPMENT REVIEW9~13 August22,2000 Page 5 The current application to reduce the height of the slope adjacent to the rear of lots along the nodhern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will result in a project that is substantially similar to the currently appmved project. There are no mitigation measures or alternatives that were considerably different from those previously analyzed. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. (b) If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or nor further documentation. The current application to reduce the height of the slope adjacent to the mar of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and does not result in new or more severe environmental impacts that would require major revisions to the Negative Declaration adopted at the time of subdivision approval. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. Consequently, the lead environmental agency has determined that no further environmental documentation is required. CORRESPONDENCE: This item was advertised in the Inland Valley Daily Bulletin newspaper, the property was posted, and notices were mailed to all property owners within a 300-foot radius of the project site. Although not necessarily required by law, this item was noticed at the direction of the City Council. RECOMMENDATION: Staff recommends the City Planner approve modification to Development Review 98-13 through adoption of the attached Resolutions of Approval. Respecff, ly sub. ' ted, Da.n . DC:TG/Is Attachments: Exhibit "A" - Location Map Exhibit "B" - Grading Plan Resolutions of Approval ' 7.-4a LOT-BY-LOT ..4FIOITEOTIJgAL PIJaN$ LAUREN DEVELOPMENT INC. TRAOT NO. 14771 BITE UT~IZA T/ON AND INDEX MAP e ~ECTION B-B SECTION C-C SECTION D-D -- 230 -- 190 -- 180 ~ 170 SECTION I~H CITY OF RANCHO CUCAMONGA CITY PLANNER MINUTES Regular Meeting August 22, 2000 Brad Buller, City Planner, called the Regular Meeting of the City of Rancho Cucamonga City Planner to order at 2:00 p.m. The meeting was held in the Planning Division Conference Room at the Rancho Cucamonga Civic Center, 10500 Civic Center Drive, Rancho Cucamonga, California. STAFF PRESENT Brad Buller, City Planner; Tom Grahn, Associate Planner; Dan James, Senior Civil Engineer; Willie Valbuena, Assistant Engineer; Lois Schrader, Planning Secretary; Melissa Andrewin, Office Specialist II ANNOUNCEMENTS No announcements were made at this time. MINUTES August 8, 2000, Minutes were approved as presented; PUBLIC HEARINGS MODIRCATION TO DEVELOPMENT REVIEW 98-13 - THE HEIGI-rrS AT HAVEN VIEW ESTATES - A minor revision to the grading plan of Tract 14771, consisting of 40 single-family homes on 25.35 acres of land in the Very Low Residential District (less than 2 dwelling units per acre), located east of Haven Avenue and north of Ringstem Drive - APN: 1074-511-27 to 31 and 1074-621-01 to 35. Tom Grahn, Associate Planner, gave the staff report. He reported that two new Planning conditions had been added to the Resolution, located on page A14, #3 of the agenda packet. Condition #4 clarifies the expiration date of modification. Condition #3 identifies the applicant's ability to continue to utilize the original design of the project. Kevin Ennis, Assistant City Attorney, asked for clarification of the adoption date for Development Review 98-13. He also clarified a reference made by Mr. Grahn to CEQA, Section 15162, noting that this is from the State's CEQA guidelines, Section 15162. Mr. Grahn affirmed the adoption of Development Review 98-13 in 1998. Mr. Buller asked Mr. Grahn to lay out the project drawings for public viewing. He stated that he reviewed the larger scale drawings and all the information related to this project pdor to the meeting. He asked Mr. Grahn to acknowledge City staff present, for the record. Mr. Buller inquired about the reasons for the two new additional conditions to the Resolution. City Planner Meeting August 22, 2000 Mr. Grahn noted for the record the presence of Dan Guerra, Consultant from Derbish, Guerra, and Associates. He informed the attendees that the condition to address the ability to continue use of the original design of the project came at the request of the applicant. He reported that Condition #4 was added, regarding the 5-year expiration date, because it was not clarified in the report how long Development Review 98-13 was valid. Brad Buller, City Planner, opened the public hearing. John Allday, the applicant, representing The Heights at Haven View Estates, P.O. Box 790, Augoura Hills, stated that the staff report is very fair and thorough, and that he agrees with all the conditions and recommendations. He stated that he would like the Civil Engineer for this project, Stan Morse, to elaborate on the engineering aspects. Mr. Allday asked if the 5-year time limit begins upon finalization of the project and its appeals, the modification, or the entire Development Review 98-13 as modified. Mr. Allday noted that it is possible that the storm water channel alternatives would be constructed if approval is granted. Mr. Allday stated that when City Council took action on the final tract map, they requested that the applicant assure the City that there are alternatives. He said that he is devoting time, resources and engineering knowledge to the design alternatives. He said that both alternatives fit within the overall concept of the design review approval. He stated that impacts of the alternatives are no different than the ones on the rest of the plan and that the two channels do not impact the rest of the plan differently. He remarked that he felt they were ready to move forward. Stan Morse, MDS Engineering, 17320 Redhill Avenue, Suite 350, Irvine, stated that for the past ten years, his company has examined the hydrology of the project. The quantities of the storm water are the same for both channels (rectangular and trapezoidal channels) and noted that nothing has happened over the years to change those quantities. He commented that these factors have been reviewed in depth by the City, County of San Bernardino, and by the Corp of Engineers. He noted that both designs have no impact on the trails or water flow and that the revisions are minor. He stated that his company is satisfied by the amount of water reaching the channels, noting that the trapezoidal channel versus the rectangular wall channel, hydrologically, operate the same. Since they are open channels, you can see at the top of them. He added that rectangular channels take less horizontal room, so that allows them to pull the channel away from the property line and eliminate the need for off-site grading. He stated that they performed a Sedimentation Transport and Deposition study and that a peer review study by Northwest consultants in Sacramento was done because these are not the usual types of studies performed. They determined that either design would have no effect on the hydrologics of the channel, so the channel would accommodate any debris transportation or deposition. Mr. Allday requested time at the end of the meeting for his council to respond to questions asked and comments made during the meeting. Mr. Buller noted that time would be given for their response. Bruce Ann Hahn, 5087 Granada Court, Rancho Cucamonga, requested a copy of the staff report for her review. Ms. Hahn stated that when a lot of dirt is moved around, she felt a Negative Declaration was not appropriate. Ms. Hahn said she believes an EIR should have been issued rather than a Negative Declaration. She indicated that she believes that there is a difference in the two designs because the development company is now coming with a different channel design and they are removing the levy. She asked if there were any revisions to the June 19, 2000, report because the engineer from Exponent had questions from the last reeeting. She expressed her belief that the replacement channel is not going to work. She asked if the alternative channel was in a conceptual format, and if there were connections to the Sedimentation Transport and Deposition study. She reported that Doug Hamilton from Exponent has asked if there were revisions made to the report. Ms. Hahn stated that she had made numerous phone calls, but had not received any answers. She · said that she had not seen the modifications to the Conditions of Approval. CityPlanner Meeting 2 August 22, 2000 Mr. Buller asked Mr. Grahn to get an extra copy of the staff report for Ms. Hahn. Ms. Hahn inquired about the amount of the dirt that would be moved around dudng the development. Mr. Morse answered that the quantity is less overall, but is within a few percentage points of the original design. Mr. Buller said that the amount of soil disturbance change would be minimal, and that is why only a modification is needed. Dan James, Senior Civil Engineer, reported that Dan Guerra had reviewed the report and that he had spoken with Doug Hamilton and that they had also gone to MDS. Mr. James asserted his confidence in the reports, standard practices, and the design concept, and felt moving forward is appropriate. Mr. Buller asked Dan James if there were any more changes to the report and if there has been more evaluation based on Mr. Hamilton's questions or dialogue. Mr. James stated he had not spoken to Mr. Hamilton, but reviewed the study in light of his concems. Mr. Allday asked if the word "approval" applies to Development Review 98-13 as modified or Modification of Development Review 98-13 alone. Mr. Buller asked Mr. Ennis if the report needed better wording to clarify the 5-year condition. Mr. Ennis, asked if the original approval of Development Review 98-13 has a specific time pedod that it is valid, He stated that the modification approval should correspond with the remaining length of time of the other approval. Mr. Grahn stated there was a two-year approval. Mr. Buller said that extensions were allowed for this project. Mr. Ennis said that his interpretation was that this project allows for the extension of this particular modification. It does not automatically extend or modify the original Development Review 98-13 approval. Mr. Allday asked if the 5-year limit starts from the original date of the Development Review 98-13 approval. Mr. Buller answered that approval begins 5 yearn from the approval of this action, meaning the modification. He added that staff will clarify the issues related to the development review. Ms. Hahn inquired about all other conditions staying in place in addition to the new conditions. Mr. Buller confirmed that the other conditions would stay in place. Andrew Hartzell, Hewitt & McGuire, 19900 Macarthur Boulevard, Suite 1050, Irvine, stated that he takes issue with the CEQA findings and that secondly he believes the reason the applicant has asked for a modification of the design is because DWP was concerned about off-site grading, noting that the residents asked for no off-site grading. City Planner Meeting 3 August 22, 2000 //D Mr. Buller noted for the record receipt of two items of correspondence; one being from Mr. Hartzel, dated August 21, 2000. He also reported a phone call from Katherine Wyatt, resident of Haven View Estates, who also sent a fax to the City asking him to reevaluate the safety of the neighborhood. Mr. Buller closed the public hearing. Mr. Bu Iler approved Development Review 98-13 as presented. He stated that the 5-year time limit is for this element of the development review only and that is for the alternate channel design. Mr. Buller stated that he is supportive of either option and that he appreciates staff's diligence in prOcessing the Hillside Review. Mr. Buller reminded the attendees that there is a 10-day appeal period for the decision. PUBLIC COMMENTS No additional comments were made at this time. ADJOURNMENT The City Planner meeting adjourned at 2:45 p.m. Sincerely, Melissa Andrewin Office Specialist II City Planner Meeting 4 August 22, 2000 RESOLUTION NO. 00-17 A RESOLUTION OF THE CITY PLANNER OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING A MODIFICATION TO DEVELOPMENT REVIEW NO. 98-13 FOR FINAL TRACT 14771, A DESIGN REVIEW OF THE DETAILED SITE PLAN AND BUILDING ELEVATIONS FOR 40 SINGLE FAMILY HOMES ON 25.35 ACRES OF LAND, LOCATED EAST OF HAVEN AVENUE AND NORTH OF RINGSTEM DRIVE IN THE VERY LOW RESIDENTIAL DISTRICT (LESS THAN 2 DWELLING UNITS PER ACRE), AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 1074-511-27 THROUGH 31 AND 1074-621-01 THROUGH 35. A. Recitals. 1. The Heights at Haven View Estates filed an application for the approval of a Modification to Development Review No. 98-13. The modifications involve a reduction in the overall height of the slope along the nodhem portion of the site, a revision to the base elevation and design of the channel along the northern boundary of the tract, providing retaining walls directly north of the channel, and the elimination of grading north of the project. Hereinafter in this Resolution, the subject Development Review request is referred to as 'the application.' 2. On the 22nd day of August 2000, the City Planner of the City of Rancho Cucamonga conducted a meeting on the application and concluded said meeting on that date. 3. All legal prerequisites prior to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the City Planner of the City of Rancho Cucamonga as follows: 1. This City Planner hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. Based upon the substantial evidence presented to this City Planner during the above- referenced meeting on August 22, 2000, including written and oral staff reports, the City Planner hereby specifically finds as follows: a. The proposed project is consistent with the objectives of the General Plan; and b. The proposed design is in accord with the objectives of the Development Code and the purposes of the district in which the site is located. The project is located in the Very Low Residential Distdct and because of the slope of the site it is also subject to the provisions of the Hillside Development Ordinance. The development of 40 homes on 25.35 acres is consistent with the Very Low Residential District and the project was designed to comply with all applicable provisions of the Hillside Development Ordinance. The minor revisions to the grading plan were designed to be consistent with the originally appreved project and to comply with the provisions of the Hillside Development Ordinance; and //Z CITY PLANNER RESOLUTION NO. 00-17 DR 98-13 MOD. - (HEIGHTS AT HAVEN VIEW ESTATES) August 22, 2000 Page 2 c. The proposed design is in compliance .with each of the applicable provisions of the Development Code. The project was designed to comply with the building and grading provisions of the H illside Development Ordinance. The minor revisions to the conceptually approved project that include a reduction in the overall height of the slope along the northem portion of the site, a revision to the base elevation and design of the channel along the northern boundary of the tract, and providing retaining walls directly north of the channel are in compliance with each of the applicable provisions of the Hillside Development Ordinance; and d. The minor revisions to the proposed design, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare or materially injurious to properties or improvements in the vicinity. The effects of these changes on the homes in the approved tract as well as properties adjacent thereto, have been evaluated and found to be insignificant. 3. Based upon the findings and conclusions set forth in paragraphs I and 2 above, the City Planner hereby approves the application subject to each and every condition set forth below. Plannina Division 1 ) The retaining walls north of the channel shall be provided a split face block finish. 2) Landscaping shall be provided between terraced retaining walls north of the channel. The landscaping shall be shown on the final Landscape and Irrigation Plans and shall be installed prior to completion of the project. 3) This approval does not preclude the developer from proceeding in accordance with the original grading design, approved with Development Review 98-13, if approval is obtained from the propertyto the north for that purpose. 4) Modification to Development Review 98-13 shall expire if building permits are not issued within 5 years from the date of approval. No extensions are allowed. Enclineedna Division 1) A permit from San Bernardino County Flood Control Distdct is required. Any redesign required in obtaining the permits shall be resolved and approved pdor to starting work. 2) The appreved Final Drainage Study shall be updated to address the alternate channel design. 4. The Secretary to the City Planner shall certify to the adoption of this Resolution. CITY PLANNER RESOLUTION NO. 00-17 DR 98-13 MOD. - (HEIGHTS AT HAVEN VIEW ESTATES) August 22, 2000 Page 3 APPROVED AND ADOPTED THIS 22ND DAY OF AUGUST 2000. CITY PLANNER OF THE CITY OF RANCHO CUCAMONGA BY: A TTE S T: Loc~isj~f-~'ra~der,~Secr~-,~ry ~ I, Lois J. Schmder, Secretary to the Planning Division for the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was duly and regularly introduced, passed, and adopted bythe City Planner of the City of Rancho Cucamonga, at a regular meeting of the City Planner held on the 22nd day of August 2000. : RESOLUTION NO. 00-18 A RESOLUTION OF THE CITY PLANNER OF THE CITY OF RANCHO CIjCAMONGA, CALIFORNIA, DETERMINING THAT NO SUBSEQUENT ENVIRONMENTAL REVIEW IS NECESSARY FOR MODIFICATION TO DEVELOPMENT REVIEW NO. 98-13 FOR FINAL TRACT 14771, A DESIGN REVIEW OF THE DETAILED SITE PLAN AND BUILDING ELEVATIONS FOR 40 SINGLE FAMILY HOMES ON 25.35 ACRES OF LAND, LOCATED EAST OF HAVEN AVENUE AND NORTH OF RINGSTEM DRIVE IN THE VERY LOW RESIDENTIAL DISTRICT (LESS THAN 2 DWELLING UNITS PER ACRE), AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 1074-511-27 THROUGH 31 AND 1074-621-01 THROUGH 35. A. Recitals. 1. The Heights at Haven View Estates filed an application for the approval of Modification to Development Review No. 98-13, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Development Review request is referred to as "the application." 2. On the 22rid day of August 2000, the City Planner of the City of Rancho Cucamonga conducted a meeting on the application and concluded said meeting on that date. 3. All legal prerequisites prior to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the City Planner of the City of Rancho Cucamonga as follows: 1. This City Planner hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are tree and correct. 2. Based upon the substantial evidence presented to this City Planner during the above- referenced meeting on August 22, 2000, including wdtten and oral staff reports, the City Planner hereby specifically finds as follows: a. The application applies to property located at the northeast comer of Tackstem Street and Ringstem Drive with a street frontage of 1,020 feet along Tackstem Street and 1,360 feet along Ringstem Ddve and is presently vacant; and b. The property is bordered on the north by property owned by the City of Los Angeles Department of Water and Power, on the east by property owned by the San Bemardino County Flood Control District, and the properties to the south and west consist of vacant and developed single family residential land; and c. The application contemplates a revision to the appmved grading plan for Development Review 98-13. Revisions to the proposed project will reduce the overall height of the slope along the northern portion of the project site (along the rear of Lots 1,2, 3, 10, 11, 12, 19, 20, 21, 22, 32, 33, 34, and 35), revise the base elevation and design of the channel along the north //,5 CITY PLANNER RESOLUTION NO. 00-18 DR 98-13 MOD. - (HEIGHTS AT HAVEN VIEW ESTATES) August 22, 2000 Page 2 boundary of the tract, provide retaining walls directly north of the channel, and eliminate off-site grading north of the project. 3. The California Environmental Quality Act (CEQA) establishes requirements and procedures for evaluating potential environmental impacts resulting from development of a project. Section 15162 establishes the specific procedures when a Subsequent Environmental Impact Report or Negative Declaration is necessary. The following addresses Section 15162 and the substantial evidence to support that the proposed revision does not require either changes to the 1990 Negative Declaration or the preparation of an EIR. a. When an EIR has been certified or a negative declaration adopted for a project, no subsequent El R shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: 1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Proposed revisions that reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off- site are changes that will reduce project related impacts. These are not substantial changes in the proposed project because the minimal amount of proposed grading, because of the relatively insignificant changes to the channel design, and the minimal changes to the project's design. Without any substantial changes in the project, no new or severe environmental impacts would be created to require major revisions to the Negative Declaration adopted at the time of subdivision approval. 2) Substantial changes occur with respect to the cimumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. No substantial changes have occurred with respect to the circumstances under which the project is undertaken which will require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proposed project provides for the development of 40 homes within the area of Tract 14771. The proposed revisions would not change the number of homes or their general location within the tract. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. 3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: / CITY PLANNER RESOLUTION NO. 00-18 DR 98-13 MOD. - (HEIGHTS AT HAVEN VIEW ESTATES) August 22, 2000 Page 3 A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration. The current application to reduce the height of the slope adjacent to the roar of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off*site aro changes that will reduce project related impacts, and will not have one or more significant effects not discussed in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the roar of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. Although the minor revision to the project design includes various retaining walls north of the channel not contemplated in the original design of the project, the walls are designed to be consistent with the use of rotaining walls in other aroas of the tract. B) . Significant effects proviously examined will be substantially more severe than shown in the provious EIR. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, roduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have significant effects more severe than shown in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the nodhem boundary of the tract. C) Mitigation measuros or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative. There aro no mitigation measures or alternatives that wero proviously found not to be feasible that wo~JId in fact be feasible, but the project proponents decline to adopt. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Developreent Review 98-13. D) Mitigation measures or alternatives which are considerably differont from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. The curront application to reduce the height of the slope adjacent to the roar of lots along the northern boundary of the tract, roduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will roduce project related impacts, and will result in a project that is substantially similar to the currently approved project. There are no mitigation measures or alternatives that were considerably differant from those previously analyzed. The project applicant //7 CITYPLANNER RESOLUTION NO. 00-18 DR 98-13 MOD.-(HEIGHTS AT HAVEN VIEWESTATES) Augu~ 22,2000 Page 4 designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. b. If changes to a project or its circumstances occur or new information becomes available after adoption of a negative deciaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendure, or nor further documentation. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade oft-site are changes that will reduce project related impacts, and does not result in new or more severe .environmental impacts that would require major revisions to the Negative Declaration adopted at the time of subdivision approval. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. Consequently, the lead environmental agency has determined that no further environmental documentation is required. 4. Based on substantial evidence presented to the City Planner during the above- referenced meeting, the City Planner further finds that, in any event, none of the cdteda in Section 15162 of the California Environmental Quality Act Guidelines requiring subsequent environmental review exist or are present with respect to the City Planner's action on the modification to the Development/Design Review application. 5. The Secretary to the City Planner shall certify to the adoption of this Resolution. APPROVED AND ADOPTED THIS 22ND DAY OF AUGUST 2000. CITY PLANNER OF THE CITY OF RANCHO CUCAMONGA I, Lois Schrader, Secretary to the Planning Division for the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was duly and regularly introduced, passed, and adopted bythe City Planner of the City of Rancho Cucamonga, at a regular meeting of the City Planner held on the 22nd day of August 2000. RESOLUTION NO. 00-102 A RESOLUTION OF THE PLANNING COMMISSION OF THE CiTY OF RANCHO CUCAMONGA, CALIFORNIA, DENYING APPEALS OF A CITY PLANNER DETERMINATION THAT NO SUBSEQUENT ENVIRONMENTAL REVIEW IS NECESSARY FOR MODIFICATION TO DEVELOPMENT REVIEW NO. 98-13 FOR FINAL TRACT 14771, A DESIGN REVIEVV OF THE DETAILED SITE PLAN AND BUILDING ELEVATIONS FOR 40 SINGLE FAMILY HOMES ON 25.35 ACRES OF LAND, LOCATED EAST OF HAVEN AVENUE AND NORTH OF RINGSTEM DRIVE IN THE VERY LOW RESIDENTIAL DISTRICT (LESS THAN 2 DWELLING UNITS PER ACRE), AND MAKING FINDINGS IN SUPPORT THEREOF APN: 1074-511-27 THROUGH 31 AND 1074-621-01 THROUGH 35. A. Recitals. 1. The Heights at Haven View Estates filed an application for the approval of Modification to Development Review No. 98-13, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Development Review request is referred to as 'the application.' 2. On the 12th day of August 1998, the Planning Commission of the City of Rancho Cucamonga reviewed Development Review 98-13, and following the conclusion of their review adopted Resolution 98-56 by which the Commission determined that no subsequent environmental review was necessary for the project and approved the project. 3. That decision by the Planning Commission was timely appealed to the City Council. 4. On the 18th day of November 1998, the City Council of the City of Rancho Cucamonga denied the appeal of Development Review 98-13, and affirmed the decision of the Planning Commission to find that no subsequent environmental review was necessary for the project and approved the project. 5. On the 22nd day of August 2000, the City Planner of the City of Rancho Cucamonga held a public headng on the application, and following the close of the hearing, adopted Resolutions Nos. 00-17 and 00-18 making environmental findings and appmving the application. 6. The decisions made by said City Planner on the application were timely appealed to the Planning Commission. 7. On the 27th day of September 2000, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application. 8. All legal prerequisites pdor to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the Planning Commission of the City of Rancho Cucamonga as follows: 1. This Commission hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are tree and correct. PLANNING COMMISSION RESOLUTION NO. 00-102 DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES September 27, 2000 Page 2 2. Based upon the substantial evidence presented to this Planning Commission during the above-referenced meeting on September 27, 2000, including but not limited to, written and oral staff reports, the minutes of the above-referenced City Planner meeting, and the contents of City Planner Resolutions Nos. 00-17 and 00-18, together with publio testimony, this Commission hereby specifically finds as follows: a. The application applies to property located at the northeast comer of Tackstem Street and Ringstem Drive with a street frontage of 1,020 feet along Tackstem Street and 1,360 feet along Ringstem Drive and is presently vacant; and b. The property is bordered on the north by property owned by the City of Los Angeles Department of Water and Power, on the east by property owned by the San Bemardino County Flood Control District, and the properties to the south and west consist of vacant and developed single family residential land; and c. The application contemplates a revision to the approved grading plan for Development Review 98-13. Revisions to the proposed project will reduce the overall height of the slope along the northern portion of the project site (along the rear of Lots 1,2, 3, 10, 11,12, 19, 20, 21, 22, 32, 33, 34, and 35), revise the base elevation and design of the channel along the north boundary of the tract, provide retaining walls directly north of the channel, and eliminate off-site grading north of the project. 3. The Califomia Environmental Quality Act (CEQA) establishes requirements and procedures for evaluating potential environmental impacts resulting from development of a project. Section 15162 of the State CEQA Guidelines establishes specific criteria for determining when subsequent environmental review of a project is required. The following addresses Section 15162 and the substantial evidence to support the Commission's determinations as to whether a new EIR, a new Negative Declaration, or other environmental document is required in this matter. a. When an EIR has been certified or a negative declaration adopted for a project, no subsequent El R shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: 1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Proposed revisions that reduce the height of the slope adjacent to the rear of lots along the northem boundanJ of the tract, reduce the base elevation of the channel, and eliminate the need to grade off- site are changes that will reduce project related impacts. Reducing the height of the slope will result in a slight increase in the amount of grading, however, as with the prior approval, the cut and fill of the project grading is designed to balance. Revising the design of the channel will not change its capacity. Proposed changes to the design of the project will not affect the majority of the project including street designs, pad elevations, and equestrian trails. These are not substantial changes in the proposed project because the minimal amount of proposed grading, because of the relatively insignificant changes to the channel design, and the minimal changes to the projects design. Without any substantial changes in the project that would result in new or severe environmental PLANNING COMMISSION RESOLUTION NO. 00-102 DR 98-13 MOD. o HEIGHTS AT HAVEN VIEVV ESTATES September 27, 2000 Page 3 impacts, major revisions to the Negative Declaration adopted at the time of subdivision approval would not be required at this time. 2) Substantial changes occurwith respect to the cimumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. No substantial changes have occurred with respect to the circumstances under which the project is undertaken which will require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were evaluated under the Negative Declaration approved with the subdivision of the property. The proposed revisions will not change the number of homes oftheir general location within the tract. Characteristics of the surrounding properties have not changed significantly since the tract was appreved, the property to the north and east is vacant, and the property to the south and west contains residential lots, many of which have been developed with custom and semi-custom homes. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The cimumstances under which the project is undertaken does not result in the involvement of new or significant environmental effects or the increase in the severity of significant effects. 3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: a) The project will have one or more significant effects not discussed in the previous EIR or negative declaration. The current application to reduce the height of the slope adjacent to the rear of lots along the northem boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have one or more significant effects not discussed in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the odginal design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. Although the minor revision to the project design includes vadous retaining walls north of the channel not contemplated in the original desigrToftheprojectTthe walls are designed to be consistent with the use of retaining walls in other areas of the tract, to comply with the requirements of the Hillside Development Ordinance, and as required by the Design Review Committee the walls will be provided with landscaping to soften their appearance. In addition, assertions regarding the capacity of the Deer Creek Detention Basin and related facilities do not show that the project would have one or more effects not previously considered. b) Significant effects previously examined will be substantially more severe than shown in the previous EIR. /;,/ PLANNING COMMISSION RESOLUTION NO. 00-102 DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES September 27, 2000 Page 4 The current application to reduce the height of the slope adjacent to the rear of lots along the northem boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have significant effects more severe than shown in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the d rainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The changes in the channel design will have minimal impacts to grading, water flow, and aesthetics. These changes are not resulting in significant effects substantially more severe than shown in the 1990 Negative Declaration. c) Mitigation measures or alternatives previously found not to be feasible. would in tact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative. There are no mitigation measures or alternatives that were previously found not to be feasible that would in fact be feasible, but the project proponents decline to adopt. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. d) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will result in a project that is substantially similar to the currently approved project. There are no mitigation measures or altematives that were considerably different from those previously analyzed. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. b. If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent El R if required under subsection (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or nor further documentation. -The~urrent-application to reduce theheight'of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and does not result in new or more severe environmental impacts that would require major revisions to the Negative Declaration adopted at the time of subdivision approval. The project applicant designed improvements to reflect conditions of approval imposed on the subdivision of Tract 14771. There were no new mitigation measuresconditioned on the approval-of-Development-Review98-13. Consequently, the lead environmental agency has determined that no further environmental documentation is required. PLANNING COMMISSION RESOLUTION NO. 00-102 DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES September 27, 2000 Page .5 ' 4. Based on the findings specified above and on all evidence presented to the Planning Commission during the above-referenced hearing, the Planning Commission finds that none of the criteria in Section 15162 of the State for Califomia Environmental Quality Act Guidelines requiring subsequent environmental review exist or are present with respect to the application for the modification to the Development/Design Review application. Therefore the Planning Commission finds that no subsequent environmental review of the project is required and that this determination is the independent judgment of the Planning Commission. 5. The Secretary to the P ann ng Comm ss on sha certify to the adoption of this Resolution. APPROVED AND ADOPTED THIS 27TH DAY OF SEPTEMBER 2000. ~NI,,~~M~~~~!:~.~hCi~TY~n(:~ RANCHO CUCAMONGA ATTEST: I, Brad Buller, Secretary of the Planning Commission of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was duly and regularly introduced, passed, and adopted by the Planning Commission of the City of Rancho Cucamonga, at a regular meeting of the Planning Commission held on the 27th day of September 2000, by the following vote-to-wit: AYES: COMMISSIONERS: MACIAS, MANNERINO, MCNIEL, STEWART, TOLSTOY NOES: COMMISSIONERS: NONE ABSENT: COMMISSIONERS: NONE RESOLUTION NO. 00-103 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, DENYING APPEALS OF A CITY PLANNER DECISION APPROVING MODIFICATION TO DEVELOPMENT REVIEW NO. 98-13 FOR FINAL TRACT 14771, A DESIGN REVIEW OF THE DETAILED SITE PLAN AND BUILDING ELEVATIONS FOR 40 SINGLE FAMILY HOMES ON 25.35 ACRES OF LAND, LOCATED EAST OF HAVEN AVENUE AND NORTH OF RINGSTEM DRIVE IN THE VERY LOW RESIDENTIAL DISTRICT (LESS THAN 2 DWELLING UNITS PER ACRE), AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 1074-511-27 THROUGH 31 AND 1074-621-01 THROUGH 35. A. Recitals. 1. The Heights at Ha~/en View Estates filed an application for the approval of a Modification to Development Review No. 98-13. The modifications involve a reduction in the overall height of the slope along the northern portion of the site, a revision to the base elevation and design of the channel along the northern boundary of the tract, providing retaining walls directly north of the channel, and the elimination of grading north of the project. Hereinafter in this Resolution, the subject Development Review request is referred to as "the application.' 2. On the 12th day of August 1998, the Planning Commission of the City of Rancho Cucamonga reviewed Development Review 98-13, and following the conclusion of their review adopted Resolution 98-56 by which the Commission determined that no subsequent environmental review was necessary for the project and approved the project. 3. That decision by the Planning Commission was timely appealed to the City Council. 4. On the 18th day of NOvember 1998, the City Council of the City of Rancho Cucamonga denied the appeal of Development Review 98-13, and affirmed the decision of the Planning Commission to find that no subsequent environmental review was necessary for the project and appreved the project. 5. On the 22nd day of August 2000, the City Planner of the City of Rancho Cucamonga held a public hearing on the application, and following the close of the headrig, adopted Resolutions Nos. 00-17 and 00-18 making environmental findings and approving the application. 6. The decisions made by said City Planner on the application were timely appealed to the Planning Commission. 7. On the 27th day of September 2000, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public headng on the application and adopted Resolution No. 00-102 determining that no subsequent environmental review was necessary for the project. 8. All legal prerequisites prior to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the Planning Commission of the City of Rancho Cucamonga as follows: (_J., rr' PLANNING COMMISSION RESOLUTION NO. 00-103 DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES September 27, 2000 Page 2 1. This Commission hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. Based upon the substantial evidence presented to this Commission dudng the above- referenced meeting on September 27, 2000, including, but not limited to, written and oral staff reports, the minutes of the above-referenced City Planner meeting, and the contents of the City Planner Resolution Nos. 00-17 and 00-18, this Commission hereby specifically finds as follows: a. The proposed project is consistent with the objectives of the General Plan; and b. The proposed design is in accord with the objectives of the Development Code and the purposes of the district in which the site is located. The project is located in the Very Low Residential District and because of the slope of the site it is also subject to the provisions of the Hillside Development Ordinance. The development of 40 homes on 25.35 acres is consistent with the Very Low Residential District and the project was designed to comply with all applicable provisions of the Hillside Development Ordinance. The minor revisions to the grading plan were designed to be consistent with the originally approved project and to comply with the provisions of the Hillside Development Ordinance; and c. The proposed design is in compliance with each of the appliceble provisions of the Development Code. The project was designed to comply with the building and grading provisions of the Hillside Development Ordinance. The minor revisions to the conceptually approved projectthat include a reduction in the overall height of the slope along the northern portion of the site, a revision to the base elevation and design of the channel along the northern boundary of the tract, and providing retaining walls directly north of the channel are in compliance with each of the applicable provisions of the Hillside Development Ordinance; and d. The minor revisions to the proposed design, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare or materially injurious to properties or improvements in the vicinity. The effects of these changes on the homes in the approved tract as well as properties adjacent thereto, have been evaluated and found to be insignificant. 3. Based upon the findings and conclusions set forth in paragraphs I and 2 above, the Planning Commission hereby approves the application subject to each and every condition set forth below. Plannincl Division 1) All conditions of approval as contained in Planning Commission Resolution 98-55 and City Council Resolution 98-178 shall apply. 2) The retaining walls north of the channel shall be provided a split face block finish. Landscaping shall be provided between terraced retaining walls north of the channel. The landscaping shall be shown on the final Landscape and Irrigation Plans and shall be installed pdor to completion of the project. PLANNING COMMISSION RESOLUTION NO. 00-103 DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES September 27, 2000 Page.3 4) This approval does not preclude the developer from proceeding in accordance with the original grading design, approved with Development Review 98-13, if approval is obtained from the pmperbJ to the north for that purpose. 5) Modification to Development Review 98-13 shall expire if building permits are not issued within 5 years from the date of approval. No extensions are allowed. En<~ineedncl Division 1) A permit from San Bemardino County Flood Control Distdct is required. Any redesign required in obtaining the permits shall be resolved and approved pdor to starting work. 2) The approved Final Drainage Study shall be updated to address the alternate channel design. 4. The Secretary to the Planning Commission shall certify to the adoption of this Resolution. APPROVED AND ADOPTED THIS 27TH DAY OF SEPTEMBER 2000. PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA BY: t ,~ T. McNiel, Chairman ATTEST: I, Brad Buller, Secretary of the Plannir~g Commission of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was duly and regularly introduced, passed, and adopted bythe Planning Commission of the City of Rancho Cucamonga, at a regular meeting of the Planning Commission held on the 27th day of September 2000, by the following vote-to-wit: AYES: COMMISSIONERS: MACIAS, MANNERINO, MCNIEL, STEWART, TOLSTOY NOES: COMMISSIONERS: NONE ABSENT: COMMISSIONERS: NONE river rock stone pilasters shall be developed at a minimum of 30 inches squared and added to northern and southern ends of the wall." Chairman ked the size of the planter. Mr. Coury said the Health Department (in the uirement of the Building and Safety Division and pool is built in the yard). Chairman McNiel asked if there were opened the public hearing. the staff report. Hearing none, he Jimmy Previti, representing Forecast Homes, 10670 9r Ddve, Rancho Cucamonga, stated that they agreed with all the conditions modified and at he have the flexibility to work with staff on the location and placement of the planters so as to 'note of an entry statement into the community. Chairman McNiel stated that it would be acceptable for him to work with planters. issue of the Chaiman McNiel closed the public headrig. Commissioner Tolstoy commented that the Variance is really needed in this situation. Motion: Moved by Mannerino, seconded by Tolstoy, Review 00-34, Tentative Tract 16105 and Vari8 following vote: MCNIEL, STEWART, TOLSTOY approving Design Motion carded by the ABSENT: NONE - carried APPEAL Of MQDIFICATIONTODEVELOPMENTREVIEW98-13-THEHBGFffSATHAVENVIEW ESTATES- An appeal of the City Planner's approval of a minor revision to the grading plan of Tract 14771, consisting of 40 single-family homes on 25.35 acres of land in the Very-Low Residential District (less than 2 dwelling units per acre), located east of Haven Avenue and north of Ringstem Drive - APN: 1074-511-27 to 31 and 1074-621-01 to 35. The staff report was given by Tom Grah n, Associate Planner. Mr. Grahn reviewed the chronology of the applications and subsequent approvals on the project. He noted that the item before the Commissioners Is a modification and subsequent revision of the conditions which pertain to the drainage channel above the project site and that it had been appreved by the City Planner and then appealed by William Hawkins and Malissa McKeith. Mr. Grahn advised the Planning Commissioners that additional materials submitted by the appellants, as well as modified resolutions had been placed in front of them for review. Mr. Grahn reported that information had been submitted at 5:00p.m. today by Tom Bradford, a resident of Haven View Estates. He added that copies had been provided to the Commissioners and the applicant, which challenges the pdor approval. He added that a report had also been submitted by Exponent Analysis which rebuts statements made by the Army Corp of Engineers. Mr. Grahn submitted copies to the Commissioners. Mr. Grahn explained that the resolutions had been revised beginning on Pages D Planning Commission Minutes *b" -3- September 27, 2000 28 and D 31 to clarity the recital podions on the Resolution for the Environmental Assessment and the Design Resolution and that Conditions 3 and 4 have been clarified. In addition a condition was added stating that all prior conditions in the previous approvals would apply to this approval. Commissioner Mannerino asked if Mr. Grahn had an opportunity to read and review the new report that had been placed before them. Mr. Grahn stated that he had not specifically read this report but that as far as he could tell, most of the information remained the same as what has been presented in previous hearings. Commissioner Mannerino asked if there was anything there that could affect staffs position on the appeal being considered. Brad Buller, City Planner, suggested that any technicel questions about the issue at hand or the matedais submitted, be referred to Dan James, Senior Civil Engineer or the consultant. He also noted that the appellant will most likely explain what he believes to be new information. Commissioner Mannedno asked for staffs position. Mr. Buller commented that the information ardved at the end of the day today, but no changes in staffs position had been made. Chairman McNiel opened the public headng. John Allday, P.O. Box 790, Agoura Hills, CA, indicated that he represents The Heights at Haven View Estates. He encouraged the Commissioners to keep in mind the issue before them; a minor modification to a minor aspect of the drainage channel at the north edge of the project, an already approved project. He added that the approved project had been reviewed numerous times by various officials including Stan Morse for MDS Consultants, who has consulted the Army Corp of Engineers, the City and County engineers He added that Bob Christiano, Bill Ford and Attomey at Law, Andrew Hartsell of Hewitt Mac Guire and the City Attorney are available for questions. He added that a total of 15 lawsuits had been filed on this project and that to date, the appellants have lost all suits that have been settled in the courts. He noted that matedal submitted to the Planning Commission was an expected stall tactic and that he believes there is no substance to the documents as they may apply to the issue of the drainage channel, the issue before the Planning Commission. Bill Hawkins, 4987 Ginger Court, Rancho Cucamonga, stated he is an appellant to the item. He indicated he was unaware ofwhat was submitted to the Planning Commission pdor to the meeting. He pointed out the following issue: He stated that the Army Corp of Engineers has rejected the channel design 4 times and that it is under review again. He mentioned the Exponent Failure Analysis Report dated September 18, the 3 page analysis of the San Bemardino Flood Control Distdct dated February 1, a Memo from Douglas Hamilton to the Army Corp of Engineers re: MDS, The Sediment Transport Model of Tract 14771, a letter dated August 31, 2000, from Secretary of State Westfall, Department of the Army to Malissa McKeith, September 1, 2000, letter from the Office of Emergency Services to Ken Gidda, San Bemardino Flood Control Distdct and the Declaration of Wolfgang/Roth and the supporting documents pages 001-150. Mr. Hawkins urged the Commissioners to make a responsible action for the City of Rancho Cucemonga. He added that the issue involves the safety of thousands of residents and that they could take a blind eye to the issue stating that it does not concern them because they are only dealing with the issue before them Planning Commission Minutes September 27, 2000 but that this is not the case. He added that the Sediment Transpod report had not been addressed to his satisfaction. He reported that Doug Hamilton has not received a response to his questions or concerns. He stated that he believes it would be prudent for the Commissioner to wait until the Army Corp of Engineers approves the hookup and come back with their findings. He stated that it he feels it is important for the Commission to read the Exponent report, which rebuts the August 4, 2000 letter. He added that he is not participating in delay tactics and that they have proven their position regarding the debris basin which is no longer rated for a 100 year event and has been subsequently downgraded to a 33 year event. He noted that he was not sure if the report he was submitting was the same report submitted to the Commission at 5:00p.m. John Lyons, reported that he is appalled at how this issue has continued on. He commented that he believes the appellants have used an "iron triangle," ie. the courts, the State, and the Federal government to stranglehold us and to limit local control. He reported that the appellants attempt to de-certify the dam above the project would have resulted in all the residents purchasing flood insurance, an impact of several thousand dollars per year to each homeowner. He noted that the City has paid 200 million dollars in a flood control system and even with the new system, the old system is also still in place along with the re-design of some streets which could take over if the other systems failed. He mentioned the Army Corp of Engineers does not address the fact that we have a back-up system. Chairman McNiel closed the public headrig. Commissioner Mannerino stated that in the absence of any changes in staffs position based upon the documents presented, he felt a denial of the appeal and upholding the decision of the City Planner was the only choice. He added he would move in that regard. Commissioner Tolstoy noted that he did not see any problems and that the changes do not affect the environmental impacts. He, therefore would vote to deny the appeal and uphold the City Planners decision. Commissioner Stewart concurred and that the issue is only a minor modification and that she requested a ruling from the City Attorney in regard to Commissioner Mannerino's comment about the documents presented. Kevin Ennis, Assistant City Attomey, reported that the City is not aware of any information from the Army Corp of Engineers that has specifically disapproved the debris basin, although there have been many inquides and requests for their review and findings, the City has not received anything from them determining the basin insufficient to meet their requirements. He added that the materials submitted are consistent with the matedais submitted several weeks ago by the appellants. He noted the materials address the adequacy of the debds basin and that the issue before the Commissioners deals with the drainage channel, the grading, the retaining walls and the height of the walls. He added that the Resolutions of Approval deal with no subsequent environmental review deemed necessary and the Resolution that denies the appeal and approves the modifications. He recommended that action regarding the denial of the appeal should come first followed by a motion for the approval of the modification. Commissioner Mannedno then amended his motion to deny the appeal based upon the fact that there is nothing, which would require additional environmental review. Commissioner Macias had no further comment. Planning Commission Minutes -5- September 27, 2000 Chairman McNiel expressed appreciation the proponents and the appellant's brief comments and gentlemanly behavior. He then called for the question. Motion: Moved by Mannerino, seconded by Macias to adopt the Resolution to deny the appeal determining that no subsequent environmental review is necessary. Motion carded by the following vote: AYES: MACIAS, MANNERINO, MCNIEL, STEWART, TOLSTOY NOES: NONE ABSENT: NONE - carded Motion: Moved by Mannedno, seconded by Macias for the Modification of Development Review 98-13 and to adopt the Resolution Denying the appeals of the City Planner decision to approve the Modification of Development Review 98-13, thereby upholding the City Planner's pdor approval of those modifications including the revisions to the resolution. Motion carded by the following vote: AYES: MACIAS, MANNERINO, MCNIEL, STEWART, TOLSTOY NOES: NONE ABSENT: NONE - carded ENVIRONMENTAL ASSESSMENT AND GENERAL PLAN AMENDMENT 00-02A - LEWIS RETAIL CENTERS - A request to change the land use designation from Low Residential (2-4 dwelling units per acre) to Neighborhood Commercial for 1.244 acres (Lot 73 of Tract 15875), located at the nodheast comer of Day Creek Boulevard and Highland Avenue - APN: 227-351-65. Related files: Victoda Community Plan Amendment 00-02, General Plan Amendment 00-02C, and Victoria Community Plan Amendment 00-03. Staff has prepared a Negative Declaration of environmental impacts for consideration. ENVIRONMENTAL ASSESSMENT AND VICTORIA COMMUNITY PLAN AMENDMENT 00-02 - LEWIS RETAIL CENTERS - A request to change the land use designation from Low Residential (2-4 dwelling units per acre) to Village Commercial for 1.244 acres (Lot 73 of Tract 15875), located at the northeast corner of Day Creek Boulevard and Highland Avenue. The City will also consider Community Plan text changes to better define the scope of Village Commercial development in the immediate area -APN: 227-351-65. Related files: General Plan Amendment 00-02A, General Plan Amendment 00-02C, and Victoda Community Plan Amendment 00-03. Staff has prepared a Negative Declaration of environmental impacts for consideration. ENVIRONMENTAL ASSESSMENT AND GENERAL PLAN AMENDMENT 00-02C - CITY OF RANCHO CUCAMONGA - A request to change the land use designation from Low Residential (2-4 dwelling units per acre) to Neighborhood Commercial for approximately .24 acre adjacent to the east side of Lot 73 of Tract 15875 near the northeast comer of Day Creek Boulevard and Highland Avenue. Related files: General Plan Amendment 00-02A, Victoda Community Plan Amendment 00-02, and Victoda Community Plan Amendment 00-03. Staff has prepared a Negative Declaration of environmental impacts for consideration. Planning Commission Minutes -6- September 27, 2000 RESOLU 'IO, ,O. - ,1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, DENYING AN APPEAL OF A PLANNING COMMISSION DECISION DENYING APPEALS OF A CITY PLANNER DETERMINATION THAT NO SUBSEQUENT ENVIRONMENTAL REVIEW IS NECESSARY AND APPROVING MODIFICATION TO DEVELOPMENT REVIEW 98-13 FOR FINAL TRACT 14771, A DESIGN REVIEW OF THE DETAILED SITE PLAN AND BUILDING ELEVATIONS FOR 40 SINGLE FAMILY HOMES ON 25.35 ACRES OF LAND, LOCATED EAST OF HAVEN AVENUE AND NORTH OF RINGSTEM DRIVE IN THE VERY LOW RESIDENTIAL DISTRICT (LESS THAN 2 DWELLING UNITS PER ACRE), AND MAKING FINDINGS IN SUPPORT THEREOF- APN: 1074-511-27 THROUGH 31 AND 1074-621-01 THROUGH 35. A. Recitals. 1. The Heights at Haven View Estates filed an application for the approval of Modification to Development Review 98-13, as described in the title of this Resolution. The modifications involve a reduction in the overall height of the slope along the nodhem portion of the site, a revision to the base elevation and design of the channel along the nodhem boundary of the tract, providing retaining walls directly north of the channel, and the elimination of grading north of the project. Hereina~er in this Resolution, the subject Development Review request is referred to as "the application." 2. On the 12th day of August 1998, thq Planning Commission of the City of Rancho Cucamonga reviewed Development Review 98-13, and following the conclusion of their review, adopted Resolution 98-56, by which the Commission determined that no subsequent environmental review was necessary for the project and approved the project. 3, That decision by the Planning Commission was timely appealed to the City Council. 4. On the 18th day of November 1998, the City Council of the City of Rancho Cucamonga denied the appeal of Development Review 98-13, and affirmed the decision of the Planning Commission to find that no subsequent environmental review was necessary for the project and approved the project. 5. On the 22nd day of August 2000, the City Planner of the City of Rancho Cucamonga held a public hearing on the application, and following the close of the headng, adopted Resolutions 00-17 and 00-18, making environmental findings and approving the application. 6. The decisions made by said City Planner on the application were timely appealed to the Planning Commission. 7. On the 27th day of September 2000, the Planning Commission of the City of Rancho Cucamonga held a public hearing on the appeal, and following the close of the hearing, adopted Resolutions 00-102 and 00-103, making environmental findings and upholding the decision of the City Planner. 8. The decisions made by said Planning Commission on the application were timely appealed to the City Council. CITY COUNCIL RESOLUTION NO. DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES November 15, 2000 Page 2 9. On the 15th day of November 2000, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said public hearing on that date. 10. All legal prerequisites prior to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the City Council of the City of Rancho Cucamonga as follows: 1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. Based upon the substantial evidence presented to this City Council during the above-referenced meeting on November 15, 2000, including but not limited to, written and oral staff reports, the minutes of the above-referenced City Planner meeting, and the contents of City Planner Resolutions 00-17 and 00-18, minutes of the above-referenced Planning Commission meeting, and the contents of Planning Commission Resolutions 00-102 and 00-103, together with public testimony, this Council hereby specifically finds as follows: a. The application applies to property located at the northeast comer of Tackstem Street and Ringstem Ddve, with a street frontage of 1,020 feet along Tackstem Street and 1,360 feet along Ringstem Drive, and is presently vacant; and b. The property is bordered on the north by property owned by the City of Los Angeles Department of Water and Power, on the east by property owned by the San Beroardino County Flood Control District, and the properties to the south and west consist of vacant and developed single-family residential land; and c. The application contemplates a revision to the approved grading plan for Development Review 98-13. Revisions to the proposed project will reduce the overall height of the slope along the northern portion of the project site (along the rear of Lots 1,2, 3, 10, 11, 12, 19, 20, 21, 22, 32, 33, 34, and 35), revise the base elevation and design of the channel along the north boundary of the tract, provide retaining walls directly north of the channel, and eliminate off-site grading north of the project. 3. The Califomia Environmental Quality Act (CEQA) establishes requirements and procedures for evaluating potential environmental impacts resulting from development of a project. Section 15162 of the State CEQA Guidelines establishes specific criteria for determining when subsequent environmental review of a project is required. The following addresses Section 15162 and the substantial evidence to support the Council's determinations as to whether a new EIR, a new Negative Declaration, or other environmental document is required in this matter. a. When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: CITY COUNCIL RESOLUTION NO. DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES November 15, 2000 Page 3 1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Proposed revisions that reduce the height of the slope adjacent to the rear of lots along the noRhem boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off- site are changes that will reduce project related impacts. Reducing the heightof the slope will result in a slight increase in the amount of grading; however, as with the prior approval, the cut and fill of the project grading is designed to balance. Revising the design of the channel will not change its capacity. Proposed changes to the design of the project will not affect the majodty of the project, including street designs, pad elevations, and equestrian trails. These are not substantial changes in the proposed project because the minimal amount of proposed grading, because of the relatively insignificant changes to the channel design, and the minimal changes to the project's design. Without any substantial changes in the project that would result in new or severe environmental impacts, major revisions to the Negative Declaration adopted at the time of subdivision approval would not be required at this time. 2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. No substantial changes have occurred with respect to the circumstances under which the project is undertaken, which will require major revisions to the Negative Declaration adopted at the time of subdivision approval. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were evaluated under the Negative Declaration approved with the subdivision of the property. The proposed revisions will not change the number of homes or their general location within the tract. Characteristics of the surrounding properties have not changed significantly since the tract was appreved; the property to the north and east is vacant, and the property to the south and west contains residential lots, many of which have been developed with custom and semi-custom homes. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundaryof the tract. The circumstances underwhich the project is undertaken does not result in the involvement of new or significant environmental effects or the increase in the severity of significant effects. 3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: a) The project will have one or more significant effects not discussed in the previous EIR or negative declaration. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have one or more significant effects not discussed in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the original design of the project and the CITY COUNCIL RESOLUTION NO. DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES November 15, 2000 Page 4 proposed revision provide improvements that include a slope adjacent to the rear of the lots along the nodhem boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. Although the minor revision to the project design includes various retaining walls north of the channel not contemplated in the original design of the project, the walls are designed to be consistent with the use of retaining walls in other areas of the tract, to comply with the requirements of the Hillside Development Ordinance, and as required by the Design Review Committee, the walls will be provided with landscaping to sofien theirappearance. In addition, assertions regarding the capacityofthe Deer Creek Detention Basin and related facilities do not show that the project would have one or more effects not previously considered. b) Significant effects previously examined will be substantially more severe than shown in the previous EIR. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will not have significant effects more severe than shown in the previous Negative Declaration. The proposed project provides for the development of 40 homes within the area of Tract 14771 that were contemplated under review of the 1990 Negative Declaration. Both the original design of the project and the proposed revision provide improvements that include a slope adjacent to the rear of the lots along the northern boundary of the tract and the installation of a channel for the drainage area south of the Deer Creek Detention Basin and the northern boundary of the tract. The changes in the channel design will have minimal impacts to grading, water flow, and aesthetics. These changes are not resulting in significant effects substantially more severe than shown in the 1990 Negative Declaration. c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or altemative. There are no mitigation measures or alternatives that were previously found not to be feasible that would in fact be feasible, but the project proponents decline to adopt. The project applicant designed improvements to reflect the Conditions of Approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review 98-13. d) Mitigation measures or altematives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more signiflcent effects on the environment, but the project proponents decline to adopt the mitigation measure or altemative. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and will result in a project that is substantially similar to the currently approved project. There are no mitigation measures or alternatives that were considerably different from those previously analyzed. The project applicant designed improvements to reflect the Conditions of Approval imposed.on the subdivision of Tract 44771. There were no new mitigation mea,o. ures cenditioned on the approval of Development ~eview 98-13. CITY COUNCIL RESOLUTION NO. DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES November 15, 2000 Page 5 b. If changes to a project or its cimumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise the lead agency shall determine whether to prepare a subsequent ~egative declaration, an addendure, or nor further documentation. The current application to reduce the height of the slope adjacent to the rear of lots along the northern boundary of the tract, reduce the base elevation of the channel, and eliminate the need to grade off-site are changes that will reduce project related impacts, and does not result in new or more severe environmental impacts that would require major revisions to the Negative Declaration adopted at the time of subdivision approval. The project applicant designed improvements to reflect the Conditions of Approval imposed on the subdivision of Tract 14771. There were no new mitigation measures conditioned on the approval of Development Review98-13. Consequently, the lead environmental agency has determined that no further environmental documentation is required. 4. Based on the findings specified above and on all evidence presented to the City Council during the above-referenced hearing, the City Council finds that none of the criteda in Section 15162 of the State for California Environmental Quality Act Guidelines req uidng subsequent environmental review exist or are present with respect to the application for the modification to the Development/Design Review application. Therefore, the City Council finds that no subsequent environmental review of the project is required and that this determination is the independent judgment of the City Council. 5. Based upon the substantial evidence presented to this City Council dudng the above-referenced meeting on November 15, 2000, including but not limited to, written and oral staff reports, the minutes of the above-referenced City Planner meeting, and the contents of City Planner Resolutions 00-17 and 00-18, minutes of the above-referenced Planning Commission meeting, and the contents of Planning Commission Resolutions 00-102 and 00-103, together with public testimony, this Council hereby specifically finds as follows: a. The proposed project is consistent with the objectives of the General Plan; and b. The proposed design is in accord with the objectives of the Development Code and the purposesof the district in which the site is located. The project is located in the Very Low Residential District and because of the slope of the site, it is also subject to the provisions of the Hillside Development Ordinance. The development of 40 homes on 25.35 acres is consistent with the Very Low Residential District, and the project was designed to comply with all applicable provisions of the Hillside Development Ordinance. The minor revisions to the grading plan were designed to be consistent with the originally appreved project and to comply with the provisions of the Hillside Development Ordinance; and c. The proposed design is in compliance with each of the applicable provisions of the Development Code. The project was designed to comply with the building and grading provisions of the Hillside Development Ordinance. The minor revisions to the conceptually approved project that include a reduction in the overall height of the slope along the nodhem portion of the site, a revision to the base elevation and design of the channel along the northern boundaryof the tract, and providing retaining walls directly north of the channel are in compliance with each of the applicable provisions of the Hillside Development Ordinance; and d. The minor revisions to the proposed design, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare or materially CITY COUNCIL RESOLUTION NO. DR 98-13 MOD. - HEIGHTS AT HAVEN VIEW ESTATES November 15, 2000 Page 6 injurious to propedies or improvements in the vicinity. The effects of these changes on the homes in the approved tract as well as 'propedies adjacent thereto, have been evaluated and found to be insignificant, and e. The Hillside Development Ordinance requires that retaining walls are limited to a maximum height of 3 feet. When additional retaining height is necessary, an additional retaining wall may be utilized, however, the walls shall be separated by a minimum of 3 feet. The applicant designed the retaining walls on the north side of the channel to be in conformanca with these requirements by providing 2 retaining walls up to a maximum height of 3 feet and separated by a minimum of 3 feet. The design of these retaining walls is in conformance with the provisions of the Development Code and the Hillside Development Ordinance. 6. Based upon the findings and conclusions set forth in paragraphs 1,2, 3, 4, and 5 above, the City Council hereby approves the application subject to each and every condition set forth below. Planninq Division: 1) All Conditions of Approval, as contained in Planning Commission Resolution 98-55 and City Council Resolution 98-178, shall apply. 2) The retaining walls north of the channel shall be provided with a split face block finish. 3) Landscaping shall be provided between terraced retaining walls north of the channel. The landscaping shall be shown on the final Landscape and Irrigation Plans and shall be installed pdor to completion of the project. 4) This approval does not preclude the developer from proceeding in accordance with the original grading design, approved with Development Review 98-13, if approval is obtained from the property to the north for that purpose. 5) ModificatiOn to Development Review 98-13 shall expire if building permits are not issued within 5 years from the date of approval. No extensions are allowed. Enqineerina Division 1) A permit from San Bernardino County Flood Control Distdct is required. Any redesign required in obtaining the permits shall be resolved and approved prior to starting work. 2) The approved Final Drainage Study shall be updated to address the alternate channel design. The Secretary to the City Council shall certify to the adoption of this Resolution. PASSED, APPROVED, AND ADOPTED this 15th day of November 2000. CITY OF RANCHO PLANNING DEPARTSlENT CUCAMONGA ~.~.'.<, ' DATE: TO: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager 1941 An easement for Flood Control and Water Conservation in favor of the San Bernardino County Flood Control District (SBCFCD) was recorded over properties north and east of the levee, which includes the site of Tract 14771. 1977 In November of 1977 the City of Rancho Cucamonga incorporated. 1981 On April 6, 1981, the City Council adopted the General Plan. 1983 On March 24, 1983, an application for the initial subdivision of Tract 12332 into 204 lots was submitted to the City. Tract 12332 is located directly south of and adjacent to Tract 14771 within Haven View Estates. On May 11, 1983, the Planning Commission approved "Tentative Tract 12332 - Laband" for the subdivision of 204 lots within Haven View Estates. Tract 12332 recorded in two phases: Tract 12332-1 recorded on August 1, 1984 and Tract 12332-2 recorded on January 18, 1989. In June of 1983 the U.S. Army Corps of Engineers completed the Deer Creek Channel and Debris Basin. MEMORANDUM CHRONOLOGY Of TRACT 14771 (LAUREN DEVELOPMENT) November 15, 2000 Page 2 On November 2, 1983 the City Council adopted the Development Code and Development Districts Map. 1984 On August 1, 1984, the City Council approved Final Tract Map 12332-1 for 53 lots. The Haven View Estates Homeowners' Association was established in this portion of Tract 12332. 1984-1986 The County abandoned the Flood Control Easement over the site of Tract 14771 and the area to the north. In 1984, the owner of Tract 14771 requested that the SBCFCD investigate relinquishment of the flood control easement because of his desire to develop the property. In January of 1986, the County Board of Supervisors abandoned their easement over the property. 1988 On March 9, 1998, the Planning Commission approved a time extension for Tract 12332, specifically for the area of Tract 12332-2, Following that approval, Councilmember Wright appealed the time extension approval on behalf of the residents within the existing portion of Tract 12332 (Tract 12332-1) because of concerns for the lack of adequate secondary access and street designs. On June 1, 1988, the City Council approved a time extension request (Resolution 88-344) for Tract 12332 with a condition to provide an additional access for emergency vehicles extending from the easterly tract boundary to the Deer Creek Channel. A prior developer provided access through the levee as an emergency access road. Near the same time as the City Council consideration of the time extension appeal the Haven View Estate Homeowners' Association filed a lawsuit and litigation ensued between the Association and the property owner of Tract 12332-2 and 14771. The lawsuits focused on issues of access, but also included concerns for maintenance, repair, marketing, and hours of operation. This issue is discussed further under the Litigation Summary of this memo. 1989 On January 18, 1989, the City Council approved Final Tract Map 12332-2 for 151 lots. The Rancho Cucamonga-V Haven View Estates Homeowners' Association was established in this portion of Tract 12332. On February 22, 1989, the Planning Commission approved the design plans for 150 lots within Tract 12332-2 through "Design Review for Tract 12332-2 - Brock Homes." On August 10, 1989, an application to subdivide Tract 14771 into 40 lots was submitted to the On December 12, 1989, JCC Development submitted an application for the design review of 30 lots within Tract 12332-2. 1990 On March 28, 1990, the Planning Commission approved design plans for 30 lots within Tract 12332-2 through "Design Review for Tract 12332-2 - JCC Development." MEMORANDUM CHRONOLOGY Of TRACT 14771 (LAUREN DEVELOPMENT) November 15, 2000 Page 3 On November 14, 1990, the Planning Commission. approved the subdivision of the "Tentative Tract 14771 - Brock." Prior to that meeting, the president of the Haven View Estates Homeowners Association submitted a letter to the Planning Commission identifying support for the project. 1997 On April 17, 1997, Lauren Development submitted an application for the design review of 40 lots within Tract 14771 through Development Review 97-11 (DR 97-11). On June 11, 1997, the Planning Commission considered DR 97-11, and continued the meeting until July 9, 1997. On July 9, 1997, the Planning Commission approved the design review of 40 lots within Tract 14771 through "Development Review 97-11 - Lauren Development." Following Planning Commission approval, two separate appeals were filed contesting the project's approval thereby requesting City Council consideration. The first appeal was filed by Cucamongan's United for Reasonable Expansion (CURE) and was premised on safety and environmental concerns regarding the removal of the levee. The second appeal was filed on behalf of the Rancho Cucamonga V- Haven View Estate Homeowners' Association and was premised on the statement that Tract 14771 does not have legal access across the private streets within Tract 12332-2. On August 20, 1997, the City Council considered the appeal of the design review and continued the meeting until September 3, 1997. On September 3, 1997, the City Council approved the appeal of DR 97-11, thereby denying the application. On October 15, 1997 the City Council approved Final Tract 14771. 1998 On June 2, 1998, The Heights at Haven View Estates submitted an application for the design review of 40 lots within Tract 14771 through Development Review 98-13 (DR 98-13). On August 12, 1998, the Planning Commission approved the design review of 40 lots within Tract 14771 through "Development Review 98-13 -The Heights at Haven View Estates." Following Planning Commission approval, two separate appeals were filed contesting the project's approval thereby requesting City Council consideration. The first appeal was filed by CURE and challenged Planning Commission approval of the project. The second appeal was filed on behalf of the Haven View Estates Homeowners' Association and Rancho Cucamonga-V Haven View Estate Homeowners' Association challenging the Planning Commission approval of the project. Their appeal identified a variety of alleged issues that included: inconsistency with the General Plan, premature re-submittal of the design review application, missing application material, missing review procedures, incompatibility with the surrounding neighborhood, and a violation of CEQA. MEMORANDUM CHRONOLOGY Of TRACT 14771 (LAUREN DEVELOPMENT) November 15, 2000 Page 4 On September 16, 1998, the City Council considered the appeal of DR 98-13 and continued the meeting until November 18, 1998. On November 18, 1998, the City Council denied the appeal of DR 98-13. 1999 On May 17, 1999, the Grading Plan for DR 98-13 was initially submitted for Plan Check. On July 29, and September 30, 1999, revised plans were submitted for Plan Check. On October 12, 1999, the Grading Permit for DR 98-13 was issued. Although the issuance of a grading permit is ministerial, as a courtesy, notices were provided to the Homeowners Associations, organizations, and attorneys interested in the project. The Grading Permit had the following conditions: 1) No grading shall occur on any portion of the levee until such time as the drainage channel adjacent to the northern boundary of the tract is complete (Engineering Division Condition No. 4 from the Tentative Map). 2) No grading shall occur on any portion of DWP property to the noi'th of the tract until such time as permission has been provided by the DWP to grade on their property. And 3) This Grading Permit shall not become effective and no grading shall occur on the project site for a period of 72 hours. The Grading Permit could not be utilized until after Friday, October 15, 1999, at 5:00 p.m. The developer began grading Tract 14771 on Thursday, October 21, 1999. 2000 On March 30, 2000, the applicant submitted a modification to Development Review 98-13. The modification proposed to reduce in the height of the slope adjacent to the rear of the lots along the northern boundary of the tract, revise the channel design and reduce its base elevation, provide retaining walls between the northern boundary of the tract and the replacement channel, and eliminate the need to grade off-site. On July 18, 2000, the Grading Committee and Design Review Committee reviewed the proposed modification and recommended approval of modification to Development Review 98-13. On August 22, 2000, the City Planner approved modification to Development Review 98-13. Following approval, two separate appeals were filed requesting Planning Commission consideration. The first appeal raised questions regarding the replacement channel and compliance with CEQA requirements; the second appeal did not raise any project specific issues. On September 27, 2000, the Planning Commission upheld the decision of the City Planner and denied the appeals filed in opposition of the proposed modification. Following the Planning Commission action, the project was appealed to the City Council. The appeal was filed by Thomas Bradford, representing CURE, and is based on the grounds that the approval violates the CEQA and the City's Hillside Ordinances. On October 10, 2000, the Army Corps of Engineers (ACOE) wrote a letter to the Federal Emergency Management Agency (FEMA) in response to FEMA's request for the ACOE to MEMORANDUM CHRONOLOGY Of TRACT 14771 (LAUREN DEVELOPMENT) November 15, 2000 Page 5 evaluate the Deer Creek Debris Basin and related flood facilities. The ACOE reaffirmed its prior FEMA certification of the project for full conformance with providing protection from the 100-year flood. A significant statement by the ACOE refers to the Deer Creek Reception levee. This levee is the facility that has been the subject of discussion since the beginning of the development review application. The ACOE has stated that this levee is not a pad of the Deer Creek Debris Basin and Channel project and that it does not meet the requirements for it to be credited with providing base flood protection. TG:Is ~ov-IS-QO ~Q:O8 F~om- T-H5 P.0?/Q5 F-4G? LOEBC:: d..OEBu-P Dtrc~l~d 21]-6884622 e-marl: mm~eiTh~lo,:b corn November 15, 2000 By 'iT.! .?.cOpixR James Ivimkman, Esq. Richorals, Watson & Getsban 1 Civic Center Circle Brea, California 92822-i059 Deborah Adorns City of Rancho Cucamonga 10S00 Civic Center Drive Rancho Cucamonga, C A 91730 Appeal From A.pp~roval of l~lacemem Channel Pcn~t - Tract No. 14771 Dear 3h~ and Debbie: The following letter and Exhibits A through F constitute the appeal of Californians United for Reasonable Expansion, Inc. (CURE) from, the Planning Commission's issnanee of the subject IFad,ng permit for a replacement channel on Tract No. 14771. CURE inc6rpora~es by reference all documents previously submitled by all partics in conaeclion with approvals associated with Tracz No. 14771, including documents submitted by CURE ax prior grading and Planning Commission hearings. Let there be no mistake - approval of the permit for the replacement channel directly relates to the removal of the Deer Creek Levee ("Levee"). The final map for Tract No. 14771 specifically requires that the replacement channel bc consmtcted before the Levee is removed. As such, the City cannot arbitrarily refuse to consider all of the evidence establishing that the Debris Basin no longer h~n4les the 200-year event originally intended at the ?im~ of its ennsma:tion. When the City originally approved the Project in 1990, it did so based upon the Army Corps' certification of ~he Debris Basin to a 200*year event. Ther~ no longer is any substantial ewdencc in the record that the Debris Basin holds the 200-year event. In fact. there 5 an subslantial evidence that the Debris Basin, by itself, handles even the 100-year event The Army Corps' latest conclusion is that the Debris Basin can capture only 162-acre feet - 50 percent of the orignal 310-acrc foot design. This is equal to a 33-year event. The only other evidence in the Adminiswarive Record concludes that the Debris Basin is even smaller. Nov-15-O0 tO:06 Froe- T-II5 P.02/05 F-487 LOEB(Sd, OEBu-P James Markroan, Esq. Deborah Mama November 15, 2000 Page 2 including the February 1, 2000 evaluation from the San Bcmardino County Flood Dialriot CSBCFD"), the E~ponem Failure Analysis rcpoll of April 2000, the affidavit of Robert Kirby, and the May 1, 2000 correspondence of Michael Bolander, Los Angeles County Flood Dislricfs chief hydrologist. Quite telling is the fac~ Mr. Bolander and the SBCFD reached ~e identical conclusion - that the basin handles 130 acre feet only or a 25 year event. Mr. Crisfano and The Heights at Havenview Estcaes have never presemted a single ~echnical document concerning the capacity of the Debris Basin. Secretary Westphal, die Assistant Secretary of Army for Civil Works and the most senior government q]icial responsible for the Army Corps of Engineers. has not approved ~he Los Angeles District's August 2000 Report. (Exhibit A, November 1, 2000, correspondence fxom S~-tary Weslphal Io McKeith.) He has now acknowledged that D~bris Basin and channel do not'provide "the level of flood proteciion intended," and that he is awaiting input from the Federal Emergency Managament Agency C'FIiMA"). Secretary Wesrphal's Conclusion thai the Debris Basin does not himale the level of flood protection originally inteuded is new, material information not Ineviously conaidered in 1990, 1997 or 1998. Importantly, Secretary Westphal slings that "more studies would bc needed to reevaluate the projecl." Once again, he requests a local sponsor to 'share in the cost of those studies. It is disturbing dust, after three years, the City of 'Rancho Cueamonga hiis not spent one cent on safety studies or cvar even discussed the possible need ~o joUl with lhe Corps in aletent, thing just what is needed at Deem Creek. CURE requests by this lener that the City Council act responsibly, serve as a local sponsor, and c~ase issuing penmrs on any properties located below Deer and Day Cre~k until this serious matter is resolved. Nor can ~c City rely on the draft August 4, 2000 report or Colonel Carfoll's October 10, 2000 lener as substantial evidence ~o support an argument that further ~vironmental review ts not warranted, First, this repor~ is not final as confined in Secretary Wesrphal's lenet of November l. 2000. Second, lhe Los Angeles District provided no technical support for its conclusion that the coneroe channel can handle 130-acre feet of debris. The oriJjnal Design Memorandum for Dccr Creek (numerous copies of which previously were submitled to the City) provided that the cban~el carry only clear water. The Corps has identified no updated studies demonstnting why the channel can now be ~xpected Io handle 130-acre foot (or more) of excess debris. There simply is no technical foundslion for the conclusions articulated by Joseph Nov-15-00 19:06 Froe- T-I15 P-03/05 F-487 LOEB~J,,OEB~ lames Markman, Esq. Deborah Adsms November 15, 2000 Page 3 ~velyn, ~e very engineer who now 'admits that his original design of ~e basin was "unreasonable." These technical deficiencies are ot~thned, at lengih, in Exponent Failure Analysis' September 18, 2000 repotl, previously submitted to the CiW and included in the Administrative Record. Colonel Carroll's Octoba 10. 2000 lcucr affirming the certification of the project, uri the other hand, nowhere addresses Ihe technical issues raised by Exponent. (Exhibit 8, OcWber 23, 2000 correspondence from McKesth to CanoH.) FurLher, the Army Corps did nol ¢~,'plaln why it re~ecIcd its own '~ca consultants' recommendations for furlb~ silldies concerning the potential ovenopping of the debris that no longer fits raffle Debris Basin. This too is new information that the City previously has not consida~L See l~ponent Report, Exhibil B, page 7. Finally, the Corps acknowledges that excavation of 'th~ Debris Basin is required to even accommodate 162-acre feel of debris. Those studies have.not been done since the City has not agreed to work with the Corps, Recognizing the problems at Deer Creek, SBCFD has conditioned approval of the Replaceanent Channel Permit subject to final resolution of the safely issnes surrounding the Deer Creek l)chris Basin and Chsn-el and the Stale of Califomia's approval of flood inundation maps. (h'bdlibil C, November 9, 2000, E-mall from Glenn Pnmn, San Bemardino County Flood District to McK-eith). As yon likely are aware, the Governor's Office of Emergency Services ("ORS") rejected thc County's flood inundation maps on Seplembdr 1, 2000. The County has yet to resubm~I those maps. As to the safety of the specific Replacement Channel, even the Army Corps acknowledges thm devcleper's saiimcnt ~ransport ~on shows significant buildup of debris in the channel. The Army Corps states that this is a concern ~e local agencies should address. (Exhibit D, October lg, 2000 e-mail from Joseph Evelyn to Ted Masigat "The MDS 'SedimenI Transport and Deposition Study' for the subject storm drain does indicate sigm~cant deposition at the end of the design flood hydrograph at the w, msition from the open charme] to the closest conduit. The design approval of the StolTn drain s~stem is a local responsibility for which the Corps has no authonty.") The City ha~ igtwred this fact in appx~ving the channel and will be relying on a non- existent homeowners association to somehow dean out and maintain the channel. Nov-I6-OO 19:09 From- T-ITS P-04/05 F-46T LOEB~S~..OEB,-,-~, James Markman, Esq, Deborah Adorns November 15, 2000 Page 4 Further, the Heighw at Ha~en~ew Estates has failed to present any evidence to refine the Dcclaraxion ofWolfgang Roth concerning post-1990 infoffnatien concerning the seismology ~long the Cucamonga Fault. Previously, thc developer ~rgued (and the City blindly agreed) thai there was no new post-1990 evidence concerning the Cucamonga Fault. Exhibit E is a A~gum 29, 2000 e-mail from DL Dolan, conrh-minS that the developer misrepresented the cun~ent of his July 1997 e~mail; that he had trenched Strand C in an urea substantially closer to the Replacement Ch~el than the pro-1990 trenching; and that new mfonnnfion was obtained llrom that survey. Given the evidence concerning the shortcomings az Deer Creek, the City will not enjoy the immumty ordinarily a~corded by California law. In this instance, two of the City Councilmen, Robert Dunon and Paul Bian, have direct contlicts of interest. Although thc~y now teaclinically "teeuse" themselves f~m'th+~i mauer, both have made extensive comments to the newspapers, to the xemaming City Council members, and to City staff thax will demonsware undue influence over this mallet. Furthe, both Councilmen have participatcd in closed session discussions of this Project, which is a direct conflict of inXeres! and violales the law, Since July I 1, 1997, CURE has opposed re~oval of the Levee abscm a complete safezy snaiy. Our position has remained consi~enl from the'outset. CUR~ has now cstablished that Deer Creek provides substantially less flood proteclion than originally rotended and that a complete evahiadon is needed. The City has never offered to work with the federal government or the Slate in condacring such sPadies. Instead, the City has legally opposed our efforts at every turn. In the past, the City has urgu~d that CURE's claims we~ without technical m~n-it and motivated by a desfire to oppose tract houses. Both of our Unhed States Senators continue to push for a complete safety study, and Secretary Nichols has expressed her willingness ro explore the possibility of the S~ate of California assuming the role of a local interest. (F.~hibil F, October 25, 2000 joint correspondence from Senator Boxer ~ genator Feinstcan zo Seerssty Nica~ls). Those meetings will now take place in curly December. We svxongly urge the City ofR..aneho Cucamonga to stop burying its head in the sand and to participate. Bear in mind that, wi~.n the Debris Basin is deceflified and residents of this City ore faced with paying $2,0OO/year of FEMA flood insurance, they will ask where our government was in protecting their interest? Rather than protecting the public, the Cily Council has promoted removal of a Levee that protected a large segment of that popuhtion for decades. Nav-15-O0 19:09 From- T-I15 P.95/05 F-487 lames Markman, Esq. Deborah Ariains November 15, 2000 Page 5 If the CiW approves the permil This evening, you merely will he facing yet another m~,d of litigatson that will permit reopening of the reeora when the Debris Basin is deceaified. Very u'uly yours, Malissa Hathaway McKeith ~:jd ' ' 93163102408 ' ' LA254832.1 Enclosares cc: The Honorable Cily Council Coy [el~copier and w/enclosures) Mayor William Aleunder Couacilwo~n Diane Williams Councilman Rolnn Dunon Councilman Paul Biane Councilman lames Cur~alo Me. Mease Hathaway Mc. Xelth Lceb&LoebLLP 1000 Wishire eou;evam Suite~aOo L~AnOelesCe/ifomb 90017.2475 eafetyleoudlmtoo~can, and we want to be sumthatFEMAIslnBgmem.~ -2- anon-Fedend govmnmem(city, ommty, or Stme) deetree to puraue aaludy todetermlnethefeasibitityofproddlngahigherlevelm'~a~dp~the Coi'psiswfirmgtoundedakesuchscoet..shamdeffm'L Plea&ibeam~uredthatlintendtoprovkleaffnalreqx~mmbF}um~cI (c~vn wo~) - LOEB( d,,,.OEBLLP i Direc~ Dial: e-raai|: rm,nci~tbri~Jocb.com C)~tober 23, 2000 VIA MESSENGER AND Coloncl John Canol An~y Coq}s of Engineers 911 Wilshirc Boulevard Los Aagclas, CA 90017 Re: Year Leae~ of October 10, 2000 Dear Colonel Carml: Thank you for your letter of Octob~ 10, 2000, which I received llis toorain8- As your office is diTedly acros from mine, may t suggea in the future that you simply call my geemary, and we can send a me~eugcr. Altcmslivdy, perhaps sending il by facsimile or e-mail might reduco the two-week delay in r~ceiving mate, aids. More than anything else, your letter underscores the tirademental problem with thc Los Angeles' Dislri~fs unwillingness to submit to any meaningful ind~cadem process for review of the Dest Creek Debris Basin. First, the Cozps has never addressed the fm~amenlal problem wilh Deer C'~ek - namely that the Zo~ Angeles Dlxtrictuseddt~wrongdesignstorrs. Second, you continuc to assign this manerto the very er,,.gineer, Joseph Bvdyn, who participated in the Oi'jginll! desigll Of {he basifi. Mr. Evelyn finally has Bdmitted ~ design was "~lmasonab}c,' however, you ncv6fth,'!ess ex'p~ us to ar.c~t his lm_e~__ c~gjnc~ing "judgmenT" that the project, opposed to the &rbr/,f bas/~, can still iramile a !O0-yea~ event. Finidly, there has no indqxmdcut rcvicw of anything. Thc so-called "indepew. lcm" consultsnt (which note was paid for by the Co~ps) did not conduc~ an indq~-ndcnt evaluaxion of the dcbris basin. It merely "audited" the Corps' AuDust 4, 2000 memorandum (in a matter of days) and hated that some of the assurnptions were teasop, able. You cvca objcct~ to the Pentagon allowing us to meet with or provide input to this so-called co~dml, whereas your cngincen had daily contacl. In reality, you simply selected the parts of the MBI rcport that you liked and ignored the rest. As the most obvious Colonel loire Cartel October 2,3, 2000 ex~uuplc, MEI recommended further sludies be conducted, and yet Los Angeles ignonsd those recommendaxiom without explanation. The bottom line is that th~ Corps has not conducted the complete, thon~gh nn,~w ~/u/z~ cm'r~ ~ long alp requested by our Scantors on November 1999. Worse yet, you have pemoualiy turned this into a "battle" between genuincjy concerned citizens and the United States government. From the outset, your staff dismissed our concerns as unfounded. Twice now, we have fo~ced your staff to grudginl~ly admit to prcm!_Nqs with the basin. Even though vaguest possible landtags in his latest August 4, 2000 report, the Los Angeles Distriot's conclusion that the basin holds only 162-acre feet - or nearly 50 percent of the origh~ design capeoily - cannot be e~apcd. Ftmhe~, we take absolutely no solace in the pteposlerous claim tinst the concrete channel can handle 13e-acre feet of debris. The otiginnl Design Memornndum went so fat as to warn apinst the hazards of "Russian Thistle" hieeking the channel and causing flooding. but you now expect as to believe that hundreds of thousands of tons of 4chris can pass thmu~ Your continued resislancc Io submitting this mailer to third party nwicw speaks volumes about the merit of thc Coqus' position. The Corps' wotk product simply could not pass musu~ and you know it. If! am wrong. then why not ~bmit this matter to the National Academy of Science or to some other independent pan,/for a complete analysis ofthe situation? Until you develop a mdy fair ~ Deer Creek will continue to phtguc you. Nolhing has clanged in th~ past year except thai v~ are more entrain of the technical problems Ill Deer Creek. It is regn~able ~' ncmn~on~ in your institution simply does not addzu~ the sltualm in a professional ms~__ner and solve the problmn. What follows are sp~cLec responds to your correspondence. 1. Thank you for crm~rming that the Corps has no documentation .,fiecling any inspections by the Army Corps of the Debts Basin. Such inspections me r~quired by the Corps' own regulationg, yet yon have kept no roentds. The absence of my clear records rct~mtion policy in the Los Angels District may be one reason why so many criUcal doournents relating m Deer Crock at~ missing. Colonel John Cartel October 23, 2000 Page 3 2. Your statement that the San Bcnuffdino Cottory Flood Control District has submitted its flood innndslion maps in accmdancc with th~ Statu guidelines is false, Attached is a September 1, 2000. lets' 5'om the Govemar's Office of Emctgeaacy Services COBS'.)rejccting those ma~ as inadequate. OES confirmed this morning thal the San Benmrdino County Flood District has not rembmitted them. Moreover, San Bernardinn County Flood District ~s atfe~p~ng to wwlst~ a~y debris t~r ov~opplng th~ basin in developing the flot~ inundation maps, ~here~ negating the yew danger nlmut whigh people are concerned. Do you honestly consider such an exclusion to hc ecccptsble in designing inundation maps intended to advise !oc81 co~smunlfies of the poten~ql dangors era ddn'~s hasin fniltm~? 3. Your statement that the San Bcmardin~ County Flood Control District - rather the Corps - is respomibte for developing inundation maps is a feeble attempt to avoid year rt~omibilities, According to Corps' re~lafion~ it Is th~ ~bltga~on of th~ ,~rmy Corps to ~nsur~ that tht~ local interests dsvdop those ma~l i/the Corps do~s not. The Corps has don~ nothi~ for 15 y~ars to tequin~ that San Benmr&no County Flood District d~velop inundation maps. 4. You claim that lhe deflector levees provide a secondary "]ins of flood pmteetitm." and ~ you admit that this claim is made without any "calcnlafiona ... for the debris end/or water conveysace enpacily of the deflector levees." The absence of any actual engim:6ing study makes out point about why you cannot reasonably rely on ihe~e levees. 5, Unlike the d~'tffr k-a:es which have never ~ tested in any major flood evere, ~he Deer Cr~k Levee mceessfnlly held back and tedirc~t~ ~0od flows away from our homsa in both 1938 and 1969 - a point which your staff has never denied. Fmlher, the 1983 Letlet of Map Revision ~ram th(~ Federal Ernerg~cy Management Agency ("FEMA") shows the Levee as the soulhem boundan/of the An zone. If the Lev~ had ant be~n ~erlif~ to handle th0 lO0-ygat ~v~nt, the a~a hengath I~o L~v=~ wh~m ws live eould not have h~=n d~alope~L FF. MA long ago ecknowlulged the Lev~:'s r. mif~almn, m you earnrot r~vrit~ history on this issug. 6. Your wdlingness to rely on th~ uncerti~ed defiscmr leves for ~,onda~ protectinn, while you personally prcralo~e d~rnwtion of the proven D~er Creek Levee,, is confusing at best Perhaps you ate simply trying to help San B~xtiitto Ctmmy out of th= awkward position of having sold a fedorally ftmdod LOEB~J,OEBLu, Colonel John Cartel October 23, 2000 I~veef without any studies and for a paltry $52000. The Levee iea substanlially larger slructme than ~hc two small ddkaor leve~s, and it should not be removed until we have fully evaluated am/c. orr~ctdd the shortcomings of Deer Creek. As we have recommended to the Count~] of San Bernnrdino on several occssjons~ it could easily swap its hnd to ~ e~st of Havenview with the developer and ~xart maintaining the L~'vee a~ain. Ken Miller admitted to me, in 1997, that the Levee takes minimal maintensnce and that the now famous breach on ils eastern portion could he fi~ed 7. With regurd to all of your speculative c-ommenls about what FEMA would mr would not require, I believe ii would be mote appropriate for FBMA to comroenl on such issues. Exprment Failure Analysis is one of the leading experts in the country on FEMA nnapping and debris basins. Exponent is e~phatic that the Corps cannot rely on th~ suppts:d capacity of the cbnnn~l (whieh has never been stmlied) or oth~r flood infrastn~ctm~ in certifying the basi~ By your own admission, neithe~ the Corps nor the County has developed inundation rn~, which would form the basis of ~uch analysis, |f the Corps is so wnfident in its interpretation of FEMA's standards, then why is the Co~ps so insir~ent tha% FEMA not ~et involved? 8. I will lea~,c your cornmenls about the failme of the ~oncrele channel to the engineers. The September 18, 2000 Report from E~ponsat Failure Analysis ~d_.~_esscs ~is issue and includes excerpts from your own Design Memoranda which refute the Disn'ict's latest '=hypothesis" on the channel. Parenthetically, 1 have never seen say "sedimem transport models" developal in connection with egablishing thal Ihe channel can carry debris. If th~sc ~cis~ you somehow have ~ed producing them in rcspons~ Io the many FOIA n:quests that hav~ besa ~n| over the pan! yeax. 9. With regard to Four comments on the embankment, Musset~et Bngineenng Inn ("MEI") recommended f~t/ser stud~ in connection with potential ove,oppmg of t~ em/~an/a, em. (gr3/00 Mu~,u~r Report at g). Tbe Corps ignored recommendations without explanation. { AlthoUgh you claim that the Dt~a' Cask Levoe is uot part of the Project btm3ause v.~ really meant e~, I no~ that you have uevmt denied thai the federal govmmneuX paid for ~t= L=vee, Sent by: LOEB & LOEB 213 668 3460; 11/15100 3:05PM;}etFwx #433;Page 6/7 Colonel John Cartel October :23, 2000 Page 5 10. The State Department ofWatcr Resourc~ do~s not inspect the basin in connection with ils debris capacity as you wrongly assert. San Bernardino Cotmty Flood District unsuccessfully advanced this s~milar misrepresentation in the past. Con'espondencc dated November 18, 1999 from the Division of Dam Safety 6larifies that such representations from other agenci~ arc untrue. You are not going to easily shift blame to the State when Deer Creek fails. 1 !. I !~elievc the Zos Angeles I~mes Article speaks for itself, i nolo that County (and apparently ~e Corps) dropped its claims about the deflector levees once we publicly poked fun at these claims. 12, The developer has submitted the incorrect hydrology for the replacement channel hookup on four scl~arate occasions, and he moat recently failed to provide you with his Sediment Transport Report developed in June 2000. Exponent finally forwarded that study to you last math. The sediment study shows 4 ¼ feet of debris entering the channel at the hookup. Despite the develop~r's failure to provide ~e Corps with even this bask information, you still elect to support hLm at every turn. It is difficult to ignore the "coincidental" timing of yore- corrcapoudence with his permit hearings before the City of Rancho Cucamonga on the replacement channel. In closing, although I agree that the Army Corps "has responded to our allegations" as you claim in your lettea, you have merely responded in a defensive posture rather than dcalin8 affirmatively and in a positive fashion. We are not the "opponent" as the Corps' suggests. We happen to be the citizens for whom you buih the Debris Bash in the first instance, The Army Corps' hostile attitude lies at the heart of our inability to solve these important isams. The Corps has only responded when battered into doing so. May Ireraiud you that, until November 1999, your insisted I]~at t~e bitsis handled lAe 200-year event. The question remains: what does the Corps intend to do 1o fairly resolve this situation? If your response (or that of your superion) is to continue ignoring the overall problem and relying on the tinsubstantiated Aogtlst 4, 2000 rcrport, then you IF, ave us with no option but to continuo this battle. Sent by: LOEB & LOEB 213 68B 3460; 11/15/00 3:05PM;,letF~x #433;Page 7/7 [,OEB(Sd, OEBLLo Colonel John Carrol Octob~T 23, 2000 As always. I would I~ happy to c~gage in some constructive dialogue on this issue. I note thai no on~ from any office of the Corps has ever initiated a single phon~ call to addn~ss this mater in three years. MHId:j~ LA252010. i V~'y Iruly yours, Malissa Halhaway MoKcith,' The Honorable Dianns Fainstein COy tdccopie~ and wlenclosm'ss) The Honorable Baeoara Boxer Coy talecopier and w/onclosurcs) The Honorablc Mary Nichols Coy teleco~ier and w/enclosures) The Honorable Dallas Jone. s (by t~locopier and w/~olosur~s) The Honorable Joseph Wqstph~ Coy t~l~copi~ and w/enclos~es) Major C,,-t~e, ra] Flowns, Commando, Amuy Corps of Engineen Coy tellcopier and w/enclosures) The Board of Sul~rvisors of San Bffnatdino County Coy tclccopier and w/enclosurcs) James Lcc Win, Federal Emergency Marmgemem Agency COy telecopie~ and w/enclosurcs) Dean Dunlavcy, Esq. Coy zelecopier and w/enclosures) Sent by: LOEB & LOEB 213 688 3460; 11/15/00 12:28PM;Je~cdX #66; Page 13/17 t, . . , Marrosa Mclelth To: jdahl~iLoeb.com 1111512000(16 42 AM : Subjeot; RN: Deer Creek Channel, 60" RCP, Permit P97-62D (EE97-155DL . ,., Expo nan1 Transmittel letter, no date, rcv'd 8/27/00 P, lease fax To my home the a~tached o-mail. Thanks, .................... Forwarded by Malice MCKeithlLAILe4b on t II15/2000 06;47 AM Oeuglee Hamilton <dltmmlton~expe~enT,eom ) on 1110912000 09:17:50 AM To: , "'Mafissa McKeith'" <mmekehh@beb.oom> Subject! FW: Deer Creek Channel, 60' RCP. Permit PBT-62D 4EE97-155D), ExOo nee trwlsmittef letter, date, rov'd 8/27/00 ..... Original Message From: Douglas PamilCon Sent~ Thursday, Nova{abet 09, 2000 9=16 AM To: 'Maltese McKelth' Subject; FW: Deer Creek Channel, 60" RCP, Permit PP?-6=D .(ES97-~SSD)~ ~xpo nent transmittel latter, no date, =cv,d 8/27/00 Halices, This i~ for you information. Doug ..... Original NeeeaSe ..... From= Douglas Hamilton Sent: Thursday, November 09, 2000 9:15 AM To; Ijevel~nespl.usace,army,mia~ Subject= R=: Deer Creek Channel, 60" Exgo nent tranamittal letter, no ~ate. rcv'6 Joe, Thank you ior your response on this. [ d~d get a copy of the letter ~rom Ted to S~n Bernardinn COUnty. Dou~ Hamilton ..... Original Message From~ jevel~r~spl.usace.azmy.mil [mailto!jevelFnespl.ueace.army.mil] Sent: Wednesday, October 18, 2000 3~00 PM To: tmaeigac~apl.uence.army.mil; dham/lto~@exponent.com Cc; c~vandorpe®spl.ueaee.army.mil~ rleifield®epl.usace.army.mil Subjeo~: P.E~ Deer Creek Channel, 60" RCP, Permit ~97-6~D (EEP?-159D), Exponent cransmitcal letter, no date, rcv,d 8/2?/00 Ted and DO~g, The MIlS "Sedimen~ T=anz~uorc and Deposition Study', ~or the subject ~torm drain does indicate significant deposition a~ the end of the design Sent by: LOEB & LOEB 213 686 3460; 11/15/00 12:28PM;Je~F-aX#66; Page 14/17 flood hydrog~aph ac ~he transition fran ~he open cb~el ~o ~h¢ closed conduit. This location is abou~ 200 feet upstream of the con~luence o~ the storm drain with the corps, Deer Creek channel. The design approval of the storm drain system laa local responsibility ~or which the Corps has no authority. Therefore ic is the design requirements of the Cit~ of Rancho CUtsmudge a~ SBCFCD chat mu~ be me~ by the developer. The Corps has approved the subject permit becanse the Corps requirements ~n terms of the stem drain conflushes desig~ such as angle of entry and submergence have been satisfied by the proposed design, Noted during a cursory review of the ~S repor~ is that the sediment transport analysis did make some 8igni~cant conservative assumptions such as incorporating a 50 percent safety factor into the analysis. Also the hydraulic anelys~s indicates that the channel flows generally at supercritiCal whiuh would ce}l into question whether the eedirm~n~ tra~spor~ [unction used (Copeland Iaursen) adequately models the full transport capacity of this very steep concrete-lined channel. In summary the corps have no basis for retracting our approval of the subject permit because the storm drain conf~uence design with Deer CreeJ~ Channel meets our requirements, and the implied sediment problem is well upstream of the oonfluence in a reach under local agency approval authority. Joe ,. ..... Original Message ..... " Prom: Maalgst, Theodore J SPL 8eriC: Tuesday, October 10, 2000 8:32AM TO: Byelye, Joseph B 8PL Co: ~eigler, William J ~PL Sub3ecc| FWw Dear Creek Channel, 60" RCP, Permit P97-62D (EEg?-iSSD)~ Expo tent trarasm~ttal letter, no date. roved 8/2~/00 Importance: High JOB: TEDM 33S3 WIIJ~ YOU PLI?,ASE GET MR. FU%MIIa'I'ON T}IE CORPS RESPOAs~E~' ..... Origins1 Message From: Douglas Hamilton [mailto;dhamiltoneexponen~.oom] Sent: Friday, October 06, 2000 To: 'Te~ Maaigat, Co: 'David Van Dorpe. Eub3eot: FWI Deer Creek Channel, sO. RCp, Permie Pg?-62D (=i97-155D), EXpO tent transmittel letter, no date, rc~'d 8/27/00 Ted, I wanted CO follow up on this permit application with you. A few weeks ago I [orwsrded a sediment transport study performed by the designer of the 60" RCP to Dave Van Derpe. He forwarded it on to you. My review of that study concludes Chat the 60,, MOP w~ll be blocked by sediment during a flood. I was wolldering ~f you had the same interpretation. Dou9 lidmilton Exponent, Inc. 3187 Red Hill Ave. Suite 100 Sent by: LOEB & LOEB 213 688 3480; 11/15100 12:29PM;Je~#86; Page 15/17 Coeta Mesa, CA 92626 Tel. ?14-~SS-B38Z ..... Or~g~naZ Message ..... Prom; dvandorpeeepl.usace.a;rmy.m~l [mailLo:dvandorpeespl.usace.alw~.m~l] sent: Wednesday, September 27, 2000 1:14 PM To: dham~lconeex~onenu.eom Cc~ llu~arespl.usace.anjjy.mil~ wzeigle~eapl.usace.azmy.m~l; ~evclynespl.usace.arr~.mil~ tmasi~at®spl.usace.army.mil ~ubjec~: Deex Creek Channel, 60" RCP, ~sLl~i~ Pg~-62D (EEg?-I55D}, Exponent transmitcal letter, no dace, rcv'd 8/27/00 Doug~ I ~or~arded your letter and the attached s~udy ~o H&H [or their consideration wiEh regards to the eubject permit. For additional in[ormaticn0 eontac~ Mr. Ted Masi9a= at ~13 452-3~93. Ted is our Permi~ Coordinator for the Diettier. Sincerely, David M. Van Uorpe, p.E. 213 452-3693 Bent by: LOEB & LOEB 213 688 3480; 11/15/00 12:25PM;JeI~Ix #BB; Page 2 . Malill McKeith To: jdahleloeb.com 1512000 06:40:' : ~~ Subject: DEER CREEK SIDE DRAIN CONNECTION - TRACT 14771 Please fax the following documents to my house 1. The rotached e-mail 2. The 10125 letter from the Senator~ t~ NiChols 3. The 10/31 letter from Westphal to McKeith 4. The 10/23 letter from McKeith to Carroll .................... F~rwerdad by Mali~a McKeit'h/i,A/Loeb an 1111 5~2000 06;~4. AM .......................... "ProIra, Glenn" <gPmlmildpw.co.ssn-bwnardln~.ca.t~s> on 1110912000 To: "'Malmsa McKeiffi'" <mmekekh~loeb.com> ca: "'Douglas Hm-n~o~'° <dhsmikon~bexponent.sem), 'Scd~tiao, <0s~ll~co~.eo.s~-bln~o.ca.~>, "Mil~, Ken' Sub~: DEER CREEK SIDE ~IN CONNECTION - T~CT 147~1 Halissa, , · hia e~il is in r~sponam ~o ~our f~, ~ted Nove~er 6,' 2000, ~agardin status of the pe~i~ for ~hs s~j~t ~a~t. ~s I m~ti~ad =~ Dou~ Hamilton on =ha phona the other day, =he mis~rim~ ham ~ompl~ted it's in~erna3 review and has also xscaived approval fr~.the co~s of ~inears for ~he side drain ~o~e~io~. Th~ fill ~r~t'~s prepared ~ sen~ ~o the (Lauren ~velop~nt) ~or sig~ure. ~e ~e~it is no~ ~alid, ~d will no~ be issued, until it is signed by.our Director, Mr. ~n Miller. Mr. Miller has aOc and will ~ot sign the petit until he is com~ort~le tha~ che issues surroundi~ the adequa~ o~ the ~er Creak Debrl. Baai~ ~ve ~ properly ad~eseed. Rest assured tha~ Chi~ i~ortanu issue will not "Blip through the Mdi~ionally, for~r iafomtiom, we are preparing a restnee ~o Hamilton,s request ic~ additional infomtion re: the pemi~ his~o~ and Pending pemit activity relacin9 ~o Deer Creek ~annel ~d suzro~ndin9 facilities. ~n't hesitate ~o contact M if you have any additio~l ~-C,DTF Sent by: LOEB & LOEB 213 686 3460; 11115/00 1:42PM;J~ #71; Page 2/4 dolan~)eanh.usc.edu on 0~129/'2000 02;53:43 PM To: mmckeith~loeb,com cc: Subject: Clardication of my paleoseiamslogic resutts Dear MS. MeKeith, I am Writing chic message in response to your inquiries regarding paleoasiamologic research chat I conducted during 1996 along strand "C" of the Cucamonga fault just south of Day Canyon. During the summer of 1996 Z and several colleagues opened a 35 m-long (115 feet), 5-9 m-deep (15-30 ~eer) trench across errand C of the Cucamonga iaulc several hundred meters to the West of the earlier excavations of Morton ~nd Y-atti (1987). In thiB trench, we were able to document evidence ~or at ~eaac ~wo paleo-earthc/uakee (and probably mare) that have occurred along chic errand of the Cucamonga fault during the Holcocnc {i. e., past 11,000 years). We were also able to estimate a slip rate ~or this e~rand of the ~ault a= -2.5-5.0 mm/yr. PinsSly. we were able to e~imate Ch~ a~o~u~t of slip ~hat Occurred On this strand oJ the fault auriag =hess pa~e01earthc/1a~k~6, speclfica11v, our ~rench =evesled ov~dence for e}ip of -Z to 3 m in past events. The maximum possible component of reveres Blip that occurred during chess past few events was -3 m in one of these paleo-earthquakea, ~lt~ough ~n my opinion the most recent two or three earthquakes probab=y caused only ~1 m of slip along setand C at our trench site. P]uase note thaC S~ramd "c" is only one of several active errands of the CucamonSa fault zone in the region. Following' earlier research by Morton and MatCl {1987) in the area, ou~ geomorphologic analya~a (geomorpholo~p/is the et~dy of the characteristic ~*eig~ature" left in the contours of the ground's surface by as=ire earthguake faults) ~ndicares that there are probably ~hree, sub-parallel active strands in the Day Canyon area. I underetan~ chat an earlier e-mail that I sent to Mr. Ford in 1997 bad caused s~ confusion. F~rsr of a11, ~ am m~ra tha~ a bit surprised thac this e-mail has been circulated without my explici~ consent. ; am not a lawyer. buc rather a scientist, and my only concern in this mercer is ensuring that the ~ati z eol}ecte~ bask in 199~ are presented accurately ~o people on ~och e~dee of this issue. Hopefully this e-mail will clarify exactly whac we leirne~ from our 1996 investigations and when we learned it- The e-ma~l that Nr. Ford has apparently forwarded to you does not d~eeuee the trench ~ excavated in 1~96, but rather d~ecnasea a proposal I submitted re San ternard~no County through a MS. Vivian Null (property faanager o~ the nature preserve near Day Canyon) to conduc~ palaone~emo]ogic ~re~ehing at a nearby site on =he nature preserve. ~he County never acted on ~ proposal. Specifically, M~. Null told ~ that she would forward my proposal, which she had requested that z write. to the Coualty board responsible fez granting permission, but after submitting my proposal I never heard back ~rc~ sither her or the county. As a result of my fz~ntxacin~ and u]tlmately fruitless attempc to excavate my research trench on County land, I abandoned plane =o trench on County propsr~y and instead excavated my trench on an adjacent privately 0ruled plot o~ land. You have asked r~e to comment on ~hs significanoe o~ ~he a~8~ of slip t~at abe occurred during the ~ienc earth~es ~hac ~ obse~ed in our ~ench. ~s I e~l~ined to ~u over the telspine, this is a ve~ i~recisc science. The a~nt of sllp observed at the surface (e. ~., in a paleosels~l~ic ~rench) ~s e~ims ~ed ~o satiate ~ential ~itudes o~ future ear~h~a~ee ~ the faul~ in ~estion. Ho~er, the potential error bars on these estimates are large, as I Mve e~la~ned to you. HaYinS said ~ha~, ~he 1 ~o 3 m of slip ~ha~ occ~red during ~e ~st zecenc few events on the ~ea~n~a fault are c~eis~ent with Ehe ucuurr~ce of m~erately large ~o large earEh~akes on =~e ~nga faul~ {see a==ach~ bel~). S~cifically, ~his a~t of slip is consistent ~h the occurrence of ~nt-magnt~ude 6.5 to ~.0 ea~h~es. I believe it would be ~ite ~lik~ly ~or thiB a~uR~ o[ slip to have octfred duri~ an earth~a~e o[ 8 ei~ific~cly smller ~i~. If the ~ximum ~ss~ble 3 m of slip obee~ed in our trench occurred during one ear~uake, and a~o~t oi slip was railactive of ~he averaee2lip on the faul~ plane at 10-1S k~ depth, then this ~t of slip would ~t ~ in~sistenU winh an ear~h~e e~ewha~ l~er ~han mo~n=-~gnieude 7.0. ~he~re, as noted ~e, Strand C Is one of at least t~ active s=r~ds o[ ~camonga faul~ in t~s area. and i~ sl~p was dietrlb~cd across ~m one of these s~r~ds d~ing an ear~qhua~, the a~u~C oZ slip ~eeured on ~ one of =~ee e~ran~ (e, g., strand C) w~ld onl~ raced a ~nim~ the =oral slip that oc~rr~ durin~ ~he eart~a~e. ~us, the a~ve esti~tes of ~mnt-m~itu~ based on slip ~ erred C-only ~ be minimum. I do n~d ~o re-e~hasize, ho~r, t~= es=i~r~ng ~t-magni=~e ~rom slip ~as~ente in ~ ~l~eei~]~ic =ranch is i~recise solenee. alUhou~h it is co~lV uee~ h~ ~ earth~ake scientists. ~ ~ state ~ cu=renE opinio~ ~his way; Based ~ what I how o~ ~he ~camnga fault, I do not Chink nhat we can role out the ~saibili~y tM= ~he ~c~nga faul~ could p~ticipaEe in ~ earc~ake ~Ce22 of ~nt-m9n~=ud~ 7.0. Ho~r. i~ the ~ca~ga [ault ruptures ~ i~self in i=2 en~iret~, rather then t~et~r with the adjacent Sier=a ~dre ~aul=, then my ~2r estimate of ~he ~nt-~nit~de o~ a ~cawnga ~ault earth~ake is on ~he ~fder of appr~imatelF ~ ~. 0. The prelimin~ results o~ my 1996 t=ench research were p~l~shed as an ~strac~ in ~S (Proc~di~s of the 1996 ~rica~ ~ophTeioal Nation1 Meerlng} in ~ve~er of 1996. I ap~nd auupy o~ =he t~t of ~hac ~strac~ ~1~. ~idence for Pmb~le Mudera~e-Sized {~ 6.~-7.0) Paleoea~hquakes on ~ca~ga Fault, Northwestern ~s ~gelee Netro~liCan R~ion, Califomia One of ~he ~st pressin9 ~estions ~acing seismic hazard plan~ers in the ~tro~litan ~e ~geles ~ion ~ncerns the size end frc~encV of ea~h~akes along ~he Siena Madre-~ca~ga fault We~em, the ~0 no~-dippin9 reverse ~aul~ system resinsibis [o~ uplift o~ the S~ G~bricl Mo~aln2. ~ci~ically, does nhe s~e=em t~ically break all at o~ce, in ~ -7.5 (or lar~r) ~e~Ee? Or does it b~ak piecede1, in ~m =~ent, ~derare · arth~akes? ~e cuua~nga ~ault, which ~o~e the easte~st 20 ~ of che e~scem, ~11 ~rees~ on Day Can~ fan in ~cho ~ca~g8. whe~ It exhibiUs main active strands (strands B and C of Morton and Natti, 19e~), as well as a less well-expressed southern strand (EtiwaxMta Ave. scarp). A 3S m-lon~, 9 m-deep trench that we excavated across the prominent strand C scarp revealed two colluvial wedges along the main, 25-30eN-dipping ~ault Zone. Three small-displacement (50-90 cm) thrust ~aulte crop ou~ eouth o~ the main fault zone. Each of the two main colluvisl wedgee resulted £rom o~ thrust motion, placing an upper bound on =he maximum dieplacef~ent along the main st~eed C fault during the past 2ew earta~luakes. However, geometric relationships in the ~ouuger colluvial wedge require that it developed duzix~ a minimum o~ ~hree events. The most recent earthquake apparently caused ~80 cm of sllp on the rain ~ault zone. Abundant de=riVal charcoal collected from both ~edgea should pr~vlde good age control for these peleocerthquakes. S~rond C exhibits a dip-sl~p race of -2 .S to 5 ,~n/yr, based on the 2~4 kyr age o~ the hang~ug-wall sur£ace soil and -10 m el total d~p~elip on all strand C ~aults. This rate is considerably faster khan the -1 to 2 mm/yr · l~p rate we estimate ~or strand B on the basis of soil ages. scarp heights, add local ~aul~ dipe. Geo~echnical trenches exc~rvated b~y FR and GR in 1989 ~ndicate that the ~ost recent surface rupture on strand ~ caused -50 cm o~ ~lp These da~a do not preclude the occurrence of ver~ large earthquakes in which the cueamonga Zault might rupture together with adjacent ~aults g., Sierra Nadre, -qnn Jucinco. San Andtees). HoWever, ~hey do euggee~ that st least ~he past several earthquakes on the Cueamoeba ~ault have been only moderate to mdcrately large in size. I~ ~he 1-2 m average slip/event we measure is representative ot the entire rupture plane, ~h~n the past several event~ have probably bean in the .w -6.5-7.0 range, and nave likely involved rupture o~ ~he Cueamoncja ~ault, by Itself. James Dolan Assis~an~ Pro~essor Dept o~ Earth Sciences UnlversitV of 8outhem California ~os Angeles, CA , · 90089-0740 ., phone: 213-740-8~99 fax: 21]-740-8801 tatu Smart WASHINGTONt DC 20510 Oczol~ 25. ]O00 VIA FACSIMIL~ AND U.8. MAIL The Honorable Mar/Niohob $ecretr/ofResmarces Slim cfCafifonda Sacramento, Cldifomia 95814 Deer Selfmar/Nichols: We applaud Oo~/emer Dsvts' mcem puMee of leiisJazion '.aimed at ermutinlt ~O0d protection for Cnlit~ia's commMnBiek and yore effo~x in implementSriB those imponmqt Coal& In that ~ we write to stmz~AY eanom~e tint the Stain of Cldiromia agnm To serve as a |oe, el'~m, est'in eved~nt~-lhesfctY della atui flood plain Bernardiao Coumy, California, We havc received thousands of eignemms/rein sons$Rumls intem~ted Ins complete earcry may .at Deer Creek. A~ you my Inmw, t~e Govemor's Office of .Emcrp, e~ey Services and the. Sine SupeHmendem of hbltc lmmctiaa I'mve t'ud~d fundial of a leeat hlih t;cbeat:pmding thg complealon of ~ixad ~tmdasdan maps and rcgoluti~ ofthese safety inure. W; bc|i,w~ zbat Catifomia hUa impofiut ime~est in the outoonte of this numet, and v~ a~!ffeciated you~ offer to 8ec'mar/Wemphal lut Jur~ m play tm ac~vo role in resalvin$ the teohnica| quemions mm, ounding Deer Chink. For over a year, we have jointly teqmmed d~t xhc Army Coal~ of Engineers condu~1 a camplye study of thc c~paeily of Deer Crr, k. Unfonuamely. this has yv m occar. We further Imve requesu~l that fl~ Sccnury of Army havc this matw lrgiq~.ndently rcvicwed by the National Ac6demy of Scieacgs 0NTAS). The Begretlr/hes not done s~k Finally, the Federal Emergency Mim~ement Agency (FEMA) haa declined to review th~ Corps' ceni~eation of IM Debris Basin band upon an jutenid pelley of FEMA deterring to Coq~s madits. Flowfret, dm Co~s h-, indicated that it weald agrae to a NAS review of t~i- matter if a loced spoosor is found rot T~C projest. Ordinarily. we do not weiBh in on the technical merits era pafiieular dispute, and we do rtm do so here. However. our respective staffs have becn actively invo|v=d in this matter, and they have partlcipaied in ~evetal rnr. ctillgs Md {:oareteJIce eElIs in an effort to Sent by: LOEB & LOEB 213 689 3460; 11115/00 12:25PM;Je~9~ #86; Page 4/17 ' 1.0f27 11:5~5 2000 FROth TO: 1 -PAGe: 3 ¢~.T.P..'r.,z~l~ LL.a"~.R,'t I,i~,.,L~ P.a The Honorable Mary Nichols Q~tobcr 25, 2000 Pap. c Two, develop a faj~ rtmism for olzn dinlol~u~ between the Corps and ~c public. The Corps has twice I~trnJtted ahm m ~ oftSinai design dee basin. but onJy Brier the publi~ waa first fomed to ¢xp~td co~b resoutc-- on technical ~otaultems and l,,w~. By now. it is apparent to all pm'ti~8 conc~ thnl ~e~e are credible toch~gai issues surrounding the Dect and Day Cr.k Bssin~ fist mum be add~ssed. We would npl~"eeiat~ your L~istnn~ and ~n.d~nts c0ncaming tl~ . -Mereben of oUr ma~s ate nl~nin mee~ with S¢~-lary Weq~al's Ottobar 26, 2000, in Wa.shin~ton D.C, ~ w~ will advise you of d~ outstoo of treat mccdnS, In ~ ~ ~ ~n~ J~ H~ ~ in~o~ "' D' e Senator U~tod Sums Senato~ HDS CONSULTIN~,G I SURVEYORS November 14, 2000 Honorable Mayor Alexander and Council Members City of Rancho Cucamonga 10500 Civil Center Dr. Rancho Cucamonga, CA 91730 Response to Comments from CURE at Planning Commission Hearing (September 27, 2000) for Tract No. 14771 Dear Mayor and Council Members: MDS consulting, as the Engineer of Record for Tract No. 14771 since 1990, was requested by The Heights at Havenview Estates to comment on certain pages from pages 1 to 150 of the CURE documents submitted to your planning commission at it's meeting of September 27, 2000. Our following comments are referenced either to the title of the declaration or the CURE assigned page number for the September 27, 2000 submittal document. Declaration of Wolfgang Roth (September 15, 1998) Mr. Roth's 1998 declaration was based upon the conceptual alternate channel design presented to the City of Rancho Cucamonga as a design alternate to negate the need to obtain grading rights from the adjacent property owner to the north. Since 1998, detailed engineering drawings and structural calculations including seismic analysis have been prepared by the project proponent's consultants, and reviewed and approved by three permitting agencies, the City of Rancho Cucamonga (both City staff and the City's outside plan review consultant), the County of San Bernardino Department of Public Works, and the Army Carp of Engineers. The construction of the rectangular channel can be accomplished with normal construction techniques with no endangerment to the health and safety of the public. Pacles Number Page 040 - The comment is erroneous. This Peak Flow Analysis for the Deer Creek Dam discharge is not far the downstream channel , but only for the dam outlet overflow structure, which is designed to accommodated 15,000 CFS. Pages 042-044 - The hydraulic calculation for the channel reflect flow velocities in the 60° mid 70 feet per second. Our calculations verified the average flow velocity at our join with Deer Creek Channel at 68.5 feet per second. The effect of this velocity on the channel was properly mitigated by increasing the Stanley C. Morse Gary W. Dokich J.Ro "Skip" Schultz 17320 Redhill Avenue VOICE: 949-251-8821 Suile 350 FAX: 949-251-0516 Irvine, CA 92614 EMAIL: rndsirvine@mdsconsulting.net MDS CON~ULTIN~; Page 045 - Page 046- Page 072 - Page 073 - Page 074 - thickness of the concrete in the channel invert by three inches whenever the flow velocity exceeds fifty feet per second. The City's brief submitted to the iudge is correct. The channel to which the City's brief refers to is described in the preceding sentence i.e., the outlet/overflow spillway channel on the crest and downstream face of the debris dam. This channel is designed to accommodate the Probable Maximum Flood Peak Discharge (page II1-1, feature design Memorandum No. 6) of 15,000 CFS. The downstream rectangular channel is not mentioned at this point in the City's brief but is designed for the Standard Project Flood. (Page II1-1, feature design Memorandum No. 6). Both the debris basin and the rectangular channel are discussed related to design flows on pages I1-1 and 11-2 of the same design memorandum. The Standard Project Flood and the Probable Maximum Flood are defined on page 111-2 of the design memorandum. To quote "The magnitude of the standard project flood is larqer (emphasis added) than all previously recorded and estimated floods." There is no comment on this unsigned letter. The area mentioned in the letter is miles south of the proiect and would have no effect on the project whatsoever. The purpose of this calculation was to determine the rate of flow for stormwater that entered the drain tower and outlets both to the debris dam spillway and to the bypass pipe. When the shunt gate to the bypass pipe is open the controlling hydraulic feature is the inlet of the 36 inch pipe that connects the outlet tower to the junction structure. The junction structure outlets in a normal position to the spillway or in an abnormal situation to both the spillway and through a 48 inch pipe to the spreading grounds. These calculations were prepared, not to present a lower flow volume, but to reflect the correct flows based upon the as-built outlet structures hydraulic capacities. The shunt gate is always in a shut position, however, so the calculations were not used in historic practical applications. There is no comment on this partial letter hence no response is offered. This nomograph is taken from the preliminary hydrology memorandums and would have been subject to revision as the construction plans are developed. The preliminary nomograph reflected a hydraulic regime based upon a closed conduit system that incorporated a 48" outlet pipe from the drain tower to the dam spillway, with no shunt drain to the spreading grounds. This hydraulic regime was controlled by the water elevation being detained by the dam as reflected in the nomograph. The gate in the homograph is not the same gate used to control the shunt outlet in the as- built outlet system; i.e., there is no gate to control the outlet of the debris basin to the spillway, it flows freely. In analyzing the debris basin drain MDS outlet system, the flow amount leaving the debris basin was controlled by the 36 inch pipe that exits the tower, not the 48 inch pipe that was the subject of the nomograph. Pages075-076- As commented on previously above (pages 072-074), the nomograph for the 48 inch pipe was based on a preliminary design and would need updating to reflect the hydraulic characteristics of the as-built facility. The 120 CFS figure is accurate; the 430 CFS is totally erroneous as the nomograph is for a different outlet system. Pages085- We cannot find any Corps reference that says that the basin fails in about a 3" in 3 hours (we assume this means 3" of rainfall in 3 hours). This is a gross misstatement. The design storm for debris prediction is the 3 hour rainfall in inches, as this storm generates the most debris. It is grossly erroneous to extrapolate a 24 hour rainfall event in a linear manner to determine debris production. Pages 086 to 098 - Mr. Goodridge states his opinion, as a former climotologist for lhe State of California very eloquently, but it is only his opinion. The Corps of Engineers and all of the local Southern California Flood Control Agencies have interpreted and published their hydrologic data based on what they consider to be the most accurate and applicable data to be used reliably in predicting storm flows. This hydrologic data has been confirmed in the high quality of local flood control projects in Southern California. Pages 99-121 - Mr. Goodridge's paper is interesting but is his opinion, one that needs validation by other experts. We will be available to address any questions or concerns at your council meeting of Novera- ber 15, 2000. SCM:sn cc: Mr. Brad Buller, City Planner Mr. Tom Grahn, Project Planner Mr. Joe O'Neil, City Engineer Ms. Deborah Adams, City Clerk Council Members ~o No. 20596 m Exp. 9-,30-01 \\SERVEP,3~APPS\419\O0\COR\wfrl.doc . COCHRAN DEAN DUNN-RANKIN SANDRA A. GALLE WILLIAM E. HALLE ANDREW K. HARTZELL HUGI~ HEWITT JOHN D. HUDSON HEWITT & McGUIRE~ LLP ATFORNEYS AT LAW 19900 MAcARTHI~R BOULEVARD, SUITE 1050 IRVINE, CALIFORNIA 92612 (949) 798-0500 · (949) 798-0511 (FAX) EMAIL: counsel~ewittmcguire.com MARK R. MCGUIRE DENNIS D. O~NEIL JAY F, PALCHIKOFF PAUL A. ROWE WILLIAM L. TWOMEY JOHN p. YEAOER November 10, 2000 The Honorable William Alexander Mayor, City of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91729 The Heights at Haven View Estates, LLC - CURE Appeal of Planning Commission Decision of September 27, 2000 Concerning Modification to Development Review 98-13 Dear Mr. Mayor and Members of the City Council: This firm represents The Heights at Haven View Estates, LLC and Lauren Development, Inc. (collectively, "The Heights"). Earlier this year, The Heights submitted a request for a minor revision to its previously approved grading plan and northern drainage channel ("Drainage Channel") design. That request was made to address the possibility that a modified drainage channel design might be utilized for this development along the northern boundary of the project site, Tract 14771. The Heights requested the right to utilize either the current approved Drainage Channel design or the modified design associated with this modification request. After careful review by City staff, the City Planner approved The Heights' request in August, which decision was appealed by CURE. The City Planning Commission denied the appeal on September 27, 2000, and CURE appealed the Planning Commission's decision to the City Council on October 9, 2000 claiming -- without providing further explanation, analysis or reasoning -- that the August approval violated CEQA and the City's Hillside Development Ordinance. In connection with the City Planner' s review of The Heights' request, we submitted a package of materials to the City on August 21, 2000. That package is enclosed as Volume I. We ask that you carefully review our letter of August 21, 2000 and its attachments. We submitted this package to the City in August because we anticipated that a small group of neighboring residents would lodge objections to this modified channel design in a not-so-covert attempt to stop the inclusion of 40 other families into their residential neighborhood. 11-07-00 3045-00001 S:\161\CORR\00110010.1tr.wpd The Honorable William Alexander November 10, 2000 Page 2 Ironically, it is precisely because these same project opponents specifically demanded that the channel design involve no off-site grading that The Heights is requesting the option to proceed with this modified Drainage Channel design, which would avoid such minor offsite grading. As I am sure you are aware, a small group of project opponems has pursued a repeated pattern of filing meritless litigation against the City and this project. A consistent tactic employed by the opponents is to attempt to rig the administrative record for purposes of aiding their subsequent meritless litigation against the City and the project. Typically, they attempt this on the night of the City Council hearing. Thus, in order to ensure a more balanced record, and to ensure that the City Council is well aware of the true state of facts concerning this project and the claims which might be raised -- some, if not all, probably for the first time on the night of the hearing -- we are providing you with additional information concerning such potential claims. Please bear in mind that most, if not all, of the claims and information likely to be presented by project opponents are unlikely to have any true legal relevance to the approval by the City Planner of this minor modification being challenged. However, opponents have consistently tried to confuse the public and the Council. Thus, we feel compelled to ensure that even these red-herring claims are viewed in morn accurate perspective. We have attempted to minimize the material submitted to you in this three volume package. The City's administrative files on this matter are extensive, and include all the material that we have submitted in the past in connection with Design Review 97-11 and Design Review 98-13, among others. We hereby incorporate our previous submissions to the City on these matters by reference. As explained above, Volume I of this submission comains materials we provided to the City in connection with the City Planner's August 25, 2000 hearing. Many of these documems evidence that the U.S. Army Corps of Engineers CACOE') has extensively examined a host of claims made by the project opponents regarding the remaining portions of the abandoned levee to be removed by the project (herein, "Lauren Levee") or the proper functioning of the Deer Creek Debris Basin and Channel (herein, "Deer Creek Facility"), which is a flood control facility that is not part of the project or project site. In sum, the ACOE has consistemly found that the abandoned levee on Tract 14771 (i.e., the Lauren Levee) is not part of the Deer Creek flood control system and that the Deer Creek Facility provides protection in excess of the standard for adequate flood protection, namely that it provides protection in excess of the 100-year flood event. The Federal Emergency Management Agency CFEMA") has also examined the ACOE's studies of this issue and has found the ACOE's conclusions reliable. The ACOE has gone on the record before the CiW, San Bernardino Count,/and FEMA that the Deer Creek Facility continues to provide protection from the 100-year flood and that the abandoned Lauren Levee is not a part of the Deer Creek Facility. 11-07-00 3045-00001 S:\I61\CORR\00110010.1tr.wpd The Honorable William Alexander November 10, 2000 Page 3 Set forth below is a brief discussion of several issues which project opponents may seek to raise during the Council hearing of their appeal. Although the majority of the issues likely to be raised by project opponents are unlikely to be legally relevant to the Council' s consideration of the matter before it, we believe that it will be useful for the Council to have a better factual understanding of matters relating to the opponents' claims. The Modifications to the Drainage Channel Have Been Carefully Examined under CEOA and from an En~ineerin~ Perspective City staff has carefully reviewed the minor physical modifications being proposed by The Heights and has analyzed whether such modifications result in any new or increased adverse environmental impacts compared with the existing channel design. City staff has correctly concluded that the proposed charmel and grading modifications do not result in any such new or increased impact. Similarly, MDS Consulting has performed an extensive Sediment Transport and Deposition Study of the modified Drainage Channel design. Its conclusions support City staff's findings regarding the absence of any new or increased impacts. A copy of the report sumxnary is attached at Exhibit A (Vol. II) hereto, and the complete voluminous study and supporting documentation is on file with the City. Staff has confirmed the validity of MDS's analysis and findings. The City also engaged an independent third-party engineer's review of MDS's analysis and conclusions, and this independent engineering review has confirmed that the analysis and conclusions are valid. II. Status of San Bernardino CounW Flood Control Connection Permit for Drainage Channel Connection to Deer Creek Charmel The Heights anticipates that San Bernardino County Flood Control will shortly issue the connection permit to Deer Creek Channel. The ACOE has reviewed the connection permit package and has no objections to the County issuing the permit. The ACOE confirmed its position to the County on September 27, 2000. Exhibit B (Vol. II). III. Since the City Planner' s Hearing in August 2000, the ACOE has Further Verified the Adequacy of the Deer Creek Facility and Confirmed the Irrelevancv of the Abandoned Levee on Tract 14771 As you may recall, the project opponents hired Exponent Failure Analysis ("Exponent") to find fault with the Deer Creek Facility and with the modified Drainage Channel on Tract 14771. Exponent wrote a report/critique which the ACOE then extensively reviewed. The ACOE also arranged for an independent third-party review of its engineering analysis and 11-07-00 3045-00001 S:\161\CORR\00110010.1tr.wpd The Honorable William Alexander November 10, 2000 Page 4 conclusions. That independent engineering firm concurred with the ACOE's analysis and conclusions. The more recent ACOE documentation is contained at Exhibits C-J (Vol. II). The ACOE has by now extensively investigated the many claims made by project opponents, and the ACOE's studies and public record statements have continued to demonstrate that: 1. The Deer Creek Facility provides more than 100-year flood protection to properties below the Facility; 2. The abandoned Lauren Levee was never specifically rated by FEMA in 1984 to protect against the 100-year flood; protection; The Lauren Levee cannot be rated by FEMA as providing 100-year flood 4. The Lauren Levee is not (and never was) a functioning part of the Deer Creek Facility; and 5. Project opponents consistently ignore the existence and value of deflector levees below Deer Creek Basin and north of Tract 14771, which provide secondary protection to areas below the Deer Creek Facility. See Exhibits C~G (Vol. II). Moreover, the ACOE has spent roughly $100,000 or more studying the many claims raised by the project opponents. Exhibit P (Vol. II). The project opponents certainly got the "safety" study which they so adamantly requested in 1997 and 1998. The only problem for the project opponents is that the flood control studies convincingly refute the project opponents' claims. IV. A November 1, 2000 Letter from Dr. Westphal to the Opponents' Attorney Does Not Trigger a Need for Additional Environmental Documentation Under CEOA Project opponents have been attempting to pressure the ACOE to conduct morn and more studies of the Deer Creek Facility. They have extensively lobbied Dr. Westphal of the Army' s Civil Works Division to conduct further studies of their claims, and this has produced a letter response from Dr. Westphal. Exhibits (Vol. II). Dr. Westphal indicates that the ACOE continues to confirm that the Deer Creek Facility provides greater than a 100-year level of flood protection. He does not say that further studies are needed to confirm that 100-year flood 11-07-00 3045-00001 S:\I61\CORR\00110010.1tr.wpd The Honorable William Alexander November 10, 2000 Page 5 protection is provided. This issue certainly does not require a supplemental or subsequent EIR for The Heights' project. Any assertions by project opponents that recent recalculations show that this oversized facility is less oversized than previously thought will likely ignore the fact that the facility still provides greater than a 100-year flood level of protection. Information showing that an oversized facility is less oversized than originally thought but still oversized does not trigger a need for further review under CEQA. The abandoned portions of the Lauren Levee are not, in any way, a part of the Deer Creek Facility flood protection system designed for this region. The Lauren Levee cannot be certified to provide standard flood protection. Not only is it abandoned and un-maintained, it has a 200-foot wide hole in it. The purpose of the Drainage Channel is for local runoff, not regional flood protection. As the ACOE has already noted, if local residents desire to increase the capacity of the flood control system in the area, the solution would be to increase the volume of the Deer Creek Basin. The purported need to retain the Lauren Levee is a red-herring claim, nothing more. Dr. Westphal has emphasized that public safety is his first concern. Neither Dr. Westphal nor FEMA have asserted that the remaining portions of the Lauren Levee must remain to provide for, or maintain, that public safety. Statements and Views by Project Opnonents' Self-Styled "Experts" Have Been Found By Others to Lack Merit Project opponents have from time to time trotted out variously-styled so-called "expert" "declarations," statements and the like to allegedly support their claims. These statements have, however, been found by others to be significantly flawed in a variety of respects. For example, some of these statements or "declarations" were unsigned or signed by individuals other than the "declarant." Some of the submitted "declarations" are clearly a combination of two different drafts, and thus it is not clear what statements the "declarant" was actually willing to stand behind. Many "declarations" assumed as "fact" the unsupported speculation of others or relied upon demonstrably incorrect information. Thus, for example, it is not surprising that the ACOE has considered and rejected the positions taken by James Goodridge, Art Brunington, Robert Kirby and the like. See, e.g., Exhibit C (Vol. I) and Exhibit E (Vol. II). 11-07-00 3045-00001 S:\161\CORR\00110010.1tr.wpd The Honorable William Alexander November 10, 2000 Page 6 VI. The Relevant Flood Protection Standard for the Area has Been, and Continues to Be, Whether Homes are Protected Against the 100-Year Flood In addressing other agencies, project opponents have from time-to-time claimed or implied that in 1990 the City ofRancho Cucamonga required that flood protection infrastructure protect future homes on Tract 14771 to a greater level than the 100-year flood protection standard. However, opponents have never been able to substantiate their unfounded claims. In fact, since at least 1990, the relevant level of flood protection required by the City has been the 100-year flood level. This is also the standard used by other cities near Rancho Cucamonga. Exhibit T (Vol II). VII. All of the Numerous Lawsuits Filed Against the Project by Opponents Have Been Unsuccessful The project opponents have amassed a pile of unsuccessful lawsuits since 1997 in their efforts to stop this project at seemingly any cost. Opponents have been unsuccessful before the U.S. Supreme Court, the California Supreme Court and every appellate and trial court that has heard their claims. Exhibits R- T of Volume I and Exhibits A-C of Volume III submitted herewith contain copies of several briefs and other filings before these courts which will provide the City Council with a flavor of the past litigation. The history, pattern and substance of the litigation filed by project opponents completely undermines their credibility. The litigation also amply demonstrates the extreme lengths to which project opponents are willing to go to keep any legal claim alive in the courts. The project opponents' failed strategy of filing lawsuits against the City and the project at seemingly every opportunity in order to prevent the addition of these homes to this residential neighborhood has led to uproar, infighting and even litigation among residents within Haven View Estates and the Haven View homeowners associations. Exhibits D-I of Volume III help to illustrate the underlying dynamics associated with the project opponents and highlight the disparity between the claims being made to public officials, agencies and local governments by project opponents and the actual underlying actions, strategies and objectives of the opponents. For example, efforts are being made by some to decertify the Deer Creek Facility as a ploy to try to prevent City staff approval of modifications to the Drainage Channel. Exhibits E and F (Vol. III). Public relations firms are being hired to create the appearance of substance to opponents' meritless claims. Exhibit G (Vol. III). And lawsuits among homeowners and the HOA directors and boards have been filed objecting to, among other things, the litigation strategy being pursued by the homeowner' s associations to stop The Height' s project. 11-07-00 3045-00001 S:\161\CORR\00110010.1tr.wpd The Honorable William Alexander November 10, 2000 Page 7 VIII. Conclusion In November 1997, exactly three years ago, Ms. McKeith stood before the City Council and, on behalf of the project opponents, threatened to tum the CEQA process into a never-ending "game" designed to prevent The Heights' project from ever being built. She threatened to relentlessly lobby the ACOE to do one study after another regarding flood control issues and to hire so-called "experts" after '~experts" to assert her views. Opponents have certainly followed the strategy they road-mapped three years ago. The CEQA game-playing, however, has been a complete failure before the courts, and rightfully so. Similarly, despite their incessant badgering of the ACOE, the ACOE continues to confirm that the Deer Creek Facility provides greater than 100-year flood protection and that the Lauren Levee is not germane to that flood control facility. More importantly, City staff has carefully and painstakingly reviewed the requested minor modifications to the Drainage Channel design. The staff has fully complied with CEQA in its review, and the modified design complies with the Hillside Development Ordinance, as staff has found. We respectfully request that the City Council deny CURE's appeal. Sincerely, Andrew K. Hartzell AKH/lcc cc: Mayor Pro Tern Williams Councilman Biane Councilman Curatalo Councilman Dutton Jack Lamm, City Manager Brad Buller, Planning Director Tom Grahn, Planning Department Jon D. MikeIs Debra Adams, City Clerk James Markman, Esq. Bill Ford Robert Cristiano 11-07-00 3045-00001 S:\I61\CORR\00110010.1tr.wpd Submission to City Council in Connection with Appeal of Modification to Development Review 98-13 VOLUME I The Heights at Haven View Estates, LLP Submission to City Council in Connection with Appeal of Modification to Development Review 98-13 VOLUME I November 2000 Hewitt & McGuire, LLP 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 (949) 798:0500 -HEWITT & McGUIRE, LLP ATTORNEYS AT LA%V 19900 M~.cARTItUR BOULEVARD. SUITE 1050 IRVINE, CALIFORNIA 92612 (949) 798-0500 · (949) 798-051 I (FAX) August 21, 2000 VIA MESSENGER Planning Divi.sion City of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91730 Attention: Mr. Brad Bullet Modification to Development Review 98-13 for Final Tract 14771 -The Hei.,hts at Haven View Estates Dear Mr. Bullet: This firn~ represents Lauren Development, Inc. and The Heights at Haven View Estates, LLC (collectively herein, "Lauren"). Lauren has submitted a request for a minor revision to its previously approved grading plan and northern channel design. This request is being made to reflect the possibility that a modified drainage channel design may be utilized for this development along the northern boundary of the project site. Lauren is requesting the right to utilize either the current approved northern channel design or the alternative design associated with this modification request. Given the history of this project since 1997, we expect that a small group of neighboring residents will lodge objections to Lauren proceeding with a modified grading plan and channel design. Ironically, it is because these same project opponents specifically demanded that the channel design involve no off-site grading that Lauren is requesting this option to proceed with this modified design, which would avoid such off-site grading. Because we expect that this small opposition group will attack any decision by the City to approve plans for any modified grading or channel -- despite their (disingenuousT) earlier demands for such a modification -- we felt it important to correct a number of misrepresentations being made by the opposition and to clari~' the true state of facts pertaining to issues recently raised by the project opponents ifi their efforts to stop the inclusion of 40 other families into their residential community. 08-20-00 3015-01 S:\16l\CORR\000g0012.1tr.t~pd Mr. Brad Buller August 21, 2000 Page 2 Project Opponents Will Never Cease Raising New Claims Alleging that Some Aspect of the Deer Creek Debris Basin and Channel Flood Control System is Unsafe or that There is Some Problem ~vith Lauren's Northern Storm Channel Design. At the outset, it is useful to realize that the project opponents have already made a variety of unfounded claims alleging deficiencies either in the Deer Creek Debris Basin and Channel Flood Control Structure (herein "Deer Creek Facility") or Lauren's Northern Drainage Channel, or both. Thus, any claims by project opponents that the City should suspend some aspect of review or processing associated with the Lauren project while opponents are merely raisin~ safety (or similar) allegations or while some agency is merely reviewin~ or studying' those claims should be viewed with extreme skepticism. The project opponents intend to continue to launch claim after claim until all of the Lauren homes are built. They will do this in order to create an atmosphere in which they can claim that there is at least the possibility of some sort of deficiency with these facilities, and that therefore further study and review of their claims is warranted before the City undertakes any further action respecting the Lauren project. How do we know this to be the case? The record of the opponents' attacks provides incontrovertible proof. Although opponents have claimed deficiencies with the Deer Creek Facility and with the Lauren drainage channel since 1997, the claims raised now are not the claims that were raised then. In fact, the consistent pattern has been that: (1) the opponents allege a set of claims regarding deficiencies, (2) the claims are investigated by competent individuals, professionals and agencies and found to be without merit, and (3) the opponents then allege a new set of deficiencies. For example, in 1997, project opponents raised safety concerns because of alleged "new" landslide information (which information was later shown to be either not new or simply incorrect), "new" earthquake information (which information was shown to be incorrect), and "new" methodologies for determining appropriate debris basin sizing (which methodologies were subsequently applied to the basin and which demonstrated that the basin still was adequately sized). Although the current allegations concerning the Deer Creek Facility could have been raised by project opponents during their attacks of 1997, 1998 or 1999, they were not. The pattern of the opponents' conduct is unmistakable; they will never stop raising some sort of allegations on these topics until the Lauren homes are built. In fact, Ms. Malissa McKeith said as much to the City Council in 1997.~ i "If you do not close the record, we will be out them tomorrow and the next day and the next day and the next day hiring new experts, getting the Army Corps of Engineers to do this, that, and the other thing." Statement of Malissa McKeith to Rancho Cucamonga City Council, August 20, 1997. 08-20-00 3045-01 S:\161\CORR\000g0012.1tr.wpd Mr. Brad Buller August 21, 2000 - Page 3 Accordingly, the City must accept the fact that it always will be undertaking processing of the development against a backdrop of safety allegations being made by project opponents. II. The Allegations Regarding the Capacities of the Deer Creek Facility are Not Relevant to the Allegations Made Regarding the Abandoned Levee on the Lauren Property or Lauren's Northern Drainage Channel. It also is important to understand that opponents of the Lauren project consistently err in trying to establish a direct and meaningful relationship between their allegations of inadequacies with the Deer Creek Debris Basin and Channel and their complaints regarding Lauren's northern drainage channel. The two structures and issues are very separate, and issues associated ~vith the Deer Creek Facility do not, and should not, affect review and processing associated with Lauren's drainage channel. The Deer Creek Facility is designed to capture debris and detain and/or direct stormwater from a several thousand acre watershed in order to provide 100-year flood protection to a large area including the Cities of Ontario, Rancho Cucamonga and beyond. According to consultants hired by Lauren's opponents, any actual deficiencies in the Deer Creek Facility potentially affect lands at least as far west as the Ontario International Airport, lands east of Lauren's project and lands as far south as the Prado Dam. See Exponent April 27, 2000 report, pages 1-2. In short, the Deer Creek Facility provides protection for an area of many square miles. In stark contrast, Lauren's northern drainage channel is intended to collect and channel water runoff from a small 125-acre area north of the Lauren project site and convey this water easterly to the Deer Creek Channel. The purpose and intended function of this northern channel has always been the same. This channel essentially is intended to convey local runoffa~vay from Lauren's 40 homes. As is well-known, Lauren's project will also remove the remaining sections o fan abandoned, breeched 1930's earthen levee on its property. Project opponents have been engaged in a never- ending but fruitless quest to create the fiction that this obsolete abandoned levee (the "Lauren Levee") is part of the Deer Creek Facility and the fiction that FEMA currently rates this abandoned, fatally-compromised levee with providing 100-year flood protection. Both claims are false. The U.S. Army Corps of Engineers CACOE") has recently reaffirmed that the Lauren Levee is not a part of the Deer Creek Flood Control Facility. See Exhibits A, B and C. The Federal Emergency Management Agency CFEMA") has regulations which clearly prohibit it from crediting a levee as providing 100-year flood protection if such levee is abandoned (i.e., is not actively maintained). See 44 C.F.R. § 65.10 and 6513 (Exhibits D and E). The County of San Beruardino abandoned the Lauren Levee in the mid-1980's, and since then any maintenance activities have forever come to an end. End of story. Moreover, it is simply preposterous for project opponents such as CURE and Ms. McKeith to claim that FEMA could currently be claiming that a levee with 08-20-00 3045-01 S :\ 161 \CORR\00080012.Itr.wpd Mr. Brad Buller August 21, 2000 Page 4 a large 200 foot gap in it - such as is the case with the Lauren Levee - would protect individuals downslope against a 100-year flood. Also glaringly absent from the opponents' "The Sky Is Falling" outcry is any discussion of the fact that three intact and currently maintained interceptor levees exist below the Deer Creek Debris Basin and above the Lauren project. See Exhibits C and F. Curiously, the opposition's co- called experts also consistently ignore, or fail to realize, the existence of these other levees? These three upslope levees, and the secondary protection they afford, simply further belie the scaremongering regarding the removal of what is left of the abandoned Lauren Levee. Laureo's drainage channel needs to be evaluated in light of its intended functions; the adequate channeling of water runoff from the 125-acre area north'of the project site. Lauren's charmel has never been intended to replace the Deer Creek Facility. If project opponents such as CURE and Ms. McKeith truly believe that the Deer Creek Facility has some sort of defect, they should direct their energies to correcting this defect with the Facility itself.2 However, their issues with the Deer Creek Facility should not cause the City to delay work associated ~vith the Lauren project. As the ACOE has clearly stated, the Lauren project has no relation to the Deer Creek Facility. Ill. Even if Allegations Against the Deer Creek Facility Had Any Relevance to Lauren's Northern Channel or Abandoned Levee, the Opponents' Claims Regarding the Deer Creek Facility are Highly Flawed, and in Most Cases Simply Incorrect. The ACOE Has Conducted Numerous Recent Reviews of the Adequacy of the Deer Creek Facility and Has Consistently Found that the Facility Continues to Provide Adequate Flood Control Protection and that Claims Made by Project Opponents are Seriously Flawed. Exhibits A-C, F, and H-L hereto contain a series of letters, studies, reports and memos from the ACOE from July 13, 1999 to present, responding to countless allegations by the few project opponents of deficiencies with the Deer Creek Facilit's'. The numerous studies and evaluations by the ACOE have consistently found the Facility to be adequate and have determined the opponent's claims from 1997 onward to be highly flawed. I This analytical failure, by itself, calls into question many of the conclusions of the so- called experts. 2 Tellingly, the project opponents -- rather than concern themselves with fixing any problems they see with the Deer Creek Facilities -- simply wish to use their allegations as an instrument to stop the unrelated Lauren project. See Exhibit G. 08-20-00 3045-01 S:\161\CORR\00080012.1tr.wpd Mr. Brad Buller August 21,2000 Page 5 Predictably, these findings have been decried by the Lauren project opponents. In response, the ACOE has gone so far as to conduct multiple additional reviews at the regional and national levels - all affirming the adequacy of the Deer Creek Facility. In fact, the ACOE has informed us that the nation's top hydrologist has looked at a number of the opponents' claims and found them to be incorrect. The ACOE has found that the Deer Creek Basin continues to provide a level of protection exceeding the 100-year flood standard - even when applying the requested methodology of the "1992 Method" -- and that the Deer Creek Channel provides capacity for up to a 500-year flood, even when applying the 1992 Method requested by Lauren's opponents. FEMA has also looked at the issue o fthe adequacy of the Deer Creek Basin. Exhibits M and N cont.ain a letter and study issued by FENIA which support and confirm the fundamental conclusions of the ACOE. The ACOE built the Deer Creek Facility in the 1980's to a level which protects the surrounding area against the standard flood protection criterion -- the 100-year flood. It continues to provide a level of protection exceeding that standard today. When the facility was originally constructed, a certain set of mathematical calculations were used to evaluate flood protection capacity. These calculations were 'known as the Tatum Method, and were used as the standard evaluator by the ACOE ,?,'hen the facility was built. In 1992, the ACOE began using a different set of mathematical calculations to evaluate basin sizing. This newer mathematical methodology is sometimes referred to as the "1992 Method." At the request of project opponents, the ACOE recently applied the 1992 Method to the Facility and found that even using this alternative series of evaluations, the Facility still provides protection against the 100-year flood. As all of these calculations (both within the Tatum Method and the 1992 Method) involve probabilities and assumptions, it is important to realize that one can always criticize any flood control evaluation by claiming that different probabilities, different assumptions and different input factors should be used in the calculations. This basic fact about probabilistic evaluations is being abused by project opponents who view this aspect of flood control evaluations as providing them with endless opportunities to allege that different assumptions, probabilities and input factors should be used by the ACOE in the evaluation of the Deer Creek Facility.3 By doing so, opponents attempt to create the illusion that there is some sort of meaningful problem with the Deer Creek Facility. Intense political pressure has been brought to bear against both ACOE and FEMA by the Lauren opponents in an effort to at least create an illusion that there may be some fatal defect with the Deer Creek Facility. This pressure has produced letters from Congressional representatives 3 For example, CURE has submitted a so-called declaration from James Goodridge (dated November 1999) which takes issue with certain input data values used by the ACOE in evaluating the capacity of the Facility. The ACOE reviewed Mr. Goodridge's statements, but concluded that the ACOE used better, more reliable and more relevant data than that suggested by Mr. Goodridge. 08-20-00 3045-01 S:'~161\CORR\00080012.1tr.wpd Mr. Brad Bullet August 21,2000 Page 6 and a few others requesting analytical reviews of the Facility. However, the mere fact that reviews are being requested when political constituents claim that their lives are in danger - or even that reviews are being conducted - is a far cry from demonstrating that there actually is a relevant problem with the Deer Creek Facility. See, e.g., Exhibit O. B. Project Opponents Have Destroyed Their Credibility By Launching Wave After Wave of False Claims Concerning Both the U~elated Deer Creek Facility and the Lauren Project. It would be pointless to attempt to respond to the now countless false claims made by the opponents of the Lauren project. We have demonstrated the opposition's lack of credibility to the City on numerous instances in the past. See, e.g., Hewitt & McGuire letter to City dated September 3, 1998. Others have noted this credibility gap as well. See, e.g., Exhibits P and Q (noting that Ms. McKeith has made false claims conceming San Bemardino County Flood Control District personnel). In fact the California Appellate Court was recently able to document that CURE and its attorney had made inaccurate statements to the City of Rancho Cucamonga concerning this project. See Exhibit R, footnote No. 7.4 Similarly, the California Superior Court recently reviewed a number of safety claims raised by the project opponents and found that the City had substantial evidence before it to conclude both that the project opponents had not substantiated their claims and that there would be no detriment to public health, safety or welfare. Exhibit T. Ms. Marylinda McKeith's June 20, 2000 Letter to the Rancho Cucamonga Grading Committee is Riddied With Errors and False Assertions. We have reviewed Ms. McKeith's June 20, 2000 letter to the City Grading Committee, and its 150 pages of attachments. It is saturated with misstatements and false allegations. We will briefly address some of the most outrageous claims. Ms. McKeith mischaracterizes the intended function of Lauren's northern drainage channel. The northern channel is not trying to protect against a 100-year flood. Ms. McKeith is likewise incorrect to spin an illusion that the remaining portions of the obsolete, abandoned and breeched levee currently provide such protection. Ms. McKeith likewise quite improperly seeks to create the illusion that Lauren has been submitting false data regarding its northern channel to the Flood Control District. The facts are simply otherwise. A brief review of the District's May 19, 2000 letter to Ms. Malissa McKeith (Exhibit P) shatters the McKeith illusion. Her similar assertion regarding FEMA likewise is devoid of foundation. 4 CURE's willingness to severely mislead the United States Supreme Court further demonstrates its total lack of credibility. See Exhibit S. 08-20-00 3045-01 S:~I61\CORR\00080012.1tt-wpd Mr. Brad Buller August 2 I, 2000 Page 7 McKeith also frequently confuses the Lauren levee with other levees in the general area, including the Day Creek interceptor levee. The ACOE has noted Ms. McKeith's confusion on a e3 .s this matter in the past. See Exhibits A and F (p g ) Ms. Marylinda McKeith and Ms. Malissa McKeith are very fond of putting words in other people's mouths. Please be advised that Lauren will not be drawn into playing a child's game of specifically refuting each of the many instances in which the McKeiths - or the other project opponents for that matter - misrepresent a statement allegedly made by anyone associated with Lauren or any other agency or jurisdiction in connection with this matter. If the City wishes to understand the position of any person with respect to the Lauren project or the Deer Creek Facility, the City shoul~t not rely on "hearsay" statements made by the opponents, but should talk with such persons directly or review their xwitten statements. Ms. Malissa McKeith's June 17, 2000 Letter to the City Council Contains Substantial Errors. Ms. McKeith's June 17, 2000 letter is riddled with misstatements and mischaracterizations. The true facts speak for themselves, and they are certainly not as Ms. McKeith would like to paint them. We would note that each of the first six paragraphs of her nine paragraph letter contain mischaracterizations, misstatements, or the like. At this time we would simply note that the County Flood Control has not stated that it will suspend the processing of Lauren's County channel connection application. In fact, the County continues to process this application. Issued Raised by Exponent Regarding Lauren's Drainage Channel Have Been Analyzed and Fully Addressed. Exponent Failure Analysis Associates' April 12, 2000 letter to San Bernardino County Flood Control raised several questions regarding Lauren's modified northern drainage channel. Issues raised by Exponent have been thoroughly reviewed and addressed by MDS Consulting, which submitted a detailed report on these issues to the City on June 19, 2000. The results of the MDS analysis show that the issues of concem to Exponent are adequately addressed by the channel design. s Ironically, although McKeith and other project opponents consistently claim that the ACOE has made numerous mistakes regarding their calculations, design and construction of the Deer Creek Facility, they refuse to believe that the ACOE could have made a typographic error in a document prepared some years ago. 08-20-00 3045-01 S:\161\CORR\00080012.1tr.~*pd Mr. Brad Buller August 21, 2000 Page 8 The May 1,2000 Letter from the County of Los Angeles Public Works Department has Been Retracted. Ms. McKeith has provided the City with a May 1, 2000 letter from Mr. Michael Bohlander, allegedly on behalf of the County of Los Angeles. The County of Los Angeles has retracted that letter. See Exhibit U. Interestingly, Mr. Bohlander believed that his question regarding the proper capacity of the Deer Creek Basin was best addressed by simply enlarging the size of the basin -- not by interfering with the Lauren project. IV. The ACOE Has Noted That Even if There Were Corrections to be Made Regarding the Deer Creek Facility, Such Corrections Should Be Made to the Facility Itself, Not the Lauren Project. The project opponents have launched numerous allegations that a report which they commissioned Exponent to prepare (dated April 27, 2000) regarding the Deer Creek Facility should somehow result in a delay of City processing with respect to Lauren's project. Even the ACOE has noted that even if allegations made by Exponent were true, the proper response would be to enlarge the basin itself, not somehow interfere with or stop the Lauren project. Exhibit V. We appreciate your careful consideration of the above. Sincerely, Andrew K. Hartzell AKH/Icc Encls. (Exhibits A-W) cc: Joe O'Neil 08-20-00 3045-01 S :\ 161 \CORR\00080012.1tr. %~pd Mr. Brad Buller August 21,2000 - Page 9 bcc: Bill Ford Robert Cristiano James Markman (via messenger) 08-20-00 30~5-01 S:\161\CORR\00080012.1tr.wpd DEPARTMENT OF THE ARMY November 2, 1999 Office of the Chief Hydrology and Hydraulics Branch Mr. Dean G. Dunlavey LATHAM & WATKINS Attorneys at Law 650 Town Center Drive, Suite 2000 Costa Mesa, California 92626-1925 Dear Mr. Dunlavey: I am writing in response to your letter of October 22, 1999, regarding the Deer Creek Retention Levee - San Bernardino County, California. As requested in your letter, Los Angeles District staff have reviewed the detailed information provided by you, as well as other documents related to the Cucamonga Creek Flood Control Project. Our conclusion is that the Deer Creek Levee (referred to as the Deer Creek Reception Levee by San Bernardino County Flood Control District) was never a permanent functional part of the Corps of Engineers Cucamonga Creek Project. By this we mean the Deer Creek Reception Levee is not a component of the Corps project required to produce the project design flood protection on Deer Creek. The basis for our conclusion is explained by addressing the points and issues put forth in your letter. The Deer Creek Reception Levee is not a permanent or required component of the Corps of Engineers' Cucamonga Creek Project. As described in San Bernardino County Flood Control District (SBCFCD) documents in Exhibits D and F of your letter, the Deer Creek Reception Levee was constructed by the California Conservation Corps in the 1930's, and later improved by SBCFCD in 1970-71 as part of the Watershed Emergency Burns Work The Corps' initiated construction of the Cucamonga Creek project in 1974-75. Although paragraph 14.01 of the Corps' Design Memorandum No. 2 dated June 1973 (DM #2) refers to a" diversion levee ... west of Deer Creek Debris Basin" as part of the Corps project, there is no other design information or construction plans which describe such a permanent project feature. There is reference in paragraph 2-11 entitled "DISPOSAL SITES"ofthe Corps' Feature Design Memorandum No. 6, Deer Creek, Demens and Hillside Debris Basins and Channels, dated June 1979, to the use of the Deer Creek levee as an optional disposal site "for use by the contractor, ifdesired" (see your Exhibit B). paragraph 2-11a ofFeature Design Memorandum No. 6 CFDM # 6) made clear the temporary nature of the excess construction materials placed on or adjacent to this existing Deer Creek levee when it states "The county has an ongoing borrow program where the public and other government agencies that need materials for construction would use the excess materials placed adjacent to the levee". -2 - There is, however, a Deer-Day Separation Levee which is located east. of Deer Creek Debris Basin for which design information, plans, and cost estimates are presented in Design DM #2 and FI)M #6. Plate 2 of FDM #6 shows an index map of project features. Paragraph 6-08 of FDM #6 describes the then existing levee system separating Deer and Day Creek along with modifications to be made as part of the Corps project. Plate 29 of FDM #6 presents the plans for these modifications. SBCFCD has subsequently constructed a debris basin and rectangular concrete-lined channel on Day Creek. Your letter ;nistakenly attributes an estimated project feature cost of $398,000 to the Deer Creek levee instead of the Deer-Day Separation Levee. In referring to Table XIX-1 entitled "Summary of Estimated First Costs (SPF), Recommended Plan" on page XIX-2 of DM #2, a cost estimate of $398,000 was noted under Account No. 11 for "Levee" in the "Deer" project feature column. One needs to refer to Table XIX-3 on page XIX-5 of DM #2 to see that Account No. 11 is for "Levee (Between Deer & Day Creek)"; note the cost shown in this table is the same :$398,000 as given in Table XIX-1. I will now address the issues raised under the heading in your letter called "The Debris Basin Was Not Designed To Withstand The Project Flood By Itself'. The design documents for the Cucamonga Creek Project clearly establish that the Deer Creek Debris Basin, Deer Creek Channel, and the Deer-Day Separation Levee were designed to provide Standard Project Flood protection for the project area without the Deer Creek Reception Levee. The Deer Creek Debris Basin design volume calculation was performed correctly in accordance with the standard procedure at that time, namely "A New Method of Estimating Debris-Storage Requirements for Debris Basins" dated January-February 1963 by Fred E. Taturn of the Los Angeles District, Corps of Engineers. Plate H-7 of FDM #6 presents a relationship between drainage area size and recommended design debris production for a watershed 4-5 years after 100 percent bum for one major storm event, that is unadjusted for the factors affecting debris production in the Taturn Method. Those adjustment factors are watershed slope, drainage density, hypsometric-anatysis index, and 3-hour rainfall (see Table III-1, and Plates H-5 and H-6 of FDM #6). Application of the appropriate correction factors (also given in Table III-1 of FDM #6) yields the correct Deer Creek Debris Basin design volume of 310 acre-feet.' Exhibits E and F of your letter present various Deer Creek Debris Basin volume estimates using design assumptions for 3-hour rainfall, years after watershed bum, and methodology which differ from the FDM #6 computations performed with the Taturn Method. Use of different design assumptions or different procedures will yield results that differ from the original debris storage volume. The fact remains that the original debris basin volume estimates in DM #6 were based on an approved design procedure derived from observed debris production experience in the region. In the derivation of the Taturn Method it was clearly recognized that -3 o debris production rates much greater than the adopted design procedure produces were possible. However, to design for and construct debris basins for these larger debris volumes is generally not practical or economical. Application of the Taturn Method yields debris storage volume estimates consistent with the Standard Project Flood design-standard yet there is residual risk of larger more irLffequent combinations of fire and flood events that will produce larger debris volumes. The facts presented in this discussion in no way invalidate the original design, or produce an engineering requirement for the Deer Creek Reception Levee to be a part of the Cucamonga Cre~k Project. Finally, we come to Exhibit G of your letter in which Dr. David Willjams of WEST Consultants, Inc. concludes that removal of the Deer Creek Reception Levee would increase risk offloodingtodownsloperesidents. The Cucamonga Creek Project including Deer Creek Debris Basin and Channel provide a "backbone" flood control system that channelizes the major streams emanating from the mountains, and provides for a point of disposal for flood waters originating from the downslope alluvial fan area undergoing urban development. It is the responsibilky of SBCFCD and the City ofRancho Cucamonga to review and approve/disapprove development proposals on the basis of satisfying structural, geological, and flood drainage engineeringrequkementsestablishedforthesatetyofallresidents- SBCFCDrequires development plans to be signed by an engineer registered in the State of Callfornia in which the structural, geological, and flood drainage aspects of a proposed development are addressed in accordance with county standards. The degree of flood risk to development both upslope and downslope of Deer Creek Reception Levee following its removal is dependent on the specifics of how the developer handles flood runoff in meeting the engineering requirements of SBCFCD and the City of P, ancho Cucamonga. Lacking an engineering comparison of the flood protection performance of the with- and without-development plans, we do not know whether the level of risk from flooding to the area upslope or downslope of the levee will increase or decrease due to the proposed development. Regardless of whether the flood risk after removal of the Deer Creek levee is higher or lower, it is the responsibility of the SBCFCD and the City of Rancho Cucamonga to administer the local requirements to be met by the developer with regard to the safe management of flood and debris hazards attendant with any development proposal. The Corps of Engineers is without authority to impose engineering standards for flood drainage and geological hazards to be met by private developers on non-Corps project lands. SBCFCD and the City ofRancho Cucamonga do have this authority and responsibility. The Corps does, however, review and approve plans for junction structures whereby local drainage works deliver flood waters into the Corps channel. -4 - In summary, the Deer Creek Reception Levee is not a permanent functional part of the Corps' Cucamonga Creek Flood Control Project, however, the levee had been designated as an optional disposal site for excess materials. The Deer Creek Debris Basin storage volume was correctly computed to provide, in conjunction with the Deer Creek Channel, Standard Project Flood protection. The engineering standards and approval of local drainage systems constructed as a part of development in the Deer Creek floodplain are the responsibility of SBCFCD and the City ofRancho Cucarnonga~ Your letter bfOctober 21, 1999 to both Los Angeles District and South Pacific Division offices of the Corps requests our immediate intervention to stop destruction of the Deer Creek Reception Levee. Given our conclusions regarding this matter as summarized herein there is no basis for Corps of Engineers intervention in this local development issue. We remain available to address your concerns within the scope of our authorities. For further information regarding this response, please contact Mr. George Beams, Chief of Engineering Division at 213-452-3629, or Mr. Joseph Evelyn, ChiefofHydrology and Hydraulics Branch at 213-452-3525. Sincerely, District Engineer Copies furnished: See separate sheet -5 - Copies furnished: Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office Building Washington, DC 20510-0505 Honorable Joseph W. Westphal Assistant Secretary of the Army (Civil Works) 108 Army Pentagon Washington, DC 20310-0103 Honorable William Alexander Mayor ofRancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91730 Mr. David Lovell / San Bernardino County Flood Comrol District 825 East Third Street San Bemardino, CA 92415-0835 ~2/16/99 17:53 ~'202761148S HQUSACE/CECW-EH ~ SPL ~002/002 REPLY TO ATTENTION CECW-EH DEPARTMENT OF THE ARMY U.S. Army CORDS of Engineers WASHINGTON. D.C. 20314-1(X)0 16 DEC ~ blEMORANDLrM FOR Assistant Secretary of the Army for Civil Works SUBJECT: Cucamonga Creek Flood Control Project, De~r Creek Debris Basin, San Bernardino County, California 1. On 15 December 1999, members of your staff and staff members from the Array Corps of Engineers Civil Works Directorate met to discuss the subject project feature. The. Cones of Engineers presented a recently performed Corps Los Angeles District engineering investigation of the adequacy of the Deer Creek Debris Basin to achieve its originally intended flood control function. The investigation was requested in a meeting with the Corps South Pacific Division on 4 Novembe'i 1999 by a group of attorneys representing private landowners in the vicinity of the Corps project. Those residents are opposed to a developer's on-going action to remove a nearby earth embankment (the Deer Creek Reception Levee) that is not a pan of the Corps project but which they believejs needed to assure them adequate flood protection. They assert that the embankment is a feature of the Corps flood eontxol project, that the debris basin was undersized when designed, and thus the embankment is necessary to deliver the project's intended level offiood protection. 2. The Los Angeles District concluded from its investigation that the debris basin has a volume sufficient to store debris generated by floods up to and including one having a 0.009 probability (111-year average recurrence interval) and that the concrete-lined charmel below the basin can convey flood flow rates up to one having a 0.002 probability (500-year average interval). 3. The HQUSACE considers Los Angeles District's engineering investigation to be correct in its choice of'analytical ntethods and it concurs with the results of the analysis. These results lead to the conclusion that the Corps project provides a high level of' flood protection to the area of'concern. CHARLES M. HESS Chief, Engineering and Construction Division Office of Deputy Commanding General For Civil Works DEPARTMENT OF THE ARMY LOS ANGELES D~STRJCT, CORPS OF ENGINEERS PO BOX 5327~: LOS ANGELES. CALIFORNIA ~X~53-2325 December 16, 19~9 Office of the Chief Hydrology and Hydraulics Branch Mr. Dean G. Dunlavey LATHAM & WATKINS · Attorneys at Law 650 Town Center Driver, Suite 2000 Costa Mesa, California 92626-1925 Dear Mr. Dunlavey: I am writing in fulfillment of our commitment to review the information provided and concems raised by you and your colleagues at our November 4, 1999 meeting at the South Pacific Division office of the Corps of Engineers, regarding the Deer Creek Reception Levee in San Bernardino County, California. We appreciate the time and effort you and your colleagues took to present the views of concerned local residents in a face-to-face meeting with us in San Francisco. This response addresses the two main issues discussed at our meeting: (1) the assertion that the Deer Creek Reception Levee is part of the Corps of Engineers Cucamonga Creek Flood Control Project, and (2) the adequacy of the Corps' Deer Creek Debris Basin storage volume in light of current design practice and hydrologic information. At the meeting you provided a bound compilation of information to support your position which included pages from Corps design reports, hydrologic and meteorological information, declarations of scientific and engineering experts, and various debris production and fire impact related graphs and articles. The information you have furnished has not altered our position that the Deer Creek Reception Levee is not a permanent functional part of the Corps' Cucamonga Creek Project as explained in our November 2, 1999 letter to you. The first 3 pages of your bound compilation are pages XIV-1, XIX-7, and XIX-8 of the Corps' Design Memorandum No. 2 dated June 1973 for the Cucamonga Creek Project. The "diversion levee at Deer Creek" referred to in those pages is the levee separating Deer and Day Creeks which is a component of, the Corps' project, not the Deer Creek Reception Levee. We have conducted a reevaluation ofthe debris yield for the Deer Creek Debris Basin using the procedures in the Corps of Engineers' report entitled "Los Angeles District Method for Prediction of Debris Yield" dated February 1992. The debris yield procedures developed in this report are now used in place of the procedures used for the original design of Deer Creek Debris Basin which were based on the report "A New Method of Estimating Debris-Storage -2- Requirements for Debris Basins" datedJanuary-February 1963 by Fred E. Tatum. There were two significant findings. First, the debris yield estimate for a Standard Project Flood event occurring between 4 and 5 years aiter 100 percent bum of the Deer Creek watershed would be significantly larger than predicted by the Tatum Method. Secondly, the annual exceedance frequency of the 310 acre-feet design volume using the 1992 method was estimated to be 0.009 which corresponds to an average return period of 111-years. This means that the Deer Creek Debris Basin has sufficient capacity for the estimated 100-year debris yield of 292 acre-feet from the watershed. A brief report entitled "Review of Debris Production and Level-of-Protection, Deer Creek Debris Basin", dated November 29, 1999, detailing the application of the 1992 debris yield methodology is provided as Enclosure 1. Our reevaluation included a review of the adequacy of the Deer Creek channel capacity below the debris basin. The Standard Project Flood design discharge for Deer Creek below the debris basin was 5400 cubic feet per second (cfs) as compared to the estimated 100-year discharge frequency value of 2770 cfs. The discharge frequency estimate for Deer Creek was based on analytical discharge frequency relationships determined for nearby watersheds with substantial flood record lengths (Day Creek, Cucamonga Creek, and Etiwanda Creek). Regional discharge frequency procedures developed by the Corps and by the US Geological Survey were used to verify the reasonableness of the adopted Deer Creek discharge frequency relationship. It should be n~oted that since flood discharge values were used in the current determination of debris yield estimates, the meteorological information provided in the bound compilation of information provided at our meeting was not used directly. Your bound compilation of information included declarations by several experts that focused on the Deer Creek Debris Basin structural integrity in light of current geologic understanding of earthquake magnitude and frequency. Local interests in 1997 expressed this same concern. In an August 11, 1997 letter (Enclosure 2) to Mr. Joe O'Neill, City Engineer for Rancho Cucamonga, we responded with specific information on the original seismic considerations for the debris basin embankment. The letter concludes that based on a review of the information in Corps design reports that "the U.S. Army Corps of Engineers affirms the Deer Creek Basin to be safe from failure during a major earthquake on either the San Andreas or Cucamonga Faults". It was also noted in the letter that the joint probability of a 100-year flood and a major seismic event is very rare. However, should an earthquake occur which damages the project, SBCFCD is responsible for rehabilitating the project in accordance with the project local cooperation agreement. Another point made by technical experts in your bound compilation of information was that the Deer Creek Reception Levee provides secondary. flaod and drainage containment that supplements the flood protection provided by the Corps' Deer Creek Debris Basin. However, recognition was not given to the three existing SBCFCD Deflector Levees located between the Deer Creek Debris Basin and the Reception Levee. These three deflector levees were constructed by SBCFCD as part of their Watershed Bums Emergency Work in 1970-71, prior to construction of the Corps' project. These deflector levees are still maintained by SBCFCD, and -3- afford significant secondary flood protection in terms of ~'edirecting any flood or debris flows which exceed the debris basin capacity back into the Deer Creek Channel. In summary, the Deer Creek Reception Levee is not a permanent functional part of the Corps~ Cucamonga Creek Project. Current ciebris yield estimates show that the Deer Cree~c Debris Basin capacity is adequate to handle the estimated 100-year debris yield. The Deer Creek Channel capacity is nearly twice the estimated 100-year flood discharge. Therefore, the 1991 Corps certification that the Cucamonga Creek Project provides 100-year protection remains valid. A 1997 Corps review of the seismic stability of the Deer Creek Debris Basin found that the embankment would perform adequately during a major earthquake, maintaining its integrity and function as a debris basin. Finally, the three SBCFCD Deflector Levees located between Deer Creek Debris Basin and the Reception Levee afford a significant measure of supplemental flood protection to downslope development should the capacity of Deer Creek Debris Basin be exceeded. For further information regarding this response, please contact Mr. George Beams, Chief of Engineering Division at 213-452-3629, or Mr. Joseph Evelyn, ChiefofHydrology and Hydraul its Branch at 213-452-3525. Sincerely, _o~.~P. Carrol/~l Colonel, Corps of Engineers District Engineer Enclosures Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Cucamonga Creek Project, San Bernardino County, CA Hydrology and Hydraulics Section, Los Angeles District, Corps of Engineers 29 November 1999 Background: A developer and residents are litigating over a proposed real estate development located near Deer Creek, San Bemardino County, Ca. The area of concern lies just downstream from Deer Creek Debris Basin along the xvestern side of Deer Creek Channel. Deer Creek Debris Basin and Channel were authorized by the 1968 Flood Control Act and completed in about 1983. Deer Creek Debris Basin was designed to capture debris and act as an inlet structure for directing flows to the downstream improved channel. Among the concerns of residents is the level-of-protection affordelJ by Deer Creek Debris Basin in relation to debris production. The original basin design was based on a Standard Project Flood (SPF) event and thought to have a level-of-protection of about 200-year. The Corps of Engineers, Los Angeles District was asked to re-evaluate the level-of-protection based on the latest Los Angeles District Debris Method, dated February 1992. An investigation was performed using readily available information and is summarized herein. Results. Based upon this investigation, the Deer Creek Debris Basin design storage volume of 310 acre-feet was determined to be equivalent to a .009 probability (or 111-year) debris yield event. This means there is a 0.9% chance that the capacity will be reached or exceeded in any given year. In the course of this investigation it was also determined the downstream channel (designed for 5.400 ft3/s) provides protection up to a .002 probability (or 500-year) event: Details of this analysis are provided below. Technical Information. Deer Creek Debris Basin is located on Deer Creek at the mouth of Deer Canyon in San Bernardino County, Ca. Deer Creek, at the debris basin, drains 3.71 mi: in the San Gabriel Mountains. Deer Creek is a tributary of Cucamonga Creek. Cucamonga Creek flows into the Santa Ana River just upstream from Prado Dam. A drainage map showing the area above Deer Creek Debris Basin is included as Figure 1. A streambed profile, also for the area above Deer Creek Debris Basin, is presented on Figure 2. A map showing the Cucamonga Creek Project, including Deer Creek improvements, is shown on Figure 3. Pertinent data for Deer Creek Debris Basin are listed below. C:\Docs\Deer Creek Debris Basin.doc -1- Last Updated: 12/02/99 Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Deer, Creek Debris Basin - Pertinent Data Drainage Area Intake Elevation Outlet elevation Spill~vay Crest Top of Dam Total Area (including basin) Standard Project Flood Probable Ivlaximum Flood Peak Volume Peak Volume Debris Allocation (at spillway crest) Downstream Channel Capacity 3.71 mi2 2643.75 feet 2621.0 feet 2658.0 feet 2677.5 feet 32 acres 5,400 ftVs 900 acre-feet 15,000 ftVs 2,195 acre-feet 310 acre-feet 5,400 ftl/s From FDM No. 6 for Deer Creek, Demens and Hillside Debris Basins and Channels, dated June 1979 There is no development in the area above the debris basin and there are no structures affecting runoff or debris. Above an elevation of about 5,000 feet, the vegetation consists of pine, fir, juniper, and spruce. Most of the lower part of the area is covered with heavy growth of brush, including sumac, mountain mahogany, and chamise. Sycamores and alders grow along the streams, and scrub oaks grow in sheltered areas and on the north side of tributary canyons. The San Gabriel Mountains in this area are susceptible to wildfires, which play a major role in debris production at the basin, especially following storm events. The debris basin was designed using Standard Project Flood (SPF) criteria. The SPF was based on the 3-hour local storm of March 1943. The storm, which originally occurred over Sierra Madre, Ca., was transposed and centered over the Deer Creek drainage area. The SPF peak discharge ~vas determined to be 5,400 ftVs. The occurrence of a storm of the magnitude and intensity of the March, 1943 storm with the ground conditions assumed for the design study, would produce a flood that would rarely be exceeded. The original design debris production was estimated using the method outlined in "A New Method of Estimating Debris Storage Requirements for Debris Basins" by Fred E. Tatum, printed in 1963. Debris production estimates with this method are based on drainage area, slope, drainage density, hypsometric-analysis, 3-hour rainfall, and bum effect. The design debris estimate for De~r Creel: Debris Basin was 3 ! 0 a~ For details on the original debris yield determination, see FDM No. 6 for Deer Creek, Demens and Hillside Debris Basins and Channels, dated June 1979 MethodologT. The debris basin ~vas designed to capture debris, up to the design yield, plus serve as an inlet structure for flood flows to the improved channel downstream. For this re-evaluation, the level-ot:protection for the debris basin, based on the debris yield, was recalculated using the C:~Docs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 -2- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin "Los Angeles District Method for Prediction of Debris Yield", dated February 1992. Th.L~ method includes regression equations for estimating debris yield based on the followin..q barameters: drainage area, frequency discharge, relief ratio, and a fire factor. The equations used are based on drainage area and can t~e used directly to calculate a specific frequency or design debris yield. The coincidence of flood events and fire events can be determined utilizing the Coincident Frequency Analysis (CFA) computer program. The level of protection for Deer Creek Debris Basin was determined using the CFA approach. Fire Factor-Frequency Relationship. The first step for developing a CFA input file was to establish a fire factor versus frequency relationship. Since there wasn't a fire history for the drainage area immediately available, frequency fire factors were determined using the generalized fire duration curves for southern Califomia coastal watersheds given in Appendix A of the LAD Debris Method. Using Figure A-2 from the LAD Debris Method, the Deer Creek watershed was assumed to have completely "recovered" from wildfire after 12 years. A fire factor of 6.00 is used for 1 year after a 100% bum and a fire factor of 3.00 is used for 12 years after a 100% bum. A fire factor versus years-since-wildfire (up to 12 years) was established using Figure A-2 from the Appendix and interpolating for a drainage area of 3.71 mi:. Each fire factor was then assigned a frequency according to Figure A-4 of the Appendix using the 3.0 to 10.0 mi: generalized fire duration curve. These results are shown in below. Deer Creek Fire Factor vs. Frequency Relationship Years Since 100% Burn Fire Annual Exceedance Factor Frequency (percent) (a) (b) 1 3 4 5 6 7 8 9 10 11 12 6.00 2.2 5.52 4.7 5.10 7.5 4.70 9.6 4.31 12.6 3.97 15.8 3.77 18.0 3.58 20.9 3.30 26.8 3.15 32.1 3.03 41.0 3.00 100.0(c) (a) From Figure A-2; Fire Factor Curves for 3.71 mi' (b) From Figure A-4; Generalized Fire-Duration Curve for 3.71 mi2 (c) Using 100% for fire factor of 3.0 C:\Docs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 -3- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Discharge-Frequency Relationship. The next step was to determine,the discharge- frequency relationship for the area. There are no stream gages in the Deer Creek .drainage area; however, there used to be a stream gage located on Day Creek which was operated from 1928 to 1972. The Day Creek watershed is located just east of Deer Creek. It has a drainage area of 4.56 mi2 at the gage and drains terrain that is hydrologically similar to that of Deer Creek. There is also a stream gage further downstream on Cucamonga Creek. Discharge-frequency analyses were performed on both of these stream gages using the Hydrologic Engineering Center's Flood Frequency Analysis (FFA) computer program. The FFA program is based on the "Guidelines For Determining Flood Flow Frequency, Bulletin 17B", by the Hydrology Subcommittee, revised September 1981. The techniques presented in Bulletin 17B have been adopted for all Federal planning involving water and related land resources. FFA results for Day Creek are presented in Exhibit 1. A discharge-frequency relationship, based on the Day Creek stream gage information, xvas developed for Etiwanda Creek at the mouth of Etiwanda Creek Canyon during the design phase of the Etiwanda Debris Basin in 1969. Etiwanda Creek Debris Basin is located just east of Day Creek Debris Basin. These results were included her~ for comparison purposes. The resulting frequency discharges for the three locations were reduced to unit discharges based on drainage area (fP/s per mi2). These results are shown in the following table. Discharge-Frequency Results and Unit Discharges for Nearby Locations Frequency Day Creek Cucamonga Creek Etiwanda Creek (years) (D.A. = 4.56 mi') (D.A. = 9.8 mi') (D.A. = 2.8 mi~) (ftVs) (ftVs/mF) (ft'/s) (ft'/s/mi2) (ftVs) (ft'/s/mi2) · 500-yr 6,580 1443.0 11,900 1214.3 1,600 571.4 200-yr 4,590 1006.6 8,230 839.8 1,200 428.6 100-yr 3,400 745.6 6,040 616.3 900 321.4 50-yr 2,430 532.9 4,280 436.7 640 228.6 25-yr 1,450 318.0 2,520 257.1 400 142.9 10-yr 900 197.4 1550 158.2 245 87.5 5-yr 500 109.6 851 86.8 130 46.4 2-yr 154 33.8 255 26.0 34 12.1 1.67-yr 101 22.1 1.43-yr 68 14.9 1.25-yr 41 9.0 1.11-yr 22 4.8 1.05-yr 11 2.4 Day Creek; USGS stream gage no. 11067000 Cucamonga Creek; USGS stream gage no. 11073470 ' Eti,,vanda Creek - discharge-frequency curve developed during design phase of Etiwanda Creek Debris Basin. C:XDocs\Deer Clock ~_,&ris Basin.doe Last Updated: 12/02/99 -4- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Unit discharges generally increased as drainage area decreased except for the smallest drainage area, Etiwanda Creek at the mouth of Etiwanda Canyon, which has a drainage area of 2.8 mi2. Since the Day Creek drainage area is so similar 'to that of Deer Creek and the drainage area size is also similar, the frequency unit discharges were adopted for Deer Creek. Results for Deer Creek can be seen in the table below. Discharge frequency curves for Deer Creek and nearby locations are sho~vn on Figure 4. Deer Creek Discharge-Frequency Relationship Probability Frequency Discharge Unit Discharge (ftVs per miD (years) (fiVs) .002 500 5350 1443 .005 200 3730 1007 .01 100 2770 746 .02 50 1980 533 .04 25 1180 318 .t0 10 730 197 .20 5 410 110 .50 2 130 34 .60 1.67 80 22 .70 1.43 60 15 .80 1.25 30 9 .90 1.11 20 5 .95 [ 1.05 9 2 The United States Geological Survey CUSGS) published equations and nomographs for calculating the 10-, 25-, 50-, and 100-year peak discharges for the South Coast region of California in the publication "Magnitude and Frequency of Floods in California, Water Resources Investigations 77-21", dated June 1977. Discharges for a drainage area of 3.71 mia were calculated and plotted aIongside the Deer Creek frequency curve and compared quite well. The equations and results are shown below. A0.79 1.75 Q10 = 0.63 ! = 600 ftVs A0.81 1.81 Q25 = 1.10 = 1,320 fta/s A0.82 1.85 QS0 = 1.50 = 2,090 ftVs A0.87 1.87 Q100 = 1.95 = 3,100 ft;/s Where: Qn is the frequency discharge in ftVs, A is the drainage area in mi~, and p is the mean annual precipitation in inches (based on nearby precipitation gages; data from Climatedata West, by Hydrosphere Data Products) C:\Docs\Deer Creek Debris Basin.doe Last Updated: t2/02/99 Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Debris-Response Relationships. The final step for setting up the CFA model xvas to develop debris-response relationships for discharges from 1.05-year to 500-year frequency and for the number of years-since-wildfire ranging from 1 to 12 years. The drainage m-ca and relief rat.~io, along with each specific frequency discharge, were entered using the appropriate equat'~on; the fire fact92r was varied for years 1 to 12 since wildfire (6.00 to 3.00, respectively). The drainage area for Deer Creek Debris Basin is 3.71 mi2 (2374.4 acres). The length along the longest watercourse between the highest point in the ~vatershed (8,859 ft) and the lowest point (2,644 ft) is 4.3.miles. The relief ratio is 1,445 ft/mi. Equation 2 for drainage areas 3.0 to 10.0 mi' was used to calculate the debris response relationships. Equation 2: Log Dy = 0.85 (Log Q) + 0.53 CLog RR) + 0.04 (Log A) + 0.22 (FF) Where: Dy is the debris yield in yd3 per mi-' Q is the discharge in ft3/s per RR is the relief ratio (akin to the slope) in ft per mi A is the drainage area in acres FF is a non-dimensional fire factor The table belo~v shows the debris response relationships developed for the Deer Creek basin. Debris Yield vs. Years-Since-100% Wildfire and Frequency of Exceedance Ycars Since 100% Wildfire 1 2 3 4 5 6 7 8 9 10 11 12 0.2 653 415 512 376 414 180 338 212 277 580 233 662 211 149 191 774 166 414 154 237 145 141 142 952 0.5 1.0 481,102 372,781 377,257 292,317 304,956 236,295 249,022 192,954 204,380 158,363 172,043 133,307 155,467 120,463 141,201 109,409 122,529 94,941 113,563 87,994 106,866 82,804 105,254 81,556 Frequency of Exccedance (per l00 years) 2.0 5.0 10.0 280 196 180,659 120,449 219 716 141,664 94,450 177 608 114,514 76,349 145 031 93,510 62,345 119 032 76,747 51,169 100 199 64,604 43,073 90,545 58,379 38,923 82,236 53,022 35,351 71,361 46,011 30,676 66,140 42,644 28,432 62,239 40,129 26,755 61,300 39,524 26,351 20.0 73,084 57,309 46,326 37,829 31,047 26,135 23,617 21,450 18,613 17,251 16,234 15,989 50.0 26,859 21,062 17,025 13,902 11,410 9,605 8,679 7,883 6,841 6,340 5,966 5,876 Debris yields in yd3/mi2 95.0 2,850 2,235 1,807 1,475 1,211 1,019 921 837 726 673 633 624 C:XDocs\Deer Creek Debris Basin.doc Last Updated: 12/02/99 -6- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Coincident-Frequency Analysis Results. The CFA computer program was run using the fire , factor frequency, discharge-frequency, and the debris response relationships described in the three steps above. The CFA program, as it's name implies, uses mathematical algorithms to determine the coincidence of fire and flood events in a watershed and computes a debris yield versus frequency relationship. The results from this analysis are sho~vn in the table below. The debris yields were converted to acre-feet, plotted on frequency paper, and a line was graphically fit through the points. Finally, a straight horizontal line was drawn representing the 310 af capacity of the basin. Where these two lines intersect, was determined to represent the level-of- protection for the debris basin. The debris yield curve is shown on Figure 5. Deer Creek Debris Yield vs. Frequency Relationship Probability Frequency Yield (years) (ydVmi2) .002 500 249,670 .005 200 170,040 .01 100 127,110 .02 50 91,707 .04 25 54,1t9 .10 10 34,120 .20 5 20,675 .50 2 7,393 .60 1.67 5,455 .70 1.43 4,153 .80 1.25 3,110 .90 1.11 1,895 .95 ! .05 720 Debris Yield (at) 574 391 292 211 124 79 48 17 13 10 7 4 2 C:XDocs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 -7- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin 34'13'27',117'35'51" 34°13'27",H7°3333" Nm ., . '~'..' '~, '.~ "' "~:~.':':,~':'~'C~Y '.:...!' ::, ':"> .:~'!.~'.:%.~.~.'.~,,~..~,.,~.tr,'~'.%.'.".",.. %'...'..:., r' ". ......."."' ':!'.. ,','~..?=.,kS".v':~&~7.~,'T.': '::~..',.~?~'.~.~'.:~:s':~., . .~' '.' '.::..:.... ,_"~ '), ->.,' ~", ."'?..%'...~".:'..~'.:~ '-~'i~" '.L.,~i . 'Ti,'. ." ......:. ' .. ~.' .' ..'...':".,..,' -.."'.~' .: ;.-.. ' .: .::.',..,.. "...~.2.'7~.~ .~..',.... ,.',-:C.:.C~.,'' ,. '. ..'..~.",'~.~.'~".,' ......; 'T ~"::.~!, '=;T!~ .""..'.('~'.:~.."'. '.' .:.' ..':"=.~ .':'.. ':;?':,': ."'.'. ?::':. 2'..~.'~'~..~. ?:'~,,.':,.,~.. :': i~ '. 'F~!'-/!/". '. ;ii".:~j'.~... "' .'?.~':~:! :' "' ~!.~' "'. :::' 'i". :~! ~"".", ~' ~' '.~'~ .,!.'.~' !.~..~: , .'. · :"~ ~" . .r,~.. ;', "., '~' ·: ."' ,'..~, .. '.. ,:h.: ," ~', "" .~,~'.7..'..~::,'~ .;~ i~i:.~:..;?~,'!:....'~'.:'~'z'.!.~:~:~'.'.:~;",~;'~.fi'.:.'..~2'~::2:?~':!i:.' !'}: '~ '.."rr"'.. ~!.:i.~.. ~..,,. ~...,1. ,, ....,....:.-.. ,:,,.. ~., , ~,~..,.:. ~-~::!......, ~.'~ .?......: ,...,....7:. .. ., '., .' ~'.. i.. t'. .., .~ ...~".Ti~-...'.~. ~ .~,.~'. ,. :'~v.T.;:':J," '." / ,.~..~ ~.,. :: . ,. 34° 10'24", 117°35'5 !" 34° ] 0'2~", 117°33'33" 10oo 0 ,6oo 2000 so6o.'4odoFzzT Printed from TOPO! © 1996 Wilclfiower Productions (w~.iopo .corn) Figure 1: Deer Creek Drainage Are- Deer Creek Debris Basin C:\Docs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 -8- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Figure 2: Deer Creek Streambed Profile Deer Creek Debris Basin Lo5~ SERIAL N0:39 ;... .. ,, i " ',,. !! .... Figure 3: Map Showing Deer Creek Improyements Note: Project ~o be moin~o[neJ by local inleresls. _l :~ TYPICAL. SECTION. RECTANGULAR CHANNELS NOT TO SCALE C:XDocsXDeer Creek Debris Basin.doe Last Updated: 12/02/99 -9- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin F L O W 23NOV99 12:45:37 DEER.DSS Deer Creek at Debris Basin USGS Stream Gages - Period of Record 10000 1000 100~ 10 Day Creek: 1928-1972; N = 45 Cucamonga Creek: 1928-1971, 1.973 - 1975; N= 47 ,/' 1 99 98 95 90 80 70 60 50 40 30 20 10 5 2 1 .5 .2 PERCENT CPLn.NCE EXCEEDANCE Deer Cr. (DA=3.71 mi2) ----,---- D22r Cr. USGS Equztions a Day Cr. (DA=4.56rai2) Etiwanda Cr. (DA=2.8 mi2) Cucamonga Cr. (DA=9.68 mi2) Deer Cr. using r~n~ curves Figure 4: Discharge-Frequency Curves C:kDocs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 Review of Debris Production and Level-of-Protection Deer Creek Debris Basin 1000 D o 100 ' 99 98 23NOV99, 12:53:51 DEER. DSS Deer Creek at Debris Basin - Debris Yield [ [ ~[ Deer Creek Debris Basin Frequency = 95 90 80 70 60 50 40 30 20 10 !1 5 2 1 .5 .2 PERCENT CHkNCE EXCEEDANCE A Deer Cr. (DA=3.71 mi2) Capacity Figure 5: Deer Creek - Yield vs. Frequency C:\Docs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 -11- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Exhibit 1: Final Results: Plotting Positions - 11067000 Day Ck nr Etiwanda DA=4.56 mi2 Events Analyzed Ordered Events Water Year Discharge Rank Water Discharge (ft'/s) Year (ft'/s) 1928 29 1969 9,450 1929 90 1938 4,200 1930 29 1966 1,740 1931 118 4 1943 1,500 1932 105 5 1967 1,330 1933 20 6 1950 580 1934 84 7 1945 400 1935 172 8 1959 367 1936 192 9 1971 358 1937 80 10 1958 355 1938 4,200 11 1968 346 1939 261 12 1940 286 1940 286 13 1939 261 1941 175 14 1946 250 1942 20 15 1954 242 1943 1,500 16 1947 232 1944 139 17 1952 214 1945 400 18 1956 195 1946 250 19~ 1936 192 1947 232 20 1957 176 1948 81 21 1941 175 1949 24 22 1962 174 1950 580 23 1935 172 1951 47 24 1944 139 1952 214 25 1931 118 1953 28 26 1963 114 1954 242 27 1932 105 1955 57 28 1972 105 1956 195 29 1929 90 1957 176 30 1934 84 1958 355 31 1948 81 1959 367 32 1937 80 1960 41 33 1955 57 1961 44 34 1951 47 1962 174 35 1961 44 1963 114 36 1960 .. 41 1964 16 37 1930 29 I965 18 38 1928 29 Median Plotting Position 1.54 3.74 5.95 8.15 10.35 12.56 14.76 16.96 19.16 21.37 23.57 25.77 27.97 30.18 32.38 34.58 36.78 38.99 41.19 43.39 45.59 47.80 50.00 52.20 54.41 56.61 58.81 61.01 63.22 65.42 67.62 69.82 72.03 74.23 76.43 78.63 80.84 83.04 C:'ff)ocs\Deer Creek Debris Basin.doc Last Updated: 12/02/99 -12- Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Events Analyzed Ordered Events Water Year Discharge Rank Water Discharge (fi3/s) Year (fi3/s) 1966 1,740 39 1953 28 1967 1,330 40 1970 25 1968 346 41 1949 24 1969 9,450 42 1942 20 1970 25 43 1933 20 1971 358 44 1965 18 1972 105 45~ 1964 16 Mddian Plotting Position 85.24 87.44 89.65 91.85 94.05 96.26 98.46 Final Results: Frequency Curve - 11067000 Day Ck n.r Eti~vanda DA=4.56 mi2 Computed Expected Percent Flow Probability Chance Excceedance Confidence Limits .05 .95 (~'/s) (~'/s) 6,580 8,230 .2 ~4,590 5,470 .5 3,400 3,900 1.0 2,430 2,700 2.0 1,450 1,550 5.0 901 942 10.0 500 512 20.0 154 154 50.0 44 43 80.0 23 21 90.0 13 12 95.0 4 3 99.0 System Statistics Log Transform: Flow, ~3/s Number of Events Mean 2.1667 Historic Events Standard Deviation .6263 High Outliers Computed Skew .6996 Low Outliers Regional Skew -.2000 Zero or Missing Adopted Skew -.2000 System~ic Events (fi'/s) (~3/s) 16,100 3,420 10,500 2,500 7,350 1,920 4,940 1,420 2,690 899 1,550 587 793 341 221 108 65 28 35 13 21 7 8 2 0 0 0 0 45 C:~Docs\Deer Creek Debris Basin.doe Last Updated: 12/02/99 -13- 44 CFR § 65.10, Mapping of areas protected by levee systems. Page 1 *130779 CODE OF FEDERAL REGULATIONS TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY SUBCHAPTER B--INSURANCE AND HAZARD MITIGATION NATIONAL FLOOD INSURANCE PROGRAM PART 65--IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS Current through dune 6, 2000:65 FR 36046 § 65.10 Mapping of areas protected by levee systems. (a) General. For purposes of the NFIP, FEMA will only recognize in its flood hazard and risk mapping effort those levee systems that meet, and continue to meet, minimum design, operation, and maintenance standards that are consistent with the level of protection sought through the comprehensive flood plain management criteria established by § 60.3 of this subchapter. Accordingly, this section describes the types of information FEMA needs to recognize, on NFIP maps, that a levee system provides protection from the base flood. This information must be supplied to FEMA by the community or other party seeking recognition of such a levee system at the time a flood risk study or restudy is conducted, when a map revision under the provisions of Part 65 of this subchapter is sought based on a levee system, and upon request by the Administrator during the review of previously recognized structures. The FEMA review will be for the sole purpose of establishing appropriate risk zone determinations for NFIP maps and shall not constitute a determination by FEMA as to how a structure or system will perform in a flood event. (b) Design criteria. For levees to be recognized by FEMA, evidence that adequate design and operation and maintenance systems are in place to provide reasonable assurance that protection from the base flood exists must be provided. The following requirements must be met: ( 1 ) Freeboard. (i) Riverine levees must provide a minimum freeboard of three feet above the water-surface level of the base flood. An additional one foot above the minimum is required within 100 feet in either side of structures (such as bridges) riverward of the levee or wherever the flow is constricted. An additional one-half foot above the minimum at the upstream end of the levee, tapering to not less than the minimum at the downstream end of the levee, is also required. (ii) Occasionally, exceptions to the minimum rivefine freeboard requirement described in (b)(1)(i) of this section may be approved. Appropriate engineering analyses demonstrating adequate protection with a lesser freeboard must be submitted to support a request for such an exception. The material presented must evaluate the uncertainty in the estimated base flood elevation profile and include, but not necessarily be limited to an assessment of statistical confidence limits of the 100-year discharge; changes in stage-discharge relationships; and the sourues, potential, and magnitude of debris, sediment, and ice accumulation. It must be also shown that the levee will remain structurally stable during the base flood when such additional loading considerations are imposed. Under no circumstances will freeboard of less than two feet be accepted. *130780 (iii) For coastal levees, the freeboard must be established at one foot above the height of the one percent wave or the maximum wave runup (whichever is greater) associated with the 100-year stillwater surge elevation at the site. (iv) Occasionally, exceptions to the minimum coastal levee freeboard requirement described in paragraph (b)(l)(iii) of this section, may be approved. Appropriate engineering analyses demonstrating adequate protection with a lesser freeboard must be submitted to support a Copyright (c) West Group 2000 No claim to original U.S. Govt. works 44 CFR § 65.10, Mapping of areas protected by levee systems. request for such an exception. The material presented must evaluate the uncertainty in the estimated base flood loading conditions. Particular emphasis must be placed on the effects of wave attack and overtopping on the stability of the levee. Under no circumstances, however, will a freeboard of less than two feet above the 100-year stillwater surge elevation be accepted. (2) Closures. All openings must be provided with closure devices that are structural parts of the system during operation and design according to sound engineering practice. (3) Embankment protection. Eugioeering analyses must be submitted that demonstrate that no appreciable erosion of the levee embankment can be expected during tbe base flood, as a result of either currents or waves, and that anticipated erosion will not resolt in failure of the levee embankment or foundation directly or indirectly through reduction of the seepage path and subsequent instability. The factors to be addressed in such analyses include, but are not limited to: Expected flow velocities (especially in constricted areas); expected wind and wave action; ice loading; impact of debris; slope protection techniques; duration of flooding at various stages and velocities; embankment and foundation materials; levee alignment, bends, and transitions; and levee side slopes. (4) Embankment and foundation stability. Engineering analyses that evaluate levee embankment stability must be submitted. The analyses provided shall evaluate expected seepage during loading conditions associated with the base flood and shall demonstrate that seepage into or through the levee foundation and embankment. will not jeopardize embankment or foundation stability. An alternative analysis demonstrating that the levee is designed and constructed for stability against loading conditions for Case IV as defined in the U.S. Army Corps of Engineers (COE) manual, "Design and Construction of Levees" (EM 1110-2-1913, Chapter 6, Section II), may be used. The factors that shall be addressed in the analyses include: Depth of flooding, duration of flooding, embankment geometry and length of Page 2 seepage path at critical locations, embankment and foundation materials, embankment compaction, penetrations, other design factors affecting seepage (such as drainage layers), and other design factors affecting embankment and foundation stability (such as berms). *130781 (5) Settlement. Engineering analyses must be submitted that assess the potential and magnitude of future losses of freeboard as a result of levee settlement and demonstrate that freeboard will be maintained within the minimum standards set forth in paragraph (b)(1) of this section. This analysis must address e~nbankment loads, compressibility of embankment soils, compressibility of foundation soils, age of the levee system, and construction compaction methods. In addition, detailed settlement analysis using procedures such as those described in the COE manual, "Soil Mechanics Design--Settlement Analysis" (EM 1100-2-1904) must be submitted. (6) Interior drainage. An analysis must be submitted that identifies the soume(s) of such flooding, the extent of the flooded area, and, if the average depth is greater than one foot, the water-surface elevation(s) of the base flood. This analysis must be based on the joint probability of interior and exterior flooding and the capacity of facilities (such as drainage lines and pumps) for evacuating interior floodwaters. (7) Other design criteria. In unique situations, such as those where the levee system has relatively high vulnerability, FEMA may require that other design criteria and analyses be submitted to show that the levees provide adequate protection. In such situations, sound engineering practice will be the standard on which FEMA will base its determinations. FEMA will also provide the rationale for requiring this additional information. (c) Operation plans and criteria. For a levee system to be recognized, the operational criteria must be as described below. All closure devices or mechanical systems for internal drainage, whether manual or automatic, must be operated in accordance with an officially adopted operation manual, a copy of which must be provided to FEMA by the operator when levee or drainage system recognition is being sought Copyright (c) West Group 2000 No claim to original U.S. Govt. works 44 CFR § 65.10, Mapping of areas protected by levee systems. Page 3 or when the manual for a previously recognized system is revised in any manner. All operations must be under the jurisdiction of a Federal or State agency, an agency created by Federal or State law, or an agency of a community participating in the NFIP. (1) Closures. Operation plans for closures must include the following: (i) Documentation of the flood warning system, under the jurisdiction of Federal, State, or community officials, that will be used to trigger emergency operation activities and demonstration that sufficient flood warning time exists for the completed operation of all closure structures, including necessary sealing, before floodwaters reach the base of the closure. (ii) A formal plan of operation including specific actions and assignments of responsibility by individual name or title. (iii) Provisions for periodic operation, at not less than one-year intervals, of the closure structure for testing and training purposes. (2) Interior drainage systems. Interior drainage systems associated with levee systems usually include storage areas, gravity outlets, pumping stations, or a combination thereof. These drainage systems will be recognized by FEMA on NFIP maps for flood protection purposes only if the following minimum criteria are included in the operation plan: *130782 (i) Documentation of the flood warning system, under the jurisdiction of Federal, State, or community officials, that will be used to trigger emergency operation activities and demonstration that sufficient flood warning time exists to permit activation of mechanized portions of the drainage system. (ii) A formal plan of operation including specific actions and assignments of responsibility by individual name or title. (iii) Provision for manual backup for the activation of automatic systems. (iv) Provisions for periodic inspection of interior drainage systems and periodic operation of any mechanized portioas for testing and training purposes. No more than one year shall elapse between either the inspections or the operations. (3) Other operation plans and criteria. Other operating plans and criteria may be required by FEMA to ensure that adequate protection is provided in specific situations. In such cases, sound emergency management practice will be the standard upon which FEMA determinations will be based. (d) Maintenance plans and criteria. For levee systems to be recognized as providing protection from the base flood, the maintenance criteria must be as described herein. Levee systems must be maintained in accordance with an officially adopted maintenance plan, and a copy of this plan must be provided to FEMA by the owner of the levee system when recognition is being sought or when the plan for a previously recognized system is revised in any manner. All maintenance activities must be under the jurisdiction of a Federal or State agency, an agency created by Federal or State law, or an agency of a community participating in the NFIP that must assume ultimate responsibility for maintenance. This plan must document the formal procedure that ensures that the stability, height, and overall integrity of the levee and its associated structures and systems are maintained. At a minimum, maintenance plans shall specify the maintenance activities to be performed, the frequency of their performance, and the person by name or title responsible for their performance. (e) Certification requirements. Data submitted to support that a given levee system complies with the structural requirements set forth in paragraphs (b)(1) through (7) of this section must be certified by a registered professional engineer. Also, certified as-built plans of the levee must be submitted. Certifications are subject to the definition given at § 65.2 of this subchapter. In lieu of these structural requirements, a Federal agency with responsibility for levee design may certify that the levee has been adequately designed and constructed to provide protection against the base flood. *130783 [51 FR30316, Aug. 25, 1986] <General Materials (GM) Annotations, or Tables> References, Copyright (c) West Group 2000 No claim m original U.S. Govt. works 44 CFR § 65.13, Mapping and map revisions for areas subject to alluvial fan flooding. P~el *130787 CODE OF FEDERAL REGULATIONS TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY SUBCHAPTER B--INSURANCE AND HAZARD MITIGATION NATIONAL FLOOD INSURANCE PROGRAM PART 65--IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS Current through dune 6. 2000; 65 FR 36046 § 65.13 Mapping and map revisions for areas subject to alluvial fan flooding. This section describes the procedures to be followed and the types of information FEMA needs to recognize on a NFIP map that a structural flood control measure provides protection from the base flood in an area subject to alluvial fan flooding. This information must be supplied to FEMA by the community or other party seeking recognition of such a flood control measure at the time a flood risk study or restudy is conducted, when a map revision under the provisions of part 65 of this subchapter is sought, and upon request by the Administrator during the review of previously recognized flood control measures. The FEMA review will be for the sole purpose of establishing appropriate risk zone determinations for NFIP maps and shall not constitute a determination by FEMA as to how the flood control measure will perform in a flood event. (a) The applicable provisions of §§ 65.2, 65.3, 65.4, 65.6, 65.8 and 65.10 shall also apply to FIRM revisions involving alluvial fan flooding. (b) The provisions of § 65.5 regarding map revisions based on fill and the provisions of part 70 of this chapter shall not apply to FIRM revisions involving alluvial fan flooding. In general, elevations of a parcel. of land or a structure by fill or other means, will not serve as a basis for removing areas subject to alluvial fan flooding from an area of special food hazards. (c) FEMA will credit on NFIP maps only major structural flood control measures whose design and construction are supported by sound engineering analyses which demonstrate that the measures will effectively eliminate alluvial fan flood hazards from the area protected by such measures. The provided analyses must include, but are not necessarily limited to, the following: (1) Engineering analyses that quantify the discharges and volumes of water, debris, and sediment movement associated with the flood that has a one-percent probability of being exceeded in any year at the apex under current watershed conditions and under potential adverse conditions (e.g., deforestation of the watershed by fire). The potential for debris flow and sediment movement must be assessed using an engineering method acceptable to FEMA. The assessment should consider the characteristics and availability of sediment in the drainage basin above the apex and on the alluvial fan. *130788 (2) Engineering analyses showing that the measures will accommodate the estimated peak discharges and volumes of water, debris, and sediment, as determined in accordance with paragraph (c)(1) of this section, and will withstand the associated hydrodynamic and hydrostatic forces. (3) Engineering analyses showing that the measures have been designed to withstand the potential erosion and scour associated with estimated discharges. (4) Engineering analyses or evidence showing that the measures will provide protection from hazards associated with the possible relocation of flow paths from other parts of the fan. (5) Engineering analyses that assess the effect of the project on flood hazards, including depth and velocity of floodwaters and scour and sediment deposition, on other areas of the fan. (6) Engineering analyses demonstrating that flooding from sources other than the fan apex, including local runoff, is either insignificant or Copyright (c) West Group 2000 No claim to original U.S. Govt. works 44 CFR § 65.13, Mapping and map revisions for areas subject to alluvial fan flooding. Page 2 has been accounted for in the design. (d) Coordination. FEMA will recognize measures that are adequately designed and constructed, provided that: evidence is submitted to show that the impact of the measures on flood hazards in all areas of the fan (including those not protected by the flood control measures), and the design and maintenance requirements of the measures, were reviewed and approved by the impacted communities, and also by State and local agencies that have jurisdiction over flood control activities. (e) Operation and Maintenance Plans and Criteria. The requirements for operation and maintenance of flood control measures on areas subject to alluvial fan flooding shall be those specified under § 65.10, paragraphs (c) and (d), when applicable. (f) Certification Requirements. Data submitted to support that a given flood control measure complies with the requirements set forth in paragraphs (c) (1) through (6) of this section must be certified by a registered professional engineer. Also, certified as-built plans of the flood control measures must be submitted. Certifications are subject to the definition given at § 65.2. (Approved by the Office of Management and Budget under control number 3067-0147,) [54 FR 33551, Aug. 15, 1989] <General Materials (GM) - References, Annotations, or Tables> Copyright (c) West Group 2000 No claim m original U.S. Govt. works Federal Emergency Management Agency Washington, D.C. 20~72 APR 19 2000 Nix. Ruben $. Cristiano, Ph.D. 1151 Dove S~reet,#295 Newport Bear, h, CA 92660 Dear Mr. Cristiano: This is in tesponsemyour letterdsXed Msrch S, 2000, regard/ng propeny that you own inthe City ofRancho C,,,-~monS~a, Califomla. You sUm:d that an absndoned ea.ed,.~n benu, previously known as the Deer Creek toooption I,~ec, is Ioc-_t_,yJ on your p, operty. You requested clm-ification of stammems contained in a September 4, 1997, letter to The Honorable William Alexander, Mayor of the City of Kancho Cucamon~. You requested clm'ificaIion as to whether the Federal Fmergency Management Agency has cexfified die Deer Creek reception levee and if tim1 c:em~mlou is still valid today. You asked if the Deer Creek ~eepdon levee is pan of any e, urmltiy operating flood eoatrol system and, if it were removed, would it change lhe current inure. You stat~th~the certification of the Deer Creek Debris Bash by the U.S. Army Corps of Engineers (USACE) is being cbailonged, end asked ifdec. er~ficm:ion of the basin would change the FIRM and requi~ residents to purchase flood insurance. Finally, you requested elaburallon on the criteria used to c~dit an earlhen berm with providing p, uct_~inn fi~m the base (l-pewent-annual-chance) flood. Our responces to your questions are summarized below. The Septtmber 4 letter states that the Deer Creek reetpfion levee "was c~edited on a previously eF,-m;vc FIRM for the City of Rancho Cucamonga, dated September 5, 1984, with providing protection flora the base flood." Please note that the Deer Creek reception levee was credited on the FIRM befoco the currunt levee requiwments were implemented. At this time, we do not have enough infu,madon so determine whether the Deer Creek reception tevee will Fovidc ~u6e~ion from the baso flood. Subsequent to the issuance of the 1994 FlrRM for the City of Rzncho Cuc~monSa, the USACE constructed the Deer Creek Dobris Basin upslope of the Deer Creek reception levee. That detention basin was certified by the USACE as providing base flood protection to areas downslope and, consequently, credited with providing such prot,~'ou on the effective FIRM fur San Bemardino County, California and Incotpo,.,~l Areas, dated March 1996. The Deer Creek reception levee is not a pan of:his flood control system, and its would not result in a revision to the FIRM or change flood insurance requirements for those homeowuers below the levee. If the l:kct Cre~k Debris Basin were d~certi~ed, e revision to the FTRM would be required. Analyses would need to be submitrod in support of the rovision to determine the extent of the flood h,,-,,ni downslope of the basin. As stated in our September 4 letter, we must receive documentation "demonstraxing that all reasons which preclude us from continuing to credit the detention bash with providing base flood protection, do n4x also preclude us from continuing to credit the levee with such proteaion." Therefore, we must receive docAnnantalion to r, how ~ the levee can be credited with providing base flood protection. The as~, submitts.[ t'eqtdremcnm pextaining to levees are described in Section 65.10 of the National Flood Insurance Program (N'FIP) ttgu/gtlons. The dam submittal requirements p~talning to structural flood control ~O0/~O0'a ~tO0# aa-sd-i~fq~ ~0![9~9~0E 9):9I O00Z,OZ'~a~ measures in an:as subjcct m alluvial fan flooding, such as ~hc areas downslope of where Dccr Canyon exits the mounm;~ fzo~, ar~ dcscribccl in Sc~ion 65,13 of the NF[P regulations. A copy of the ~ regula/ions is enclosed for your use. We Irast you have found this informatioa helpful. if you have lureher questions rcgarding litis m~.~_~, please con~-t me in Washington, DC, either by l~lephone at (202) 646-2878 or by facsimile at (202) 646-4596. Sincerely, " Michael Grimm Project Ofli~, Team W~st t-~.7.rds Study Branch Mitigation Directorate Enclosum ~O0/~O0'a ~LO0~ dd'Sa'~Tl't/V'~l-=-: ~Ot~9~gaOg i~:9I O00a,O~'MclV DEPARTMENT OF THE ARMY LOS ANGELES OISTRICT. CO~PS OF ENGINE~;RS PO BOX 532711 January 12, 2000 Office of the Chief Hydrology and Hydraulics Branch Mr. Dean G. Dunlavey LATHAM & WATKINS Attorneys at Law 650 Town Center Drive, Suite 2000 Costa Mesa, California 92626-1925 Dear Mr. Dunlavey: I am writing in response to your letter of November 17, 1999 to Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, regarding the Deer Cree. k Retention Levee - San Bernardino County, California. Our letter to you dated December 16, 1999 presented a reevaluation of the level of flood protection provided by the Deer Creek Debris Basin and Channel as promised at the November 4, 1999 meeting with you and other attorneys at the South Pacific Division of the Corps of Engineers. Mr. Evelyn does not recall making a statement to the press that we were not going to undertake this engineering review. Although our teevaluation was completed in early December, our December 16, 1999 response to you was delayed due to the need to coordinate the response through the Corps' Headquarters Office in Washington, DC and with the Office of the Assistant Secretary of the Army for Civil Works (Dr. Westphal). Your recent meetings with representatives of Dr. Westphal's office as well as with the Congressional offices of Senators Boxer and Feinstein resulted in a heightened level of concern with Deer Creek flood c~ntrol issues that necessitated a longer than normal coordination period before release of the reevaluation findings. Your November 17, 1999 letter lists a number of issues that you believe should be addressed by the Corps. Responses to those issues are given below in numbered paragraphs corresponding with the numbered paragraphs in your letter. 1. AsexplainedinChapterlV(SynthesisofStandardProjectFlood)ofDesign Memorandum No. 1, Hydrology, Cucamonga Creek (1973), the Corps used the March 1943 local storm event to determine standard project flood magnitudes because this observed storm event has the most severe rainfall depth-area-duration characteristics for smaller watersheds sizes (less than about 150 square miles) in southem California. The Deer Creek watershed at the debris basin location is 3.71 square miles. No adjustment to the rainfall characteristics of the observed March 1943 storm event were made in applying the storm to lhe Deer Creek watershed because (1) the March 1943 storm event was centered at the San Gabriel Mountain-foothill interface as is the Deer Creek watershed, and (2) rainfall statistics are similar for the area above Sierra Madre and the Deer Creek watershed. In addition, your letter seems to mistakenly assume that rainfall values from the" Sierra Madre damsite only were used to estimate standard project rainfall for the Deer Creek watershed. However, the Corps used the rainfall data derived from the entire "footprint" of the March 1943 storm to mathematically define the depth-area-duration relationships of the storm for use in standard project flood determinations. The average annual rainfall depth for the Deer Creek watershed is not used directly to compute either standard project rainfall depths or to compute debris yield. Therefore concerns that the 3-hour rainfall depths used to compute standard project flood values for Deer Creek watershed are a relatively small percentage of the average annual rainfall are misplaced. 2. There is confusion over our use of the term "basin". We frequently use the term "basin" to mean "drainage basin" which is the same as "watershed". Therefore, when we state that standard project flood estimates were determined "based on calculations of runoff that would result if the storm of record in the region were to occur directly over the basin", the computation is performed assuming the storm is centered over the drainage area tributary to the stream location where the flood estimate is to be made. 3. The Corps' original debris production estimates for the Deer Creek Debris Basin were made to achieve the congressionally authorized level of project flood protection (Standard Project Flood). Design debris production estimates computed using the Tatum Method C'A New Method of Fstimating Debris-Storage Requirements for Debris Basins" dated January-February 1963), or the updated 1992 debris yield procedure (entitled "Los Angeles District Method for Prediction of Debris Yield") are not the maximum possible debris production. As explained in our November 2, 1999 letter to you, "In the derivation of the Tatum Method it was clearly recognized that debris production rates much greater than the adopted design procedure produces were possible. However to design for and construct debris basins for these larger debris volumes is generally not practical or economical. Application of the Taturn Method yields debris storage volume estimates consistent with the Standard Project Flood design standard yet there is residual risk of larger more infrequent combinations of fire and flood events that will produce larger debris volumes." Both the Tatum Method and the 1992 debris yield procedures use hydrologic variables that ~est correlate with debris production. In the development of debris production procedures, the use of the 3-hour duration rainfall statistic as an independent variable was found to give far better correlation results than mean annual duration rainfall. A thorough discussion of the correlation between debris yield and meteornlogic and physiographic parameters is given in the 1992 debris yield report (Enclosure 1). This discussion concerning rainfall parameters while instructive is largely moot given that the recent Corps debris yield estimate (using the 1992 procedure) for Deer Creek Debris Basin was performed utilizing flood runoffvalues instead of rainfall parameters. 4. The Deer Creek Debris Basin design storage volume is 310 acre-feet. The debris basin will capture up to 310 acre-feet of debris carried into the basin from floods resulting from precipitation events (rainfall, snowmelt, or combination) regardless of how recent the watershed has been burned. The level of protection afforded by the 310 acre-feet of storage volume was consistent with the congressionally authorized standard project flood protection for the project. Your understanding of FEMA certification requirements is incorrect. FEMA floodplain management regulations are based on an estimate of the 0.01 (100-year) annual exceedance probability flood. Combinations of rainfall, snow, flood runoff, and watershed burn effects that produce debris yields greater than the estimated 100-year event are by definition less frequent (rarer) than the 100-year certification standard. Your discussion of"excluded risks" with respect to the design of Deer Creek Debris Basin is without technical merit. Our December 16, 1999 letter estimates a 0.009 (111-year) annual exceedance probability for the Deer Creek Debris Basin volume based on our 1992 debris yield procedures. The 1992 debris yield procedure explicitly accounts for the combined probabilities of fire and flood events. In response to your question asking for the quantity of debris generated during what you term the "residual risk" period, it would be debris yield events greater than 310 acre-feet. 5. Enclosure 2 is a copy of the report entitled "ANew Method ofEstimating Debris-Storage Requirements for Debris Basins" dated January-February 1963 by Fred Taturn. This report covers the derivation of the debris yield procedure and the application of adjustment factors in the procedure. Reference to this report should enable understanding the derivation of the correction factors given in Table III-1 of the Corps' Featurge Design Memorandum No. 6, Deer Creek, Demens and Hillside Debris Basins and Channels, dated June 1979. 6. The most likely explanation for the statement in paragraph l4.01ofDesign MemorandUm No. 2 that refers to "a diversion levee... west of Deer Creek Debris Basln" is that the word "west" should have been "east". This is because there is no design or construction information for a permanent levee west of Deer Creek Debris Basin that is part of the Deer Creek portion of the Cucamonga Creek Project. When you visited Mr. Evelyn on November 3, 1999, Mr. Evelyn had in his office Design Memoranda 1, 2, and 6, as well as copies of several half-size project plan sheets that covered the Deer Creek Channel reach in the vicinity of the Deer Creek Reception Levee. Mr. Evelyn discussed with you the fact that these documents were the most relevant Corps documents with respect to establishing whether the Deer Creek Reception Levee was a part of the Corps' Cucamonga Creek Project as well as determining the basis of design for the Deer Creek Debris Basin. Mr. Evelyn provided you copies of these plan sheets to illustrate that the Deer Creek Reception Levee was not on the construction plans as a project feature. The point was that had the Deer Creek Reception Levee been a part of the project, its design (size, location, shape, materials, real estate requirements, etc.) would have been described in Design Memoranda and shown on the project plans. The Corps is being responsive to your November 11, 1999 FOIA request for all documents relating to the project (reference Mi. Lisa Lugar's FOIA response letter of December 20, 1999 to Mr. Robert D. Crockett ofLatham & Watkins). It is important to recognize that the Design Memoranda for the project are documents that capture and record all significant aspects of the project planning and design. Information still residing at the Federal Records Center (FKC) in Laguna Niguel is comprised principally ofbackmp data and materials for the information that was incorporated into the Design Memoranda. 7. The Corps' is not aware ofany urban development proPosed for area uPsl°Pe fr°m the Deer Creek Reception Levee other than the Lauren Development. Mr. Evelyn's statements at the November 4, 1999 meeting regarding this upslope area were meant to point out that appropriate storm drainage measures as determined by county and city engineers are a necessary part any -4- development in this area in order to preserve do,2vnslope flood protection from local runoff not controlled by the Corps' Cucamonga Creek Project. Although our Emergency Management Branch was unable to locate Corps documents describing our participation in emergency flood control measures on Deer Creek in 1970-71, San Bemardino County Flood Conuol District (SBCFCD) staff recently provided us a county report entitled "Watershed Burns of 1970, Final Report on Emergency Flood Control Measures Completed March 25, 1971" (Enclosure 3). This report describes 32 emergency flood control projects in San Bernardino County constructed in response to the increased runoff and debris potential as a result of the Meyer, Bear, Reche, and San Timoleo Watershed Burns of 1970. Funding for this work came from the federal Office of Emergency Preparedness ($4.7 million) and from San Bernardino County ($537,908). Project No. 7 was the Deer Creek Reception Levee that was raised 10 to 15 feet along its total length. In addition, three deflector levees, totaling 5200 feet, were constructed. Private contractors under Corps of Engineers direction performed the project construction. The SBCFCD provided fights-of-way, utility relocations, surveys, coordination and assistance in engineering, supe~ision, and inspection. The Corps' Cucamonga Creek project that included the Deer Creek Debris Basin and Channel supplanted the need for these emergency measures. We hope the information provided in response to the issues raised in your letter meets your needs. The Corps reevaluation of the level of flood protection afforded by the Deer Creek Debris Basin presented in our December 16, 1999 letter was an unbiased technical analysis. For further information regarding this response, please iontact Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch at 213-452-3525. Sincerely, District Engineer Enclosures -5- Copies furnished with enclosures: Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office Building Washington, DC 20510-0505 Honorable Diane Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510-0505 Honorable Joseph W. Westphal Assistant Secretax-y of the Army (Civil Works) 108 Army Pentagon Washington, DC 20310-0103 Honorable William Alexander Mayor ofRancho Cucamonga 10500 Civic, Center Drive Kancho Cucamonga, CA 91730 Mr. Ken Miller Director, County of San Bernardino Transportation/Flood Control Department 825 East Third Street San Bemardino, CA 92415-0835 v/Mr. Andrew K. Hartzell HEWITT & McGUIRE, LLP Attorneys at Law 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 Haven View Estates I--[omeowners Association Rancho Cucamoaga V Homeowners Association 2000 we have obtained important new infonteal. ion I{~ =upport ~sr opposition to deve[opatetlt el'Tract 14771 New inK}rrnatitm f~htalned from =7,ports conlirms our 10ngslanding position 'that the Deer Creek Debris Basin is inadequate to hold the water and debris frolit a 1/J(J-yr_~ff sn~m~. We have evidcm;c that its ~ as-b~l.LIt capacity is not z'~ JarBe a.~ earlie~ ~:alcu[a(ions indicate, and lh3( bxcorr~ct calculations have ~cn thc hz~ For preytotEs approvals oFthe prn~ect by vatiotts g0v~mmental carlties. Enclosed please find the G~th)wing documents for your r~v lew; Excerpts era letlet a~td a rcpurt from Douglas Hamihon~ P.E., of Exponent Failure Artabsis. He comiclades 'that the replacement channel design is inadcquate ~c~use h ~i ls to accnun~ for ~e concludes thal the actual capeelW 0f ~hc, Dk~r Creek ~bfis B~in ~ ~ubstantja~ less than ~c 310 A DeclaratiOn by P, ober~ Kirby, thrrncr emptoye~ of'the Army Corps of Engiaee~s, dated April 2000. Mr. Kirby ,.vus the original l-[ydrcdogb,; lulgln¢,e-r tbr the Deer Creek Debl ms Basin Chanzl~:l when it wa.,~ buill. Mr. Kirby leacreed o[ottr problen~ fronl th~ Wall Strcct J'otffaaL I(. is his pcrstlnal be]icFand pro~essionat opinion. that d~c actual debris basin capacity is onl.~ A letter tbrm the {{ydraulic F:n.e, incering Sc~tion of d~c County of Lo~ Angeles l~a,ment of Pubtic Works, dated May 1,2U~. The Section l-lead, ~. Boblender states t[~at the [~=r Crock Debris B~ht would not be abl~ b trap ~e ~s(~ated 292 acre-feet oF ~noff Umat wuuld r~suh from a [0O-y~ar Office of the Chief Hydrology and Hydraulics Branch DEPARTMENT OF THE ARMY July 13, 1999 Ms. Marylinda McKeith 4993 Ginger Court AltaLoma, CA 91737 Dear Ms. McKeith: This letter is in response to your June 14, 1999 letter and your June 19, 1999 facsimile regarding your request for hydrologic and hydraulic information for the Deer Creek Debris Basin and Channel. In your June 19 facsimile, you requested responses to several key questions that you considered the essential points from your June 14 letter. Consequently, we are concentrating our response on the questions put forth in the June 19 facsimile. Question l: "Does )'our certification letter of March 11, 1991 certify that the debris basin holds the SPF debris discharge?" Respons~to Question 1: The referenced Corps of Engineers letter addressed to Mr. Paul Peterson dated March 12, 1991 simply stated that the Deer Creek Debris Basin and Charmel were designed to convey the Standard Project Flood (SPF) which has an estimated recurrence inten'aI of approximately 200 )'cars, as nated it. our Design Mcmcrz~ndum No. No. 6), dated June 1979. The letter did not specifically "certify" that the debris basin holds the SPF :':",is volume. l'.,,,vcvcr d~e 3-hour rainfall value of 3.27 inches used tu basin storage volume with the Taturn Method is the same value as the SPF rainfall total for the watershed tributary to the debris basin. Therefore it can be inferred that the Deer Creek Debris Basin was designed to capture and store the debris produced from the SPF. Question '2: 'lls the Standard Project Storm 3 Hours the 3.13" of the Corps design memorandum or is it the 5.24" or 5.5" the National Weather Service indicates?" Response to Question 2: The Standard Project Storm 3-hour total average precipitation depth for the Cucamonga Creek Debris Basin watershed is 3.13 inches (Plate 14 from the Hydrology Design Memorandum No. 1 Cucamonga Creek). The Standard Project Storm 3-hour total average precipitation depth for the Deer Creek Debris Basin v,'atershed is 3.27 inches (Table III-1 of Cucamonga Creek Flood Control Project, Feature Design Memorandun~ No. 6, Deer Creek, Demens and Hillside Debris Basins and Channels, dated June 1979.- We are not sure what the NationaI Weather Service values cited r'epresent. Question 3: "Is the maximum POSSIBLE 100 Year intake tower discharge 116 Q or is it more (375 Q from T-15 or the 430 Q of the early design notes)?" Resg~onse to Question 3: The intake tower xvith an un-gated 36~inch-diameter encased reinforced- concrete pipe passing under the debris basin was designed to drain flood water that collects or pools within the basin after the storm event. As part of the main drain pipe to the intake tower, additional gored drain pipes were installed to selectively divert this pool of water to separate spreading grounds located outside the flood control channel for g[ound~vater recharge. There is no recurrence frequency associated with the debris basin pool drain. The exact design discharge for the debris basin pool drain was not noted (n the design memorandums because its capacity does not affect the level offtood protection afforded by the debris basin. The Deer Creek Debris Basin spillway is designed to convey all discharges up to and including the Probable Maximum Flood discharge of 15,000 cubic feet per second. Question 4: "Is the Corps certifying that post bum conditions in the watershed present no risk and were thus eliminated from calculations?" Resnonse to Question 4: The Cucamonga Creek project including Deer Creek Debris Basin were designed .to specific standards, Standard Project Flood and Taturn Debris Method, respectively. There is a possibility that a combination flood event v,ith watershed bum event that is more severe than these design standards could occur. This is referred to as residual risk.' However the project as constructed affords a very high level of flood protection that would only be exceeded un r&-c occasions. The debris basin design volume xvas k,¢~,;d on a Los Angeles Li,.,i,~t geoiog~st's evaluatim, debris production potential, and the accevted nrocedure bv Taturn entitled "A Nexv Method of Estimating Debris-Storage Requirements for Debris Basins", dat. ed J~n::ary 28 - February 1, 1963. This method estimates the debris volume based on a major storm, with ground conditions conducive to runoff, occurring 4 to 5 years after 100 percent of the drainage area burned. The Deer Creek Debris Basin design volume of 310 acre-feet was based on this method. Besides the direct questions that ',','ere asked in your June 21, 1999 facsimile transmittal, several oth,:r issues were discussed in the text of both of your correspondences. As we are unclear on what the other issues are that you would like us to address, we will defer responding further until v,'e receive clarification. 3 We hope the information provided will help resolve the issues gnd concerns of the community protected by flood control facilities downstream of Deer Creek Debris Basin. Questions may be directed to Mr. Joseph B. Evelyn, Chief.. Hydrology and Hydraulics Branch, at 213-452-3525. Sincerely, Mr, Keyin G. Ennis Ass(slant City Attorney C~/of Ranting Cucamonga 38 Fla~, 333 South Hope S~reet Los Angeles. California 90071-1469 RECPtVED KGE Dear Mr. Ennis: . ' Thank you for your letter of November 23, 1999, regarding the Deer Creek facilities in San Bemardino County. Cal~orrda. You have asked that we provide our opinion regarding the November 2, 1999, letter, signed by Colonel john P. Carroll, District Commander of the Los Angeles gistdcL U. S. Army Corps of Engineers. The staff in CorFs Headquarters has held e~ensive ,disCuSsions With Colonel Carroll and members of his s~.aff, as well as merebern of the staff at the South Pacific Division in San Francisco. We am aware that, in addition to the November 2. 1999, le~r, the Los Angeles DiStrict hascompleted an additional '. analysis of information p~'ovided them by Mr. Dean Dunlavey during a meeting on November 4.1999. In Sen Francisco. A copy of the District response to Mr, Dunlavey dated December 16, 1999, is encjosed for your information. As e resutt of our discussions, we are confident 'chat the LOS Angeles District has made e thorough and proper enatys~s of the issues surrounding the Deer Creek receFEon levee, and the Cucamonga Creek Flood Con~'oi Projet'l, as outlined in the December 16, 1999. {otter. · Thank you for your interest in this matter. -Sincerely, Thomas F. Cover, Jr., P.E. Chief, programs Management Division Office afthe Deputy Co,remanding General for Civil Works Quality Control Plan for Review of Debris Production and Level-of-Protection Deer Creek Debris Basin Cucamonga Creek Project, San Bemardino County, California Hydrology and Hydraulics Section, Los Angeles District, Corps of Engineers 29 November 1999 1. References. a. CESPD Regulation 1110-1-8, Quality Management Plan, 14 December 1998. b. CESpLDraft Office Memorandum ll05-1-2, Quality Management Plan, Appendix D (Engineering Division), 18 October 1999. Objective. The objective of this Quality Control Plan is to describe the process for producing a technically sound hydrologic study fg.r the Deer Creek investigation that is consistent ~vith Corps of Engineers guidance an~t standard engineering practice. Background. A controversy between a developer and local residents has arisen regarding the level-of-protection provided by the Deer Creek Debris Basin and Ch~.nnel components of the Corps of Engineers' Cucamonga Creek Project. In response to a request by attorneys for concemed local residents, the Corps agreed to review the adequacy of the original debris yield design volume for the Deer Creek Debris Basin, as well as the level-of-protection pro{,ided by the debris basin and downstream channel. Description of Work Effort. The original debris yield computation was performed using the procedures in the report entitled "A New Method of Estimating Debris- Storage Requirements for Debris Basins" dated January-February 1963 by Fred E. Tatum. The technical work for this evaluation is a straightforward application of the updated procedure for debris yield computations in the Corps of Engineers' report entitled "Los Angeles District Method for Prediction of Debris Yield" dated February 1992. Development ofa discharge frequenoy relationship for Deer Creek is an integral step in the debris yield computation. Therefore assessment of the level-of- protection provided by the Deer Creek Channel was accomplished using the results of one of the internal steps in the debris yield computation. A report summarizing the technical work and results was prepared. Staff Assigned to Perform and Review the Analysis. The work was performed by a technically competent hydraulic engineer within Hydrology and Hydraulics Section. Mr. Kerry Casey, a hydraulic engineer with 15 years of experience in hydrologic engineering, conducted the analysis. Of note is the fact that Mr. Casey was also one of the co-authors of the 1992 updated debris yield procedure thereby making him very well qualified to apply the 1992 debris yield procedure. The independent technical review was accomplished by Mr. Joseph B. Evelyn, Chief of the Hydrology and Hydraulics Branch. Mr. Evelyn has 31 years of experience;in conducting and managing hydrologic, hydraulic, sediment transport, and water cpntrol engineering investigations. Mr. Evelyn is also familiar with the Cucamonga Creek project from participation in the design and construction phases of the project. Both Mr. Casey and Mr. Evelyn have experience in the application of both the Tatum Method and the updated 1992 debris yield procedures. 6. Scope of Review. A seamless review of the work described herein was accomplished that included verification of assumptions, procedures, and data used in analyses, as well as spot checking computations. The reasonableness of results was evaluated by comparison with other procedures and with enveloping curves of observed events. 7. Review Documentation. A quality control certification will be prepared and filed to satisfy Engineering Division regulations regarding quality control procedures. 8. This Quality Control Plan was prepared by Mr. Joseph B. Evelyn (CESPL-ED-H) on 29 November 1999. CHIEF OF ENGINEERING DIVISION QUALITY CONTROL CERTIFICATION COMPLETION OF QUALITY CONTROL ACTIVITIES Engineering Division has completed the Review of Debris Production and Level-of-Protection of the Deer Creek Debris Basin, Cucamonga Creek Project, San Bemardino County, California. Certification is hereby given that all quality control activities defined in the Quality Control Plan dated 29 November 1999, appropriate to the level of risk and complexity inherent in the product have been completed. A seamless review of the work conducted in the course of the reevaluation was performed. GENERAL FINDINGS Compliance with clearly established policy principles an~} procedures, utilizing clearly justified and valid assumptions, has been verified. This includes assumptions; methods, procedures and materials used in analyses; alternatives evaluated; the appropriateness of data used and level of data obtained; and the reasonableness of the results, including whether the product meets the customer's-needs consistent with Ia~v and existing Corps policy. The underslgned recommends certification of the quality control process for this product. ~xj Joseph B. Evelyn, P.E. Chief, Hydrology and Hydraulics Branch iz- (Date) QUALITY CONTROL CERTIFICATION As noted above, all issues and concerns resulting from technical review of the product have been resolved. Transmittal of letters providing the results of the reevaluation findings to higher authority and the public may proceed. As the issues addressed in the reevaluation report are technical in nature, a certification of legal review is not required. (Date) 03/29,/00 14:0~ FAX -b3/28)bo ~o:00 ,-. IO,,,pW36g?~ml~ 06-11AR2060 · + SAN B~tRDINO [~002 ~oo3 Honorable Bad;am Beer UnWed r=~;=~ Senale - Washingbin, D.. C- 20510 As you knaw, afterthe los Angeles District completed a pmfwnlna~y rev~w of ~e levee and debfie basin, qdes~m; vNhm raised about fie crYerie' upon which the review was based. ] helpel affelga a meeUng In ~ ' Francisco on November4, 19~9, !m~ ~ ofthe Corps Sou~ ~ DMskm emJ I.=s An~sles Disbid, ~ the Ombp mpreeerttlng those in Rand,o CuesmoW who a~e opposed W the develope'e p~n to reindye the leme, and who am also concerned eb~ut the tevd d p, ~on .provided by the On Deembet 8, t999, my staff met wbh representatives ~oup. md we agreed that Nrther ~wEm needec[ to eddm t~lr concerns, a~l to 6~ghly acldmss Um n,j~Hal they pm~.e~l t~ ~he Corps at the earlier meeting. The Gocp~ condu~d thee ~ Ihe results of which . are do~umon~d [n ffte Newamber29, 1999 repozt enffiJed 'Reviewof Debris Be~n I;~educ~on end Level gfPmk~lo~, Deer Cemlc Debds Bash.' on December 15. 199~;Ule ColTs briefed me oa lheTesub oFthissefurther stutes, and I understand that on December t6, 1999, ~e Los Angeles Dis~c~ .C~,atde prowled a ~ of thst report to Mr. Dean. O. DunlavL=y, who ~ ds 'the* group to the development. pswldee-a btomge vohane ht woukl aceeminent, en t t 1-yeer debd~ y~d a,x~n.,eodate ebout e 600-yeew ftood event. In conc!Lfctln9 ~ furlher areconfidentthatthepm]ectcordinuestbpmvidebecommun~with high : Z00[~ ItDX=OI~ru 'V1 ~.. kla/os / . T0~ 9S6 ST~ XT~ 8;:~T 00/~0/G0 03/29/00 14:04 FA~ __..q,~/~:s,/oo 20:00 w ~003 ~004 I undwmtmnd that Ioeel intmwW are ~ conosmed .about the wrnoyal ~fths nar~redeml Deer Cmek Retwteo~ Levee. issmm mled~d to the refnovwl ofthi-levee ere m.im:i msl~n~slbilily. I~verlheis~, let the relter~e.that the Co, ps pmjee conffimde to provide the community with a high ~ of pratectJaa'~ even-Wthis levee is removed, IhopethstyoufmdthTsMfonnedonuse~L !flaanbeofmsy'rudher ass~nae,.plmse do"m:;t heslase lo conU~ me. "b SeamtaW 'of 'the Army . (CkU irks) I am ennmt ffnT-DT"I~T~rT V'[ ,' ~I,ILI, UG YlEl'lt~fd'.' T(~Z,9 ~;II6 ST9 ']L"Y,T 9E:,/,,T OO//.O/eO Jul-O5-O0 Ol:20P Zephyr Partners LLC 949 752-0667 DEPARTMENT OF THE ARMY ...l'une 20,. 2000 P,o3 Office of the Chief Hydrology and Hydraulics Branch Honorable Barbara Boxer United States Senate Washington, DC 20510-0505 Dear Senator Boxer: A May 31, 2000 letter from Mr. Eric J. Vizcaine, your Director of Constituent Services, requested review and comment on a JanUary 17, 2000 letter from Mr. Robert J. Cristiano, one of your constituents. Thank you fort he opportunity to provide information regarding Mr. Cristiano's letter concerning Deer Creek Reception Levee located in Rancho Cucamonga, San Bernardino county, California. Mr. Vizcaine's letter states that Mr. Cristiano's concern was "a difficulty he incurred with the United States Army Corps of Engineers." In reading Mr. Cristiano's letter; however, his concern appears to be his disagreement with the need for additional technical studies of ~he level of flood protection afforded by the Deer Creek Debris Basin and Channel given that the Corps of Engineers maintains that the project provides greater than 100-year flood protection. Your letters of November 3, 1999, November 16, 1999 and January 19, 2000 to Dr. Joseph W. Westphal, Assistant Secretary of Army for Civil Works, requested additional Corps of Engineers evaluation of flood protection measures on Deer Creek including the Deer Creek Debris Basin. In your letter of January 19, 2000 to Mr. James Lee Witt, Director of the Federal Emergency Management Agency (FEFA), both you and Senator Feinstein formally requested FEMA to conduct an independent study of Deer Creek. FEMA responded in their letter of February 16, 2000 (Enclosure 1) that they would not conduct an independen~ engineering study of Deer Creek, and will continue to rely on the determination of the Corps of Engineers with respect to certification that the project affords Base Flood (1-percent annual chance or 100-year) protection. Subsequent FEMA letters dated May 30, 2000 to the Corps of Engineers and San Bernardino County (Enclosures 2 and 3, respectively) again reaffirm FEMA'S decision and policy to accept Corps of Engineers certification of flood control projects. ~]-OS--O0 O}:~OP ZGph~r p~'i~t. ne~s LLC 949 75~-0667 P.04 --2-- Mr. Cristiano questions whether the conduct of an additional safety study at public expense is a "prudent use of taxpayers dollars." Me asks that you consider the opinion of the Corps of Engineers in deciding whether to recommend additional studies Of the level of protection provided by Deer Creek Debris Basin and Channel. The Corps Of Engineers planned, designed, and constructed the Deer Creek Debris Basin and Channel as part of the Cucamonga Creek Flood Control Project, which was then transferred to San Barnardino County Flood Control District (SBCFCD) for operation and ma'intenance. Construction of the project was completed in 1984 and it has performed flawlessly in preventing downstream floo~ damages since that time. The Deer Creek Reception Levee was a SBCFCD flood control levee constructed prior to the completion of the Corps project, and is no longer needed to provide lO0-year flood protection alon~ Deer Creek. The eastern portion of Deer Creek Reception Levee is now located on privately-owned land that was surplused by SBCFCD after completion of the corps project. Corps of Engineers letters of November 2r 1999, December 16, 1999, and January 12# 2000 (Enclosures 4, 5, and 6, respectively), referred to by Mr. Cristiano, reaffirmed the Corps' position that Deer Creek Debris Basin and Channel provides greater than 100-year flood protection. Dr. Westphal's letter to you dated March 6, 2000 (Enclosure 7) also expressed confidence that the Deer Creek project continues to provide the community with a high level of flood protection. Opponents of the I~turen Development, which would remove the eastern portion of the Deer Creek Reception Levee in constructing 40 homes on about 25 acres, continue to question the capability of the Deer Creek Debris Basin and channel to provide 100-year flood protection. They are adamant in their position that the Deer Creek Reception Levee is necessary to supplement the flood protection provided by Deer Creek Debris Basin and Channel. To support their position they recently hired the firm Of Exponent Inc. that produced a report, which concludes the Deer Creek Debris Basin is under sized and incapable of capturing ~he estimated 100-year debris yield from the watershed. The Los Aageles District Corps of Engineers is currently evaluating this report and will provide you a copy of our findings when completed. However, it is not necessary to wait for completion of our evaluation of the Exponent Inc. report to address Mr. Cristiano's question regarding the need for an additional independent technical safety study. The deficiencies cited in the Exponent Jul-05-O0 Ol:20P Zephyr partn~r~ LLC 949 752-0667 P.05 -3- Inc. report, if valid, are readily corrected through simple excavation of additional sediment from the existing debris basin. The funding that would be expended on an additional study would be better spent on removal of additional sediment so as to enhance the flood control capability of the existing debris basin. Members of my staff met with Mr. Cristiano and his attorney, Mr. Andrew Martzell, along with representatives of the City of Rancho Cucamonga and SBCFCD on January 12, 2000 to provide information related to the design and level of flood protection provided by Deer Creek Debris Basin and Channel. We will continue to coordinate with Mr. Cristiano and representatives of the local community as appropriate regarding flood control issues on Deer creek. If you need additional information or further assistance regarding Deer Creek flood control issues please feel free to contact me at 213-452-3961. For technical issues your staff may wish to contact Mr. Richard Leifield, Acting Chief of Engineering Division, at 213-452-3629, or Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, at 213-452-3525. A copy of this letter is being furnished to your local office. Sincerely, P. Carroll colonel, Corps of Engineers District Engineer Enclosures Copy furnished: ,.'Local Address - San Erancisco ~=~b-18-O0 O7:45A Zephyr Partners LLC 949 752-O667 Federal Emergency Management Agency WashkzK~n, D.C. 20~72 FEB ~ 6 2000 P o 02 The Z-Ianor~ble Dissac Feinstedn U.rdw. d ~;tzf~s Setate Wa~hlng~ar~ DC 20S 1G.OS0~ Dear Se.aator Fe~a,s'tein: TMs ie in response to your least 4~ted l~ary 19, 2000. to ~e F~ ~S~cy B~d~o ~unW. ~fo~ You ~d ~ ~ ~ ~ barn using ~lI da~ d~ine wh~ f~ie~ d0.~p8 ~ 1~ wo~d ~ s~e ~t~ I~ pmt~ ~om ~e b~ (1-p~t~~) ~ood You ~n~n~ ~ ~ ~n~qu~s ~e~inai~ the ~ p~l~ if the a~ or~e buln ~ In quufio~ You ~u~ ~ ~ ~4u~ ~ ~,a~on of elimi~atc ~y ~ ~out ~ ac~7 ~ t~l.co~I~~ ~ch~ ~ dn. 7~ U~cd Stat~ ~Y-~ps o~in~ ~SA~) ~ c~ed ~ De~ ~eek D~s in ~eir r~ dried %~ of~s ~du~ De~ ~ De~I 9ui~". it in ~ F~od ~ ~e ~p ~, ud ~, ,st ~ ~y upon ~ ce~fic~an of ~e D~ ~ ~dz B~ · :~b-lS-o0 07:45A Zephyr Partners LLC 949 752-0667 P,03 Feder~ Emergency _lv:=_nage__~en~- ','aslt:_'~.~zc=, D.C. 2C~72 Mi~GATiON D~CTQK~ TEC~C-~ SER~CES Di~SiON Mj2PNG SUPPORT B~NCH !~2,&~ 'STUDY BKQNCH S~ NSER: (202) PLEASS V~S~T OUR ~TIGA~ON ~s ~Acz ,~o ~ERZ'S HOW: Our J~=~orjd *Wi~= W=b A~dr~s ~ h~:If~.FEMA.GOV PHONE OF OFF[ CE: · FHON=i~: r February 10, 2000 Revised March 9, 2000 Review of Debris Production and Level-of-Protection Deer Creek Debris Basha Prepared by the Los Angeles D/strict, U.S. Amy Corps of Engineers November 29, 1999 Preliminary tssessment by fie Federal Emer~enc, t Man~ement A~encv Bact~oraund The Los Angeles District, U.S. Army Corps of Engineers (USACE), reanaty-zed the Deer Creek Debris BL~in near Rancho O,c,,~monga in San Bemardlno County, California (San Gabriel Mountalnq) to deterrnqne if the basin could contain the 100-year debris flow. The appromzh ~ to ftrst define a discharge-frequency cu.we at Day Creek (station 11067000), a 4.56-square-mile gaged watershed adjacent to Deer Cmek~hat has sknilar watershed chaxaeteristics (drainage area, mean basin elevation, slope, forest coves, etc.). The flood disehm'ges per square mile for Day Creek were n'ansferr~ to the augaged Dc~r Creek watershed with a drainage area of 3.71 squaze miies. Flood dis:.harges per square mile (Q) and a fun frequency factor ffF) wee used ~ input to a re~ression equation lo estimate fie debris yield CDy) for a combination of discharge and l}equzn. cies. The regression equation is Log 137 = 0.85 CLog Q) + 0.53 CLog RID,) + 0.04 ('Lag A) + 0.22 CFF) where Dy is the debris yield in cubic yz_,x/s per .square mile, RR is the milef ratio in feet per mile, and A is the d.ra. inage area in acres. Using the discbzrge frequency and ~.~ f-~equen~' curves and the above regression equation, a ~,bris yield fi~_utmcy curve was deve.lcrped. TaG conclusion of the USAGE ent!ysis w'~ that the basin pm~dd-,~d 1 t l-ye, ar_p~te&i0ii (l O0-year debris . _yic!d is 292 acre feet, t~.sin capazity is 310 at/re iX). ' - ' -' Evaluation Approach The USACE dischzrge-frequency c',,rce ?or Deer Creek wa~ ovalnoted by comparison to: upthted fi'~quency curves for 13 gaging stazions in the vicinity of the Deer Creek Debris Busin, flood discb. argcs from the U.S. Geological Survey CUSGS) regression equations CUSGS WRI 77- 21), and to cffccdve discharges for strcmTzs in the vicinity of the Deer Creek w~ttershed. Several rifle-rent frequency =urves were estimamd for Day Creek using differant dam asiumptions. Based on frequency an~ysis at Day Creek, USAGE ctmctuded Illat Ihe lO0-yetr or base flood discharge far Deer Cm",.k was 2,770 cubic f~-~t per second (cfs) or 746 c'Ys per square mile. ~on~l a~.Fvsis Base flood disctmrges for the 13 gtging stations am given in Tablc 1. These di~htrges include es,im~tes sEtore the USGS regression eq,,~ions CLIS GS regression), gaged dam used by the USGS in the 1977 regional analysis CUSGS g~gc d~q~) md upd~,~d gage data b~ed on Bulletin 17B. 0fthc 13 gagjug stations, six ~rc still ~vc. Frequency a.u'ves were up&te~l thxough 1998 for the active stations. As can be noted in Teble 1, the record length is greater than 50 years for many of thg gaging gutions in 'this region. Also sho,~,m in Table 1 ~ the dmin~e exea ~md mean aunual precipitation which m the expl~,~to~y variables in the USGS regression eqtmiions C~ISGS WPd 77-21 ). The US GS regression csIirn~ for D=r Creek is also show~ in Table 1. Table 1. SuJmxm~ of base flood discharges at gaging stmions in fie vic;.~ty of the Deer Creek Debris BasL~, Sm~ BcmardLno County, C.~lifomla. Site Number Station Drainage Number ~r~ (mi2) 11054000 11055300 11055500 11055800 11058500 11058600 11062000 1}063000 11663500 11053680 11067000 11073000 11073470 616 618 619 620 623 624 626 627 629 630 637 638 Deer Croek 42.4 · 16.9 19.6 8.8 4.65 46.3 , - -~0,6 :..: 15.I 5.61 4.56 16.5 9.68 ~nnu~l USGS Precip regr-'~;on (inches) (of s) 30 25,300 32 2.010 30 11,800 30 '13,300 27 ~ 5,630 35 I · 5,390 33 32,500 I9 10,400 19 4,576 26 3,610 35 5.300 34 14,600 35 9,900 3.71 35 4,470 USGS Updated gage data g~ge dam (of s) (of s) 37,600 29,900 2,170 ~000 9240 6,950 8,040 8,380 4,000 5,120 1,860 2,170 27,000 27,100 19300 23,900 ' 4,240 3,490 3,490 3,280 5,040 3,400 11,200 14300 8,130 8,000 ' Record extended m 78 years using dsm aI IX'vii CSm qreek ne~z Stn Be.m~xdluo (11063680) Yem of record 54 13 80 79 73 62 63 58 68 77 45 (78) 55 47 2 EOO'd BE?Og dd-Sd-ZX,r~_~_: ~0.'_C9.~9~0Z aO:OZ O00Z,SO':?fi-~ In their November 29, 1999 ~u~tySis, USAGE used 45 years (192g-72) of ~nn'a.al peak ~m at Day Cr~k ~ d~ng a ~equ~ ~c at De~ C~ek ~clud~g fie J~ 1 ~69 fl~d ofn~rd of 9,450 c~ic fe~ ~ ~nd (ci). According 1o ~e USGS in ~to, C~lifo~ ~ Mey~, ~ co~o~ Feb~ 1, 2000), ~ ~ ~ge ~ mo~ ~ly a dcb~ flow ~ ~ ~ ~i~dy ov~ ~e USGS h~q ~y ~it~ ~e J~ 1 ~9 ~ ~o~ at Cu~monga C~ n~ Up~d (110~470) ~d L~e C~k n~ Fonm (11062000) ~ may ~ ~e 9,450 ~ for Day C~k (11067000). In hi~ Mmomdm No. 1 ~d J~ 5, 1~3, ~e USA~ ~owl~g~ ~t ~e M~ch 1938 ~ J~ 1969 ~ ~o~ at Cu~onga C~ n~ Up~d (11073470) incl~ed deb~s flows. Day Cr~k frequency curves Tne~ m-e scv~a-al gaghag smt/ons in Table 1 ~at ~ve much tonga ~rd ~ Day Cr~k (11067000). Since ~e 1969 ~ diverge ~t Day C~k is in qu~on ~ ~ ~ Other lO~-~ S~OW ~co~ in ~e ~o~ te n~ ~ flow ~ ~ Day Creek w~ ~ded on ~e b~s of ~e ~nt ~m ~q~ D~ C~ C~k n~ Su B~o (~on 11063680). De~l ~ ~'(5A9 ~ ~ks) is ~m ~c ~c s~ ~ ~ C~ ~ h~s ~ flow dam for ~ ~od 1~98. ~e ~ flow for ~s ~on for ~e J~ 1969 flood is not ~y l~e ~ my not ~ ~fly effec~ by ~s. ~c co~la~on ~ffi~t ~ conc~t ~nn~ ~ ~o~ for 43 ye~ of~rd f~ Day Cm~ ~d D~i C~ C~k is 0.89. P~ ~o~ for 1~0-27 ~d 1973-98 w~ m~d for ~y C~k on ~e b~ of~m at ~1 C~ C~k ig ~e M~nt~ ~f V~ce E~ ion ~O~. 1 ) precede. 'Fne 78 years of as'drooled ~nd observed record for Day Crock wcr~ analyzed using Bullelin 17B guidelines. Frequency cmwcs wc'-re a/so =omp~ed for Day Creek using the acraai 45 years of record (inclnding 9,450 cf_S for 1969), by omitting the 1969 peak flow, and by estimating just the 1969 peak flow from data at Devil Cya Creek. The fo~ fi'equt-ncy curves and the USAGE frequency curve ~re summarized below in Table 2. -Tn~ ~giorizl slccW fi-om Bulleiin:.17B iS--0,013. The weighted skew in Table 2 is a ' canbln~lon of the riglonal'and iralion skew foll?v,ing Bullcan 17B guidelines. The base flood discharges were given sp~ial etrx:ntion b=cat~se this is the regulalory flood m~:~ed by FEMA. The base flood dischangs vary depending on the assumptions. The base flood dL~-h~ges using a peak flow of 9,450 cfs for Lh= 1969 flood ~ high be~'~-se Ibis flow may be overestimated due to significant debris flow. USAGE analysis used a peak flow of 9,450 ds and adopted a mgionsl skew of-0.20 as the f,zm.1 skew. The skew ~ in Bulletin 17B indicates about .~ro skew for the Deer Cr~k v,-atcnhed and the US GS used a region~l zero skew for stations in the South Coast t~gion wh~n developing the Tegrc_saion equaliO.Ik3 in USGS ~ 77-21. Using the re,anal skew of-0.20, USACE cstinmmd a base flood di_-:rh~rge for Day Cmtk 0f3,400 ci. The USACE value is the same as the base flood djsch,?.xgc 5escd on the cxtL'ndcd r"J~ord of 78 yea5 Crable 2). Table 2. Summary of base flood discharges for D'a_y Creek n~-ar E~iwanda (11067000) using different dz~a as~sumptions. Years of Analysis approach t 0~-yc~r cccord flood (cfs) 45 1969 flood cqtmls 6,660 9450 cfs 44 C~ 1969 llc~Xi 3,620 f~m a~tysis 45 1969fio~deq~Js ~ 5,4]0 4900 cfs 78 ~-'~-adr, d ~zord ~ 3,400 from MOVe. ! USGS RegioraI 5,300 Regx~ssion equations Effective Un~ hydrograph I 4,300 dischaxge analysis Standard I S~.tion d~vi~on (log skew tmits) 0.6263 0.v00 0.5688 0.401 0.6088 0.543 05 164 0. 197 0.6263 0.700 Weighted Standard error skew 0.443 03 12 log units +105%, -51% 0.266 .271 log units +g7~/~, -46% 0354 305 log units '+102%, -51Y',4 0.154 .171 log units -020 '~77 log units +67%, -- 39 log units -- Unknown The sr~,~,,~rd error of the base flood dlseharge is g~ven in Table 2 to unders'amd the tmeertednW mimed with each estimate. For the BuJlctin 170 ,n.lyses, the f-.andard t:aTor i~ computed using the ycv. rs of record, the smndm-d deviation of the an~,~ml peak disrh~rEes a~d the weighted skew coefficient (~..11 values given in Table 2). The standard error for the USACE es~rna~e is .ern~ller ~ the em::imate ~'~ the f~rst lhae because of the '~o. ifi~'mce in weighw. d or adopzed skew. For 'fne Bu/lein 170 analysis based on the ~L.,'-ncied ,-,',,cord, 78 yems of record were assumcd. bu~, keep. in raind, we do not b. ve 78 years of z...mml record. Since the MOVE. 1 technique maintaks the variance of the -esd.~,n-,4 ~nnual peak d~Sch,~g~ :We assumed ~n equivalent record of 78 ye~. :,.~.: _.' -.- -'- ..-. . '-~' .'. Gmphical compzzison The upd-,-A gaghag station dzta, eff~tive disfharges, ~osed ~c~es ~H USGS re__on ~m~gs ~m Table 1 ~ ~o~ ~ Hg~ 1. ~e b~ ~oM ~e of 3,400 ~ for ~y C~k (4.56 ~ae ~1~) is ~ ~ a ~ ~ Hgwe 1 ~d is fie ~e ~ue ~ ~m~M by USACE in ~k ~ys~ ~=n ~agle). ~e ve~ ~ ~o~d ~e + si~ ~p~t +/- one sm~d c~m (~8%, -33% ~ ~v~ in Table 2). ~e USGS ~ion ~ 0f4,470 cfs for ~ Crek (3.71 ~ m~) is sho~ ~ a bl~ di~ond ~ Fi~ 1. ~e v~ l~e eH~ ~d ~m ~e e~ ~B -59% sm~d ~r. ~e ~d ~or of ~e USGS ~on ~do~ for ~e So~ C~ ~on ~SGS W~ 77-21) is 0.39 log ~ (+t45%, - 5~). ~e USACE ~e of 2,770 c5 for D~ ~ is ~n one m~d emr of ~e USGS m~on ~m~e. Conclusion The ~ flood discharge of 3,400 ds for Day Cr~k zesul~ L~ 746 cfs ~r ~is ~t ~ge ~ ~f~ Io ~ 3.71~-~Ie ~ Cr~k ~t~ed o~ a ~e flood dk~b~ge of 2,770 ds. ~e USACE ~jm~te of 2,~0 c~ for Cz~ is ~ one m~ ~r of~c USGS ~ion ~te. ~ ~o~ ~ Fi~ 1, ~c USACE ~ of ~ ~ flood ~e ~ ~mi~t ~ ~c cffc~vc · sc~ ~d ~g ~on ~-~ h ~e ~z~ of~ Creek. Be. seal on our zaalysls, we conclude ~ the USACE base flood estimate amt d~sch~rge- frequen.cy curve used 1o estin~afe the debris yield at Iker Cr~k is reasonable. lOOO00 Base flood discharges in San Bernardino County, CA 1000 I, I &USGS WRI 77-2~ m Go~{ud data 10 Drainage area, square miles · Proposed USACE x Etfedlvo discharges +Day c;mek gaged data 100 IDeergrrBgr ] DIANNE FEINSTEIN CALIFORNIA WASHINGTON, DC 20510-0504 COMMITTEE ON APPROPRIATIONS COMMITFEE ON THE JUDICIARY COMMITFEE ON RULES AND ADMINISTRATION June 27,2000 Mr. Andrew K. Hartzell Hewin & McGuire, LLP Attorneys At Law 19900 MacArthur Boulevard, Suite 1050 Irvine, Califomia 92612 Dear Mr. Hartzell: This is in response to your letter regarding the Deer Creek Basin in Rancho Cucamonga. Please be assured that neither Senator Feinstein nor any member of her California staff have taken a position on the merits or demerits of the proposed development. This matter is being treated as a constituent request for assistance with a federal agency. As you are well aware, Ms. McKeith and the other residents adjacent to the Deer Creek area have raised concerns about the Army Corps debris basin flood capacity studies and the Federal Emergency Management Agency's reliance on those reports. This office, along ~vith other Congressional offices, has asked the departments to insure that the residents' concerns are answered. Thank you for contacting our office. Should you have any questions, do not hesitate to call me at 415/536-6868. With warmest personal regards. Sincerely yours, James L. Lazarus State Director FRESNO OFFICE: 113o O STREET LOS ANGELES OFFICE: SAN DIEGO OFFICE: SU~EI03O SAN D~EGO, CA 92101 (619~ 231-9712 SAN FRANCISCO OFFICE: 'PORTATION/FLOOD:.:CONTROL .. IIIIIII azs Ea.~ 'rh!rd street · San Ilem~rdlee, CA· 9241'5,0835 '/.· (ggg} ~a7-2600 ' · .':.. . .:.. 'ii';. ;"' May 9, 00Q' ".' ': ';:: .'; · :...: ..! : :.. : · Mallsea HathewayMCKeith "': -: Loeb and Lo~b; LLP'" ' '" ! ~" i · ' 1000 Wi!shire Boulevard, Sute.1806' !: i: Los Angeles ~CA 90017 2475 ' = · '- :: .' , , FIle; 1-50111,0( COUNTY 0F SAN BEttNARDIN0 'lLe0N0ldlC 0E1ELQPMENT AIID'~UIIUI; ~ER¥11;E8 GROUP '. ,KEN A; MILLER · .RE: DEER CREEK CHANNEL; C~E :.' (TRACT"I4771) REPLACEMENT CH,~NNEL ." This lett~;r is in mspc~nse :i0 'you~ faXis ~i~ted:'Aprll 18,. 20 and i24i 200'0; and e'latter from Mr, 'D0Ug Hamilton, .of'.Expon~nf,~ datG~::Aprl] 12, 2000. The' lettersand faXes were in reference to the: permlttlrig' actlvitle~ cfitrently 'being conduct;Gd ! by~ the -san Bemardino County' !Flood cont~ D strict: f~r thi9 'subject project ' The ",perml~t~e; · Lai'ifen. Develop~entj is prop0si~g to':con~tm~t:,a. drainage channei to protect thel~"proposed · : , ... houSing'Elevelopment; located;' norft', of~ the ~Xisti~g Haven V~ew Estates ho:mes in' 'the. '..: . · north en~l of the City of Ranthal :CU~a~nge The proposed: cl~anh~l wou(d connect to '. - the Dist~ict's 'Deer Creek*Channel,- C/E, 'and. requires a permit from ~the DistriCt for 'the · . CoRnectio'R. ' "' :~: '. · ' ' ~ ' On April 4, you met with Ken Eke" KeH'Gu[dty.and myself rep'resentlng'th~'District'enal'. Rex Hinesleyi from oQ~ Count~ 'CoUnsel !'office; '.t~ discuss this projerj~L At the:meeting '.you reqdested that 'the-District'delay '~dbmtttlng the permit ;: hackage to. the 'Corps .. Engineers for their review'to alk~W!y~u/iri~d your consultant the .o~port~nlty to 'review and comment cn tjqe replSCk~ment:char~n~l'h3tdrology., .We agreed :to this rGquest end delayed ...... : transml~l to the Coi-ps unt Apri i~3, 2000 .' - have attached 'a; cc~p~/of the transmittel. On projects reqUiring Corps apbre~ta, I i~i~'-the Dist~ct's policy.to CondUct internal reviews:.' - · before the package' is :sent to ~he CGrps;!.The purpose of {hei internai-reviews, inclU~ihg" coordinating items .with the. pe.rmltte~ iS }to: ensu(e that a 'DiStrict concerns 'have .been · addresse:d, Thls 'process 'can tak~ numerous.submittals from th~ permittee. The · package: IS sent to' the Co'rpS after the D. istrict is. satisfied that ~ "its comments ·have been' add.ressed. At that timej the 'District's:' rifle is t~j coordinate-the COrpS' review of the' · perrnitte(~'s request. "The 'District. dees:.not rev ew the .ade~lUacy of -'the permlttee'8 ' responses to Corps! comments eXcept!When 'Such review 'is ~qUested ~y'the 3ermlttee: F 'MALISSA HATHAWAY MCKEITH, :; ":' i: May lg,~2000 :.: · : · :'" '.i' .. ~; .. ..... : In this project, It apl~eara: that*'the ~te~t~submlttal from :the p~rr~lttee's ¢ons~l~nt, MDS' 'Consultl~ig, 'addressing the Corps' I~r~vieus '6ornments Contains an Inc~nsist~nay between. 'the proposed iimpmvenii~ntS-!.and ..the-hydraulic: c~lculations.. When' we . contaCted the cOnsUltant to inquire"iab0U~ the;Inconsistency, iwe, ere Infoj'med tha~ :. plans· and hydraulic dalcUlatloris, had b~n revised due to dght-0f-Way constraird;s and .to.' address = Co~ps' comments. , .'The ~,onSiJItant :a so nformed= .uS. that:they Sent us an incorre~ 'package d !nfoh~atlor~ That;;l~icorrect!package* s what W~is sent tO the COrps and what was provided to you!*at :oUr nie~tlng on .April 4; · I would like to emphasize that the DistriCtdid not provide you 0rM~,' Hamilton.with the p aria 'd~,ited!Maroh.20~ 2000,.that · Mr, Harrillton;referenced. In his iette:r a:h~l was' nOt 'aware' of' the plan reviSIons until we. contactei, I the consultant.: W~ :h:aVe Liraquested that. the consultant. provide us wt{fl . updated ~planjs that correspond with the !hydraulic' calculationS, !and 'we. will 'sUbmit *thiS. revised Information to the 'Corps ~or their review. 'We will not be'withdraWing the pad<age =that we Submitted to =the Corps. 'This n~W information may cause) t~e COrps' review time to increase arid deiay further permit prd~sSin'g. ::.. : Mr. Hamlltor~% .letteF :goes' into: gre~t .~tall..:abOut the 'potential ei:l,/erse. Impacts '.that !transPor~d-sedimenLS':may:ba~e.o.n:!ths,'d~anriel's capacity. to!convey the required flows.:.. He indicates that the flow: velocltles:.!ln the channel maynot be high enough to transport. the .particle sizes found in the, watershed above: ,the channe[..but doe8 not prOvide any. ena'lyals:.~hoWlns] that'these larger :parji~leS can:L~ven reach' ~che cha'nne. AlthOugh .he :may be correCt that. the alluVial.fan sl~tSeS am Signffica~ly :gretatar than the 'proposed channel :slopes, the rllrioff tribUtary ~(0 {h=e i:channel-will. be shallow; ovafiend flows .ffat .ate incapable of transporting. the. particie ~izes' of. concern to'Mr. :Hamilton. The' Dlstdct would. be happy to ~'~eview ~. sad[ment transport analysis. SUbmitted by a .qualffied engineerion your behe f. The DistHi~. eli~d~ed':to 'u~e the bu t~ n~l factor method: in. lieu of sedlmentJransport analysis, :.~ The.~.p~rmlttee .was req:uired!toi prepare the hydraulic analySIs !Using a 18 bu k~g. =factbF.: to:~..~ccount :for' the rnatefiial .that couid reach:. the' channel.. ! The; DistriCt:and the :COroSi ar~ [n ~!gr~nent with this. favor. 'The most recent'. submittal!' of-the hydraulic calcUlaitor~:ai: does '.~clude this:. bUking faCtor. Proper malntena~nce Of the ~h'annel by the ~es~ans b e agencies wl I end'urn tt~at the'channel-is' . Cleared of sediment.and delude.. ': ln]~the. DistdCt's eXperlSice 'there has been no slgnfficaHt'sediment tran~port!iH:~h=is :area since the Deer:Greek Debris Basin was' · .. · .. . :.. constructed. ' ' ":-.': ';'L : At oui A~ril 4 meeting: end yOur:fa~ ~j~{ed' Ap~=F 18, you m~ntioned gradiriS] 'ffat has occurred :within the. Di~trict's dght~of:."wa~i.betweenthe eaSter~ .tract boundaW and Deer:' Creek Channel. The' 'DistriCt haS' nbt al~proved, shy construction !aCtiVity .at this 'lOcatiOn We will Investigate your claim iahd"(ak~ 'iapproprjate action f~ any'unauthorized activity.. has occurted Within Distric~ ~ght-o~':Way .-; ' : .: ' - · ,. - :MALISSA HATHAWAY May 19,:!2000 :. · · Page Three .,.: Attachmen! cc: K. Miller' K,' Gu~d~ C,. Scola~ticQ R: Hfne$1~y : provide:Us with. confidence tha~-.SUchi i9 connection impacts,:. . '. :..:i.~..!: .. .,..: .:.. GLENN ;F, PRUIM, P..E., Chief: ' :' · Flood Control Opereti0nsDivis on;" i~'.'i'.. .. ... , ! ! . . ....; .. .,: GTP:eh .'.' ,; ':'. can be made' with '-nO adverse. E~O9 bgE 606 'Your April 24'fax m~ntions"a~"..p0~sibfllt~y~thatMessrs. Guid~a~ld'MIIler are "desperately · .:trying ...:'tO cover-up their coridbbt:.in ~ne~lo~with" the ss, le:o~ the Distrlct's right-of-' - way easement for. the. Deer Creek' I~Ception :Levee,' At ~e ~lme of the sale of the easemei~t,' Mr.'Guidry did.not:woi~fo~.the Flood Control DiStri~ andMr. Miller had' no... involvement in the d~ciSiorr.to sell .the fight-of-way · . .. . ! · ..Z .. ! · ..~ .~ ~: · ..... .. ,: . .;. .-. :. Due to :our :workload,' it Is not alway: possible for us tO ~s~ond' to request~ for 'Information as. quickly as people wObld ! ike... Please be pat ant and a o~ us to prepare a 'detaile~ irespbnse' to.further i~eques~s. i:.'~our Apr 20 fax reClu~sts a' response to ~ faX. ' ":' · ' you submitted on April 18. Y0ur.,Apdl 2~ fax requested' a' response to your Apdl 20. fax. · ' ' ': ' 'In each Of these cases:, we only h~ii~!oneW0ridng ,day to prepare a response:~' : ' '.; :'!'. .. i.'! · " "' · 'We w!ll ,co. ntlnue .~o 6oordlnateZ this .~pre~6t wrth .the. Corps a~id '.will. keep'iyou updated on . i. ':. :'any developments.. ;As mentl0n~d.in ~Ur prevlous-meetlngitnd in Ken Guldry's letter,= ; . dated .April 13, 2000, the District' ha~'ipemiff authority onlyZ i~ver the Impmvernents :.proposed 'on ·District.right:of-Way'.·· 'Fl'h~ 'City'Of Rancho Cuciimot~ga is resl~onslble' for. ' partaking the Improvements On Laurel!Development property, InclUding the entire open. : · channel;'. As stated:in a Sepamte:li~tte~.:to. y0U'dated May 15,.2000 the District will not ' -.: .. issue a perm/t to the developer ui!ti( {s~!u~s brought up through ihi~ Exponent report. as' · ' Well as '~ddltlonal ~Udles currenty .u"nd~rwayby.the D stdct and' ~e Corps of'Engine~m, . ' 825 Eest. Thjr~ 'Sireel , . . .. . -Fe~ (909)'~87-2667 ' ~eb ~d :~eb', LLP ' ' :' ' 1000Wil~himBlvd.,'S~itcl~800' "~:.i' ~s ~gclcs CA 90017-2475 : C0ON'Pt OF S~N BERNARD. iNn ECONOMIC OEVELOPME~ T AINIIPUgLIG iERVK;E-'~ II 1.-501/1.00 .. i(ENA.=MILLER Dmm~or De~r Ms Hathaway: ..: Your letter of Aprli:28~ 2000 to Supervi~orSit~red Aguiar and Denni~ Hansberger, including· 'various attachments, was.referred:to thi,~ office for review and further response to you. · .Districtsta~and~have.i.eviewei~!heinf~rr~aii~hy~u~r~vic~dinc~dingtherep~rtby`.. · ' Exp0n~xti Inc. This District' has w0r~ed wi~h;'Doug Hamilton, Expoheiit, Inc., and its'prinCipals on a.nurnb= ofprojecL% programs and' i~su~'s knd.~nd:them to be ~,ex~ professional and. ' knowleiig'~-ble in the'a~as o~hydrologyi hydraulics, sedimant lransport, etc. Throughout ' rcvie,,, oi' = xponenti -Ve' g "oa u-aCmmdlng ofstudied.and the :' ' ' ' conclusions r~6ched: Considerable effort v~.~:madc:td address the r~gimen.of fiows,' how th¢- · basin ;Wohld fill with dClji-ls, 'ncw mcthdaoli~,i~s :for d~bris basin desh~n that.have been d~velopcd since thi:s :basin' was constructed, deb~s'StolS~, ~c. Analysis and data tO support all the- ' conclusions iS not available in the;report.. There are conclusions about what would happen in the downstream chknnc] .and watei'Shcd.;,~dd~ou~s~,tpportin~ data~ I believe it would bc very' beneficial to h~w a mOo,inS betw~en'~;0~trs¢l~, me'consultant and D{itrict'sta~to r~'i~"W the · report and any supposing information in.or~c~ to reac~ an understanding as t6 what thi~ report In your letter, you,suggeSted two aCti0 .....e being(l) to include iSEuSsion of s item on the ~ May ldBoard'ofSupcrvisors agCnda'and'(~:)-to~cas~pmccssinSof~.n~Pfa~-itsinconnccdon '" ommenElingth~t pri~r=.tc~ brLngiqg thi~ matter tO the Board fO'r discusslob; that the above meeting (and sObsoqhent ntectingS, ifncacs~ary) take 'place, as Well as Eringing together other :' · · studies a~'d information;dcvelopr~mn~'il~t is_'~ing pI~e. The District; for'example li'as a · 'consultant.prepllring. a dam inundation Siud~. FA draft is due around the:early part of June, The · -Cerl~s of:Engineers is in process of doing ..dldjtlonal.analysis ofthe-ljasi~. In fact, DiS~ct staff and I met ;last Thursday morning,' May:i], 2:000 at the ~ site with ~Lo~ Angel. Corps of Engineer~ DistriCt :Engineer, CobTie] John t~; Oaf'roll .and staff mcmljorsi p]Us representatives of · 'the CorpsL San .FranCisco South Pacific-DiviSiOn of~r,c:in further review of ffit issue. 'A copy Of · the Expo~ent, Inc. report has be~n passe~t o~ Io the Corps for review: and comment. .. .: :... ..'[ . May t~, · ' ' withhol~ issuance of a permit for'the With regard to ~tour sc~0nd item ofreqti~st ;ffie Distridt will ' connecfioh of drainago .from 'the pWpos~d Txict 1477 r {o the Deer Creek Channel until such time. · as the continuing analysis ca~ be compl~tcd~d until we have confidence that such a ~onne~fion" .... can be m~te w~th no'adVers'e impacts · .~:" ~ ,' ' ' ' ' - . · : .... .;'~..' "'i · ..... ~ · ~t c t ~ :~he~loodControl. Dis~*ict stzffdoeSha~c~.~re' ~nt rcs in.under~ndinghow our[~cilitics . .~nction, ~Vhcther deficiencies. ma~ c~ist, arRi :~[so, solutions to such~deficienci~s. · ·' ' 'The follo~ing comments ·address semc ·o~ t~:arcas Z b~li~vc warrant ~u~ther discussion with you ~d your consultent, Bxponcnt~ L'xc .... . !: .. ~.: In the first:paragraph o~out~ l~t~r, .tho ~tat~t fs m~lc "Bxponcn~ co~lcli~das that the debris '.' ~arr~ns~apacity~ftheEbasinwi~n~y.`han~¢a2~yearev~ntand~hat~th~ar~benuth~th~ basin (inclUding the OntArio Intern~itional ~ir~n aiid the Milliken l~dfill) will bc inundated'. : This rots:states ithc Exp~onant,'Inc.: conot~i6n::found~in the first par~,~h on pat~e two 0fthcir ,: report. The portion of the statemenl r~latin~ {0 the "debris CarryinS ~ap~wity nf the basin..." assumes the Watershed to. be entirebybumed!' !The probability ofa 20-y~Zar: rainfall event: occufing : after a. total watershed bum i~ much different than a 20:year rainfall' event.by itself. · ·: ·Your letter enclosed, mi Exhibit B:, 'a dcclarati0n~ signcki under pcnal{y o~ perjury, by Robert : -:: Kirby, ia forme Army Corps~ o~ Englii~c~' ~n~gifieer who designed the basin. Our understanding: , thxough d~acusSions with Corps of F,,ngifiec~pesonnclis that althou'gh,.Mr. K.i~'by didOperform. some of~e hydrology and sediment 'intospOil'Work fo~ the Deer Cr~i~ Basin project he was-not the designer of the basin: Mr Kirby:is not ~ registered~rofessional engineer in California at this The main :focus of the BXponen[report ii~ th~.~apacifl:y 9fthc basin and t~c'filling rogimen that · coneludes:the basin does not h61d-the amou~t!~fdcbfis:as stated by theCdrps' original design and consti-uction.. We Would be, much: iritcr~sted in di~ussing this filling regimen further with .... : Exponcm:inoluitln$ their analysis aS'{0 Why_.;~ believe the-hcavHy~et}ris laden waters would . ' . stay within the cxistin~ low'flow Channel al~lig the cast side of the canyon upstream of the b~sin: ' .rather than ~prCad. across the:canyon'and cntc~ ~hc basin from a wider area, Also, why some of · 'the West canyofi slopas and canyon fidor-filwbdtd ni~t drain into the. Westerly side of the basin. ' ! One' final ~ommcnt on'your'letter ~si directed t~) your' statement on page 3 that 'The County's . silence on this issue is both deafening and suspect, particularly given the circumstance : sun-oundihg the sale Of. the DcerCrec~c ILev~:in 1985 for $~8,000 tO!accommodate .a joint : ' ~enture So!f course between =.th~ County::an~! ~'-d~vCl0p~r'~. The Flooit'.Conirol. D!stric~ did4 in 1991, solicit pWposals br the developm~nt~ofaSotfcourse on District'Owned land located · ganerally between the proposed trot anil ~ Deer C'r~k Basin end, ~trther, located .o~ both. : sides of the De~r. Creek Channel. :A gol~'cd~se .develOpment fn'm was Selected through this. proposal I~Wccss, but neSotiations nev~ c~nC tO 'conclusion duc to thc poor economic climate at · : ..! :i · "= ; '; :.. ] ' "Malissa Ha~av~ay Mrl~i~h i May 15, 2000: · Page 3 · · · - ' ! th6 time a~ii for~many y~rs after,' ~ner~iwi~ .~io ~o~lStion wiih ~ ~ of~ bv~ ~ ~u · = hav~ indicted.~ ' .: - .. ' · 2:, ~ '? . : . ' ' . · ' · . .~. · .' .;Z g': .'.;.' .:..5.. ~.. .- .. : ... .. g':~,-.: .: · ' . .... Since .' .. . .:.; ..'.:..'. ;. .~~g ~:~A..g~ .. : :. ' Flood C~l En~n~r :. .. , :...:..... ~:~ :: . . ~: Hononbl¢ Boa~ of Sup~x~on - .s '~'~' : Will ~dolph, ~unty Ag~fiy~ 6~c~' ' ' Jo~ O0Ss, ~sis~t Co~ A~i~t6~ ~tD~pu~ ~ Counsel:Rn'H~l~y ' ~ D~u~'Co~ Counsel ~leS S~ta~ . .:: . .. Colon,l'lo~ P: ~I1, Co~o'f~pgin~s, 'L..~. Dis~ict ,~, '. :...:~:~ "':' ~'i~,':.;. "': " ...... ~ Z:r.~ .- .- "' "....."! .:L~... . .: .: .: .'~ :' ':~ ':-:: : '.~,i; .' "': : :..' ' "! :.' .. , ~-: : .... . . . . ~.:~. :. . · ' '~ :L' .' =1 ' :' 'ANSPORTAT!ON/FLOOD CONTROL . EPARTMENT- SURV OR: ' i: .; S25'Eeai'ThI~ Street. o: Sen eem,.rdf~o,C~. Loeb &Loeb: : '. 1000 VVilshire BOuleVard Suite 180d..:., ' ·; . · : 'LosAnge as, =CA 90017-2475 · $ E. .... COUNTYOF ,~N8 RNARDINO: · ' .: ECDNOMIC D(EVELOpMENT  ANDPUBLIC ERVICESliROUP · . S .. I · '. · K~N A. MILLER . :.;. .:. · FIle: t-55tf2:04 ! ': .': Attention: ' Mallsea Hathaway :MCKei(hj. EEsq, !,':..=.. .': · · ! RE:' - ZONE i'} DEER:CREEl( C/E=.;- PERMIT· No; P;'19702l)". '. ' · . : ~DearMS;:McKelth: i" !:.:: ":. ' ;"' ' "' " ..... Thank y6u for meeting .withe'me, ,others!DistriCt. staff'and Chief Deputy-County Counsel -.. Rex Hineslay yesterday 'to ·.discuSs !the .flood'control. Improvements' proposed. in '!;' .! ;:' conjunCtion w th the Lauren. 'Deve!O~m~ht project.'-West of the'D .~t~'s Deer Creek,' C/E,' In the 'nOrth ehd of·the: Cit~ of Ranchb C.u~:~monga.- You-prepared 'and .submitted a letter' at the meeting requesting' information'~ regarding, the permlffing requirements for . proposed improvements.' .Ins additiOn:j: your .lette~ .addresSed the. flood .' it~undation · '.. ;..: maps/stddies and requested· aaditioqal til~le.:to review the.hydra ogy. asSoc ated with : entire "re'placement dhannel~ project': ': ·': The. District req uires' ~hat permits 'be ::~btained .for.~q(l' impmver~ents Within its right-of'way..: · ' · For facilities-originally 'constructed by the. U:S: Army Corps=~f Engineers'. (COrps), the:. ,- "...: ' ·.District-also :coordinates the; permit I:eview. :with. 'the'- COrps.. The .-CorpS:.provjdes' ' :: · comments,' ff any, to: ~he District tha;t e~m incoq3oCated in .the finat permit issued by the. i .. DIstdct,...The 'Corps does not actua(l~ .IsSu~e permits'for connectiOns:to such facilities. - · ':' · - - , ,'.: According' to our records, the DiStrict 'has !not:issUed apermit:to! Lauren 'Deve[opment, or:.. any other: par~y, for"any 'of::th~.~!mr~rc~vementLs .that yoU-;ha~e:..refermd to es.~he, ·: "repZscer~ent.bhannel". However,:alpei~tt,has been requested by Lauren'Development' :, . and the 'District is I~'0coSsing: the. ;.recju~st for 'a. permit covedng .that portion oT the; · :' "replacement'channel"! within the Distdct~e..dght;of~way, .Included',ln .the processing is {he. .: coordination' required with the ,CorpS. ~he:Distdct:is in'the pmOeSs of..tranSm.ltting..the: . ', ':- ;. · . fourth sUr0mittal, Of thiS :permit appi!~:afior~ to ~ne Corps for its review, '; Comments. received." . . -: ' from the Corps on ,the. previous thre6 sUbmittalS have been"addresaed and iricorpomted~" into the latestSUbmittal package; .:l~stly,~the District agrees to d~lay the;fourth.submittal , '. :.: to the Corps .until Apr!l ·!2, 20OO,-at',yo. Qr~. mques~ to allow-yours.engineer to 'rev!e.w the · ' hydrology submitted by the develope3r e~d submit comments tO ~he .District. , · - ·: · . :'.. ! :; :::. :.-'.i..... MALISSA HATHAWAY McKEITH:: i:: · ' TWo ' ' Page : .' · ~ · .'; .) . ... !. It is i~p'6~an~ to n0t~ tibet Distflui, a~p~l f0r'lmpro~,ementd 0t~tslde'0f District rigtit'of- : way is'n0( required. 'The Distd~ d0~)e r~,lew:areas'outslde of itS, rlght-o(-way:to evaluat6 · potentialiimpacts to ~acilitie~ Within.th~:~Dlstrict's;jurisdlCtlon, bur:does nOt Issue permits. : for. ImprOvements OUtSide Its dght-~f-w~y, :In this' casei elf 'improvements proposed. 'fo'r . .the ~replacement charms)" 'iOy'th~.:d~vei~ar OutSide of the Di~d~t's 'r ghi~-of-Way line require approval by the City of-Ra~Ciio Cucamonga. . "'. ~. ' ' : As we discussed in !the. meeting,. the:! D. Istrtct has hired a :~onsultant. fo'prspare' 'lhe' ' -' :.'. -. inundation study for :Deer Creek,. CIE: Additional inundation .elUdleS for other i~amS;wtll .. be prepare~ as required to 'comply wl~' ttle direction of' the state. Of California; Office of ' ' ~ .... .:.Emergency Services.. .Plia:a~e co~ta~..'Ken 'Gutdry. Chlei~,':..Floo~l :Control"Plannlnl)" : ·: Division :at (909) 387-2525: for addffi'oni~rlnformat[on.0nthese!stUdies. · : !"' -. · GTP:eh ' :~ : ' ~ cc: William O'Nel], CIty of Ranc uceFno · .. ! . ... ; i ' ':"' ~'. ..., ·:. ... , ·, .... ~ ·- .. . ,~, ": ' i" : : : .:. ' · ' . ' i' .~' . ::'s .' . ' ' ' : ' ; : !.~::. . . :.. . : · : .. ,"~ : : : : . ,, · ,: ,.' ,. ,. ., :. · : ' ,.' ...~ ...... !' i.- . {;.:. ' . · . . · ; · ,. . . ..· ..~ . , ... '. ,.. · .:i ' ' · '~!' "As~stant County Caunse] ~ F.. $t~r ~ . De~ied~. Hauete~ . :.: · Rp~ A. HlneekW y , -LosAngeles :Ca ~om a:O0017;24Z6; · = · · .: ..... . Chi~ Dep~ Rex Hinesl~y wa~ mn~dh~' m~ aS~lgnmenm'and addressing any ege· ... ~.' "". madam ~at Would' no~ally=be:.mf~d ~ me.' I nine that you ~ave m~Spon~ed wi~' :':' ' ~. :..: Dl~ri~.. I:also:n'ote:th;at you w~e p~vid~d ~h'v~'doue mspon~e~ ~m Mr..Hrnesley' "' '~and the~d. Contm. D~r~ nclUdl~g~'.~rdat~Mey~5;:2a00~m'Mr Ken Mt e~.' A~er reviewing Mr. 'Ml~e~'le~e~ =.l.tmst'~t~e:expfanaeons(h'at he pmvided,.aS well : " ": ' aShis sugge~ 'procedure ~r mSbl~tidn~Of:~ur 'mine n ng isSUes, addresses ~ur :. '.': ': on a mo~ dl~u'~lng :n~m~ hoWevbr:':l ~ ~eWhat tmubl~d~wlth ~he.~ne of ~veml'. ' pie~'ofyour:~rm~nden~ ~:end eb6ut FI~ Contml:Dl~d~ pemonnel. Al~ough' '. . ': ~u and I: have no~ 8~e~ ~' 10t; ~ have ~nvemed on eeve~l o~sions. It is my ':: '.. · ~'..'. ~ where YoU indi~ted't0'methat ~hq .in~Ubn ar'do~me~ tHat~we provided were · inadequate in:anyway;'ThUs, t=am 'su~'~ed ~; mad.~e sle~de~us and threatening '." :. s~temenM. ~U Have made abdut Se~e~:;Di~ ~e~onnel Th ~ does 'not appear to' '. - .: : be in keeping W~ our past Spirit :0~ civili~: n~r does it engend~ a' ve~ ~opem~ve ". -' working envi~nment ~ th:e'.~re.', i~ w6~ ~ h'ope ~at this ~ul~ be rother the~ the mlein:Conne~dn w~ h~W'y0b'intend ~ ~ndU~'fu~m businesS. I ~ · - would re~pe~lly'mqUest'that.y~U: ~fc~.~m ma~ng such gm~it~U6. and mC~eee ': :: ': ~mhlbition8 of~Busfneu '& ;Frufess ons G6de ~06B(O and PeHal-Code ~5~ g: 'Such "'" ' ' ~ndu~ dnly e'n~um~es the.p~bllc?s ne~e p~m~ion 0f th'e.lbgal pm~eSl0~..: · :M ssa't:jlatt~awayj~ Ke~h"' J !::~:~/f~jp0" ' gel ' eli c '-. , Pa : · . · . . .... : ,. :: : -. ; · ' · '~; . .. :h'; 'E:-.... i:. , .. ;.. :: :..: i.:.:.:.-.:.: ..,: .,!!: .... :' .'... ,..::. :: · "!It is and~ ~ ~/ays ha~ been~ {~e' Dist~'~s~i~tent tO work ~ope~lv~ly W~h. you and all'. · '~ . :.membe~-Ofthepubllc. Please'do'nOtl~t~mmt~b~thatwe'~ay~haved~e~m ' . .. .~.' . ' ' ' mlsslon~ ~s a~ intent~fi~ tO ~p~Ea~e'~h you.' I~, hope ~m ~m en.o~ We .~n regain i ". -. : the mop~m~ve mla~o~htp' and ¢Ml:~.~n~ environment ~al ~ ramemir.. ::..: 2 ..... :.. ;.... . . · ,:.; '; :. .; . . :.. ~: .:.. .; '::"~ ,;VeW~ly.~um '.'~ . . . :' ::. : .;:. , .' . :' .. ;=,:~ .,:::~, '.:'..:. ' .::...: .:.: ,...,' .:,.:.., · . . . :~ .... - _.: ';: , ;:,~ . . ':' ":' ":': :' ':" ". ::" "':"~ ~N :MARKS" "'"" .... ":' ' ": .:. :~':'.::.:,..~:: .' , ; ' ' ' : ' : : :: Se[ " - :, CSS:Jif+ (;!591~!', CERTIFIED FOR PARTL-.'kL PUBLICATION' COURT OF APPEAL, FOURTH DISTRICT DIX;ISION TWO STATE OF CALIFORNL.~ CUCAMONGANS UNITED FOR REASONABLE EXPANSION, Plaintiff and Appellant, v. CITY OF RANCHO CUCAMONGA, Defendant and Respondent; LAUP, EN DEVELOPMENT, FNC., et Real Parties in interest and Respondents. C~IURT OF, A.P.~J,L - ~Ut~TH DI~RICT E024244 (Super. Ct. No. RCV30406) OPINION .APPEAL from the Superior Court of San Bemardino CounW. Frederick A. Y,'landabach, Judge. Aff, uwned. Law Office of Craig A. Sherman and Craig A. Sherman; Loeb & Loeb rand Malissa Hathaway .,McKeith for Plaintiff and Appellant. James L. Markman, City Attorney; Rioharris, Watson & Gershon and Steven H. Kau~'narm for Defendant and Respondent. · Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception ofpa,-x I. E. and part II. B. Hewlit & McGuire, Mark R. McGuire and .4_ndrew K. Hartzell for Real Parties in interest and Respondents. Plamriff and appellant Cucamongans United for Reasonable Expansion (CURE) appeal from a judgment denying its petition for writ of adminisla-ative manda.mus brought under the Califorma Environmental Quality Act (CEQA) (Pub. Resources Code, § 2100 et seq.).~ CURE contends that the trial court erred because new reformation and changes in the law and scientific standards ~varrant ,ftLrther envirornmentaI re~-iew. Real parties in interest Lauren Development, inc. (Lauren) and Cristiano Parreefs I, and defendant and respondent CiS' of Rancho Cucamonga (Cit3,) (collectively referred to as respondents) contend that the judg-ment should be affirmed because: (1) The appeal is moot because the City has no jurisdiction to require a supplemental envirommental impact report (SEIR); and (2) Even if the appeal is not moot, the City's determination is supported by substantial evidence. We agree with respondents and affirm the trial court's judgment. I. FACTUAL AND PROCEDURAL HISTORY A. The Prooertv The subject property is an approx.imate 25-acre tract located in the City, east of Haven Avenue and north of Tackstem Street and Ringstem Drive (property). The ~ ,All statutory references are to the Public Resources Code unless otherwise specified. propert}, is The remainder portion of two tracts, Tract 12332 and Tract I2332-2, in Haven View Estates, a 204qot gated community approved by The City in I983. An aged, u.~lined, earthen levee, located along The souTh side of the property, was created prior to 1938. The San Bernardino County Flood Control District had an easement over the property for maintenance of The levee. In 1983, The United States .Army Corps of Engineers (ACOE built the Deer Creek Debris Basin and Charmel (Debris Basin) to provide flood protection for this area. The flood control dis~ict deEermmed That, because of The compieti0n of The Debris Basis, The levee was no longer necessary for use in conic-oiling regionaI floods. Consequently, the flood control district relinquished its easement over the propert}, in 1986. In 1959, to salisf-7 a condition of approval of Phase II of Haven View Estates, a portion of the levee was demolished to pro~4de an emergency access road. The breach in the levee is approximateIy 210 feet wide at the top and 80 feet wide at the bottom. B. Approval of SubdN'ision and Adoption of Neaative Declaration From 1989 to July 1990, M. J. Brock (Brock), the prior owner of The properr}', submitted numerous applications for approval of a tentative tract map, subdividing the' property into 40 singIe-family residential lots, and a conceptual grading plan (the project). The City rejected the applications as incomplete because it was concerned about how the project would impact the drainage system. After Brock addressed the City's concerns, the City. finally accepted the application as complete in JuIy, I990. Thereafter, three neighborhood meetings were held on the project "to allo~v for the opportunity to review the plans." On August 14, 1990, the City completed an Initial Study Enviroranental Checklist which determined that the project would have no significant effects on the envirom'nent. The City's Plann~g Commission held public hearings on the project on September 26 and November 14, 1990. At the first hearing, the City engineer denied Brock's request to modify a condition requiring removal of flood zone desig-nafion for the property before final map approval. Instead, the City, engineer recommended more restrictive conditions, wkioh were then imposed on the project. After the second hearing, the planning commission approved a Negative Declaration and the tentative map, subject to 73 detailed conditions..-Lmong other things, Brock was required to (1) design drainage protection facilities, from the east tract bounda~7 to Deer Creek Channel, "to the satisfaction of the San Bernardtoo County FIood Control Dis~ct;" (2) prepare reports, plans, hydrologic and hydraulic calculations relating to flood plain boundaries; (3) have the Federal Emergency Management Agency (FEN'L-X) remove "the current FIFhM [Flood insm-ance Rate Map] Zone AO designation.. . ~'om the project area;''2 and (4) ensuxe "it]he required drainage chaxmel along the north 2 The reason for this condition was because, the project site was shown to be within an area subject to inundation during a 100-year flood, when in fact, the Debris Basin pro~dded protection from a 200-year flood. Through Brock's efforts, FEML;k lifted the property's FIP,:\'I Zone AO designation. 4 project boundary shall be operational prior to removal of the existing levee within the project area." No one challenged the adoption of the Negative Declaration or the approval of the tentative map. C. The Desi~ Rexdew Ao'olication Process in April I997, Lauren, the current developer, submi~ed its design review application for detailed site plan and axckitecmral review of the 40 homes proposed for consn-uction. The plarnmng commission held public heamgs on June I 1 and July 9, 1997, on the design review application. At the conclusion of the ~'o hearings, the commission approved the design re~,4ew application. CURE appealed the commission's approval to the City Council. On August 20, 1997, the City Council held a six-and-a-halfhour public hearing on the application. During the hearing, CUE presented "new and additional information [that had] come into ex.~stence which was not known, and could not have been kin. own, at the time of the November 14, t990[,] earlier environmental re~,4ew and decision date." On September 3, 1997, the City Council denied Lauren's desi~ review application and found "that no further en~.4ronmental review [was] required in conjunction with DevelopmentfDesi~ R. eview 97-I I." Moreover, the City Council found "that no further em, dronmentat review is required on conjunction v. dth Development/Design Review 97- 5 D. Trial Court Proceedinc, s On October 2, i997, CURE filed a petition for writ of mandate seeking injunctive and declaratory relief against respondents. The City demurred to the petition contending that, because the City had denied Lauren's application, no SEIR was required under CEQA. The trial court overruled the alemutter. On September 28, 1998, after two days of oral argument and reviewing the admirdstrative record, the trial court denied the v, Tit petition and issued its findings and statement of decision. CURE filed a notice of appeal on January,, 15, 1999. E. Reouests for Judicial Notice CUE filed a motion and request for judicial notice on August 19, 1999, Laaren filed a motion and request for judicial notice on November 12, 1999, and CUE filed a supplemental motion and request for judicial notice on November 50, 1999. We reserved ruling on the requests for consideration with the merits of the appeal. 1. CURE's Re~]uests for Judicial Notice Ln both of CUE's requests, it requested ~at we take judicial notice of documents that were not submitted during the administrative hearing or the v, rit proceedings below, with the exception of Exhibit 6,3 which is contained in the admmis~-ative record. 3 Exhibit 6 is the Memorandum of Understanding by and Between the U.S. Fish and Game, the Count3, of San Bernardino, the Fi~een Affected Cities in Southwestern San Bernardino Count)' and Additional Undersigned Participating Agencies. 6 However, the general rule precludes our consideration of material not before the trial court. (Carlelon v. rortosa (1993) 14 Cal. App.4th 745,753, ~. 1.) "In deciding the question raised by a.n appeal, a re,,dewing court will ordinarily look only to the record made in the trial court. While the ~-eviewing court may take judicial notice of matters not before the trial court, it need not do so." (grosterhous v. Stc~te Bar (1995) 12 Cal.4th 315,325.) This rule holds especially true in our review ofadminis~ative hearings. ,&lthough the Supreme Court has stated that it need not decide "whether courts may take judicial notice of evidence not contained in the administrative record when review'ing a quasi- legislative decis[on for substantial evidence," the Supreme Court did state that "it would never be proper to take judicial notice ofe,,ddence that (i) is absent from the administrative record, a~d (2) was not before the agency at the time it made its decision." (~"estern States Petrolcurie .4sstL v. S~tperior Coztrt ([995) 9 Cal.4th 559, 573, fn. 4, original italics.) This mle makes sense because "the only e~dence that is relevant to the question of whether there was substantial e,Adence to support a quasi-Iegislat4ve administrative decision under Public Resources Code section 2 1168.5 is that which was before the agency at the time it made its decision. [Citation.]" ([bid.) Accordingly, CURE's request for judicial notice and supplemental request for judicial notice are denied and all references in the briefs to those materials, except for Ex1'Libit 6, will be disregarded. 2. Lauren's Recmest for Judicial Notice Lauren also requested that we take judicial notice of documents that were not submitted either during the administrative heating or during the writ proceedings below. For the same reasons stated above, we deny Lauren's request and all references in the briefs to those documents will be disregarded. II. ANALYSIS A. The AnDeel Is Moot Respondents contend that, ,,','hen the City denied the design review application process, there was no "discretionary approval"; hence, an SEIR is not required. We agee v,'ith respondents. Under section 21166, "[w]hen an environ.mental impact report has been prepared for a project pursuant to this dMsion, no subsequent or supplemental environmental impact report shah be required.. . unless one or more of the following events occurs: · . . [~] . . . [~] (c) New information, which was not kno~,n and could not have been 'k_nown at the time the environznental impact repor~ was certified as complete, becomes available.''4 4 Courts have held that rules which govern a situation where a subsequent or supplemental EIR must be prepared after an EIR is approved, also apply where a negative declaration, not an ElK has been adopted. (Snarled Traffic Obstructs Progress v. City and County, of Sere Francisco (1999) 74 Cai. App.4th 793,798-800; Benton v. Board of Supervisors (1991) 226 Cal.App.3d I467, 1479-1480.) Under fie Guidelines,5 "[i]f changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a) [i.e., discovery of new information of substantial importance]. Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendure, or no further documentation." (Guidelines, § 15 I62, suM. Ca).) However, if the new information of substantial importance is discovered after the approval of the project, "a subsequent EIR or negative declaration shall only' be prepared by the public agency wkich grants the next dtscretionc~ryapprova! forthe project, if any .... ,,6 (Guidelines, § 15162, subd. (c), italics added.) Legal corrumentators have noted that "[a] public agency may require a subsequent E[R only when the agency grants a discretionpry approval; once all discretionary approvals have been obtained, no agency has jurisdiction to require a further EIR. 14 Cal Code Pegs § 15162(c). See also 14 Cal Code Pegs § 15163(e)." (1 Kostka&.Zisch. ke, Practice Under the Cal. Environmental Qualit2,I Act (Cont. Ed. Bar 1999) (cited hereafter s CEQA is augmented by the "Guidelines for Implementation of the California EnGronmentaI QualiD, Act" (Cal. Code Regs., tit. 14, § 15000 et seq. [cited hereafter as "Guidelines"]). Neither parry' challenges use of the Guidelines. Thus, for purposes of this opinion we afford the Guidelines the great weigt to which the>, are presu.mptively entitled. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th I 112, 1123, fn. 4.) 6 Section 15163, subdi'.~sion (a) of the Guidelines pro,tides that an agency "may choose to prepare a supplement to an EIR rather than a subsequent EIR." 9 as Kostka & Zisckke) § I9.28, p. 735.) Moreover, in FortMojave Indian Tribe v. Department of Health Services (1995) 38 Cal. App.4th 1574, the COLLrt stated that if new information develops after a project has been approved, "a supplemental or subsequent EIR must be prepared in connection ~-ith the next discretionary approval, if any." (Id at p. 1597, italics added.) in ffLis case, the negative declaration and subdi,Asion plan were approved i.n 1990. CURE contends that "new information of substanIial importance," that arose subsequent to the adoption of the negative declaration, wa'rants further en~-Lronmen~al review. CUPdE, however, simply. ignores the Guidelines, treatises and cases that state that an SEIR can only be prepared in cormection ~vith a discretionary approval. Here, CURE concedes that the City denied Lauren's design review application. Hence, there was no discretionary approval that would authorize the preparation of an SEIR. AccordingIy, because the City denied Lauren's design review application which prompted CUKE's request for an SEIR, the City was not required to prepare an SEIR. ?m appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 54 1.) Here, CURE's appeal is moot because the CiW does not have jurisdiction to require an SEIR since there was no discretionary., approval involved. NoD, vithstanding, there are three discretionary. exceptions to the rules re~arding moomess: ( I ) ,.,,'hen the case presents an issue of broad public roterest that is ILkely to 10 recur (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fit. 8); (2) when there may be a recurrence of the controversy between the parties (Grier v. Alomedo-Contra Costo Transit Dist. (1976) 55 Cal. App.3d 325, 330); and (3) when a material question remains forthe court's del:ermination (Viqo Bancorp, inc. v. Wood (1989) 217 Cal. App.3d 200, 205 ). Here, because it is likely that there may be a recurrence of the same controversy between the parties and the parries have fully liftBated the issues, we exercise our discretion to address the case on the merits. B. A Subsecluent or Supplemental EIR Was Not Rectuired CUR. E contends an SEIR is required because of new information regarding the project. Respondents contend that there is substantial evidence to support the CounciI's decision that no furLher envirortmentaI review ~'as required. i. Standard of Re~.'iew x,k,'e must first determine whether the fair argument or substantial e~;idence s~andard ofre~,.-iew applies to this case. CUE contends that the fair argument standard should be applied. The fair argument test, holyever, does not apply to a decision not to prepare an SEIR. "iT]he 'fair axgument' test was derived from an interpretation of... section 21151 itself. For this reason, the 'fair argument' test has been applied only to the decision whether to prepare an original EIR or a negaftve declaration." (Lourel Heights impro~,ement Assn. v. Regents ofUni~,ersity ofColifornio, supro, 6 Cal.4th 11 I2, 1135, italics in original; Gentry ~,. City of Mzsrriezo (1995) 36 Cal. App.4th 1359, 1400.) II Hence, contrary to CURE's contention, a court reviews fie decision on whether to prepare an SEIR using. the traditional, deferential substantial evidence standard of review. (Sierra Club v. County of Sonatas (1992) 6 Cal. App.4th 1307, 13 17-1318.) "Using the substantial evidence test the court must resolve reasonable doubts in favor of the administrative decision and uphold that decision if there is any substantial evidence To support the findings. [Citations.]" (Security Environmental Systems. Inc. v. South Coast Air Quality Management Disr. (1991) 229 CaLApp.3d 110, 132.) 2. The Ciw's Determination That No New Lnformation Affects the ,Lntem-iw of the Debris Basin Is SupDarted bv Substantial Evidence CURE asserts that the Debris Basin is vulnerable m failure with siga'~ificant effects not previously analyzed as a result of new information because of: (I) the possibiliW of earthquakes of greater magnitude than had pre~4ously been considered; (2) revised standards for debris basins; and (_3) increased l~<elihood of landslide failure. We hold that the City's finding that ~he new information does not affect the integnt'y of the Debris Basin is supported by substantial evidence. a. The Cirv's Determination That There Was No "New" Earthquake information Is Sm3~orted by Substantial Evidence CURE contends that further env:a-onmentai review is required because new ' earthquake iraformation "could affect the safety of existing down-slope and rum,re residents of the Project from Debris Basin failare." 12 CURE presented the declaration of Dr. Thomas Henyey at the City Council hearing. Dr. Henyey, a professor of geological sciences at the University of Southern California and director of the Southern California Earthquake Center, stated that subsequent to 1991, there have been three paleoseismology studies of the Sierra Madre- Cucarnonga fault which suggest "that earthquakes on ttfis fault system are ILkely 'to be in the magnitude 6 to 7.5 range." Dr. Henyey also stated that trenching done on. the Cucamonga fauIt by Dr. James Dolan in 1996 indicated that "eanrahquakes with magnitudes between 6 and 7'1 could occur on that fauIt. Dr. Henyey funher stated that because the Cucarnonga fault consists "of at least three sub-parailel strands," if"offsets take place conc~rrently on more than one strand during an earthquake," then, "the ma~itude could be nearer than 7.0." (Underscore in original) Respondcuts presented evidence to the contrary. Respondcuts presented an electronic mail (e-mail) from Dr. Dolan, whose trenching work Dr. Henyey reIied upon, to Lauren's counsel. Ln the e-mail, Dr. Dotan noted that his 1996 trenching work k)~othesi:ed a possibie magnitude 7.5 earthquake, which was presented to the County of Stun tBernardino as a "proposaI" to study the location and m. tensity of the fault. However, Dr. Dolan szated that "'the idea of occurrence of a magnitude 7.5 earthquake Ion the Cucamonga Fault] was a hypothesis, not a conclusion." Dr. Dolan stated that "It]he best available reference forthe Cucamonga fault is an article by Doug Morton and John Mar~i in U.S. Geological Survey Professional Paper 1339, published in 1987," prior to the Initial Study being conducted and Negati~'e Declaxation beLng adopted in this case. .~lso, 13 Dr. Dolan stated fiat "fie fault appears to exhibit at least t~,o, and possibly three, active siTands," and 5~'o of the siTands were identified by Morton and Matti in 1987. Moreover, respondents presented evidence that when the Debris Basin was f~st aonslamcted by fie ACOE, "it]he debris basin was statistically evaluated for two seismic events, a rnag;nitude 8 on the San AndTeas Fault and a rnagnkude 6.4 on the Cucamonga Fault.''v The ACOE also affirmed fiat the basin was "safe from failure daring a major earthquake on either the San .AndTeas or Cucamonga Faults." Accordingly, the City's determination fiat there was no new earthquake information that could affect the property is supported by substantial evidence. b. The Ciw's Findins of the Adecluacv of the Size of Debris Basin Is Sunnorted by Substantial Evidence CUR_E contends that further environmental re,dew is necessary because revised standards for debris basins indicate that fie Debris Basin is undersized. CUE presented a declaration from Dr. David T. Williarns, an engineer, a certified professional hydrologist, and a certified professional in erosion and sediment con~ol. Dr. Willjams stated that the "volume capacid' of the Debris Basin was based upon the Taturn method developed in 1963 by fie Los .Angeles Army Corps of Engineers," but that the "Corps published updated criterion for Debris Basin design in 7 At fie City Council heating, CURZ's at-tomey inaccurately testified fiat "when fie :k.m~y Corps of Enginegrs built the debris basin, they built it to a 5.0 rnagnirnde quake." 14 1992 which could significantly change the design volume." Without providing what the 1992 updated criterion was, or how it would affect the design volume in this case, Dr. WilIiams concluded I/aat the Debris Basin appeared ~o be undersized. Under CEQA, however, substantial evidence includes "... expert opinion supported by fact," but does not include "unsubstantiated opinion." (§ 21080, subd. (e).) Here, the City Coancil could have rejected Dr. William's conclusion because he failed to provide any foundation for reaching his conclusion. (Citizens' Corn. to Save Our I/iHage v. City of Clarernont (1995) 37 Cai. App.4th 1157, i170.) Moreover, contrm), to CUKE's evidence, Lauren presented evidence that the ACOE constructed the Debris Basin ':to handle a 'standard project flood event'. wkich for this facili~' was estimated to be a '200-year return event. "' Although Dr. Williams stated that the ACOE "published updated criterion for Debris Basin design in 1992 which could si2_.nificantly change the design volume," he failed to address how the 1992 update could affect this Debris Basin, and why it would Iead to a conclusion that the Debris Basis is undersized. ,Also, Dr. \Viiitams compared the ':watershed basin slope" of the Debris Basin with the "Harrow Debris Basin," which allegedly overtopped in 1969. Dr. Williazns, however, failed to provide any evidence regarding the Hatrosy Debris Basin, and how it may be similar to the Debris Basin, to support his assumption that the same thing may occur to the Debris Basin. Dr. Willtams also failed to state why this information was not available in 1990, when the Negative Declaration was adopted. 15 Moreover, Dr. Willtams asserted that "in]bout 25% of the volkkrne from stuall even~:s is allowed to fill before clean out is required," which allows the material to fill up, which would cause the debris to go over the spillway, decreasing the capacity and causing the basin to spill over. Again, Dr. Willtams fails to state why this information would not have been 'known in 1990, when the Negative Declaration was adopted. Also, respondents presented evidence that the Flood Control Dish-let schedules maintenance activities when warranted "including removal of sediment that may have been deposited behind the Dam," and the State Division of Safety of Dams also conducts annual inspections for sediment. · Furthermore, Dr. Willturns stated that, because the "levee and swale system protected the area and the home do~-nslope of the levee," the "[r]emoval of the swales and levees would weaken the protective nature of the Corps Debris Basin project." However, this fac~ was fuiiv known at the time of the adoption of the Negative Declaration in i990 and is not "near information" that could trigger the need to prepare an SEIR. Moreover, even Dr. Willtams concedes that the levee and swales were built before the cons~Tuction of the Debris Basin and, upon the construction of the basin, the Flood Control District determined that the swales and levee were no longer necessary for use in controlling regional floods in 198Ci. Accordingly, the City's determination that, the size of the Debris Basin is adequate and did not warrant an SEIK, is supported by substantial evidence. 16 c. The Ciw's Finding That There Was No Increased Likelihood of Landslide Failure Is Su~Dorted by Substantial Evidence CURE contends that ~he "changed circumstances and new irkformation relating to landslides (an outgrowth of the changed circumstances re: basin design and seismotogy) is critical." CURE presented evidence m support of this contention th.roug.h ks expert, N. Thomas Sheahan. Sheahan, like Dr. Henyey and Dr. Williarns, attacked the integrity of the Debris Basin and its earthquake safety. The identical concerns have already been ad&essed above. Sheahan also criticized the geotecknical analysis performed by R2VLA group, consultants for Lauren. Sheahan, however, challenged the R2MA analysis with data that pre-dated the City's adoption of the Negative Declaration..An SEIR is not required unless there is "new" information. (§ 2i 166; Guidelines, § 15162.) Accordingly, the City's determination that there was no increased likelihood of landslide failure is supported by substantial e~-idence. 3. CU,RE.r's .Argument Regarding the Conservation of Coastal Sage Scrub Habitat Is Proceduraliv Barred CUE contends that the impacts to the project site's vegetation, i.e., impacts to the g-natcatcher and the coastal sage scrub (CSS) habitat, require the preparation of an SEIR. 17 a. Back~ound In 1985, the Riversidea Alluvial Fan Sage Scrub (R.~FSS) was desig-nated as "very threatened," prior to the adoption of the Negative Declaration. In I993, three years after the adoption of the Negative Declaration, the coastal California gnatcatcher was listed as a d~reatened species under the federal Endangered Species Act. The RAFSS is habitat for the ~atcatcher. During the administrative hearing before the City Council and during the writ proceedings, CURE argued that "In]either the impacts on the California gnatcatcher nor the shrinking availability of RAFSS were contemplated or analyzed in 1990 and thus there is no baseline against which to evaluate the significance of the change." Accordingly, CURE argued that "in the absence of any prior analysis by the City with regard to the elimination of this [P~-~FSS] habitat, . . . further envirom'nental review is necessary,'." (Underscore in original.) The trial court found that there was substantial evidence to support "the City's determination to not require a[n] SEIR regarding a change as to FL;~.FSS" because RAFSS could have been present on the property when the Negative Declaration was adopted by the City, hence, ;~there is not 'new information ofsubstantiaI importance to the project' pursuant to Pub. Res. Code § 21 i66 such as would require furLher CEQA review." 18 b. CURE Failed to Raise the Issue of CSS Habitat Conservation to the Cirv or the Trial Court On appeaI, CURE has abandoned its argument that the change to iRA.FSS habitat and the designation of the gnatcatcher as an endangered species warrant an SEIR. Instead, CURE a~gues that obligatory mitigation measures must be taken "to ensure the protection of the Coastal Sage Scrub - the essential habitat for the Gnatcatcher ('ESA 4(d) Rule'). [Citation.]" (Italics added.) Respondents contend that CURE's argument regarding the CSS habitat is barred because it was not ar~ed before the City orthe trial court. We a~ee with respondents. The doctrine of e.',r_haustion of adrmmstraive remedies ':preclud'es judicial re,dew of issues, legal and factual, which were not first presented at the administrative agency level. [Citation.]" (Cocdition for Student .4ction v. City ofFuilerton (1984) 153 Cal. App.3d ~ 194, 1197.) in fact, under CEQA, "[n]o action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this dMsion were presented to the public agency orally or in writi. ng by any person dur~g the public co,'v~--aent period pro~4ded by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." (~ 21 I77, subd. (a).) Here, as discussed above, CURE made arguments pertaining to the RAFSS habitat before the City and the trial court. CURE, however, never raised the issue of CSS habitat I9 conservation. Nevertheless, CUR. E argues that ~'the maner was sufficientIy" raised because generaI comments regarding habilat conservation were mentioned. Before the City Council, a representative of the Spirit of the Sage Council made the following com.ment to the City: "We also believe that if the City approves the Project, design and final vesting map that the City will be in ~dolation of the Natural Community Conservation Planning (NCCP) Act and the San Bernardino Valley wide Multipie Species Habitat Conservation Plan (MSHCP) Memorandum of Understanding (MOU), CEQA, CESA, Native Plant Protection Act, federal ESA, MBTA and other [applicable] public resource codes and regulations." One of the purposes of the MOU was "[t]o develop a MSHCP that is consistent with the ESA, the CESA and the Natural Cornznunity Consep,'ation Planning (NCCP) protein, and [to ensure] conservation and protection of currently listed, proposed and candidate species and species of concern and t]!eir t?obitots within the designnated plan area ...."(Italics added.) .A~nd, one of the purposes of the :MSHCP was ':[t]o conser~.e and protect covered species and the ecosystems on which they depend .... " Con~ary to CURE's contention that the CSS habiza~ was sufficiently argued below, the general references to the laws pertaining to conser'~'ation of endangered species' habitats were far too general and vague to call specific attention to the alleged loss of CSS habitat. General comments made at public hearings cannot satisfy the exhaustion doctrine. (Coalition for Stu~'ent Action v. Cir), of Fzdlerion, supra, 153 Cal. App.3d [ 194, 1197.) 2O In Ci07 of F/alnuf Creek v. CounF of Confra Cosza (1980) i01 Cal. App.3d 1012, the petitioner opposed fie county's approval of a land use permit for fie construction of an apm h~ent complex. The petitioner argued the issue of density resa-ictions in general Ierms. In the petition for writ of mandate, however, the petitioner alleged the project would violate specific density limitations in the cotmty's general plan. The court of appeal affkrmed the thal court's denial of the petition: "'It was never contemplated that a party to an administrative hearing should withhold any defense... or make only a perfunctory or '~skeleton" showing in the hearing and thereafter obtain an urdLmited trial de novo, on expanded issues, in the reviewing court. [Citation.] . . . "Having failed to raise the [issue] before the commission, the appellant waived his ri~t to that ... defense.' ....([d., atpp. 1019-I020.) Here, a re,dew of the record indicates that the general impact on gnatcatcher habitat was addressed below. The general cormments supported CURE's argument that the impact of the project on the RAF'SS habitat for gnatcatchers should be considered.s The comments generally about ';habitat" conservation, however, do not give CURE the nght to raise on appeal the issue of the possible irapact of the project specifically on CSS habitat, when this precise issue was never discussed before the City or the triaI court.9 s At the heartang before the trial court, CUE argued vigorously regarding the need to protect RAFSS habitat. Not once did CUFLE's counsel mention CSS habi'tat. 9 Moreover, even if we were to consider the issue of CSS habitat, we would ha;'e no e',4dence upon which to make our determination. In support of its position, CURE cites to exhibits attached to its request for jut c a notice, which we have denied. 21 DISPOSITION The jud~rnent is affm'ned. CERTIFIED FOR PARTIAL PUBLICATION Is/Hollenhorst Acting P.J. /s/Gaul J. Is/Ward 22 No. 99-17: t CALIFORNIANS LINTrED FOR REASONABLE EXPANSION ("CURE"), a Non-profit Unincorporated Association; THOMAS BRADFORD; MARILYN SUE BRADFORD; LEO ORVANANOS; SHIRLEY ORVANANOS, Petitioners. CITY OF RANCHO CUCAMONGA; BRAD BULLER, an Individual, in His Individua! and Official Capacity; THOMAS GRAHN, an Individual, in his Individual and Official Capacity, Respondents. ON PETrnOS tn3~. Wtrr o~' CnvaoaAnx TO xm~ UNii'KIJ STATES CO{.J'I~ O!r A. ffF,.ALS FOR IIrlE NII~Fltl CIRCUIT REPLY BRIEF MALLSSA HATHAWAY MCKa~,~ LOEB & LOEB LLP 1000 Wilshire B lvd Suite 1800 Los Angeles, CA 90017-2475 (213) 688-3400 LM~RY D. S,ks-Dnns SIERRA Dm-$dqSn PROJECT c/o SYRCL P.O. Box 841 Nevada. City, CA 95959 (530) 265-5961 MARINA TRAMONT077~ Counsel of Record c/o CURRY & TAYLOR Suite 601-S 815 15~ Street, N.W. Washington, D.C. 20005 (202) 393-1070 DF2'4Nm P. DERRICK Of Counsel Seven Winthrop Street Essex, MA 01929 (978)768-6610 Attorneys for Petitioners TABLE OFCONTENTS II. SUFFICIENT FACTS ARE NOW KaNOWN TO STATE A CLAIM FOR DEPRIVATION OF SUBSTANTIVE DUE PROCESS ..............................................................................4 DEFENDANTS CONDUCT IS FUNDAMENTALLY UNFAIR AND BASED UPON AN IMPROPER MOTIVE TO PREVENT CHALLENGES TO LOCAL DEVELOPMENT .................................................................7 THIS COURT MAY PER~MIT AN AMENDING OF THE COMPLAINT ON APPEAL ................................................ ii TABLE OF AUTHORITIES Cases Aliaire Builders, Inc. v. Village of Horseheads, 551 F. Supp. 1066 (W.D.N.Y. 1982) ...............................9 Bateson v. Geisse, 857 F.2d 1300 (9* Cir. 1988) ...................................................................9 Bellotti v. Baird, 428 U.S. 132 (1976) .........................................4 Bellow v. Walker, 840 F.2d 1124 (3r" Cir. 1988) ..........................................9 Brady v. Town of Colchester, 863 F.2d 205 (2d Cir. 1988) .............................................9 Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988) ......................5 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) .................................8 Cohen v. lllinois Institute of Technology, 581 F.2d658 (7th Cir. 1978) ........................................... Columbia v. Paul zV. Howard Co., 707 F.2d 338 (8th Cir. 1983) ...........................................I0 Drum v. Fresno County Dept. of Public Works, 144 Cal. App. 3d 777 (1983) ............................................2 .corman v. Davis, 37I U.S. 178 (1962) ......................~ ...............10 Gut_,-willer v. Fenik, 860 F.2d 13i7 (6t" Cir. 1968) ......................8 Horn v. County of Ventura, 24 Cal. 3d 605 (1979) ......................................................2 Lapham v. California Energy Resource iii Consen,'ation & Dev. Cam., 705 F.2d 358 (9th Cir. 1983) .........................................................3 Lehman Brothers v. Schein, 416 U.S. 386 (1974) ........................4 Pearl Investment Co. v. City of San Francisco, 774 F.2d 1460 (9th Cir. 1985) .......................................2, 3 Railroad Commission v. Pullman Co., 312 U.S. 496 (1941) .....................................................................2, 3 Rochin v. California, 342 U. S. 165 (1957) ................................., .......................5 Scott v. City of Indian Wells, 6 Cal. 3d 541 (1972) .........................................................2 -Steuart v. Suskie, 857 F.2d 1148 (8th Cir. 1989) .......................5, 8 Thompson v. Gallagher, 489 F.2d 443 (5* Cir. 1973) .............................. 8 Treatises D. Hagman and J. Juergensmeyer, Urban Planning and Land Development Control, {} 10.2 at 296 (2d ed 1986) ................................................8 Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doewine, 122 U. Pa. L. Rev. 1071 (1974) ........................................3 Monaghan, Of "Liberty" and "Property", 62 CORNELL L.Rev. 405 (1977) ..........................................5 V. FONTANA, MUNICIPAL LIABILITY: LAW AND PRACTICE section 4.8 (1990) .....................9 Federal Rules INTRODUCTION This is a civil fights case about government corruption for personal gain resulting in irresponsible decisions exposing petitioners' families to substantial injury and property damage. Challenges to the removal of the Deer Creek Levee by several homeowners' groups, environmental organizations, and petitioners has caused significant controversy, because these challenges threaten to halt hundreds of millions of dollars of developmerit that cannot proceed if the flood infrastructure is unsafe.t A finding that the flood infrastructure is unsafe also will force Respondent, the City of Rancho Cucamonga C'City") to disclose to tens of thousands of people that they are living in a dangerous flood plain and that they must purchase costly flood insurance. The local political opposition to conducting an independent safety study is fierce, and the tactics employed by public officials to prevent that study and unconstitutional. ' Simply put, the wrongful conduct at issue in this matter affects the safety of literally thousands of people, and it deserves review by this High Court. When the underlying complaint was stayed by the District Court and subsequently briefed to the Ninth Circuit, Petitioners did not know the magnitude of Respondents' malfeasance. As such, the underlying complaint did not allege the strongest ground for federal jurisdiction - namely a violation of substantive due process. Instead, the complaint was couched in terms of procedural due process violations based upon the City's failure to provide any due process when the City extended the developer's tentative tract map in 1992, 1995 and 1996. It also alleged multiple violations of the California Public Records Act. By the time of the District Court hearing on the motion to dismiss in December 1997, Petitioners naively believed that the City had turned over all relevant documents based upon the t The Deer Creek Levee ("Levee") blocks development of thon~nds of acres mostly owaed by the flood control district as its height of 20 to 40 feet prevents eastJwest a_ _,y:ess_ across the foothills. Although funded. by the federal government, the Lcvee's destruction is in the hands of local politicians with financial inte~,st.s in the development. 2 representations of their counsel. In reality, the City intentionally had concealed the very most critical documents confirming that the Deer Creek Debris Basin and Channel were dangerous and that the City knew it. Due to the limited nature of Petitioners' procedural due process claim, the District Court stayed the'lawsuit and abstained from deciding the merits on the grounds that California law was unclear as to whether Petitioners' had a state recognized protectible property interest triggering the fight to procedural due process. On appeal, Petitioners argued that abstention was inappropriate, because the trial court could predict with some degree of certainty how the California Supreme Court would decide that Petitioners' had a protectible property interest based upon a. long line of state court cases upholding the due process rights of adjacent property owners.2 The abstention doctrine articulated in Railroad Commission v. Pullman Co. ,3 is a narrow exception to the district court's duty to decide cases properly before it and is proper "only in exceptional. cases where principals of comity and federalism justify postponing the exercise of jurisdiction that Congress conferred upon federal courts." Pearl Investment Co. v. City of &m Francisco, 774 F.2d 1460 (9th Cir. 1985). In Pearl, the Court stressed that a district court should exercise jurisdiction unless it "cannot predict with any confidence how the state's highest court would decide an issue of state law." Id. at 1462. As the Callfomia Supreme Court historically has been a leader in upholding the rights of citizens to due process in government proceedings, Petitioners argued that clear precedent existed for recogx~iTing a protectible property interest particularly given the severity of the safety issues involved.4 From a policy perspective, Petitioners further See Lodging Section V. 312 U.S. 4% (1941). Importantly, none of the Ninth Circuit's decisions upholding Pullman abstention axe remotely on point The most applicable decision, Lapham v. California Energy Resources Conservation & Dev. Corn., 705 F.2d 358 (9th Cir. 1983), merely involved wheXher Petitioners had a fight to due process before an electrical transmission Line was installed near their homes. argued that the District Court should be even less inclined to abstain in civil rights cases where the Petitioners would end up before a court biased by local politics. See Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071 (1974) (The state procedure should be deemed inadequate when individual litigants suffer substantial prejudice in addition to that accompanying the delay.).s Finally, Petitioners asserted that, even if abstention were appropriate, the Ninth Circuit should certify the matter to the California Supreme Court as doing-so provided the most expeditious remedy for vindication of Petitioners' civil rights. Where certification is available, this Court consistemly has held thit it is preferable over abstention. Lehman Brothers v. Schein, 416 U.S. 386 (1974); Bellorti v. Baird, 428 U.S. 132 (1976).6 The Ninth Circuit held that there was sufficient uncertainty about the applicable state starttie that the trial court had not abused its discretion. Unlike the instant case, however, absolutely none of the Ninth Circuit decisions containeel allegations of unlawful or corrupt conduct on the pan of the very derision-makers involvcck s One case, Attorney Kauf'rnan falsely asserte~l that the Deer Creek Channel was designed to convey C'pais") flood flows of 15,000 cubic feet per seeon& Mr. K2nf'man made Ikis false assertion though three separate documents in the City's possession listed 5,400 cubic feet per second as the mayamum capacity of the Deer Creek Channel, prior to convergence with other sUrerms. Petitioners attempted to submit these design documents verif, fing the channel capacity as only 5,400.. Were the court impartial, it would have cotreeled the record anti Likely reprimanded the City. Instead, the judge in his decision issued as a specific finding that the Deer Creek Chatreel has a 15,000 cubic foot per second capacity. 4 Argmnents before the Ninth Circuit in January 2000 included a lengthy diso,.'-cion of extra record ~'idence about the status quo surrounding removal of the FEMA-rated Deer Creek Levee. Specifically discussed was the fact that Senator Feinstein and Senator Boxer had just demanded that the Secretary of Axmy conduct the very safety study Petitioners had been requesting. At that time, it was assumed that the Pentab:on would conduct the . safety study in resnonse to the Senators. Sa,,ing the Levee, however, is but. one of the forms of relief sought in the underlying civil fights case. Petitioners also seek to vindicate the sig-ni~caat deprivation of fights that has ocax.rrecl by virtue of their inability to oblain an independent safety study due to local corruption; the monetary. effect on Petitioners having to spend 4 The Ninth Circuit did not address the substantive'due process argument applicable to this matter, as it had not been advanced at the trial court or in the Ninth Circuit briefs. The extent of the City's wrongdoing simply was unknown in 1997, when the District Court stayed the action. Had Petitioners known of these facts, they could have mended their complaint to add a claim for deprivation of substantive due process fights. For the above reasons, Petitioners request that this Court reverse the District Court's decision on abstention or, alternatively, that the Ninth Circuit be directed to certify the case to the California Supreme Court. Petitioners ~.u-ther request that the case be remanded to permit the amendment of the complaint to add a claim for violation of substantive due process. This Court has long recognized that citizens possess certain fundamental rights that no government should infringe. The right to be safe in one's home unquestionably is such a ri t.7 fundamental gh I. SUFFICIENT FACTS ARE NOW KNOWN TO STATE A CLAIM FOR DEPRIVATION OF SUBSTANTIVE DUE PROCESS. Petitioners request that this Court permit amendment of the complaint to include a claim for substantive due process. Given Petitioners' request, a further factual background is necessary to place this matter in its proper context. Although many of these facts were alleged in the underlying complaint; significant new evidence has been discovered in the past three years supporting claims against additional individual defendants including the City Engineer, the City Attorney, and employees of the County Hood District. The following facts would be alleged in an mended complaint. hundreds of tho-~nds of doLlars to secure those righB; and the fact that there remains no guarantee that the levee will not be demolished regardless of the Senators' help, thus jeopardiTing Petitioners' fight to be safe in their homes. 7Rochin v. California, 342 U. S. 165 (1957). See al~, Brennan v. Stewart, 834 F.2d 1248, 1255-57 (5~ Cir. '1988); Monaghan. Of'Liberty'' and "Property", 62 CORN~H- L.Rev. 405. 420 (1977). Substantive due process is the "heavy artillery of constitutional liti~tion... "Steuart v. Suslde, 857 F.2d 1148, 1150 (8~h Cir. 1989). 5 In 1990, the City approved 40-home development based upon a negative declaration The negative declaration - the document under State law alerting the public to environmental and safety concerns -- was completely silent about the Deer Creek Levee's removal. Indeed, there was not a single public document alerting the community to this fact. None of the Petitioners lived in the area in 1990. Petitioners first learned of the impending removal of the Levee in late May 1997, long ai~er they had constructed their homes. Counsel for CLrR.E immediately served a Public Records Act Request with defendant Grahn. At that time, the Planning Commissioner, David Barker, instructed respondents Bullet and Grahn not to produce certain documents to Petitioners, because doing so would prevent Petitioners from property preparing for the June 11, 1997 public hearing. Defendant Crrahn also falsely told the community that the Levee was not being removed, and further informed people that the matter was on the Consent Agenda so that no public input would be permitted. The response to Petitioners' Public Records Act request was paltry, and several material documents obviously were omitted including documents concerning the City's Memorandum of Agreement with the United States Fish & Wildlife Service restricting development in areas of sensitive habitat. Moreover, there were absolutely no documents produced concerning the safety issues surrounding removal of the Levee. On June 11, 1997, the Planning Commission continued the matter to July 9, 1997. Thereafter, counsel for Petitioners made several efforts tO contact City Attorney James Markman by letter and telephone to seek his assistance in obtaining documents. No response was forthcoming. In fling the origlrml complaint, Petitioners were attempting to force the City to produce the relevant documents before the July 9, 1999 heating and to ensure the City understood that the residents would do whatever was necessary never to counter the City'.s unsafe actions. The documents were not received and the Planning Commission, chaired by Mr. Barker, granted the developer's permits. An appeal to the City Council ensued. Prior to the City Council's hearing on August 20, 199), 6 a number of documents were produced, and Petitioners believed that the City had complied. It was only discovered literally 15 months later that the City had withheld and concealed numerous specific documents about the flood infrastructure proving that the City had knowledge that the situation was unsafe. None of those documents were available in August 1997. In August 1997, a City Council member receptive to conducting further environmental review, questioned the City Engineer, whether removal of the Levee was safe. In response, the City Engineer falsely represented that he had "no idea" about the capacity of the Levee, that no one knew "who built it" and that it was a "mound of dirt". Unknown to Petitioners at that time, the City Engineer had documents within his very files reflecting that the Army Corps of Engineers had made improvements to the Levee in the early 1970s and 1980s, and that FEMA had credited the Levee to handle a 100-year flood event in 1984, one year before the San Bernardino County Flood Control District sold it to a private developer and six years prior to the City approving its removal.8 Based upon this evidence, the City Council held that no further environmental review was necessary. The City points out, correctly, that Petitioners were able to challenge that decision on an Administrative Writ of Mandate, and that the trial court upheld the City's decision. These mandate proceedings are based upon a limited administrative records and, under California law, the trial court must defer to the City Council if there is any 8 Attorney Kaufman falsely characterizes the Levee as an "nnlined, training levee" tint was breached before the City approved its ga-~cling in 19%. (Respondeats Brief at n 2). This is simply false. The Levee ~,:as breached in 1992 in a rip-rappe:l re-4irectional (i.e., training) levee, designed to turn and convey high velocity flood & debris flows. Even the developer ewtimated the Levee can handle more than 257-acre feet or 500,000 tons of debris and 72,000 cubic feet per second. The Levee is subs-'tavtlally larger than the alternative trapazoidal "channel" referenced by the City at page 3 of their brief. That channel - as cormsol well knows - is designed to handle 474 cubic feet per second only or .6 percent of the Loveo's capacity. Even ff it would hold one percent of what the Levee holds, Petitioners take no solace in such a "replacement". :red '15 'OUS the ose to .'ity ~se, 3Ut md hat les ..de nd od od 10 tS al i-e ia y rl e :. e ) f 7 evidence to support its holding that no additional environmental review is required. The remedies in these mandate cases, moreover, are vastly different than what Petitioners pray for in a federal civil rights action. Under mandate, the trial court does not address any of the bad faith conduct of the City or the individual defendants (none of whom can even be named in mandate cases), including the concealment of documents demonstrating the City's knowledge that removal of the levee was dangerous, and intentionally false statements by the City (and its attorneys) about the capacity of the flood channel. No' discovery is permitted at either the City Council or trial court stages so that it is impossible to cross-examine or rebut witnesses or delve into the firmncial bias of the decision-makers. No jury trial is available and no monetary damages can be awarded. II. DEFENDANTS CONDUCT IS FUNDAMENTALLY UNFAIR AND BASED LIPON AN IMPROPER MOTIVE IN VIOLATION OF PETITIONERS' SUBSTANTIVE DUE PROCESS RIGHTS. Without question, Petitioners enjoy a substantive due process right to be tiee fi'om government action that would render them unsafe in their own homes. Substantive due process affords "a general prohibition against arbitrary and unreasonable governmental action." Thompson v. Gallagher, 489 F.2d 443, 446 (5~h Cir. 1973). See also, Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6t~ Cir. 1968) (substantive due process "stems fxom our American ideals of fundamental fairness ... [which] enmeshes the judiciary in substantive review of governmental action.") It is the "heavy artillery" of constitutional litigation.. ." Steuart v. Suskie, 867 F. 2d 1148, 1150 (8th Cir. 1989). Although this Court has witnessed a resurgence of substantive due process claims where government officials have engaged in wrongrid conduct impacting a plalntiff's fundamental rights, its roots date back to the earliest days of our 'union. "Ihe people of the United States erected their Constitutions . .'. to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence." Calder v. Bull, 3 U.S. (3 Dall.) 386, 3867 8 (1798). "Substantive due process grew out of the natural law theories of the Seventeenth and Eighteen centuries. All men were thought to be possessed with certain fundamental rights that no government should infringe." D. Hagman and J. Juergensmeyer, Urban Planning and Land Development Control, § 10.2 at 296 (2d ed 1986). Substantive due process rights are not dependent upon property rights under state law. Rather, substantive due process affords plaintiffs a broad residual theory to challenge the root of governmental conduct and typically affords remedies consistent of compensatory and punitive damages along with equitable relief Where appropriate. See V. FONTAN& MUNICIPAL LIABI2LITY: LAW AND PRACTICE § 4.8 (1990). Government conduct premised upon bad faith or other improper pecuniary motives undisputedly supports a claim for violation of Petitioners' due process rights. The notion that government employees empowered to protect the health and safety of their community, would conceal and destroy documents demonstrating unsafe conditions satisfies the. "shocks the conscience" test employed to ascertain the appropriateness of such a claim regardless of whether it involves local land use decisions. No special deference is provided government employees simply because the matter involves land use. Altaire Builders, Inc. v. Village of Horseheads, 551 F. Supp. 1066, 1069 0N.D.N.Y. 1982) ("Regardless of the deference normally accorded zoning practices by the courts, the Constitution does not tolerate arbitrary and unreasoned action.") The Ninth Circuit also has applied substantive due process in the land use context. In Bateson v. Geisse, 857 F.2d 1300 (9~h Cir. 1988), the Ninth Circuit observed that "arbitrary administration of the local regulations, which singles out one indiviclna! to be treated discriminatorily, amounts to a violation of that individuals · substantive due process. See Brad2/v. Town of Colchester, 863 F.2d 205 (2d Cir. 1988) (reversing summary judgment for city; building permit denial as a result of political animus violates' substantive due process.) See also, Bellow v. Walker, 840 F.2d 1124 (3ra Cir. 1988) ("substantive due process available where municipality had improperly interfered with the permit process, hat md ent ess of ~nt ble let for lat of se nt re 59 .ly es fit ,'t. th ?d ls Y; d 9 and did so for partisan political or personal reasons unrelated to. the merits of the application.") Here, defendants' conduct in concealing. information and then ruling against performing a safety study allegeally is motivated by factors unrelated to the merits of the permit process. Certainly, individual property owners impacted by those decisions have no less right to a substantive due process claim then the permittee. Having alleged that the government officials in this case have acted wrongful, Petitioners have demonstrated a substantive due process violation THIS COURT MAY PERMIT AN AMENDING OF THE COMPLAINT ON APPEAL Federal Rule of Civil Procedure, Rule 15(a), declares that leave to amend a complaint "shall be fieely given when justice so requires." As this Court has stated on numerous occasions, "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the toorant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be 'freely given'." Forman v. Davis, 371 U.S. 178, 82 (1962). No factor limiting the fight to amend are present here. In the context of a civil rights action, the Seventh Circuit held that the "amendment [of a complaint] can be allowed with leave of the Court of Appeals. [Citations omitted]. This may be accomplished either by the appellate court itself granting leave to amend or by remanding to the District Court to consider the motion." Cohen v. Illinois Institute of Technology, 581 F.2d 658, 62 (7th Cir. 1978). The Eighth Circuit Court of Appeal also has held that "[a]n amendment can be proper at~er remand to the District Court even if the claim was presented for the first time on appeal or had not been presented to the District Court in a timely fashion." Columbia v. Paul N. Howard Co., 707 F.2d 338, 341 (8~ Cir. 1983) (reversing summary judgment and directing trial court to permit amendment of pleading even though theory 10 not raised below). In Howard, the appellant made his first specific reference to a tort theory of recovery on appeal, independent of his original contract claim. The Appellate Court ordered "[i]f the District Court did not rule on Howard's tort claim, that court should consider the claim in the first instance. If the court feels the issue had not been presented below, the court can permit Howard to amend its counterclaim pursuant to Fed. R. Civ. P. 15(a) to include the tort claim." Id. Recog~iT~ng the liberality with which amendment is granted under Fed. R. Civ. Proc. Rule 15(a), Petitioners urge this Court to permit amendment now. IV. CONCLUSION The United States Supreme Court has the power to assume jurisdiction and to address Petitioners' constitutional rights. This is not a local land use case but a case about the wrongful conduct of government o~cials. The existing and proposed amended complaint is an indictment of those local o~icials and politicians who would recklessly endanger the public safety simply to line their own pockets. Petitioners have fought this battle at great personal expense tO protect their families fi'om unsafe conditions created by the very government entrusted to protect them. Those rights are protected by the federal constitution and should be v~ndicated in a federa/court free from local bias. For the reasons stated above, Petitioners request that the Petition for Writ of Certiori be granted. Curry & Taylor Marina TramontoyTj By: Marina Tramontozzi COunsel of Record Suite 601 815 15th St NW Washington, DC 20005 202-393 - 1070 10 11 12 14 15 17 18 19 20 22 2~ 24 25 27 28 1 2 3 4 5 6 7 8 9 FlED - West District San Bemardino County Clerk MAY 16 2000 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO HAVEN VIEW ESTATES HOMEOWNERS ASSOCIATION AND RANCHO CUCAMONGA V-HAVEN VIEVV ESTATES HOMEOWNERS' ASSOCIATION. Petitioners. VS, CITY OF RANCHO CUCAMONGA. a municipal corporation and political subdivision o,' the Sta!e of California acting by and through ) its City Council. Planning Commission. Depa~men! of Planning and Redevelopment. Department of Public Works. Technical Review Committee Grading Committee, Design Review Committee and other committees. commissioners. staff agencies, departments and officials ResoondenL LAUREN DEVELOPMENT. INC.. a California Corporalion; CRISTIANO PARTNERS I. a California general partnership; HAVENVIEW ESTATE PARTNERS. a California genera[ partnership: THE HEIGHTS AT HAVEN VIEW ESTATES. LLC, a California limited liability company: and DOES 1 through 50, inclusive, Real Parties in In[eresl ) (Caption Continues) CASE NO. RCV 37920 STATEMENT OF DECISION (Consolidaled with Case No. RCV38355) -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 25 27 28 SPIRIT OF THE SAGE COUNCIL, a California non-profi~ association, Petitioner, vs. CITY OF RANCHO .CUCAMONGA, a public entity; and DOES ONE through FIVE, Resoondents. LAUREN DEVELOPMENT INC., an unknown business entity; THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, an unknown business entity; CRISTIANO PARTNERS I, an unknown business entity; HAVENVIEW ESTATE PARTNERS, LLC, an unknown business entity;) and DOES SIX through TEN. ) ) Real Parties in Interest. ) This matter came on regularly for hearing on February 24. 2000 in Department R20 of the above-entitled court. Honorable Joseph E. Johnston. Judge Presiding. Petitioners, Haven View Estales Homeowners Association, el.el., appeared through their attorneys of record, Latham & Wakins, by Robert O. Crockett. and Munde!, Odium. Haws & Reider, by Karl N. Haws. Pet toner. Spirit of Sage Council appeared through its attorney of record, Richards, Watson & Gershon. by Mitchell A. Abbot[. Real Parties in linerest, Lauren Development Inc., et.al., appeared through their attorneys of record, Rutan & Tucker, by Robert S. Bower and Hewitt & Mc Guire. by Mark Mc Guire and Andrew K. Hartezell. The matter was taken under submission on blarch 17. 2000, upon the filing by the parties o~ proposed statements of decision, The court, after reviewing the administrative record, written briefs, issues its statement of decision. PROCEDURAL CONTEXT On December 24. 1998, petitioners. Havenview Estates Homeowner Associaiion eLal., filed a ,verified petition for writ of mandate against respondent, City of Rancho Cucamonga, and real parties in interest, Lauren Development, Inc.. 1 2 3 5 6 7 8 9 10 11 12 13 14 15 Cristiano Partners l. Haven Vie~v Pa~ners, and the Heights at Haven Estates, LLC, (collectively the City and Lauren). On January 25, 1999, petitioner Spirit of the Sage Council (Sag~ Council) flied the petition for writ of mandate declaratory and injunctive relief agains~ the city and Lauren. On June 7. 1999, the two cases were consolidated for all purposes. On November 3, 1999 the court, granted Haven View's Motion for leave to file an Amended Petition to add a challenge to the City's October 12. 1999. approval and issuance of a grading permi~ to Lauren. The court aftowed the parties to provide supplemental briefs regarding the City's issuance of the grading permit only and continued the hearings on the entire writ petition until January 20. 2000. STANDARD OF REVIE~Z,/ These petitions for writ of mandate are broughE under Code of Civil Procedure § 1094.5, the administrative mandamus procedure for challenge to discretionary quasi- 15 judicial decisions of a local oublic ~n~ncy 17 The Ciw Councii's approval of Resolution No. e8-178. denying appeals of the i g Planning Commission decision approving developmen~ Revievz 98-13 for final tram No. 19 14771, is in the naLure of a quasi-judicial administrative proceedings in which a 20 hearing is required by law. evidence is required ~o be taken and discretion in 21 determination of facts rest with the CiLy Council, and is subjec[ to judicial review 22 pursuant ~o Code of CMI Procedure ~1094.5. The standard of review in such 23 proceedings is ~vhether there is substantial evidence in the administrative record ~o 24 suppo~ the decision of the City Council. 25 The City oF Rancho Cucamonga City Council's approval o[ Resolution No. 98- 26 ~ 179, denying appeals of the planning commission, doLetrained tha~ no subsequem 27II ea- 3 ,o. 14771 is in the nature a quasi-judicial 28 i ~ m~n~s rc v proc d~ng in which a hearing ~vas reauired. The standard revie~v in -3- 1 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 25 27 9q such proceedings is whether there is substantial evidence in the administrative record to support the decision of the City Council. Traditional mandate is available to correct abuse of discretion that occurs in a non-judicial comext under Code of CM[ Procedure §1085. The general rule is that traditional mandate is used to control ministerial as opposed to adjudicatory acts. The issuance of a building or grading permit is a ministerial act not a discretionary act, and therefore reviewable only under traditional mandamus under Code of Civil Procedure §1085. The standard of review on the issue of grading permit is abuse of discretion. EVIDENCE 1. The court receives in evidence the 32-volume administrative record lodged by the responden~ on Augus~ 23, 1999 (volumes 1-30) and November 19, 1999 (volumes 31-32). 2. The court receives in evidence the declaration of Jack Lain and Rick Gomez, with attached exhibits, filed by the respondent on December 16, 1999. o The court takes iudicial notice of the "Ruling on Submitted Ma~ted' in Haven Vie,.,/Estates Homeowners Assoc at an. at.el. v. City of Rancho Cucamonga (Case No. RCV31906), the "Findings and Statement of Decision" in Cucamongans United for Reasonable Expansion ('CURE') v. City of Rancho Cucamonga (Case No. RCV30406), the Developmenl Code of the Ciw of Rancho Cucamonga (revised ivlarch 1996), and the excerpts from the CEQA Guidelines, Title 14, California Code of Regulations. sections 14100 el.seq., pursuant to the respondent's request for judicial notice filed May 28, 1999. 4. The court takes judicial nodce of the "Opinion" of the Court of Appeal of the State of California for the Fourth Appellate Districl, Division Two, in Haven View Estates Homeowners' Association, eLal., v. City of Rancho Cucamonga (Court of Appeal Oocke~ No. E023338) filed November 9. 1 3 4 5 6 7 8 9 10 tl 12 13 14 15 18 17 18 19 20 21 22 23 24 25 26 7 1999, pursuant to the real parties' request for taking judicial no~ice filed December 16, 1999. 5. The court denies ~he request of petition, Spirit of the Sage Council, to take judicial notice of City of Rancho Cucamonga Resolution No. 99~041, approved by the City Council on February 17, 1999, and of the Staff Report Io the City of Council with respect to said Resolution No. 99-041, dated Februan/17, 1999, for the reasons set forth in the respondent's memorandum of points and authorilies in opposition to request for judicial notice filed September 10, 1999. 6. The court receives in evidence the supplemental exhibits in opposition Io first amended petition for writ of mandate (Exhibits A and B) filed by respondant on January 6, 2000, and the further supplemental exhibit in opposition ~o firs~ amended petition for writ of mandate (Exhibit C) filed by respcndeni on Februan/23, 2000 for purposes of the [radi[ional mandamus proceeding challenging the City's issuance of the Grading PerraiL FACTS The Lauren ProjecE (Tract hlo. 14771 ) is a [riengular shaped parcel consisting of 25.35 acres located at the northeast corner of Tackstem and RingsLam Streets, east of Haven Avenue and noah of Hillside Avenue in the City of Rancho Cucamonga. I[ is bounded on the North by a Los Angeles Departmen~ of Water and Power easement; on the South and West by a single-family residemial developmere (Tract No. 12332): and on the East by vacani flood conirol land. I~ was originally shown as a remainder parcel in connection ,,vf~h Tract No. 22332 1 AR: I 1.19. 164 In 1981 the Ciiy adopted i~s General Plan. 12 AR: 2525-2801. The projec~ silo appears t.o be designated "Open Space - Floor Control/Utility Corridor: on the Land use Plan (Figure II1-1). 12 AR: 2560. The project also appears to be designated 6 7 8 9 t0 tl 12 13 14 15 18 17 18 19 20 21 22 23 24 25 26 27 28 "Flood Control Land and UtilityFFranspo~ation R.O.W." and "Streamside Woodland & Water Recharge Area" on the Open Space Plan (Figure IV-4). 12 AR: 2696. The General Plan specifically provides that "any residential development in the open space category should not exceed an average density of 1 unit per net buildable 10 acres," 12 AR: 2695. There has been no amendmen~ to the General Plan with regard to the Project site. In 1983 City adopted its Development Code (Zoning Ordinance). RJN 1-291. The Project site appears to be designated VL Residential on the Develt Districts Map. 13 AR: 1289. The VL Residential District is defined as an area of very low density single famity residential use, with a minimum lot size of 20,000 square feet and a maximum residential density of up to two units per gross acre. RJL 87. In 1989 the application for approval of Tentative Tract No. 14771 began. 1 AR: 2, 163-186. On January 4, 1990 an environmental Review was began for the Project. 1 At: 23-29. The Project is described as a 40 single-family custom lot]residential subdivision. The environmental setting is described as follows: The Deer Canyon Debris Basin bound the subjed propert, y to the north, the Deer Creek Channe! to the east and to the west by an earl, hen levee, The area ,:o the south is tract 12332 and is currently being developed for single-family residential use. The property and the surrounding area is typically sandy oil with varying quanti~ies of gravel. cobbles and boulders, natural topography includes a 9% regional slope to the south and incised drainage sources. There are no existing s~ructures on site, The environmen~ai review applica[ion also indicates the following: 1 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 28 27 2~ Some grading will be done north of the subject property. Therefore, appropriate permits wilt be needed from City of Los Angeles Department of Water and Power. Also, the estimated amounl of grading (cul and fill) is 174,000CY cut and 121,000 CY fill. "The projecl is not a part of a larger but is within an area of single family residential development. The project is not a part expected to have significanl environmental impacts." This application is certified by a City Principal Planner on June 5, 1990. On Augusl 14, 1990, the Ciiy completed an Initial S~udy Environmental Checklist, which determined that the Project "could not have significanl effect on the environment" and therefore, a Negative Declare!ion would be prepared. 1 AR: 112- 118. In this checklist, all questions regarding significant effec~ are answered NO, including inquiry affecting soils and geology, hydrology, air quality, biota (flora and fauna), populalion. socio-economic factors. land use and planning consideration, transportation, cu[turat resources. health. safety and nuisance factors, aesthetics, u~iHdes and public services, energy and scarce resources. and mandatory findings of significance. The discussion o~ environmemal eva~ua~ion section (which would include mitigation measures) is left completely blank. On November 14, 199o. after b,vo pubic hearings (1 AR: 150, 152, 187-191, 215, 222-223, 234-247, 248-249), the City Planning Commission approved a Negative Declaration for the Project (1 AR: 250, 262. 267) and approved Tentative Tract No. 14771, the proposed 40 home subdivisions, subject ~o certain conditions and time limits (1 AR: 261-266; 251-257). The Nolice of De!erminafion was prepared and posted pursuant to Public Resources Code § 21152(c). 1 AR: 267. Curiously. the Notice indicates that the I Projec~ will have a significanl effect on the environmenl; that a Negative Declaration was prepared and tha~ mitigation measures ,,,;ere made a condition of the approval of the proied. -7- 21 22 23 24 25 28 27 28 1 There ~vas no appeal of the Planning Commission's decision to the City 2 Council. There was no lawsuit filed challenging the Planning Commission's approval 3 of Tentative Tract No. 14771 or challenging the issuance of a Negative Declaralion. 4 Expiration of T~ntative Tract No. 14771 was extended to November 14. 1993 (2 5 AR: 367-368), to November 14, 994 pursuant to S8 428 (2 AR: 379), to November 16, 6 1996 (2 AR: 414-414A) and to November 14, 1997 pursuant to AB 711 (2 AR: 416). 7 The Final Tract Map was approved by the City on October 15, 1997 (15 AR: 3607- 8 3608). 9 Prior to Final Map approval Lauren submitted a Design Review Application for 10 ~he Project -DR 97-11 - for its detailed sit grading and conslruction plans. 2 Ar: 427- 11 432. The Projec~'s conceptual grading plan had been approved in connection with the 12 approva of the Tentative Tract blap. i AR: 167. Public hearings w.~r= conducted on 13 DR 97-11 by the City Planning Commission (3 AR: 621 - 749); 5 AR: 1264 - 1427). 14 By Resolution 97-36 (5 AR: 1428) the City P~anning Commission made the finding: 15 "Based on substantial evidence provided ~o the Planning Commission it is hereby 16 found ~hai none of the criteria found in Section 15152 oZ ~he California Environmental 17 Quality Aci guidelines requiring subsequent environmental review exists or are 12 sresen~" .. ,_ 19 j On appea to the City Council in Augus~ and See ember 1997 (8 AR: 2063 - 20 12281; 8 AR: 2295-2303; 9 AR: 2304 - 2~56). the City ultimalely rejected the Planning Commissions' approval of DR 97-11 (9 AR: 2461 - 2463). But in Resolution 97-132 adopied September 3, 1997 the City Council sustained the Planning Commission's determination that no further environment review ,,,/as reauired (9 AR: 2464 - 2466). The Final Tract No. 14771 Map was approved by the City on October 15, 1997 (15 AR: 3607 - 3608). Lauren rodesigned the Proloci (ne..v and varied architectural fenlures and plan elevations) and resubmitted it for Design Review on April 21, 1998 (DR 98-13). 17 AR: 3779 - 3834. The Planning Commission at its meeting of August 12, 1998 -8- 1 2 3 4 5 6 7 8 9 10 11 12 i3 14 15 15 17 18 19 20 21 22 23 24 25 approved DR 98-13. 17 AR: 3984 - 4102. Haven View appealed the Planning Commission's decision to the City Council. 18 AR: 4104, 4123. The City Council conducted a public hearing on September 16, 1998 only 26 AR: 6199 - 6327. The Matter was continued to November 18. 1998, to allow potential settlement negotiations. 26 AR: 6323 - 6327. On November 18, 1998, the City Council did not re-open the public hearing but did accept public comments on DR 98-13.26 AR: 6332 - 6472. By Resolution No. 98-178. the City Council on November 18, 1998 found the Project "is consistent with the Very Low Residential land use designation of the General Plan," "is consislent with the objectives and requirements of the Hillside Developmenl Regulations"; "is in accord with the objectives of the Development Code"; "is in compliance with each of the applicable provisions of the Development Code"; and "will not be materially injurious to properties or improvements in the vicinity," 26 AR:6474. By Resolution No. 98-179. the City Council on November 18, 1998 made the ~ollo,.ving pertinent findings: (1) "the environmen,'.al materials presented and environmental concerns raised ai ~he hearing on this design review matter did nol relate ~o the discre~ionar,/matter before the Council. the lot-specific design of the residences in question"; and (2) "based upon the substantial evidence presented i:o this council during the... public hearing, this Council fu~her finds. in any even[, none of the criteria in Section 15162 of the California Environmental Quality Act Guidelines requiring subsequenl review exis~ or are presen~ with respect to the Council's action on the DevelopmenU'Design Review application." 26 AR: 6477. The Notice of Determination regarding these CEQA fineings was prepared January 25, 1999. 26 AR: 6479. 25 !/fill 27 I i/Ill 28 ~IIIII !i 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AND SECOND CAUSE OF ACTION (THE LAND USE INCONSISTENCy INCONSISTENCY WITH OPEN SPACE PLAN) Every County and City must adopt a "comprehensive, long-term general plan for the physical development of the County or City (Government Code § 65300). The general plan has been aptly described as the "constitution for all future developments within the city or county. The property of virtually any local decision affecting land use and development depends upon consistency with applicable general plan and ils elements. Citizen of Goleta Vallev v, Board of Suoervisors (1990) 52 Cal.3d 553 (Governmenl Code § 65302). The consistency doctrine has been described as the "linch pin" of Cafifornia's land use and development laws. it is a principa~ thai infuses the concept of planned growth with the force of law. Corona- Nord Unified School DisL v. Cib/of Corona (1993) 17 CaI.App.4=""985. Haven View argues ~ha~ the City's Developmen~ Code adopied in 1983. which changed the designation oZ the project site from open space in Ihe Cily's genera[ plan ~o very low residential in ~he zoning ordinance is void and all approvals based on a void ordnance are a nullity. This would inctude the ci'.y's approval of Ihe tentative [rac[ in lg~0. the approval of the final map in 1987 and the approval of DR-98-13 in 1998. The issue of timeless of Haven Viev/s challenge is raised by both the City and Lauren. THE 1983 ZONhNG ORDINANCE if a s~atute authorizing a party to seek wril review exists, then the Petitioner mus~ comply with its deadlines. Government Code .~ 65009(c)2 limits actions or proceedings "to attach, review, sel aside, void. or annul the decision of a legislative body [o adopt or amend a zoning ordinance" to 90-days after the legislative body's decision. Governmenl Code § 65009 (e) provides ~ha~ upon the expiration of the time limits provided in this section, all persons are barred from any further aclion or proceeding. 1 No such challenge ~vas brought when the Develoomen Code was approved in 2 1993. Therefore all persons are now barred from challenging the city's developmenl 3 code even for inconsistency with the general plan. 4 THE 1990 TENTATIVE TRACT APPROVAL · 5 Again the applicable statute of limitations for a writ is provided by the underlying 6 statule authorizing the challenge to the governmen~ action. Government Code 7 §6499.37 applies with a 90 day time limit. Again, as reflected in the administrative 8 record no challenge was filed. Accordingly all persons here are now Iime barred from 9 challenging the subdivision of this 25-acre parcel ires 40 residential lots - even for 10 inconsistency with the general plan. 11 THE 1997 FINAL N1AP APPROVAL 12 The firs~ general plan incons stency challenge ,,./as. brough[ upon approval of the 13 final tract map in 1997. Final approval was g van by the City on October 15, 1997. -. On December 31, 1997, Haven Vie,.,/filed ape i ion for writ of mandate against i 5 the City and Lauren seeking ~o enjoin any city approve of the project The basis or 16 this challenge was ~he final map's inconsistency ','z~h the general plan. The court 17 sustained the Ci[y and Lauren's demurrare ,.,;itnoui leave [o amend. This judgmen~ i 8 was noDesled. I " 19 ~ The Court of Ap,ceal affirmed the trial ccu,'1's Cecision on November 9. 1999. 20 (E02338). 21 Said challenges are barred under the doctrine of Res Judicata 22 THE 1998 DR-98-13 APPROVAL 23 Haven View contends the City violated Governmen~ Code § 65567 by its z.~ approval of DR-13 based again upon inconsistency with the open space elemen~ of 25 general clan 25 Government Code § 65567 sta~es: 27 "No building permi~ may be issued, no subdivision map approve, and no 28 open-space zoning ordinance adopted, unless the proposed construction. subdivision -11- 1 or ordinance is consistent with the local open-space plan. 2 Design review is required for a project with five or more dwelling units. 3 The first review for this project 97-11 was denied on the finding that the 4 proposed design of home would not be compatible with the character of the 5 surrounding custom homes." Denial focused on desion concerns. 6 DR-13 was the rodesign of DR-11. 7 Haven View's challenge is rejected because: 8 (1) The discretionary act connected with DR98-13 has nothing to do with 9 allowable residential or open space DENSITY; 10 (2) The challenge is to zoning or the actuat subdivision and is time barred; 11 (3) Equitable principles set forth in YounGblood v. Board of Suoervisors 12 (1978) 22 Cal.3d 644 weigh against overturOing an unchallenged 9'year- 13 old decision to approve this subdivision. 14 Substantial Evidence in the record supports the approval of the City. 15 THIRD CAUSE - VIOLATION OF DEVELOPMENT CODE 16 ACCEPTANCE OF APPLICATION FOR DR-13 t7 The City's developmental code provides tha~ follo~ving the denial of a 18 developmen~ review application; no application for substantially the same use on I 9 substantially the same si~e shall be filed within one year from the date of denial. 20 Developmenl Code § 17.06.010(G). 21 The court finds this provision is directory rather than jurisdictional. Moreover, 22 no review was sought by perilloners. Even the purpose of the one-year wait provision 23 and thai denial of DR97-11 was based upon the incompatibility of "the design of the 24 homes" with "the character oE the surrounding custom homes". The city planner's 25 conclusion that the one-year ~vait provision need not be strictly applied in this situation 26 ~vas a reasonable interpretation. 27 TECHNICAL REVIEW COMMI~'FT'EE REVIEW 28 Review of all development design applications by the technical review -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 19 20 21 22 23 24 25 25 27 28 committee is mandated by Developmenl Code § 17.06010E2 and the committee "shah make a recommendation on each project for consideration by the Planning Commission of Cily Planner, if applicable. The "if applicable" phrase refers to the city planner as an alternative to the planning commission as the entity responsible for considering the applications based on the provisions of the Developmenl Code. The record demonstrale that the technical review committee reviewed substantially all of the items specified in Development Code § 17.06.010E.4 in connection with its consideralion of the tentative tract map on August 14, 1990 and that separale review of this project was not required. HILLSIDE DEVELOPMENT REGULATIONS The Hillside Development Regulations (Development Code) required certain documents be filed, as is the case with DR-13. before the application could be accepted. Specifically: (1) A naiural features map; (2) A separate colored cut and fill map; (3) A conceptual drainage and flood control faciliiies map; (4) A slope analysis map - 3 slope profZles; (5) A geologic soils report; (6) A statement of conditions for ultimate ownership and maintenance of the development. Haven Vie,,,/contends the above documents were not submitted and refers to them as the "Missing Hillside Documents". The City contends the required filings were made and approved during the processing of the ~entaiive traci and conceptual grading plan in 1990. The natura[ features map, cut and fill map, conceptual drainage and flood control facilities map, and stop analysis and slope profile maps, were submitted and approved with tentative 1 tract 14771. 2 Further conditions for approval of tract 14771 required the submission of a soils 3 report during the grading plan check of the proiect. 4 The statement of ultimate ownership and maintenance are contained in the 5 CC&R's that were recorded with the tract map in 1987. In August 1998 a ne'w cut and 6 fill map and a new slope analysis and slope profiles were submitted. 7 Government Code § 6510(b) provides: 8 No action, inaction, or recommendation by any public 9 agency or its legislative body or any of its administrative 10 agencies or officials on any matter subject to this title shah be 11 held invalid or set aside by any court on the ground of the 12 improper admission or rejection of evidence o.r by reason of any 13 error, irregularity, informality, neglecL or omission (hereafter, 14 error) as to any matter pertaining to petitions, applicatons. 15 notices. findings, records, hearings, reports, recommendat ons. 13 appeals, or any matters of procedure subjec~ Io this title, unless 17 the court finds that the error was prejud c al and that the party 18 complaining or appealing suffered substantial injury from thai 19 error and that a different resul~ would have been probable if the 20 error had nol occurred. There shall be no presumption that error 21 is preiudicia[ or that injury was done if the error is shown. 22 The court finds Haven Vie,,,/has failed to demonstrate any prejudicial. 23 substantial iniury and a likelihood of a different result because of any technical error or 24 violations of the Development Code. The purpose of Government Code Section 25 --35010(6) is to terminate recurrence of judicial decisions invalidating local land use 26 decisions for technical procedura omissions City of Sausafito v. Marin County (1970) 27 72 CaI.App.2d 550-557-558. 28 -14- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 27 28 1 2 3 4 5 6 7 8 9 FOURTH CAUSE OF ACTION (INADEQUATE FINDINGS) Under Development Code 17.06010F, the City was required to make four findings to approve the DR 98-13 application. 1. That the proposed projecl is consistent with the General Plan; and 2. That the proposed use is in accord with the objectives of the Oevelopmenl Code and the purposes of the district in which the site is located: and 3. That the proposed use is in compliance with each el~ the applicable provisions of the Development Code; and 4. That the proposed use, together with the conditions applicable thereto. will not be detrimental to the public h~alth, safety, or welfare, or materially injurious to properties or improvements in the viciniiy. Haven Vie,,,/contends thai Resolution 98-178, approving DR 98-13, omitled portions or all of certain required findings. Specifically, (1) the City did not find that DR 98-13 "is consistent v/i~.h the General Plan" and (2) the City did no~ find the! the proposed use "will no~ be detrimental ~o the pubtic health. sa~eW, or welfare." Haven Vie,,,/bases its challenge principally on the City's failure to "bridge the analytic gap between the approve! and ihe evidence in the record as required under Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515. Resolution g8-178 (26 AR:6474) contains the following pertinenl findings: c. The applicalion contemplales the conslruc~ion of 40 single family homes on 25.35 acres of land which is consis~en~ with the Very Low Residential land use designation of the General Plan: d. The application is consis~enl with objectives and requiremores of the Hillside Development Regulations and comelies with all development standards of the City of Poncho Cucamonga. and e. The proposed cesign in accord with ~he objectives of the Oevelooment Code and the purpose of ~he district in which the si~e is located. is in'compliance with each of ~he applicable provisions of the Develooment Code. and will not be materially injurious to proponies or improvemem's in the vicinity. -15- 1 2 3 5 6 7 The Court finds that there is substantial evidence in the record to support these findings. The findings support the requirements of Section 17.00.01 OF of the Development Code. Accordingly, pursuant to Government Code § 65010(b). there is no basis for setting aside the approval of DR-178. FIFTH CAUSE OF ACTION VIOLATION OF CEQA 8 Petitioners challenge the City's approval of DR-98-13 as having violaled the 9 California Environmental Quality Act (CEQA). Haven View contends that DR-13 is a 10 new and different "project" requiring a new environment review. 11 Haven View contends the City erred in analyzing the environmental impact of 12 DR 98-13 under Public Resources Co~e 21166 and th~ CEQA Guidelines. Under 13 their theory, the City should have sta~ed anew, and conducted a new study on DR-13 14 and determined whether to prepare a negative declaralion or an environmental impacl 15 repor~ on this design review application even though the City had already adopied a 16 negative declaration on the projec~ in 1990 when i~ approved the tracl map in 1990. 17 The Court finds DR-13 is the architectural and side-grading approval of a 18 recorded trac~ previously approved for a 40-lot subdivision in t 990. CEQA anlicipates i 9 there may be a series o~ approve s in connection with one project. Under the CEQA 20 Guidelines the term "projeci" refers to the activity which is being approved and which 21 may be subject to several discretionary approve s by Governmental agencies. The 22 ierm "projecI" does nol mean each governmental approval. 23 This development/design review did not constitute a new and different project 24 nor did it constitute a "substanlial change" in the projecl such as to warrant new or 25 , supplemen a environmental review. Committee for a Progressive Gilroy v. State 28 VVater Resources Control Bd, (1987) 192 CaI.App.3d 847. 27 The Court finds substaniial evidence in the record to support the City Counci['s 28 determination in Resolution 98-179. tha~ none of the criteria sel forth in Section 1,5162 3 4 5 6 7 8 9 10 11 12 t of the CEQA Guidelines were met or satisfied and accordingly no subsequent or 2 supplemental environmental review or environmental impact report was required with respect to DR-98-13 PETITION FOR WRIT OF MANDATE (GRADING PERMIT) Plaintiff contends that the building (grading) permit violates the City's general plan and Governmenl Code § 65567. Issuance of a grading perrail is a ministerial act review able by traditional mandamus. · ' A challenge Io the project based on General Plan inconsistency densily had to be broughl within 90 days oF the approval oF the tentalive map. Government Code 66499,37. Haven View Estates Homeowner's AssoFia[ion v. City of Rancho 13 Cucamonga RCV 31906. The challenge is time barred. 14 GOVERNMENT CODE SECTION 65567 15 No building perm ~ may be ssued, no subdivision map approved. 15 and no open space-zonng ordinance adopted, unless the 17 proposed cons~rud on, subdivision or ordinance is consisten~ with i8 local open-space plan. ! ~ Petitioner argues that this unequivocal s~a~uLory mandaLe requires invalidation 20 of the grading perm as a mat. tar of law. 2l As no~ed in the firs~ and second cause of action, the project is no~ inconsis~en~ 22 with open space plan. 23 The Court finds the City did not abuse its discrelion in issuing the grading 24 permit. There is subsretain[ evidence in the record lo support, the Ci[y's De[erminat on. 25 ~o issue the permit. 2.'3 REMOVAL OF EARTHEN LEVEE When ibis subdivision is developed. par~ of the earthen levee will be removed. Petitioners have raised safely concerns. -17- 1 The Court finds the removal of the levee was approved at the time that the 2 PIanning Commission ac~ed on the Tentative Tract Map and Conceptual Grading Plan 3 in 1990. The time objecl to the removal of the levee has come and gone. Perilloners 4 should have apoea ed the Planning Commission's determination to allow removal of 5 the levee to the City Council and then if they were dissatisfied with the council's 6 actions thereafter, brought an action within the 90-day statute of limitations of 7 Government Code Section 66499.37. 8 The Court finds that substantial evidence supports the City's determination that 9 removal of the levee will not be detrimental to the public health, safety, or welfare, or 10 materially injurious Io the properties or improvemania in the vicinity. 11 Petitioners' assertion of public danger is based on the adequacy of the Deer 12 Creek Basin and Channel to protect downslope propert.as from flooding and debris 13 flow. They contend (1) tha~ the earthen levee was part of the Cucamonga Creek Flood 14 Control Project under which the Army Corps of Engineers undertook to construct the 15 Deer Creek Debris Basin and Channel; (2) that the Basin is undersized when I 6 evabated by the standards currently used by the Army Corps; and (3) that the levee is 17 needed as a secondary source of protec on should ~he Basin fail. 18 ! The record, however. is rep!e~e v/ith evidence ~hat removal of the [evee will not 19 endanger the public. For example, the record reflects that the Basin and Channel 20 were constructed in 1983 and sized to handle a standard project flood even[. 6 AR 21 1570. The State Departmenl of Water Resources through its Division of Safety of 22 Dams certified the Debris Basin. and makes annual inspections to assure the dam 23 aspect of the Debris Basin meeis state guidelines. The Debris Basin only retains 2 '4 ,,va(er during short periods of ~ime. As a result of ~he construction of the Basin and 25 l Channel. the Counly Flood Control District (1) abandoned its flood easemenl across 25 the Prope~y in 1985. reserving no righis to maintain or preserve the levee; (2) 27 acknowledged the grading of a major breach in the levee so as to provide an easterly 28 emergeno/access road for Haven Vie,,v Estates in 1989; (3) supported the 1991 -18- 1 decision of the Federal Emergency ~.4anagemenl Agency to lift the "flood risk" 2 designation on the Property; and (4) approved the construction of the onsile 3 replacement channel along the northern portion of the property which is designed to 4 handle any remaining offsite flow downslope of the Basin. 1 A.R. 279; 2 A.R. 356; 6 5 A.R. 1524, 1572; 7 A.R. 1848; 29 A.R. 7094 6 The record also includes correspondence from the Chief of the Army Corps' 7 Engineering Division who informed the City in 1997 of the original design 8 consideralions of the Deer Creek Debris Basin. He explained that the facility was 9 evaluated for a "magnilude 8 on the San Andteas Faull and a magnitude 6.4 on the 10 Cucamonga Fauli," and thai "the embankment would perform adequalely under both 11 earthquake conditions, maintaining its integrity and function as a debris basin." 6 A.R. 12 1489. Further, he stated tha~ "[biased on the revievz of th. is information, the U.S. Army 13 Corps of Engineers affirms the Deer Creek Basin ~o be safe from failure during a major 14 earthquake on either the San Andreas or Cucamonga Faults." 6 A.R. 1490. The 15 County Flood Control District, which ~ook over the Deer Creek Basin's operation and 16 maintenance, advised the Ciiv "The Corps used its normal high standards for the 17 design and construction." 6 A.R. 1570 18 FEMA revised the Floor Insurance Ra~e Map covering ~he Property in 1991, 19 remcving the Proper~.y from the special flood hazard area (and all prope~y north of the 20 tevee and south of the Debris Basin). i A,R. 279. FEMA confirmed thai with the 21 comple~ion of the Deer Creek Basin and Channel, the Property is nol within the 100- 22 year flood plain. The County Floo~ Control Distric~ also makes period c inspections of 23 ~he Deer Creek Basin 22 A, R. 5525-5527. 24 More importantly, in November and December of 1999, ~he Army Corps of 25 Engineers confirmed tha~ the earthen levee was never a functional part of the 28 Cucamonga Creek Flood Control Projeci, and is not required for flood control 27 crotection on Deer Creek. Further the Army CorDs reeve uated the debris yield for the 28 !Basin using the curtoni Los Angeles 1992 method and determined that the Basin has -19- 1 2 3 4 5 6 7 8 9 10 11 12 13 t4 15 16 17 18 19 20 21 22 23 24 25 27 23 storage capacity for a 111 -year flood (.009 probability) and a channel flood capacity for a 500-year flood (.002 probability). The Army Corps also reconfirmed that the Basin is safe from failure during a major eaChquake on either the San Andreas or Cucamonga faults. Finally, the Army Corps confirmed that three existing deflector levees constructed by the San Bemardino County Flood Control District in 1971 between the Basin and the Prope~y afford adequate secondary flood protection, and that the earthen levee is not necessary. Supplemental Exhibits filed on January 5, 2000, Exs. A and B. Consistent with these findings, FEMA indicated on February 16. 2000, that no revision to the Flood Insurance Rate iVlap, which shows that the Property is outside of any special flood hazard area, was necessan/. Further supplemental Exhibits filed on February 22, 2000, Ex, C. Clearly, substantial evidence supports the City Council's finding that the Project will not constitute a detrimen~ to the public health, safety. or welfare. SPIRIT OF SAGE COUNCIL FIRST CAUSE OF ACTION VIOLATION OF CEQA Petitioner, Spiri~ of Sage Councfl. argues that the Ci~y's approval of DR 58-13 is a fuRher discretionary action concerning the same projecL As a discretionary action, Public Resource Code Section 21163 and CEQA Guidelines 15162 provide the applicable standard of analysis that the City was obligated to follow. As previously explained, the City's review of DR-13 did not involve reviewing a "projecE' as defined by CEQA, but rather constituted subsequent discrelionary action concerning the same project for which a nagalive declaration had been approved in 1990. DR-13 was not a new project for purposes of CEQA. Once a Negative Declaration has been adopted for a project, a public agency's discretion to require supplemen!el environmental review is limited. Sierra Club v. County of Sonoma (1992) 6 CaI.App.4~'~ 1307. 1316-1317. A subsequent EIR shall not -20- t 3 4 5 6 7 8 9 10 11 12 be required unless "substantial changes" are proposed in the project or ~n its circumstances which will require "major revisions" of the previously approved environmental doc~umenl or "new informalion, which was not known or could not have been known" al the lime oF the EIR or Negalive Declaration, becomes available. Pub. Res. Code § 21166; Guidelines § 15162(a). The "new information" must show that the projecl will have a significant impact no~ previously analyzed or that the impact will be substantially more severe than previously analyzed. Guidelines, § 15162(a)(3)(A). (C); A Local & Regional Monitor v. City dLos Angeles (1993) 12 CaI.App.4th 1773. 1800. The purpose of this rule is to avoid repea~ing the CEQA process one environmental review has been completed and ihe dine for challenging tha~ process has expired. Kostka & Zischke, Practice Under ~he Col. Environmental Quality Ad (CEB 1997), 19.37. p, 745. "Section 21166 is in~endect to provide a betarice agains~ the burdens 13 ~ created by the environmenial review process and to accord a reasonable measure of i'4 ~ finality and certainty ~o the results ach eyed." Bowman v. City of Petaluma (1966) 185 15 Cat. App.3d 1065. 107~. .^ I ,9 i'~ When ~he Court reviews sn o~e::cy decision no~ ~o require a subsequen~ or ]1 17 sus.olemen a EIR. ~he substantial eviCence ~es~ aoo~ies. The agency's decision not to :3 i'; require further environmental revievz "mus~. be upheld if it is supposed by substantial i~ evidence in the reccrd as a whole." Gentn/v. C/ty of Murrieta (1995) 36 CaI.App.4~ 20 1359. I~01. In determining whether the City's decision is supposed by subs~an[ial 2 i i i ~ :a, ~he Cou~ does not reweigh the evidence. Sunset Amusement Co. v. Board 22 ~iofPolice Commissioners (1972) 7 Cat,3d 64 76 Th~ Cou~ 'may no subs~itu[ i~s 23 ~ .... " ' .... ' ' ~ ' e Jr ~ ~,, own juegmena rot ~na or ~ne [dec~monmaking] agency" (A Local a Regional Mon~' 25 25 27 City o," Los Angeles (1993) 12 Cal. App.4:''~ 1773. 1799-1~00) and "must resolve reasonable doubts in [avor of the administrative findings and decision."' Laurel Heights Improvement Assn, v. Regents o," the Uni,/. of Ca;ifcrnia (1958) 47 Cal.3d 376. 393. As such. ';i~ ~here are conflicts in ihe evidence, their resolution is for the agency." S,"er,'a Club, 6 CaI.Ap,4::' at 1317. The agency is "permitted ~o give more weight to -21 - 1 2 3 4 5 6 7 8 9 10 11 13 14 15 16 17 !8 19 20 21 22 23 24 25 25 27 28 some of the evidence and to favor the opinions and estimates of some of the experts over others." Greenbaum v. City of Los Ange/es (1984) 153 CaI.App.3d 391,413. Under Guidelines sections 15162(aF(b), Petitioner is instead required to demonstrate changed circumstances or previously unobtainable information which shows that the Project will in fact have significant environmental impacts not previously considered. A Local & Regional Monitor, 12 CaI.App.4~ at 1800; Fund for Environmental Defense v. County of Orange (1988) 204 CaI.App.3~d 1538, 1552. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES The Court finds Petitioners failed to exhaust its administrative remedies by failing to present evidence and argument to the Planning Commission or City Council in a timely manner, "during the public comment provided by "CEQA" or before the close of hearings by the City on September 16, 1998. Petitioners atlempted to lodge 482 pages inlo the record on November 18, 1998, so they could claim to be raising timely objections [o preserve its right to challenge the City's decision in Court. This was ineffectual as hearings were closed on September 15, 1998. Neither in its oral commahis before the City Council [25 A.R. 6451-6456] nor in i~s 3-page letter to the Ci!y [27 A.R. 6507-6609t did Spirii of Sage articulate the basis for its claim before this Court ~hai the City was required to prepare a supplemental EIR because of changes in specific federal and state regulations and the enactment of certain new s~ate laws and state guidelines which. according ~o Spiril of Sage. now require thal the City impose mitigation measures on the projec~ for the removal of coastal sage scrub nol occupied by any listed species. On November 18, 1998, Spiril of Sage did express - both orally and in writing - concerns that Lauren should have conducted surveys for the San Bemardino kangaroo ra~ on the Property. 25 A.R. 6452-6453; 27 A,R. 6607-6608. However, Spirit of Sage apparently did not realize thai such sunzeys had been conducted. 19 A.R. 4402-4.'415. Moreover. Spirit of Sage does not raise this as a deficiency before this 1 2 3 4 5 6 7 8 9 10 11 13 14 i5 16 17 18 ie 20 21 22 23 24 25 26 27 28 Court. Spirit of Sage also claimed that it had submitted documents showing that the coastal California gnatcatcher ("Gnatcatched'). a faderally listed, threatened bird species, occupied the Property. 26 A.R. 6454-6455. However, the administrative record shows that the City had substantial evidence to conclude that Gnatcatchers did not occupy the Property, and again Spirit of Sage did not raise this as a deficiency before this Court. 19 A.R. 4387-4401; 22 A.R. 5272-5283; 22 A.R. 5288-5290; 22 A.R. 5315-5330. Spirit of Sage's 3-page letter to the Cily likewise failed to articulate the legal deficiencies and theories that are now raised before this Court. In its brief before this Court, Spiri~ of Sage now raises for the firs~ time several claims of mixed fact and law discussed in more detail in the next section which in essence claim that certain new laws or changes in regulations after the Projeci's approva. I in 1990 now require that the Project provide specific biological mitigation and monitoring measures for any impacts to any sage scrub on the Property - whether the sage scrub is occupied by the Gnatcatcher or not. A. fter a careful. and even generous, ~ev{e,,,/c~ Spirit of Sago's ~estimony, however, the Court finds the! Spirit o~ Sage simply did no~ raise this issue before the City. P~itioners cannol raise issues ~ha[ have not been articuta!ed with reasonable specifici~y before the public agency. Resource De/ense Fund v. LAFCO (1987) 191 CaI.App.3d 886. 894-895; Temecu/a Band of Luiseno Mission Indians v. Rancho Cal. [/Vater District (1996) 43 Cat. App.4~'~ 425. 439. Unless an individual provides the public agency with an oppo~unity Io respond Io his specific factual claims and legal objections. the public hearing process ,,viii be fatally cornpromised. SPIRIT OF SAGE ~vllSCONSTRUES THE EFFECTS OF THE POST-1990 LAVVS. REGULATIONS AND PROGRAMS Even had Spirii of Sage not failed ~o exhaus~ i~s administrative remedies, the Court finds that the City's approval of DR 98-13 should no~ be overturned for the reasons advanced by Spiril o~ Sage. In its argument before this Court, Petitioner claims that since the Projec~'s approve in 1990, certain new laws have been enacted, 2 certain conservation planning efforts have commenced and ce~ain regulations and 3 guidelines have been issued which have the legal effect of constituting changed 4 circumstances or new information requiring the City Io prepare a supplemental or 5 subsequent EIR for the Project under Cal. Pub. Res. Code § 21166 and CEQA 6 Guidelines § 15162. 7 Spirit of Sage cites the following events, either individually or cumu atively. as 8 creating changed circumstances which required the City to prepare a supplemental 9 EIR: (i) the enactmen~ of the Natural Communities Conservation Planning Act of 10 1992, Col. Fish & Game Code Section 2800 et saq., CNCCP Act"), (2) the issuance in 11 1993 of a federal rule lisdng the Gnatcatcher as "threatened" under the federal 12 Endangered Species Act CESA") and erovid ng an alternative means by which the 13 "take" of Gnatcatchers can comply with the prohibi!ions agains~ "take" under the ESA, 14 (3) the issuance in 1993 of NCCP Process and Conservation Guidelines for 15 developing Na~urat Communities Conservation Plans under ihe NCCP Act, and (4) the 18 execution of a Memor_=ndum of Understanding in 1995 by r. he City ,,'/hereby the City 17 , agreed ~o explore the formation of a regional conserveLion plan w th approx mae y 12 18 J other jurisdidions, 19 " ,-. review of ~hesa four documents shows ~haL none of them establish new 20 information about significan~ environmental impacts of the Project tha~ was no~ known 21 - or was unknowable - when the Projec~ was approved in 1990, Likewise, none of 22 these documents substantially changed the circumstances under which the Project is 23 being unde~aken requiring major revisions of the Neeadve Declaration due to the I ~ 24 I involvement of significant new environmental effects. The Court also finds that the 25 ~ environmental consequences o[ concern [o Spiri~ of Sage (i.e., clearing natural 26 ] vegetation) relate ~o the creation of the 40-1o[ subdivis on, no~ Desiqn Review of the 27 homes [o be constructed ,.viabin ~he subdivision. In any event. the NCCP Act simply allows for ~he volunta~ development of -94 - 2~ regional habitat conservation programs in the Stale. It does not provide any 2 information pertinent to this Project or place any new requirements on this Project. 3 The federal rule listing the Gnatcalcher as a threatened species under federal 4 law does not apply to this Project site, as the City had before it substantial evidence 5 that Gnatcatchers did nol occupy the Property. 19 A.R. 43874401; 22 A.R. 5272- 6 5283; 22 A.R. 5288-5290; 22; A.R. 5315-5330. See Sweet Home Chapter of 7 Communities for a Great Oregon v. Babbitt (1995) 115 S. Ct. 2407 (to constitute the 8 take of a species, actual injury or death of one or more members of the species musl 9 be established). The federal rule listing the Gna~catcher does not mandate that the 10 City regulate the loss of unoccupied sage scrub hob tat; rather, it makes the "taking" of 11 a Gnatcatcher a violation of the ESA unless such taking is authorized under the ESA. 12 F "~ ~ the urtnJmor_. Process and Consen/a~ion Guidelines promulgaled under the NCCP 13 Act are specifically non-regulatory in na~.ure. Col. Fish & Game Code § 2825; 27 A.R. 14 8679. Their purpose is ~o help guide federal, sta(e and local jurisdictions as to how 15 they may be able to successfully develop NGCP plans oursuan to the NCCP Acl. 27 18 A .....079, 6748-7" 17 Also, Spirit of Sa.ge misconstrues the effect of the federal Section 4(d) Rule for ia I ~.he Gnaicatcher. 27 A..R. 6611-6619; 58 Fed. Rag 65088 (December 10, 1993). Thai · 19 !federal rule does not require a local jurisdiction. such as the City, to regulate, or 20 require miiigadon for, the loss of sage scrub habital unoccupied by the Gnatcatcher; 21 ra~her, i[ allo,,vs a local jurisdiction certain privileges under federal law should that local 22 jurisdiction voluntarily elect ~o comply ,.,.'ith a series of specified conditions, one of 23 which would be io regulate the loss of coastal saga scrub habital unoccupied by the 24 ! Ga 27 A.R. 6617, 6618-6619. 6755, 6759. In short. one method by which a , a:caLcner. 25 ~j local jurisdiction can obtain authoriiy to "take" Gnaicatchers ,.,,'ithou~ violaling the ESA 26 !i is ~o enroll in the NCCP Procram and ~o utilize and abide by the inlerim habital loss · l cro,:isions associated ,.,.'iih the Section 4(d) Rule. 27 A.R. 6619, 6671. Although camein jurisdictions are u~ilizing this specific incidental take authority 27 2.a process, the City is not one of them. 27 A,R. 6625-26. In fact, the U.S. Fish & Wildlife 2 Service fu~her confirmed that the Cif. y was not par~icipat ng in this speca process in 3 its request that Lauren conduct additional Gnatcatcher surveys in 1997, because the 4 USFWS's new Gnatcatcher survey recommendations specifically suggest different 5 numbers of surveys depend ng on whether a survey silo is located within a jurisdiction 6 utilizing the special Section 4(d) "take" authorization process or not. 3 A.R. 794-95. 7 The USFWS specifically acknowledged that the City was not utilizing the special 8 process. 6 A.R. 1596. In fact, Petitioner Spirit of Sage even admitted this very fact to 9 the Cily in an earlier [et~er. 6 A.R. 1576. The City had not elected to pursue this 10 optional program in 1998. 6 A.R. 1596; 27 A.R. 6625-26; 6 A.R. 1578. It is only if the 11 City elects to follow this specific alternative program for acquiring incidenlal take 12 authority for the GnatcaIcher tha~ the NCCP Proces~ Guidelines instrucl a local 13 jurisdidion to analyze the effects o~, and to regulate the removal of, unoccupied sage 14 scrub habitat. 15 Additionally, the 1995 MOU ,,,,'as speci~ica y worded ,'.o provide tha~ the City 18 would noi need io conduc: a subseq~:en~ EIR for previously approved projects. 3 A.R. 17 I 807-808:3 A.R. 825-826; 3 A.R. 782-784. Legal counsel for the California Departmen 18 o~ Fish & Game confirmed tha~ ~he MOU did not require the City ~o prepare a 19 subsequenE EIR. 18 A.R, 4304. Thus, the City did not err in concluding thai the MOU 20 did no~ constituie a basis for triggering the need for a suop[emen a EIR. 21 Spiri of Sage also con[ends that CEQA requires thai the environment impacts 22 from a project previously appro,,ed b,/a negative declaration must be re-analyzed in 23 lighl o~ the ongoing prepare on d a potential regional habilat conservation plan which 24 itseli has no~ been adopted under CEQA. SpeciEically. Spiril of Sage points to a habitat 25 conservedon planning effort currendy being exp!ored by a number of local jurisdictions, ~he County o~ San Bernardino. and :he City which may ultimately culminate one day in 27 adoption o~ a regional habita~ ccnse~a~ion program and plan for an area of San 28 ~ernardino County, which ~nd~des ~he Prope~y. CEQA, however, does no~ require the 1 preparation of a supplemental EIR in such circumstances. Chaparral Greens v. City of 2 Chula Wsta (1996) 50 CaI.App.4~h 1134. ["in the case of draft or proposed regional 3 conservation plans, there is no express legislation or regulatory requiremen~ under 4 CEQA that a public agency speculate as to or rely on proposed or draft regional plans 5 in evaluating a project."] 6 In the present case, County's planning effort has not even progressed to the 7 point where a draft plan has been produced. The City had no evidence before il, other 8 than perhaps some unsupported speculation, that the development of the Property 9 would damage any regional conservation plan. Mere specular on cannol constilule 10 substanlial evidence. Association for Protection of Environmental Values in Ukiah v. 11 City of Ukiah (1991 ) 2 Cai.App.4I'~ 720. In loci, it would be extremely difficull if not 12 impossible to evaluate the environmental impacts oF removing sage scrub on the 13 Property against a plan which is not yet even in draft form. '" The Court finds no CEQA violations occurred in connection with the approve o~ 15 DR98-13. ~9 DISPOSITION 17 The firs~ amended petition for writ o~ manda[e in Case No. RCV37920 is denied. i8 The petition for writ oZ mandate in Case No. RCV38255 is denied. 19 Respondant and Real Parties In Interest shall recover their costs in this action. 20 22 \ . Judge of the Superior Court 24 25 25 27 28 t 6 7 9 tO t2 [6 [9 20 2[ 22 23 24 25 26 27 28 29 30 3[ SUPERIOR COURT IN THE STATE OF CALIFORNIA COUNTY OF S..-MN BERNARDINO STATE OF CALEFOP-.NIA ) ) COUt'NTY OF SA.N BEP-aN'.&P,.DINO ) [, Bertha Sal~ar, the undersigned say: That I am a Clerk of the Superior Court and citizen of the United States, employed in the County of San Bernardino, State of California, over eighteen years and not a party to the within action. the: That l served a copy of the attached document on interested parties by sending a copy of STATENEg,NT OF DECISION (gCV37920) (X) Mailing a copy of said document by U.S. Mail to: Karl Haws, Esq. Mundell, Odium, & Haws 275 W. Hospitality Ln., Ste. S00 San Bemardino, CA 92408-3240 Robert D. Crockett, Esq. Latham & Walkins .., 5th. .. o:: W. St Ste. 4000 Los .-Mqgeles, CA 9007 [ Craig A. Sherman, Esq. Attorney at Law t901 First Ave., Ste. 335 San Diego, CA 92101-2322 ..",fitchell E. Abbott, Esq. Richards, Watson & Gershon Attorneys at Law 333 S. Hope St., 38t!' Floor Los .Angeles, CA. 90071-[469 Robert S. Bower, Esq. Rutan & Tucker, LLP 61 [ A.nton Blvd.. SIc. 1400 Costa Mesa, CA 92626-t998 1 4 5 6 7 8 9 12 [3 L4 [7 t9 20 2L 22 23 25 26 27 29 30 3[ Mark R. McGuire, Esq. Andrew K. Harczell, Esq. Hewill & McGuire, LLP 19900 MacArthur Btvd., Ste. I050 Ir~ine, CA 92612 declare under penalty of perjury under the laws of the State of Ca fornia, that the foregoing is true and correct. Executed on May 16, 2000 at Rancho Cucamonga, California. Clerk of the Superior Court COUNTY OF LOS ANGELES DEPARTMENT OF PUBLIC WORKS ADDR,~5S ALL COP, RESPONDENCE TO: P.O. BOX 1460 ALRAM3RA, CALIFOR,~t.A g 1802-1460 May 17, 2000 REFER TO FILE; ' Mr. William J. O'Neil City Engineer City of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91729 Dear Mr. O'Neii: DEER CREEK DEBRIS BASIN I have reviewed your letter dated May 11,2000, asking whether the opinions expressed in a letter from Michael J. Bohlander dated May 1, 2000, concerning the capacity of the Deer Creek Debris Basin and the design standards of the U.S. Army Corps of Engineers is the official position of the Los Angeles County Department of Public Works. The official position of the Los Angeles County Department of Public Works is that we have no jurisdiction over the design, construction, and/or operation of flood control facilities that belong to any other agency. The opinions expressed by Mr. Bohlander are not those of the Department and should not be used to evaluate the level of flood.protection provided by the Deer-C?eek DebrisBasin..:- Mr. Bohlander's review was in response i~"a written request dated April 14, 2000, from Mr. Douglas Hamilton, P. E. of Exponent which indicated that his study had implications on regional flood protection including Ontario International Airport. Mr. Bohlander, with his experience in dealing with debris issues in Los Angeles County, was requested to review Mr. Hamiiton's work as a professional courtesy. Mr. Bohtander did not review the subject debris basin following the design standards of the Corps of Engineers. His review was based on capacity standards and criteria used by the Department for our own facilities. Therefore, Mr. Bohlander's comments are in no way a reflection on how the Los Angeles County Department of Public Works views the design standards of the Corps of Engineers. I regret any confusion this has caused. Mr. W~lliam J. O'Neil May 17, 2000 Page 2 Please feel free to contact me at (626) 4584016 should you have any further questions. Very truly yours, HARRY W. STONE 2ctf.~ of P lic Works CC: U. S. Army Corps of Engineers (Joseph B. Evelyn) San Bernardino County Flood Control District (Ken Miller) Ju]--OS--O0 Ol:20P Zephyr Pa~tner~ LLC 949 752-0667 P.O3 DEPARTMENT Of= THE ARMY June 20, 2000 Office of the Chief Hydrologyand Hydraulics Branch Honorable ~3rbara ~xer United States Senate Washington, DC 20510-0505 Dear Senator Boxer: 'A May 31, 2000 letter from Mr. Eric J. Vizcaine, your Director of Constituent Services, requested review and comment on a JanUary 17, 2000 letter from Mr. Robert J. cristiano, one of your constituents. Thank you for the opportunity to provide inforlnation regarding Mr. Cristiano's letter concerning Deer Creek Reception Levee located in Rancho Cucamonga, San Bernardlno county, California. Mar. Vizcaine's letter states that Mr. Cristianc's concern was "a difficulty he incurred with the United States Army Corps of Engineers." In reading Mr. Cristiano's letter; however, his concern appears to be his disagreement with the need for additional technical studies of the level of flood protection afforded by. the Deer Creek Debris Basin and Channel given that the Corps of Engineers maintains that the project provides greater than 100-year flood protection. Your letters of November 3, 1999, November 16, 1999 and January 19, 2000 to Dr. Joseph W. Westphal, Assistant Secretary of Army for Civil Works, requested additional Corps of Engineers evaluation of flood protection measures on Deer Creek including the Deer Creek Debris Basin. In your letter of January 19, 2000 to Mr. James Lee Witt, Director of the Federal Emergency Management Agency (FEF~), both you and Senator Feinstein formally requested FEMA to conduct an independent study of Deer Creek. FEMA responded in their letter of February 16, 2000 (Enclosure 1) that they would not conduct an independen~ engineering study of Deer Creek, and will continue to rely on the determination of the Corps of Engineers with respect to certification that the project affords Base Flood (1-percent annual chance or 1CO-year) protection. Subsequent FF~MA letters dated May 30, 2000 to the Corps of Engineers and San Bernardino County (Enclosures 2 and 3, respectively) again reaffirm FEMA's decision and policy to accept Corps of Engineers certification of flood control projects. P. o4 -2- Mr. Cristiano questions whether the conduct of an additional safety study at public expense is a "prudent use of taxpayers dollars." Re asks that you consider the opinion of the Corps of Engineers in deciding whether to recommend additional studies of the level of protection provided by Deer Creek Debris Basin and Channel. The Corps of Engineers planned, designed, and constructed the Deer Creek Debris Basin and Channel as part of the Cucamonga Creek Flood Control Project, which was then transferred to San Bernardino County Flood control District (SBCFCD) for operation and~intenance. Construction of the project was completed in 1984 and it has performed flawlessly in preventing downstream floo~ damages since that time. The Deer Creek Reception Levee was a SBCFCD flood control levee constructed prior to the completion of the Corps project, and is no longer needed to provide 100-year flood protection alon~ Deer Creek. The eastern portion of Deer Creek Reception Levee is now located on privately-owned land that was surplused by SBCFCD after completion of the Corps project. Corps of Engineers letters of November 2, 1999, December 16, 1999, and January 12~ 2000 (Enclosures 4, 5, and 6, respectively), referred to by Mr. Crlstiano, reaffirmed the Corpsm position that Deer Creek Debris Basin and Channel provides greater than 100-year flood protection. Dr. Westphal's letter to you dated March 6, 2000 (Enclosure 7) also expressed confidence that the Deer Creek project continues to provide the community with a high level of flood protection. opponents of the Lauren Development, which would remove the eastern portion of the Deer Creek Reception Levee in constructing 40 homes on about 25 acres, continue to question the capability of the Deer Creek Debris Basin and Channel to provide 100-year flood protection. They are adamant in their position that the Deer Creek Reception Levee is necessary to ~upplement the flood protection provided by Deer Creek Debris Basin and Channel. To support their position they recently hired the firm of Exponent Inc. that produced a report, vhich concludes the Deer Creek Debris Basin is under sized and incapable of capturing ~he estimated 100-year debris yield from the watershed. The Los Angeles District Corps of Engineers is currently evaluating this report and will provide you a copy of Our findings When completed. However, it is not necessary to wait for completion of our evaluation of the Exponent Inc. report to address Mr. Cristiano's question regarding the need for an additional independent technical safety study. The deficiencies cited in the Exponent jul--O5-O0 Ol:20P Z~phyr pa~-lsn~rs LLC 949 752-0667 p,05 --3- Inc. report, if Valid, are readily corrected through simple excavation of additional sediment from the existing debris bash. The funding that would be expended on an additional study would be better spent on removal of additional sediment so as to enhance the flood control capability of the existing debris basin. M~mhers of my staff met with Dtr. Cristiano and his attorney, Mr. Andrew Rartzell, along with representatives of the City of Rancho Cucamonga and SBCFCD on January 12, 2000 to provide information related to the design and level of flood protection provided by Deer Creek Debris Basin and Channel. We will continue to coordinate with Mr. Cristiano and representatives of the local community as appropriate regarding flood control issues on Deer Creek. If you need additional information or further assistance regarding Deer Creek flood control issues please feel free to contact me at 213-452-3961. For technical issues your staff may wish to contact Mr. Richard Leifield, Acting Chief of Engineering Division, at 213-452-3629, or Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, at 213-452-3525. A copy of this letter is being furnished to your local office. Sincerely, Enclosures Copy furnished: ,-Local Address - San Francisco Federal Emergency Management Agency Washington, D.C. 20472 2000 Colonel John P. Carroll Commander, Los 'Angeles District U.S. Army Corps of Engineers P.O. Box 532711 Los Angeles, CA 90053 Dear Colonel Carroll: This letter transmits the report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Debris Basin," prepared by Exponent, Inc., dated April 26, 2000, to your office for review. Based on discussions between the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USAGE), we understand that the USACE will review this report to determine its effect on the certification of the Deer Creek Debris Basin. The USAGE has previously certified that the Deer Creek Debris Basin will provide protection from the base (1-percent-annual-chance) flood. We look fomatrd to receiving the USACE's determination on the certification of the Deer Creek Debris Basin and its effects on the Flood Insurance Rate Map (FIRM) for San Bernardino County, Califomia and Incorporated Areas. We v,~nt to take this opportunity to emphasize that in a situation like this it is essential that your Agency perform a thorough review of the Exponent report to ensure an accamte determination concerning the certification of the Deer Creek Debris Basin. If the USACE's revie~v of the above-referenced mpott results in the de-certification of the Deer Creek Debris Basin, a revision to the FIRM would be required. Additional analyses would need to be submitted in support of the revision to determine the extent of the flood hazard downslope of the basin, including the effects of the Deer Creek reception levee on the flood haTnrd. In order to show that this levee provides base flood protection, we must receive documentation to show that the levee can be credited with providing such protection. The data submittal requirements pertaining to levees are described in Section 65.10 of the National Flood Insurance Program (NFIP) regulations. The data submittal requirements pertaining to structural flood control measures in areas subject to alluvial fan flooding, such as the areas downslope of where Deer Canyon exits the mountain front, are described in Section 65.13 of the NFIP regulations. A copy of the NFIP regulations is enclosed for your use. These analyses may be provided by the USACE, local government, or a private entity, and will be used to map the extent of the flood hazard. In addition to the review of the above-referenced report, the Operation and Maintenance Plan for the Deer Creek Debris Basin should be reviewed to determine if the activities described in that plan have been carried out by the agency responsible for the maintenance of the basin. In order to maintain certification of the basin, this plan must remain in effect. If the agency responsible for carrying out the plan cannot comply with the activities listed therein, then the basin should be de-certified and the analyses described above submitted. 2 We look forward to hearing from you regarding the certification of this basin and its effects on the FIRM. If you have any questions, please contact Mr. Michael Grimm of my staff by telephone at (202) 646-2878 or by facsimile at (202) 646-4596. Enclosures Director, Tcchnica ' ' ' CC: The Honorable Barbara Boxer U.S. Senate The Honorable Dianne Feinstein U.S. Senate The Honorable Joseph Baca U.S. House of Representatives The Honorable Gray Davis Governor, State of Califomia Mr. Joseph Evelyn Chief, Hydrology and Hydraulics Branch USACE, LA District Mr. Kenneth Zwickl Planning Division USACE, Headquarters Mr. Dallas Jones Director, California Office of Emergency Services Mr. Ken A. Miller Director, Deparanent of Transportation and Flood Control San Bemardino County Mr. Mike Fox Chief, Water Resources Division Department of Transportation and Flood Control San Bemardino County Mr. Jack Eldridge Chief, Community Mitigation Programs Branch FEMA, Region IX Mr. Dean G. Dunlavey Latham & Watkins Mr. Andrew K. Hartzell'-/ Hewitt & McGuire, LLP Federal Emergency Management Agency Washington, D.C. 20472 M kY30 2000 The Honorabl~i Jon D. MikeIs Chairman, Board of Supervisors San Bemardino County County Govemment Center 385 North Arrowhead Avenue, Fifth Floor San Bemardino, CA 92415-0110 Dear Mr. MikeIs: At the request of The Honorable Barbara Boxer, United States Senate, we are writing to clarify the Federal Emergency Management Agency's (FEMA's) position on the certification of the Deer Creek Detention Basin by the U.S. Army Corps of Engineers CLISACE) and the effects of this certification on local floodplain management. The USAGE has previously certified that the Deer Creek Debris Basin will provide protection from the base (l-percent-annual-chance) flood. Under separate cover, we transmitted the report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Debris Basin," prepared by Exponent, Inc., dated April 26, 2000, to the USAGE for their review to determine its effect on the certification of the basin. FEMA's policy is to accept the USACE certification of flood control projects. Once the USACE has issued its certification of a project, FEMA is required to change the Flood Insurance Rate Map (FIRM) to reduce or eliminate the Special Flood Hazard Area (SFHA), the area inundated by the base flood, to reflect the project's protection. Because the Deer Creek Debris Basin continues to be certified by the USACE, the downslope area is designated Zone X, an area outside the SFHA. As pan of its floodplain management practices, a community may elect to use the FIRM issued by FEMA or impose stricter criteria, which could still restrict or prohibit development in the area protected by the flood control project. In many parts of the counl~y, communities are prohibiting new development and rejecting attempts for the construction of flood control projects. If the USACE's review of the above-referenced report results in the de-certification of the Deer Creek Debris Basin. a revision to the FIRM would be required. Additional analyses would need to be submitted in support of the revision to determine the extent of the flood baTard downslope of the basin, including the effects of the Deer Creek reception levee on the flood hazard. In order to show that this levee provides base flood protection, we must receive documentation to show that the levee can be credited with providing such protection. These analyses may be provided by the USACE, local government, or a private entity, and will be used to map the extent of the flood hazard. In addition to the review of the above-referenced report, the Operation and Maintenance Plan for the Deer Creek Debris Basin should be reviewed to determine if the activities described in that plan have been carried out by the agency responsible for the maintenance of the basin. In order to maintain certification of the basin, this plan must remain in effect. If the agency responsible for carrying out the plan cannot comply with the activities listed therein, then the basin should be de-certified and the analyses described above submitted. If you have any questions or would like to further discuss the community's floodplain management practices, pleaSe contact Mr. Michael Grimm of my staff by telephone at (202) 646-2878 or by facsimile at (202) 646-4596. · Sincerely, CC: The Honorable Barbara Boxer U.S. Senate The Honorable Dianne Feinstein U.S. Senate The Honorable Joseph Baca U.S. House of Representatives The Honorable Gray Davis Governor, State of California Mr. Joseph Evelyn Chief, Hydrology and Hydraulics Branch USACE, LA District Mr. Kenneth Zwlckl Planning Division USACE, Headquarters Mr. Dallas Jones Director, California Office of Emergency Services Mr. Ken A. Miller Director, Department of Transpprtation and Flood Control San Bernardino County Mr. Mike Fox Chief, Water Resources Division Department of Transpoflation and Flood Control San Bernardino County Mr. Jack Eldridge Chief, Community Mitigation Programs Branch FEMA, Region IX Mr. Dean G. Dunlavey Latham & Watkins Mr. Andrew K. Hartzell Hexvitt & McGuire, LLP Submission to City Council in Connection with Appeal of Modification to Development Review 98-13 VOLUME II The Heights at Haven View Estates, LLP Submission to City Council in Connection with Appeal of Modification to Development Review 98-13 VOLUME II November 2000 Hewitt & McGuire, LLP 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 (949) 79S-0500 SEDIMENT TRANSPORT AND DEPOSITION STUDY INTERCEPTOR CHANNEL TRACT NO. 14 7 7 1 CITY OF RANCHO CUCAMONGA JUNE 19, 2000 LAUREN DEVIELOPMENT 5655 LINDERO CANYON ROAD, SUITE 126 WESTlAKE VILLAGE, CA 91362 PREPARED BY: Sediment Transport and Deposition Study June 19, 2000 Project Background Tract No. 14771 ("Project Site") is a single-family detached residential Project Site consisting of forty lots located at the extreme northerly end of residential development within the City of Rancho Cucamonga. The Project Site is a remnant of Tentative Tract No. 12332 and is the last portion of Tract No. 12332 to be developed. To the east of the Project Site is Deer Creek Channel (an improved channel); to the noah, property owned by the Los Angeles Department of Water and Power CDWP'') which is under high tension transmission lines, old San Bemardino County Flood Control facilities including two former deflector levees and the new Deer Creek Debris Basin; to the west and south, residential developed portions of Tentative Tract No. 12332. Located on the Project Site is a breached and abandoned earthen levee created in the 1930's that trends from the northwest to the southeast across the Project Site. As a condition of approval of the tentative tract map for the Project Site, a concrete-lined trapezoidal interceptor channel was to be constructed immediately adjacent to the north property line of the Project Site prior to the removal of the existing breached earthen levee. Construction plans were prepared including the appropriate hydrologic and hydraulic calculations to support the design of the trapezoidal channel in the late 1980's and early 1990's (the City of Rancho Cucamonga is the approval authority for the trapezoidal channel). When the trapezoidal channel leaves the east boundary of the Project Site, it enters a closed conduit system and traverses across San Bemardino County Flood Control land to Deer Creek Channel. An encroachment permit is currently being processed through both the County of San Bemardino and the Army Corps of Engineers for a new Deer Creek Channel entry. The construction plans have been approved by the City of Rancho Cucamonga and the Final Map recorded for the Project Site. A minor grading permission letter from the DWP was necessary in order to smooth out the irregularities along the Projec~t Site's common boundary with DWP and to allow the stormwaters to enter the trapezoidal channel with no ponding on DWP's property and to mitigate steep manmade slopes. For various Lauren Development Tentative Tract 14771 Sediment Transport and Deposition Study June 19, 2000 reasons, DWP was not in a position to grant the grading permission, which caused the Project Site to seek out a solution that would require no grading on DWP property. A vertical wall channel design was selected as an alternate channel section that could be constructed without entering on DWP property. The hydrology was the same for both of the channel designs. The hydraulics were slightly different due to the difference in geometry of the channels, but for all practical purposes, very similar. The vertical wall channel entered a closed conduit system at the Project Site's east boundary Oust like the trapezoidal channel) and traversed easterly to Deer Creek (as in the trapezoidal channel plans). Salient design parameters used in both the trapezoidal and vertical wall channel designs are as follows: * Storm flows based upon Ql00 · Storm flows were bulked to accommodate sediment transport · Additional freeboard was designed into the block wall on the south side of both channel designs (2.5 feet) Subsequent to the approval of the construction drawings for the trapezoidal channel and the recordation of the final map, certain citizens in the adjacent neighborhood objected to the construction of the forty houses and, among other things, expressed concerns about the adequacy of the trapezoidal channel and whether the breached levee should be removed. During the course of the ensuing litigations, many technical questions were raised and addressed relative to the proposed interceptor channel (both the trapezoidal and the rectangular design). All of these questions have been adequately answered except for the recent inquiry as to whether the transportation and deposition of sediment had been addressed, even though these types of calculations were unusual and not normally Lauren Development Tentative Tract 14771 Sediment Transport and Deposition Study June 19, 2000 required, notwithstanding whether a trapezoidal channel or a vertical wall channel was involved. Purpose The purpose of this study is to examine the following for both channel designs: 2. 3. 4. Validate existing hydrology. Determine an appropriate Bulking Factor. Determine Watershed Sediment Yield. Route the sediment and water through the channel (100-year event hydrograph). Hvdrologv The approved interceptor channel (offsite) hydrology ~vas initially prepared to accompany Tentative Tract No. 12332 as a supporting document during the entitlement process. The Tentative Map Engineer prepared the interceptor channel hydrology in 1989, 1990 and 1991. Their hydrology calculations reflected a 125.6-acre tributary area with a Q~00 rational method of 276.16 cfs (unbulked). In 1991 and 1992, the construction drawing design engineering company updated the hydrology calculations, arriving at an upstream tributary area of 124.8 acres generating an unbulked Q~00 stormflow of 248.02 cfs. The lower flow rate for the construction drawings was attributable to confluencing the interceptor channel stormflows with Deer Creek Channel storm flows. This confluencing was reviewed and approved by both the City of Rancho Cucamonga and the San Bemardino County Flood Control District. The design flow was bulked by 1.8 after discussions with the San Bernardino County Flood Control District, arriving at the maximum Q~00 of 446.8 cfs at the downstream reach of the interceptor channel (applicable to both channel designs). Lauren Development Tentative Tract 14771 Sediment Transport and Deposition Study June 19, 2000 This current study examined more recent topographic mapping of the tributary area and using current hydrology software and current hydrology practices, arrived at a drainage basin of 125.acres and an unbulked Q~00 flow of 292.2 cfs. This apparent increase in the unbulked flow is due to using the flow without confluencing with Deer Creek Channel flows, smaller drainage sub-basins and a re-shaped drainage basin. If this unbulked interceptor channel flow were confluenced with the Deer Creek Channel flows, the updated confluenced unbulked flow would be approximately 263 cfs versus 248.02 cfs in the 1992 studies. The difference in the stormflow quantities is not significant. A unit hydrograph for the interceptor channel tributary area was also prepared to be used in the HEC6 computer programs for sediment transport. Watershed Sediment Yield Watershed sediment yield was determined using the Army Corps of Engineers Los Angeles District Method for prediction of debris yield, dated August 1992. The calculated yield for a 100-year event is 833 yd3 (4386 yd3/mi2). See appendix. Bulking Factor Historically, Los Angeles County Flood Control District utilized three bulking factors for their debris basin calculations: 1.5, 1.8 and 2.0. Their debris basins were usually located at the mouth of canyons, where more debris could be expected. Later formulas have been derived and accepted that provide better results for debris production on alluvial fans. A bulking factor for the interceptor channel tributary area was determined using the yield determined by Army Corps of Engineers Los Angeles District Method and Unit Hydrograph Analysis. This method yielded a bulking factor of 1.01, which when applied to the updated unconfluenced flow of 292.2 cfs, gave a maximum design flow of 295.1 cfs. A bulking factor of 1.5 (incorporating a safety factor of 50%) is proposed, which Lauren Development Tentative Tract 14771 Sediment Transport and Deposition Study June 19, 2000 when applied to the updated unconfluenced flow gives a maximum design flow of 438.3 cfs. See appendix. The original design utilized a maximum design flow of'446.8 cfs. The difference in the maximum design flow is not significant. Sediment Load Gradation Bed material sediment samples were taken at locations in the seven defined channels upstream of the interceptor channel. Several of the samples had similar gradations and were combined into three composite bed material gradation curves as follows: 1. Channels 1 and 4 2. Channels 2, 3, 5 and 6 3. Channel 7 Channel 1 xvas the most upstream channel traversing easterly to the most downstream Channel 7. These gradations were used as input to the HEC-6 program as the total intowing sediment load. Sediment Transport Utilizing the U.S. Army Corps of Engineers' HEC6 computer software for 100-year, 24- hour storm (the typical design storm frequency), the sediment transport analysis was conducted for both the vertical wall channel and the trapezoidal channel. The sediment transport and deposition for the vertical wall channel was analyzed at the various channel entrances for the upstream stormwaters. The maximum depth of deposition occurred at Station 3+07, with a deposition depth of 1.08 feet at time 0,125 days. This deposition depth is well within the capacity of the vertical wall channel as the combined deposition, residual load and clear water flow does not exceed 2.5 feet throughout the duration of the Lauren Development Tentative Tract 14771 Sediment Transport and Deposition Study June 19, 2000 100- year event. Even using the 1.5 bulked flow, a depth of 2.7 feet is not exceeded. The channel still has more than adequate freeboard, not even considering the additional 2.5 feet of freeboard provided in the block wall southerly of the channel. The following tables represent the deposition depth, water surface elevation and freeboard remaining at the two critical time periods: Table SB-2 -0.104 Days Bed Change Water Surface Section Number (Ft) Elevation (Ft) Freeboard (Ft) 2050.000 0.83 273.88 2.85 1781.000 0.99 267.42 2.31 1520.000 0.09 261.59 2.92 1400.000 0.01 257.20 2.99 1050.000 0.07 244.75 2.84 600.000 0.04 228.60 2.79 340,000 0.19 219.75 2.50 307.000 0.88 217.44 1.40 1.000 3.32 215.50 Closed Conduit Section Number Table SB-2 - 0.125 Days Bed Change Water Surface (Ft) Elevation (Ft) Freeboard (Ft) 2050.000 0.85 273.69 3.04 1781.000 1.03 267.10 2.63 1520.000 0.26 261.42 3.09 1400.000 0.01 257.02 3.17 1050.000 0.08 244.54 3.05 600.000 0.04 228.35 3204 340.000 0.27 219.55 2.70 307.000 1.08 217.51 1.39 1.000 4.10 215.94 Closed Conduit Lauren Development Tentative Tract 14771 Sediment Transport and Deposition Study June 19, 2000 The original trapezoidal channel was also analyzed, with similar results. The maximum deposition occurred at the most upstream channel entry, to a depth of 1.4 feet. The freeboard left in the trapezoidal channel for both clear water and bulked flow, was 1.2 feet and 0.5 feet, respectively. Again, the block wall south of the channel provided for an additional 2.5 feet of freeboard. The following tables represent the deposition depth, water surface elevation and freeboard remaining at the two critical time periods: Table SB-2 - 0.104 Days Section Number Bed Change (Ft) Water Surface Elevation (Ft) Freeboard (Ft) 2200.000 1.39 278.04 1.36 1900.000 1.00 276.96 1.24 1700.000 0.08 271.29 1.91 1500.000 0.00 266.03 1.97 1300.000 0.00 261.23 1.97 1100.000 0.05 253.41 1.79 600.000 0.03 227.97 1.75 34.000 0.05 219.95 1.43 30.000 0.51 218.07 2.93 1.000 4.29 216.25 Closed Conduit Section Number Table SB-2 - 0.125 Days Bed Change Water Surface (Ft) Elevation (Ft) Freeboard (Ft) 2200.000 1.44 277.84 1.56 1900.000 1.06 276.50 1.70 1700.000 0.22 271.08 2.12 1500.000 0.00 265.81 2.19 1300.000 0.00 261.00 2.20 1100.000 0.06 253.15 2.05 600.000 0.03 227.69 2.03 34.000 0.09 219.68 1.72 30.000 0.75 218.34 2.66 1.000 5.27 217.02 Closed Conduit Lauren Development TentatiVe Tract 14771 Sediment Transport and Deposition Study Proiect Summary June 19, 2000 In response to technical questions raised by the citizens in the adjacent neighborhood, a sediment yield analysis was prepared for the watershed upstream of the proposed interceptor channel on the noah boundary of the project to assess the impact on both the originally approved trapezoidal channel and the alternate rectangular channel design. This analysis calculated a bulking factor of 1.01 to determine a unit sediment yield of 4.386 cy/mi2, which resulted in a total sediment yield of 833 cy. A bulking factor of 1.5 was utilized to provide an additional safety factor of 50%. Both the trapezoidal channel and the rectangular channel were analyzed for sediment deposition and remaining freeboard. Sediment accumulation in both channels did not adversely effect the free board in either channel, which allowed the additional freeboard provided by the hydraulically designed block wall south of the channel to provide 2.5 feet more freeboard to accommodate any extraordinary storm / sediment events. co No. 20596 m l Exp. 9-30-01 G :\4 19\OO\GEN~STUDY .DOC Lauren Development Tentative Tract 14771 ; OY/ZS/9O 'fnU 14:56 FAI 213 452 4202 CORPS OF ENG-HMI BRANCH ~001 FAX TRANSMISSION COVER SHEET US Army Cerps Engineers, To: NAME: Andrew Hartzell FIRM: Hewill & McGuire PHONE: 949-798-0500 FAX: 949-798-0511 DATE: September 28, 2000 Comments: From: JOSEPH B. EVELYN HYDROLOGY AND HYDRAULICS BRANCH (CESPL-ED-H) CORPS OF ENGINEERS, LOS ANGELES DISTRICT P.O. BOX 532711, 911 WILSHIRE BLVD., SUITE 1260 LOS ANGELES, CA 90053-2325 PHONE: 213-452-3525 FAX: 213-452-4202 Attached is a copy of the Corps' permit approval letter dated September 27, 2000 for the 60-inch RCP stoma drain to Deer Creek, and SBCFCD's letter request to us dated September 6th. NUMBER OF PAGES INCLUDING COVER SHEET: 4 If you did not receive aH the pages, or if fax copies are illegible, please call as soon as possible. 09/28/00 THU 14:56 FA~ 213 462 4202 CORPS OF ENG-H~I~ BRANCH ~002 Office of the Chief Operations Branch DEPARTMENT OF THE ARMY September 27, 2000 Mr. Ken Eke San Bernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 Dear Mr. Eke: This is in response to your letter of September 6, 2000 concerning the revised plans and calculations to construct'a 57- inch RCP into Deer Creek Channel at Station 494+16 (Corps File No. EE97-155d). Operations Branch has reviewed the revised plans and has no comments or objections. If you have any questions, please call Mr. Ted Masigat, Operations Branch, at (213) 452-3393. Sincerely, Operations Division DEPARTMENT OF PUBLIC WORKS een m.0 ECONOMIC ~EVELOPM~T ,F~OD C~ROL ~ GIMS · ~EGIO~ALP~KS · SUR~YOR · ~SPO~ATIO~ ..WA~BYS~M ~D PUBLIC S~RVICES G~O ...... ~:~~ ..... ~,~ ~ 't~~~. (909) 387-8104 KEN A. MI~ER Fax (909) 387 8130 September 6, 2000 FIle: 1-551/2.04 Corps File: EE97-155 U. S.'Arrny Corps of Engineers P. O. Box 532711 Los Angeles, CA90053-2325 Attention: Ted Masigat ConstructiOn-Operations Division RE: ZONE 1, DEER CREEK, C/E - PERMIT NO. P-197020, FIFTH SUBMITTAL Dear Mr. Masigat: This Office is in receipt of a resubmittal from MDS Consulting on behalf of Lauren Development, Inc. regarding their request for a permit to connect a 60-inch RCP storm drain to the Deer Creek, C/E, northeast of Hidden Trail Drive, in the City of Rancho Cucamonga. Enctosed are three copies each of your comment letter regarding their previous submittal along with revised hydraulic calculations and revised construction plans affecting the Deer Creek, C/E. Any comments, suggestions or requirements that you may have .regarding this activity will be appreciated. If you have any questions regarding the above. please contact the undersigned at (909) 387-7995. · Sincerely, KENNETH C. EKE, P. E. Flood Control Permit Engineer .KCE:MS:eh Attachments CESPL-ED-DV 26 September 2000 MEMORANDUM FOR CESPL-CO-O, ATTN: Ted Masigat SUBJECT: Deer Creek Channel - 57" RCP for Lauren Development, (EE97-155D). 1. Reference your memorandum dated 11 September 2000, regarding subject Permit. 2. Engineering Division has reviewed the resubmitted permit request and we are satisfied that all of our previous corn menis have been addressed. 3. Permit is recommended for approval. THOMAS H. SAGE, P.E. Chief, Design Branch :.,~ ", '.: ".uB-O0 TUE 09:3~ ~i'I ilDS CONSULTING- FRX NO. 9492510516 P. 02/02 Office Of the Chief Operations Branch DEpARTME~Fr OF TEIE ARiVXY June 29, 2000 .Mr. Ken Eke San Bernardino County F!ood'Co~trol District 825 East Third Street' San Bernardino, California 92415=0835 Dear Mr. Eke: This is in response to your letter of April 13, 2000 concerning the revised plans and calculations to construct a 57- inch RCP into Deer Creek Channel at Station 494+16 (Corps File No. EE97-155c). Operations Branch has reviewed the revised plans and has the following comments: a. The proposed slotted chamber design has been modified since the last submittal to four-foot openings to achieve the submergence criteria. However, the updated hydraulic analysis provided to estimate losses in the slotted chamber design used a discharge of 111.7 cubic feet per second (cfs), which is less than ~he design discharge of 446.8 cfs. Please revise your hydraulic computations to reflect the correct discharge. Our hydraulic.concern is that losses within the slotted chamber might. cause a backwater effect upstream and cause potenLial interior flood damages. Provide some type of written documentation assuring no adverse hydraulic effects for this proposed lateral system and junction structure. b. Please provide a copy of the original hydrology report that was provided during the third submittal; the copy previously provided was accidentally discarded. c. A resubmittal is required. If you have any questions, please call Mr. Ted Masigat, Operations Branch, at (213) 452-3393. Sincerely, · George L, Beams, P.E. C\ Chief, Construction- Operations DivisiOn DEPARTMENT OF THE ARMY LOS ANGELES DtSTRICT, CORPS OF ENGINEERS October 10, 2000 Office of the Chief Hydrology and Hydraulics Branch Ms. Malissa Hathaway McKeith Loeb & Loeb LLP 1000 Wilshire Boulevard, Suite 1000 Los Angeles, California 90017-2475 Dear Ms. McKeith: This letter is the second part of the reply to your letter of June 7, 2000 regarding Deer creek Debris Basin. Ms. Lisa Lugar, our Freedom of Information Act Officer, in an August 7, 2000 letter responded to FOIA issues raised in your letter. The remaining issues, which concern operation and maintenance policies, the deflector levees downstream of Deer Creek Debris Basin, and the safety of the basin, are addressed herein- The U.S. Army Corps of Engineers, Los Angeles District (CESPL) has no record of formal inspections of Deer Creek Debris Basin that have been performed by the Corps. San Bernardino County Flood Control District (SBCFCD) as part of the local sponsor requirements for the project formally agreed to maintain the project following completion of construction, including the removal and disposal of debris to maintain adequate storage capacity in the debris basin (reference the local cooperation agreement provided in Ms. Lugar's letter of August 7, 2000)- We recently reviewed the Deer Creek Debris Basin storage capacity, and in a letter to Mr. Ken Guidry, San Bernardino County Flood Control District, dated July 24, 2000 (Enclosure 1), we concluded that SBCFCD has maintained the storage capacity of the Deer Creek Debris Basin within Corps of Engineers prescribed limits as of July 2000. The State of California Division of Safety of Dams (DSOD), however has been performing annual inspections Of the Deer Creek Debris Basin. Enclosure 2 is the latest DSOD inspection report for Deer Creek Debris Basin, dated November 16, 1999, which concludes that no significant corrective actions were required, and the project was "judged satisfactory for continued use." Based on the above facts, it is our conclusion that Deer Creek Debris Basin has and continues to be maintained satisfactorily- As correctly stated in your letter, flood inundation map preparation for dams within California is a State requirement. Based on informal coordination with SBCFCD it is Our understanding that SBCFCD has prepared the required inundation -2- mapping in accordance with State guidelines, and recently submitted this information to DSOD for approval- A point of clarification is that ER 1130-2-530 requires the Corps to develop dam failure inundation maps for dams owned and operated by the Corps of Engineers, but not for projects that have already been transferred to a local agency for operation and maintenance- I believe you have misrepresented the statements in my letter of December 16, 1999 to your attorney, Mr. Dean Dunlavey, regarding the deflector levees downslope from Deer Creek Debris Basin- I did not state that these deflector levees "will provide adequate flood protection should the debris basin fail." I stated that the deflector levees "afford significant secondary flood protection in terms of redirecting any flood or debris flows which exceed the debris basin capacity back into the Deer Creek Channel." My statement explains that the deflector levees provide a supplemental line of flood protection downstream of the debris basin. I also take exception to your statement that "FEMA requires that the Army Corps certify the Debris Basin to the 100-year event without regard to any downslope infrastructure." FEMA's objective in producing National Flood Insurance Program (NFIP) maps is to accurately delineate the extent of floodplain inundation for various sizes of floods. If existing downslope infrastructure in the form of SBCFCD deflector levees, Corps flood control channels, local storm drainage system, or highway embankments affect the path or extent of flood inundation, then FEMA guidance in Part 65 of NFIP regulations requires consideration of the effect of these features in the development of NFIP maps. We have no engineering calculations by CESPL or SBCFCD for the debris and/or water conveyance capacity of the deflector levees downslope of the debris basin. We are not aware that FEMA ever formally ,'certified" the Deer Creek Reception Levee for the 100-year flood event. The Deer Creek Reception Levee does not meet current NFIP standards for levees as explained in Enclosure 3 (U.S. Army Corps of Engineers, Los Angeles District, Hydrology and Hydraulics Branch Memorandum for Record, subject: Evaluation of Exponent Inc. Report on Deer Creek Debris Storage Capacity, dated August 4, 2000). We strongly disagree with your statement that "even if those diversion levees served to capture debris and water - which appears highly doubtful - they would channel that debris and water back into Deer Creek Channel, clog the channel, and cause an even larger scale catastrophe." In that the deflector levees are located directly downslope from the debris basin embankment -3- it is difEicult for us to envision how debris and water flow that exceeded the capacity of the basin would circumvent the deflector levees- Secondly, the steeply sloped rectangular concrete-lined Deer Creek Channel has a very high sediment transport capacity that makes clogging from sediment deposition unlikely- Lastly it is unclear how flood flows that had been directed into the Deer Creek Channel, even if it were already full, would result in "an even larger scale catastrophe." It should be noted that the Deer Creek Channel is depressed below surrounding ground for most of its length so that there is significant flood conveyance capacity above the top of the concrete channel walls. We believe that the Deer Creek Project in conjunction with the SBCFCD Day Creek Debris Basin and Channel provide a high degree of flood protection to development located east and south of Deer Creek Debris Basin. Your use of the phrase ,,failure of Deer Creek" is unclear- We presume you are referring to potential failure of the Deer Creek Debris Basin embankment- The debris basin embankment and spillway were designed in accordance with Corps of Engineers geo-technical, hydrologic, hydraulic, and structural technical guidance. These Corps engineering standards produce safe and functional projects under severe flood conditions- Our August 4, 2000 evaluation (Enclosure 3) of the level of flood protection afforded by the Deer Creek Debris Basin and Channel performed in response to the April 26, 2000 Exponent Inc. Report found the downstream floodplain has greater than 100- year flood protection. We are not in a position to directly refute or confirm whether "SBCFD informed the Los Angeles Times that the Army Corps has concluded that the diversion levees provide adequate protection in the event of a basin failure." In coordination with SBCFCD, we have only discussed the supplemental benefits of the deflector levees in general tess. During the past year the U.S. Army Corps of Engineers has responded to allegations from you and your attorneys concerning the functionality and level of protection afforded by the project. We have performed objective evaluations of the flood threat and level of protection provided by the Deer Creek Project, and provided that information to you and your attorneys in the numerous letters and reports. An independent private contractor with special expertise in engineering geomorphologY, hydrology, and hydraulics, technically reviewed and concurred (see Enclosure 4, which is a Quality Control Certification package) in the findings of our August 4, 2000 evaluation (Enclosure 3). We have found that the Deer Creek Project provides greater than 100-year protection, is well maintained by SBCFCD, and is structurally sound. -4- I hope we have made our position clear with regard to your concerns with flood control on Deer Creek. For clarification of technical information provided herein, please contact Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, at 213-452-3525- Sincerely, District Engineer Enclosures Copies Furnished: (See separate page) -5- Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office Building Washington, DC 20510-0505 Honorable Dianne Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510-0505 Honorable William'Alexander Mayor of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91730 Mr. Ken Miller Director, County of San Bernardino Transportation/Flood Control Department 825 East Third Street San Bernardino, CA 92415-0835 ~/Mr. Andrew K. Hartzell HEWITT & MCGUIRE, LLP Attorneys at Law 19900 MacArthur Boulevard, Irvine, CA 92612 Suite 1050 Ms. Mary D. Nichols Secretary of Resources The Resources Agency of California 1416 Ninth Street, Suite 1311 Sacramento, CA 95814 DEPARTMENT OF THE ARMY July 24, 2000 Office of the Chief HydrologY and Hydraulics Branch Mr. ~en GuidrY San Dernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 Dear Mr- GuidrY: This letter is written in response to your telephone request and Mr- John Flasher's e-mail of FebruarY 1, 2000 that the Corps Control · . · ~clty of Engineers review San Bernardino County Flood . District's (SBCFCD) dete.rmlnatlon of the,debris storage ca of Deer Creek Debris Basin- Mr. Flasher s summary computation sheet (the 1506XX93 Debrls Volume 11 MS Word file for Debrls Volume to spillway crest attached to his e-mail) indicated a debris storage volume of 132.48 acre-feet based on a debris cone computed from spillway crest using 1993 topographic data- This storage volume estimate differed with the Corps design debris storage volume of 310 acre-feet- We first reviewed the Corps of Engineers report entitled -Cucamonga Creek Flood Control project Feature Design Memorandum ~6, Deer Creek, Demens and'Hillside, Debris Basins an~ Channels" dated June 1979 for the basis of design- Feature Design Memorandum ~6 (FDM ~6) indicated that the design debris storage slope was determined to be 6 percent starting from spillway crest In order to verify thet~ebris deposition pattern used in . -cted the design engineer who madethe design Of the basin basin, and prepared the debris basin grading plan that produces the design storage volume- er R Krohn, the Corps' deslgnD Mr- R ~ BaSin left the Los Angeles Creek Deb~s ' District of the Corps- He had ago to work in the Sacramento retained some of his Deer Creek Debris Basin work sheets and was able to provide his calculation sheets for the debris storage volume determination dated May 30, 1980 (Enclosure 1); and a Deer Creek Debris Basin General plan drawing dated FebruarY 16, 1982 (revised March 19, 1982) showing the design grading plan and the design debris deposition pattern (Enclosure 2)- His May 30, 1980 design computations estimated a debris storage volume of 309.3 acre-feet- The design debris deposition pattern was based on a 6 percent debris slope occurring radiallY outward from the spillway crest as indicated on Enclosure 2- -2- In order to verify the topographic information provided by SBCFCD and to address the question of the current (July 2000) debris storage volume of Deer Creek Debris Basin, the Los Angeles District Survey Section was requested to obtain current basin topography and provide it in Digital Terrain Model (DTM) format. The Survey Section performed the survey using Loica Systems 500 global positioning system survey equipment- The survey was tied horizontally to the North American Datum (NAD) of 1927 and vertically to the North American Vertical Datum (NAVD) of 1929- The vertical was tied to 2 monuments set in the early 1970's and was accurate to 0.01 feet- Since Mr. Flasher furnished SBCFCD topographic information in Digital Terrain Model (DTM) format, we elected to use Computer- Aided Design and Drafting (CADD) software to conduct the storage volume for Deer Creek capacity review- The sediment storage software from Bentley and Basin was computed using standard CADD intergraPh (Microstation and InRoads)- We analyzed two scenarios: (1) SBCFCD's topography dated 1993, and (2) the topography acquired by the Corps' Survey Section in July 2000- Using SBCFCD'S 1993 data, a DTM surface was generated in InRoads for the Deer Creek Basin- Another DTM surface was generated with a radial 6 percent design debris deposition pattern starting from spillway crest- Using the Grid Volume Function in inroads, the 1993 basin surface was subtracted from the debris deposition surface and a volume of 312 acre-feet was computed- used- Another 6 perc se two DTM surfaces using the Grid · the Volume Function 1 , computed- Normal operation and maintenance practice for maintaining debris basins per Corps Engineer Manual 1110-2-1601 (paragraph. 4-1 d.2) is to allow deposition of up to 25 percent of the design debris storage volume before requiring cleanout of the debris basin- SBCFCD has maintained Deer Creek Debris Basin storage capacity to 298 acre-feet as of July 2000, which is within 4 percent of the original design debris storage capacity Of 310 acre-feet- In summary the Deer Creek Debris Basin was designed to store 310 acre-feet of sediment per Corps FDM ~6. Using the SBCFCD 1993 DTM to compute the debris storage volume of Deer Creek Debris Basin with the same methodologY as the original design gives a debris storage volume of 312 acre-feet- Using the July 2000 topograPhY obtained by the LAD, SBCFCD has maintained the basin -3- capacity to within 4 percent of the original design capacity of 310 acre-feet thereby fulfilling its required sediment cleanout responsibilities for the basin- In the course of completing this review of the debris storgge capacity of Deer Creek Debris Basin we located as-constructed drawings of the project dated 1984 (Enclosure 3). Issues raised in the Exponent Inc- Report entitled ,,Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 regarding the effective storage space of the basin and downstream level of flood protection are under review, and will be addressed in separate correspondence upon completion- SincerelY, Acting Ch' E · ' · ' ' ion Enclosures TOTAL CUeYDS, (U, yD5, o lOG 1.~519- 0 103 1.9o74/075 ]07~ ~73' 47~3 9~7 ~75 47 · -- g3~ .-~ 7472 ~o4 Iz,q;5 ~ ~ zql~ I~ I. Ioo ' l~oZ ~5 .qb~ 450_ 45o o ~o -- 0 15o7, 15o7 Fq- eP' 25' .q~o o/232 $ IO0 1.8~1% ~ ~7Z ?¢00 /00 n l$15 - Io leo' z~ .4&~ ~oo 500~ ~ ff~ 7o Io & o; ooo /Z ~o/ume T/ON State of Callfomia The Resources AgepLy DEPARTMENT OF WATER RESOURCES DIViSiON OF SAFETY OF DAMS INSPECTION OF DAM AND RESERVOIR IN CERTIFIED STATUS N~xcofD~n Deer Canvon Debris BasinDamN0. 87-11County San Bernardino T~0fDam Ejrth Tyr~ofSpill~y Concrete lined open channel Weather conditions 88 deqrees clear skies. C0ntactsmade Don Rust - San Bernardino Flood Control District- Re~onforiBspection periodic inspection of iurisdictional dams- Important Observations, Recoum~endalions or Actions Taken FILE Conclusions From the known information and the visual inspection, the dam, reservoir and appurtenances are judged satisfactory for continued use. Observations and Item No.* A1-A4 8-11 14 & 16 17 18 Comnlents Item Name aud Observation and Comment EMBANKMENT: The upstream and downstream faces of the embankment were in good condition- The crest was uniform and level. The abutments were in good condition- There was vegetation present on both the upstream and downstream faces. The vegetation consisted mostly of native grasses- Don Rust agreed to have the young willows removed as well as some of the larger bushes. SPIIJ~WAY: The spillway approach and exit channels were clear of any debris- The crest was clear of any debris. The concrete throughout the entire spillway appeared to be in good condition- OUTLET FACILITIES: The outlet tower housing the ungated 36-inch low level outlet pipe was clear of any debris (see photo 5). The downstream outlet locate~ on the right side on the spillway exit channel was clear of any debris (see photo 6). SEEPAGE: Due to the fact that there was no water within the reservoir basin there was no subsequent seepage- iNSTRUMENTATION: There is no instrumentation at this dam and none is judged necessary at this time. Tgd by AVM Date 11/16/99 cc for Use Field Sheet Standard Nutnbers and Items (See Reverse Side) Dateoflnspection 1.__0/8/99 Dateof Report_ 31/16J99 Photos taken? yes~x No Sheet I of 1 , Sheets DWR 126t (Rev.3/84) Page 1 F~ ',"'; C ',. ~ ,q,r .tVq. ./ Upstream face to the right of the spillway. 2 Upstream face to the left of the spillway. Deer Canyon No. 87-1 San Bernardino County 1 °-8 -9 9 ,,/, Alan Van Matre ~ 3 Spillway approach channel. 4 The crest of the dam located to the right of the spillway, notice the willows that Don Rust agreed to have removed. Deer Canyon No. 87-11 San Bernardino County 10-8-99 Alan Van Matre 5 The ungated outlet tower with a 36-inch low level outlet pipe_ 6 The downstream outlet located on the right side of the spillway exit channel Deer Canyon No. 87-11 San Bemardino County 10-8-99 Alan Van Matre CESPL-ED-H (1110-2-1150a) August 2000 MEMORANDUM FOR RECORD SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity 1. References- a- Exponent inc. report entitled ,,Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 (enclosure 1). b- County of Los Angeles Department of public Works letter to Mr. Douglas Hamilton dated May 1, 2000 regarding Deer Creek Debris Basin- Review of Capacity Based on Los Angeles County Standards (enclosure 2). c. April 24, 2000 Declaration of Mr. Robert G. Kirby, a former employee of the US Army Corps of Engineers, Los Angeles District (enclosure 3). d. US Army Corps of Engineers, Los Angeles letter dated November 2, 1999 tq Mr. Dean G. Dunlavey, of LATHAM & WATKINS, regarding the Deer Creek Reception Levee. e- US Army Corps of Engineers, Los Angeles letter dated December 16, 1999 to Mr. Dean G. Dunlavey, of LATHAM & WATKINS, regarding the Deer Creek Reception Levee and the Deer Creek Debris yield- f. US Army Corps of Engineers, Los Angeles letter dated January 12, 2000 to Mr. Dean G. Dunlavey, of LATHAM & WATKINS, regarding Deer Creek Reception Levee and Deer Creek hydrologY- g. US Army Corps of Engineers Engineer Manual 1110-2-1601, Hydraulic Design of Flood Control Channels- h. US Army Corps of Engineers, Los Angeles letter to Mr. Ken Guidry, San Bernardino County Flood Control District, dated July 24, 2000 regarding Deer Creek Debris Basin capacity (enclosure i. County of Los Angeles Department of public Works letter to Mr. William J. O'Neill dated May 17, 2000, regarding Deer Creek Debris Basin. (enclosure 5). j. US Army Corps of Engineers, Los Angeles District report CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc- Report on Deer Creek Debris Basin Storage Capacity entitled "HydrologY, Design Memorandum No. 1, Cucamonga Creek" dated 5 January 1973. k. US Army Corps of Engineers, Los Angeles District report entitled "Cucamonga Creek Flood Control project Feature Design Memorandum ~6, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated June 1979. 1. US Army Corps of Engineers, Los Angeles District report entitled "Review of Debris production and Level-of-Protection, Deer Creek Debris Basin" dated 29 November 1999. 2. The purpose of this memorandum is to document the Hydrology and Hydraulics Branch evaluation of the information presented in references la, lb, and lc, with respect to Deer Creek Debris Basin storage capacity and the level of flood protection on Deer Creek- In general, these documents assert that the Deer Creek Debris Basin is undersized in relation to the storage space needed to capture the 100-year debris yield. In conjunction with this conclusion, the Exponent Inc. report portrays a significantly increased flood potential for the Deer Creek floodplain than reflected on current National Flood Insurance program (NFIP) mappmng- Background information 3. The US Army Corps of Engineers, Los Angeles District planned, designed, and constructed the Deer Creek Debris Basin and Channel as p~rt of the Cucamonga Creek Flood Control project authorized by Act of Congress, Flood Control Act of 1968, public Law 90-483, 90th Congress, 2nd session. Construction of the project was completed in 1984 and it was then transferred to San Bernardino County Flood Control District (SBCFCD) for operation and maintenance- Since its completion, the Deer Creek Debris Basin and Channel have performed flawlessly in preventing downstream flood damages. 4. The Deer Creek Reception Levee is a former SBCFCD flood control levee initially constructed in the 1930's by the Civilian Conservation Corps, and last improved during 1970-71 by the Los Angeles District and SBCFCD as an emergency measure in response to a watershed burn on Deer Creek. The levee extends about 6,400 feet down slope from the Deer Creek Debris Basin on the west side of the Deer Creek Channel- The Deer Creek Reception Levee was a 2 CESPL-ED-H (1110-2-t150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity local flood control measure and is not a part of the Corps of Engineers Cucamonga Creek Flood Control project. Since completion of the Deer Creek Debris Basin and Channel, the Reception Levee is no longer needed to provide flood protection from runoff generated from the watershed area upstream of Deer Creek Debris Basin. The eastern portion of the Deer Creek Reception Levee is now located on land that was transferred to private ownership by SBCFCD after completion of the Corps project- 5. The Lauren Development is a proposed housing project that would remove the eastern portion of the Deer Creek Reception Levee in constructing 40 homes on about 25 acres. Opponents of Lauren Development's project question the capability of the Deer Creek Debris Basin and Channel to provide 100-year flood protection- They are adamant in their position that the Deer Creek Reception Levee is necessary to supplement the flood protection provided by Deer Creek Debris Basin and Channel- In response to those concerns, the Los Angeles District, in letters dated November 2, 1999, December 16, 1999, and January 12, 2000 (references ld, le, and lf, respectivelY), reaffirmed that Deer Creek Debris Basin and Channel provide greater than 100-year flood protection- 6. The above letters from Los Angeles District notwithstanding, the opponents to Lauren Development recently hired the firm of Exponent Inc. to support their position- This firm produced a report (reference la) which concludes that the Deer Creek Debris Basin is undersized aAd incapable of capturing the estimated 100- year debris yield from the watershed. A County of Los Angeles Department of Public Works letter from Mr. Michael J. Bohlander dated April 27, 2000 regarding Deer Creek Debris Basin (reference tb), and an April 24, 2000 Declaration of Mr. Robert G. Kirby, a former employee of the US Army Corps of Engineers, Los Angeles District (reference lc) were also obtained to support the conclusions of the Exponent Inc. report. Copies of references la, lb, and lc were provided by the opponents of the Lauren Development to the City of Rancho Cucamonga, SBCFCD, the Federal Emergency Management Agency (FEMA), and the Assistant Secretary of the Army for Civil Works (ASA(CW))- SubsequentlY, all four of these organizations have independently requested the US Army Corps of Engineers, Los Angeles District to review and comment on the information provided in these documents- 3 4 AugUst 2000 CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity Exponent Inc- report entitled ~Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 7. The Exponent Inc. report conclusions on page 1 state: "The debris storage capacity is almost 200 acre-feet smaller than the 310 acre-feet storage capacity anticipated in the June 1979 Feature Design Memorandum No.6(FDM No.6)- Because the Deer Creek flood control channel relies on the basin to capture all of the debris during a 100-year event, the lands beneath the debris basin are still within the floodplain as defined by the National Flood Insurance program (NFIP)-" Furthermore, "If the 100-year event occurs, the basin would fill up, and debris would flow down the spillway into the flood control channel- The size of the debris and the speed of its movement down the spillway is likely to disintegrate the concrete channel bed and walls, causing floodwaters to escape the channel and spread back out on the fan in a manner similar to that before the flood control project was built." The report goes on to provide six points of discussion that are used to support the conclusions stated above- Each one of those discussion points as well as the overall conclusions will be analyzed in the following paragraphs- 8. Debris is Delivered to the Deer Creek Debris Basin o~ ~~e ync'~'~sedC~an~eer~nn the Eastern Side of the Inactive Fan Head Valley- a. Deer Creek Debris Basin is located near the mouth of Deer Creek Canyon on an active alluvial fan. Flow paths on alluvial fans are uncertain due to rapid variations in flood discharge and sediment load, scour and deposition in transient channels temporarily created by flood flows, and by human activities. Although the active channel does enter the basin on potential for debris deposmtmon to o u h i h upstream of the debris basin that would result in a more uniform distribution of flood inflow and debris to the basin. Field investigations upstream of the basin found clear physical evidence of past flood flows that diverged from the current active channel. The existing deposits of material on the west side of the alluvial fan above the basin are further evidence of the past occurrences of flow on the west side of the fan. In 4 4 August 2000 CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity fact visual evidence of some inflow to the basin on the west inlet chute is clearly visible on the second plate of exhibit 5 (Topographic Model of Deer Creek Debris Basin Looking Upstream- North) of the Exponent Inc. report. b. The current location of the active channel is influenced by mechanical channel shaping activities and water conservation diversion and spreading structures (no longer in service) upstream of the basin that tend to maintain the active channel on the east side under low to moderate flood and debris flow conditions. During large flood events with high debris volumes, however, these structures would be overwhelmed by the transported debris- Future maintenance or lack of maintenance of these features will have little impact on the deposition patterns in the debris basin during design-magnitude events. Deer Creek channel upstream of the basin also has two 90-degree bends that tend to promote deposition in the active channel. c. During a major flood event with heavy debris loads, flow may enter the debris basin in both active and currently inactive channels- There is a high probability that flows and debris will be transported in the central and western parts of the fan downstream of the abandoned concrete diversion structure. However, a man-made levee that is located just to the east of the road to the water tanks and that runs parallel to the road is likely to be substantial enough to prevent significant amounts of flow and debris from reaching the western-most part of the fan, and from filling the entire storage volume of the basin- The Corps design for Deer Creek Debris Basin makes provision for the uncertainty in the location and distribution of the flood and debris inflow by providing storage space for deposition along the entire upstream length of the debris basin embankment, not just the eastern portion. d. The Exponent Inc. report has made a valid point that under current conditions the active channel on the eastern portion of the alluvial fan upstream of the basin could deliver a large portion of flood inflow and sediment to the basin. Since part of the debris basin storage area is located on the western side of the basin, consideration should be given to measures that foster a more uniform distribution of flood and sediment inflow to the basin, or increase debris storage capacity on the eastern portion of the basin. Either approach or a combined approach would improve the performance reliability of the basin with respect to sediment capture- 5 4 August 2000 CESPL-ED-H (1110-2-1150a) ' SUBJECT: Evaluation of Exponent inc- Report on Deer Creek Debris Basin Storage Capacity 9. The Current Debris Storage CaRaci~y Is 111.6 Acre-Feet- a. Our investigation of the basin storage capacity, as documented in reference lh, determined that the current (July 2000) debris basin storage capacity is 298 acre-feet versus the design storage capacity of 310 acre-feet (references lj and lk). The design storage capacity was based on a debris dePositi°nUsing slope of 6 percent distributed radially from the spillway- this debris deposition pattern in conjunction with the 1993 SBCFCD topographY, and the July 2000 Corps topography, yields basin storage volume estimates of 312 acre-feet and 298 acre- feet, respectivelY. These debris storage volumes are based on the assumption that the entire storage volume of the debris basin is effective, i.e., flood and debris inflows can reach all portions of the basin, and are distributed in a radial pattern from the spillway crest. b. Normal operation and maintenance practice for maintaining debris basins per Corps Engineer Manual 1110-2-1601 (para. 4-1 d.2) is to allow deposition of up to 25 percent of the design debris storage volume before requiring cleanout of the debris basin. SBCFCD has maintained Deer Creek Debris Basin design storage capacity to 298 acre-feet as of July 2000, which is within 4 percent of the original design storage capacity of 310 acre-feet- c. The Exponent Inc. report assumes an unrealistic debris depositional pattern based on the location of the currently active inflow channel to the basin. The third figure of Exhibit 7 (entitled DEBRIS BASIN CAPACITY) of the Exponent Inc. report shows the assumed debris deposition cone within the basin with a nearly vertical slope of debris deposition along its western edge. This assumed debris deposition configuration is physically unrealistic because it would require a physical barrier to limit the movement of sediment to the west. Yet this assumed debris deposition pattern is used as the basis for concluding the effective basin debris storage capacity is 111.6 acre-feet- d. Using the conservative assumption that all flood inflow to Deer Creek Debris Basin occurs from the active channel on the eastern side of the basin, an estimate was made of an effective design storage volume. This estimate used the Corps design debris slope of 6 percent applied as a single plane surface (not 6 CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity radially distributed) from spillway crest with a western horizontal limit corresponding to the western end of the eastern grouted stone inlet chute. To account for the additional wedge of storage space to the west of the horizontal limit of the 6 percent plane surface, a surface was defined that sloped downward to intersect the upstream toe of the basin embankment. The combination of the two storage volumes (139 acre-feet on the east, plus 23 acre-feet in the western wedge) produced an approximate calculation of effective design storage volume of about 162 acre-feet versus the Exponent Inc. estimate of 111.6 acre-feet. The Corps estimate does not assume an artificial barrier to debris deposition on the western edge of the deposition, as does the Exponent Inc. report. However of greater importance is the fact that the debris basin does not cease to function once the effective design storage volume to spillway crest is filled. The debris basin will continue to efficiently capture debris due the high roughness, relatively flat slope (as compared to the natural channel slope), unconfined geometry of the basin area, the high basin embankment height above spillway crest, and the trapping effect of the small spillway opening in comparison to the long embankment. Therefore the debris basin will continue to have a high "trap efficiency" for flood events that produce debris volumes in excess of the basin storage at spillway crest. e. Exponent inc. alludes to "momentum overflow" as a possible problem with the functionality of the debris basin. Momentum overflow is most likely to occur where a debris basin is situated in a narrow canyon where debris inflows are more readily funneled to a spillway. Deer Creek Debris Basin is a relatively large debris basin with a distance of about 600 feet from the eastern inlet chute to the spillway, and a wide area of potential deposition. In addition the alignment of the spillway is offset from the direction of the active channel inflow. The probability is very low that flow momentum would cause debris inflows to directly traverse the length of the basin and flow over the spillway without being affected by the wide basin area available for deposition. f. The original estimate of the debris basin capacity of 310 acre-feet was made assuming that the debris deposit would slope radially upstream from the spillway crest at a 6 percent slope- This assumption is unreasonable because it would result in a deposit that would slope upward laterally in both directions from the flowline between the inlet and the spillway. As a 7 CESPL-ED-H (1110-2-1150a)' 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity result, cross sections through the deposit would have their highest point at the margins of the deposit. During actual flood events, the deposit would likely be highest along the flowline, and would slope downward toward the margins of the deposit- Due to the long debris basin embankment length, upward slope of the basin bottom in a westerly direction, and the variable and distributed nature of the alluvial fan flood inflow, application of Corps design guidance to Deer Creek Debris Basin involves engineering judgment to establish the basin configuration needed to provide the design debris storage volume. The evaluations conducted in the course of this review have determined that the effective design debris storage space to spillway crest is between 162 and 310 acre-feet, depending on the assumptions related to the spatial distribution of flood inflow. 10. The Current Debris Ca~p_acity Corresponds To Less Than A 20- Year Event. Exponent Inc. relies on an unrealistic debris deposition pattern (see paragraph 8c above) and LACDPW debris basin design criteria (with a 5 percent maximum debris slope vs. the Corps' use of 6 percent) as the basis for the 111.6 acre-feet current debris storage capacity- Although the Exponent Inc. report correctly interprets Figure 5 of reference 11, its reliance on a current debris storage capacity of 111.6 acre-feet underestimates the effective debris storage capacity of the basin, and therefore understates the current level of protection afforded by the basin. 11. The Conseg~ences of the 100-Year Event. With respect to the NFIP floodplain, Exponent Inc. concludes that if the Deer Creek Debris Basin does not hold the 100-year debris yield that it automatically follows that the downstream flood improvements (Deer Creek Channel and local storm drain systems) would be overwhelmed by an occurrence of the Base Flood (1-percent chance of occurrence in any year), and the floodplain would revert to the pre-project floodplain- This scenario put forth in the Exponent Inc- report is unsupported by any technical analysis, and understates the effectiveness of the flood control system on Deer Creek. a. Exponent Inc. has elected to utilize the current (1993) Los Angeles County Department of Public Works (LACDPW) debris basin design procedures as the basis for evaluating the adequacy oE the basin to capture the 100-year debris yield. Use of current 8 CESPL-ED-H (lll0-2-11S0a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity LACDPW debris basin design criteria is more conservative than the Corps design criteria (reference lg). However the use of either deterministic debris basin design criteria (LACDPW or Corps) alone does not fully address or quantify the effectiveness of the basin in combination with the downstream channel to convey a probabilistic flood event through the downstream flood control system. Furthermore, if the design capacity of a flood control facility such as a debris basin or entrenched channel were exceeded, it would result in only a partial decrease in project performance that translates to an incremental impact to the floodplain rather than a total loss of project functionality as postulated by the Exponent Inc. report. b The Exponent Inc. report incorrectly equates the level of pro~ection ~f the downstream floodplain with the debris basin storage capacity alone. The probability of the occurrence of the Base Flood event (1 percent chance annually, or 100-year event) on Deer Creek simultaneously with the occurrence of the 100-year debris yield at Deer Creek Debris Basin is more rare than the probability of the Base Flood used in the NFIP. (1) Based on the Los Angeles District Corps of Engineers (LADCOE) reanalysis of the potential debris yield (reference 11), the joint probability of a 100-year or greater debris yield in conjunction with a 100-year or greater water discharge is very low. Reference 11 estimated the 100-year debris yield as 292 acre-feet, which equates to a unit debris yield of approximately 127,000 Yd3/mi2' From the table entitled Debris yield vs years- 00~ Wildfire and Frequency of Exceedance (reference 11), a Since-1 o 0 d3 mi2 would be produced by a 100- unit debris yield of 127,00 Y / year discharge that occurred about 6.5 years after a 100 percent burn of the watershed- The Deer Creek Fire Factor vs. Frequency Relationship indicates that the annual exceedance frequency of this fire condition is about 17 percent. Since the flood discharge and the fire condition are assumed to be independent, the joint frequency of a discharge equaling or exceeding the 100- year discharge and a debris yield that equals or exceeds the 100- year yield is about 0.0017, which means that it would occur, on average, about once in 588 years. The LADCOE Corps debris yield analysis also indicates that a 100-year discharge that occurred 12 or more years after a fire (i.e, a fully recovered watershed condition) would produce about 188 acre-feet of debris, and the debris yield associated with a 100-year or greater discharge would exceed 200 acre-feet about once in 300 years- CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity (2) An evaluation of the existing flood control system with respect to the Base Flood should use a Base Flood hydrograph containing an appropriate coincident sediment load. The overflow area analysis would include the determination of the amount of deposition that would occur in the debris basin, the amount and gradation of sediment that would flow over the basin spillway, and the disposition of the sediment transported downstream, i.e., the extent and location of sediment deposition in the downstream channel system and the sediment conveyed through the system. c. Instead of generalized statements of catastrophic flooding as portrayed in the Exponent Inc. report, hydrologic and hydraulic engineering analysis should be the basis for statements regarding the extent of potential flooding in the Deer Creek floodplain under conditions of sediment overflow of the basin spillway- Exponent Inc.'s report discusses the consequences of a flood exceeding the capacity of Deer Creek Debris Basin by relying on the Corps' january 1973 overflows (reference lj) for the pre-project condition- This overstates the potential severity and extent of flooding in that it does not account for effect of downstream Corps channels, local drainage systems, and current floodplain topography- Also unaccounted for by the Exponent Inc. report is the positive effect on sediment transport within the channel of downstream tributary inflow of mostly sediment-free urban runoff. d. It should be noted that the drainage area tributary to Deer Creek debris basin is 3.71 square miles. The drainage area for Deer Creek at the San Bernardino Freeway (just above its confluence with the larger Cucamonga Creek Channel) is 13.56 square miles- The Deer Creek Channel increases in size in the downstream direction to accommodate the addition of local drainage system inflow. The channel capacity immediately below the debris basin is 5,400 cubic feet per second (cfs), and at the San Bernardino Freeway has increased to 17,000 cfs. Due to the steep channel slope, ranging from about 11 percent immediately downstream of the basin to about 0.8 percent near the confluence with Cucamonga Creek channel, flow velocities and sediment transport capacity are very high. Sediment flowing over the basin spillway will be transported far downstream into a flatter channel reach with a large cross sectional area- Considerable sediment deposition in the downstream channel reaches could be accommodated during a Base Flood without overflow given the channel is sized for a Standard Project Flood event that is substantially larger than the Base Flood- For example, Deer CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity Creek Channel immediately downstream of the debris basin is designed for 5,400 cfs with a minimum of 2 feet of freeboard, versus the estimated 100-year discharge of 2,770 cfs. Furthermore, much of the fully entrenched Deer Creek Channel is depressed (i.e., top of channel walls are below surrounding ground) such that channel overflows are initially contained within the narrow strip of land immediately adjacent the channel that does not contain development. The effect of any potential channel overflow downstream of the debris basin during a Base Flood event would therefore be of limited magnitude and areal extent- Exponent Inc. statements implying significant flood impacts during a Base Flood event all the way to Prado Dam, over 12 miles downstream, are unsubstantiated and exaggerated. e. The Exponent Inc. report postulates the disintegration of the downstream concrete channel bed and walls during a single Corps experience in which high debris loads have flood event-reinforced concrete-lined channels such as on Santa occurred in paula Creek in Ventura County is that they initially hold up well structurallY- It normally requires many debris laden flood events over the course of years to render rectangular concrete- lined channels structurallY unsound. 12. The Construction Drawings Contained in DesingLMem°randum No. 6 CorrJsRPnd To A Volume of 202.8 Acre Feet- Deer Creek Debris Basin was designed and constructed in accordance with Corps of Engineers technical guidance (reference lg) to provide 310 acre-feet of debris storage capacity- Reference lh describes the derivation of the design debris deposition pattern as a 6 percent debris slope fanning out radially from the spillway- We concur that FDM ~6 (reference lk) did not adequately explain how the design debris deposition pattern was determined- Exponent Inc.'s efforts to compute the design debris capacity from the FDM ~6 Plate 3 debris line were therefore misdirected- 13. A Debris Ca~cityof 202.8 Acre-Feet Corresponds To Less Than A 50-Year Event. Exponent Inc.'s attempt to estimate the design debris deposition pattern and design volume based on plate 3 of FDM ~6 led to an underestimate of the actual design capacity of 310 acre-feet. Exponent Inc. correctly interprets Figure 5 of CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity reference 11 that 202.8 acre-feet corresponds to about a 50-year debris yield event, however Exponent Inc. was not aware that the Corps design debris deposition pattern assumed a radial deposition pattern from spillway crest that produced the "debris line" shown in Plate 3 of FDM ~6. Los Angeles County Department of public Works Letter of April 27, 2000 14. In Reference lb, Mr. Michael Bohlander concludes "the Deer Creek Debris Basin is not adequate to handle the 100-year debris volume of 292 acre-feet" using methods consistent with Los Angeles County Department of Public Works (LACDPW)- Although the use of the current LACDPW debris basin design procedures would apparently result in a more conservative basin design, the Deer Creek Debris Basin is a Corps of Engineers project that was designed in conformance with Corps design criteria. Our conclusions with regard to the level-of-protection afforded by Deer Creek Debris Basin have been based upon proven US Army Corps of Engineers technical standards- Although the two procedures are different, the fact that they are different does not make the Corps procedure invalid. In reference li, LACDPW formally states, "The opinions of Mr. Bohlander are not those of the Department and should not be used to evaluate the level of protection provided by the Deer Creek Debris Basin." April 24, 2000 Declaration of Mr. Robert G. Kirby 15. Mr. Robert G. Kirby was a former engineer of the Los Angeles District Corps of Engineers (LADCOE) who performed hydrologic determinations of debris yield and design flood peak discharge values for the Cucamonga Creek project including Deer Creek. Mr. Kirby made the design debris yield determination of 310 acre-feet for Deer Creek Debris Basin in accordance with the Los Angeles District Tatum Debris Method. Corps Design Memorandum ~l- Hydrology (reference lj) documents that determination- The undersigned worked with Mr. Kirby as a co-worker in the preparation of Design Memorandum ~1 (DM~i), and subsequently as Mr. Kirby's supervisor and Section Chief during the remainder of the design and construction of the Cucamonga Creek project. The following comments are provided in response to Mr. Kirby's declaration. a. Mr. Kirby did not perform the civil engineering design 12 CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc- Report on Deer Creek Debris Basin Storage Capacity of Deer Creek Debris Basin that determined the embankment configuration, spillway crest elevation, embankment height, and basin grading plan required to capture the design debris volume of 310 acre-feet- It is apparent from his declaration (reference lc) that he is unfamiliar with the Corps debris deposition design guidance since his estimation of the basin debris storage volume {130 acre-feet) is based on a computation of level-pool storage at the spillway crest. Mr. Kirby even states in paragraph 7 of his declaration that his calculations "were made without reference to the drawings in Design Memorandum ~6" which would have shown that a debris deposition slope of 6 percent was used as the basis of design. Design Memorandum 06 is reference lk. b. Mr. Kirby expresses concern that the Deer Creek Debris Basin design storage volume is too small based on the enveloping curve of debris inflows shown on plate 23 of Design Memorandum 01. However, the design debris volume for the Deer Creek Basin as plotted on this plate is substantially larger (higher) than enveloping curve of all other observed or design values comprising the graph. c. Furthermore in paragraph 5 of Mr. Kirby's declaration, his statement that "Plate 23 indicates that 130,000 cubic yards of debris per square mile would be generated by each 3.27" storm on the Deer Creek Canyon watershed" is technically incorrect- Mr. Kirby's statement fails to recognize that the design debris estimate computed from the application of the Tatum Debris Method assumes sufficient antecedent rainfall to saturate the soil, that a 100 percent burn of the watershed occurred about 4.5 years prior to the design rainfall, and the 3.27 inches of rainfall falls in a three hour time period (a severe and infrequent occurrence)- Hence, not every 3.27" storm on the Deer Creek watershed will produce 130,000 cubic yards of debris per square mile. The assumptions underlying the Tatum Method debris yield procedure generate a conservative debris yield estimate- d. Mr. Kirby's other concern regarding the basin design volume is with the possibility of multiple storms events. Certainly multiple storm events do occur in the region. However debris basin facilities in general, and Deer Creek Debris Basin in particular, are designed to control debris inflows from a single event, and for those debris inflows to be cleaned out of the basin to make space for the next debris inflow if greater than 25 percent of the total basin capacity has been filled. It is standard practice for agencies responsible for maintaining 13 4 August 2000 CESPL-ED-H (ll10'2rl150a) SUBJECT: Evaluation of Exponent Inc- Report on Deer Creek Debris Basin Storage Capacity debris basin facilities to perform a cleanout in-between successive storm events. e. As stated in previous Los Angeles District Corps of Engineers correspondence (references ld, le, and lf), flood control facilities are designed to control specific sizes of floods, or provide specific levels of protection- The planning and design process for a flood control project and consistency with agency guidelines is the basis for sizing projects. Although Mr. Kirby may now feel that the Deer Creek Debris Basin should have been designed to accommodate a larger volume of debris, those beliefs or preferences differ from the well- established design practices of the Los Angeles District- The basin was designed and constructed in accordance with Corps of Engineers planning and design guidance, in partnership with a local sponsor (SBCFCD), and with input from local community public meetings on the plan and design of the project. f. With regard to Mr. Kirby's statements in paragraph 9 of his declaration, the decision whether to retain the Deer Creek Reception Levee as a flood control feature that supplements the flood protection afforded by Deer Creek project is a local decision- However the existing Deer Creek Reception Levee would not meet current FEFL~ requirements (44CFR65-10 ' Mapping of areas protected by levee systems) to be recognized on NFIP maps, as providing protection from the Base Flood. The eastern portion of the levee is privately owned, and currently a section of the levee has been breached to serve as an access road. The levee is not an official flood control feature operated and maintained by a FEMA recognized agency (a Federal or State agency, an agency created by Federal or State law, or an agency of a community participating in the NFIP). Hence Mr. Kirby's reliance On the Deer Creek Reception Levee as a viable flood control feature that meets FEMA regulations as an official flood control feature is misplaced- S~unmary and Conclusions 16. In summary the information provided in the Exponent Inc. report, LACDPW letter, and Mr. Kirby's declaration are insufficient for the Corps of Engineers to decertifY the Deer Creek Debris Basin and Channel project as providing protection from the FEMA Base Flood (1-percent chance)- The assertion by Exponent Inc. that flood inflow and debris can only enter the basin in the currently active channel is inconsistent with clear 4 August 2000 CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity physical evidence that flood and debris flows have occurred on the west side of the alluvial fan. Exponent Inc. report conclusions regarding the extent of the floodplain downstream of Deer Creek Debris Basin during a Base Flood event are largely conjecture unsupported by engineering analysis. Based on the information provided herein the Corps of Engineers certification to FEMA that the Deer Creek Debris Basin and Channel Project affords protection from the Base Flood is still valid- 17. A significant amount of controversy has been generated as a result of allegations that the Deer Creek Debris Basin and Channel provide an insufficient level of flood protection- Although Deer Creek Debris Basin and Channel currently provide adequate protection from a Base Flood event, the current basin design storage capacity is less than the 310 acre-feet originally envisioned as part of the Standard project Flood design level. The engineering course of action to achieve the original SPF design intent is relatively straightforward, namely a combination of additional excavation to ensure the storage space already provided in the western portion of the basin is effective space, and measures upstream of the basin that create a more uniform distribution of flood and sediment inflow to the basin. These measures could include modification of local agency channel shaping activities upstream of the basin, removal of gabion structures on the west side of the fan above the basin, grading of the alluvial fan area to fill in the active channel, and excavation of a channel from the apex of the fan at the mouth of Deer Creek Canyon to the western inlet chute of the basin. These measures would foster a more uniform pattern of debris deposition within the basin and thereby ensure more effective utilization o£ the existing debris storage space in the basin- 18. The scope and cost of the engineering measures outlined above for improving the debris capture effectiveness of the basin are small in comparison to those of the original Deer Creek Debris Basin and Channel project. Implementation of those measures described above would improve the debris capture performance and reliability of the Deer Creek Debris Basin. Given that Deer Creek Debris Basin is now owned by SBCFCD, the decision to pursue these measures would need to be made in cooperation with SBCFCD. CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris ~. Evelyn, PE Chief, Hydrology and Hydraulics Branch Encls 16 QUALITY CONTROL CERTIFICATION Deer Creek, California Technical Studies COMPLETION OF QUALITY CONTROL ACTIVITIES An independent technical review team has completed the review of studies related to the flood control capability of the Deer Creek, California Flood Control Debris Basin. Certification is hereby given that all quality control activities defined in the Quality Control Plan appropriate to the le~zel c;f risk and complexity inherent in the products have been completed, Documentation of the quality control process is enclosed- GENERAL FINDINGS Compliance with clearly established policy principles, procedures and indust~ standard practices, utilizing clearly justified and valid assumptions, has been verified. This includes assumptions; methods, procedures and materials used in analyses; alternatives evaluated; the appropriateness of data used and level of data obtained; and the reasonableness of the results, including whether tire product meets the customer's needs consistent with law and existing Corps policy- The undersigned recommends cedification of the quality control process for this ~' ~'eam Leader Date QUALITY CONTROL CERTIFICATION As noted above, all issues and concerns resulting from technical review of the product have been resolved- ~ion D Chief. E'~ginee~ ivision Date U.S. Army Corps of Engineers - South Pacific Division QUALITY CONTROL PLAN DEER CREEK TECHNICAL STUDIES 19 JULY 2000 1. References: a. CESPD-R-I I 10-1-8, subject: South pacific Division Quality Management Plan, dated 26 May 2000. b. Scope of Work for Task Order Number 10, Contract Nmnber DACW05-99-D-0010, subject: Independent Tectufical Review of Deer Creek, California Studies. 2, Objective: The objective of this quality control plan (QCP) is to document a plan for the independent technical review of technical studies and reports developed by the Los Angeles Districl, Corps of Engineers (CESPL) a.s well as entities outside oftlte Corps of Engineers associated with the review of the flood control capability of the Deer Creek, California project. This QCP presents the appropriate level of independent technical review (ITll) of techrAcal products and processes to ensure that they comply with applicable laws, regulations, policies and sound technical practices of the disciplines involved. This QCP also provides the ffan~ework to conduct the ITR. Quality Control includes the verification of assumptions, methods, procedures, and data used in ,-knalyses based on the le~,el of complexity of the analysis. It also includes verification of the any alternatives evalnated, appropriateness of the data used, and reasonableness of the results- 3_ Guidelines: Guidance for quality management of all technical activities conducted by the Corps of Engineers is outlined in reference 1 .a, above. Individual elements ,'rod draft final reports will be reviewed for compliance with appropriate public laws; engineering regulations, circulars, and manuals; planning and policy guidance; and standard engineering and scientific practices- Commnnication of review comments and responses to comments shall be through the ITRT ieader. Roles: a. lndepeudentTechnicalReviewTeamLeader: Edward F. Sing, P.E. CESPD-ET-EW b. product Development Team (for CESPL products reviewed under this QCP): 19 July 2000 Quality Connol Plan - Deer Ck., Ca, Studies I product Development Team Leader: Joscph B- Evelyn, P.E. Chief, Hydrology and Hydraulic Branch Cdrps of Engineers, Los Angles District Hydrology: Kerry T. Casey Hydraulic E~ginccr HydrologY and Hydraulics Section Corps of Engineers, Los Angeles District Ilydraulics and Sediment Trm~sport: Mitchell R. Dclcau Hydraulic Engineer Hydrology and Ilydraulics Section Corps of Engineers, Los Angeles Distdct C, Independent Technical Review Team: Musscttcr Engineering Inc. (thin reference 1 .b, above) Ft. Collins, Colorado Robert R.. Mussetter, PhD, P.E. principal Engineer Michael D. Harvey, PILD, P.G- principal Geomorphologist 5. List of Documents and Review Schedule: a. General: The 1TRT will prepare a report documenting their independent technical review of the listed products, wtdch wift become part ofthe Project rec°rds- All appropriate comments will be addresscd and changes will be incorporated into the CESPL reports. The final documents, after all revisions are made, ',viII be submitted to CESPD for Quality Control (QC) ccrtitication. The Chief, Engineering and Construction Division will sign this certification- b, List of Documents to be Reviewed: (1) CESPL's November 1999 technical analysis of the Deer Creek Debris Basin's flood control capability; (2) Exponent's repofl of the same; Quality Control Plan - Deer Ck., Ca. Studies 2 19 July 2000 (3) SPL's review of Exponcnt's report and any additional computations performed by SPL in verification of Exponent's analyses; and, (4) Any other associated materials developed by the Corps or by the homeowner's group regarding the flood control capability of the Deer Creek debris basin. Schedule of Review: (1) Initiate ITR (2) Site Visit and Data Review (3) Technical Review and Drab Final Report (4) Backcheck of Responses and Final Report (5) Quality Control Certification NTP - July 19, 2000 w/i 7 Calendar days of NTP w/i 14 Calendar days of NTP xv/i 21 calendar days of NTP w/I 24 calendar days of NTP 6. Scope of Review: Specifics of the review xvill involve the following: a. Compliance with established policies, principles, procedures, ctc, b. Adequacy of the scope and presentation of the docmnent, c. Appropriateness of all assumptions and methods, d. AppropriatenessofnumericalmodelsandanalYticaltechniquesused' e. Consistency, f. Accuracy, g. Compreheusiveness, and h. Reasonableness of results- 7. l'olicy Questions: Policy issues, if any, will be resolved through the Corps of Engineers, South pacific Division (CESPD). 8. Conflict Resolution procedures: The ITR team leader will review applicable docume~tation to identify any outstanding disaoreements between members of the CESPL product development team and the review team. Specific issues raised in the review will be documented in a comment, response, action requ. ired, and action taken format. Any disagreements will be brought to the attention of the appropriate Quality Control Plan - Deer Ck., Ca. Studies 19 July 2000 3 functional chief to facilitate resolution of any unresolved technical disagreements between the product development team and review team counterparts. Prepare Y: ) dB Edward F. Sing, P.E. CESpDoET-EW Approved By: Michael A. Grebins'ki, P.E- Chief, Engineering and Construction Division 19 July 2000 Quality Control Plan - Deer Ck,, Ca, Studies 4 August 8, 2000 Mr. Edward F. Sing U.S. Army Corps of Engineers- South Pacific Division Water and Geotechnical Branch 333 Market Street San Francisco, California 94105-2922 Re: independent Technical Review of Deer Creek, California Studies (Contract No. DACW05-99-D-0010, Task Order No. 0010) Dear Mr. Sing: In accordance with the above-referenced Task Order, I have performed a back-check of the Los Angeles District, Corp of Engineers (SPL)'s response to Mussetter Engineering. Inc. (MEI)'s Independent Technical Review comments on the Deer Creek Debris Basin studies, The responses were transmitted to us via eraall containing a Memorandum for Record from Joseph B, Evelyn, dated August 4. 2000, an annotated copy of our review comment letter, and a revised Memorandum for Record regarding SPL's "Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity," dated August 4. 2000. My review of these documents indicates that SPL has adequately addressed our comments- if you have questions or need additional information, please call me. Sincerely, MUSSE~'[ER ENGINEERING, INC. Robert A, Mussetter, Ph,D.. P.E. Principal Engineer RAM:bbv cc: Joe Evelyn, Los Angeles District, COE CESPL-ED-H 4 August 2000 MEMORANDUM FOR RECORD SUBJECT= Annotated Version of Mussetter Engineering inc. independent Technical ReView Comments dated August 3, 2000 CESPL-ED-H Responses with In compliance with the quality control/qualitY assurance procedures of the South pacific Division of the U.S. Army Corps of Engineers, the Mussetter Engineering Inc. letter dated August 3, 2000 regarding Independent Technical Review of Deer Creek, California Studies has been annotated to show Corps responses to the independent technical review conm~ents- The enclosure contains Corps responses which are denoted in bold italic font after each recommended action, describe revisions made in finalizing the CESPL-ED-H Final Draft Memorandum for Record, subject: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity, dated 28 July 2000- The final version of the MFR dated 4 August 2000 constitutes the Los Angeles District Corps of Engineers formal evaluation of the Exponent Inc- report dated 27 April 2000, the Los Angeles County Department of public Works letter to Mr. Douglas Hamilton dated May 1, 2000, and the declaration of Mr. Robert Kirby dated April 24, 2000. B, Evelyn, Chief, Hydrology and Hydraulics Branch Encl August3,2000 Mr. Edward F. Sing U,S. Army Corps of Engineers South Pacific Division Water and Geotechnical Branch 333 Market Street San Francisco, California 94105-2922 Independent 'technical Review of Deer Creek, California Studies Re: (Contract No, DACW05-99-D-0010, Task Order No. Dear Mr. Sing: In accordance with the above referenced Task Order, Mussetter Engineering, Inc. (MEI) has conducted an independent technical review of documents relating to the Corp of Engineers' Los Angeles District (SPL) analysis of the Deer Creek Debris Basin's flood control capability, SPL's review of a report prepared by Exponent, Inc., as well as a variety of other documents that were provided to us regarding this issue. The specific documents that were reviewed are listed in Enclosure A. In conducting this review. we performed a site reconnaissance of the debds basin, upstream watershed and downstream flood control channel in the company of representatives from SPL and the San Bemardino Flood Control District on July 25, 2000, and artended a meeting in SPL's office on July 26, 2000 to discuss the project and to obtain additional information and to clarify technical issues that arose during the site reconnaissance- The primary technical issues involved in the documents that were reviewed center on whether or not the Deer Creek Debris Basin and the downstream flood control channel provide the intended level of protection to downstream properties from flooding and debris production generated in the Deer Creek drainage basin. According to Hydrology Design Memorandum I (DM1) and Feature Design Memorandum 6 (DM6) (Enclosure A, Items 12 and 13), the debris basin was intended to have a debris-holding capacity of 310 acre-feet, and the downstream flood control channei was designed to pass flood discharges ranging from 5,400 cfs at the outlet from the basin to 17,000 cfs at the con~uence with Cucamonga Creek. The required debris storage capacity was originally determined based on the estimated debris production from "a major storm event' (DM1, page VI-1) using the Taturn Method (Exhibit 1, Item 15). The design capacity of the downstream flood channel corresponds to the Standard Project Flood (SPF) wh ch was estimated based on the characteristics of a 3-hour local storm that occurred in March 1943. The gradient of the channel ranges from 11 percent at the debns basin outlet to 0.8 percent near the con~uence with Cucamonga Creek, The debris basin spillway was designed to pass the peak discharge associated with the probable Maximum Flood (PMF) of 15,000 cfs with 3 feet of freeboard. According to DM6 (Table Vl-1 ) and the as-built plans for the basin (Enclosure A, items 18 and 19), the spillway has a crest length (width of opening) of 75 feet, and a crest elevation of 2,658.0 feet. The top of the dam embankment at the Mr. Edward Sing Page 3 August 3, 2000 spillway is at elevation 2,677.5, which provides approximately 3.4 feet of freeboard above the estimated PMF water-surface elevation of 2,674.13 feet, and is 19.5 feet above the spillway crest. Comments on Final Draft Memorandum for Record reqardinq "Evaluation of Exponent. inc. Report ' on Deer Creek Debris Basin Storaqe Capacity", by SPL dated July 28, 2000 fEnclosure A. Item 1'~ para. 8a~ Comment. SPL's contention that upstream conditions could lead to "a more uniform distribution of flood inflow and debris to the basin" is very reasonable. The incised channel located along the east side of the vafiey floor appears to have carried most of the flow and debris during ' events that have occurred at least since the late 1930s (see Exponent, 2000, Exhibit 4), and this may be the preferred flow path for future large events. Field evidence, however, indicates that significant quantities of debris have historically been transported to the west of the current active channel, and are likely to do so in the future. Preliminary correlation of lichen diameters on the boulder deposits located to the west of the currently active channel with those observed on the Santa Ann River alluvial fan. located to the east of Deer Creek, suggests that the more westerly Deer Creek boulder deposits may be on the order of 140 years old and may be the result of severe flooding in the 1860s, The channel through the abandoned concrete diversion structure that is located about 1/4 mile upstream from the inlet to the basin, is aligned in a slight westerly direction, and relatively recent flows and deposition have occurred on the fan surface to the west of the currently active channel, Field evidence based on relative age criteria such as boulder color, degree of pitling of boulder surfaces, and the diameter of lichen growing on the boulders, indicates that there have been at least three separate depositional events on this part of the valley floor in the last approximately 140 years. During a high magnitude debris flow, much of the transported material could be delivered to the debris basin along the west side of the east grouted dprap inlet. In addition, field inspection indicates that a significant debris flow or sediment-producing event has not occurred in Bull Canyon in recent history (unscarred large trees grow on the accumulated deposits on the valley floor at the mouth of the canyon). The elapsed time since the last event that removed accumulated material is an impodant factor in the amount of debris that is delivered by a given magnitude storm. The large amount of material that is presently stored on the hills~opes and in the valley bottom of Bull Canyon indicates that there is a high likelihood of a significant debris flow from this tributary during future storm events. If Bull Canyon were to deliver a large quantity of debris to the mainstem, blockage of the current active channel, and diversion of floodwater and debris from upstream toward the west side of the valley is likely. Field inspection of the watershed also indicates that significant quantities of sediment are stored in the other subdrainages within the Deer Creek basin, and that the constriction caused by bedrock outcrop and the Fan Canyon alluvial fan has caused significant debris accumulation on the valley floor of Deer Creek upstream of the constriction that potentially could be mobilized in a design event, Recommended Actions. None required. para 8b. Comment. Under low to moderate flood and debris flow conditions, the mechanical channel s~'aping activities and water conservation diversion and spreading structures that were observed in the field affect the flow and debris deposition patterns upstream from the debris basin, During an event approaching design conditions, however, these structures would be overwhelmed Mr. Edward Sing Page 4 August 3, 2000 by the transported debris. In our opinion, future maintenance or lack of maintenance of these features will have little impact on the deposition patterns in the debris basin dudng design- magnitude events- Recommended Actions.__. . Reword paragraph to reflect the above statement- ~: Concur. SPL Final Draft Memorandum for Record (MFR) was revised as recommended. para 8c. Com___~_ment- During a major flood event with heavy debris loads, there is a high probability that flows and debris wilt be transported in the central and western parts of the fan downstream of the abandoned concrete diversion structure. However, a man made levee that is located just to the east of the road to the water tanks and that runs parallel to the road is likely to be substantial enough to prevent significant amounts of flow and debris from reaching the western-most part of the fan, and from filling the entire storage volume of the basin. Rec~ommended Actions. Reword paragraph to reflect the above statement- S~: Concur. SPL Final Draft MFR was revised as recommended- para 8d. Comment- We agree that relatively straight-forward measures could be taken to encourage a mor~ uniform distribution of flood arid sediment inflow to the basin, and to increase the storage capacity along the west side of the bastn. Recommended Actions- None required. para 9c. Comment_ v . We agree that Exponents' (2000) assumption regarding the shape of the debris deposits is not realistic, even if it is conservatively assumed that all of the debris would be delivered via the incised channel along the east side of the valley. As drawn on the contour m~p in Exhibit 7 of the Exponent repod, the side-slope of the west side of the debris deposits ~s approximately 1,3H:IV, which is steeper than the angle of repose for rounded cobbles. In addition, the west edge of the debris deposit deviates from the alignment of the upstream channel by only about 20 degrees (1 laterally to 2,7 longitudinally)- Because of the height of the drop over the crest of the grouted riprap inlet, and the tendency of the flows to shoal off the debris deposits in a westerly direction toward the untilled part of the debris basin. we believe that significantly more debris will deposit in the west side of the debris basin than is indicated by Exponent's analysis- In addition. Exponent's assumed width for the debris deposit at the grouted riprap inlet of about 270 feet appears to be unreasonably small compared to the 1938 and 1969 aerial photographs that were provided in'Exhibit 4 of their report. Although the reproductions in the Exponent report are somewhat unclear (we did not have access to the original photographs during this review), the coloring on the photographs indicates that the width of the channel at the debris basin inlet is 400 to 1 ,O00 feet in the 1938 photograph, and is approximately 600 feet in the 1969 photograph- Recommended Action. None required- Para. 9d. Co~mment~ The basis for SPL's estimated effective storage in the debris basin, assuming that all inflow occurs in the active channel on the east side of the valley, of 162 acre-feet Mr. Edward Sing Page 5 August 3, 2000 is unclear. The reasonableness of the estimate could be more readily evaluated if the assumptions used in the computations were stated. The original estimate of the debris basin capacity was made assuming that the debds deposit would slope radially upstream from the spillway crest at a 6 percent slope (Enclosure A, Item 17). It is our opinion that this assumption is unreasonable because it would result in a deposit that would slope upward laterally in both directions from the fiowtine between the inlet and the spillway. As a result. cross sections through the deposit would have their highest point at the margins of the deposit, In reality, the deposit would likely be highest along the flowline, and would slope downward toward the margins of the deposit. We agree that the debris basin would not cease to function once the effective storage volume up to the spillway crest is filled. The spillway is relatively narrow (75 feet) compared to the total width of the deposit, At the point where the debris deposit reached the spillway crest, the spillway would represent a relatively small proportion of the total width of the deposit at the embankment- As a result, some of the debris would pass over the sp way into the downstream flood control channel. but a much larger quantity would be intercepted by the embankment. The circu at on pattern along the west side of the deposit near the embankment would primarily be in the westerly direction wh ch would tend to carry the debris into the untilled p0dion of the basin rather than through the spillway- In addition. the floodwater and debris that drops over the grouted riprap inlet would spread laterally. reducing the energy available to transport the matedal toward the spillway. The deposit would likely steepen to above the assumed maximum slope, with primarily finer-grained material being transported over the spillway- While it would be difficult to precisely quantify this process, it is clear that all of the debris in excess of the amount required to initially fill the basin to the spillway crest would not be delivered to the downstream flood control channel. Recommended Action. State the assumptions on which the effective storage capacity is based, and ~e-ex'am~ne th%'reasonabteness of the assumed radial slope pattern upstream from the spillway crest. SP~ ReAponse: Concur. Paragraph 9d of SPL Final Draft MFR was revised to describe the derivation of the 162 acre-feet eftective s~orage capacity. A new paragraph 9f added to address the deficiency of the original design debris deposition pattern. para 11 a. Comment~ We agree that Exponent's statements regarding the possible consequences of a 100-year event are exaggerated because they imply that the system would totally fail if the debris holding capacity of the basin is exceeded. In reality, the amount of debris that would be delivered to the downstream flood control channel would be significantly less than would have occurred prior to construction of the debris dam, and the more efficient supercritical flood control channel to which the excess debris would be delivered has the capacity to carry a very high sediment load. As a result, even if the debris basin does not capture all of the in~owing debris load, the potential for downstream damages is significantly reduced, Recom~mended Action. None required. para 11 b. _Comment, We agree that "the Exponent report incorrectly equates the level of protection of the downstream floodplain with the debris basin storage capacity atone." In fact, based on SPL's Mr. Edward Sing Page 6 August 3, 2000 reanalysis of the potential debris yield (Enclosure A, item 3), the joint probability of a 100-year or greater debris yield in conjunction with a 100-year or greater water discharge is very tow. SPL's recent estimate of the 100 year debris yield is 292 acre-feet, which equates to a unit yield of appro×imatelY 127,000 yds/mi2- From the table entitled "Debds Yield vs years-Since-100% Wildfire and Frequency of Exceedence" (Enclosure A, Item 3), the 100 year debds yield would be produced by a 100-year discharge that occurred about 65 years after a 100 percent burn. The Deer Creek Fire Factor vs. Frequency Relationship indicates that the annual exceedence frequency of this fire condition is about 17 percent- Since the flood discharge and the fire condition are assumed to be independent. the joint frequency of a discharge equaling or exceeding the 100-year discharge and a debris yield that equals or exceeds the 100-year yield is about 0.0017 wh ch means that it would occur. on average, about once in 588 years. SPL's debris yield analysis also indicates that a 100- year disch arge that occurred 12 or more years after a fire (i .e, a fully recovered watershed condition) would produce about 188 acre-feet of debris, and the debris yield associated with a 100-year or greater discharge would exceed 200 acre-feet about once in 300 years. Recommended Action. Add a brief discussion of the joint probability of large debris yields in conjunction with the base flood to further i~lustrate the rare nature of such an event. SPL~: Concur. paragrapt~ l lb(1) was added to the Final Draft MFR ~o include a brief d%scussion of the joint probability of large debris yields in conjunction with the base flood. para 11c. Comment~ We agree that Exponent's use of the COE's 1973 flood mapping, which represents conditions that existed prior to construction of the debris basin and flood channel "...overstates the potential severity and extent of flooding--,' downstream from the debds basin. As illustrated above, the amount of debris that is likely to be delivered to the basin during the base flood event on which the FEMA floodplain determination is based would likely be substantially less than the design capacity of the basin. Recommended Action. None required. para 11 d. Com_ment- As indicated in the above discussion, a relatively small percentage of the total debris yield that is likely to occur during the Base Flood event will pass over the spillway into the downstream flood control channel Because the size range of that material is also likely to be small, significant deposition in the relatively steep and hydraulically efficient flood control channel is unlikely- Since the capacity of the channel is designed for a water flood that is about twice the magnitude of the base flood, increased overbank flooding is unlikely. Recommended Action. None required- para fie. Commentv _ . Our experience with concrete lined debris channels is similar to that of SPL. For example, debds flumes that were constructed in 1983-1984 in Ouray, Cobrado have withstood debris flows of moderate magnitude that consisted of gravel and cobble-sized material without significant damage- The older concrete-lined debris channels that were replaced by the new channels were odginafly constructed in the early 1900s. These channels were constructed to a lower structural design standard than the new channel (and we believe the Deer Creek flood control channel), yet they withstood many debris flows that exceeded the capacity of the channels without 'disintegrating the channel bed and walls' (Exponent, 2000 - Enclosure A, item 2). Mr. Edward Sing Page 7 August 3, 2000 Recommended Action. None required- pa ra 12. Corn_merit. Our review of the documentation of the original volume estimates for the debris basin (Enclosure A, Item 17) indicates that the computations were performed correctly. As discussed above, however, we believe that the assumed debris deposition pattern is not realistic, and the actual capacity of the basin. even if it were to fill completely to the spillway crest is substantially less than 310 acre-feet. However as d scussed in our comments on para. 9b, above, all of the excess debris above that required to fill the basin to the spillway crest is unlikely to pass over the spillway into the downstream flood control channel. which increases the level of protection- The potential for momentum overflow during large debris flow events should be considered to insure that the approximately 19.5 feet of embankment height above the spillway crest is adequate to prevent the excess debris that does not pass through the spillway from overtopping the embankment- Reco_mme_nded Action. If it is COE criteria to consider only the debris capacity up to the spillway crest, the effective volume of the basin should be recomputed based on a more realistic deposition pattern. SpL~ons_e: Due to the long debris basin embankment length, upward slope of the basin bottom in a westerly direction, and the variable and distributed nature of the alluvial fan flood inflow, application of Corps design guidance to Deer Creek Debris Basin involves engineering judgment to establish the basin configuration needed to provide the design debris storage volume. The evaluations conducted in the course of this review have determined that the effective design debris storage space to spillway crest is between and 310 acrefeet, depending on the assumptions related to the spatial distribution of flood inflow. The Final Draft MFR was revised (paragraph gf) to inc°rP°rate additi°nal discussi°n regarding the effective debris storage capacity of the basin in relation to Corps design criteria. para 14. C_omment. While the Los Angetes County Department of Public Works criterion for the maximum deposition s~ope of 5 percent is more conservative than the Corps of Engineers criterion, both, as applied to the Deer Creek channel. are well within the range of values suggested by others. For exampro, Hungr et al. (1987) (Enclosure A, Item 20), suggests that the "storage angle," which is equivalent to the deposition slope should be in the range from 4 to 8 percent. Ad~ditional cormmerits reqardinq "Evaluation of the Debris Storaqe Cabcity of the Deer__Creek _Basin", Exoonent I__.._. nc., April 27, 2000. The majority of our comments regarding Exponent's analysis of the debris storage capacity of the Deer Creek basin are incorporated into the above comments on SPL's July 28, 2000 Memorandum for Record- Additional comments that are not explicitly addressed follow: Section 5, para. 2 (page S). We disagree with E×ponent's statement that the "point of intersection (of the line of the stream flow axis] is almost precisely where the dam's spillway is located.. Based on the as-built plans for the debris basin, the alignment of the centerline of the streamflow axis intercepts the embankment approximately 120 feet to the fight (looking downstream) of the fight Mr. Edward Sing Page 8 August 3, 2000 edge of the spillway opening at the crest of the embankment, and a line drawn parallel to the center line from the left edge of the channel at the top of the grouted stone inlet intercepts the embankment at the approximate left edge of the spillway opening. While it is probable that the fan materials will fan out in both directions from the inlet, causing a pofiion of the debris flow to be directed over the spillway, the majority of the flow would be intercepted by the embankment, and not the spillway. Peer Review, Item 4. (Page 7). The assumptions that were used in the HEC-RAS analysis of the amount of freeboard in the channel upstream from the basin are not stated in Exponent's report- If these profiles represent only clear-water flows associated with each of the flood peaks that were analyzed, they are misleading because they do not take into account bulking of the flow that would occur during the debris flow. In addition, a backwater analysis of flows in the upstream channel does not account for the potential for blockage of the channel that is likely to occur if significant debris is delivered to the channel from the side tributaries (e.g,, Bull and Fan Canyons), or by landsliding from the adjacent valley sides that is likely during a debris flow event, In our opinion, this analysis does not provide useful information regarding the behavior of debris flows on the portion of the fan upstream from the debris basin. inq "Review of Debris production and Level of-protection Deer Creek %ris B s. in", . drolo d' . dr _uli% Se_e' s Ois,ric, Oorps o,__ nq,nee No~em~ber ?9 1999__ . (Enclosure A, Item 3) The majority of our comments regarding SPL's review of the potential debris production and the level-of-protecfion provided by the Deer Creek Debris Basin are incorporated into the above comments on SPL's July 28, 2000 Memorandum for Record. An additional comment that is not explicitly addressed follows: Discharge-FrequencY Relationship (page 4). Comment~ _ . Use of the Day Creek unit discharges as the basis for the discharge frequency cuNes for Deer Creek is reasonable, but consewative since the Day Creek unit discharges were the highest of the three streams that were considered- Reammended Action. None required- If you have any questions about the above comments, please call. Sincerely, MUSSETrER ENGINEERING, INC. Robert A. Mussetter, Ph.D.. P.E. principal Engineer [Mr. Edward Sing Page 9 August 3, 2000 Michael D. Harvey, Ph.D., P.G. principal Geomorphologist RAM/MDH:bbv cc: Joe Evelyn, Los Angeles District, COE Mr. Edward Sing Page 10 August 3, 2000 + Enclosure A List of documents reviewed by Mussetter Engineering, inc. relating to the flood contro| capability of the Deer Creek Debris Basin U .S. Army Corps of Engineers, Los Angeles Distdct Memorandum for Record (Final Draft) dated July 28,2000 regarding "Evaluation of Exponent Inc. Repod on Deer Creek Debris Basin Storage Capacity-" Exponent, Inc., 2000. Evaluation of the Debris Storage Capacity of the Deer Creek Basin, April 27. U .S. Army Corps of Engineers, Los Angeles District, Review of Debris production and Level- of-protection, Deer Creek Debris Basin, Hydrology and Hydraulics Section, November 29, 2000- County of Los Angeles Departrnent of Public Works letter to Mr. Douglas Hamilton doted April 27, 2000 regarding Deer Creek Debris Basin- Review of Capacity Based on Los Angeles County Standards (enclosure 2). 5. April 24, 2000 Declaration of Mr. Robert G. Kirby, a former employee of the US Army Corps of Engineers, Los Angeles District (enclosure 3). 6. US Army Corps of Engineers, Los Angeles letter dated November 2, 1999 to Mr. Dean G. Dunlavey. of LATHAM & WATKINS, regarding the Deer Creek Reception Levee. 7. US Army Corps of Engineers, Los Angeles ~etter dated December 16, 1999 to Mr. Dean G. Dun~avey, of LATHAM & WATKINS, regarding the Deer Creek Reception Levee and the Deer Creek Debris Yield, 8. US Army Corps of Engineers, Los Angeles letter dated January 12, 2000 to Mr. Dean G. Dunlavey, of LATHAM & WATKINS, regarding Deer Creek Reception Levee and Deer Creek hydrology- 9. US Army Corps of Engineers Engineer Manual 1110-2-1601, Hydraulic Design of Flood Control Channels. 10. US Army Corps of Engineers, Los Angeles letter to Mr. Ken Gutdry, San Bernardtrio County Flood Control District, dated July 24, 2000 regarding Deer Creek Debris Basin capacity (enclosure 4). 11. County of Los Angeles Department of Public Works letter to Mr. William J. O'Neill dated May 17, 2000, regarding Deer Creek Debris Basin. (enclosure 5). 12. US Army Corps of Engineers, Los Angeles District report entitled "Hydrology, Design Memorandum No. 1. Cucamonga Creek" dated 5 January 1973. Mr. Edward Sing Page 11 August 3, 2000 13. US Army Corps of Engineers, Los Angeles District report entitled "Cucamonga Creek Flood Control Project Feature Design Memorandum fiG, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated june 1979. 14. US Army Corps of Engineers, Los Angeles District report entitled "Review of Debds production and Level-of-Protection, Deer Creek Debris Basin" dated 29 November 1999. 15. Taturn, F. E., 1963. A New Method of Estimating Debris Storage Requirements for Debris Basins, U.S. Army Engineer District, Los Angeles, California, 23 pp. 16, Federal Emergency Management Agency letter to Colonel John P. Carroll, dated May 30, 2000 regarding USACE's review of the Exponent, tnc. report and other issues associated with the Deer Creek Debris Basin. 17. Quantity computation, Deer Creek Debris Basin Debris Volume, computed by R.R. Krohn, 5130180, 18. US Army Corps of Engineers, Los Angeles District. 1982. Deer Canyon Debris Basin, General Plan, Sheet 13 of 123, Record Drawing as Constructed, 817184. 19. US Army Corps of Engineers, Los Angeles District, 1982. Deer Canyon Debris Basin, Embankment profile. Basin Section and Miscellaneous Details, Sheet 14 of 123, Record Drawing as Constructed, 8~/84. 20. Hungr, O, G.C. Morgan, D.F. VanDine, and D.R. Lister, 1987. Debris flow defenses in British Columbia, in Debris Flows/Avalanches, Geological Society of America, Inc., Boulder, CO, pp201-222. DEPARTMENT OF THE ARMY LOS ANGELES OtSTRICT. CORPS OF ENGINEERS PO, BOX 53~711 LOS ANGELES, CALIFORNIA 9(X;53-2325 October 10, 2000 Office of the Chief Hydrology and Hydraulics Branch Mr. Michael K. Buckley, P.E. Director, Technical Services Division Federal Emergency Management Agency Washington, DC 20472 Dear Mr. Buckley: As requested in your letter of May 30, 2000 we have conducted a thorough review of the report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Debris Basin," prepared by Exponent Inc., dated April 26, 2000. Our findings, which are detailed in the enclosed documents, are that the Deer Creek Debris Basin and Channel system provides protection from the Base (1-percent annual chance) Flood. The U.S. Army Corps of Engineers therefore reaffirms its prior FEMA certification of the project. Revision of the current Flood Insurance Rate Map (FIRM) as proposed by the Exponent Inc. report is not warranted. An additional finding is that the Deer Creek Reception Levee, which is not a part of the Deer Creek Debris Basin and Channel project, does not meet the requirements pertaining to levees for it to be credited with providing base flood protection per Section 65.10 of the National Flood Insurance Program (NFIP) regulations. We apologize for the delay in responding to your letter; however, it was necessary to obtain and analyze topographic data for the basin, and to research the original design sediment deposition pattern for the basin. In addition, the Assistant Secretary of the Army for Civil Works asked that an independent technical review of our evaluation be performed. The first three enclosures provided are: (1) Hydrology and Hydraulics Branch Memorandum for Record, subject: Evaluation of Exponent Inc. Report on Deer Creek Debris Storage Capacity, dated August 4, 2000 (Enclosure 1); (2) U.S. Army Corps of Engineers, Los Angeles District letter to Mr. Ken Guidry, San Bernardino County Flood Control District, dated July 24, 2000 regarding Deer Creek Debris Basin capacity (Enclosure 2); and (3) Quality Control Certification package containing the August 3, 2000 letter from Mussetter Engineering Inc., regarding Independent Technical Review of Deer Creek, California Studies (Enclosure 3). These three enclosures address the issues raised in the Exponent Inc. report of April 26, 2000, the declaration of Mr. Robert Kirby dated April 24, 2000 (Enclosure 4), and County of Los Angeles Department of Public Works letter of May 1, 2000 (Enclosure 5). -2- The Assistant Secretary of the Army for Civil Works is currently reviewing our evaluation, and is engaged in discussions with opponents of the Lauren Development (which would remove the eastern portion of the Deer Creek Reception Levee) regarding the documents listed above. The operation and maintenance aspects of the Deer Creek Project have also been reviewed. As detailed in Enclosures 1 and 2, San Bernardino County Flood Control District (SBCFCD) has maintained the storage capacity of the Deer Creek Debris Basin within Corps of Engineers prescribed limits as of July 2000. SBCFCD as part of the local sponsor requirements for the project formally agreed to maintain the project following completion of construction, including the removal and disposal of debris to maintain adequate storage capacity in the debris basin (see Enclosure 6, the local cooperation agreement). Lastly, the State of California Division of Safety of Dams (DSOD) has been performing annual inspections of the Deer Creek Debris Basin. Enclosure 7 is the latest DSOD inspection report for Deer Creek Debris Basin, dated November 16, 1999, which concludes that no significant corrective actions were required, and the project was "judged satisfactory for continued use." Based on the above facts, it is our conclusion that Deer Creek Debris Basin has and continues to be maintained satisfactorily. If you need additional information or further assistance regarding Deer Creek flood control issues, please feel free to contact me at 213-452-3961. For technical issues you may wish to contact Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, at 213-452-3525. Sincerely, ohn P. Carroll C~X~nel, Corps of Engineers District Engineer Enclosures Copies Furnished: (See separate page) -3- Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office Building Washington, DC 20510-0505 Honorable Dianne Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510-0505 Honorable William Alexander Mayor of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91730 Mr. Ken Miller Director, County of San Bernardino Transportation/Flood Control Department 825 East Third Street San Bernardino, CA 92415-0835 ~Mr. Andrew K. Hartzell HEWITT & McGUIRE, LLP Attorneys at Law 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 Mr. Dean G. Dunlavey LATHAM & WATKINS Attorneys at Law 650 Town Center Drive, Suite 2000 Costa Mesa, CA 92626-1925 Mr. William J. O'Neill City Engineer of Rancho Cucamonga 10500 Civic Center Drive P.O. Box 807 Rancho Cucamonga, CA 91729 Ms. Mary D. Nichols Secretary of Resources The Resources Agency of California 1416 Ninth Street, Suite 1311 Sacramento, CA 95814 DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT, CORPS OF ENGINEERS AugUst 22, 2000 Office of the Chief Hydrology and Hydrology Branch Mr. William j. O'Neil City Engineer City of Rancho Cucamonga 10500 Civic Center Drive P.O. BOX 807 Rancho Cucamonga, California 91729 Dear Mr. O'Neil: As requested in your letter of May 11, 2000 regarding Deer Creek Debris Basin, an evaluation was conducted of the reports and documents you provided concerning the functionality and level of protection afforded by the project. We apologize for the delay in ~esponding however it was necessary to obtain and analyze topographic data for the basin, and to research the original design sediment deposition pattern for the basin. In addition, the Assistant Secretary of the Army for Civil Works asked that an independent technical review of our evaluation be performed given the controversial nature of the flood control issues surrounding the Deer Creek Flood Control Project. Three enclosures are provided: (1) a Hydrology and Hydraulics Branch Memorandum for Record, subject: Evaluation of Exponent inc. Report on Deer Creek Debris Storage Capacity, dated August 4, 2000; (2) a US Army Corps of Engineers, Los Angeles District letter to Mr. Ken Guidry, San Bernardino County Flood Control District, dated July 24, 2000 regarding Deer Creek Debris Basin capacity; and (3) a Quality Control Certification package containing an August 3, 2000 letter from Mussetter Engineering inc. regarding Independent Technical Review of Deer Creek, California Studies. These three enclosures address the issues raised ~n the Exponent Inc. report of April 27, 2000, the declaration of Mr. Robert Kirby dated April 24, 2000, and County of Los Angeles Department of public'Works letter of May 1, 2000. The Assistant Secretary of the Army for Civil Works is currently reviewing our evaluation, and is engaged in discussions with opponents of the Lauren Development regarding the relative merits of the various documents listed above. The Exponent Inc. letter to Mr. Glenn Pruim, Chief, Flood Control Operations Division, San Bernardino County Transportation/Flood Control Department, subject: Tract 14771 Replacement Channel, dated April 12, 2000 concerns the hydrologic and hydraulic design of a channel to intercept runoff generated between Deer Creek Debris Basin and the proposed Lauren Development. The basis of design of such local storm drain systems is entirely the prerogative of the City of Rancho Cucamonga and County of San Bernardino. The Corps of Engineers reviews permit requests to bring local storm drainage into channels constructed by the Corps to ensure the connection or confluence with the Corps channel is designed to perform in a manner consistent with ~he hydrologic, hydraulic, structural, and geotechnical aspects of the Corps channel. Therefore we respectfully decline to comment on the April 12, 2000 letter. We have however responded to permit application review requests since 1997 from the San Bernardino County Transportation/Flood Control Department for the Tract 14771 Replacement Charunel connection to the Deer Creek Charmel. For the current status of that permit application we suggest contacting San Bernardino County. If you need additional information or further assistance regarding Deer Creek flood control issues please feel free to contact me at 213-452-3961. For technical issues you may wish to contact Mr. Richard Leifield, Acting Chief of Engineering Division, at 213-452-3629, or Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, at 213-452-3525. Lieutenant Colo 1, Enclosures CF wo/encls CDR'S Readin~ File CESPL-PM CESPL-ED CESPL-PD CESPL-ED-D CESPL-ED-H CESPL-ED-HH CESPL-OC CESPL-DE-PA CESPD-DE CESPD-ET-EW CESPD-OC CECW-BW (Brian Bryson) LANDRY CESPL-DE CESPL-XA CESPL-ED /JIING V~LS~E'DZZ'OC) CESPL-ED-H CESPL-ED-H (1110-2-1150a) 4 August 2000 MEMOR3~N~UM FOR RECORD SUBJECT: Evaluation of Basin Storage Capacity Exponent Inc. Report on Deer Creek Debris 1. References. a. Exponent Inc. report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 (enclosure 1). b. County of Los Angeles Department of Public Works letter to Mr. Douglas Hamilton dated May 1, 2000-regarding Deer Creek Debris Basin- Review of Capacity Based on Los Angeles County Standards (enclosure 2). c. April 24, 2000 Declaration of Mr. Robert G. Kirby, a former employee of the US Army Corps of Engineers, Los ~ngeles District (enclosure 3). d. US Army Corps of Engineers, Los ~Lngeles letter dated November 2, 1999 to Mr. Dean G. Dunlavey, of LATHAM & WATKINS, regarding the Deer Creek Reception Levee. e. US Army Corps of Engineers, Los Angeles letter dated December 16, 1999 to Mr. Dean G. Dunlavey, of I~THAM & WATKINS, regarding the Deer Creek Reception Levee and the Deer Creek Debris Yield. f. US Army Corps of Engineers, Los Angeles letter dated January 12, 2000 to Mr. Dean G. Dunlavey, of LATFLAM & WATKINS, regarding Deer Creek Reception Levee and Deer Creek hydrology. g. US Army Corps of Engineers Engineer Manual 1110-2-1601, Hydraulic Design of Flood Control Channels. h. US Army Corps of Engineers, Los Angeles letter to Mr. Ken Guidry, San Bernardino County Flood Control District, dated July 24, 2000 regarding Deer Creek Debris Basin capacity (enclosure i. County of Los Angeles Department of Public Works letter to Mr. William J. O'Neill dated May 17, 2000, regarding Deer Creek Debris Basin. (enclosure 5). j. US Army Corps of Engineers, Los ;~ngeles District report CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris entitled "Hydrology, Design Memorandum No. 1, Cucamonga Creek" dated 5 January 1973. k. US Army Corps of Engineers, Los Angeles District report entitled "Cucamonga Creek Flood Control Project Feature Design Memorandum ~6, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated June 1979. 1. US Army Corps of Engineers, Los Angeles District report entitled "Review of Debris Production and Level-of-Protection, Deer Creek Debris Basin" dated 29 November 1999. 2. The purpose of this memorandum is to document the Hydrology and Hydraulics Branch evaluation of the information presented in references la, lb, and lc, with respect to Deer Creek Debris Basin storage capacity and the level of flood protection on Deer Creek. In general, these documents assert that the Deer Creek Debris Basin is undersized in relation to the storage space needed to capture the 100-year debris yield. In conjunction with this conclusion, the Exponent Inc. report portrays a significantly increased flood potential for the Deer Creek floodplain than reflected on current National Flood insurance Program (NFIP) mapping. Background Information 3. The US Army Corps of Engineers, Los Angeles District planned, designed, and constructed the Deer Creek Debris Basin and Channel as part of the Cucamonga Creek Flood Control Project authorized by Act of Congress, Flood Control Act of 1968, Public Law 90-483, 90th Congress, 2nd session. Construction of the project was completed in 1984 and it was then transferred to San Bernardino County Flood Control District (SBCFCD) for operation and maintenance. Since its completion, the Deer Creek Debris Basin and Channel have performed flawlessly in preventing downstream flood damages. 4. The Deer Creek Reception Levee is a former SBCFCD flood control levee initially constructed in the 1930's by the Civilian Conservation Corps, and last improved during 1970-71 by the Los Angeles District and SBCFCD as an emergency measure in response to a watershed burn on Deer Creek. The levee extends about 6,400 feet down slope from the Deer Creek Debris Basin on the west side of the Deer Creek Channel. The Deer Creek Reception Levee was a CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity local flood control measure and is not a part of the Corps of Engineers Cucamonga Creek Flood Control Project. Since completion of the Deer Creek Debris Basin and Channel, the Reception Levee is no longer needed to provide flood protection from runoff generated from the watershed area upstream of Deer Creek Debris Basin. The eastern portion of the Deer Creek Reception Levee is now located on land that was transferred to private ownership by SBCFCD after completion of the Corps project. 5. The Lauren Development is a proposed housing project that would remove the eastern portion of the Deer Creek Reception Levee in constructing 40 homes on about 25 acres. Opponents of Lauren Development's project question the capability of the Deer Creek Debris Basin and Channel to provide 100-year flood protection. They are adamant in their position that the Deer Creek Reception Levee.is necessary to supplement the flood protection provided by Deer Creek Debris Basin and Channel. In response to those concerns, the Los Angeles District, in letters dated November 2, 1999, December 16, 1999, and January 12, 2000 (references ld, le, and If, respectively), reaffirmed that Deer Creek Debris Basin and Channel provide greater than 100-year flood protection. 6. The above letters from Los Angeles District notwithstanding, the opponents to Lauren Development recently hired the firm of Exponent Inc. to support their position. This firm produced a report (reference la), which concludes that the Deer Creek Debris Basin is undersized and incapable of capturing the estimated 100- year debris yield from the watershed. A County of Los Angeles Department of Public Works letter from Mr. Michael J. Bohlander dated April 27, 2000 regarding Deer Creek Debris Basin (reference lb), and an April 24, 2000 Declaration of Mr. Robert G. Kirby, a former employee of the US Army Corps of Engineers, Los Angeles District (reference lc) were also obtained to support the conclusions of the Exponent Inc. report. Copies of references la, lb, and lc were provided by the opponents of the Lauren Development to the City of Rancho Cucamonga, SBCFCD, the Federal Emergency Management Agency (FEMA), and the Assistant Secretary of the Army for Civil Works (ASA(CW)). Subsequently, all four of these organizations have independently requested the US Army Corps of Engineers, Los Angeles District to review and comment on the information provided in these documents. 3 CESPL-ED-H (t110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Basin Storage Capacity Report 4 August 2000 on Deer Creek Debris Exponent Inc. report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 7. The Exponent inc. report conclusions on page 1 state: "The debris storage capacity is almost 200 acre-feet smaller than the 310 acre-feet storage capacity anticipated in the June 1979 Feature Design Memorandum No.6(FDM No.6). Because the Deer Creek flood control channel relies on the basin to capture all of the debris during a 100-year event, the lands beneath the debris basin are still within the floodplain as defined by the National Flood Insurance Program (NFIP)." Furthermore, "If the 100-year event occurs, the basin would fill up, and debris would flow down the spillway into the flood control channel. The size of the debris and the speed of its movement down the spillway is likely to disintegrate the concrete channel bed and walls, causing floodwaters to escape the channel and spread back out on the fan in a manner similar to that before the flood control project was built." The report goes on to provide six points of discussion that are used to support the conclusions stated above. Each one of those discussion points as well as the overall conclusions will be analyzed in the following paragraphs. 8. Debris is Delivered to the Deer Creek Debris Basin only through the Incised Channel on the Eastern Side of the Inactive Fan Head Valley. a. Deer Creek Debris Basin is located near the mouth of Deer Creek Canyon on an active alluvial fan. Flow paths on alluvial fans are uncertain due to rapid variations in flood discharge and sediment load, scour and deposition in transient channels temporarily created by flood flows, and by human activities. Although the active channel does enter the basin on the east side, during high debris flow events there is a definite potential for debris deposition to occur in the active channel upstream of the debris basin that would result in a more uniform distribution of flood inflow and debris to the basin. Field investigations upstream of the basin found clear physical evidence of past flood flows that diverged from the current active channel. The existing deposits of material on the west side of the alluvial fan above the basin are further evidence of the past occurrences of flow on the west side of the fan. In CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris fact visual evidence of some inflow to the basin on the west inlet chute is clearly visible on the second plate of exhibit 5 (Topographic Model of Deer Creek Debris Basin Looking Upstream- North) of the Exponent Inc. report. b. The current location of the active channel is influenced by mechanical channel shaping activities and water conservation diversion and spreading structures (no longer in service) upstream of the basin that tend to maintain the active channel on the east side under low to moderate flood and debris flow conditions. During large flood events with high debris volumes, however, these structures would be overwhelmed by the transported debris. Future maintenance or lack of maintenance of these features will have little impact on the deposition patterns in the debris basin during design-magnitude events. Deer Creek channel upstream of the basin also has two 90-degree bends that tend to promote deposition in the active channel. c. During a major flood event with heavy debris loads, flow may enter the debris basin in both active and currently inactive channels. There is a high probability that flows and debris will be transported in the central and western parts of the fan downstream of the abandoned concrete diversion structure. However, a man-made levee that is located just to the east of the road to the water tanks and that runs parallel to the road is likely to be substantial enough tolprevent significant amounts of flow and debris from reaching the western-most part of the fan, and from filling the entire storage volume of the basin. The Corps design for Deer Creek Debris Basin makes provision for the uncertainty in the location and distribution of the flood and debris inflow by providing storage space for deposition along the entire upstream length of the debris basin embankment, not just the eastern portion. d. The Exponent inc. report has made a valid point that under current conditions the active channel on the eastern portion of the alluvial fan upstream of the basin could deliver a large portion of flood inflow and sediment to the basin. Since part of the debris basin storage area is located on the western side of the basin, consideration should be given to measures that foster a more uniform distribution of flood and sediment inflow to the basin, or increase debris storage capacity on the eastern portion of the basin. Either approach or a combined Approach would improve the performance reliability of the basin with respect to sediment capture. CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris 9. The Current Debris Storage Capacity Is 111.6 Acre-Feet. a. Our investigation of the basin storage capacity, as documented in reference lh, determined that the current (July 2000) debris basin storage capacity is 298 acre-feet versus the design storage capacity of 310 acre-feet (references lj and lk). The design storage capacity was based on a debris deposition slope of 6 percent distributed radially from the spillway. Using this debris deposition patterh in conjunction with the 1993 SBCFCD topography, and the July 2000 Corps topography, yields basin storage volume estimates of 312 acre-feet and 298 acre- feet, respectively. These debris storage volumes are based on the assumption that the entire storage volume of the debris basin is effective, i.e., flood and debris inflows can re~ch all portions of the basin, and are distributed in a radial pattern from the spillway crest. b. Normal operation and maintenance practice for maintaining debris basins per Corps Engineer Manual 1110-2-1601 (para. 4-1 d.2) is to allow deposition of up to 25 percent of the design debris storage volume before requiring cleanout of the debris basin. SBCFCD has maintained Deer Creek Debris Basin design storage capacity to 298 acre-feet as of July 2000, which is within 4 percent of the original design storage capacity of 310 acre-feet. c. The Exponent inc. report assumes an unrealistic debris depositional pattern based on the location of the currently active inflow channel to the basin. The third figure of Exhibit 7 (entitled DEBRIS BASIN CAPACITY) of the Exponent Inc. report shows the assumed debris deposition cone within the basin with a nearly vertical slope of debris deposition along its western edge. This assumed debris deposition configuration is physically unrealistic because it would require a physical barrier to limit the movement of sediment to the west. Yet this assumed debris deposition pattern is used as the basis for concluding the effective basin debris storage capacity is 111.6 acre-feet. d. Using the conservative assumption that all flood inflow to Deer Creek Debris Basin occurs from the active channel on the eastern side of the basin, an estimate was made of an effective design storage volume. This estimate used the Corps design debris slope of 6 percent applied as a single plane surface (not CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris radially distributed) from spillway crest with a western horizontal limit corresponding to the western end of the eastern grouted stone inlet chute. To account for the additional wedge of storage space to the west of the horizontal limit of the 6 percent plane surface, a surface was defined that sloped downward to intersect the upstream toe of the basin embankment. The combination of the two storage volumes (139 acre-feet on the east, plus 23 acre-feet in the western wedge) produced an approximate calculation of effective design storage volume of about 162 acre-feet versus the Exponent Inc. estimate of 111.6 acre-feet. The Corps estimate does not assume an artificial barrier to debris deposition on the western edge of the deposition, as does the Exponent inc. report. However of greater importance is the fact that the debris basin does not cease to function once the effective design storage volume to spillway crest is filled. The debris basin will continue to efficiently capture debris due the high roughness, relatively flat slope (as compared to the natural channel slope), unconfined geometry of the basin area, the high basin embankment height above spillway crest, and the trapping effect of the small spillway opening in comparison to the long embankment. Therefore the debris basin will continue to have a high "trap efficiency" for flood events that produce debris volumes in excess of the basin storage at spillway crest. e. Exponent Inc. alludes to~'momentum overflow" as a possible problem with the functionality of the debris basin. Momentum overflow is most likely to occur where a debris basin is situated in a narrow canyon where debris inflows are more readily funneted to a spillway. Deer Creek Debris Basin is a relatively large debris basin with a distance of about 600 feet from the eastern inlet chute to the spillway, and a wide area of potential deposition. In addition the alignment of the spillway is of£set from the direction of the active channel inflow. The probability is very low that flow momentum would cause debris inflows to directly traverse the length of the basin and flow over the spillway without being affected by the wide basin area available for deposition. f. The original estimate of the debris basin capacity of 310 acre-feet was made assuming that the debris deposit would slope radially upstream from the spillway crest at a 6 percent slope. This assumption is unreasonable because it would result in a deposit that would slope upward laterally in both directions from the flowline between the inlet and the spillway. As a CESPL-ED-H (1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity result, cross sections through the deposit would have their highest point at the margins of the deposit. During actual flood events, the deposit would likely be highest along the flowline, and would slope downward toward the margins of the deposit. Due to the long debris basin embankment length, upward slope of the basin bottom in a westerly direction, and the variable and distributed nature of the alluvial fan flood inflow, application of Corps design guidance to Deer Creek Debris Basin involves engineering judgment to establish the basin configuration needed to provide the design debris storage volume. The evaluations conducted in the course of this review have determined that the effective design debris storage space to spillway crest is between 162 and 310 acre-feet, depending on the assumptions related to the spatial distribution of flood inflow. 10. The Current Debris Capacity Corresponds To Less Than A 20- Year Event. Exponent inc. relies on an unrealistic debris deposition pattern (see paragraph 8c above) and LACDPW debris basin design criteria (with a 5 percent maximum debris slope vs. the Corps' use of 6 percent) as the basis for the 111.6 acre-feet current debris storage capacity. Although the Exponent Inc. report correctly interprets Figure 5 of reference 11, its reliance On a current debris storage capacity of 111.6 acre-feet underestimates the effective debris storage capacity of the basin, and therefore understates the current level of protection afforded by the basin. 11. The Consequences of the 100-Year Event. With respect to the NFIP floodplain, Exponent Inc. concludes that if the Deer Creek Debris Basin does not hold the 100-year debris yield that it automatically follows that the downstream flood improvements {Deer Creek Channel and local storm drain systems) would be overwhelmed by an occurrence of the Base Flood (1-percent chance of occurrence in any year), and the floodplain would revert to the pre-project floodplain. This scenario put forth in the Exponent Inc. report is unsupported by any technical analysis, and understates the effectiveness of the flood control system on Deer Creek. a. Exponent Inc. has elected to utilize the current (1993) Los Angeles County Department of Public Works (LACDPW) debris basin design procedures as the basis for evaluating the adequacy of the basin to capture the 100-year debris yield. Use of current CESPL-ED-H /1110-2-1150a) 4 August 2000 SUBJECT: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity LACDPW debris basin design criteria is more conservative than the Corps design criteria (reference lg). However the use of either deterministic debris basin design criteria (LACDPW or Corps) alone does not fully address or quantify the effectiveness of the basin in combination with the downstream channel to convey a probabilistic flood event through the downstream flood control system. Furthermore, if the design capacity of a flood control facility such as a debris basin or entrenched channel were exceeded, it would result in only a partial decrease in project performance that translates to an incremental impact to the floodplain rather than a total loss of project functionality as postulated by the Exponent inc. report. b. The Exponent Inc. report incorrectly equates the level of protection of the downstream floodplain with the debris basin storage capacity alone. The probability of the occurrence of the Base Flood event (1 percent chance annually, or 100-year event) on Deer Creek simultaneously with the occurrence of the 100-year debris yield at Deer Creek Debris Basin is more rare than the probability of the Base Flood used in the NFIP. (1) Based on the Los Angeles District Corps of Engineers (LADCOE) reanalysis of the potential debris yield (reference 11), the joint probability of a 100-year or greater debris yield in conjunction with a 100-year or greater water discharge is very low. Reference 11 estimated the 100-year debris yield as 292 acre-feet, which equates to a unit debris yield of approximately 127,000 yd3/mi2- From the table entitled Debris Yield vs Years- Since-100~ Wildfire and Frequency of Exceedance (reference 11), a unit debris yield of 127,000 yd3/mi2 would be produced by a 100- year discharge that occurred about 6.5 years after a 100 percent burn of the watershed. The Deer Creek Fire Factor vs. Frequency Relationship indicates that the annual exceedance frequency of this fire condition is about 17 percent. Since the flood discharge and the fire condition are assumed to be independent, the joint frequency of a discharge equaling or exceeding the 100- year discharge and a debris yield that equals or exceeds the 100- year yield is about 0.0017, which means that it would occur, on averagel about once in 588 years. The LADCOE Corps debris yield analysis also indicates that a 100-year discharge that occurred 12 or more years after a fire (i.e, a fully recovered watershed condition) would produce about 188 acre-feet of debris, and the debris yield associated with a 100-year or greater discharge would exceed 200 acre-feet about once in 300 years. CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris (2) An evaluation of the existing flood control system with respect to the Base Flood should use a Base Flood hydrograph containing an appropriate coincident sediment load. The overflow area analysis would include the determination of the amount of deposition that would occur in the debris basin, the amount and gradation of sediment that would flow over the basin spillway, and the disposition of the sediment transported downstream, i.e., the extent and location of sediment deposition in the downstream channel system and the sediment conveyed through the system. c. instead of generalized statements of catastrophic flooding as portrayed in the Exponent inc. report, hydrologic and hydraulic engineering analysis should be the basis for statements regarding the extent of potential flooding in the Deer Creek floodplain under conditions of sediment overflow of the basin spillway. Exponent inc.'s report discusses the consequences of a flood exceeding the capacity of Deer Creek Debris Basin by relying on the Corps' January 1973 overflows (reference lj) for the pre-project condition. This overstates the potential severity and extent of flooding in that it does not account for effect of downstream Corps channels, local drainage systems, and current floodplain topography. Also unaccounted for by the Exponent Inc. report is the positive effect on sediment transport within the channel of downstream tributary inflow of mostly sediment-free urban runoff. d. It should be noted that the drainage area tributary to Deer Creek debris basin is 3.71 square miles. The drainage area for Deer Creek at the San Bernardino Freeway (just above its conftuence with the larger Cucamonga Creek Channel) is 13.56 square miles. The Deer Creek Channel increases in size in the downstream direction to accommodate the addition of local drainage system inflow. The channel capacity immediately below the debris basin is 5,400 cubic feet per second (cfs), and at the San Bernardino Freeway has increased to 17,000 cfs. Due to the steep channel slope, ranging from about 11 percent immediately downstream of the basin to about 0.8 percent near the confluence with Cucamonga Creek channel, flow velocities and sediment transport capacity are very high. Sediment flowing over the basin spillway will be transported far downstream into a flatter channel reach with a large cross sectional area. Considerable sediment deposition in the downstream channel reaches could be accommodated during a Base Flood without overflow given the channel is sized for a Standard Project Flood event that is substantially larger than the Base Flood. For example, Deer CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Inc. Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris Creek Channel immediately downstream of the debris basin is designed for 5,400 cfs with a minimum of 2 feet of freeboard, versus the estimated 100-year discharge of 2,770 cfs. Furthermore, much of the fully entrenched Deer Creek Channel is depressed (i.e., top of channel walls are below surrounding ground) such that channel overflows are initially contained within the narrow strip of land immediately adjacent the channel that does not contain development. The effect of any potential channel overflow downstream of the debris basin during a Base Flood event would therefore be of limited magnitude and areal extent. Exponent inc. statements implying significant flood impacts during a Base Flood event all the way to Prado Dam, over 12 miles downstream, are unsubstantiated and exaggerated. e. The Exponent inc. report postulates the disintegration of the downstream concrete channel bed and walls during a single flood event. Corps experience in which high debris loads have occurred in reinforced concrete-lined channels such as on Santa Paula Creek in Ventura County is that they initially hold up well structurally. It normally requires many debris laden flood events over the course of years to render rectangular concrete- lined channels structurally unsound. 12. The Construction Drawings Contained in Design Memorandum No. 6 Correspond To A Volume of 202.8 Acre Feet. Deer Creek Debris Basin was designed and constructed in accordance with Corps of Engineers technical guidance (reference lg) to provide 310 acre-feet of debris storage capacity. Reference lh describes the derivation of the design debris deposition pattern as a 6 percent debris slope fanning out radially from the spillway. We concur that FDM ~6 (reference lk) did not adequately explain how the design debris deposition pattern was determined. Exponent Inc.'s efforts to compute the design debris capacity from the FDM ~6 Plate 3 debris line were therefore misdirected. 13. A Debris Capacity of 202.8 Acre-Feet Corresponds To Less Than A 50-Year Event. Exponent Inc.'s attempt to estimate the design debris deposition pattern and design volume based on Plate 3 of FDM led to an underestimate of the actual design capacity of 310 acre-feet. Exponent Inc. correctly interprets Figure 5 of CESPL-ED-H (1110-2-1t50a) SUBJECT: Evaluation of Exponent Basin Storage Capacity Inc. Report 4 August 2000 on Deer Creek Debris reference 11 that 202.8 acre-feet corresponds to about a 50-year debris yield event, however Exponent Inc. was not aware that the Corps design debris deposition pattern assumed a radial deposition pattern from spillway crest that produced the "debris line" shown in Plate 3 of FDM #6. Los Angeles County Department of Public Works Letter of April 27, 2000 14. In Reference lb, Mr. Michael Bohlander concludes "the Deer Creek Debris Basin is not adequate to handle the 100-year debris volume of 292 acre-feet" using methods consistent with Los ;hngeles County Department of Public Works (LACDPW). Although the use of the current LACDPW debris basin design procedures would apparently result in a more conservative basin design, the Deer Creek Debris Basin is a Corps of Engineers project that was designed in conformance with Corps design criteria. Our · conclusions with regard to the level-of-protection afforded by Deer Creek Debris Basin have been based upon proven US Army Corps of Engineers technical standards. Although the two procedures are different, the fact that they are different does not make the Corps procedure invalid. In reference li, LACDPW formally states, "The opinions of Mr. Bohlander are not those of the Department and should not be used to evaluate the level of protection provided by the Deer Creek Debris Basin." April 24, 2000 Declaration of Mr. Robert G. Kirby 15. Mr. Robert G, Kirby was a former engineer of the Los Angeles District Corps of Engineers (LADCOE) who performed hydrologic determinations of debris yield and design flood peak discharge values for the Cucamonga Creek Project including Deer Creek. Mr. Kirby made the design debris yield determination of 310 acre-feet for Deer Creek Debris Basin in accordance with the Los Angeles District Tatum Debris Method, Corps Design Memorandum ~l- Hydrology (reference lj) documents that determination. The undersigned worked with Mr. Kirby as a co-worker in the preparation of Design Memorandum #1 (DM#I), and subsequently as Mr. Kirby's supervisor and Section Chief during the remainder of the design and construction of the Cucamonga Creek Project. The following comments are provided in response to Mr. Kirby's declaration. a. Mr. Kirby did not perform the civil engineering design 12 CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Basin Storage Capacity Inc. 4 August 2000 Report on Deer Creek Debris of Deer Creek Debris Basin that determined the embankment configuration, spillway crest elevation, embankment height, and basin grading plan required to capture the design debris volume of 310 acre-feet. It is apparent from his declaration (reference lc) that he is unfamiliar with the Corps debris deposition design guidance since his estimation of the basin debris storage volume (130 acre-feet) is based on a computation of level-pool storage at the spillway crest. Mr. Kirby even states in paragraph 7 of his declaration that his calculations "were made without reference to the drawings in Design Memorandum #6" which would have shown that a debris deposition slope of 6 percent was used as the basis of design. Design Memorandum ~6 is reference lk. b. Mr. Kirby expresses concern that the Deer Creek Debris Basin design storage volume is too small based on the enveloping curve of debris inflows shown on plate 23 of Design Memorandum #1. However, the design debris volume for the Deer Creek Basin as plotted on this plate is substantially larger (higher) than enveloping curve of all other observed or design values comprising the graph. c. Furthermore in paragraph 5 of Mr. Kirby's declaration, his statement that "Plate 23 indicates that 130,000 cubic yards of debris per square mile would be generated by each 3.27" storm on the Deer Creek Canyon watershed" is technically incorrect. Mr. Kirby's statement fails to recognize that the design debris estimate computed from the application of the Tatum Debris Method assumes sufficient antecedent rainfall to saturate the soil, that a 100 percent burn of the watershed occurred about 4.5 years prior to the design rainfall, and the 3.27 inches of rainfall falls in a three hour time period (a severe and infrequent occurrence). Hence, not every 3.27" storm on the Deer Creek watershed will produce 130,000 cubic yards of debris per square mile. The assumptions underlying the Tatum Method debris yield procedure generate a conservative debris yield estimate. d. Mr. Kirby's other concern regarding the basin design volume is with the possibility of multiple storms events. Certainly multiple storm events do occur in the region. However debris basin facilities in general, and Deer Creek Debris Basin in particular, are designed to control debris inflows from a single event, and for those debris inflows to be cleaned out of the basin to make space for the next debris inflow if greater than 25 percent of the total basin capacity has been filled. It is standard practice for agencies responsible for maintaining 13 CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris debris basin facilities to perform a cleanout in-between successive storm events. e. As stated in previous Los Angeles District Corps of Engineers correspondence (references ld, le, and if), flood control facilities are designed to control specific sizes of floods, or provide specific levels of protection. The planning and design process for a flood control project and consistency with agency guidelines is the basis for sizing projects. Although Mr. Kirby may noQ feel that the Deer Creek Debris Basin should have been designed to accommodate a larger volume of debris, those beliefs or preferences differ from the well- established design practices of the Los Angeles District. The basin was designed and constructed in accordance with Corps of Engineers planning and design guidance, in partnership with a local sponsor (SBCFCD), and with input from local community public meetings on the plan and design of the project. f. With regard to Mr. Kirby's statements in paragraph 9 of his declaration, the decision whether to retain the Deer Creek Reception Levee as a flood control feature that supplements the flood protection afforded by Deer Creek project is a local decision. However the existing Deer Creek Reception Levee would not meet Current FEMA requirements (44CFR65.10 Mapping of areas protected by levee systems) to be recognized on NFIP maps, as providing protection from the Base Flood. The eastern portion of the levee is privately owned, and currently a section of the levee has been breached to serve as an access road. The levee is not an official flood control feature operated and maintained by a FEMA recognized agency (a Federal or State agency, an agency created by Federal or State law, or an agency of a community participating in the NFIP). Hence Mr. Kirby's reliance on the Deer Creek Reception Levee as a viable flood control feature that meets FE~LA regulations as an official flood control feature is misplaced. Su~unary and Conclusions 16. In summary the information provided in the Exponent Inc. report, LACDPW letter, and Mr. Kirby's declaration are insufficient for the Corps of Engineers to decertify the Deer Creek Debris Basin and Channel Project as providing protection from the FEMA Base Flood (1-percent chance). The assertion by Exponent Inc. that flood inflow and debris can only enter the basin in the currently active channel is inconsistent with clear CESPL-ED-H (11t0-2-1150a) SUBJECT: Evaluation of Exponent Inc. Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris physical evidence that flood and debris flows have occurred on the west side of the alluvial fan. Exponent Inc. report conclusions regarding the extent of the floodplain downstream of Deer Creek Debris Basin during a Base Flood event are largely conjecture unsupported by engineering analysis. Based on the information provided herein the Corps of Engineers certification to FEMA that the Deer Creek Debris Basin and Channel Project affords protection from the Base Flood is still valid. 17. A significant amount of controversy has been generated as a result of allegations that the Deer Creek Debris Basin and Channel provide an insufficient level of flood protection. Although Deer Creek Debris Basin and Channel currently provide adequate protection from a Base Flood event, the current basin design storage capacity is less than the 310 acre-feet originally envisioned as part of the Standard Project Flood design level. The engineering course of action to achieve the original SPF design intent is relatively straightforward, namely a combination of additional excavation to ensure the storage space already provided in the western portion of the basin is effective space, and measures upstream of the basin that create a more uniform distribution of flood and sediment inflow to the basin. These measures could include modification of local agency channel shaping activities upstream of the basin, removal of gabion structures on the west side of the fan above the basin, grading of the alluvial fan area to fill inthe active channel, and excavation of a channel from the apex of the fan at the mouth of Deer Creek Canyon to the western inlet chute of the basin. These measures would foster a more uniform pattern of debris deposition within the basin and thereby ensure more effective utilization of the existing debris storage space in the basin. 18. The scope and cost of the engineering measures outlined above for improving the debris capture effectiveness of the basin are small in comparison to those of the original Deer Creek Debris Basin and Channel project. Implementation of those measures described above would improve the debris capture performance and reliability of the Deer Creek Debris Basin. Given that Deer Creek Debris Basin is now owned by SBCFCD, the decision to pursue these measures would need to be made in cooperation with SBCFCD. 15 CESPL-ED-H (1110-2-1150a) SUBJECT: Evaluation of Exponent Basin Storage Capacity 4 August 2000 Report on Deer Creek Debris · Evelyn, PE Chief, Hydrology and Hydraulics Branch Encls 16 DEPARTMENT OF THE ARMY July 24, 2000 Office of the Chief Hydrology and Hydraulics Branch Mr. Ken Guidry San Bernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 Dear Mr. Guidry: This letter is written in response to your telephone request and Mr. John Flasher's e-mail of February 1, 2000 that the Corps of Engineers review San Bernardino County Flood Control District's (SBCFCD) determination of the debris storage capacity of Deer Creek Debris Basin. Mr. Flasher's summary computation sheet (the 1506XX93 Debris Volume 11 MS Word file for Debris Volume to spillway crest attached to his e-mail) indicated a debris storage volume of 132.48 acre-feet based on a debris cone computed from spillway crest using 1993 topographic data. This storage volume estimate differed with the Corps design debris storage volume of 310 acre-feet. We first reviewed the Corps of Engineers report entitled "Cucamonga Creek Flood Control Project Feature Design Memorandum ~6, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated June 1979 for the basis of design- Feature Design Memorandum ~6 (FDM ~6) indicated that the design debris storage slope was determined to be 6 percent starting from spillway crest. In order to verify the debris deposition pattern used in the design of the basin we contacted the design engineer who made the determination of the debris deposition pattern within the basin, and prepared the debris basin grading plan that produces the design storage volume. Mr. Roger R. Krohn, the Corps' design engineer for the Deer Creek Debris Basin, left the Los Angeles District about 18 years ago to work in the Sacramento District of the Corps. He had retained some of his Deer Creek Debris Basin work sheets and was able to provide his calculation sheets for the debris storage volume determination dated May 30, 1980 (Enclosure 1); and a Deer Creek Debris Basin General Plan drawing dated February 16, 1982 (revised March 19, 1982) showing the design grading plan and the design debris deposition pattern (Enclosure 2). His May 30, 1980 design computations estimated a debris storage volume of 309.3 acre-feet- The design debris deposition pattern was based on a 6 percent debris slope occurring radially outward from the spillway crest as indicated on Enclosure 2. -2- In order to verify the topographic information provided by SBCFCD and to address the question of the current (July 2000) debris storage volume of Deer Creek Debris Basin, the Los Angeles District Survey Section was requested to obtain current basin topography and provide it in Digital Terrain Model (DTM) format. The Survey Section performed the suzTey using Leica Systems 500 global positioning system survey equipment. The survey was tied horizontally to the North American Datu~ (NAD) of 1927 and vertically to the North American Vertical Datum (NAVD) of 1929. The vertical was tied to 2 monuments set in the early 1970's and was accurate to 0.01 feet. Since Mr. Flasher furnished SBCFCD topographic information in Digital Terrain Model (DTM) format, we elected to use Computer- Aided Design and Drafting (CADD) software to conduct the storage capacity review. The sediment storage volume for Deer Creek Basin was computed using standard CADD software from Bentley and Intergraph (Microstation and InRoads). We analyzed two scenarios: (1) SBCFCD's topography dated 1993, and (2) the topography acquired by the Corps' Survey Section in July 2000. Using SBCFCD's 1993 data, a DTM surface was generated in InRoads for the Deer Creek Basin. Another DTM surface was generated with a radial 6 percent design debris deposition pattern starting from spillway crest. Using the Grid Volume Function in InRoads, the 1993 basin surface was subtracted from the debris deposition surface and a volume of 312 acre-feet was computed- To compute the existing basin capacity, the July 2000 DTM was used. Another 6 percent radial design deposition surface was created- Subtracting these two DTM surfaces using the Grid Volume Function in InRoads, a volume of 298 acre-feet was computed- Normal operation and maintenance practice for maintaining debris basins per Corps Engineer Manual 1110-2-1601 (paragraph 4-1 d.2) is to allow deposition of up to 25 percent of the design debris storage volume before requiring cleanout of the debris basin. SBCFCD has maintained Deer Creek Debris Basin storage capacity to 298 acre-feet as of July 2000, which is within 4 percent of the original design debris storage capacity of 310 acre-feet- In summary the Deer Creek Debris Basin was designed to store 310 acre-feet of sediment per Corps FDM ~6. Using the SBCFCD 1993 DTM to compute the debris storage volume of Deer Creek Debris Basin with the same methodology as the original design gives a debris storage volume of 312 acre-feet. Using the July 2000 topography obtained by the LAD, SBCFCD has maintained the basin -3- capacity to within 4 percent of the original design capacity of 310 acre-feet thereby fulfilling its required sediment cleanout responsibilities for the basin. In the course of completing this review of the debris storage capacity of Deer Creek Debris Basin we located as-constructed drawings of the project dated 1984 (Enclosure 3). Issues raised in the Exponent Inc. Report entitled ,,Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 regarding the effective storage space of the basin and downstream level of flood protection are under review, and will be addressed in separate correspondence upon completion- Sincerely, leld, Acting Ch e En .... ion Enclosures QUANTITY COMPUTATION _ of 5'0 zF .4~o 747 /f oo 5'0 ,lzy~7~7 6?7 Z+ FO Ioo 1,8~1? 1~78 u . 7~Z 1~4Yo 5t~O n , 7118 14/~ Z6~ ' ~ 7f 5S ~7 ,S7o~ I~>~l IS,ez5 ~- /~ ~ S~ leo 1.8~17 ~ I~>~ ' 517 -- -- _/a f 2o ' . - QUANTITY COMPUTATION 5+ Z 9 ZF , 4~ o 57~0_ Ioo I. S519 ' o ~8o 1815 /ool ~ ffo o 98o Io3 1do74 Io7~ Io75 ~Fo 47F3 9~7 5975 ~7S ~ +oo /za~ ~+oo loo l. SSt9 ]l~S 404+ 4~9+ ~szz · Ioo ,, 1~o3 z%~ ~ 450 _/o+oo ~5 .4~ 450 45o ~B ~) o E sovo/7on_ f+ z~ o ~'~ ~o ~5 ,~o o /~ ~ /507 /oq-Fo leo 1.851~ ~- 5038' 7+F5 Io3 1,9o74 llffo lifo ~17~ }~}~ ~q93 5~I Ioo 1.8ffl9 ~72 47~8 5115 ?¢0o /o0 " ISlE ~17 7o .5'o .......... ~o~ o00 . // EL. 7~, ~ QUALITY CONTROL CERTIFICATION Deer Creek, California Technical' Studies COMPLETION OF QUALITY CONTROL ACTIVITIES An independent technical review team has completed the review of studies related to the flood control capability of the Deer Creek, California Flood Control Debris Basin. Certification is hereby given that all quality control activities defined in the Quality Control Plan appropriate to the level of risk and complexity inherent in the products have been completed. Documentation of the quality control process is enclosed. GENERAL FINDINGS Compliance with clearly established policy principles, procedures and industry standard practices, utilizing clearly justified and valid assumptions. has been verified, This includes assumptions; methods, procedures and materials used in analyses; alternatives evaluated; the appropriateness of data used and level of data oblained; and the reasonableness of the resulls, including whether the product meets the customer's needs consistent with law and existing Corps policy. The undersigned recommends cerlification of the quality control process for this .! w Team Leader Date QUALITY CONTROL CERTIFICATION As noted above, all issues and concerns resulting from technic, a[ review of the product have been resolved- Chief, Engineering & Co/nstruction Division Date U.S. Army Corps of Engineers- South Pacific Division QUALITY CONTROL PLAN DEER CREEK TECHNICAL STUDIES 19 JULY 2000 1. References: a. CESPD-R-1110-1-8, subject: South Pacific Division Quality Management Plan, dated 26 May 2000. b. Scope of Work for Task Order Number 10, Contract Number DACW05-99-D-0010, subject: Independent Technical Review of Deer Creek, California Studies. 2. Objective: The objective of this quality control plan (QCP) is to document a plan for the independent technical review of technical studies and reports developed by the Los Angeles District, Corps of Engineers (CESPL) as well as entities outside of the Corps of Engineers associated with the review of the flood control capability of the Deer Creek, California project. This QCP presents the appropriate level of independent technical review (ITR) of technical products and processes to ensure that they comply with applicable laws, regulations, policies and sound tectmical practices of the disciplines involved. This QCP also provides the flamework to conduct the ITR. Quality Control includes the verification of assumptions, methods, procedures, and data used in analyses based on the level of complexity of the analysis. It also includes verification of the any alternatives evaluated, appropriateness of the data used, and reasonableness of the results. 3. Guidelines: Guidance for quality management of all technical activities conducted by the Corps of Engineers is outlined in reference 1 .a, above. Individual elements and draft final reports will be reviewed for compliance with appropriate public laws; engineering regulations, circulars, and manuals; planning and policy guidance; and standard engineering and scientific practices. Communication of review comments and responses to comments shall be through the ITRT leader. 4. Roles: Quality Control Plan - Deer Ck., Ca. Studies Independent Technical Review Team Leader: Edward F. Sing, P.E. CESPD-ET-EW product Development Team (for CESPL products reviewed under this QCP): 19 July 2000 1 Product Development Team Leader: Joseph B. Evelyn, P.E. Chief, Hydrology and Hydraulic Branch Corps of Engineers, Los Angles District Hydrology: Kerry T. Casey Hydraulic Engineer Hydrology and Hydraulics Section Corps of Engineers, Los Angeles District Hydraulics and Sediment Transport: Mitchell R. Delcau Hydraulic Engineer Hydrology and Hydraulics Section Corps of Engineers, Los Angeles District c. Independent Technical Review Team: Mussetter Engineering Inc. (tkru reference 1 .b, above) Ft. Collins, Colorado Robert R. Musscrier, PhD, P.E. Pdneipal Engineer Michael D. Harvey, PhD, P.G. Principal Geomorphologist 5. List of Documents and Review Schedule: a. General: The ITRT will prepare a report documenting their independent technical review of the listed products, which will become part ofthe project records. All appropriate comments will be addressed and changes will be incorporated into the CESPL reports. The final documents, after all revisions are made, will be submitted to CESPD for Quality Control (QC) certification. The Chief, Engineering and Construction Division will sign this certification. b. List of Documents to be Reviewed: (1) CESPL's November 1999 technical analysis of the Deer Creek Debris Basin's flood control capability; (2) Exponent's report of the same; Quality Control Plan - Deer Ck,, Ca. Studies 19 July 2000 2 (3) SPL's review of Exponent's report and any additional computations performed by SPL in veri flealion of Exponent's analyses; and, (4) Any other associated materials developed by the Corps or by the homeowner's group regarding the flood control capability of the Deer Creek debris basin. Schedule of Review: (1) Initiate ITR (2) Site Visit and Data Review (3) Tectmical Review and Draft Final Report (4) Backchcck of Responses and Final Report (5) Quality Control Certification NTP - July 19, 2000 w/i 7 Calendar days of NTP w/i 14 Calendar days of NTP w/i 21 calendar days of NTP wfI 24 calendar days of NTP 6. Scope of Review: Specifics of the revicxv will involve the following: a. Compliance `'vith established policies, principles, procedures, etc, b. Adequacy of the scope and presenlation ofthe document, c. Appropriateness of all assumptions and methods, d. Appropriateness of numerical models and analylical techniques used, e. Consistency, f. Accuracy, g. Comprehensiveness, and h. Reasonableness of results. 7. Policy Questions: Policy issues, if any, ',rill be resolved through the Corps of Engineers, Soulh Pacific Division (CESPD). 8. Conflict Resolution Procedures: The ITR team leader will review applicable documentation to identify any outstanding disagreements between members of the CESPL product development team and the review team. Specific issues raised in the review will be documented in a comment, response, action required, and action taken format. Any disagreements will be brought to the attention ofthe appropriate Quality Control plan-Deer Ck., Ca. Studies 19 July 2000 3 functional chief to facilitate resolution of any unresolved technical disa~eements between the product development team and review team counterparts. Edward F. Sing, P.E. CESPD-ET-EW Appmved By: Michael A. Grebinski, P.E. Chief, Engineering and Construction Division Quality Control Plan - Deer Ck., Ca. Studies 19 July 2000 4 August8,2000 Mr. Edward F. Sing U.S. Army Corps of Engineers- South Pacific Division Water and Geotechnical Branch 333 Market Street San Francisco, California 94105-2922 Re: Independent Technical Review of Deer Creek, California Studies (Contract No. DACW05-99-D-0010, Task Order No. 0010) Dear Mr. Sing: In accordance with the above-referenced Task Order, I have performed a back-check of the Los Angeles District, Corp of Engineers (SPL)'s response to Mussetter Engineering, Inc. (MEI)'s Independent Technical Review comments on the Deer Creek Debris Basin studies. The responses were transmitted to us via eraall containing a Memorandum for Record from Joseph B. Evelyn, dated August 4, 2000, an annotated copy of our review comment letter, and a revised Memorandum for Record regarding SPL's "Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity," dated August 4, 2000. My review of these documents indicates that SPL has adequately addressed our comments. If you have questions or need additional information, please call me. Sincerely, MUSSETTER ENGINEERING, INC. Robert A. Mussetter, Ph.D., P.E. Principal Engineer RAM:bbv cc: Joe Evelyn, Los Angeles District, COE c:~rojeds'~ ,2,Deer Creek Review.lit CESPL-ED-H 4 August 2000 MEMORANDUM FOR RECORD SUBJECT: Annotated Version of Mussetter Engineering inc. Independent Technical ReView Comments dated August 3, 2000 with CESPL-ED-H Responses In compliance with the quality control/quality assurance procedures of the South Pacific Division of the U.S. Army Corps of Engineers, the Mussetter Engineering Inc. letter dated August 3, 2000 regarding Independent Technical Review of Deer Creek, California Studies has been annotated to show Corps responses to the independent technical review comments. The enclosure contains Corps responses which are denoted in bold italic font after each reconunended action, describe revisions made in finalizing the CESPL-ED-H Final Draft Memorandum for Record, subject: Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity, dated 28 July 2000. The final version of the MFR dated 4 August 2000 constitutes the Los Angeles District Corps of Engineers formal evaluation of the Exponent Inc. report dated 27 April 2000, the Los Angeles County Department of Public Works letter to Mr. Douglas Hamilton dated May 1, 2000, and the declaration of Mr. Robert Kirby dated April 24, 2000. ph B. Evelyn, Hydrology and Hydraulics Branch Encl August 3, 2000 Mr. Edward F. Sing U.S. Army Corps of Engineers South Pacific Division Water and Geotechnical Branch 333 Market Street San Francisco, California 94105-2922 ire: Independent Technical Review of Deer Creek, California Studies (Contract No. DACW05-99-D-0010, Task Order No. 000__) Dear Mr. Sing: In accordance with the above referenced Task Order, Mussetter Engineering, Inc. (MEI) has conducted an independent technical review of documents relating to the Corp of Engineers' Los Angeles District (SPL) analysis of the Deer Creek Debris Basin's flood control capability, SPL's review of a repor~ prepared by Exponent, Inc., as well as a variety of other documents that were provided to us regarding this issue. The specific documents that were reviewed are listed in Enclosure A. In conducting this review, we performed a site reconnaissance of the debris basin, upstream watershed and downstream flood control channel in the company of representatives from SPL and the San Bernardino Flood Control District on July 25, 2000, and attended a meeting in SPL's office on July 26, 2000 to discuss the project, and to obtain additional information and to clarify technical issues that arose during the site reconnaissance. The pdmary technical issues involved in the documents that were reviewed center on whether or not the Deer Creek Debris Basin and the downstream flood control channel provide the intended level of protection to downstream properties from flooding and debris production generated in the Deer Creek drainage basin. According to Hydrology Design Memorandum 1 (DM1) and Feature Design Memorandum 6 (DM6) (Enclosure A, Items 12 and 13), the debris basin was intended to have a debris-holding capacity of 310 acre-feet, and the downstream flood control channel was designed to pass flood discharges ranging from 5,400 cfs at the outlet from the basin to 17,000 cfs at the confiuence with Cucamonga Creek. The required debris storage capacity was originally determined based on the estimated debris production from "a major storm event" (DM1, page VI-1 ) using the Taturn Method (Exhibit 1, Item 15). The design capacity of the downstream flood channel corresponds to the Standard Project Flood (SPF), which was estimated based on the characteristics of a 3-hour local storm that occurred in March 1943. The gradient of the channel ranges from 11 percent at the debds basin outlet to 0.8 percent near the confiuence with Cucamonga Creek. The debris basin spillway was designed to pass the peak discharge associated with the Probable Maximum Flood (PMF) of 15,000 cfs with 3 feet of freeboard. According to DM6 (Table VI-1 ) and the as-built plans for the basin (Enclosure A, Items 18 and 19), the spillway has a crest length (width of opening) of 75 feet, and a crest elevation of 2,658.0 feet. The top of the dam embankment at the Mr. Edward Sing Page 3 August 3, 2000 spillway is at elevation 2.677.5, which provides approximately 3.4 feet of freeboard above the estimated PMF water-surface elevation of 2,674.13 feet, and is 19.5 feet above the spillway crest. Comments on Final Draft Memorandum for Record reqardinq "Evaluation of Exponent. Inc. Reoor[ on Deer Creek Debris Basin Storaae Capacity", by SPL dated July 28, 2000 (Enclosure A. Item 1} para. 8a. Comment. SPL's contention that upstream conditions could lead to "a more uniform distribution of flood inflow and debris to the basin' is very reasonable. The incised channel located along the east side of the valley floor appears to have carried most of the flow and debris during events that have occurred at least since the late 1930s (see Exponent. 2000. Exhibit 4), and this may be the preferred flow path for future large events. Field evidence, however, indicates that significant quantities of debris have historically been transported to the west of the current active channel, and are likely to do so in the future. Preliminary correlation of lichen diameters on the boulder deposits located to the west of the currently active channel with those observed on the Santa Ana River alluvial fan, located to the east of Deer Creek, suggests that the more westerly Deer Creek boulder deposits may be on the order of 140 ~/ears old and may be the result of severe flooding in the 1860s. The channel through the abandoned concrete diversion structure that is located about 1/4 mile upstream from the inlet to the basin, is aligned in a slight westerly direction, and relatively recent flows and deposition have occurred on the fan surface to the west of the currently active channel. Field evidence based on relative age criteria such as boulder color, degree of pitting of boulder surfaces, and the diameter of lichen growing on the boulders, indicates that there have been at least three separate deposittonal events on this part of the valley floor in the last approximately 140 years. During a high magnitude debris flow, much of the transpoded material could be delivered to the debris basin along the west side of the east grouted riprap inlet. In addition, field inspection indicates that a significant debris flow or sediment-producing event has not occurred in Bull Canyon in recent history (unscarred large trees grow on the accumulated deposits on the valley floor at the mouth of the canyon). The elapsed time since the last event that removed accumulated material is an important factor in the amount of debris that is delivered by a given magnitude storm. The large amount of material that is presently stored on the hillslopes and in the valley bottom of Bull Canyon indicates that there is a high likelihood of a significant debris flow from this tributary during future storm events. If Bull Canyon were to deliver a large quantity of debris to the mainstem, blockage of the current active channel, and diversion of floodwater and debris from upstream toward the west side of the valley is likely. Field inspection of the watershed also indicates that significant quantities of sediment are stored in the other subdrainages within the Deer Creek basin. and that the constriction caused by bedrock outcrop and the Fan Canyon alluvial fan has caused significant debris accumulation on the valley floor of Deer Creek upstream of the constriction that potentially could be mobilized in a design event. Recommended Actions. None required. para 8b. Comment. Under low to moderate flood and debris flow conditions, the mechanical channel shaping activities and water conservation diversion and spreading structures that were observed in the field affect the flow and debris deposition pati. ems upstream from the debris basin. Dudrig an event approaching design conditions. however, these structures would be overwhelmed Mr. Edward Sing Page 4 August 3, 2000 by the transported debris. In our opinion, future maintenance or lack of maintenance of these features will have little impact on the deposition patterns in the debris basin dudng design- magnitude events. Recommended Actions. Reword paragraph to reflect the above statement. SPL Response: Concur. SPL Final Draft Memorandum for Record (MFR) was revised as recommended. para 8c. _Comment. Dudng a major flood event with heavy debris loads, there is a high probability that flows and debris will be transported in the central and western parts of the fan downstream of the abandoned concrete diversion structure. However, a man-made levee that is located just to the east of the road to the water tanks and that runs parallel to the road is likely to be substantial enough to prevent significant amounts of flow and debris from reaching the western-most par1 of the fan, and from filling the entire storage volume of the basin. Recommended Actions. Reword paragraph to reflect the above statement. SPL Response: Concur. SPL Final Drarl MFR was revised as recommended. para 8d. Comment. We agree that relatively straight-forward measures could be taken to encourage a more uniform distribution of flood and sediment inflow to the basin, and to increase the storage capacity along the west side of the basin. Recommended Actions. None required. para 9c. Comment. We agree that Exponents' (2000) assumption regarding the shape of the debris deposits is not realistic, even if it is conservatively assumed that all of the debds would be delivered via the incised channel along the east side of the valley. As drawn on the contour map in Exhibit 7 of the Exponent report, the side-slope of the west side of the debds deposits is approximately 1.3H:lV, which is steeper than theangle of repose for rounded cobbles. In addition, the west edge of the debris deposit deviates from the alignment of the upstream channel by only about 20 degrees (1 laterally to 2.7 longitudinally). Because of the height of the drop over the crest of the grouted riprap inlet, and the tendency of the flows to shoal off the debris deposits in a westerly direction toward the untilled part of the debris basin, we believe that significantly more debris will deposit in the west side of the debris basin than is indicated by Exponent's analysis. In addition, Exponent's assumed width for the debds deposit at the grouted riprap inlet of about 270 feet appears. to be unreasonably small compared to the 1938 and 1969 aerial photographs that were provided in Exhibit 4 of their report. Although the reproductions in the Exponent report are somewhat unclear (we did not have access to the original photographs during this review), the coloring on the photographs indicates that the width of the channel at the debris basin inlet is 400 to 1,000 feet in the 1938 photograph, and is approximately 600 feet in the 1969 photograph. Recommended Action. None required. Para. 9d. _Comment. The basis for SPL's estimated effective storage in the debris basin, assuming that all inflow occurs in the active channel on the east side of the valley, of 162 acre4eet Mr. Edward Sing Page 6 August3,2000 reanalysis of the potential debris yield (Enclosure A. Item 3), the joint probability of a 100-year or greater debris yield in conjunction with a 100-year or greater water discharge is very low. SPL's recent estimate of the 100-year debris yield is 292 acre-feet, which equates to a unit yield of approximately 127.000 yd3/mi2· From the table entitled "Debds Yield vs Years-Since-100% Wildfire and Frequency of Exceedonce" (Enclosure A. item 3), the 100-year debris yield would be produced by a 100-year discharge that occurred about 6.5 years after a 100 percent burn. The Deer Creek Fire Factor vs. Frequency Relationship indicates that the annual exceedonce frequency of this fire condition is about 17 percent. Since the flood discharge and the fire condition are assumed to be independent, the joint frequency of a discharge equaling or exceeding the 100-year discharge and a debris yield that equals or exceeds the 100-year yield is about 0.0017, which means that it would occur, on average, about once in 588 years. SPL's debris yield analysis also indicates that a 100- year discharge that occurred 12 or more years after a fire (i.e. a fully recovered watershed condition) would produce about 188 acre-feet of debris, and the debris yield associated with a 100-year or greater discharge would exceed 200 acre-feet about once in 300 years. Recommended Action. Add a brief discussion of the joint probability of large debris yields in conjunction with the base flood to further illustrate the rare nature of such an event. SPL Response: Concur. Paragraph 'l ~b(~) was added to the Final Draf~ MFR to include a brief discussion of the joint probability of large debris yields in conjunction with the base flood. para 11c. Comment. We agree that Exponent's use of the COE's 1973 flood mapping, which represents conditions that existed prior to construction of the debris basin and flood channel ",..overstates the potential severity and extent of flooding..." downstream from the debris basin. As illustrated above, the amount of debris that is likely to be delivered to the basin during the base flood event on which the FEMA floodplain determination is based would likely be substantially less than the design capacity of the basin. Recommended Action. None required. para 11 d. Comment. As indicated in the above discussion, a relatively small percentage of the total debris yield that is likely to occur during the Base Flood event will pass over the spillway into the downstream flood control channel. Because the size range of that material is also likely to be small, significant deposition in the relatively steep and hydraulically efficient flood control channel is unlikely. Since the capacity of the channel is designed for a water flood that is about twice the magnitude of the base flood, increased overbank flooding is unlikely. Recommended Action. None required. para 1 le. Comment. Our experience with concrete lined debris channels is similar to that of SPL. For example, debris flumes that were constructed in 1983-1984 in Ouray, Colorado have withstood debris flows of moderate magnitude that consisted of gravel and cobble-sized material without significant damage. The older concrete-lined debris channels that were replaced by the new channels were originally constructed in the early 1900s. These channels were constructed to a lower structural design standard than the new channel (and we believe the Deer Creek flood control channel), yet they withstood many debris flows that exceeded the capacity of the channels without "disintegrating the channel bed and walls" (Exponent, 2000 - Enclosure A, Item 2). Mr. Edward Sing Page 7 August 3, 2000 Recommended Action. None required. pa ra 12. Comment. Our review of the documentation of the original volume estimates for the debris basin (Enclosure A, Item 17) indicates that the computations were performed correctly. As discussed above, however, we believe that the assumed debris deposition pattern is not realistic, and the actual capacity of the basin, even if it were to fill completely to the spillway crest is substantially less than 310 acre-feet. However, as discussed in our comments on para. 9b. above. all of the excess debris above that required to fill the basin to the spillway crest is uniikely to pass over the spillway into the downstream flood control channel, which increases the level of protection. The potential for momentum overflow during large debris flow events should be considered to insure that the approximately 19.5 feet of embankment height above the spillway crest is adequate to prevent the excess debris that does not pass through the spillway from overtopping the embankment. Recommended Action. If it is COE criteria to consider only the debris capacity up to the spillway crest, the effective volume of the basin should be recomputed based on a more realistic deposition pattern. SPL Response: Due to the long debris basin embankment length, upward slope of the basin bottom in a westerly direction, and the variable and distributed nature of the a~uvial fan flood inflow, application of Corps design guidance to Deer Creek Debris Basin involves engineering judgment to establish the basin configuration needed to provide the design debris storage volume. The evaluations conducted in the course of this review have determined that the effective design debris storage space to spillway crest is between and 3~0 acre-feet, depending on the assumptions related to the spatial distribution of flood inflow. The Final Draft MFR was revised (paragraph 90 to incorporate additional discussion regarding the effective debris storage capacity of the basin in relation to Corps design criteria. para 14. Comment. While the Los Angeles County Department of Public Works criterion for the maximum deposition slope of 5 percent is more conservative than the Corps of Engineers criterion, both. as applied to the Deer Creek channel, are well within the range of values suggested by others. For example, Hungr et al. (1987) (Enclosure A, Item 20), suggests that the "storage angle," which is equivalent to the deposition slope should be in the range from 4 to 8 percent. Additional comments reaardinq "Evaluation of the Debris Storaae Capacity of the Deer Creek Basin". Exponent. Inc., April 27. 2000. The majodty of our comments regarding Exponent's analysis of the debris storage capacity of the Deer Creek basin are incorporated into the above comments on SPL's July 28, 2000 Memorandum for Record. Additional comments that are not explicitly addressed follow: Section 5, para. 2 (page 6). We disagree with Exponent's statement that the "point ofinlersection lot the line of the stream flow axis] is almost precisely where the dam's spillway is located." Based on the as-built plans for the debris basin, the alignment of the centerline of the streamflow axis intercepts the embankment approximately 120 feet to the right (looking downstream) of the dght Mr. Edward Sing Page 8 August3.2000 edge of the spillway opening at the crest of the embankment, and a line drawn parallel to the center line from the left edge of the channel at the top of the grouted stone inlet intercepts the embankment at the approximate left edge of the spillway opening. While it is probable that the fan materials will fan out in both directions from the inlet, causing a podion of the debris flow to be directed over the spillway, the majority of the flow would be intercepted by the embankment, and not the spillway. Peer Review, Item 4. (Page 7). The assumptions that were used in the HEC-RAS analysis of the amount of freeboard in the channel upstream from the basin are not stated in Exponent's report. If these profiles represent only clear-water flows associated with each of the flood peaks that were analyzed, they are misleading because they do not take into account bulking of the flow that would occur during the debris flow, In addition. a backwater analysis of flows in the upstream channel does not account for the potential for blockage of the channel that is likely to occur if significant debris is delivered to the channel from the side tributaries (e.g., Bull and Fan Canyons), or by landsliding from the adjacent valley sides that is likely during a debris flow event. In our opinion. this analysis does not provide useful information regarding the behavior of debris flows on the portion of the fan upstream from the debris basin. Additional comments reqardinq "Review of Debris Production and Level-of-Protection. Deer Creek Debris Basin", HVdroloqV and Hydraulics Section. Los AnGeles District Corps of EnGineers. November 29.1999. (Enclosure A, item 3) The maiority of our comments regarding SPL's review of the potential debris production and the level_ofLprotection provided by the Deer Creek Debris Basin are incorporated into the above comments on SPL's July 28, 2000 Memorandum for Record. An additional comment that is not explicitly addressed follows: Discharge-Frequency Relationship (page 4). Comment. Use of the Day Creek unit discharges as the basis for the discharge frequency curves for Deer Creek is reasonable, but conservative since the Day Creek unit discharges were the highest of the three streams that were considered. Recommended Action. None required. you have any questions about the above comments, please call. Sincerely, MUSSE%~FER ENGINEERING, INC. Robert A. Mussetter, Ph.D., P.E. Principal Engineer Mr. Edward Sing Page 9 August 3, 2000 Michael D. Harvey, Ph.D., P.G. Principal Geomorphologist RAM/MDH:bbv cc: Joe Evelyn, Los Angeles District, COE Mr. Edward Sing Page 10 August 3, 2000 11. 12. Enclosure A List of documents reviewed by Mussetter Engineering, Inc. relating to the flood control capability of the Deer Creek Debris Basin U.S. Army Corps of Engineers, Los Angeles District Memorandum for Record (Final Draft) dated July 28,2000 regarding "Evaluation of Exponent Inc. Report on Deer Creek Debris Basin Storage Capacity." Exponent, Inc., 2000. Evaluation of the Debris Storage Capacity of the Deer Creek Basin, April 27. U.S. Army Corps of Engineers. Los Angeles District, Review of Debris Production and Level- of-protection, Deer Creek Debris Basin, Hydrology and Hydraulics Section, November 29, 2000. County of Los Angeles Department of Public Works letter to Mr. Douglas Hamilton dated April 27, 2000 regarding Deer Creek Debris Basin- Review of Capacity Based on Los Angeles County Standards (enclosure 2). April 24, 2000 Declaration of Mr. Robert G. Kirby, a former employee of the US Army Corps of Engineers. Los Angeles District (enclosure 3). US Army Corps of Engineers, Los Angeles letter dated November 2. 1999 to Mr. Dean G. Dunlavey, of LATHAM & WATKINS, regarding the Deer Creek Reception Levee. US Army Corps of Engineers, Los Angeles letter dated December 16, 1999 to Mr. Dean G. Dunlavey, of LATHAM & WATKINS. regarding the Deer Creek Reception Levee and the Deer Creek Debris Yield. US Army Corps of Engineers, Los Angeles letter dated January 12, 2000 to Mr. Dean G. Dunlavey. of LATHAM & WATKINS, regarding Deer Creek Reception Levee and Deer Creek hydrology. US Army Corps of Engineers Engineer Manual 1110-2-1601, Hydraulic Design of Flood Control Channels. US Army Corps of Engineers, Los Angeles letter to Mr. Ken Guidry, San Bemardino County Flood Control District, dated July 24, 2000 regarding Deer Creek Debris Basin capacity (enclosure 4). County of Los Angeles Department of Public Works letter to Mr. William J. O'Neill dated May 17, 2000, regarding Deer Creek Debris Basin. (enclosure 5). US Army Corps of Engineers, Los Angeles District report entitled "Hydrology, Design Memorandum No. 1, Cucamonga Creek" dated 5 January 1973. Mr. Edward Sing Page 11 August3,2000 13. 14. 15. 16. 17. 18. 19. 20. US A?my Corps of Engineers, Los Angeles District repod entitled "Cucamonga Creek Flood Control Project Feature Design Memorandum ~¢6, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated June 1979. US Army Corps of Engineers, Los Angeles District report entitled "Review of Debris Production and Level-of-Protection, Deer Creek Debris Basin" dated 29 November 1999. Tatum, F. E., 1963. A New Method of Estimating Debris Storage Requirements for Debris Basins, U.S. Army Engineer District. Los Angeles, California, 23 pp. Federal Emergency Management Agency letter to Colonel John P. Carroll, dated May 30, 2000 regarding USACE's review of the Exponent, Inc. report and other issues associated with the Deer Creek Debris Basin. Quantity computation, Deer Creek Debris Basin Debris Volume, computed by R.R. Krohn, 5/30/80. US Army Corps of Engineers, Los Angeles District, 1982. Deer Canyon Debris Basin, General Plan, Sheet 13 of 123, Record Drawing as Constructed, 8/7/84. US Army Corps of Engineers, Los Angeles District, 1982. Deer Canyon Debris Basin, Embankment Profile, Basin Section and Miscellaneous Details, Sheet 14 of 123, Record Drawing as Constructed. 8/7/84. Hungr, O, G.C. Morgan, D.F. VanDine, and D.R. Lister, 1987. Debris flow defenses in British Columbia, in Debris Flows/Avalanches, Geological Society of America, Inc., Boulder, CO, pp201-222. SEE MAPS ATTACHED AT TAB C, VOLUME II Lugar, Lisa A SPL ro~l: ~t: To: Subject: Lugar, Lisa A SPL Wednesday, August 16, 2000 7:51 AM 'mmckeith@loeb.com' RE: Freedom of Information Act The documents were provided in response to FOIA 00-059 dated February 15, 2000 and FOIA 00-060 dated February 17, 2000. The doclunents were mailed on March 13, 2000 with a cover letter dated March 10, 2000. Lisa A. Lugar U.S. Army Corps of Engineers ..... Original Message ..... From: m~nckeith@loeb.com [mailto:mmckeith@loeb.com] Sent: Wednesday, August 16, 2000 5:36 To: llugar@spl.usace.army.mil Cc: jdahl@loeb.com Subject: Freedom of Information Act Lisa: Thank you for your letter of August 15, 2000, and the attached e-mails from the San Bernardino County Flood Control District. In your letter, you state that the February 1, 2000 e-mail and attachments previously were produced. This document has a critical bearing upon the pending 3ute. done of the attorneys or consultants working on this matter recall g seen it before. When do your records show that it was sent to us? cc: CURE FOIA File LOEB<I J._OEB LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PKOFESSIONAL CORPORATIONS 1000 WILSHIILE BOULEVA1D SUITE 1800 LOS ANGELES, CA 90017-2478 TELEPHONE: 213.688.3400 FACSIMILE: 213.688.3460 www. loeb.com LOS ANGELES NEW YORK NASHVILLE TOKYO ROME Direct Dial: 213-688-3622 e-mail: mmckcith@Ioeb.com August 15, 2000 BY TELECOPIER Ms. Lisa Lugar Freedom of Information Act Officer Los Angeles Corps of Engineers 911 Wilshire Boulevard Los Angeles, CA 90017 Re: FOIA Request 00-226 Dear Lisa: Thank you for the August 14, 2000 letter and some of the requested records. You state that "John Flasher's e-mail of February 1, 2000 with the attachments" will be produced "as soon as it becomes available." This is completely unacceptable: Documents from the San Beruardino County Flood Control District, including Mr. Flasher's e-mail and attached study, were responsive to FOIA requests pending since February 2000. The study referenced in Mr. Flasher's e-mail confirms the findings of Exponent Failure Analysis that the basin holds less than 150 acre feet of debris. We require this information immediately as part of our response to Mr. Evelyn's July 28, 2000 draft evaluation. There simply is no excuse why it should not have been produced six months ago and cannot be produced today. My secretary will contact you later this morning to send a messenger to the Army Corps. Thank you. MHM:jw 93163102408 LA243559.1 co: James Smyth, P.E. (by telecopier) Dean Dunlavey, Esq. (by telecopier) Very truly yours, Malissa Hathaway McKeith RECEIVED OFFICE OF COUNSEL AUG 15 2000 U.S. ARMY CORPS OF ENGINEERS LOS ANGELES DISTRICT DEPARTMENT OF THE ARMY LOS ANGELES DISTRK~T, CORPS QF ENGINEEP~ P.O. BOX 5,~711 July 24, 2000 RECEIVED OFFICE OF COUNSEL Office of the Chief Hydrology and Hydraulics Branch U.S. AR,V.Y CORPS Of ENGINEERS LOS A,'iGELES Mr. Ken Guidry San Bernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 Dear Mr. Guidry: This letter is written in response to your telephone request and Mr. John Flasher's e-mail of February 1, 2000 that the Corps of Engineers review San Bernardino County Flood Control District's (SBCFCD) determination of the debris storage capacity of Deer Creek Debris Basin. Mr. Flasher's summary computation sheet (the 1506XX93 Debris Volume 11 MS Word file for Debris Volume to spillway crest attached to his e-mail) indicated a debris storage volume of 132.48 acre-feet based on a debris cone computed from spillway crest using 1993 topographic data. This storage volume estimate differed with the Corps design debris storage volume of 310 acre-feet. We first reviewed the Corps of Engineers report entitled "Cucamonga Creek Flood Control Project Feature Design Memorandum ~6, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated June 1979 for the basis of design. Feature Design Memorandum ~6 (FDM #6) indicated that the design debris storage slope W~s determined to be 6 percent starting from spillway crest. In order to verify the debris.deposition pattern used in the design of the basin we contacted the design engineer who made the determinationof the debris deposition pattern within the basin, and prepared the debris basin grading plan that produces' the design storage volume. Mr. Roger R. Krohn, the Corps' design engineer for the Deer Creek Debris Basin, left the Los Angeles District about 18 years ago to work in the Sacramento District of the Corps. He had retained some of his Deer Creek Debris Basin work sheets and was able to provide his calculation sheets for the debris storage volume determination dated May 30, 1980 (Enclosure 1); and a Deer Creek Debris Basin General Plan drawing dated February 16, 1982 (revised March 19, 1982) showing the design grading plan and the design debris deposition pattern (Enclosure 2). His May 30, 1980 design computations estimated a debris storage volume of 309.3 acre-feet. The design debris deposition pattern was based on a 6 percent debris slope occurring radially outward from the spillway crest as indicated on Enclosure 2. -2- In order to verify the topographic information provided by SBCFCD and to address the question of the current (July 2000) debris storage volume of Deer Creek Debris Basin, the Los Angeles District Survey Section was requested to obtain current basin topography and provide it in Digital Terrain Model (DTM) format. The Survey Section performed the survey using Leica Systems 500 global positioning system survey equipment. The survey was tied horizontally to the North American Datum (NAD) of 1927 and vertically to the North American Vertical Datum (NAVD) of 1929. The vertical was tied to 2 monuments set in the early 1970's and was accurate to 0.01 feet. Since Mr. Flasher furnished SBCFCD topographic information in Digital Terrain Model (DTM) format, we elected to use Computer- Aided Design and Drafting (CADD) software to conduct the storage capacity review. The sediment storage volume for Deer Creek Basin was computed using standard CADD software from Bentley and Intergraph (Microstation and InRoads). We analyzed two scenarios: (1) SBCFCD's topography dated 1993, and (2) the topography acquired by the Corps' Survey Section in July 2000. Using SBCFCD's 1993 data, a DTM surface was generated in InRoads for the Deer Creek Basin. Another DTM surface was generated with a radial 6 percent design debris deposition pattern starting from spillway crest. Using the Grid Volume Function in InRoads, the 1993 basin surface was subtracted from the debris deposition surface and a volume of 312 acre-feet was computed. To compute the existing basin capacity, the July 2000 DTM was used. Another 6 percent radial design deposition surface was created~ Subtracting these two DTM surfaces using the Grid Volume Function in InRoads, a volume of 298 acre-feet was computed. Normal operation and maintenance practice for maintaining debris basins per Corps Engineer Manual 1110-2-1601 (paragraph 4-1 d.2) is to allow deposition of up to 25 percent of the design debris storage volume before requiring cleanout of the debris basin. SBCFCD has maintained Deer Creek Debris Basin storage capacity to 298 acre-feet as of July 2000, which is within 4 percent of the original design debris storage capacity of 310 acre-feet. In summary the Deer Creek Debris Basin was designed to store 310 acre-feet of sediment per Corps FDM #6. Using the SBCFCD 1993 DTM to compute the debris storage volume of Deer Creek Debris Basin with the same methodology as the original design gives a debris storage volume of 312 acre-feet. Using the July 2000 topography obtained by the LAD, SBCFCD has maintained the basin -3- capacity to within 4 percent of the original design capacity of 310 acre-feet thereby fulfilling its required sediment cleanout responsibilities for the basin. In the course of completing this review of the debris storage capacity of Deer Creek Debris Basin we located as-constructed drawings of the project dated 1984 (Enclosure 3). Issues raised in the Exponent Inc. Report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 regarding the effective storage space of the basin and downstream level of flood protection are under review, and will be addressed in separate correspondence upon completion. Sincerely, . leld, . . . Acting Ch En ' ' ion Enclosures CF wo/encls: CESPL-DE CESPL-ED CESPL-ED-H (w/encls) CESPL-ED-HH (w/encls) CESPL-ED-D CESPL-ED-GS CESPL-PA ICESPL-OC CESPK-ED-D (Roger Krohn) CECW-BW (Brian Bryson) w/encls CESPD-PM (James Ueda) CESPD-OC (Neil Purcell) CESPD-ET-EW (Ed Sing) w/encls -4- VERMEEREN CESPL-ED-HH DEL CESPL-ED-F_H STATION ot 8F o z~ .4~o 747 o+ Fo 7'~7 Yo ,7Z57 4aT14o7.~ /~ oo ~oo L~I~ /~78 ~ t ~o 7 118 ~ ~f~o Io~/,7o7¢ H~/75 zTzoT~ ~ 7f ¢~ 7&~ 16~1 1525z~ 8 ~oo ~7 ,Z7o~ 7~oo /o~ /.8~1~ /4~8I /otoo / ~l IZ ZZI 180 ~r' 1~ ~ 5~ Ioo I.~ ~ Z7~27 ~c., /s~oo~o ·s78~ l~,/zt Io2~ I~ ~ ~o 5o .?z~5187 /8 + 9o o 77. o p C, ~07, S CHECKED By AREA SUM 2 TOTAL $Q, FTo AREAS CUo yDS, f , C: OF E , LOS ANGELES QUANTITY COMPUTATIt 5TATION ~'~T~"~ '~TO" ~,, z87o ' (22) EL. Z67f SHEET COMPUTED Ely CHECKED BY DATE TC)TAL AR~ CU, yD~, CU, YDS, SQ, FT, 5-~ z 5' gf . d'-t- 5'oIoo I.~519 ' o 230 ~ fS'o o Io3 13074 lo75' /o75' zo~o '7,' 5'347 .87oq- 83qo zo37 5773 747Z ~ +oo /Z~5' ? .t-oo /oo/.s5./9 z4-/,s ~4-7a 4off+ 7s~3 Ioo , 115'3 1~,o3 lo~oo ~5 .'I~,3o 450450 zoB (.111~'~) .¢5'o /o-t Zs' o o 0 IS 15 ,/05'0 ~'H7 4oq4- f.../-e~' 25 $'-/- ~o/oo/,85'm -- 6tfo o los/,~o74- /15'o 7 + 5',3 II fo 47.87o4 a5'o7 8 foo 135'7 Io0 1.8579 ? + oo Io too /oo , 1~15' /o~-~f zS' .¢.~ 5"00 500 z3Z I 0 0 o /507 /232 ggg~ /~3Z, 6z/93 1Z~385 5'092' E/If 9/~¢ g~371 8Z~ ~q? q54~ sqzq .. 4049 ~ f~ z~g 4~595 ~oo SPL ,o.- 223 I¶ JAN 60 PREVIOUS EDITIONS MAY 9EUSED! REPLACES 8PL FORMS 10t AND 197 WHICH MAy BE USED ARMY , C OF I~ , LOS ANGELES ......... ~4cas _ .......... ~0~ ooo 3o /o EL. ~L ~ V// T/~xV -% ~ ~ odded to Ylon~m~Re~ ~, Z/~ REFERENCE DRA',NIN~5 SHEET 'iNTaKE TOWE~, DI~ER (;ANYON DEBRIS BASIN GENERAL PLAN / · , ,r--,,/::,, ,, ./'\ ;roJv on Z H. DEER CANYON D~BRIS BASIN GENERAL PLAN ,z./n, laz, ~8°° / r \ -~. % s"QrduFed sfone ~pron shown, See .ShA ~ got re'j~g conc. slczb option. ,/~P, EFERENIC, E DR, AWtN~ 5p(t,~wA,,,' ~:O~TLE~: wor~6 pu~j ~ '., " ENCLOSURE 3 DEPARTMENT OF THE ARMY July 24, 2000 office of the Chief Hydrology and Hydraulics Branch Mr. Ken'Guidry San Bernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 'Dear Mr. Guidry: This letter is written in response to your telephone request and Mr. John Flasher's e-mail of February 1, 2000 that the Corps of Engineers review San Bernardino County Flood Control District's (SBCFCD) determination of the debris storage capacity of Deer Creek Debris Basin. Mr. Flasher's summary computation sheet (the 1506XX93 Debris Volume 11 MS Word file for Debris Volume to spillway crest attached to his e-mail) indicated a debris storage volume of 132.48 acre-feet based on a debris cone computed from spillway crest using 1993 topographic data. This storage volume estimate differed with the Corps design debris storage volume of 310 acre-feet- We first reviewed the Corps of Engineers report entitled "Cucamonga Creek Flood Control Project Feature Design Memorandum ~6, Deer Creek, Demens and Hillside, Debris Basins and Channels" dated June 1979 for the basis of design. Feature Design Memorandum ~6 (FDM ~6) indicated that the design debris storage slope was determined to be 6 percent starting from spillway crest. In order to verify the debris deposition pattern used in the design of the basin we contacted the design engineer who made the determination of the debris deposition pattern within the basin, and prepared the debris basin grading plan that produces the design storage volume. Mr. Roger R. Krohn, the Corps' design engineer for the Deer Creek Debris Basin, left the Los Angeles District about 18 years ago to work in the Sacramento District of the Corps. He had retained some of his Deer Creek Debris Basin work sheets and was able to provide his calculation sheets for the debris storage volume determination dated May 30, 1980 (Enclosure 1); and a Deer Creek Debris Basin General Plan drawing dated February 16, 1982 (revised March 19, 1982) showing the design grading plan and the design debris deposition pattern (Enclosure 2). His May 30, 1980 design computations estimated a debris storage volume of 309.3 acre-feet- The design debris deposition pattern was based on a 6 percent debris slope occurring radially outward from the spillway crest as indicated on Enclosure 2. -2- In order to verify the topographic information provided by SBCFCD and to address the question of the current (July 2000) debris storage volume of Deer Creek Debris Basin, the Los Angeles District Survey Section was requested to obtain current basin topography and provide it in Digital Terrain Model (DTM) format. The Survey Section performed the survey using Leica Systems 500 global positioning system survey equipment. The survey was tied horizontally to the North American Datum (NAD) of 1927 and vertically to the North American Vertical Datum (NAVD) of 1929. The vertical was tied to 2 monuments set in the early 1970's and was accurate to 0.01 feet. Since Mr. Flasher furnished SBCFCD topographic information in Digital Terrain Model (DTM) format, we elected to use Computer- Aided Design and Drafting (CADD) software to conduct the storage capacity review. The sediment storage volume for Deer Creek Basin was computed using standard CADD software from Bentley and Intergraph (Microstation and InRoads). We analyzed two scenarios: (1) SBCFCD's topography dated 1993, and (2) the topography acquired by the Corps' Survey Section in July 2000. Using SBCFCD's 1993 data, a DTM surface was generated in InRoads for the Deer Creek Basin. Another DTM surface was generated with a radial 6 percent design debris deposition pattern starting from spillway crest. Using the Grid Volume Function in InRoads, the 1993 basin surface was subtracted from the debris deposition surface and a volume of 312 acre-feet was computed. To compute the existing basin capacity, the July 2000 DTM was used. Another 6 percent radial design deposition surface was created. Subtracting these two DTM surfaces using the Grid Volume Function in InRoads, a volume of 298 acre-feet was computed. Normal operation and maintenance practice for maintaining debris basins per Corps Engineer Manual 1110-2-1601 (paragraph 4-1 d.2) is to allow deposition of up to 25 percent of the design debris storage volume before requiring cleanout of the debris basin. SBCFCD has maintained Deer Creek Debris Basin storage capacity to 298 acre-feet as of July 2000, which is within 4 percent of the original design debris storage capacity of 310 acre-feet. In summary the Deer Creek Debris Basin was designed to store 310 acre-feet of sediment per Corps FDM #6. Using the SBCFCD 1993 DTM to compute the debris storage volume of Deer Creek Debris Basin with the same methodology as the original design gives a debris storage volume of 312 acre-feet- Using the July 2000 topography obtained by the LAD, SBCFCD has maintained the basin -3- capacity to within 4 percent of the original design capacity of 310 acre-feet thereby fulfilling its required sediment cleanout responsibilities for the basin. In the course of completing this review of the debris storage capacity of Deer Creek Debris Basin we located as-constructed drawings of the project dated 1984 (Enclosure 3). Issues raised in the Exponent Inc. Report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 26, 2000 regarding the effective storage space of the basin and downstream level of flood protection are under review, and will be addressed in separate correspondence upon completion. Sincerely, Eined, . ' . . . Acting Ch E~lon Enclosures CF wo/encls: CESPL-DE · CESPL-ED CI~.S~T.~E~D CESPL-ED-GS CESPL-PA CESPL-OC CESPK-ED-D (Roger Krohn) CECW--BW (Brian Bryson) w/encls CESPD-PM (James Ueda) CESPD-OC (Neil Purcell) CESPD-ET-EW (Ed sing) w/encls -4- JUNG ?/?- ~ESPL-ED ~SLp~N_ED_H VERMEEREN CESPL-ED-HH CESPL-ED-HH Deer ,~,'~.. ~ ~ ..... ~ ,(}.. ,,.>'- QUANTITY De_~r/~ Vo/um5 - AREA ~UM 2 TOTAL COIPUTATION Zac,;rea,Sc 5~,;~ E~cav. O zS' .4~5o 747 7'/7 4s?? ~075 of If oo - 5'o ' lifo Ioo 1.8.~17 ~ t 5'0zt 5o51 'o77Z~ '_z.,'tl~ -f784 4to /5o7 ~5'37Ig~ IIo 17~%8 45'4-2~'4~4f - 5'00z~,Zq37~ 4~ I QUANTITY COMPUTATION 0 5¢ ~ 5' ~5' , 4~6 o /col 8 f 5'0 IoO 1.85~ 0 los I.~o74/075' /o75' zoS'o 5~7,5 4~5'~ ~'H7 747z ~5'o4 7-~ 55 47 .87oq Z~'bo zoO7 e~ +oo /Z~,5" Z~-Ia ~4-7a 4oq+ 754~ IoO I. S51~ 1153 4044 '7 -/-oo/oo fi I/oo3 z~'6~ 104-00 ~5 .4~23o 45'0 450 Zo~ [i7~ " 4.5'0 ~.D~ 742-' 450 450 Io-I- g.f o ~ o o 0 ~t z ~' 25 · ¢30 -o 15o7 5'-/~'o 6fFO Io0 1,85'12 ~ /232 7 + ff~ 703 1,3o74 o )~Sg 6q~3 iz~5 I15'olifo 2-1'74 5Z[ol ~5 ~-oo 47 ,8704/357 z5'o7~1~ 5115 8zo8 /.85'/e~7z4748 a//04-160714049 ~ Ioo isle ~+oo Ioo' 1815~3&l ,_-- _. 5'00~-) 5'00 Io too z~ .4[,5o 5'00. 500 ZSg "/Z(~I? \ Iof-Zf 0 ~ _ o SPL, ,':7.",o 223 ,,,..~,,,o.,. ,~,:,,?,o.. ,,,,,., ,, ~: ,,,,.o, ..~',-,'.=~..':"- I0 .............. 50~ o00 EL ~ V/q T/d)N · GENT BY: R CUCAMONGA COM DEV; 8- 2- 0 2:58PM; 9094772847 => LauPen Development; #3/4 DEPARTMENT OF THE ARMY Office of the Chief Hydrology and Hydraulics Branch Mr. William J. O'Neill City Engineer of Rancho Cucamonga 10500 Civic center Drive P.O. BOX 807 Rancho Cucamonga, California 91729 Dear Mr. O'Neill: This letter is an interim response to your recent request for an evaluation by the U.S Army Corps of Engineers of the Exponent Inc. report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 27, 2000. At the direction of the Office of the Assistant secretary Of the Army for Civil Works, an independent technical review of the Corps of Engineers proposed response to the Exponent Inc. report will be performed. In addition, coordination of the Corps of Engineers evaluation with the Assistant Secretary's office must be accomplished prior to our formal response to you_ Presently, we are scheduled to brief the Assistant Secretary on our analysis in late August. We anticipate being in a position to provide you our formal response soon thereafter. We ask for your patience while we take the steps necessary to ensure a fully coordinated agency reply to the issues raised regarding the Deer Creek project. For additional information, please feel free to contact me at 213-452-3961. Copies furnished: ~~./~Lan y Lieutenant Co el, Corps of E neers Acting Dij~gineer Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office washington, DC 20510-0505 Building 'SENT BY: R CUCAMONGA COM DEV; 8- 2- 0 2:58PM; 9094772847 => Lauren Devezopment; #4/4 --2- Honorable Diane Feinstein United States Senate 331 Mart Senate office Building Washington, DC 20510-0505 Honorable Joseph W. Westphal Assistant Secretary of the Army (Civil 108 Army Pentagon Washington, DC 20310-0103 Works) DF'PARTI4ENT OF THE ARI~Y OFFIC~ OF THt~ ASS4STA~T 5I~CI~mETAJ~[Y 17 JUL 21)]D Ms. Malissa Hathaway McKeith L~eb & Loeb LLP 1000 Witshire Boulevard Suite 1800 Los Angeles, California 90917-2475 Dear Ms. McKeith: 'f his is in response to your letter of March 2!9, 2000, to the Nanarable L~uis Caldera, Secretary of the Army. regaining the design of the Deer Creek and Day Creek Debris Basins for the Cuca.mor~Ja Cf~k Fk~d Control Project in San {3emardino County, California. Secretary CaMera asked me to respond ~3n his behaff, since I have oversight rc~pensibilitles for the Army Corps of Engineera. t understand your concerns about the Carps previous rcv~e~q of the design . af the Deer Creek Debris Basin and ~he downstream channels. You do not concur with that review and believe the level of protection provided by the project is ~ss than identified by th~ Corps. Let me a~sure you that we take your concerns seriously, and that the safety of people protected by the project is our first priority. In a mcen', letter, Mr. Dean Durdavcy, your Counsel, submitted a copy of the 'Exponent Failure Analysis* which provided additional informa~jon regarding - the d,*sign of the debris basin. In response to that letter, the Corps has ce~ec'~-d ;~dditiDnal informalign on t~ basin, and is evaluating this new data plus the information provided by Mr. Dunlavey. I have been informed that the Corps' evatustjon of the 'Exponent Failure Analysis' wifi be c, Qmpleted by the end of July. I have arranged far a peer review by the Waterways Experiment SLation in Vicksburg, Mississippi. That review will be completed in mid-August. and I exI:~--ct a briefing an the fesulls in late August. At that time, I wifi consider whether furtheE evaluations are neces,s~ry, and I wiii advise you of what actions we wile take. Please de nat hesitate to contact me ff you have any questj, ons. Sincerely, Assistant Secretary of the Army (Civi~ Work_s) II CF: CRC CECW-BW CEC~N-PW SACW: Smyth Army General Counsel SACW: File, Read, Sign Prepared: Jim Smy~hj,.SAOW/Jun 25, 00 Rev~ed: Jim Smy'tWJaly 11,2000 SAOENU403 DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT. CORPS OF ENGINEERS PO. BOX 53271t LOS ANGELES, CALIFORNIA ~O53-2':J25 July 19, 2000 Office of'the Chief Hydrology and Hydraulics Branch Mr. Ken Miller Director, County of San Bernardino Transportation/Flood Control Department 825 East Third Street San Bernardino, California 92415-0835 Dear Mr. Miller: This letter is an interim response to your recent request for an evaluation by the U.S Army Corps of Engineers of the Exponent Inc. report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Basin" dated April 27, 2000. At the direction of the Office of the Assistant Secretary of the Army for Civil Works, an independent technical review of the Corps of Engineers proposed response to the Exponent Inc. report will be performed. In addition, coordination of the Corps of Engineers evaluation with the Assistant Secretary's office must be accomplished prior to our formal response to you. Presently, we are scheduled to brief the Assistant Secretary on our analysis in late August. We anticipate being in a position to provide you our formal response soon thereafter. We ask for your patience while we take the steps necessary to ensure a fully coordinated agency reply to the issues raised regarding the Deer Creek project. For additional information, please feel free to contact me at 213-452-3961. Lieutenant Col el, Copies furnished: Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office Building Washington, DC 20510-0505 -2- Honorable Diane Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510-0505 Honorable Joseph W. Westphal Assistant Secretary of the Army 108 Army Pentagon Washington, DC 20310-0103 (Civil Works) -3- CF: CDR's Reading File CESPL-PM CESPL-ED CESPL-PD CESPL-ED-D CESPL-ED-H CESPL-ED-HH CESPL-OC CESPL-DE-PA CESPD-DE CESPD-ET-EW CESPD-OC CESPD-PM CECW-BW (Brian Bryson) CARROLL CESPL-DE LANDRY CESPL-DD TEMMEL CESPL-OC14 DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT, CORPS OF ENGINEERS June 20, 2000 Office of the Chief Hydrology and Hydraulics Branch Honorable Barbara Boxer United States Senate Washington, DC 20510-0505 Dear Senator Boxer: A May 31, 2000 letter from Mr. Eric J. Vizcaine, your Director of Constituent Services, requested review and comment on a January 17, 2000 letter from Mr. Robert J. Cristiano, one of your constituents. Thank you for the opportunity to provide information regarding Mr. Cristiano's letter concerning Deer Creek Reception Levee located in Rancho Cucamonga, San Bernardino County, California. Mr. Vizcaine's letter states that Mr. Cristiano's concern was "a difficulty he incurred with the United States Army Corps of Engineers." In reading Mr. Cristiano's letter; however, his concern appears to be his disagreement with the need for additional technical studies of the level of flood protection afforded by the Deer Creek Debris Basin and Channel given that the Corps of Engineers maintains that the project provides greater than 100-year flood protection. Your letters of November 3, 1999, November 16, 1999 and January 19, 2000 to Dr. Joseph W. Westphal, Assistant Secretary of Army for Civil Works, requested additional Corps of Engineers evaluation of flood protection measures on Deer Creek including the Deer Creek Debris Basin. In your letter of January 19, 2000 to Mr. James Lee Witt, Director of the Federal Emergency Management Agency (FEMA), both you and Senator Feinstein formally requested FEMA to conduct an independent study of Deer Creek. FEMA responded in their letter of February 16, 2000 (Enclosure 1) that they would not conduct an independent engineering study of Deer Creek, and will continue to rely on the determination of the Corps of Engineers with respect to certification that the project affords Base Flood (1-percent annual chance or 100-year) protection. Subsequent FEMA letters dated May 30, 2000 to the Corps of Engineers and San Bernardino County (Enclosures 2 and 3, respectively) again reaffirm FEMA's decision and policy to accept Corps of Engineers certification of flood control projects. U.S. A,~bIY CGHPS OF ENG'.;~CEI~S -2- Mr. Cristiano questions whether the conduct of an additional safety study at public expense is a "prudent use of taxpayers dollars." He asks that you consider the opinion of the Corps of Engineers in deciding whether to recommend additional studies of the level of protection provided by Deer Creek Debris Basin and Channel. The Corps of Engineers planned, designed, and constructed the Deer Creek Debris Basin and Channel as part of the Cucamonga Creek Flood Control Project, which was then transferred to San Bernardino County Flood Control District (SBCFCD) for operation and maintenance. Construction of the project was completed in 1984 and it has performed flawlessly in preventing downstream flood damages since that time. The Deer Creek Reception Levee was a SBCFCD flood control levee constructed prior to the completion of the Corps project, and is no longer needed to provide 100-year flood protection along Deer Creek. The eastern portion of Deer Creek Reception Levee is now located on privately-owned land that was surplused by SBCFCD after completion of the Corps project. Corps of Engineers letters of November 2, 1999, December 16, 1999, and January 12, 2000 (Enclosures 4, 5, and 6, respectively), referred to by Mr. Cristiano, reaffirmed the Corps' position that Deer Creek Debris Basin and Channel provides greater than 100-year flood protection. Dr. Westphal's letter to you dated March 6, 2000 (Enclosure 7) also expressed confidence that the Deer Creek project continues to provide the community with a high level of flood protection. Opponents of the Lauren Development, which would remove the eastern portion of the Deer Creek Reception Levee in constructing 40 homes on about 25 acres, continue to question the capability of the Deer Creek Debris Basin and Channel to provide 100-year flood protection. They are adamant in their position that the Deer Creek Reception Levee is necessary to supplement the flood protection provided by Deer Creek Debris Basin and Channel. To support their position they recently hired the firm of Exponent Inc. that produced a report, which concludes the Deer Creek Debris Basin is under sized and incapable of capturing the estimated 100-year debris yield from the watershed. The Los Angeles District Corps of Engineers is currently evaluating this report and will provide you a copy of our findings when completed. However, it is not necessary to wait for completion of our evaluation of the Exponent Inc. report to address Mr. Cristiano's question regarding the need for an additional independent technical safety study. The deficiencies cited in the Exponent -3- Inc. report, if valid, are readily corrected through simple excavation of additional sediment from the existing debris basin. The funding that would be expended on an additional study would be better spent on removal of additional sediment so as to enhance the flood control capability of the existing debris basin. Members of my staff met with Mr. Cristiano and his attorney, Mr. Andrew Hartzell, along with representatives of the City of Rancho Cucamonga and SBCFCD on January 12, 2000 to provide information related to the design and level of flood protection provided by Deer Creek Debris Basin and Channel. We will continue to coordinate with Mr. Cristiano and representatives of the local community as appropriate regarding flood control issues on Deer Creek. If you need additional information or further assistance regarding Deer Creek flood control issues please feel free to contact me at 213-452-3961. For technical issues your staff may wish to contact Mr. Richard Leifield, Acting Chief of Engineering Division, at 213-452-3629, or Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, at 213-452-3525. A copy of this letter is being furnished to your local office. Sincerely, District Engineer Enclosures Copy furnished: Local Address - San Francisco CF wo/enc~s: CDR'S Reading File CESPL-PM CESPL-ED CESPL-PD CESPL-ED-D CESPL-ED-H CESPL-DE-PA CESPD-DE CESPD-ET-EW CESPD-OC CECW-BW (Brian Bryson) -4~ CARROLL CESPL-DE LANDRY CESPL-DD DE~ CESPL-XA TEMMEL~ CESPL-OC ~LEIFIELD CESPL-ED CESPL-ED Office of the Chief Operations Branch DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT, CORPS OF ENGINEERS P,O. Box 5~2711 LOS ANGELES, CALIFORNIA 90053-2325 June 29, 2000 Mr. Ken Eke San Bernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 Dear Mr. Eke: This is in response to your letter of April 13, 2000 concerning the revised plans and calculations to construct a 57- inch RCP into Deer Creek Channel at Station 494+16 (Corps File No. EE97-155c). Operations Branch has reviewed the revised plans and has the following comments: a. The proposed slotted chamber design has been modified since the last submittal to four-foot openings to achieve the submergence criteria. However, the updated hydraulic analysis provided to estimate losses in the slotted chamber design used a discharge of 111.7 cubic feet per second (cfs), which is less than the design discharge of 446.8 cfs. Please revise your hydraulic computations to reflect the correct discharge. Our hydraulic concern is that losses within the slotted chamber might cause a backwater effect upstream and cause potential interior flood damages. Provide some type of written documentation assuring no adverse hydraulic effects for this proposed lateral system and junction structure. b. Please provide a copy of the original hydrology report that was provided during the third submittal; the copy previously provided was accidentally discarded. c. A resubmittal is required. If you have any questions, please call Mr. Ted Masigat, Operations Branch, at (213) 452-3393. Sincerely, George L. Beams, P.E. Chief, Construction- Operations Division CESPL-ED-DS MEMORANDUM FOR: ["'1 ED-DB W] ED-DS 1"'] ED-GD/J55~ED-H SUBJECT: PERMIT REQUEST REVIEW NO. I. Please revie~v the attached permit request documents. 2. All permit reviews should try to be completed within a 3 to 5 day period. Ira longer time is required, please notify David Van Dorpe at extension x3693 as soon as known. 3. Use the bottom of this sheet or SPD Form 362, "Engineering Review Comsnents," for your response. Write the permit number on the SPD form. 4. Response on this permit review is required by: e} - Z'7 - e~D 6. If additional information is necessary to complete this review, the reviewer may directly contact the AE for additional information. 7. Please return the original memo to David Van Dorpe. NOTE: DAVID M. VAN DOGE, P.E. Structural Engineer Engineering Division Check and sign the appropriate box below: [ ] This Section has NO COMMENT on the permit application [~ Comments are attached on SPD Form 362 [ ] Comments Hereon: . . B'tVosed sleted c. hatnbec design has l:~_en mcdrgled ]-o ach,eue ,Submer~ence;ho,~ever H'~H request ano-Lher rektlet~l n? -t-ke hyarol%V r~por¢. ENGINEERING REVIEW COMMENTS SUBMITTAL: PAGE: | Permit Request Review No. P97-62C PROJECT DESCRIPTION: Proposed 60:' Side Drain with Slotted Chamber Inlet on Deer Creek Channel (Approximate STA 494+28) LOCATION: Rancho Cucamonga, CA FISCAL YEAR: 2000 COMMENTS SENT TO: David Van Dorpe, ED-DS DATE: 4 May 2000 NAME OF REVIEWER: Kevin J. Thomas, P.E. REVIEWING AGENCY: H & H Section This is a re-submittal for a proposed 60 in side drain for Deer Creek Channel. The re-submittal proposes a slotted chamber inlet junction structure. The proposed slotted chamber design has been modified since the last submittal to 4 feet Openings to achieve the submergence criteria. However, the updated hydraulic analysis provided to estimate losses in the slotted chamber design used a discharge of 111.7 cubic feet per second (cfs), which is less than the design discharge of 446.8 (cfs). Please revise your hydraulic computations to reflect the correct discharge. Our hydraulic concern is that losses within the slotted chamber might cause a backwater effect upstream and cause potential interior flood damages. Provide some type of written documentation assuring no adverse hydraulic effects for this propose lateral system and junction structure. The Hydrology & Hydraulics Section is unable to find the original hydrology report that wag provided during the third submittal of this permit review process. Considering the sensitive issues surrounding this development, please submit another copy of the hydrology report for review. D:~ProjectsXPermits~P97-62c.doc Office of the Chief Operations Branch DEPARTMENT OF 'rELE ARMY January 21, 2000 Mr. Ken Eke San Bernardino County Flood Control District 825 East Third Street San Bernardino, California 92415-0835 Dear Mr. Eke: This is in response to your letter of December 22, 1999 concerning the revised plans to construct a 57-inch RCP into Deer Creek Channel at Station 494+16 (Corps File No. EE97-155b). Operations Branch has reviewed the revised plans and has the following comments: a. The proposed design of the slotted chamber inlet needs to be modified. Reduce the opening height from six feet to four feet to achieve the required submergence of three feet. b. Considering the height of the opening will be reduced to a maximum of four feet, revise your hydraulic analysis to ensure that the revised design of the slotted chamber functions properly. c. A resubmittal is required. If you have any questions, please call Mr. Ted Masigat, Operations Branch, at (213) 452-3393. Sincerely, Brian M. Moo~e, ~E. a%chief, construction- operations Division A NEW METHOD OF ESTIMATING DEBRIS-STORAGE REQUIREMENTS FOR DEBRIS BASINS By Fred E. Taturn U. S. Army Enginser District Los Angeles, California Prepared for Second Na-Liona~ Coffee-once on Sedlm~atatlon of the Subco~1ttee on Se81~e~ntation, ICWR Jackson, Mississippi 28 January-1 February 19~3 A NEW ~u~','.OD OF ESTIMATING DEbRIS-STORAGE REQUIREMENTS FOR DE~IS ~ASIN~ COi~'.a~qTS Synopsis .................................................... Introduction ................................................ Debris production factors ..... . ..... ........, ....... . ...... Drainage density ...................................... Hypsomstric-~lysis index ............................ Thr~e-hour rainfall ................................... Bu/m effect ............. ... .... j. ........ ... . .......... Observed dsbris production .......... .-' ........................ Adjusted observed data ...... . ................................. Developmsnt of ad~ustmaut curves ............................. Verification of msthod ........ . ...... ........ ........... ~.... ~Reco~ended for design ....................................... Conclusions .................................................. : 1 1 1 2 2 2 6 6 6 Title 1. Relationship of the hypsometric-analysis index to the ~lysis of the areas by a geologist .................. 7 2. Observed data smd computed ~ebris production for selected debris basins in the Los Angeles area ........ ll 3. Observed data and computed debris production from storm of 7-32 February 1962, Los Angeles area ......... COR'Az~TS- - Continued PLATES No. Title 1. Debris ~n~lows~ debris and flood control basins in Los Angeles Count~,: California. Hypsomstric c~rves for drainage areas above selected debris basins in Los Angeles County, California. 3- Location of debris 4. Debris production rates following burn. 5- EnvelopLug curves of observed debris production adjusted to lO0 percent burn 1st year, for one major storm. 6. Curves indicat~ correction of debris production. 7- Curves indicating correction of debris production. 8. Ultimate debris production from maximum debris producing area for one major storm. 9. Debris production relationship. lO. Rsconm~nded debris production from~a~ debris producing area for one major storm. ii A. ~EW METHOD OF ESTIMATING E-STORAGE ~R~QUTR~4E~S FOR DEBRIS BASINS '~ By Fred E. Taturn 1. STaopsis.--A method ~as needed for computing the debris production for all areas for which .debris basins are to be built. It is recognized +~h~t there are m~y factors affecting debris production. The method presented in ~.h~s paper ~as based on observed data, most of ~hich resulted from floods that occurred when the ground ~as conditioned for runoff by prior rain and from areas ~h~t had been partially or completel~ burned i to more than lO years prior to the flood. The observed debris amounts were adjusted to a common base and curves -were developed by trial ana error to represent separate adjustments for the major factors affecting debris production. This procedure is then adapted to est~tating debris production for areas where debris basins are to be built. 2. Introduction.--The design ~ebris capacity for debris bas~n~ in the Los Angeles area of the Los Angeles District originally ~as based on a flat rate of 50,000 to 100,O00 cubic yards per square mile of drainage area~ depending upon the results of an inspection of the area. Later, when more Information had been compiled, the debris basin capacity vas based on an enveloping curve of de~ri~ ~nflo~s plus lOO percent (see pl. 1)~ and a field inspection of the drainage area. It ~s realized that ~ more detailed method of determining the debris capacity for U/~e in the design of debris basins yes required to afford equal protection to areas belo';: debris basins. To meet ~h~s requirement a ns~ method of computing debris production from a drainage area was developed. The method is based on e~aluatinE the main factors that affect debris production. The development and use of the method is presented in this paper. 3. General.--Available information on debris deposition at alluvial cones and debris jn~low at reservoirs and existing debris- basins in the Los' Angeles area~ and in generally comparable areas. in the southwest was evaluated. It was recognized that in the production of debris, several factors are involved including th~ size ~a shape of the drainage area; the steepness of canyons and side slopes; geological characteristics (such as type of rock and soil,. and weathering effects)] the type and density of plant cover; recency of burus; and the freqnency~ duration, and, in particular, intensity of storms and floods. lj Chlef~ Hydrology and Reservoir Regulat{on Section, U. S. Army Engineer District~ Los Angeles, C~7 ~ forhie. (f) Three-hour rainfall.--~hree-hour rainfall in inches is the maximum 3-hour raimfall occurring during the storm after prior rain has conditioned the ground for debris movement. This B-hour period of rain was determined to be the critical period of rainfall for use in determining the effect of rain on debris production. ~he area ~idch produced most of the debris quantities ussd in tb~s study during the 1938 flood were conS!tioned for debris production by rain prior to the maximum 3-hour rainfall. (g) Bura effect.--The bura effect dep~nas on the percent of drainage area burned a.a the recency of the burn. 5- Observed debris production.--Data on debris flow hav~ been obtainsd from (_a) paper by B. H. Dodge titled "Design and Operation of Debris Basin~" published in proceea~ngs of the Federal Interagency Se~n~ntation Conference~ Denver, Colo., dated January 1948, and (b) [eports and unpublished data of Los Angeles County Flood Control District. Pertinent data and observed debris production are given. in table ~ and the locations of the debris basins are shown oa plate 3.. 6. Adjusted observed data.--To determine ths effects of the various factors on production of debris~ it vas nscessary to adjust the observed data to a conn~n base. ~s was done by adjusting the ~bserved debris production to the amount that would hav~ been ~uced if the storm occurred the first year after 10G percent burn= in the drainage area. Tae adjustment was based on data from the report by California Forest and Range Experimental Station, Forest Service, U. S. Depa~ ~nent of Agricultur~ titled "Hydrologic ~ysis Used to Determine Effects of Fire on Peak Discharge and Erosion Rates in Southern California Watersheds~" by P. B. Ro~'e~ C. N. Count .ryman, and H, C. Storey, and dated February 1954. Here- after in this repert~ that report will be referred to as the U. S. Forest Service repert. 7- The observed debris production from a drainage area (A) cau be represente~ by the equation: XIO = XlO An + Xv Ab (Equation (1))' Observed debris produ~tion in cubic yards. Rate of debris production 10 or more years after bu~n~ in cubic yards per square mile. Rate of debris production for "v" year (1 to 10) after loG percent burn~ in cubic yards per square ndle o Portion of drainage area not burned, in square miles. Portion of drainage area burnsd, in square miles. 3 ~]~e ~dJusted values vere then plotted versus d~a~n~ge area in sq,,~re miles (see pl. 5)- A curve v~s then drawn thro~,~h the two highest points (parallel to the envelopLug curves shown on plate 1, which reflects the effect of the size of.drainage area on debris production) to represent the ult~te debris potential index of production the first year after 100 percent burn (tb~s. ]~ne represents m debris from the areas ~ith the more severe debris producing characteristics) for a 3-hour rain of approximately 2.9 inches. 8. Development of adJustmsnt cur~es.--mhe develo_mment of method ~ based on the assumption that the debris potential for an area vas eq~l to the product of ths uitimate.debris_.pg~ential index and percentage values for each .of ths four factors (sl0p~,'.'d~"' d~nsity~7.~l~ypsnmetric~ans.lysis ind~_x~ ~ B-hour rainfall) represent- ative of the area. It ~as considere~ +~bat each factor, if not the ultimate for the area~ ~ould reduce the debris potential index by a percentage representing the difference between the ultimate and actual. Curves were drawn to represent the relationship for each of the four'factors. These curves ~ere then adjusted by trial and error to give the best results ~aen computed data vere compared to observed data. q~e adjusted curves are shown on plates 6 and 7. ~. ~ steps used in computing'-: debris production~ for comparison vlth the observed v~lues~ are as foLlOws: (_a) the slope, drainage density, hypsomstric-analysis index~ and S-hour rn~a]] for the debris producing storm are determined for each area; (b) the percentage ~correction for the above factors are determined from the .respective curves (see pls. 6 and 7); (c) the percentage corrections are: multiplied together to give a total correction; (d) the total percent correction is multiplied by 1,900,0OO .cubic yards'(ult~m~te debris potential ~ndcx for i square mile in ~clmum debris producLng areas~ see pl. 8) ~nich gives the maximum debris production in cubic yards from I square mile areas; (e) this valus is then adjusted for size of area under consideration by use of plate ~ (this adjustment is made by plotting the computed value for I square mils, drawing a curve through this point parallel with the enveloping cul v~,. =~(~_f the value for the area under consideration from this the adjusted ~alue is then corrected to the actual ~rea burned and number of years after the burn by use of equation (~), Tae results thus obtained are given in table 2~ holm 21. Tae comparison of the observed and computed debris production is shown on plate 9- The curve shown on plate 9 represents computed values equal to observed and indicates that the relationship of com~uted to observed values are reasonable. ~be scatter of the points is ps_rtly due to difference in ground conditions prior to the flood, variation in ground cover~ the probable error in determining observed debris quantities and 3-hoar rainfall amounts, and the possible in- consistency in using the stre~mflo~ 3ffn~s in determining total stream length to be used in the dsterm~natlon of drainage density. Relationship of · ' . Table 1 the hypS~tric-~"~mls ~ex to th~ a~ia of th~ areas by a g~ologist Drainage :EypSoaztric-: area : .nal~ysis : Geological aualysis 1,13: 0,50: Br~ banyon drainage bast- : : composed or closely fractured : : : gr~nttlc ,n~ met~mnr~hlc : : : rocks with thin soil : : : sparse to moderate grovth : : : of ~parral, Stee~ ~ids : : : slopes composea of Buch rock : .. : form a definite potential : : ': : fo~ bigb debris ~ro~uction, : .36: ~6: Childs Canyoa drainage basin : : : is c~l~sed of closely : : : ~nrpbic rocks vith a : : : thin Boll -~ a sparse to : : Stee) si~e slot~)s com3pose~ : : of such rock form a delLmite : ._c : )oteatial ~or high : : production, 1,11: .46: Sunset Can~oa drainage basin : : is composea of closely : : fracturea granittc roe_ks : : vith thia soil ~ s~srse : : to moderate grovth o£ cha~- : : arral, Stee~ side slope~ : : composed of s~cb rock £orm : : a definite poteatial £or high : : 6eb~is ~roductlOa, : : is cc~tDosea o~ closely : : fractured gramittc ~n~ ~ta- : : ~rphic rocks vith thin soil : : and ,a B~arse to modefete : : growth o~ ehaparral. Stee~ : : Bide slope8 compo_sed O~ : : roCk ~orm ~ ae~inite : : ~oteatisl ~o~ bigb debris : : production. 7 Relationship of Table 1--Continued the hypsometric-analysis ft~ex to the ,~--~ysis of the areas by a geologist--Continued ])raiRage 8tea ; ~n-lysis tnrlez : S~uare : miles : Geological m~',ysis : : : : MV~ Oak Canyon dra~-_~- area below Live 0ek Dam is about ~O percent terrace area of gently rolling hills o~,~ about 60 percent more or less steep can~on slopes. Yhs terrace area has a low debris potential while the canyon portion h~ a moderate to high debris potential. ~rald Wash drainag~ area is about 75 percent .terrace ar~a with a low ~e~ris potential ~n8 about 25 percent steep canyon slopes with a moderate to high .debris potential. Emerald Wash (~-t) drainage area is ~bout 7° percent terrace area with a low debris potential and about B0 percent steep canyon slopes with a moderate to high debris potential. Lopez Canyon drainage area has a shallow soil cover and con~litions are such that debris contribution should be substantially less +~m~ at areas along the mountain front to the east where debris production h~m been measured. : I/ No. (1) (2) ~a C~soenta Area Drain- age (5) 4 .... s Hall-Beokloy ..... 1 .83 Burfi in drainage ar~a Year Area (W~ ~ ) Table 2 0bsex~d data and computed debris production for eelssteal debris bashes in the Los Angeles area Debris producing flood I Tears bum 17,900 19,040 Observed debris r~te (is) 'Cubio 695,d00 257,000 310,000 495,000 72,000 555,00O 140,000 99,000 495,000 670,000 626,000 Debris production fadon for (n) Feet 1.390 1,480 1,180 1,180 1,510 780 1,290 1,520 910 1.610 1,020 density (18) eq~.re 1,1 ~o8 ,8 8,4 8,5 0 4.8 4.6 0 2.6 3,O 2,0 4,4 Hypso- metrio index 0,54 ,25 .46 .50 .65 .54 .58 ,40 ,50 .50 .48 .62 .56 3-hour fall lnohee 2.94 2,89 2,85 2,82 2,72 2,93 2,90 2.82 2.84 2.42 2.62 2.40 1,70 1.95 2.64 slope 99 100 92 88 97 68 100 97 95 95 100 97 100 91 57 Correction festers Drain- age density (x6) 97 84 95 96 99 82 94 81 100 85 57 100 88 97 63 99 (xv) (x8), 98 . 67 33 64 . (Xg) (20) (Zl) Poroent 99 67 48 98 61 46 25 86 9 9Z 39 17 60 88 11 90 S8 / 33 100 12 9 99 18 17 85 52/s 25 / s 1,010,000 117,000 990,000 75,000 760,000 9,700 910,000 1~0,000 1,160,000 ; 34,400 874,000 ' 15,500 171,000 9,600 (see text) and adjusted for $iz? of drainage area. Table De0ris basin'l_/ Sierra Madre Villa ........ : Bailey Canyon ............. : Auburn Canyon ............. : Carter Canyon ............. Observed data and computed debris production from storm of 7-12 February 1962~ Los Angeles area : : : : Debris production factors : : Observed : : Drainage Area : area : burned : debris : : Drain- : Hypso-: S-hour : : : production: Slope: age : metric: rain- : : : : : density : index: fall : Square : : Cubic : per : square : : : miles : Percent: yards : mile : mile : : Inches ~: 3'6: (~/) : 4'TrgO: 2.2 : O.55: 1.10 · 58: 26: 10,000: 1,525: 3.5 : .62: 1.10 .21: 80: 20,100: 2,240: 0 : .52: 1.20 .11: 100: 117700: 22540: 3.5 : .62: 1.40 Correction factors Slope : Drain-: Hypso- ~ 3-hour : : age : metric : rain- : Total : density: index : fall : : Percent: Percent: Percent: Percen~: Percent : 95: ]~: 97: 5: U : 100: 80: 85: 4: 2.7 : IO0: 100: 99: 6: 6.0 : 100: 80: 85: 8: 5.5 : Computed : debris : production2_/ : : Cubic : ~ards :. 9,300 22,200 12,400 See f~g~ 3 for location. ~ ' Computed as explained in text under paragraph titled "Development of Adjustment Curves."/ j~rAmouat of debris produced from storm T_12 February 1962 not available. Total of 1222450 cubic yards of debris has accLunulated since completion of the is basin in February 1958. ' U.S.ARMY ENGINEER DISTRICT 4oo.cx~ 3o0,000 -- rr 2o~,OOO 0 U) W ee n / 2 W <~ ~) w Z nn W tO0~O00 3 0 2/300.1 .2 .3 .4 .5 LO CORPS OF ENGINEERS LEGEND · RECORDED OR ESTIMATED DEBRIS INFLOW / WEST RAVINE DEBRIS BASIN 2 SHIELD DEBRIS BASIN 3 HALL-BECKLEY DEBRIS BASIN 4 PICKENS DEBRIS BASIN 5 SANTA ANITA FLOOD-CONTROL ~ BASIN 6 DEVIL'S GATE FLOOD-CONTROL BASIN 7 COGSWELL FLOOD-CONTROL BASIN 8 SAN GABRIEL FLOOD-CONTROL BASIN 9 BAILEY DEBRIS BASIN I IIIII E/VVELOP/NG CURVE OF DEBRIS INFLOWS + I00 PERCENT ENVELOPING CURVE OF DEBRIS INFLOWS + R5 PERCENT ENVELOPING CURVE OFi DEBRIS INFLOWS MARCH 1938 MARCH 1938 MARCH 1938 MARCH 1938 MARCH 1938 MARCH 1938 MARCH 1938 MARCH 1938 ,JANUARY 1954 2 3 4 5 I0 20 .30 40 50 lOCI 200 DRAINAGE AREA IN SQUARE MILES DEBRIS INFLOWS BRIS AND FLOOD CONTROL IN~ LOS ANC~LES COUNTY, CALIFORNIA i U. S ARMY ENGINEER DISTRICT ~LOS ANGELES,. CORPS OF ENGINEERS PAPER DATED 28 JAN-I FEB.1963 .... ,_FILE.NO. "' PLATE U. SARMY ENGINEER DISTRICT ' CORPS OF ENGINEERS 1.0 0.5 HYPSOI~'ETRIC ANALYSIS \ \ \ X INDEX LINE T ~a PIGKENS INDEX O. 4 . ~ HALL-BEGKLEY ~ ~~ SHIELDS . ~ MOUT~ H~YPSOMETRIC CURVES '~ ' FOR DRAINAGE AREAS ABOVE · AREA o SELECTED DEBRIS BASINS t ~ ' (ENT RE BASIN) IN LOS ANGELES COUNTY, CALIFORN A ~!" U S. ARMY ENGINEER DISTRICT ' ...... ': ' SANGELES, CORPS OF ENGINEERS : """~::":;'!.'~. .: ...... Lo... . . . Fer rt&rtdo / ~ ',,.,I , · ~:~/...' "%. ..._,,~ '.\ 8LVP. / HOLLYWOOD ,2 LEGEND ' LOGATION OF DEBRIS BASINS U.S. ARMY ENGINEER DISTRICT LOS ANGELES, CORPS OF ENGINEERS PAPER DATEO 28,JAN- I FEB 1963 PLATE3 U. S. AP~MY ENGINEER DISTRICT CORPS, OF [NGINEEMS // ~7o B~ERD ON 'U. S. FOREST SFLRVICE RF~0RT (SEE TET). DEBRIS PRODUCTION FOLLOWI3~G BLR~N U. S. Army Engineer District los ~mgeles~ Corps ef Engineers Paper dated 28 Jan-1 Feb 1963 pLaTE 4 U. S. A~NY I~Gj~m~t DISTRICT Xt~B~RS I~DIC.LTE DI~tZ8 BASINS AS LISti'~:l~ iN TABLE 2 ,h"D DAZ~ ~ ~ PROM C0IL~-r~S 3 ~YD 10. o.3o ~F~'ELOPINO CURVE" .I .2 -3 -~ -5 ~ 2 3 4 5 ENdLOPING C~S . OF 0~ DSRiS PRODUCTION ~ TO 1~ ~CDIT B~ 1ST ~R, FOR ONE ~jO3 S~ U. 8. A~,' Emgdn~er District Los Angeles~ Corps of Eng~er~ Paper dated 28 Jan-1 Feb 1963 U. S. APMY ~NGLNKMR DISTRICT 6 30 40 ~0 60 70 PER~IENT OF CORRECTION DRAh'XAGE DENSITY CORPS OF ~Gih]~RS 8o 90 :moo 3.6oo 0 10 20 30 40 50 60 70 80 90 100 PEROI~NT OF CORRECTION SLOPE CURVES INDICATING CORRECTION - OF DEBRIS PRODUCTION U. S. Army Engineer District Los Angeles, Corps of Engineers Paper dated 28 Jan-1 Feb 196B PLATE U. S. ARMY ENGIN~:~:~ DISTRICT CORPS OF E~GINRR~RS o o 1 ~ 0 0 10 ~0 30 ~O 50 60 70 ~"~MCEIqT OF CORRECTION 8o 9o ~oo MAXIMUM 3-HOUR PRECIPITATION -90 .8o .70 .6o .~o .20 o O /- 30 40 50 60 70 80 90 100 PERCENT OF CORRECTION HYPSOMETRIC-ANALYSIS INDEX CURVES .INDICATING CORRECTION OF DEBP~IS PRODUCTION U. S. Army Engineer District Los Angeles~ Corps of Engineers Paper dated 28 Jan-1 Feb 1963_ PLATE U. S. ARMY. ENG ~ r~;~;R DIo~ERICT NOTE: CURVES (BASED ON DATA FRC~M FLATSS 4 a 5 ) REP~E~T tr~Tn~ATE DEBRIS PRODUCTION FOR INDICA~ IrGMB.=R OF Yt~P~ AFi'.~{ 1CO F~RCR~T BL~hN Wi'.u~ AlL CORRECTION FACTORS ASSLLMED AS 100 ~C~n~NT. ULTIFITE DEBRIS ]PRODUCTION }~ CM MjLYI2~L.~4 DEPtB PRODUC~'NG AREA FOR 0~ ~t~JOR STO.~M U. S. Army ~gimeer District Los Angeles~ Corps of Enginsers Paper dated 28 Jan-1 Feb 1963 PLATE ~ NLLMBK°~ DIDICA_TE D~I_8 BASINS AS T,T,qUI~u E/.Z~BLE 2 A~D DATA WEqE ~_AKEN FRC~{ COLL%ETS 8 AND 21. D~!S PRODLETION REIAT!ON~qNTP U. S. Army Engineer District Los Angeles, Corps of RngLu~ers Paper dated 28 Jan-1 Feb 1963 I~A~ 9 ~ ]EI'IG)NI.:.~ DISIP~ICT -- C~RPS OF ENGIm~A~ U. S. Army En~nFer District Los Au~eles, Carps of En.g'ln~ers Pa~per dated 28 Jan-1 Feb 1963 PLATE l0 '?RANSPORTATION/FLOOD CONTROL DEPARTMENT- SURVEYOR East Third Street · San Bernardino, CA 92415-0835 · (909) 387-2800 Fax (909) 387-2667 December 1,5, 1999 COUNTY OF SAN BERNARDINO PUBLIC SERVICES GROUP KEN A. MILLER Director File No.: 1/503/1.01 Department of the Army Corps of Engineers Los Angles District PO Box 532711 Los Angles, CA 90053-2325 Attn; Mr. Joseph Evelyn, Chief, Hydrology and Hydraulics Branch Re; ZONE 1, DEER CREEK RECEPTION LEVEE Dear Mr. ~ye|gn: In our rec~ent conversation regarding the levee, you asked for information tying the USACE te 1970 Watershed Burns. I found a letter that referenced several cont~adts. I hope this helps. I included the text portion of the final report that we prepared oh the projects. That reports lists the levee as Project No. 7, but a report prepared earlier listed it a No. 17 (that must have created some confusion). I included copies of plans for the levee dating back to the 1930s. Also, I'm sending hard copies of the letters 1 faxed to you. I want to thank you for all the help you've given me over the past weeks on this. If you need anything that I can help you with, please call me at (909) 387-2526. Sincerely, KENNETH D. GUIDRY, P.E., Chief Flood Control Planning Division Attachments as noted cc: KAM/PJM - Reading File SAN BEKNARDINO COUNTY FLOOD CONTROL DISTRICT WATERSHED BURNS OF 1970 FINAL REPORT ON EbIERGEMCY ~LOOD CONTROL MEASURES COMPLETED MARCH 25~ 1971 W. A. SIDLER FLOOD CONTROL ENGiNEER - INDEX - Pa~e No. Title Page Index V icinity Map Preface Surmnary of Emergency Flood Control Measures Table A: SU~RY OF D~RGENCY WORK Table B: TOTAL EST~TED COST OF EMERGENCY WORK Table C: ENGINEERING - CONSTRUCTION COST COMPARISON 1 2 3 4 Emergency Flood Control Projects - Meyer Fire (Includes Cucamonga Fire) 1. San Antonio Heights Intercept 2. West Franklab Basin 3. Cucamonga Crosswalls 4. Cucamonga Spreading Grounds 5. Denlens BssLn 6. Alta Loma Basin No. 2 Deer Creek Reception Levee 8. Deer Creek Channel 9. Day Creek Spreading Grounds 10. Wineville Basin il. Riverside Basin i2. Etiwanda Spreading Grounds 13. San Sevaine Reception Levee 14. San Sevaine Basin 15, Banana Basin 16. Hawker-Crawford Channel 17. Rich Basin 18. C~jo~ Creek Levees 5 6 6 6 7 7 7 8 8 8 8 9 9 !0 10 iO 11 - INDEX Emergency Flood Control Projects (Cont'd.) 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 3~. 32. Reche & San Timoteo Canyon Fires Daley Canyon Basin Little Sand Canyon Basin - Lemon Basin Sand Creek Basin - Patton Basin Small Canyon - Dynamite Basin City Creek Cook Canyon Basin EIder Creek B~s{n Pluqge Creek Oak Cre~k ~ Santa~ Ana River at Greenspot ~anta Ana River, AT&SF to Mill Cr~k blill qreek ~ San T,imoteo Channel Rech~ Canyon Channel Map: EHERGENCY FLOOD CONTROL CONSTRUCTION Surr~nary of Appendixes i through 5 Appendix No. 1: PROJECTS TOTAL CONSTRUCTION COST & QUANTITIES Appendix No. 2: PROJECTS DAILY EARTHWORK QUANTITIES, COSTS AND ACCL~RILATED TOTALS .Appendix No. 3: BASIC EQUIF~IENT SPREADS Appendix No. 4: Appendix No. 5: CONSTRUCTION QUANTITIES, APPROX P~TE UNIT COSTS UTILITIES AND AGENCIES - CORPS OF ENGINEERS, CONTRACTORS & DISTRICT PERSONNEL Page No. 11 11 11 12 12 12 13 13 13 14 14 15 15 17 -2~ Tab Label App.' 1., FINAL COSTS, QUANT. & CONST. DATES App. 2., DAILY EAR~U..7OP% QUANT. & COSTS App. 3., EQUIP. PKEADS ApeD. 4., UNIT COSTS App. 5., UTiLITIES coNTRAcToRS PREFACE The,Emergency Work of Improvement. hereIn described, is a partial .remedy of the increased flo6d hazards, imposed by the disastrous 1970 Watershed Burns. The work, totaling over $4,000,000. represent~ collectively, one of the largest Flood Control and Public Works Improvements within the County of San Bernardino, to be a~complished in less than six months. jj · The physical performance of the workyes accomplished through the extensive and combined efforts of the United States Army Corps of Engineers, the Flood Control District, and th~ Contractors: Ducon Inc., E. L, Yeaget Const. Co., Matich Bros. Const. Co., ~ Peul J. Hubbs Const. Co. "'~!j':':' The Corps of Enginee~Pr6ject Engineer responsible for the Contract ]~i~'.~,~ '... ~ , Administration of the work was Mr. Kenneth Hultburg. Mr. Hultburg was assisted-by two Resident .Engineers: Lt. M. Rode and Mr. L. Sksnter. District activities providing supplemental engineering, supervision, ~ inspection, surveys, rights of way and utility relocations were under the i direction of Mr. B. C. Escobar, Chief, Operations Division% 'Field · :: -: and Office activities were supervised and coordinated by Mr. L. S. Neeb~ j"'~':~"' Assistant DesiRn Engineer. All Divisions and Sectigns, within the · The Contractor's Project Engineers were Mr. Ralph Slone, of Ducon Inc., Messrs. Walker Kuhn and Edward Ritche of E. L. Yeaget Const. Co., Mr. John Christiansen of Matich Bros. Contracors Co., and Mr. Tony Martin of Paul J. Hubbs Construction Co. (2~)CITY CR. LI ISMALL CAN. DAM' :' , ' LEVEES CR:BASIN ~ ~ U B~SI~ IMPROVEMENT OR CONSTRUCTION i , "'x /- ~ ~ ""'. Ci,i ~ LEVEEIMPROVEMENTORCONSTRUCTION b, R4 W ~ ' ~" ': '~ ~' - CHANNEL IMPROVE ~ENT OR CONSTRUCT ON ' S'k' S,"r'[~RDUj r~,,p'rv m.~,.p .-).,i-R(. '* .... ~ :" ~N~ DEBRIS REMOVAL Son Bernordino Volley ~7""'~ ;" 1970 WATERSHED BURNS I', ' " EMERGENCY FLOOD CONTROL PROJECTS ~ COMPLETION DATE: ~/~4/7~ ~ -1- SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT WATERSHED BURNS OF 1970 SI[~[MARY OF EMERGENCY FLOOD CONTROL MEASURES As a result of the Meyer, Bear, Reche and. San Timoteo Watershed Burns ' in 1970, w}dch virtually encompassed the San Bernardino Valley, the P,,,nrd nf Supervisors requested disaster assistance towards controlling the incrc;,~cd runoff and debris potential, created by the burned areas. The Office of Emergency Preparedness, in res.~onse, silocared 4.7 million dollars for thirty two emergency projects in potentially hazardous areas. The work w~s performed by the United States Corps of Engineers~ with the Flo~d Control District providing appropriate rights-of-way, utili~ty' relocations. surveys, coordination and assistance in engineering, supervizier. and inspection. The Watershed Burns and the thirty zwo projects are depicted on the attached map: ELULRCENCY FLOOD CONTROL CONSTRUCTION. Completed "As Built" drawings of the projects are filed in Engineering Division plan files. Each of the projects total construction costs and quantities are tabulated in Appendix. No. i. Daily earthwork quantities, costs and accumulated totals are listed in Appendix No. 2. Appendix No. 3, lists the Basic Equipment used for each spread. The unit costs and Squipment for each operation of the projects are scheduled in Appendix No. 4. The Utilities and Agencies Coordinated: United States Army Corps of Engineers, Contractor and Flood Control District personnel are noted in Appendix No. 5. The respective Unit Totals are accumulated at the end of the appendixes for each District Zone effected. Also, totals for the hieyet, Bear, Reche and San Timoteo Fires are listed. The following Tables summariz'e the cost ~ emergency work accomplished: TABLE A - SLFM~D~Ry OF EbtERCENCY WORK Debris removal (incorporated into levees, channels and debris basins) Channels Excavated ~ Levees Reinforced or Heightened ExistiDg Debris Facilities Expanded New Emergency Excavated Debris Basins Rock rip-rap~ stabilizing controls Concrete Grout Road Colverta Corrugated Methyl Pipe Asphalt Pavement Aggrogate Base Coarse Utility Relocations (including water, power, telephone, gas and oil) Units of Heavy Equipment ( Total - All Projects) 4,494,444 Cubic Yards 6.66 Miles 22.83 Miles 22 Basins 8 Basins i48,057 Tons.P dR !0,597 Cubic Yards 22 Crossxngs 3~727 Lineal Feet 1,315 Tons AC 1,124 Tons ABC 79 Relocations 506 Pieces -3- TABLE B - TOTAL ESTIMATED COST OF EMERGENCY WORK Corps of Engineers Contract Construction dosts Engineering Supervision and Overhead TOTAL FEDERAL San Bernardino Count), Flood Control DistriCt : Rights of Way expendicnre - 55 parcels - (20 acres and 3 parcels est~.mated at $300,000 have been acquired gratis) Utility Relocations (Contract & Purchase Order) Miscellaneous excavations, Utility ~%- locations and construction Engineering, Surveying, Inspection & Misc. TOTAL SBCFCD GRAND TOTAL ESTD~TED COST S4,009~479 690,521 $4,700,000 $ 251,700 53,208 123,196 109,804 $ 537~908 $~,237,908 -4- District Engineering Costs are tabulated below end compared to Total Construction Costs. TABLE C - ENGINEERING - CONSTRUCTION COST COMPARISON Costs by District Zone ZONE I Engineering $18,717 Surveying 23,700 Inspection i6,412 Lab. & Mist. i~252 TOTALS $60,081 ZONE ZONE II III $ 9,825 $ 7,792 3,749 11,470 6,845 7,593 1~709 730'i1 $22,128 $27,585 % CONSTRUCTION TOTALS COSTS ($4,009,479) $ j6,334 0.91% 38,929 0.97% 30,850 0.77% - 3~691 0.09% $109,804 2.74% Costs~by Fire SAN T~IOTEO BEAR/KEC}~ Engineering $18,717 ' $17,617 Surveying 23,700 15,229 inspection 16,4i2 14,438 Lab. &Misc. i~252 2,43~ TOTALS $50,081 $49,723 % CONSTRUCTION TOTALS COSTS ($4,009,479) $ 36,334 0.91% 38,929 0.97% 30,850 0.77% 3,691 0.09% $109,804 2.747. The thirty two projects were constructed amidst the Flood Season, however, no projecn was hampered by rain or advarse weather. Soma of the new basins (Little Sand, Sand Creek, Cook, Eider and Oak), encountered ground water. The work, in general, progressed rapidly from November 9, 1970, thru March 25, !971. ~e projects were completed within 75 working days. An average of 80,000 cubic yards of debris was excavated and incorporated into levees, channel and basin construction. The average cost of debris removal and earth- work was less than $0.70 per cubic yard for excavation, including embankment. -5- S~N BERNARDINO COUNTY FLOOD CONTROL DISTRICT Watershed Burns of 1970 EMERGENCY FLOOD CONTROL PRO3ECTS Meyer, Bear, Reche and San Timetee Canyon Watershed Burns Facility, Location~ Emergency Improvement MEYER FIRE PROjECTS San Antonio Heights Intercept Channel, San Antonio $ 40,000 Heights. Approximately 45,000 cubic yards of sand, silt and clay w~re excavated from Marble Basin. An additional 23,300 cubic yards of sand and rock debris were remove'd from Frankish Basin, 3'$900 cubic yards of send and silt were cleaned from ~he Intercept and a small adjacent basin. Total debris capacity of the three basins is an excess of 100,000 cubic yards. The excavated materials were stockpiled southerly of 26tb Street, for use in the future C/E Cucamonga Debris Dam. West Frankisb Canyon Debris Basin1 San Antonio Heights. A small debris basin having a water capacity of 5 acre feet and a debris capacity of 15~000± cubic yards was constructed at the mouth of West F~ankisb Canyon. The 20 foot high basin spillway was constructed with an impervious clay core and a grouted rock spillway. Quality Control was provided by the Corps of Engineers and the District· Approximately 10~400 cubic yards was excavated from the basin site. A 36" CMP drain was provided through the spillway. Incorporated in the work were 942 tons of rip rap and 200 cubi~ yards of concrete. C/E Construction Cost $ 35,000 Project No. -6- Facility, Location, Emergency Improvement Cucamonga Crosswalls~ C~nyon Mouth. 88~076 cubic yards of debrls~ consisting mostly of large rock and boulders were excavated and removed from the spreading area between',crosswalls 2 through 13. In addition~ approximately lO0~O00 cubic yards of debris was e~cavated and used to reinforce the crosswalls. Cucamonga Spreading Grounds~ Upland. The breach in th~ ~'ast third of Basin Na~ 3 w~ re- constructed. Grouted rock splllways'~ approximately 100 feet in length were constructed at the easterly end of Basins ~ and 6. Gabions ware incorporated at the downstream side of the spillways. The bresci~ and th'e spillways were cDnstructed with an impervio~ls clay core. Quality Control was provided hy the Corps of Enginaers and the District at the direction of the Dept.of Water Resourcest Division of Dam Safety. Repairs were made on Spreading facilitics~ adjacent to the spillways and a small lcvae was constructed downstream of Basin No. 3 to help protect a well owned by the San Antonio Water Co, Demens Basin, Alta Loma. A debris basin having a debris capacity of i0O~00~cubic yards was constructed at the confluence of Thorpe and Demens Creeks. 61,250 cubic yards of debris was excavated and incorporated C/E Construction Cost $ 100,000 $ 250~O00 $ 110,000 -7- ] ] ] J Project NO.. Facility, Location, Emergency Improvement 5(Cont) into basin levees. The existing levee was raised minimum of 5 feet and was extended from the basin easterly to Amethyst St. The grouted rock spillway was constructed with'a 75 foot crest width~ a 36" CMP drein and e gebion splash pad. Improvements were effected on Almond St. in conjunction with a 48" CMP culvert provided by the District. The spillway was constructed of 4~232 tons of rock and 807 cubic yards of grout. 6o Alto Loma Basin No. 2~ Alto Loma. District's existing facility was expanded by the removal of I14~904 cubic yards of earth to provide approximately 320,000 cubic yards of debris storgge. E/E .Construction Cost $ 55,000 Deer Creek Reception Levee, Canyon blouth. Deer Creek $ 188,855 Reception Levee was raised 10 to 15 feet along its total length of 6~400 feet. Three deflector levees, totaling 5~200 L.F. were constructed~ by removing 274~000 cubic yards of debris consisting of large rock and boulders. A large pilot channel was constructed adjacentto the levees. 115~000 cubic yards of debris was placed in the reception ]~vee anH ~qe,nO0 cubic yard~ were placed in the deflector levees. Deer Creek Channel, (/~ & SF RR to Turne~ Basins) Ontario $ An earth trapezoidal channel (b~30'~ h=6')~ approximately 7~100 L.F. was constructed from 8th St. (AT & SF) downstream to Turner Basins. Three street crossings were improved. 190~000 J ] ] ] ] ] Project No. 8 ( ,ont) ~8- Factllty~ Locstlon, Emeraency Improvement A bard bottom dip with splash psd st 6th St. and a battery of 5 - 72" CMP were installed at San Bcrnardlno and Turner Avenues. Total lengtb of CMP installed was 1,035 L.F. Total excavation was 60,000 cubic yards. Day Creek Spreading Grounds, Canyon Mouth. Four deflector levees were constructed by excavating 247,680 cubic yards of debris~ consisting of large rock and boulders. The total leng'~h of levees 'was 10~500 feet. A pilot channel~ 50' wide was constructed adjscent to the wet toe of the levees. C/E Construction Cost $ !17,373 I0. 11. Winevilla Basin (Day Creek), blira Loma Area. i40~000 cubic yards of debris~ cons{~ting of fine sand and silt ware excavated and stockpiled along the South and Wes~ levees of Winevilla Basin~ A fifty foot travel way was provided between the existing levees and the stockpiles to pruvide easy access for future borrow operations. Debris capacity is 250,000± cubic yards. Riverside Basin (Day Creek), Mira Loma. Approximately 200~000 cubic yards of debris was excavated and stock- piled along the West boundary of Riverside Basin. 52,000 52,000 12. J Etiwanda Spreading Grounds, Canyon Mouth. ~87~360 $ cubic yards of debris~ consisting of large rock and snd sand were excavated to construct six spreading basins. 93,807 ] ] ] ] Project No. ~9- Factlity~ Location, Emergency I~provement \ 12(Cont) Five inter-basin levees were constructed 5 to 9 feet high. The west perimeter levee was raised seven feet. Eighty feet of 72" CMP was installed to intercept 24th St. Storm Drain. One hundred L.F. of 36'~ CMP was installed to intercept local drainage from the west. The total length of the perimeter and basin levees raised was 9,300 feet. 13. San Sevaine Reception Levee, Can%~n Mouth. The San Saysine Reception Levee was ~eised 10 to 12 feet from Summit Ave. to the Foothills~ for e total length of 5,500 L.F. A pilot channel was constructed adjacent to the wet toe from the debris excavated for the levee. Total degris excavated was 185,046 cubic yards. 14. San Sevaine Basins, at Sumit Avenue, Four basins were expanded within District's existing facility. The perimeter levee~ were raised an average of five feeK. Three ieter-basin levees Eare constructed. A grouted rock spillway,having a 150 foot crest was constructed on the upper and lower inter-basin levees. The center inter-basin levee has two grouted rock spillways with 75 foot crests. 240~732 cubic yards of debrig was excavated from the basins, and 9,014 tons of rock and 1~105 cubic yards of grout were used in the spillways. 8~500 L.F.'of levees were constructed or raised. Debris capacity is 400,000± cubic yards. C/E Construction Cost $ 93,807 $ 60,000 $ 144,360 Project No. -10- · Facility, Location~ EmerGency Improvement C/E Construction Cost ] 15. i6. Banana Basln, Fontone. The project was terminated after 12,000 of an estimated 15~000 cubic yards o£ debris had been excavated~ due to economics created by the inability of the heavy equipment to keep from sinking in soft debris. Hawker-Crawford Channel~ above Summit Ave. Excavated 7~600 L.F. of trapezoidat earth lined channel~ (b=20' h=8'). Construction included a hardened dip crossing with a bat.~ery of 3 - 48'= CMP and grouted splash apron. T~ir~y feet of 36 and fifty feet of 30" CMP were installed to assisc $ 6,000 $ 120,000 local drainage. Three earth bottom dip crossings were constructed. A rip rap lined reception levee i000' long was constructed at the mouth of Cra'~ford (Duncan) Canyon. Excavation ~as 70~680 cubic yards; 18,320 eol~s of rip rap and 1,000 cubic yards of concrete grout were incorporated in the work. 17o Rich Basin~ above Sununit Ave. 264,290 cubic yards of excavation~ mostly sand with some gravel~ was removed from Rich Basin which intercepts the emergency e 135,000 project~ Hawker-Cra~.zford Channel. The existing levees of Hawker-Crawford Channel~ below Rich Basin to Summit Ave. were r~ised~ with a part of the material excavated from Rich Basin. About 100~000 cubic yards still remain to be excavated from Rich Basin and placed on the spoil area northerly of Rich Basin. A 100 foot crest~ grouted -11- ] ] ] ] ] ] Facllity~ Location, Emergency Improvement C/E Construction Cost 17(Cont) rock spillway was constructed of 5~344 tons of rock and 722 cubic yards of concrete grout. 18. Cajon Creek Levees, Verdemnnt. A 2~500 foot levee and a 1~500 foot levee were aons~ructed southeasterly of Glen Helen Park~ along the west side of Cajon Creek. The levees were constructed of 6~300 cubic yards of sand and faced with 30,726 tons of imported ro~k. ~ 'i b~YER FIRE - Sub Total $ 158~544 $l~907~939 BEAR~ RECHE & SAN TIMOTEO CA~ON FIRES Daiey Canyon Debris Basin, Del Rosa. 29~064 cubic yards of debris were removed from.District's existing basin. The debris was stored on the east bank for easy access for future borrow operations. Debris capacity of Dalcy Canyon is now approximately 250,000 cubic yards. $ 14,240 20. Little Sand Canyon Basin (Little Sand Creek)~ Dei Rosa. $ Little Ssnd Canyon debris basin was constructed by excavating 76~000 cubic yards of debris~ part of which was used to construct a levee across the mouth of the canyon. The basin was provided with a 50 foot grouted rip lap spillway. The spillway incorporated 2~000 tons of rip rap~ which was grouted with 195 cubic yards of 44,000 Concrete. J -12- Project No. Facility, Location, Emergency Improvement 20(Cent) Lemon Basin (Little Sand Creek), Del Rosa. 84,000 cubic yards of sandy debris was removed from Lemon Basin and stockpiled on the easterly edge for future bor~pw operations. 21. Sand Creek Basin(Sand Creek), Del Rosa. Sand Creek Basin was constructed by excavating 51,400 cubic yards of debris and constructing a grouted, rip-rap spillway. The spillway incorporated 1~200 tons of rock and was grouted wit~ 195 cubic yards of concrete. C/E Construction Cost $ 25,000 $ 45,000 22, Patton Basin (Sand Creek), Highland. A total of 6~000 cubic yards of debris was removed in the alignment of the AT & SF Railway.'~ Sn~aii Canyon, Highland. Dynamite Basin~ above City Creek Road was excavated with the reinoval of 83,325 cubic yards of debris. 6,300 cubic yards of debris was removed from Small Canyon Dam. 3,000 $ 45~615 City Creek Levees~ East Highland. 4i2,33i cubic yards of debris, consisting of large rock and sand~ was rameyed from the floodway between Boulder and Bigbland Avenues. The levees were raised to a height of 12 to 15 feet on each side of the Creek within the same reach. 9~500 L.F. of levee was con- structed or raised. $ 333,050 Project No. 5e 26. 27. Facility, Locatton~ Emergency Improvement C/E Construction Cost $ 16,000 Cook Canyon Debris Bastn~ East HIghland. 6,500 cubic yards of debris, consisting mostly of sand and gravel was removed from Cook Canyon and a small spillway wa~ constructed to form a debris basin. The spillway consisted of 1~200 tons of rock, which was grouted with i75 cubic yards of concrete. EIder Creek Debris Basin, East Highland. 84,000 cubic yards of debris was excavated from Elder .: Creek and a spillway was const'~ucted of grouted rip~rap. i~500 cons of rock and i75 cubic yards of P.C.C. were incorporated in the spillway. : $ 84,000 Plunge Creek Levees, ~orth of G.~enspot Road. $ i36,313 cubic yards of debris, consisting of large rock, boulders, and sand, was excavated from tile floodway notch of Greenspot Road. The excavated debris was used to conscruet a deflector~ 2,500 feet long and Eo raise the existing southerly levee five feet. 144,385 Oak Creek Debris Basl~ north of Greenspot Road. 34,562 cubic yards of sandy debris was excavated from Oak Creek Canyon to create a small basin. The basin has a grouted spillway consisting of 5,000 tons of rock gnd 545 cubic yards of concrete grout. The excess debris was placed in such a manner as to help deflect runoff into Dtstrict's Oak Creek Channel. $ 85,000 J J J Project No. 8 · 29. -14- Fscflity~ Locnt Ioll~ EnlcrEencY Improvement Santa Ana Rivcl' nL Grccnspot Bridge. Three levees w~';" col~tr,lcted at Greenspot: 1~600 lineal feet ul, l, lr~'~m a.d 300 lineal ~eet downstream~ along the north b~t~k; 2~000 lineal feet downstream of the southerly ~[ngwalI of the Greenspot Bridge. A total of 30~OOO cubic yards of debris. mostly large rock with sand~ w~l excavated from the floodway and incorporated ]. ~be Icvecs~ which are 12 - 15 feet high and 4G 50 f~.ct l. top w~dth. Pertinent work included a sma~ ] ~[ikc to drain 1st flow waters into Bear Valley ln~,'t work~;~ at the sootbeast wingwall of the Bridge. I,, n,]diti~" to clearing the floodway along: the levees, the' f~r~cnspo[ Bridge, abutments and wingwalls were reinforced ;~,,d protl. cted with large rip-rap and boulders. C/E Construction Cost $ 258,000 River i,lJth h:,llk from AT & SF to Mill Creck~ $ 336~065 Sansa Ana ~__,--- - Mentone. 425,415 cubic yz, r'j~I of dcbris was excavated to construct a singl; 7,000 ~,,,~l. lew'z' niong the south hank of the Santa Ana River, fFoln tb{' AT & SF RR north of Mentone to the confiuen~:c f~f MIll Creek. A piloE channel was constructed aior,Z i. he wl![ toe of the levee, The levee is now continuous ~;'g the ~lodth banks of Mill Creek and' the Santa Ana RJ,/er, froin the Redlands'Airport upstream to Monument Hill. The levee is 12 - 15 feet high and 40 - 50 feet in top widLh. -15- ] ] ] J J Project No. 30, 32. Facility~ Loca~ion~ EmerSency Improvement C/E Construction Cost Mill Creek, upstream of Garnet, East Meatone. $ 345,000 344,244 cubic yards of debris, consisting of large rocks snd boulders was removed from the Mill Greek floodway within tbe'-reach from Garnet to upstream of Monument }{ill. The' levees along the south bank were raised approximately 5 feet~ and the north bank · of the Creek was straightened by'the construction of spoil levees from the debris. San Timo[eo Channel, Loma Linda~ The San Ti~oteo $ 65~O00 Channel was repaired and reconstructed from 100'+ downstream of Waterman Ave. Bridge its confluence with the Santa Ana River upstream to the Cage Canal near Redlands Blvd. The reconstruction included 4~000 L.F. of rail/wire revetment fencing, i~642 tons of rock backfill and miscellaneous work. Reche Canyon Channel~ Colton - Grand Terrace Reche Canyqn was reconstructed from its confluence with the Santa Ana River~ upstream approximately 18~000 L.F. to the Mobile Home Park in Reche Canyon~ The Channel crossed Mto Vernon Ave., U.S. }twy. 395~ Barton Road, Westwood end five private roadways~ A total of 900 L.F. of 60"CMP~ 800 L.Fo of 58" × 36" C~ and ~177~228 cubic yards of excavation were incorp6r~ted in the work. The quarter-million dollar project was completed within six weeks after starting on February 10, 1971. 39~023 tons $ 258,185 .1 ] ] Project No. -16- Facllity~ Location, Emergency Improvement 32 (Cont) of rock and 3,109 cubic yards of concrete grout were used in channel slopn protection. The dip crossfogs south of Barton Road were paved~ using 692 tons of aggregate base and 675 tons of asphalt BEARs RECHE & SAN TIMOTEO FIRES paving, Sub-Total GRAND TOTAL C/E Construction Cost $ 2~10[~540 $ 4~009~479 J J '17- SUMMARY OF APPENDIXES 1 THROUGH 5 ' Append Lx No. 1: PROJECTS TOTAL CONSTRUCTION COSTS AND QUANTITIES. Appendix No. l catagorizes for each project, the following items: 1. CONSTRUCTION PERIOD - from the first day of move on, to move off. 2. EART}~ORK - the total cubic yards of debris or excavation removed. 3. R.R., A.B.C., A.C. - the to~al amount, in Tons of R.~. - rip rap, A.B.C. - Aggregate Base Coarse and A.C. - Asphalt. 4. CONCRETE - the total cubic yards of concrete grout (normally a 7 sack C/E grout mix). 5. CORRUGATED ~TAL PiPE - the total lineal feet and diameter. 6. CULVERT - the total number of culvert c~ossings, noting either road for roadway and levee for levee patrol road. 7. C}~NNFL - the lineal feet and miles of channel constructed or raised. 8. LEVEE - the lineal feet and miles of levee constructed or raised:: 9. APPROX]]~LATE PROJECT COST AMOUNT - the pro~ect construction consts, as received from the Corps of Engineers r~presentatives at the completion of each project. A~pendix No. 2: PROJECTS DALLY EAR~ORK QUANTITIES, COSTS AND ACCUMULATED TOTALS. Appendix No. 2, is a time chart arranged on a daily ba~is~ for each project by facility name and Corps of Engineers project number. It is a tabulation of the amount of debris and earth excavated each work day. On projects which yere primarily earthwork, the total quantity of cubic yards of debris and 'earth excavated per day is noted in the upper portion of aach project's corresponding date column, The daily cost of eartbwork is noted in the lo~ar portion of each project's corresponding date column. Where feasible,' on projects incorporating fence rails, rip rap, concrete, corrugated metal pie · p , aggregate base-and asphalt paving, the quantities are suffixed respectfully with the following: RAILS for total number of 15 -18- foot rails driven. T for total number of tons of rip rap and CONC for total number of cubic yards of concrete, ()LF () IN CHP for lineal feet and diamet-er of corrugated metal pipe, T AGG BASE for total tons aggregate base and T AC for total tons asphalt paving. The total cubic yards removed and cost of earthwork on all proj.ects, is noted at the bottom of the chart, on a daily and accumulative basis. The approximate total Quantities and Costs of each project, is surffaarized along the rigbK hand edge of Appendix 2. The daily Quantities and Cos ts were acqu ir~d through field observation by District's inspection Personnel and periodic checking and field review of equipment units and costs with the various contractor's superintendents and the Corps of Engineers representatives. ':' Appencrix No. 3: BASIC EQUIPb~NT SPREADS, tabulates the Basic Equipment used on each 'of the projects. Equipment listed on each project was observe~ by District inspedtion Personnel and periodically checked and field reviewed ~'ith the various contractors superintendents and the Corps of Enginee'rs represents t ive s · Abbreviations used are as follows: CAPACITY WHERE APPLICABLE EQUI~-~N7 APPROX. W~f. & H.P.'s AS AVAILABLE ABBREVIATIONS Dozers Caterpillar Track Dozer D-4 13,700# 65 ~WHP D-4 " " " D-5 15,100~; 93 B4HP D-6 ': " " D-7 34,000# 180 FWHP D-7 " :~ :' D-8 50,000# 270 FWHP D-8 " " " D-9 67,000# 385 FWHP D-9 -19- EQUI~NT Dozers (Cont'd) ~ Caterpillar Track Dozer D-8 Mod. 46A Michigan Wheel Dozer 55 Komatsu Track " D125K International Track Dozer TD25 Caterpillar Wheel Dozer · Loaders Caterpillar Wheel Loader 966 " " :' 977 " " " 980 I; '; " 988 Inte~national Track Loader .Michigan Wheel Loader 55 CAPACITY WHERE APPLICABLE APPROX. WT. & H.P. 's AS AVAILABLE 50,000# 270 FWHP 76,000# 400 FWHP 76,000# 400 FWHP 3-5 cy 170 3-5~cy 4-5 cy 235 F!~qtP 5 1/2-6 i/2 cy 4~5 cy 4-5 ~y Scrapers Catcrpi]iar Wheel Scraper 641 :' :' '; 651 Terex Wheel Scraper S24 ,, ~, I, TSi4 '; TS24 28-38 cy 5005'HP 52-44 cy 500FWHP 25 cy 20-40 cy 30-40 cy Graders Caterpillar Motor Grader No. 12 27,000# 125 ~.I}[P " " " NO. 14 29,500# 150 FWHP " " :~ No. 14 48,000# 225 FWHP ABBREVIATIONS 46-A Mich. D125K TD25 835 966 977 980 988 TD250 Mich. 641 651 S24 TS!4 TS24 ~!12 #~4 -20- 1 ] ] 1 EQUIP~fl~NT NAME Trucks 10 Wheel Dump Truck Semi (5th wheel) Dump Truck Caterpillar Off Hwy. Truck Euc 1 id ,, Incernational Pay Hauler DW21 Tractor w/Athey Dump Bed CAPACITY WHERE APPLICABLE APPROX. WT. & H.P.'s AS AVAILABLE ABBREVIATIONS 8-12 cy 10 wh. 10-17 cy Semi. 30-35 Ton cap. 415 ~P 769 30-35 Ton cap. R30 30-35 Ton cap. R35 50 Ton cap. I Pay Hauler 17-20 cy Athey Miscellaneous Concrete Pumping Machine 40-150 cy/per hr. 35 Ton Mobile Crane 35 Ton Water ~ruck 4,000 gais. Vibratory Sheeps foot Compactor 30 Ton Mobil Crane 30 Ton Gradall, Hydraulic Mobil Excavator Air Compressor & Pneumatic Hand Tamp 50 Ton Mobil Crane 50 Ton Barber-Grange Asphalt Paver Steel Roller Pile Driver on Mobil Crane Conc. Pump 35 T Crane Water ~r~6k Vib. Sheep 30 T Crane G 1000 Jay Tamp 50 T Crane Barber-Green i0 T Roller Pile Driver A_~.p~ndix No. 4: CONSTRUCTION QUANTITIES, APPROX~TE UNIT COSTS AND EQUI~ZNT PER OPERATION. Appendix No. 4, is an estimated unit cost breakdown of the primary operations on each of the projects. ~o assist in evaluating and comparing the various unit costs, the equipment ('equipment abbreviations are the same as for Appendix No. 3) used is listed opposite each operation. -21 - Unit Costs, as available, are listed for the following prlmary operations on each project: EART~ORK, includes embankment, in cost per cubic yard; Rip Rap, in place, in cost per Ton; Concrete, in place, grout in coat per cubic )'~rd and Rails, in place, in total cost per lineal foot of Rail and Wire Fence. Costs were derived from actual equipment costs, material tickets and load counts observed by District inspectors throughout the construction period. Earthwork costs ranged from $0.14 (excavation of debris at Winevilla Basin), to $3.04 per cubic yard (excavation and compaCtion of impervious clay core on westerly and easterly 1/3 of Cucamonga Basin No. 3), with an average unit cost of $0.69 per cebic yard. The cost of Rail and Wire Fencing was $12.80 per lineal foot. The cost of Rip rap, in place varied from $1.97 (West Frankash Dam), to $7.80 per Ton (Cucamo~a Basin No. 3). The cost of Concrete Groot, in place, varied £rom $i8.00 (Oak Creek Basin), to $33.00 per cubic yard (Demons Basin). The cost of Grouned Rip Rap, based upon 1.5 ton of ri~ rap ~A~ cubic vard and Z.~ voidI var~ccl ~ .... ~ ~5 cubic yard at Oak Creak Basin, to $21.70 a cubic yard at Cucamonga Basin No. 3. The cost of grouted rip rap is listed for applicable projects in the Unit Cost column and labled Applicable Grouted Rip Rap in the Equipment column. ~ppendix No. 5, UTILITiES AND AGENCiES - CORPS OF ENGINEERS, CONTp~CTORS1 A~ID DISTKICT PEtqONNEL: Appendix No. 5, lists the number of utilities relocated or physically affected and the number of agencies or utilities coordinated. At the end of the appendix, is a partial list of the utilities and agencies in conflict by the thirty two projects. -22 - The Corps of Engineers, Contractors and District Personnel performing in the capacity of Project Engineer, Resident Engineer, Field Engineer, Inspector and Superintendent are listed for each project, .................... ,-...-'7,. i" _:-:L ....... : ~-.. I ,-~ , .~ " ~'~ .. :"~ .... '~'~ ' "~ ' ' ~ ' · ' . ~ ~ ~ I r~ o '~'~:'~ o u ~ ~ ~ r .'s~ " L / 1: '~ ' · , .L. " ' IJ~, ~ f '<-/' ~" ~'- ....~:'-, ..... :"' ~" :. . ~ BASINS 14 I. ,/~' ~ ~" ~' .... · ...... ~ ' ~ ......~"'-' ~;~.~p~s '~ ~ "" ~ .....: ..... [ ~..~;'. ~ . , .. ., ,,.~ ~,', ' .~~-,.. --z- ,. _,. ~K ) LEVEE Z9 "' . ".~. / ..,'/ ~'~ ...... --.L""" I ' 4 ~ .-..": _1 :. -,' 'j': ....... ' I ' "" __~P~S~-N ~9~ ~y ..... -.~, .... · ~ .... RIVERSIDE -% ,. ,' _~J ~;~ "'~ SAN . - :' ~ ~.?~;;;" ' . SAN BERNARD[NO COUNTY [ ~,~.~ ~:~J:~.:L~ ~,~'~ .'~L:~u ~ 1970 71 COf E ,~~~/ " ~__ ~ ..... , - . , .......... __ ~ c,..,~,~ EMERGENCY FLOOD CONTROL U ~ ~ .......c,"' CONSTRUCTION .........1970 WATERSHEO BURNS MEYER- CU'C/ 12ETIWANDA SPDG. GRDS. } DAY CRK. SPDG. GROS. DEER CRK.REC. LEVEE ALTA LOMA BASINd~2 OEMENS BASIN CUCAMONGA X- WA~I_ EMERGENCY FLOOD CONTROL CONSTRUCTIO'N ~ ..__2 S.B.C,F..C.D. PLANNING FILE ~ DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT. CORPS OF ENGINEERS PO BOX 53271t LOS ANGELES. CALIFORNIA 9(053-2325 January 12, 2000 Office of the Chief Hydrology and Hydraulics Branch Mr. Dean G. Dunlavey LATHAM & WATKINS Attorneys at Law 650 Town Center Drive, Suite 2000 Costa Mesa, California 92626-1925 Dear Mr. Dunlavey: I am writing in response to your letter of November 17, 1999 to Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch, regarding the Deer Cre~k Retention Levee - San Bernardino County, California. Our letter to you dated December 16, 1999 presgnted areevaluation ofthe level of flood protection provided by the Deer Creek Debris Basin and Channel as promised at the November 4, 1999 meeting with you and other attorneys at the South Pacific Division of the Corps of Engineers. Mr. Evelyn does not recall making a statement to the press that we were not going to undertake this engineering review. Although our reevaluation was completed in early December, our December 16, 1999 response to you was delayed due to the need to coordinate the response through the Corps' Headquarters Office in Washington, DC and with the Office of the Assistant Secretary of the Army for Civil Works (Dr. Westphal). Your recent meetings with representatives of Dr. Westphal's office as well as with the Congressional offices of Senators Boxer and Feinstein resulted in a heightened level of concern with Deer Creek flood control issues that necessitated a longer than normal coordination period before release of the reevaluation findings. Your November 17, 1999 letter lists a number of issues that you believe should be addressed by the Corps. Responses to those issues are given below in numbered paragraphs corresponding with the numbered paragraphs in your letter. 1. As explained in Chapter lV (Synthesis of Standard Project Flood) ofDesign Memorandum No. 1, Hydrology, Cucamonga Creek (1973), the Corps used the March 1943 local storm event to determine standard project flood magnitudes because this observed storm event has the most severe rainfall depth-area-duration characteristics for smaller watersheds sizes (less than about 150 square miles) in southern California. The Deer Creek watershed at the debris basin location is 3.71 square miles. No adjustment to the rainfall characteristics of the observed March 1943 storm event were made in applying the storm to the Deer Creek watershed because (1) the March 1943 storm event was centered at the San Gabriel Mountain-foothill interface as is the Deer Creek watershed, and (2) rainfall statistics are similar for the area above Sierra Madre and the Deer Creek watershed. In addition, your letter seems to mistakenly assume -2- that rainfall values from the" Siena Madre damsite only were used to estimate standard project rainfall for the Deer Creek watershed. However, the Corps used the rainfall data derived from the entire "footprint" of the March 1943 storm to mathematically define the depth-area-duration relationships of the storm for use in standard project flood determinations. The average annual rainfall depth for the Deer Creek watershed is not used directly to compute either standard project rainfall depths or to compute debris yield. Therefore concerns that the 3-hour rainfall depths used to compute standard project flood values for Deer Creek watershed are a relatively small percentage of the average annual rainfall are misplaced. 2. There is confusion over our use of the term "basin". We frequently use the term "basin" to mean "drainage basin" which is the same as "watershed". Therefore, when we state that standard project flood estimates were determined "based on calculations of runoff that would result if the storm of record in the region were to occur directly over the basin", the computation is performed assuming the storm is centered over the drainage area tributary to the stream location where the flood estimate is to be made. 3. The Corps' original debris production estimates for the Deer Creek Debris Basin were made to achieve the congressionally authorized level of project flood protection (Standard Project Flood). Design debris production estimates computed using the Tatum Method CA New Method ofl~stimating Debris-Storage Requirements for Debris Basins" dated January-February 1963), or the updated 1992 debris yield procedure (entitled "Los Angeles District Method for Prediction of Debris Yield") are not the maximum possible debris production. As explained in our November 2, 1999 letter to you, "In the derivation of the Tatum Method it was clearly recognized that debris production rates much greater than the adopted design procedure produces were possible. However to design for and construct debris basins for these larger debris volumes is generally not practical or economical. Application of the Tatum Method yields debris storage volume estimates consistent with the Standard Project Flood design standard yet there is residual risk of larger more infrequent combinations of fire and flood events that will produce larger debris volumes." Both the Tatum Method and the 1992 debris yield procedures use hydrologic variables that best correlate with debris production. In the development of debris production procedures, the use of the 3-hour duration rainfall statistic as an independent variable was found to give far better correlation results than mean annual duration rainfall. A thorough discussion of the correlation between debris yield and meteorologic and physiographic parameters is given in the 1992 debris yield report (Enclosure 1). This discussion concerning rainfall parameters while instructive is largely moot given that the recent Corps debris yield estimate (using the 1992 procedure) for Deer Creek Debris Basin was performed utilizing flood runoff values instead of rainfall parameters. 4. The Deer Creek Debris Basin design storage volume is 310 acre-feet. The debris basin will capture up to 310 acresfeet of debris carried into the basin from floods resulting from precipitation events (rainfall, snowmelt, or combination) regardless of how recent the watershed has been burned. The level of protection afforded by the 3 10 acre-feet of storage volume was consistent with the congressionally authorized standard project flood protection for the project. Your understanding ofFliMA certification requirements is incorrect. FEMA floodplain -3- management regulations are based on an estimate of the 0.01 (100-year) annual exceedance probability flood. Combinations of rainfall, snow, flood runoff, and watershed bum effects that produce debris yields greater than the estimated 100-year event are by definition less frequent (rarer) than the 100-year certification standard. Your discussion of"excluded risks" with respect to the design of Deer Creek Debris Basin is without technical merit. Our December 16, 1999 letter estimates a 0.009 (111-year) annual exceedance probability for the Deer Creek Debris Basin volume based on our 1992 debris yield procedures. The 1992 debris yield procedure explicitly accounts for the combined probabilities of fire and flood events. In response to your question asking for the quantity of debris generated during what you term the "residual risk" period, it would be debris yield events greater than 310 acre-feet. 5. Enclosure 2 is a copy of the report entitled "A New Method of Estimating Debris-Storage Requirements for Debris Basins" dated January-February 1963 by Fred Tatum. This report covers the derivation of the debris yield procedure and the application of adjustment factors in the procedure. Reference to this report should enable understanding the derivation of the correction factors given in Table III-1 of the Corps' Featur:e Design Memorandum No. 6, Deer Creek, Demens and Hillside Debris Basins and Channels, dated June 1979. 6. The most likely explanation for the statement in paragraph l4.01ofDesign MemorandUm No. 2 that refers to "a diversion levee... west of Deer Creek Debris Basin" is that the word "west" should have been "east". This is because there is no design or construction information for a permanent levee west of Deer Creek Debris Basin that is part of the Deer Creek portion of the Cucamonga Creek Project. When you visited Mr. Evelyn on November 3, 1999, Mr. Evelyn had in his office Design Memoranda 1, 2, and 6, as well as copies of several half-size project plan sheets that covered the Deer Creek Channel reach in the vicinity of the Deer Creek Reception Levee.' Mr. Evelyn discussed with you the fact that these documents were the most relevant Corps documents with respect to establishing whether the Deer Creek Reception Levee was a part of the Corps' Cucamonga Creek Project as well as determining the basis of design for the Deer Creek Debris Basin. Mr. Evelyn provided you copies of these plan sheets to illustrate that the Deer Creek Reception Levee was not on the construction plans as a project feature. The point was that had the Deer Creek Reception Levee been a part of the project, its design (size, location, shape, materials, real estate requirements, etc.) would have been described in Design Memoranda and shown on the project plans. The Corps is being responsive to your November 11, 1999 FOIA request for all documents relating to the project (reference MS. Lisa Lugar's FOIA response letter of December 20, 1999 to Mr. Robert D. Crockett ofLatham & Watkins). It is important to recognize that the Design Memoranda for the project are documents that capture and record all significant aspects of the project planning and design. Information still residing at the Federal Records Center (FRC) in Laguna Niguel is comprised principally of backup data and materials for the information that was incorporated into the Design Memoranda. 7. The Corps' is not aware ofany urban development proposed for area upslope from the Deer Creek Reception Levee other than the Lauren Development. Mr. Evelyn' s statements at the November 4, 1999 meeting regarding this upslope area were meant to point out that appropriate storm drainage measures as determined by county and city engineers are a necessary part any -4- development in this area in order to preserve doWnslope flood protection from local runoff not controlled by the Corps' Cucamonga Creek Project. Although our Emergency Management Branch was unable to locate Corps documents describing our participation in emergency flood control measures on Deer Creek in 1970-71, San Bernardino County Flood Control District (SBCFCD) staff recently provided us a county report entitled "Watershed Burns of 1970, Final Report on Emergency Flood Control Measures Completed March 25, 1971" (Enclosure 3). This report describes 32 emergency flood control projects in San Bernardino County constructed in response to the increased runoff and debris potential as a result of the Meyer, Bear, Reehe, and San Timoleo Watershed Burns of 1970. Funding for this work came from the federal Office of Emergency Preparedness ($4.7 million) and from San Bernardino County ($537,908). Project No. 7 was the Deer Creek Reception Levee that was raised 10 to 15 feet along its total length. In addition, three deflector levees, totaling 5200 feet, were constructed. Private contractors under Corps of Engineers direction performed the project construction. The SBCFCD provided rights-of-way, utility relocations, surveys, coordination and assistance in engineering, supe~ision, and inspection. The Corps' Cucamonga Creek project that included the Deer Creek Debris Basin and Channel supplanted the need for these emergency measures. We hop~e the information provided in response to the issues raised in your letter meets your needs. The Corps reevaluation of the level of flood protection afforded by the Deer Creek Debris Basin presented in our December 16, 1999 letter was an unbiased technical analysis. For further information regarding this response, please ~ontact Mr. Joseph Evelyn, Chief of Hydrology and Hydraulics Branch at 213-452-3525. Sincerely, District Engineer Enclosures -5° Copies furnished with enclosures: Honorable Barbara Boxer United States Senate SH-112 Hart Senate Office Building Washington, DC 20510-0505 Honorable Diane Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510-0505 Honorable Joseph W. Westphal Assistant Secretary of the Army (Civil Works) 108 Army Pentagon Washington, DC 20310-0103 Honorable William Alexander Mayor ofRancho Cucamonga 10500 Civic~ Center Drive Rancho Cucamonga, CA 91730 Mr. Ken Miller Director, County of San Bernardino Transportation/Flood Control Department 825 East Third Street San Bernardino, CA 92415-0835 Mr. Andrew K. Hartzell HEWITT & McGUIRE, LLP Attorneys at Law 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 LATHAM & WATKINS A'FFORNEYS AT LAW November 17, 1999 VIA FACSIMILE AND FEDERAL EXPRESS Mr. Joseph Evelyn Branch Chief Am:y Corps of Engineers 911 Wilshire Boulevard, 13th Floor Los Angeles, California 90017 027659-tllX21 Re: Deer Creek Retention Levee -- San Bernardino County. California Dear Mr. Evelyn: I was surprised and very disappointed to read your comments to the Los Angeles Times. I understood Colonel Hodgini to say that the Anny Corps of Engineers ;vould conduct at least an unbiased, preliminary review of the flood control project in light of current scientific 'knowledge, e.g., what is known today about rainfall, debris flows, and the observed performance of debris basins, as well as the construction of hundreds of homes downslope of the levee during the years since the Cucamonga Creek Flood Control Project was competed in the early 1980s. The Corps estimated that this preliminary review would take several xveeks. The statements that you made to the newspaper ~vithin a few days of our November 4, 1999 meeting suggest that you are not going to undertake the unbiased review that Colonel Hodgini promised. While I cannot provide a comprehensive list of alI the issues that should be reviewed, there are several issues that I believe must be addressed. At the November 4, 1999 meeting, I provided copies of declarations from several experts regarding rainfall data, updated methods for calculating debris production, the observed hilures of debris basins, and the secondary flood protection provided by the Deer Creek Retention Levee. We noted that hundreds of homes have been constructed downslope of the levee. I also provided materials OC_DOCSX267O05.1 [W97] LATHAM & WATK1NS Mr. Joseph Evelyn November 17, 1999 Page 2 regarding burn frequency. I ~vould request that the Corps review all of the issues raised in those materials. In addition, I ask that you consider the following: 1. The Corps used the 3-hour thunderstorm of March 1943 as the standard project storm. See, for example, Final Environmental Statement, page 7. That storm was located over the Sierra Madre Dam. See Design Memorandum No. 1, Plate 6. The dam is at an elevation of approximately 1,100 feet. There appears to have been no adjustment to account for the fact that the base of Cucamonga Peak is located at an elevation of more than 2,600 feet and the peak has an elevation of nearly 8,900 feet. Furthermore, the Corps appears not to have relied upon its own Hydrologic Map, attached as Appendix 1 Plate 1 to the Hydrology Cucamonga Creek San Bernardino and Riverside Counties, Santa Ana River Basin, California.. That map shows Deer Canyon as lying in a region with an average annual rainfall for the period from 1870 to 1943 of between 35 and 40 inches at an elevation of 5,000 feet. This coincides fairly closely ~vith James Goodridge's estimate that average annual rairffall on the Deer Canyon watershed is approximately 42 inches per year. The 100-year 3-hour storm is 16.8% of the mean annual rainfall. 2. The Corps estimated the magnitude of the standard project flood "based on calculations of runoff that ~vould result if the storm of record in the region were to occur directly over the basin." Final Environmental Statement, page 7. Placing the storm "directly over the basin" results in a substantially lower runoff calculation than would result from placing the storm directly over the watershed. There appears to be no logical justification for this placement. 3. The Corps' decision to design the debris basin using a 3-hour storm for debris production calculations appears unrealistic as well. The Corps chose the storm likely to generate the most cubic feet per second of water. This, however, does not correlate to the rainfall that would generate maximum debris production. Debris production is most likely after a preceding rainfall of 7 to 10 inches. Obviously debris movement continues as long as the rainfall. Thus, it appears to be more logical and realistic to calculate debris basin capacity based upon a 12 or 24 hour rainfall total instead of the 3-hour storm. Mr. Goodridge's affidavit includes information showing the 24-hour rainfall recorded on January 25, 1969 to be 33 i~ches. What debris production would result from such a storm 4 years, or even I0 years, after a burn event? 4. The Corps' calculation of "residual risk" apparently excludes the possibility of any snowfall being on the peak and any fire preceding the standard project flood within the previous 5 years at the time the flood occurs. These are not realistic assumptions. The Corps further assumes that only a 200-year storm causes failure. This methodology of excluding various failure scenarios - e.g., a 50-year storm occurring 3 years after a bum - does not account for cumulative total risk. The San Bernardino County Flood Control District has OC_DOCSX267005.1 [W97] LATHA~M & WATKINS Mr. Joseph Evelyn November 17, 1999 Page 3 issued calculations sho~ving that the debris basin would fail for more than a decade following a burn, even with a 3-hour rainfall of less than 3.27 inches, and even excluding the snow pack risk. Furthermore, my understanding is that FEMA requires a certification that the basin can hold all the debris generated by the 100-year storm without regard to excluded risks. Colonel Carroll's November 2, 1999 letter to me, which you presumably authored, states that it was not "practical or economical" to design the basin to capture all debris potentially generated. I assume you are referring to the debris that would be generated by a project storm for up to five years following a burn in the ~vatershed or, as calculated by the San Bernardino County Flood ControI District, for more than 10 years following such a bum and storm. Can you please calculate what quantity of debris would be generated during this "residual risk" period, using both the 3.27 inch figure and the actual rainfall figures provided by Mr. Goodridge? 5. The Corps' documents available to me do not explain and justify the numerous adjustment factors that have been applied to th~ 3.27 inch figure. 'i 6. Colonel CarroWs letter ac'knowledges that paragraph 14.01 of Design Memorandum No. 2 refers to "a diversion levee... west of Deer Creek Debris Basin" as part of the Corps project. The letter then attempts to ignore this reference by stating that "there is no other design information or construction plans which describe such a permanent project feature." On November 4, I pointed out that there are several other references, and cost increases, associated with this levee. See, e.g., page XIX-7, ¶ 19.02(a)(7): "Engineering and Design: Addition of... a diversion levee at Deer Creek result in an increase of $1,521,800," page XIX-7, '~ 19.02(a)(8): "Supervision and Administration: Addition of... a diversion levee at Deer Creek · .. results in an increase of $3,635,100," page XIX-8, ~ 19.03(a)(8): "Supervision and Administration: Addition of... a diversion levee at Deer Creek... result in an increase of $4,374,100.' When I visited with you on November 3, you indicated that the only documents in your possession were Design Memoranda 1, 2, and 6. My client previously had requested that the Corps provide documents relating to this project. When I spoke with Mr. Beams and you in October, Mr. Beams indicated that there were documents concerning the project stored in San Diego, but that they might be difficult to retrieve. At that time I requested that you initiate a search for those documents so that I could review them. They have not been provided. If i complete record does not exist for the Cucamonga Creek Flood Control Project, the fact that you have not been able to locate other documents referencing the levee is insignificant. A FOIA request for all documents relating to the project was sent to you on November 11, 1999. As those documents have not been provided, we are reserving the right to supplement this reqnest. 7. At the November 4 meeting, you implied that additional development and flood infrastructure upslope from the Deer Creek levee may be contemplated. However, you did not identify any specific project. To my clients' knowledge, there are no current plans for either OC_DOCS~267005.1 [W97] 4 LATHAM & WATKINS Mr. Joseph Evelyn November 17, 1999 Page 4 development or flood infrastructure other than the so-called "replacement channel" proposed by Lauren Development. That proposed channel would carry only 474 cfs and is not designed to provide any mitigation if the basin were to fail. Insofar as additional development or flood projects are concerned, Mr. Philibosian of Sheppard, Mullin, Richter & Hampton has sent a Public Records Act request to the County of San Bemardino and the San Bernardino County Flood Control District requesting any documents that would bear upon your suggestion. We will inform the Corps immediately if any project or other flood infrastructure is proposed. For your. information, the property north of the Lauren Parcel and south of the debris basin currently is designated as Open Space on the County's General Plan. As matters now stand, we assume that the Corps is evaluating the capacity of the debris basin and the necessity for the levee based upon the existing development plans. Finally, Colonel Carroll's letter acknowledges that "[u]se of different design assumptions or different procedures will yield results that differ from the original debris storage volume." It goes on to state that "it was clearly recognized that debris production rates much greater than the adopted design procedure produces were'~3ossible. However, to design for and construct debris basins for these larger debris volumes is generally not practical or economical." What we have requested is an unbiased, realistic evaluation of the adequacy of the debris basin in light of what is known now. Whatever calculations were done in the 1960s and 1970s are irrelevant ~o the people ~vho are living below the levee today. Thank you. Dean G. Dnnlavey of LATHAM & WATKINS CC: Colonel Thomas J. Hodgini (via facsimile) The Honorable Joseph W. Westphal (via facsimile) James Lazarus, Chief of Staff for the Honorable Diane Feinstein John Hess, Senior Advisor to the Honorable Barbara Boxer Robert Philibosian, Esq. Malissa H. McKeith, Esq. Bill Ha~vkins OC_DOCSX267005.1 [\V97] US Army Corps Engineers Los Angeles District LOS ANGELES, CALIFORNIA DEBRIS ME THOD t LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD FEBRUARY 1992 REVISED AUGUST '1992 UPDATED NOVEMBER 1998 Last Access: Tuesday -- 11/10/98 -- 7:11 PM LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD U.S. ARMY CORPS OF ENGINEERS LOS ANGELES DISTRICT FEBRUARY 1992 REVISED AUGUST 1992 UPDATED NOVEMBER 1998 PRE FA C E The Los Angeles District Method for Prediction of Debris Yield was developed to provide a systematic approach for determining the debris yield from a single flood event to be used in design of debris basins. The Method was developed using data from coastal-draining, mountainous, Southern California watersheds, varying in area from 0.1 to 200 mF. It is intended to estimate debris yield for fiood events greater than those with a 5-year recurrence. Outside the area from which the equations are based, application of the Adjustment- Transposition Factor and the Fire Factor must be carefully appliecL Los Angeles District U.S. ARMY CORPS OF ENGINEERS Prepared by EIden Gatwo0d, John Pedersen, and Kerry Casey Hydrology and Hydraulics Branch CESPL-ED-HH 911 Wilshire BIvd., Suite 1260 Los Angeles, CA 90017-3401 (213)-452-3547 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD TABLE OF CONTENTS Section Title Page 1. INTRODUCTION, OBJECTIVE, BACKGROUND, AND LIMITATIONS ......... -1- 1.1. Introduction ........................................................ - 1 - 1.2. Objective .......................................................... -1- 1.3. Background ........................................................ -3- 1.4. Limitations ........................................................ -4- 1.4.1. Geographic Location ......................................... -4- 1.4.2. DrainaRe Area Constraints ..................................... -4- 1.4.3. Topographic Constraints ...................................... -4- 1.4.4. Frequency Constraints ........................................ -4- 1.4.5. Input Constraints ............................................ -4- 2. METHOD OF DATA ANALYSIS ............................................ -5- 2.1. Multiple Linear Regression Analysis .................................... -5- 2.2. Logarithmic Transformation of Variables ................................ -5- 2.3. Selection of Regression Package ....................................... -6- 3. EVALUATION AND SELECTION OF VARIABLES FOR ANALYSIS ............ -7- 3.1. Hyctrologic Variables ................................................ -7- 3.1.1. Precipitation ................................................ -7- 3.1.2. Runoff .................................................... -9- 3.1.3. Physio~ranhic Variables ...................................... -9- 3.1.4. Drainage Area .............................................. -9- 3.1.5. Total Stream Length ......................................... -9- 3.1.6. Drainage Density ........................................... -10- 3.1.7. Mean Bifurcation Ratio ...................................... -10- 3.1.8. Hvpsometric-Analysis Index .................................. -10- 3.1.9. Elongation Ratio ........................................... -10- 3.1.10. Relief Ratio .............................................. -10- 3.1.11. Transport Efficiency Factor .................................. - 11 - 3.1.12. Mean Channel Gradient ..................................... -11- 4. DATA SELECTION ...................................................... -11- 4.1. Data Collection ..................... ' ............................... -11- 4.2. Data Evaluation And Selection ........................................ -11- 5. DATA ANALYSIS ........................................................ -13- iii TABLE OF CONTENTS Section Title Page 5.1. Preliminary Regression Analysis ...................................... - 13- 5.2. Development of Fire Factors ......................................... - 14- 5.3. Development of The Predictive Equations ............................... - 15- 5.3.1. Equation 1 ................................................ -15- 5.3.2. Equation 2 ................................................ -16- 5.3.3. Equation 3 ................................................ -16- 5.3.4. Equation 4 ................................................ -16- 5.3.5. Equation 5 ................................................ -16- 5.4. Development and Use of the Adjustment-Transposition (A-T) Factor ......... -19- 5.5. Measures of Confidence ............................................. - 19- 6. COINCIDENT FREQUENCY ANALYSIS ................................... -20- 6.1. Introduction ....................................................... -20- 6.2. Theory ........................................................... -20- 6.3. Data Requirements ................................................. -21 - 6.3.1. Years-Since-100% Wildfire Frequency Relationship ............... -22- 6.3.2. Discharge Frequency (or Precipitation Frequency) Relationship ...... -23- 6.3.3. Debris Response Relationships for each Years-Since-100% Wildfire Occurrence ............................................... -24- 6.3.4. Response Frequency Parameter (Evaluation) Values ............... -25- 6.4. Example Calculation ................................................ -25- 6.5. Program Output .................................................... -29- 7. SUMMARY, CONCLUSIONS, AND LIMITATIONS .......................... -29- 8. REFERENCES ........................................................... -33- TABLE OF CONTENTS (cont.) LIST OF APPENDIXES Appendix Ti~e Page Appendix A. How to Use Fire Factors and Determine the Years-since-100% Wildfire Frequency Relationships Introduction .......................................................... A-1 Debris Yield for Given Flood Event for Specific Fire Condition ................. A-2 Example of Fire Factor Calculations - for Partial Bums ........................ A-5 Debris Yield Frequency Relationship Based on Total Probabilities of 100% Wildfire and Flooding (CFA) ...................................... A-9 Appendix B. How to Determine Adjustment-Transposition (A-T) Factors Introduction .......................................................... B-1 Technique 1 - Sediment/Debris Record for Subject Watershed Con~jns Single Event Debris Yield Values ................................... B-2 Technique 2 - Sediment/Debris Record for Subject Watershed Contains Periodic Survey Results Only ...................................... B-2 Technique 3 - No Sedimen~Debris Record Available for Subject Watershed. Nearby Watersheds Have Periodic Survey Results ...................... B-4 Teeb. xtique 4 - No Sedimentf Debris Record for Subject Watershed or Nearby Watersheds ............................................ B-9 Appendix C. How to Use the Coincident-Frequency Analysis (CFA) Computer Program Introduction .......................................................... C-1 Procedure for Se~ng up a CFA Input File .................................. C-3 Coincident Frequency Analysis User's Manual ............................... C-5 TABLE OF CONTENTS (cont.) LIST OF APPENDIXES Appendix Title Page Appendix D. Example Applications Example I: Application of Equation 1. Expected Debris Yield from a Small Watershed for a Specified Precipitation Event ................... D-1 Example 2: Application of Equation 3. Expected Debris Yield from an Intermediate-sized Watershed for a Specified Flood Event ............. D-4 Example 3: Application of Equation 4 and Coincident Frequency Analysis. Expected Debris Yield from a Larger Watershed with an A-T Factor Other than 1.0 ......................................... D-7 Part 3a. Application of A-T Factor Technique 3 to Santa Paula Creek Watershed ................................ D-7 Part 3b. Application of A-T Factor Technique 4 to Santa Paula Creek Watershed ................................ D-7 Part 3c. Determination of Frequency Debris Yield for Santa Paula Creek Watershed Using Coincident Frequency Analysis ................ D-12 vi TABLE OF CONTENTS (cont.) LIST OF TABLES Table Title Page 1. Simple Correlation Coefficients for Meteorologic and Physiographic Parameters ......... 36 2. Statistical Comparison of Southern California Debris/Sediment Yield Estimation Methods . 37 3. Statistical Summary ......................................................... 38 4. Example of Debris Apportionment with Respect to Multiple Events ................... 39 A-1. Example of Fire Factor Histop/ ............................................. A-3 A-2. Fire Factor Frequency Chart .............................................. A-11 A-3. Example of Fire Factor Determination for Years-since-100% Wildfire ............. A-14 B-I. Adjustment-Transposition Factor Table ...................................... B-7 D-I. Adjustment-Transposition Factor Table (Same as Table B-l) .................... D-11 D-2. Years-since-100% Wildfire Frequency Relationship ........................... D-13 D-3. Discharge Frequency Relationship ......................................... D-15 D-4. Adjusted Debris Yields .................................................. D-16 D-5. Input File for Test No. 1 - Using Santa Paula Creek Data ........................ D-17 D-6. Output File for Test No. 1 - Using Santa Paula Creek Data ...................... D-19 vii Table of Contents (Cont.) List of Figures Figure Title Page 1. Principle Area ofApplication .................................................. 2 2. Fire Factor Curve for Watersheds fi'om 0.1 to 3.0 mi2 in Area ........................ 17 3. Fire Factor Curves for Watersheds from 3.0 to 200 mi2 in Area ....................... 18 4. Debris Frequency Results - Santa Anita Dam ..................................... 30 5. Debris Frequency Results - San Dimas Dam ...................................... 31 A-1. Fire Factor Curve for Watersheds ~'om 0.1 to 3.0 mP in Area (Same as Fig. 2) ...................................................... A-7 A-2. Fire Factor Curves for Watersheds from 3.0 to 200 mi~ in Area (Same as Fig. 3) ....................................................... A-8 A-3. Fire Duration Curve for Santa Paula Creek Watershed .......................... A-13 A-4. Generalized Fire Duration Curves .......................................... A-15 B-I. AASY/AAP Ratios for Drainage Areas from 0 to 200 mP ........................ B-5 B-2. AASY/AAP Ratios for Drainage Areas from 0 to 200 mF with Local Area Curve ..... B-6 D-I. Example Application 1 - Bailey Canyon Debris Basin, Sierra Madre, Ca. - Drainage Area = 384 Acres .............................................. D-2 D-2. Example Application 2 - Santa Anita Dam, Sierra Madre, Ca. - Drainage Area = 10.8 mP ................................................ D-5 D-3. Example Application 3 - Santa Paula Creek, Santa Paula, Ca. - Drainage Area = 42.9 mi2 ................................................ D-8 D-4. AASY/AAP Ratios for Drainage Areas from 0 to 200 mi2 with Locai Area Curve (Same as Fig. B-2) ..................................................... D-9 D-5. Discharge Frequency Curve for Santa Paula Creek ............................. D-14 viii LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD 1. INTRODUCTION, OBJECTIVE, BACKGROUND, AND LIMITATIONS. 1.1. Introduction. In Southem California, increasing population pressure has resulted in development on alluvial fans and floodplains, historically areas of considerable erosion and aggradation. The estimation of debris yield from an erosive upland watershed, resulting from the occurrence of a single large storm event, is of great importance in the design and maintenance of debris basins and reservoirs protecting these areas. "Total debris yield' is the total debris outflow (silt, sand, clay, gravel, boulders, and organic materials) from a watershed (or drainage basin) measurable at a specified concentration point for a specified flood event. "Debris yielcP', as determined by the procedure discussed in this report, is the quantity of debris actually caught by a debris-catching structure. Thus, it is the quantity used to size a debris-catching structure. "Debris production" is the gross erosion within a watershed. The entire debris production may not necessarily reach the concentration point due to the occurrence of intermediate storage within the watershed, resulting from a lack of transporting capacity of the conveyance system. The ratio between debris yield and debris production, called the "delivery ratio", is usually expressed as a percentage and can be estimated if one is knowledgeable about the soils, climate, topography, and geomorphic characteristics of the watershed. For very small watersheds, debris yield and production may be equivalent (i.e., the delivery ratio may be unity). Delivery ratio decreases with increasing drainage area size. Since measured debris volume ("yield") records have been used in developing the predictive equations presented herein, debris quantities predicted by these equations will be referred to as debris "yields" and represent the amount of debris for which a debris-catching structure should be sized. The extent, recency, and frequency of forest and brush fires (wildfire) directly affects the amount ofrunoff and debris yield from a watershed. Since the occurrence of flood and wildfire events are independent processes, coincident-frequency analysis depicting the relationship between fire frequency and the frequency of flood events is a viable approach to determine the probabilities of occurrence of debris yield events of various magnitudes. 1.2. Objective. The primary objective of this study is to develop a method to estimate unit debris yield values for "n-year" flood events for the design and analysis of debris-catching structures in coastal S outhem Califomia watersheds, considering the coincident frequency of wildfire and flood magnitude. The principle area of application is shown on Figure 1. Such structures are normally sized to intercept debris from a single large flood event. Flood history in Southern Califomia clearly demonstrates the debris yield ha-ard as one associated with singular storm events. Normal maintenance practice is to excavate immediately following a major flood event to regain storage Los Angeles District Debris Method November 5, 1998 -1- San Luls Oblspo Santa larbara ,Bakers field STUDY AREA LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD · Palmdale Pacific Ocean The study area extends from the Coastal / Desert D~aJnege Divide to the Pacific Coast ~8n Diego~ o to 2o ao4o so Miles Mexico Figure 1. Principle Area of Application capacity before subsequent storms occur. Such maintenance practice is essential toward keeping conslruction cost down to affordable levels and toward minimizing environmental effects associated with structure size. The project owner's ability to implement such timely maintenance should always be considered when determining storage requirements in the design process. Los Angeles District Debris Method November 5, 1995 1.3. Background. The necessity for a single-event approach to debris yield versus a long-term approach is explained in part by examination of daily suspended sediment discharge measurements taken by the U.S. Geological Survey (U SGS) in selected coastal S outhem California watersheds (Ref. 8.25). It is apparent that the bulk of debris yielded by watersheds in Southern California results from a small number of discrete events. Records for San Diego Creek in Orange County, California indicate that, for the 1978-79 water year, over 99% of the volume of suspended sediment was yielded by the watershed during less than 8% of the time. Further examination indicated that over 50% of the suspended sediment yielded by the watershed during this water year resulted from a single two day event. Records from the Santa Clara River in Ventura County, California for the same water year indicate that over 60% of the suspended sediment yielded by the watershed during the year resulted from a single two day event. During wetter years, watersheds in Southem Caiifomia tend to yield an even greater proportion of their total debris load during short-term storm events. Records from San Diego Creek for the wet 1979-80 season indicate that over 99% of the annual volume of suspended sediment was yielded by the watershed during less than 4% of the time. In addition, over 80% of the annual volume of suspended sediment resulted from a single storm event. Analysis of debris yield records indicated that the debris yielded by smaller watersheds during short-duration events accounts for an even larger proportion of the total than was apparent in larger watersheds. Suspended sediment records do not account for the bedload fraction of the total load, or the sediment and debris which moves along the streambed by traction and saltation. This portion of the total debris yield varies considerably with the magnitude of a given flood event, but commonly ranges from 5% to over 50% of the total debris volume, depending on the nature of debris movement. Since bedload requires larger amounts of flow to initiate movement, and it is clear that even the bulk of the more easily-entrained suspended load tends to result from a small number of larger events, the single- event approach is a necessity for the accurate prediction of debris yield from floods impacting coastal Southem Califomia watersheds. In 1963, Mr. Fred Taturn of the Los Angeles District of the Corps of Engineers introduced a new method for estimating debris storage requirements for debris basins. In the ensuing 23 years, numerous debris basins have been planned, designed, and constructed using the Tatum method. However, during that same period, several major floods have occurred, which provided a considerable expansion in the debris data base. This study seeks to utilize the new data to update traditional hydrologic procedures and design concepts. As more data accumulates in future years, updating of the current Method is envisioned. To this end, all agencies with a stake in the control of debris are encouraged to actively collect useful data for the enhancement of future designs. This report presents a scientific, application-oriented Coincident-Frequency Analysis approach to assigning a frequency relationship to unit debris yield based on the total probability of wildfire and flood. Equations were developed to estimate unit debris yield from coastal Southern California watersheds on an single-event basis. The estimation method is based on multiple linear regression between measured unit debris yield and a set of physiographic, hydrologic, and/or meteorologic parameters found to influence the process of debris yield from these watersheds. Past experience has · Los Angeles District Debris Method November 5, 1998 demonstrated that a single universal equation, regardless of complexity, does not adequately describe the complex nature of the process of debris yield from coastal Southem California watersheds. In this study, multiple regression analyses indicated that unit debris yield is most highly correlated with the unit peak rimoff rote from a watershed (or the maximum 1 -hour precipitation depth), the relief of the drainage basin, the contributing area, the fire history, and geomorphologic characteristics of the watershed. The highest correlation was obtained with a log-transformation (base 10) of all quantifiable variables used in the final equations. 1.4. Limitations. Limitations on the use of the Method include the following: 1.4.1. Geoaraphic Location. The Method is intended to be used for the estimation of debris yield mainly from coastal-draining, mountainous, Southem California watersheds (see Figure 1 ). Outside of the area from which the data were taken (San Gabriel Mountains), application of the Adjustment/Transposition (A-T) Factor must be carefully applied. Use of the Method in areas outside those delineated in Figure 1 should be done with caution. Conditions different from those of the San Gabriel Mountains needs to be addressed. Because vegetation types and density are far different in desert-draining than coastal-draining watersheds, the effects of wildfire will not be the same. Therefore, the Fire Factor (FF) variable, which accounts for the impact of wildfire on debris yield from these watersheds, must also be carefully applied. 1.4.2. Drainaffe Area Constraints. The Method was developed for use in watersheds of 0.1 to 200 mi2 in area. Use of the Method in watersheds smaller or larger than this must be done with caution. Because the data from which the regression equations were developed fail entirely within this range, and calibration was not performed on watersheds outside of this range, use of the Method should involve careful comparison with nearby watersheds for which debris data are available. 1.4.3. Topouraphic Constraints. The Method is intended for watersheds with a high proportion of their total area in steep, mountainous terrain. It is not intended for use in low-sloped valley areas, watersheds with a significant portion of their total area in residential or commercial development, or in areas with a large portion under agricultural usage. Use of the Method for watersheds with a high percentage of alluvial fan or valley fill areas (primarily depositional environments) may result in debris estimates higher than would actually be yielded by the watershed. 1.4.4. Frequenev Constraints. The Method is intended to estimate debris yield from runoffor precipitation events of greater than 5 -year recurrence. Estimates below this generally display large errors, and the Coincident-Frequency Analysis (CFA) program may even yield negative estimates for these events. 1.4.5. Input Constraints. The Method should not be used to estimate debris yield resulting from runoff events of less than 3 cubic feet per second per square mile (ft3/s/mi2), or for events during which the maximum 1-hour precipitation is less than 0.3 inches per hour (in/hr). Because the equations were derived using data from saturated watersheds, best results will be Los Angeles Dislrict Debris Mcffiod November 5, 1998 -4- obtained for watersheds which have undergone significant antecedent rainfall. In most eases, this antecedent rainfall condition will be satisfied when the watershed has received at least 2 inches of prior rainfall in approximately 48 hours. When the Method is applied to watersheds which have not undergone sufficient antecedent rainfall, predicted debris yield may be considerably greater than that actually yielded by the watershed. 2. METHOD OF DATA ANALYSIS. 2.1. Multiple Linear Regression Analysis. Multiple linear regression analysis was selected as the method by which unit debris yield would be estimated in this study for several reasons. It has proven to be relatively rapid and accurate in prior studies (e.g., Refs. 8.1, 8.2, 8.7, 8.12 and 8.21). It also provides the investigator with a certain degree of flexibility and allows extrapolation of results to watersheds possessing similar geology, climate, and vegetation, within certain broad limitations. Multiple linear regression yields a mathematical equation cotrelatively relating a dependent variable (in this case, unit debris yield in cubic yards per square mile - yd3/mi2) to a group of independent variables chosen for their value in explaining variation in the dependent variable (Ref. 8.27). Twenty-four watershed variables used in prior studies were initially analyzed to determine their importance in the explanation of variation in debris yield by a simple graphical correlation between measured debris yield (calculated per unit area) and the independent variable chosen for the appropriate watershed. Correlation coefficients yielded by simple correlation of debris yield and the appropriate parameters are presented in Table 1. On the basis of this initial selection process, 19 of the 24 variables were selected for regression analysis. These variables are discussed in Section 3. 2.2. Logarithmic Transformation of Variables. In prior regression analyses (Refs. 8.12 and 8.21 ), logarithmic transformation (base 10) of all variables was carded out, for the following reasons: 1) a simple linear relationship is obtained among the transformed variables; 2) the distributions of the transformed variables resemble a normal distribution more closely than do those ofuntransformed variables; and 3) the variation of the points along the regression line is more homogeneous (i.e., variance is stabilized). Therefore, in this study, all variables (with the exception of the non-dimensional Fire Factor) were log transformed. A log-transformation of variables in hydrologic studies may introduce a bias in itself if the record includes a predominance of small events and a relatively small number of large events, since the use offeast squares of transformed variables in a multiple regression technique gives greater weight to more commonly occurring smaller values than to larger values (Ref. 8.27). In this analysis, however, debris yield measurements tended to encompass a broad range of values. When Los Angeles District Debris Method November 5, 1998 -5- log transformed, the distribution had little skew, and in fact, very closely approached a normal distribution. In addition, debris yield records were chosen not only for their applicability to the study, but also on the basis of their representation of a broad range of hydrologic conditions and physical characteristics. In this study, the group of variables which explained the greatest amount of variance in unit debris yield by examination of statistical indices (maximization of the coefficient of multiple determination adjusted for degrees of freedom - ~2, and significance at the 95% confidence level) was selected for use in the final regression equations. Selection by statistical indices ensures that the sum of squared residuals of the dependent viable is minimized (Ref. 8.10) and consequently, the regression equations chosen are the best possible, considering the range and quality of the available dam. A comparison of the study results with those of other methods developed for use in this area is presented in Table 2. In addition, a statistical summary for two of the equations presented in this study is shown in Table 3. Intercorrelation was minimized by successive substitution of similar variables to detenv. ine that which produced the highest degree of quantifiable contribution Some variables expected to contribute significantly to unit debris yield explanation (such as the Hypsometric-Analysis Index, Elongation Ratio, and Mean Channel Gradient) were found to possess less correlation with measured unit debris yield than more simple measures of watershed topography such as drainage area and relief ratio (see Table 1). This was determined to be either indicative of the homogeneity of certain characteristics in the studied watersheds, or that the variable was not an adequate indicator of the characteristic that it was intended to describe. This is not to imply that these variables would not appear highly significant in other studies on this topic. 2.3. Selection of Regression Package. A multiple linear regression analysis computer program, the "Statistical Package for the Social Sciences" (SPSS, Ref. 8.14), was chosen for this analysis. This program yields a large number of useful statistics and has the added benefit of being relatively simple to use. In the selected stepwise regression routine, independent variables are progressively added by the program in order of decreasing significance. Variables determined to be significant in earlier stages of the computations may be deleted upon inU'oduction of more significant variables at a later stage. This process allows for determination of the effect of an independent variable on the dependent variable as well as the change in the relative value of this variable upon the inclusion of additional variables. In addition to the regression equation(s) derived by the SPSS package, the following statistics were also calculated: 1) The coefficient of multiple determination (adjusted R2 or R2), which represents the variation in the dependent variable accounted for by the regression equation, adjusted for degrees of freedom. An I~2 value represents the overall test for "goodness of fit" of the regression equation, with a value of 1.0 representing perfect correlation between estimated and observed, and a value of zero representing no correlation. R2 is the tinadjusted value. Los Angeles District Debris Method November 5, 1998 -6- 2) A simple correlation coefficient (B), which is the square root of the coefficient of determination for each independent variable, or the proportion of the. variance of the dependent variable explained by the independent variable. 3) Multiple correlation coefficient (R), which is the square root of the unadjusted coefficient of determination (R2). 4) The change in the coefficient of multiple determination (AI~2) that occurs upon inclusion of an additional independent variable. 5) The "F" ratios, which are used in tests of significance for the individual coefficients. The square of the "F" ratio, with an appropriate sign, is the "T" statistic, commonly used to evaluate the significance of each variable at a desired level of confidence. Simply stated, the higher the "F" ratio, the more likely that the variable chosen for analysis is appropriate. 6) A plot of residuals which indicate the difference between the estimate yielded by the regression equation and the observed value. In addition, the SPSS package includes several options that may be chosen to enhance the usefulness of a regression equation. An important option chosen for use in this analysis enabled the regression equations to be forced through the origin. This simulates the process in which no debris yield will result (nor will be predicted) when no precipitation or runoff occurs within the basin (although considerable debris movement in the form of "dry ravel" or "gravity movement" may supply sediment to the channel system within a watershed). Furthermore, regression equations which were not forced through the origin had significantly lower K2 values and higher standard errors associated with the coeffmients. 3. EVALUATION AND SELECTION OF VARIABLES FOR ANALYSIS. 3.1. Hydrologic Variables. 3.1.1. Precipitation. Recorded data indicate that there exists a great deal of variability in unit debris yield over a narrow range of rainfall conditions. Because comprehensive raingage networks do not exist within most of the watersheds where historic debris yields were measured, a considerable amount of variation in rainfail behavior exists which was not accounted for in the recorded data. Factors not recognized include local variations in the volume and intensity of rainfall due to orographic and other effects, geographic aspect of the drainage basin, wind circulation effects, and other measured parameters. A large number of precipitation variables were collected and evaluated to determine their influence on unit debris yield. Isohyetal maps were then prepared or obtained from local flood control agencies for each storm period for which debris yield measurements were available. Los Angeles District Debris Method November 5, 1998 Precipitation variables pertaining to the storm ~vent which caused debris inflow (as well as mean annual rainfall) included the following: 1) Maximum 15-minute rainfall 2) Maximum 30-minute rainfall 3) Maximum 1 -hour rainfall 4) Maximum 3-hour rainfall 5) Maximum 6-hour rainfall 6) Maximum 24-hour rainfall 7) Maximum 72-hour rainfall Since it was noted that antecedent soil conditions are highly important in the debris yield process, rainfall values were determined for the period following partial saturation of the soil mantie. Evaluation of the data indicated that antecedent rainfall of about two inches in a period of about two days was necessary in order for significant debris yield to occur. Thus, antecedent rainfall of approximately two inches within an approximately 48 -hour period was used to designate the initiation of the rainfall period used in the regression analysis. Precipitation values were determined by reduction of available data from several sources, such as county raingage records, and isohyetal maps prepared by local agencies, NOAA, and the Los Angeles District CLAD) of the Corps of Engineers. Debris yield measurements from watersheds in which wildfire had not occurred for at least ten years (to eliminate the possible effects of wildfire) were regressed against each of the precipitation variables calculated for the storm event in question. Correlation of unit debris yield with any precipitation variable was poor for watersheds greater than about 3 mi2 in area, although short-term maximum rainfall proved to be significant in the analysis of smaller watersheds. This is probably due to the nature of prevailing storm systems that impact the Southern California urea. Debris producing storms tend to be highly variable in intensity over large areas, making runoff a better indicator variable than short-term precipitation when dealing with the debris yield from large watersheds. The choice of 3 ira2 as the dividing line between Equations 1 and 2, and between the use of precipitation or runoff as the hydrologic variable, was based on several factors. Runoff data is generally unavailable for watersheds under 3 mi2 in area, and the data that was available displayed poor correlation with measured unit debris yield. Watersheds larger than this were more likely to be controlled by reservoirs, which also commonly possessed inflow records for the debris yield event of interest. Peak unit inflow for these larger watershids exhibited good correlation with measured unit debris yield. Precipitation over these larger watersheds exhibited greater variation areally than that falling on smaller watersheds, which resulted in poor correlation with unit debris yield when compared to unit peak runoff. In a study by Ferrell et al (Ref. 8.7), the use of a short-term rainfall intensity variable had not proven to be as valuable an indicator of debris yield as 24-hour or longer precipitation variables. Long-term precipitation variables, however, do not account for the intensity of a given storm. Scott Los Angeles Dis~ict Debris Mcthod November 5, 1998 and Williams (Ref. 8.21 ) developed a factor that included both short-term intensity in conj unction with long-term precipitation. In the current study, the inclusion of short-term intensity in conjunction with long-term precipitation failed to improve I~2 and only increased the error of the estimates. Maximum 1 -hour precipitation was adopted for use in the regression equation dealing with drainage areas of under 3 mi2 because of its high correlation with measured debris yield (see Table 2). 3.1.2. Runoff. The inclusion of a runoff factor in the analysis (where this was available) proved to be a good predictor of debris yield from larger watersheds. Values of maximum 24-hour inflow, maximum 72-hour inflow, (both expressed in acre-feet per square mile - ac-ft/mi2), and peak inflow (in ft3/s/mi2) were obtained from local flood control agencies and LAD for reservoirs and selected debris basins. Results indicated that unit peak runoffvalues from small watersheds were poor indicators of unit debris yield. For watersheds over 3 mi2 in area, however, unit peak inflow (fP/s/mi~) proved to be highly significant in all phases of the analysis. The lack of correlation in small watersheds is attributed to errors in the estimation of runoff rates and the highly sporadic nature of debris movement in small watersheds, rather than an actual lack of correlation between debris yield and runoff. Unit peak inflow was adopted for use in the regression equations dealing with drainage areas of 3.0 to 200 mi2 because of its high correlation with measured unit debris yield. 3.1.3. Physiographic Variables. Selection of physiographic variables to be used in the analysis depended on several factors. First, the variable must have demonstrated some physical significance in other studies. Second, it must also be easily calculated with relative accuracy using readily-obtainable maps or data. Third, the variable must be relatively inexpensive to obtain and evaluate. Fourth, the variable must have exhibited a high degree of correlation with measured debris yield. Although several variables used in other research have proven to be of considerable value in the determination of debris yield (for example, Anderson's "Surface Aggregation Ratio", Ref. 8.1 ), collection of the data necessary for the quantification of such variables was determined to be beyond the scope of this analysis. Variables selected by the aforementioned criteria for inclusion in the preliminary analysis are discussed below. 3.1.4. Drainage Area. This is defined as the contributing area of the watershed upstream of the chosen debris collection site (measured in both mi2 and ac). Drainage area has been found to possess a high degree of correlation with debris yield in prior studies (Refs. 8.9 and 8.12), as well as in the current analysis. Drainage area was selected for use in the set of final regression equations. 3.1.5. Total Stream Length. (L1, L2). This is the total length of all streams in the watershed in miles. This variable was calculated for the extent of streams indicated by a blue line representing perennial or ephemeral flow on a standard USGS 1:24,000 scale topographic map Los Angcles Dislxict Debris Method November 5, 1998 -9- (method 1 for L1). Method 2 (L2) used the blue lines as well as extension of the lines into areas on the map where a series of V-shaped contours indicate a stream or gully (as described by Morisawa, Ref. 8.13). Extension of streams by the latter technique was felt to better indicate the tree extent of the stream network, although this refinement did not prove to be statistically significant. Neither L1 or L2 were used in the final regression equations. 3.1.6. Drainage Density. (DD1, DD2): The ratio of the sum of all stream lengths (in nil) to drainage area (in mi2). This factor was also calculated by both of the methods indicated above (using L1 and L2) to establish DD1 and DD2, respectively. It has been stated that stream density appears to reach a maximum in areas of high debris yield (i.e., badlands topography, see Ref. 8.22), and as such it was felt that this factor should be included in the analysis. These variables, however, did not prove to be as statistically significant as other variables and were not used in the final regression equations. 3.1.7. Mean Bifureation Ratio. (BR): The mean of the ratios of the number of streams of each order to the number of streams of the next order such that all first order streams are summed and divided by the number of second order streams, second order streams are summed and divided by the number of third order stream, etc. The mean bifurcation ratio is the average of all of these ratios. Stream order is defined as follows: the smallest stream charreels in a drainage basin are "first order". When two first order streams join, they form a "second order" stream. When two second order stxeams join, they form a "third order" slxeam, and so on. For example, if a watershed has 24 first order streams, 12 second order streams, 4 third order streams, and 1 fourth order stream, the Mean Bifarcation Ratio is 3.0 to 1 ([24/12 + 12/4 + 4/1]/3 = 3). This factor was also calculated by both methods discussed in Section 3.2.2 above. However, it did not prove to be as statistically significant as other variables and was not included in the final regression equations. 3.1.8. Hypsometric-Analvsis Index. CHI): This variable represents the relative height at which a watershed may be divided into two equal Found surface areas (Refs. 8.11 and 8.23). For example, a watershed with a maximum elevation of 3000 feet, and a minimum elevation of 1000 feet would have a Hypsomelric-Analysis Index of 0. 50 if the area of the watershed was equally divided at the 2000 foot contour line. The watershed would have a Hypsometric-Analysis Index of 0.75 if the area of the watershed was equally divided at the 2500 foot contour line. Although the HI has proven to be significant in other studies (Ref. 8.23), it did not prove to be as statistically significant in this study and was not included in the set of final regression equations. 3.1.9. Elongation Ratio. (ER): This ratio is produced by dividing the diameter of a circle of area equal to the area of the watershed by the maximum watershed length as measured along the longest stream from the concentration point to the watershed boundary. Scott and Williams found this variable to be highly significant in an analysis of erosion rates in the Western Transverse Ranges of Southern California (Ref. 8.21); however, it was not determined to be statistically significant in the current study and was not included in the final regression equations. 3.1.10. RelidRatio. (RR): This factor (akin to the slope of a watershed) is determined by calculating the difference in elevation (feet) between the highest point in the watershed (measured Los Angeles District Debris Method November 5, 1998 at the end of the longest stream) and the lowest point (at the debris collection site) and dividing the difference between these two by the maximum stream length (in miles) as measured along the longest stream (Refs. 8.7 and 8.17). This variable proved to be highly significant in all phases of the analysis and was included in the final regression equations. 3.1.11. Transport Efficiency Factor. (T1): This variable is the product of the mean bifurcation ratio and total channel length (both calculated by method 1 ). Lustig (Ref. 8.12) found this factor to be highly significant in a regression equation calculated for use in Southern California. It did not prove to be as statistically significant in this analysis as other variables and was not included in the final regression equations. 3.1.12. Mean Channel Gradient. (S): The mean gradient of the main stream (measured at 5% intervals along the main channel) between highest and lowest points in the watershed (as defined in See. 3.2.7) in feet per mile. This variable did not prove to be as significant as other variables and was not included in the final regression equations. 4. DATA SELECTION. 4.1. Data Collection. Debris yield data selected for analysis included debris basin and reservoir survey data obtained from the Los Angeles County Department of Public Works (LACDPW, formerly known as the Los Angeles County Flood Control District), LAD, the Ventura County Flood Control District (VCFCD), the San Bemardino County Flood Control and Water Conservation District (SBCFCWCD), the Santa Barbara County Flood Control District (SBCFCD), and USGS. All known sources of applicable debris yield data in coastal Southern California were contacted in order to collect the largest possible number of observations for analysis. All agencies which were contacted responded, although in many eases, short-term debris and sediment yield measurements are not available. Debris volume measurements are taken by agencies at intervals dependent on the noticeable reduction in reservoir or debris basin capacity, and as such, are taken more frequently following storm periods which yield large amounts of debris. In some cases, it is a matter of years between debris surveys, and in other cases, as little as a few weeks. There is a great need for short-term debris yield measurements, especially from less erosive areas, such as portions of Orange, San Diego, and Riverside Counties. These data are vitally needed to calibrate the Method accurately for use in these poorly-documented areas. 4.2. Data Evaluation And Selection. The primary goal of this study was to develop a method to estimate unit debris yield on a storm-event basis, rather than as an average annual volume. Therefore, each surveyed debris volume had to be related to only the storm period(s) that caused the debris inflow to the structure. For periods in which only a single large storm event occurred, apportionment of debris volume to a single peak flow or precipitation value was straightforward. For periods in which multiple storm events occurred, however, apportionment of debris volume to the storm events responsible was more complicated. Los Angeles Dislriet Debris Method November 5, 1998 From a simple linear regression of single storm events, it was determined that debris yield per unit area is approximately proportional to the peak flow per unit area or precipitation depth for the watersheds examined in this study. For multiple event storm periods then, debris volumes were divided up on the basis of being proportional to the magnitude of precipitation or peak flow per unit area which occurred during the event in question (Table 4). This simple division of debris volume may not always be accurate, such as when a wildfire occurs in the period between surveys. However, the majority of survey periods were unaffected by the complicating influence of wildfire. For periods during which wildtim impacted the watershed of interest, apportionment of debris volume was performed on the basis of comparison with similarly-sized watersheds for which single storm event debris yields following wildfire were available. Because the debris yield from a watershed is partly a function of the debris in storage within the floodplain (where present), streams, and hillslope storage sites, unit debris yield attributable to certain storm events (Feb. 1940, Feb. 1969, Mar. 1978) which closely followed major events (Mar. 1938, Jan. 1969, Feb. 1978) was deleted from the analysis due to generally low volumes. Cases in which debris volumes were uncharacteristically low resulted from the "flushing" of debris storage sites during earlier large events. This case is typical of situations in which a watershed has the vast majority of debris in storage "flushed out" during a large event, leaving little debris available for transport during later events, regardless of storm intensity or runoffmagnitude. Debris yield estimates for these types of "follow-up" events consistently yielded the largest errors in prediction of any set of observations included in the analysis. Deletion of these observations was considered to be appropriate because of the intention to predict the debris yielded by watersheds during discrete single events of "n-year" recurrence for design purposes, not follow-up events which may yield considerably lower total debris volumes than is usual. The highest recorded debris yields in Southern California have historically been the result of large storms inapacting recen~y burned small watersheds (0.1 to 3.0 mP) which have not experienced similar large floods or wildtim for some time. Field investigations indicate that during certain storms, debris yielded by the flushing of canyon bottom and channel storage sites may have exceeded that yielded by all other sources of erosion. A small number of storage sites in extremely small watersheds may result in a moderate debris yield per unit area over a long period of time, or alternatively, a high yield immediately following a wildfire. However, the largest single unit debris yields have been recorded from watersheds which yielded little debris for an extended period of time as sediment moved into storage, followed by a large event (or events) which flushed tremendous amounts of debris from these storage sites. This may be illustrated by examining the records of Auburn and Bailey Debris Basins (LACDPW records). Both watersheds suffered 100% extent wildfires in late 1978. Beginning three months later, in January 1979, several small storms impacted these watersheds. Debris yields were slightly to considerably lower than might be expected from a flood event closely following a wildfire. This is especially true in the case of Bailey Canyon. It is probable that a lack of debris actually measured at the debris basin site was the result of debris going into storage in the channel system upstream. Hence, during the storm of Februm3r-March 1980, precipitation resulted in unit debris yields higher than that predicted by the regression equation. Because of the high degree of soil saturation, locally high rainfall intensities, and the availability of stored debris within the upstream storage sites, these watersheds flushed out much of the debris considered to have gone into Los Angeles Disulct Debris Method November 5, 1998 -12- storage during the period of February 1976 to January 1980. This type of behavior may be expected in some Southem Califomia watersheds, which may typically exhibit highly sporadic debris movement. However, this type of behavior would not be predicted by the regression equations, which were developed for a typical (average) design debris-producing event. Additional deletions occurred in cases of conflicting information from multiple sources, and in the case of missing precipitation or peak flow values. An additional difficulty encountered in the data selection occurred in the case of debris retention structures located upstream of a site at which debris yields were measured (i.e., two debris basins in one watershed). In these cases, it was not possible to determine the volume of debris which "could have" reached the downstream structure and data from these was excluded from the analysis. An example of this is the case of Morris Reservoir, located a short distance downstream of San Gabriel Reservoir in the San Gabriel Mountains of Los Angeles County. Although debris volume data exists for Morris Reservoir, it is unknown exactly how much of the total volume has resulted from flow carried through San Gabriel Reservoir during storm events and whether or not a significant proportion of this volume has resulted from sluicing. For these reasons, watersheds with a large part of their drainage area influenced by upstream controls were excluded from the analysis. 5. DATA ANALYSIS. 5.1. Preliminary Regression Analysis. Preliminary regression analysis provided the means by which to compare different variables, and was instrumental in the decision to break the data into different drainage area groupings. Because of data limitations (see See. 3.1.1.), one equation was designed to be used in watersheds under 3 mF in area for which rimoff data is unavailable. Data for areas larger than 3 mi2 were initially used to calculate a single equation dealing with watersheds of 3 to 200 mF in area. This single equation did not adequately predict unit debris yield from this broad a range of drainage area sizes, and hence, equations were developed for several ranges of drainage area sizes. Data from this preliminary analysis was also used to develop preliminaxy "Fire Factors" (a non-dimensional variable relating wildfire impact to debris yield). In the initial analysis of small watersheds for which runoff data was generally unavailable (less than 3.0 mi2 in area), it was noted that short-term precipitation (less than 1 -hour) intensity did not correlate well with measured debris yield attributable to the storm event (see Table 1). This is probably because of the effects of variation in local intensities, wind, basin aspect, and other factors not accounted for by existing recording devices. Measures of 1-hour precipitation did, however, possess a strong correlation and proved to be significant in all phases of the analysis of small watersheds. This variable was defined as the maximum 1 -hour precipitation during the storm event. In areas such as coastal Southern California, where some degree of soil saturation is necessary to initiate soil movement because of soil binding, precipitation should be measured following an antecedent rainfall of approximately two inches in 48 hours (see Sec. 3.1.1 .). If the Method is to be November 5, 1998 Los Angeles District Debris Method used in desert areas where soil binding is minimal, this constraint may be relaxed. Although 3-hour, 24-hour, and 72-hour precipitation also correlated well with debris yield, maximum 1-hour precipitation yielded the highest correlation. Lower correlations were also obtained between unit debris yield and mean channel gradient, mean bifurcation ratio (method 1), Hypsometric-Analysis Index, the transport efficiency factor, elongation ratio, and drainage density. An initially high correlation between total stream length (especially as measured by method 2), mean bifurcation ratio (method 2), Hypsometric-Analysis Index, and measured unit debris yield proved less significant upon the inclusion of factors such as relief ratio and the size of the drainage area. These parameters are defined in Section 3.2. Despite an expected negative correlation between drainage area and trait debris yield, consistently positive correlations were indicated by statistical analysis. This is probably because of the high degree of intercorrelation between relief ratio and drainage area in the regression analysis. Because relief ratio in smaller watersheds (in this analysis) was consistently higher than that of larger watersheds, drainage area apparently functions as an offset for the differences in unit debris yield unaccotmted for by the relief ratio variable. Given equality in both the hydrologic/meteorologic (Q or P) and Fire Factor (FF) variables, unit debris yield does decline with increasing drainage area because the relief ratio consistently declines at a higher rate than the drainage area increases. Thus, the unit debris yield for large watersheds is less than that of smaller watersheds. This is consistent with the actual data used in the analysis, as well as other research. 5.2. Development of Fire Factors. The occurrence of wildfire plays a significant role in the augmentation of erosion rates from Southern California watersheds (Refs. 8.7, 8.15, 8.16, 8.21, 8.23 and 8.24). Highly ~ammable chaparral species, steep slopes, loose sediments, hydrophobic soil conditions created by the intense heat generated by wildfire, and the aggravating influence of dry offshore "Santa Ana" winds provide Southem California with one of the most volatile fire/erosion complexes in the word. The combination of these factors is evident in the conclusions of Rowe et al (Refs. 8.15 and 8.16), who estimated that a 100% extent wildfire in their study watersheds was responsible for a debris yield 35 times that of the watershed in a "normal" or unbumed state. Wells (Ref. 8.26) has documented an event during which debris yield increased by over 100 times its normal rote from an extremely small (0.02 ac), steep local watershed. Although the increase in debris production is undoubtedly less severe in larger, less steep watersheds which possess greater availability of debris storage sites, this example serves to illustrate the powerful influence that wildfire plays in the erosion of Southern California watersheds. Using the relationship established by Rowe et at., F.E. Tamm (formerly of the Los Angeles District, Corps of Engineers) applied this knowledge to correlate measured debris yield to his computed values by means of a single fire curve. The Tamm curve relates the percentage increase in debris yield attributable to fire to the elapsed time following wildfire occurrence (Ref. 8.23) and was used as the basis for the preliminary Fire Factor curve examined in the current analysis. This curve assumed that watersheds of unequal size and gradient respond (or recover) at the same raie over a Los Angeles District Debris Mcffiod November 5, 1998 -14- period of time in terms of debris yield. This technique, associated with watersheds of small areal extent, acknowledges fire and its associated effects as a major component in a debris yield estimation method. A similar treatment by Ferrell (Ref. 8.7) indicated that debris yield rates following a complete watershed burn approach 20 times the normal rate. Poor correlation with measured debris yield was obtained when percent recovery (as defined by the individual "Fire Factor" curves of Ferrell, Tamm, and Rowe et at.) were used as preliminary Fire Factors in the current analysis. It was especially apparent that recently burned watersheds of greater than 3 mi2 in area exhibit a proportionally smaller increase in unit debris yield when compared to watersheds of smaller areal extent. Thus, two curves were developed, one for watersheds 0. 1 to 3.0 mi2 in area, and another for watersheds larger than 3.0 mi2 in area. The magnitude of increase in debris yield in larger watersheds impacted less than one year after burn was on the order of two to ten times the normal rate (as opposed to 20-30 times the normal rate given by Rowe et al. and Ferrell), when applied to single flood events. Several variations of the Fire Factor curves were tested before arriving at the final Fire Factor relationships. Each trial curve was adjusted in a manner that minimized the residuals (the mount that wasn't explained by the equation), such that the remaining residuals for a given time after burn and drainage area were clearly not attributable to wildfire impact (i.e., presented no clear trend relating to time since burn or extent burned). The final Fire Factor curves are presented in Figures 2 and 3. These curves represent a 100% burn condition. It would be desirable to have a single Fire Factor curve for Equations 1 to 5 (see Sec. 5.3 for Equations). However, because of the fundamental difference in the hydrologic variable in Equation 1 (precipitation) versus the hydrologic variable in Equations 2 to 5 (rimoff), it should not be expected that the curves will be consistent at 3 mF (the interface between Equation 1 and Equation 2). 5.3. Development of The Predictive Equations. The variables selected for use in the final equations were relief ratio (RR), drainage area (A), unit peak flow (Q) or 1 -hour precipitation (P), and the non-dimensional Fire Factor (FF). Each of these variables was determined to be significant at the 95 percent confidence level. 5.3.1. Equation 1. Regression Equation 1 was selected by statistical criteria for use in watersheds from 0. 1 to 3.0 mi2 in area for which peak flow data is not available. Equation 1 takes the form: LOG Dy = 0.65 (LOG P) + 0.62 (LOG RR) + 0.18 (LOG A) + 0.12 (FF) ..... Eq. 1 where: Dy = Unit Debris Yield (yd3/mi~) Los Angeles Distxict Debris Method November 5, 1998 P -- Maximum 1 -Hour Precipitation (inches, taken to two places after the decimal point, times 100) RR -- Relief Ratio (ft/mi) A -- Drainage Area (ac) FF -- Non-Dimensional Fire Factor The coefficient of multiple determination (I~2) for this equation is 0.987. All factors in this equation are significant at the 0.99 level of confidence (see Table 3 for "F" test values). A total of 350 observations from 80 watersheds were used in the fmal development of this equation. 5.3.2. Equation 2. Regression Equation 2 was selected by statistical criteria for use in watersheds of 3 mi2 to 10 mi2 in area for which peak flow data is available. This equation may also be used for drainage areas less than 3 mi= if peak data is available, using Fire Factors determined independently (for example vegetation is such that artburned conditions may be assumed). Do not extrapolate the curves in Figure 3. Equation 2 takes the form: LOG Dy = 0.85 (LOG Q) + 0.53 (LOG RR) + 0.04 (LOG A) + 0.22 (FF) ..... Eq. 2 where: Q = Unit Peak Runoff (ft3/s/mi2); All other factors are as defined above. 5.3.3. Equation 3. Regression Equation 3, selected for use in watersheds of 10 to 25 mi' in area and for which peak flow data is available takes the form: LOG Dy = 0.88 (LOG Q) + 0.48 (LOG RR) + 0.06 (LOG A) + 0.20 (FF) ..... Eq. 3 5.3.4. Equation 4. Regression Equation 4, selected for use in watersheds of 25 to 50 mi2 in area and for which peak flow data is available takes the form: LOG Dy = 0.94 (LOG Q) + 0.32 (LOG RR) + 0.14 (LOG A) + O.17 (FF) ..... Eq. 4 5.3.5. Equation 5. Regression Equation 5, selected for use in watersheds of 50 to 200 mi2 in area and for which peak flow data is available takes the form: LOG Dy = 1.02 (LOG Q) + 0.23 (LOG RR) + 0.16 (LOG A) + 0.13 (FF) ..... Eq. 5 Los Angeles District Debris Method November 5, 1998 -16- ~r Z c~ n.. UJ UO.LOVd ]MId LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD FIRE FACTOR CURVE FOR WATERSHEDS 0.1 TO 3,0 MI2 ARMY ~JOIIP8 OF ENGINEERS LOS ANGELES DISTRICT FIGURE 2 FF=6,00 FOR THIS AREA 15 30 DRAINAGE AREA IN MI 2 40 50 60 80 100 150 200 FIGURE 3 FIRE FACTOR CURVES FOR WATERSHEDS FROM 3.0 TO 200 MI2 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD The coefficients of multiple determination for Equations 2 to 5 were all in excess of 0.99. The RR, Q, and FF variables are significant at the 0.99 level of confidence, while the A variable is significant at the 0.95 level of confidence (see Table 3). A total of 187 observations from 7 watersheds were used in the development of these equations. Equation 2 may be used for watersheds with a drainage area of 0.1 to 3.0 mi2 for which runoffdata exists. If recorded runoffdata is used, care must be used to ensure that the nmoff data is of high quality, and that the adopted peak unit runoff values are not the result of "debris flow" or landslide heightening of the recorded flow. Note that some discontinuity exists between Equations 1 and 2 at the drainage area size juncture. When dealing with borde~ine cases, such as a watershed of 3.0 mi2 in size for which both precipitation and nmoffdata exist, it is advised that debris yield be calculated through the use of both Equations 1 and 2. The higher of the two results should be used. · 5.4. Development and Use of the Adjustment-Transposition (A-T) Factor. The use of regression equations developed from data pertaining to a group of watersheds historieaily demonstrating extremely high unit yields will result in overestimation of debris yield when applied to areas with less volatile erosional activity. Recognition of this limitation, and the importance of several unquantiflable geomorphic and geologic parameters was taken into account by the development of an adjustment and transposition variable (A-T Factor). This factor takes into account the importance ofsurfmial geology, soils, and hillslope and charmel geomorphology. Because there are few debris yield measurements available on an event basis for debris retention structures in low erosion areas, the A-T Factor was developed using readily available average annual sediment yield data. Although this factor is subjective in both development and application, there was no practical aitemative that permitted quanti~cation of these variables. Watersheds of the San Gabriel Range from which the regression equations were developed would use an A-T Factor of 1.0. Watersheds in areas of less debris yield potential than the San Gabriel Mountains, such as the Peninsular Ranges of San Diego and Orange Counties would have A-T Factors less than 1.0. Should a watershed clearly possess a higher debris yield potential than the San Gabriel Mountains, an A-T Factor greater than 1.0 would be used. The calculation of the A-T Factor is further discussed in Appendix B and its use is illustrated in Example 3 of Appendix D. The unit debris yield is calculated using the appropriate equation and then multiplied by the A-T Factor to give the adjusted unit debris yield. The adjusted unit debris yield is then multiplied by the drainage area to determine the debris volume for the watershed. 5.5. Measures of Confidence. The regression equations presented herein give debris yield estimates that should be considered as "expected debris yield" under a given set of conditions. Prediction of debris yield then, should include measures of confidence or associated risk. This is accomplished in this study through the use of the standard deviation (SD) of the estimate. The statistical summary for Equation 1 (see Table 3) gives a standard deviation of 0.465 log units. This indicates that we can be 67% confident that the "true" value is within 0.465 log units (1 SD) above or below the estimate, and we are 95% confident that the "tree" debris yield will fall within 0.93 log units (2 SD) above or below the estimate. Similarly, the summary for Equation 2 (which is very similar to the statistics for Equations. 3-5) indicates that we are 67% confident that the "true" debris Los Angeles Dislxict Debris Mcthod November 5, 1998 yield is within 0.242 log units (1 SD) above or below the estimates and that 95% confident that it is within 0.484 log units (2 SD) above or below the estimate. 6. COINCIDENT FREQUENCY ANALYSIS. 6.1. Introduction. The regression equations developed in this analysis include two determined variables (drainage area and relief ratio) and two estimated variables (discharge or precipitation and Fire Factor). The magnitudes of discharge (or precipitation) and the fire condition are associated with an exceedance probability and because the two are independent of each other, any combination of the two can occur. Therefore, in order to predict the exceedance probability of debris potential of a certain magnitude for any watershed, all possible combinations of wildfire and flooding must be evaluated. This is because more than one combination of wildfire and flooding may result in the same debris yield. This entire range of possibilities is the basis for the total probability theorem (Ref. 8.3, pg. 58). 6.2. Theory. There are several applications of the total probability theorem in hydrologic analysis problems encountered in Corp's studies. The application discussed here has been termed "coincident frequency analysis ". The end product is a debris yield exceedance frequency relationship. The total probability theorem is presented in most statistics texts as: P[A] = t P[AIBi] ' P[Bil where: P[A] = PtAIBa = the "total" exceedance probability of event A, the conditional probability of event A given that event Bi has occurred, a set of mutually exclusive (only 1 B event can occur at a time), collectively exhaustive (for every A event, there is a corresponding B event) events, and P[Bi] = the exceedante probability of event Bi. In this analysis, A represents the occurrence of debris yield of a given quantity and B represents a wildfire condition. For calculation purposes, interval probabilities of Bi are used and treated as discrete probabilities. For example, the interval probability of the fire condition being from 2 to 3 Years-Since-100% Wildfire is equal to the incremental difference (probability for 3 Years- Since-100% Wildfire minus the probability for 2 Years-Since-100% Wildfire) and is treated as a discrete probability for 3 Years-Since-100% Wildfire. The range of possible fire conditions (Years- Since-100% Wildfire - Bi) should include the year of occurrence of wildfire (time = 0) to complete recovery (usually 10-15 years after a 100% wildfire) and be divided into i intervals. The number of intervals (i) should provide adequate definition of the Years-Shice-100% Wildfire frequency relationship (recommended t-year intervals). Los Angeles District Debris Method November 5, 1998 -20- For each B~, there is only 1 flow - Fi (or precipitation value - Pi) that produces a specified debris yield (A). (This connection is determined using the debris response relationships presented later in this section.) So the probability of debris yield (A), given the specific fire condition (Bi), being greater than or equal to the specified magnitude is equal to the probability of the discharge being greater than or equal to the flow (Fi) that produces that debris yield (A), given the specific fire condition (Bi). That is: The flow (Fi) is independent of the wildfire condition (Bi), assuming the impact of debris on the magnitude of the flow is small relative to the magnitude of the flow. Since F~ is independent of B~, the probability of F~, given Bi has occurred, is equal to the probability of F~. This is defined as: Therefore, all other factors being equal, the probability of the debris yield (P [A]) being greater than or equal to a specified magnitude (A), given the specific fire condition (Bi), is equal to the probability of a flow greater than or equal to Fi, where Fi iS the flow corresponding to the debris yield A, given the specific fire condition (Bi). Thus: P[AIBfi = P[Ffi By substitution, the actual calculation for total probability then becomes: P[A] = t P[F/] - P[Bi] In other words, the probability of debris yield (P[A]) equalling or exceeding a specified magnitude (A) is equal to the summation of a product of pairs made up of one exceedante probability (P[Fi]) and one imerval probability (P[Ba). Using the debris response relationships, which define the unique correlation between discharge and fire condition, the complete debris yield fi*equency relationship can be determined by iteratively solving the above equation for a range of specified debris yields 6.3. Data Requirements. A Coincident Frequency Analysis (CFA) computer program was developed by the Hydrologic Engineering Center of the Corps of Engineers at Davis, California. This program evaluates the coincident frequency of occurrence of two independent events, in this case, wildfire and flooding, using the theory discussed above. Appendix C presents the input description, user's manual, and test input and output examples for using the CFA program. Los Angelcs Dis~ct Debris Method November 5, 1998 The CFA program requires 4 types of data: Years-Since- 100% Wildfire frequency, discharge frequency, debris response relationships, and evaluation values which are used to define the debris yield frequency relationship. 63.1. Years-Since-100% Wildfire Fre~luencv Relationship (entered as years versus exceedance frequency; see Table A-3, Appendix A). This represents the exceedmace frequency of Years-Since-100% Wildfire occurrence. Appendix A presents a comprehensive description of the procedure for deriving a Years-Since-100% Wildfire frequency relationship. The number of values should adequately define the Years-Since- 100% Wildfire relationship (the CFA program will accept up to 20 pairs of values). An example of the Years-Since- 100% Wildfire frequency relationship cotrid look like this: Frequency' Years-Since- 100% Wildfire (Bi) 0 0 0.1 1 0.3 2 0.7 3 1.4 4 2.2 5 3.2 6 4.6 7 7.2 8 12.0 9 13.1 10 16.7 11 24.1 12 34.5 13 49.0 14 100 15 * The frequency for which Years-Since-100% Wildfire is equaled or exceeded. Cumulative. This is not P[Bi]; P[Bi is the incremental difference for each Year-Since-100% Wildfire. Los Angeles District Debris Method November 5, 1998 -22- 6.3.2. Discharge Freauency (or Precinitation Frequency) Relationship (entered as discharge per square mile - or 1 -hour precipitation times 100 - versus exceedance frequency). The relationship (for discharge) could be developed analytically using the Corps of Engineers Flood Frequency Analysis computer program, which is based on Bulletin 17B guidelines. The number of values should adequately define the discharge (or precipitation) frequency relationship (the CFA program will accept up to 20 pairs of values). Values for a unit discharge frequency relationship might look like this: Frequency* Discharge (P[F~]") (fr'/s/miD 0.2 1489 0.5 1000 1 719 2 499 5 288 10 176 20 96 30 61 40 40 50 29 60 19 70 13 80 8.0 90 3.9 95 2.2 * The frequency for which unit discharge is equaled or exceeded. Cumulative. * * Probability is frequency divided by 100. November 5, 1998 Los Angeles Dislxict Debris Method -23- 6.3.3. Debris Response Relationships for each Years-Since-100% Wildfire Occurrence (entered as unit discharge (flVs/mF) or precipitation (inches x 100) versus debris yield (ydVmia)). These relationships reflect the debris yield (A) for the watershed for a range of unit discharge values (Fi) or I-hoar precipitation values (Pi) for each interval of the Years-Since-100% Wildfire occurrence (Bi). The number of values should adequately define the debris response relationships (the CFA program will accept up to 20 pairs of values). The debris yield is calculated using the appropriate regression equation for the range of unit discharges (or precipitation values) developed as described in 6.3.2. above, using the Fire Factors associated with each Year-Since-100% Wildfire value discussed in 6.3.1. above. Examples of debris response relationships might look like these. Years- Since- ] 00% Wildfire Q = (B,) 1489 1000 Unit Discharge (ftVs/mia) Q= Q= Q= Q= 719 499 288 176 Debris yield (ydVmia) (A) 1 185,417 127,559 93,585 66,325 39,612 24,877 14,025 4,515 405 2 161,677 111,227 81,603 57,833 34,540 21,692 12,230 3,937 353 3 140,977 96,986 71,155 50,429 30,118 18,915 10,664 3,433 308 4 125,357 86,240 63,271 44,841 26,781 16,819 9,482 3,053 274 5 115,465 79,435 58,278 41,303 24,667 15,492 8,734 2,812 252 6 106,770 73,453 53,890 38,193 22,810 14,325 8,076 2,600 233 7 99,896 68,724 50,420 35,734 21,341 13,403 7,556 2,433 218 8 93,100 64,049 46,990 33,303 19,889 12,491 7,042 2,267 203 9 87,791 60,396 44,310 31,404 18,755 11,779 6,641 2,138 192 10 83,397 57,373 42,093 29,832 17,817 11,189 6,308 2,031 182 11 79,607 54,766 40,180 28,476 17,007 10,681 6,022 1,939 174 12 73,901 50,841 37,300 26,435 15,788 9,915 5,590 1,800 161 13 68,336 47,012 34,491 24,~.44 14,599 9,168 5,169 1,664 149 14 63,190 43,472 31,894 22,604 13,500 8,478 4,780 1,539 138 15 57,299 39,419 28,920 20,496 12,241 7,688 4,334 1,395 125 Los Angeles District Debris Method November 5, 1998 6.3.4. Response Frequency Parameter CEvahation) Values. This a set of debris yield values input by the user (or can be generated by the CFA program) which will be used to define the debris frequency curve. The number of values should be enough to adequately define the debris frequency relationship (the CFA program has a maximum of 30 values). 6.4. Example Calculation. The following example hand calculation is included to illustrate application of the coincident frequency theory described above. Differences will result between the hand calculations and the CFA program calculations primarily due to the methods used for interpolation and integration. In the hand calculation, the intervals for Years-Since-100% Wildfire are chosen using the values provided on the probability distribution. Interval probabilities are determined using linear interpolation and numerically integrated using the "trapezoidal rule" (Ref. 8.5). The CFA program improves on this by using cubic spline interpolation to define a smooth curve through all of the frequency curves and Gauss Quadratures for numerical integration (Ref. 8.5) to obtain a more accurate estimate of the total probability than is obtained by the trapezoidal role. Three points (Gauss Quadratures) are used to obtain the exceedante probability of the intervals rather than only the two end points used by the trapezoidal rule. The CFA program then uses cubic spline interpolation to obtain the conditional probability values at the quadrature points within each interval. The more values used in the hand calculations, the better the agreement would be. Using the example data above, the procedure for calculating the total probability for a debris yield greater than or equal to 10,000 yd'/mi2 is: Step 1/. Using the debris response relationships (6.3.3. above), determine (using linear interpolation) the discharge necessary to produce 10,000 ydl/mi2 (A) for each Year-Since-100% Wildfire. Then, use the discharge (or precipitation) relationship (6.3.2 above) to determine the frequency of the discharges, as shown below: NovemberS, 1998 Los Angeles District Debris Method Years-Since-100% Discharge Frequency' Probability" Wildfire (~3/s/mi2) [Bi] Fi P[Fi} I 67 28.0 .280 2 78 24.7 .247 3 89 21.5 .215 4 101 19.0 .190 5 111 17.3 .173 6 120 15.7 .157 7 129 14.5 .145 8 139 13.3 .133 9 148 12.4 .124 10 156 11.6 .116 11 164 10.9 .109 12 177 9.9 .099 13 193 8.9 .089 14 210 7.9 .079 15 233 6.8 .068 * The frequency for which discharge is equaled or exceeded. Cumulative. ** Probability is frequency divided by 100. Step 2/. Determine the incremental exceedance probabilities for each duration of the Years-Since- 100% Wildfire relationship from the Years-Since- 100% Wildfire frequency relationship (6.3.1 .). Los Angeles Disuict Debris Method November 5, 1998 -26- Years-Since-100% Probability Wildfire [Bi] Cumulative Incremental (from 6.3.1) (P[Ba) 0 .000 .000 1 .001 .001 2 .003 .002 3 .007 .004 4 .014 .007 5 .022 .008 6 .032 .010 7 .046 .014 8 .072 .026 9 .120 .048 10 .131 .011 I1 .167 .036 12 .241 .074 13 .345 .104 14 .490 .145 15 1.000 .510 Step 3/. Determine the total probability for a debris yield greater than or equal to 10,000 yd3/mP (A) using the equation below: P[A] = t P[~] ' P[Bi] Los Angeles District Debris Method November 5, 1998 This would result in a table such as: Years-Since-100% p[Fi] P[Bi] P['Fi]* P[Bi] Wildfire 1 0.280 0.001 0.00028 2 0.247 0.002 0.00049 3 0.215 0.004 0.00086 4 0.190 0.007 0.00133 5 0.173 0.008 0.00138 6 0.157 0.010 0.00157 7 0.145 0.014 0.00203 8 0.133 0.026 0.00346 9 0.124 0.048 0.00594 10 0.116 0.011 0.00128 11 0.109 0.036 0.00393 12 0.099 0.074 0.00733 13 0.089 0.104 0.00924 14 0.079 0.145 0.01149 15 0.068 0.510 0.03485 Sum (P[A]) --> 0.0854780 (Frequency = 8.5) This calculation represents one point on the debris yield frequency curve. The complete debris yield frequency relationship is determined by iteratively solving the above equation for a set of debris yields (evaluation values) covering the range of possible yields. Note: the accuracy of the hand calculations will approach the results from the CFA program by increasing the number of debris yield values in the set. Los Angeles District Debris Method November 5, 1998 6.5. Program Output. The Coincident Frequency Analysis program output consists of: a. a reprint of the input dam. b. the computed percent chance exceedante values for the response values (evaluation values). This is a range of debris yields (input by the user) and their corresponding exceedance frequencies which define the debris yield frequency curve. c. a table of interpolated debris yield results equaled or exceeded for frequencies of 0.2, 0.5, 1.0, 2.0, 5.0, 10.0, 20.0, 30.0, 40.0, 50.0, 60.0, 70.0, 80.0, 90.0, 95.0, and 99.0 percent. Note: There are two options in CFA which allow the user to increase the amount of output in order to trace the results through intermediate calculations. A more thorough description of the Coincident Frequency Analysis computer program, as well as example input and output files, are included in Appendix C. A sample of the results of two Coincident Frequency Analyses performed on watersheds that possess long-term debris yield records are presented in Figures 4 and 5. Note that the actual debris yield values (plotted using median plotting positions) correspond closely to the expected debris frequency curve computed using the Coincident Frequency Analysis program. Note: the l-Year- Since-100% Wildfire and the 15-Years-Since-100% Wildfire curves are plotted for comparison purposes. These curves were determined using the debris response data in the table in Section 6.3.3. for 1- and 15-Years-Since-100% Wildfire and the discharge-frequency relationship presented in Section 6.3.2. 7. SUMMARY, CONCLUSIONS, AND LIMITATIONS. The equations presented herein yielded the highest ~2 values of all trials as well as using the group of variables indicated as possessing the greatest significance in explaining variation in unit debris yield. Although errors in estimation may still occur, the equations presented here will provide significantly better reliability compared to methods presently in use for coastal draining streams in Southern California. By methods presently available, evaluation of the entire array of variables which influence debris yield from Coastal Southern California watersheds is impossible. Because factors such as the potential mobility of debris in storage within the watershed continue to defy quantification, debris yield estimates are expected to vary somewhat from recorded data, depending on the stage of a given cut-and-fill cycle, the time elapsed since the last major storm occurred, and other factors. Only by application of the on-site Adjustment-Transposition (A-T) Factor can certain unquantifiable parameters be evaluated and included hi the analysis of an individual watershed. The predictive yield equations presented herein were derived from recorded data for basins and dams located at the mouths of canyons. For locations that are downstream from canyon mouths, it would be prudent to evaluate the sediment transport capability of the stream in the reach Los Angeles District Debris Method November 5, 1998 -29- EXCEEDANCE FREQUENCY PER HUNDRED YEARS PREDICTED DEBRIS YIELD RATE One Year After Wildfire Coincident Frequency 15 Years or More Following Wildfire / I / / / b.z oJ 0.05 o.o11,000,000 8 6 5 100,000 s "' )- s ..J uJ 2 ,,,., u.I ,-,, 10,000 s ~o ~o EXCEEDANCE INTERVAL IN YEARS Ranked Debris Yield Events 1 March 1927 2 March 1938 3 January 1969 4 January 1954 5 January 1940 6 March 1943 7 March 1954 8 November 1965 9 February 1969 10 March 1978 200 500 ~oo ~x~o1'000 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD DEBRIS FREQUENCY ANALYSIS SANTA ANITA DAM D.A.=IO.8 MI2 AlliT COlIll OF ENGINEERe LOB ANGELES DISTRICT FIGURE 4 EXCEEDANCE FREQUENCY PER HUNDRED YEARS PREDICTED DEBRIS YIELD RATE __ -- One Year After Wildfire __--' 15 Years or More ~ Following Wildfire .... Coincident Frequency o.oL 000 0 , , 00 9 8 7 6 5 100,000 8 5 10,000 6 EXCEEDANCE INTERVAL IN YEARS Ranked Debris Yield Events 1 January 1969 2 March 1938 3 March 1978 4 September 1961 5 November 1965 6 August 1966 7 November 1956 8 January 1934 LOS ANGELES DISTRICT METHOD _ ,, FOR PREDICT!p.N 91~,,D~,,B,~I~ ,y~_LD DEBRIS FREQUENCY'~ANALySIS SAN DIMAS DAM D.A,=16,2 MI2 U.S, ARMY CORP8 OF ENGINEERS LO8 ANGELES DISTRICT FIGURE 5 immediately upstream from the site to ensure that the stream is capable of transporting the estimated debris quantity. If not, then consideration should be given to using the transport capacity of the design flood as the adopted basin inflow debris estimate. Recognition of the role that human interference plays in the increase or decrease in debris yield rates is important. Destruction of channel or hillslope vegetation, grazing, homesite construction, road building, and other factors may have a substantial effect on erosion from a given watershed. On-site evaluation of these impacts, and the geomorphology and soils of the watershed, should routinely supplement application of the recommended regression equations. This procedure does not address the haTard associated with major landslides, nor those associated with overland mudflows. Applications outside the San Gabriel Mountains should be conducted with caution and should include full investigation of all available local information and thorough field inspection. Los Angeles Dislriet Debris Method November 5, 1998 -32- 8. REFERENCES. 8.1. Anderson, H.W. (1949), Flood Frequencies and Sedimentation from Forest Watersheds, American Geophys. Union Trans. V. 30; P. 576-584. 8.2. Anderson, H.W., Wailis, J.R. (1965), Some Interpretations of Sediment Sources and Causes, Pacific Coast Basins in Oregon and Califomia, Federai Interagency Sedimentation Conference Proceedings, USDA. Mist. Publ. 970; P. 22-30. 8.3. Benjamin, J.R., Comell, C.A. (1970), Probability, Statistics and Decision for Civil Engineers, Mcgraw-Hill, New York; P. 40-65. 8.4. Bogardi, I., et al. (1986), Sediment Yield from Agricultural Watersheds, Journal of Hydraulic Engineering, Vol. 112, No. 1, American Society of Civil Engineers; P. 64-70. 8.5. Burden, Faires, and Reynolds, (1980), Numerical Anaivsis, Prindle, Weber, and Smith. 8.6. Chorley, R.J. (1969), The Drainage Basin as the Fundamental Geomorphic Unit. Introduction to Fluvial Processes (lld.), Chorley, R.J.; Methuen and Co. Ltd., London. 8.7. Ferrell, W.R. (1959), Debris Reduction Studies for Mountain Watersheds: Los Angeles County Flood Control District, Rept.; 164 Pp. 8.8. Flaxman, E.M. (1972), Predicting Sediment Yield in the Western United States, Journal of the Hydraulics Division, Proceedings of The ASCE, Vol. 98, No. 12; P. 2073-2085. 8.9. Flaxman, E.M., High, R.D. (1955), Sedimentation in Drainage Basins of the Pacific Coast States; a Summary of Published and Unpublished Information, USDA. Soil Conservation Service. 8.10. Jansson, MB (1982),LandErosionbvWaterinDifferentClimateS, UNGI. RapportNr. 57; Uppsaia University, Uppsala, Sweden. 8.11. Langbein, W.B., et ai. (1947), Topogranhic Characteristics of Drainage Basins; USGS Water Supply Paper 968-c, Washington, D.C. 8.12. Lustig, L.K., (1965), Sediment Yield of the Castaic Watershed, Westem Los Angeles County, California: a Quantitative Geomorphic Approach; USGS. Prof. Paper 422-f, Washington, D.C. g. 13. Morisawa, M. ( 1957), Accuracy of Determination of SlTeam Lengths From ToDo graphic Maps, American Geophys. Union Trans., Vol. 38, No. 1; P.86-88. Los Angeles District Debris Method November 5, 1998 -33- REFERENCES (cont.) 8.14. Nie, N.H., Hull, C.H., Jenkins, J.G., Steinbrenner, K., Bent, D.H., (1975), Siatistical Package for the Social Sciences, Mcgraw-Hill Publ. Co., N.Y. 8.15. Rowe, P.B., Countryman, C.M., Storey, H.C. (1949), Probable Peak Discharges and Erosion Rates from Southern California Watersheds As Influenced by Fire, USDA, Forest Service, Califomia, Forest and Range Experimental Station. 8.16. Rowe, P.B., Countryman, C.M., Storey, H.C. (1954), Hydrologic Analysis Used to Determine Effects of Fire on Peak Discharge and Erosion Rates in Southern California Watersheds, USDA., Forest Service, California Forest and Range Experimental Station. 8.17. Schumm, S.A. (1954), The Relation of Drainage Basin Relief to Sediment Loss, International Union Geodesy and Geophysics, Assoc. Sci. Hydrology Gen. Assembly, Rome, Vol. 1; P. 216-219. 8.18. Schumm, S.A., Hadley, R.F. (1961 ), Progress in the Application of Landform Analysis in Studies of Semi.arid Erosion, USGS, Geol. Survey Circ. 437, Washington, D.C. 8.19. Scott, K.M., Ritter, JR., Knott, J.M., (1968), Sedimentation in The Piru Creek Watershed, Southern California: USGS Water-Supply Paper 1798-e, 48 Pp. 8.20. Scott, K.M., (1971), Ori~,in and Sedimentolo~,v of 1969 Debris Flows near Glendora, California; USGS Prof. Paper 750-c, Washington, D.C. 8.21. Scott, K.M., Williams, R.P., (1978), Erosion and Sediment Yields In the Transverse Ranges. Southern California; USGS Prof. Paper 1030, Washington, D.C. 8.22. Strahler, A.N., (1957), Ouantitative Analysis of Watershed Geomorphologv, Amer. Geophys. Union Trans., Vol. 38; P. 913-920. 8.23. Tatum, F.E., (1963), a New Method of Estimating Debris Storage Requirements for Debris Basins, U.S. Army Engineer District, Los Angeles, California, Rept., 23 Pp. 8.24. Troxell, H.C., Peterson, J.Q., (1937), Flood in La Canada Valley, California, January 1, 1934; USGS Water Supply Paper 796-c, Washington, D.C. 8.25. U SGS (1979-80), Water Resources Data: California: Water Years 78-79 and 79-80, Vol. 1; Colorado River Basin, Southern Great Basin from Mexican Border to Mono Lake Basin, and Pacific Slope Basins from Tij uana River to Santa Mafia River; USGS Water Data Reports Ca-79-1, Ca-80-1 Los Angeles District Debris Method November 5, 1998 REFERENCES (cont.) 8.26. Wells, W.g., li. (1981), Some Effects of Brush Fires on Erosional Processes in Coastal Southern Califomia. In: Erosion and Sediment Transport in Pacific Rim Steeplands, International Association of Hydrologists, Scientific Publication 132, Christchurch, N.Z., N. 2; P. 305-342. 8.27. Yevjevich, V., (1972), Probability and Statistics in Hvdroloav, Water Resources Publications, Fort Collins, Colorado. Los Angeles District Debris Method November 5, 1998 TABLE 1: SIMPLE CORRELATION COEFFICIENTS FOR METEOROLOGIC AND PHYSIOGRAPHIC PARAMETERS ' Parameter Max 15-Minute Rainfall Max 30-Minute Rainfail Max 1-Hour Rainfall Max 3-Hour Rainfall Max 6-Hour Rainfall Max 24-Hour Rainfall Max 72-Hour Rainfall Mean Annual Rainfall Max 24-Hour Inflow Max 72-Hour Inflow Peak Inflow Fire Factor Coeff. Parameter Coeff. 0.172 Drainage Density 1 0.951 0.682 Drainage Density 2 0.989 0.967 Hypsometric Index 0.889 0.963 Total Channel Length 1 0.529 0.404 Total Channel Length 2 0.973 0.524 Mean Bifurcation Ratio 1 0.259 0.730 Mean Bifurcation Ratio 2 0.986 0.087 Elongation Ratio 0.895 0.629 Transport Factor T-1 0.986 0.611 Mean Channel Gradient 0.247 0.989 Drainage Area 0.976 0.984 Relief Ratio 0.993 ' Simple correlation coefficients for meteorologic and physiographic parameters were determined by regressing each parameter individually, with each value log transformed (base 10) to linearize the relationship. Parameters are defined in Section 3. Los Angeles District Debris Method November 5, 1998 -36- . TABLE 2: STATISTICAL COMPARISON OF SOUTHERN CALIFORNIA DEBRIS/SEDIMENT YIELD ESTIMATION METHODS Variable Correlation AR2 P? Applicable Coeff. Basin Area (mi2) Anderson q 0.93 0.88 4.5 - 202 1949 D 0.11 0.02 0.90 (Ref. 8.1) C -0.10 0.01 Scott et AL Pc 0.61 0.50 33 - 425 1968 I 0.23 0.04 0.86 (Ref. 8,19) KI 0.62 0.33 Flaxman p/t -0.44 0.10 0.92 0.01 - 50 1972 R 0.82 0.40 (Ref. 8.8) K2 -0.30 0.09 IO 0.56 0.33 LAD, COE P 0.65 0.98 0.987 0.1 - 3.0 Eq. 1 RR 0.62 0.003 (See See. 5) FF 0.12 0.001 LAD, COE Q 0.88 0.98 0.99 10 - 25 Eq. 3 RR 0.48 0.01 (See Sec. 5) FF 0.20 0.001 A 0.06 0.001 R2 = the coefficient of multiple determination adjusted for degrees of f~'eedom, or a me~ure of the relative worth of a regression equation. Variables: q ~ Msximum yearly Unit peak discharge (~/s/mF) D = Density of non-incised channels (Mac) C = Cover density ofvagetative litter (%) Pe = Effective precipitation (inches) 1 = Probable m~ximum 24-hour precipitation (inches) KI = Surface aggregation ratio (see Ref. 8.1 ) p/t = LonG-term average annual Drecioitation (inches) Avenge annual temperature (°F) R = Weighted average catohment slope between contours (%) K2 = Percent of soil particles coarser that 1.0 mm (by weigh0 in the top 2 inches of the soil profile (%) K3 -- Soil aggregation variable of the pH of the soil and the amount ofclay in the top 2 inches of soil P = Msximum 1 -hour precipitation (inches to two decimal places times 100) for the applicable storm event RR = Relief ratio (Palmile); (see explanawvy text) FF = Fire Factor (dlmensionless); (see explanatory texO A = Drainage area of watershed (ac) Q -- Unit peak discharge for applicable storm event (~/s/mia) LOs Angeles District Debris Method November 5, 1998 TABLE 3: STATISTICAL SUMMARY EQUATION 1 - Log Dy = 0.65 (Log P) + 0.62 (Log RR) + 0.18 (Log A) + 0.12 (FF) Variable B RR 0.620 P 0.654 FF 0.119 A 0.182 Multiple R 0.99377 i~2 0.9~747 Std Deviation 0.46531 Std ErrororB E 0.069 80.325 0.095 47.760 0.021 32.538 0.040 20.820 EQUATION2- Log Dy = 0.85 (Log Q) + 0.53(LogRR) + 0.22 (FF) + 0.04(LogA) Variable B Std Error of B E RR 0.481 0.085 32.21 Q 0.877 0.057 233.09 FF 0.201 0.051 15.57 A 0.062 0.036 2.98 MuRiple R 0.99831 0.99644 StdDeviation 0.24218 Note: statistics for Equations. 3-5 are sirailar. B =- the correlation coefficient of the independent variable. F = a measure of the significance of the variable; an F of greater than or equal to 2;0 indicates significance at the 0.95 confidence interval, and greater than 4 indicates significance at 0.99. confidence level. R = multiple correlation coeffieiant; the square root of the unadjusted coefficient of multiple determination. K2 = the coefficient of multiple determination adjusted for degrees of freedom, or a measure of the relative worth of a regression equation. RR = the relief ratio of a watershed. A = the drainage area of a watershed. P = the maximum 1 -hour precipitation times 100. FF = the "Fire Factor", or a measure of the impact of wildfires within the watershed. Q = the unit peak discharge from a watershed. Los Angeles Dis~ct Debris Method November 5, 1998 TABLE 4: EXAMPLE OF DEBRIS APPORTIONMENT WITH RESPECT TO MULTIPLE EVENTS (San Gabriel Reservoir Watershed was used in this Example) Drainage Area -- 201 mi2 Survey Period Nov 1948- Nov 1951 Measured Debris Yield' 110 Significant Peak Percent of Flood Events Discharge Debris Due Between (ftt/s/mF) To Event Surveys (%) Mar 1949 172 21.5 Feb 1950 481 56.5 Apr 1951 176 22.0 100.0 Jan 1952 7683 92.0 Nov 1952 585 8.0 100.0 Jan 1954 3592 100.0 Nov 1951- Jan 1953 275 Jan1953- 127 May1954 May1954- 189 Aug1958 All of 1955 < 50 0.0 Jan1956 2677 18.0 Jan1957 3420 23.0 Apr 1958 8900 59.0 100.0 Jan1959 3773 84.0 Nov 1960 695 16.0 100.0 Aug 1958- Sep 1961 248 I' Accumulated debris between survey dates Los Angeles District Debris Method November 5, 1998 APPENDIX A HOW TO USE FIRE FACTORS AND HOW TO DETERMINE THE YEARS-SINCE- 100% WILDFIRE FREQUENCY RELATIONSHIPS FOR USE IN THE COINCIDENT FREQUENCY ANAL YSIS COMPUTER PROGRAM APPENDIX A HOW TO USE FIRE FACTORS AND DETERMINE THE YEARS-SINCE-100% WILDFIRE FREQUENCY RELATIONSHIPS INTRODUCTION. "Fire Factor", as used in this report, is the name given the relationship between debris yield and the time after burn for a given drainage basin. It is a dimensionless parameter that relates the relative increase in debris yield caused by wildfires. The occurrence of wildfire plays a significant role in the quantity of debris produced by any particular watershed. The Fire Factors developed in this analysis displayed a high correlation to debris yield (see Table 1, main text) for watersheds in the San Gabriel Mountains. The Fire Factor curves (see Figures A-1 and A-2) relate the Fire Factor to the Years-Since-100% Wildfire occurrence, and the drainage area of the watershed. The Los Angeles District Method for Prediction of Debris Yield can be applied for several different purposes including: 1 ) determining the debris yield potential from a hypothetical flood event (e.g., 100-year flood) given a specific fire condition (e.g., 1 year since 100% wildtim); or 2) determining the debris yield from a historic flood event for a specific wildfire condition; or 3) estimating the debris yield frequency relationship based on the total probabilities of independent random flood flows (or rainfall) and wildfire. For the first two purposes, the Fire Factors are used directly in the appropriate regression equations. This approach might be used after a wildfire occurrence to estimate the size of emergency debris basins or estimate sediment volumes for ~ransport analysis. When wildfire plays an insignificant role in the production of debris yield, such as in desert watersheds where vegetal cover is minimal, the Fire Factor is fixed at a "normal" or unbumed value of 3.0. The third purpose for application of the Debris Method utilizes the Coincident Frequency Analysis (CFA) computer program to estimate debris yield and takes into account the likelihood of wildfires of varied areai extent in conjunction with flood events of various magnitudes. Estimates of debris yield from the CFA results are used to determine the design size of single event debris basins and detention basins. Fire Factors are determined from the actual fire history of the watershed(s). The fire history may be compiled by contacting local flood control agencies, the County Forester or Fire Warden, or other local agencies. It is most important to know the fire history of the watershed of interest for at least the past 15 to 20 years and preferably the last 50 years, including the approximate extent (percent) of the watershed burned during each event and the location of each bum relative to previous bums. The longer the history, the better the results. Los Angeles District Debris Method November 5, 1998 DEBRIS YIELD FOR GIVEN FLOOD EVENT FOR SPECIFIC FIRE CONDITION. If the intent of the investigator is to determine the debris yield from a hypothetical or actual historic flood eveni given a specific fire condition (first and second purposes above), the Fire Factor is determined in the following manner: Step 1/. Determine the drainage area of the subject watershed (in mi2 and ac). Step 2/. Determine the fire history for the watershed, if desired, to get an idea of the significance of wildfire in the watershed. Step 3/. If step 2 is omitted, only the Fire Factor for the specific fire event need be determined. If the investigator determines that wildfire plays an insignificant role in debris production, the Fire Factor can be set at 3.0. If step 2 is not omitted, determine the Fire Factor for each year in the fire history. When determining the fire history, remember to locate each bum relative to previous burns in the watershed. A table such as Table A- 1 can be developed showing the year and Fire Factor along with the percent burn for each wildfire occurrence. Following Table A- 1 is an example of how to calculate the Fire Factors for years with partial bums. · If the drainage area of the watershed is less than 3.0 mi2, use Figure A-1 to determine the Fire Factor(s) for 100% bum. · If the drainage area of the watershed is between 3.0 and 200 mi2, use Figure A-2 to determine the Fire Factor(s) for 100% burn. Step 4/. Use the Fire Factor for the given flood event and the specified fire condition in the appropriate regression equation with the appropriate A-T Factor to determine the debris yield for the watershed. Los Angeles District Debris Method November 5, 1998 TABLE A-l: EXAMPLE OF FIRE FACTOR HISTORY Santa Paula Creek Watershed Application Drainage Area = 42.9 mF Year Percent Fire Year Percent Fire Year Perten Fire Burned FaVor Burned Factor t Factor Bume d 1911 1% 3.03 1941 0 3.37 1971 0 3.25 1912 0 3.03 1942 0 3.34 1972 20% 3.81 1913 0 3.02 1943 0 3.30 1973 0 3.71 1914 0 3.02 1944 0 3.22 1974 0 3.63 1915 0 3.02 1945 0 3.11 1975 0 3.53 1916 0 3.02 1946 0 3.00 1976 0 3.46 1917 0 3.01 1947 0 3.00 1977 0 3.42 1918 0 3.01 1948 0 3.00 1978 0 3.37 1919 0 3.01 1949 0 3.00 1979 0 3.32 1920 6% 3.19 1950 0 3.00 1980 0 3.26 1921 17% 3.67 1951 2% 3.06 1981 0 3.20 1922 1% 3.62 1952 0 3.05 1982 0 3.18 1923 16% 4.03 1953 0 3.05 1983 0 3.16 1924 20% 4.48 1954 0 3.04 1984 0 3.12 1925 0 4.31 1955 0 3.04 1985 70% 5.13 1926 0 4.17 1956 0 3.03 1927 0 4.03 1957 0 3.03 1928 0 3.91 1958 0 3.03 1929 0 3.82 1959 0 3.02 Los Angclcs District Debris Method November 5, 1998 .~.-3 TABLE A-1 (cont.): EXAMPLE OF FIRE FACTOR HISTORY Year Percent Fire Year Percent Fire Year Percen Burned Factor Burned Factor t Bume d 1930 0 3.73 1960 0 3.02 1931 0 3.65 1961 0 3.02 1932 38% 4.69 1962 6% 3.20 1933 0 4.45 1963 0 3.17 1934 0 4.25 1964 0 3.15 1935 0 4.02 1965 0 3.12 1936 0 3.84 1966 0 3.11 1937 0 3.66 1967 11% 3.42 1938 0 3.55 1968 0 3.37 1939 0 3.49 1969 0 3.33 1940 0 3.44 1970 0 3.28 75 Events Fire Factor Los Angeles District Debris Method November 5, 1998 ,~-4 Example of Fire Factor Calculations - for Partial Burns · The maximum and minimum Fire Factor values are 6.0 and 3.0, respectively, for a watershed of 3.0 to 200 mi2 in area (Fig. A-2). · The watershed used in this example is considered to bc "fully-recovered" from the effects of wildfire after 15 years (42.9 mi2). · History (Table A-l) shows that the example watershed was fully recovered from all previous fires in 1950 and then suffered a 2% extent burn in 1951 and a 6% burn in 1962. · Since the watershed suffered a 2% bum in 1951, with no additional wildfires in the period 1952 through 1961, the Fire Factors for this time period arc calculated as follows: 1951 1) 98% of the watershed has a "normal" (anbumed) Fire Factor of 3.0 2) 2% of the watershed has a (100% bum) 1 year after bum Fire Factor of 6.0 (from Figure A-2) Thus, the weighted Fire Factor for 1951 is: 0.98 (3.0) + 0.02 (6.0) = 3.06 1952 1) 98% of the watershed has a "normal"(unbumed) Fire Factor of 3.0 2) 2% of the watershed has a "2 years after bum" Fire Factor of 5.65 (from Fig. A-2) Thus, the weighted Fire Factor for 1952 is: 0.98 (3.0) + 0.02 (5.65) = 3.05 1953 1) 98% of the watershed has a "normal" (unbumcd) Fire Factor of 3.0 2) 2% of the watershed has a "3 years after bum" Fire Factor of 5.30 (from Fig. A-2) Thus, the weighted Fire Factor for 1953 is: 0.98 (3.0) + 0.02 (5.30) = 3.05 · The Fire Factor for the years 1954 to 1961 are determined in the sumc manner. · In 1962, the watershed suffered a 6% burn over a different part of the watershed than that which occurred in 1951. The combined effect of the two wildfires is determined in the following manner: 1962 1 ) 92% of the watershed has a "normal" (unbumed) Fire Factor of 3.0 2) 2% of the watershed has a "11 years after bum" Fire Factor of 3.84 (from Figure A- 2) 3) 6% of the watershed has a "1 years after bum" Fire Factor of 6.00 (from Fig. A-2) Los Angeles Disulct Debris Method November 5, 1998 Example of Fire Factor Calculations - for Partial Burns (cont.) Thus, the weighted Fire Factor for 1962 is: 0.92 (3.0) + 0.02 (3.84) + 0.06 (6.00) = 3.20 1963 1) 92% of the watershed has a "noranat" unbumed) Fire Factor of 3.0 2) 2% of the watershed has a "12 years after burn" Fire Factor of 3.65 (from Figure A- 2) 3) 6% of the watershed has a "2 years after bum" Fire Factor of 5.65 (from Fig. A-2) Thus, the weighted Fire Factor for 1963 is: 0.92 (3.0) + 0.02 (3.65) + 0.06 (5.65) = 3.17 · The Fire Factor for the years 1964 and 1965 are determined in the same manner. In 1966, the 2% of the basin burned in 1951 has fully recovered, and the Fire Factor for the year 1966 is calculated as: 1966 1) 94% of the watershed has a "normal" (unbumed) Fire Factor of 3.0 2) 6% of the watershed has a "5 years after bum" Fire Factor of 4.79 (from Fig. A-2) Thus, the weighted Fire Factor for 1966 is: 0.94 (3.0) + 0.06 (4.79) = 3.11 · In 1967, the watershed suffered a 11% bum over a different part of the watershed than that which occurred in 1962. The combined effect of the two wildfires is determined the same way as above. Los Angeles District Debris Method November 5, 1998 l; IJO,LO~4 ~lJl::l " t I',~,~ ' LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD SAME AS FIGURE 2 FIRE FACTOR CURVE FOR WATERSHEDS 0.1 TO 3.0 MI2 ARMY CORPS OF ENGINEERS LOS ANGELES DISTRICT FIGURE A-1 ; U.I 15 FF=3.00 FOR THIS AREA / FF=3.00 :~:'~ .:7~--:~i-';:i~ :;:t'-~:'q:.-4!ii!FF~: :;';!~!::i:~: .': :::'1':".'-!:' .. ~ ' .....' ....' ...."'" ' E: !~ :-~7 ,:-~ ,i_,.:v--F-' ~-.,: 4-, ....., - :! :; 1: .. -:.":;',-i:.z~:,.!-;-.':!:::.~'-" ........:I .....l":: l ~ I: I. ': :-:.lC~l :1 .. i : :! ':~ :!"' !..-i . : ' ' I ~ ' ...............................~ ....~ · , ~ , .... :. 2~ ~ ;:i':: :':::i:.i:~!':.T:7'T""T~-.':'. .... .... ~ ....:" "" ~~:.~!:;i:','!iii:!!:ii:,!ii::::!:!!.-+:i.i:--~i:i!i::::!::i:: .::::.-;.!: ,,~ ""' "':+':i;:~',;~':::!:::"'-':-":"':"~::"":"':: ....' ....!':' ' ~>~.~:!:.! .:::ii.:::.~i,:!!!~i!:.!;!.::!i!.', :i::F~=..,;o: ~' 3 ~ 5 6 7 8 9 10 15 20 30 40 50 60 80 1'00 150 '0 DRAINAGE AREA IN MI 2 FIGURE A-2 FF=6.00 FOR THIS AREA FIRE FACTOR CURVES FOR SAME AS FIGURE 3 WATERSHEDS FROM 3.0 TO 200 MI2 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD DEBRIS YIELD FREQUENCY RELATIONSHIP BASED ON TOTAL PROBABILITIES OF 100% WILDFIRE AND FLOODING (USING CFA). If the intent of the investigator is to determine the debris yield for a hypothetical frequency event (third purpose above) using the total exceedante probabilities of 100% wildfire and flooding, a Years-Since- 100% Wildfire Frequency Relationship must be developed. This relationship is derived in the following manner: Step 1/. Determine the drainage area of the subject watershed (in miz and ac). Step 2/. Determine the fire history for the watershed. Remember to locate each burn relative to previous burns in the watershed. Step 3/. Determine the Fire Factor for each year of the history. A table such as Table A-1 should be developed showing the year and Fire Factor along with the percent burn for each wildfire occurrence. · If the drainage area of the watershed is less than 3.0 mi2, use Figure A-1 to determine the Fire Factor for 100% burn. · If the drainage area of the watershed is between 3.0 and 200 mi2, use Figure A-2 to determine the Fire Factor for 100% bum. Note: Refer to example following Table A-1 for computation of Fire Factor for years with partial burns. Step 4/. Determine a Fire Factor frequency chart. Rank the Fire Factors (from high to low) and assign each Fire Factor an exceedante frequency based on the median plotting position formula: m- 0.3 ........ x 100 N+0.4 where: m = the ordered sequence of Fire Factor values ranging from 1 to N N = number of items in the data set An example of a Fire Factor frequency chart is shown in Table A-2. Los Angeles DisUrict Debris Method November 5, 1998 Step 5/. Derive a fire duration curve for the subject watershed. Plot the Fire Factor values versus Percent Time Fire Factor is Equaled or Exceeded (frequency) in Table A-2 on linear graph paper (10 x 10 x 1 inch recommended) and draw a smooth curve through the plotted points. Following the general shape of the smooth curve, extrapolate both ends, if necessary, so that Fire Factors of 6.00 and 3.00 have estimated exceedante frequencies. An example of a fire duration curve for the Santa Paula Creek watershed is shown on Figure A-3. Step 6/. Determine a Fire Factor versus Years-Since-100% Wildfire table. Set up the table for durations of 1 Year-S ince- 100% Wildfire to full recovery ( 10-15 years depending on drainage area size). Use Figure A-2 to determine the Fire Factor for each Year-Since-100% Wildfire (42.9 mi2). This is shown in the first two columns of Table A-3. Step 7/. Determine the percent of time the Fire Factor is equaled or exceeded for the Fire Factors from step 6 using the fire duration curve from step 5. As a check, the probability of the watershed having suffered a 100% burn less than 1 year earlier should be quite small, while the probability of the watershed being in a "normal" or unbumed state should be quite high. Expand Table A-3 to include a column for percent time Fire Factor is equaled or exceeded (see column 3, Table A-3). Columns 1 and 3 of Table A-3 represent the Years- Since-100% Wildfire frequency relationship. Step 8/. Enter the percent time Fire Factor is equaled or exceeded and the corresponding Years-Since-100% Wildfire on DT and DP records in the CFA computer program input file. In the absence of any fire history, Fire Factors and the percent of time the Fire Factor is equaled or exceeded can be obtained from the generalized fire duration curves on Figure A-4. These curves were developed from a number of coastal Southern Califomia watersheds ranging from Santa Barbara County to Orange County and are not meant to be used outside the principle area of application (see Figure 1, main text). The curves were developed by placing the watersheds into size groups as shown on Figure A-4 (0.1-3.0 mi2, 3.0-10 mi:, 10-25 mi2, 25-100 mi~, 100-200 mi2), determining the fire history for each watershed, calculating the Fire Factors for each year in the fire history, and computing a ratio of the number of occurrences for Fire Factors to the total number of years. Keep in mind that at the ends of the drainage area ranges, there will be discontinuities. These curves should be used with great caution. Los Angeles DisUict Debris Method November 5, 1998 TABLE A-2: FIRE FACTOR FREQUENCY CHART Rank Fire Percent of Factor Time FF Equaled or Exceeded 1 5.13 0.9 2 4.69 2.3 3 4.48 3.6 4 4.45 4.9 5 4.31 6.2 6 4.25 7.6 7 4.17 8.9 8 4.03 10.2 9 4.03 11.5 10 4.02 12.9 11 3.91 14.2 12 3.84 15.5 13 3.82 16.8 14 3.81 18.2 15 3.73 19.5 16 3.71 20.8 17 3.67 22.1 18 3.66 23.5 Santa Paula Creek Watershed Application Rank Fire Percent of Rank Fire Percent of Factor Time FF Factor Time FF Equaled or Equaled or Exceeded · Exceeded 31 3.37 40.7 61 3.02 80.5 32 3.34 42.0 62 3.02 81.8 33 3.33 43.4 63 3.02 83.2 34 3.32 44.7 64 3.02 84.5 35 3.30 46.0 65 3.02 85.8 36 3.28 47.3 66 3.02 87.1 37 3.26 48.7 67 3.02 88.5 38 3.25 50.0 68 3.01 89.8 39 3.22 51.3 69 3.01 91.1 40 3.20 52.7 70 3.01 92.4 41 3.19 54.0 71 3.00 93.8 42 3.19 55.3 72 3.00 95.1 43 3.18 56.6 73 3.00 96.4 44 3.17 58.0 74 3.00 97.7 45 3.16 59.3 75 3.00 99.1 46 3.15 60.6 47 3.12 61.9 48 3.12 63.3 LOs Angeles District Debris Method November 5, 1998 TABLE A-2 (cont.): FIRE FACTOR FREQUENCY CHART Santa Paula Creek Watershed Application Rank Fire Percent of Rank Fire Percent of Factor Time FF Factor Time FF Equaled or Equaled or Exceeded a Exceeded 19 3.65 24.8 49 3.11 64.6 20 3.63 26.1 50 3.11 65.9 21 3.62 27.5 51 3.06 67.2 22 3.55 28.8 52 3.05 68.6 23 3.53 30.1 53 3.05 69.9 24 3.49 31.4 54 3.04 71.2 25 3.46 32.8 55 3.04 72.5 26 3.44 34.1 56 3.03 73.9 27 3.42 35.4 57 3.03 75.2 28 3.42 36.7 58 3.03 76.5 29 3.37 38.1 59 3.03 77.9 30 3.37 39.4 60 3.03 79.2 Rank Fire Factor Pement of Time FF Equaled or Exceeded Los Angeles District Debris Method November 5, 1998 ;I :] Iz O o 0 I- I- ~O13~d ~d LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD FIRE DURATION CURVE SANTA PAULA CREEK UoS, ARMY CORPS OF ENGINEERS LOS AROELES DISTRICT FI:GURE A-3 TABLE A-3: EXAMPLE OF FIRE FACTOR DETERMINATION FOR YEARS-SINCE-100% WILDFIRE Santa Paula Creek Watershed Drainage Area = 42.9 mi2 Years-Since-100% Fire Factor a Percent Time Fire Factor is Wildfire Occurrence Equaled or Exceeded b 1 year after 6.00 0.1c 2 years after 5.65 0.3c 3 years after 5.30 0.7c 4 years after 5.00 1.4 5 years after 4.79 2.2 6 years after 4.59 3.2 7 years after 4.42 4.6 8 years after 4.24 7.2 9 years after 4.09 12.0 10 years after 3.96 13.1 11 years after 3.84 16.7 12 years after 3.65 24.1 13 years after 3.45 34.5 14 years after 3.25 49.0 15 years after 3.00 100.0 From Figure A-2 for 42.9 mi2' From Fire Duration Curve for Santa Paula Creek (Fig. A-3). From Extrapolation of the Fire Duration Curve for Santa Paula Creek. Los Angeles District Debris Method November 5, 1998 b.-14 I::lOJ. OVd laid LOS ANGELES DISTRICT NETHOD FOR PREDICTION OF DEBRIS YIELD ~m r-/Fn FFIE DURATN3N CURVES FOR WArn O4=0.1TO200MI2 U.S. ARMY CORPS OF ENGINEERS LOS ANGELES DISTRICT FIGURE A-4 APPENDIX B HOW TO DETERMINE THE ADJUSTMENT-TRANSPOSITION FACTOR APPENDIX B HOW TO DETERMINE ADJUSTMENT-TRANSPOSITION (A-T) FACTORS Introduction. The Adjustment-Transposition (A-T) Factor was developed to account for the difference in geomorphology between the subject watershed and the original watersheds from which the regression equations were generated. This factor considers the surficial geology, soils, and hillslope and channel morphology. Watersheds of the San Gabriel Mountains from which the regression equations were developed have an A-T Factor of 1.0. Watersheds in areas with higher debris potential would have an A-T Factor greater than 1.0, while areas of lesser debris yield capacity would have an A-T Factor less than 1.0. Four techniques for calculating the A-T Factor are provided below. Preliminary data collection should consist of finding all sediment and/or debris records for the subject watershed or, in the absence of these, for all nearby watersheds possessing similar geology, climate, and topography. Any available topographic, soil, and land use maps should be collected. After determining a preliminary estimate of the A-T Factor, a field investigation of the watershed should be performed. The following techniques also make use of the drainage area size and the average annual precipitation for the subj eel watershed. To use the A-T Factor, first calculate the unadjusted unit debris yield (Log Dy) using the appropriate regression equation. After taking the anti-log of Dy, multiply the result by the A-T Factor to determine the "adjusted" debris yield. TECHNIQUE 1 - SEDIMENT/DEBRIS RECORD FOR SUBJECT WATERSRED CONTAINS SINGLE EVENT DEBRIS YIELD VALUES. If the sediment/debris record contains single event debris yield values (short term debris measurement clearly related to a single flood event), a direct comparison may be made between the volume the subject watershed actually yielded under the precipitation/runoffconditions contained in the record pertaining to that event, and the volume that would be calculated using the appropriate unadjusted regression equation under the same hydrologic and fire conditions. Simply divide the measured debris yield for the subject watershed by the debris yield calculated using the appropriate regression equation. The result will be the A-T Factor for the subject watershed. If there is information for several events, an average or weighted average can be calculated. Actual Subject Watershed Debris Yield = A-T Factor Unadjusted Regression Equation Debris Yield Los Angeles District Debris Method November 5, 1998 If, for example, the subject watershed yielded 60,000 ydsVmi~ for a peak runoff event of 100 ft3/s/mi2, and the regression equation yields a value of 80,000 ydsVmi2 under the same hydrologic and fire conditions, the A-T Factor would be 60,000 divided by 80,000 or 0.75. TECHNIQUE 2 - SEDIMENT/DEBRIS RECORD FOR SUBJECT WATERSHED CONTAINS PERIODIC SURVEY RESULTS ONLY. If the only sediment/debris records that exist for the subject watershed are in the form of accumulated sediment values from the results of periodic surveys, obtain all of the long-term sediment records and determine the average annual sediment yield. Divide the average annual sediment yield by the average annual precipitation for the watershed. Average annual precipitation values for the subject watershed may be found by contacting the applicable county flood control agency, fxom National Weather Service publications, or may be calculated by the investigator using available precipitation gauge data and an appropriate area-averaging method (isohyetal, Thiessen polygons, etc.). The result is the "average annual sediment yield/average annual precipitation (AASY/AAP) ratio". Using this technique, the A-T Factor is determined in the following manner: Step 1/. Determine the drainage area of the subject watershed. Example (Ex.). Drainage Area = 40 mi2 Step 2/. Determine the average annual sediment yield of the subject watershed from available periodic survey data. Ex. Average Annual Sediment Yield = 1.69 ac-ft/mi2/w Step 3/. Determine the average annual precipitation for the subject watershed. Ex. Average Annual Precipitation = 25 in. Step 4/. Determine the AASY/AAP ratio. Divide the average annual sediment yield by the average annual precipitation. Ex. AASY/AAP Ratio (for 40 mi2) = 1.69 ac-ft/mi2/yr / 25 in = 0.07 ac-ft/mi2/w/in Step 5/. Determine the AASY/AAP ratio for an equivalent regression watershed in the San Gabriel Mountains from Figure B-l, using the drainage area of the subject watershed. Ex. AASY/AAP Ratio for Equivalent Watershed San Gabriel Mountains (for 40 mi2) =0.101 Los Angeles District Debris Method November 5, 1998 B-2 S~ep 6/. Determine the A-T Factor for the subject watershed. Take the subject watershed's AASY/AAP ratio (0.07) and divide by the equivalent regression watershed AASY/AAP ratio (0.101). Ex. A-T Factor for the Subject Watershed = 0.07 / 0.101 = .67 TECHNIQUE 3 - NO SEDIMENT/DEBRIS RECORD AVAILABLE FOR SUBJECT WATERSHED. NEARBY WATERSHEDS HAVE PERIODIC SURVEY RESULTS. If there are no sediment/debris records available for the subject watershed, but nearby watersheds have records with data from periodic surveys, obtain all of the long-term sediment records dealing with nearby reservoirs or debris basins and determine the average annual sediment yield for each. Eliminate any watersheds which are felt to have questionable records, significant upstream sediment traps, etc. Using this technique, the A-T Factor is determined in the following manner: Step 1/. Determine the drainage area of each watershed. Ex. Drainage Area = 14 mi2 Ex. Drainage Area = 56 mF Ex. Drainage Area = 200 mi2 Step 2/. Determine the average annual sediment yield for each watershed with periodic survey dam. Ex. Average Annual Sediment Yield = 2.0 ac-fb'mi2/yr Ex. Average Annual Sediment Yield -- 1.4 ac-ft/mF/vr Ex. Average Annual Sediment Yield -- 1.5 ac-ft/mi2/vr Step 3/. Determine the average annual precipitation for each watershed. Ex. Average Annual Precipitation = 29 in. Ex. Average Annual Precipitation = 27 in. Ex. Average Annual Precipitation = 27 in. Step 4/. Determine the AASY/AAP ratio for each watershed. Divide average annual sediment yield by the average armual precipitation of the watershed to determine a ratio and plot these values on Figure B-1. Ex. AASY/AAP Ratio (for 14 mi~) = 2.0/29 = .0__7 Ex. AASY/AAP Ratio (for 56 mi') = 1.4/27 = .0__5 Ex. AASY/AAP Ratio (for 200 mi~) = 1.5/27 = .0--6 Los Angeles Dis~iet Debris Method November 5, 1998 B-3 Step 5/. Establish a best-fit curve through the points using either regression or graphical techniques, and draw this on Figure B-1. This the new "local area curve". Ex. Figure B-2 shows an example of what this should look like. Step 6/. Determine the AASY/AAP yield ratios for the new local area curve and the subject watershed from the original regression watershed curve on Figure B-2 for the subject watershed's drainage area size. Ex. AASY/AAP Ratio from New Local Area Curve (for 42.9 mi2) -- .062 AASY/AAP Ratio from Original Regression Watershed Curve (for 42.9 mi2) =. 100 Step 7/. Determine the A-T Factor for the subject watershed. Divide the value from the new local area curve by the value from the original regression watershed curve. Ex. A-T Factor for the Subject Watershed = (for 42.9 mia) = .062 / .100 = .62 TECHNIQUE 4 - NO RECORDS AVAILABLE FOR SUBJECT WATERSHED OR NEARBY WATERSHEDS. In the absence of any applicable xecords of any kind for the subject or nearby watersheds, Table B- 1, in eonj unction with a detailed field analysis, can be used to determine an approximate A-T Factor. Table B-1 was developed from average annual sediment yield estimation methods currently in use in Southern California, including the Pacific Southwest Inter-Agency Conference (PSIAC) method. Application of this technique must be supported by comparison with San Gabriel Mountain watersheds which were included in the regression equations. Estimates made by use of this technique may possess larger errors in estimation than would result from the application of Techniques 1, 2, or 3. However, this technique provides an alternative approach when sediment or debris yield records are not available at all, or when there are not enough nearby watersheds with data to construct a "local area curve" (Technique 3). For example, assume it is necessary to apply the regression equation to a watershed for which no sediment or debris yield records exist, and which has only one nearby watershed for which these records exist. Since there are not enough comparative watersheds to establish a local area curve on Figure B-l, a field investigation in both watersheds is required to determine the similarities between them. Los Angeles District Debris Method November 5, 1998 B-4 0.16 0.14 I.- .¢ 't.lO >- (t~ -0.08 O.rJ6 AASY = AVERAGE ANNUAL SEDIMENT YIELD 1 4 GP AAP -- AVERAGE ANNUAL PRECIPITATION 16o ...... Watersheds Used In Regression Analysis 1 2 Big Dalton Dam 3 Devil's Gate Dam 4 Faton Wash Dam 5 Santa Anita Dam 6 Sawpit Dem 7 Pacoima Dam 8 Cogswell Dam 9 Big Tujunga Dam 10 San Gabriel Dam 180 200 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD 0.04 0.020 20 40 60 80 1 O0 DRAINAGE AREA (MI2) 120 140 AASY/AAP RATIOS FOR DRAINAGE AREAS 0 TO 200 Mt U.S, ARMY CORPS ¢~)F ENGINEERS LOS ANGELES ISTRICT FIGURE B-1 0.16 ..... ~ ': AVERAkE ANN__UA~L~SEDIMENT''~lFI/d''' AAP = AVERAGE ANNUAL 'PRECIPITATION ' .... ~ Y ....... IIIIli~ll'lllTi~'~f~l_lJ ..... : ===================================== ..... W~ ~ ~ ~:_: In ~ion ~lysis ___ 12 ~tilija ~ .... 2 Big ~n ~ 0.12 '~' 0,06 · 0.04 ' _1 13 Gibraltar Dam 3 Devil's Gate Dam 14 Piru Dam (not shown) 4 Faton Wash Dam ..... 5 Santa Anita Dam __ 6 Sawpit Dam 7 Pacoi~a Dam 8 Cogswell Dam 9 Big Tujunga Dam 10 San Gabriel Dam ._-- ~EG~ESSIO~ ~TER&FE) CLPY=-.~3 ' ~ 'LOCAL ~PE.' ;LP~'~--' ----- "160 180 200 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD 0.020 20 40 60 8o Mi2 DRAINAGE AREA ( ) 100 120 140 -- AASY/AAP RATIOS r FOR DRAINAGE AREAS OTO 200 MI| WITH LOCAL AREA CURVE U.8. ARMY CORPS OF ENGINEER8 LOS ANGELES DISTRICT FIGURE B-2 TABLE B-l: ADJUSTMENT-TRANSPOSITION FACTOR TABLE Parent Material Folding Faulting Fmcturing Weathering Soils Soils Soil Profile A-T Subfactor 0.25 0.20 0.15 0.10 Subfactor Group 1 Severe Moderate Severe Moderate Severe Moderate Severe Moderate Subfactor Group 2 Non-cohesive Partly Cohesive Minimal Soil Profile Some Soil Profile Soil Cover Clay Colloids Channel Morphology Bedrock Exposures Bank Erosion Bed and Bank Materials Vegetation Headcutting Hillslope Morphology Rills and Gullies Mass Movement Debris Deposits Much Bare Soil in Evidence Few Clay Colloids Few Segments in Bedrock >30% of Banks Eroding Non-cohesive Bed and Banks Poorly Vegetated Many Headcuts Many and Active Many Scars Evident Many Eroding Deposits Some Bare Soil in Evidence Some Clay Colloids Subfactor Group 3 Some Segments in Bedrock 10-30% of Banks Eroding Partly Cohesive Bed and Banks Some Vegetation Few HeadcuB Subfactor Group 4 Some Signs Few Signs Evident Some Eroding Deposits I The A-T Factor Is the Sum of the A-T Subfactors from All 4 Subfactor Groups. 0.05 Minor Minor Minor Minor Highly Cohesive Well-developed Soil Profile Little Bare Soil in Evidence Many Clay Colloids Many Segments in Bedrock <10% of Banks Emding Mildly Cohesive Bed and Banks Much Vegetation No Headcutting Few Signs No Signs Evident Few Eroding Deposits Los Angeles District Debris Mcthod November 5, 1998 B-7 The one nearby watershed with records has an average annual sediment yield of 1.1 ac- ft/~'/yr. Field analysis indicated that the nearby watershed is similar in many respects to the subject watershed. Using Technique 2 and Figure B-1 gives a tentative A-T Factor of 0.80. Field observations indicates that the nearby watershed appears to possess the following geomorphic characteristics. The A-T Factor is the summation of the subfactors from each of the four subgroups in Table B-1. a). Moderate to severe folding, fracturing, faulting, and weathering of parent material (Subfactor Group 1 = 0.20). b). Partly cohesive soils with some soil profile development, some bare soil in evidence, and the soil appears to possess some clay colloids (Subfactor Group 2 = 0.15). c). Channel morphology exhibits extremely active erosion, with greater than 50% of all channels actively eroding both bed and banks, few segments in bedrock, extremely unstable bed and bank materials, little protective vegetation, and numerous headcuts in evidence (Subfactor Group 3 = 0.25). d). Hillslopes are heavily filled with some gullying, a few mass movement scars, and a number of actively-eroding colluvial/alluvial deposits (Subfactor Group 4 = 0.20). Adding these four Subfactor Group values together (0.20 + 0.15 + 0.25 + 0.20) results in an A-T Factor of 0.80. This value corroborates the sediment yield record value of 0.80. It must be recognized that Technique 4 is the most subjective of any of the A-T techniques. Estimates determined using this technique should be documented, and if possible, verified by use of one of the earlier techniques. Los Angeles District Debris Method November 5, 1998 B-8 APPENDIX C HOW TO USE THE COINCIDENT FREQUENCY ANALYSIS PROGRAM APPENDIX C HOW TO USE THE COINCIDENT FREQUENCY ANALYSIS (CFA) PROGRAM Introduction. Information on acquiring the Coincident Frequency Analysis computer program made be obtained by contacting the Hydrologic Engineering Center in Davis, California. The telephone number and address are listed on page C-5. In order to evaluate the total probabilities of independent flood and wildfire events, coincident frequency analysis is used to establish the probabilities of varied debris yield volumes in conjunction with the fire history and discharge/precipitation frequency of a watershed. The Coincident Frequency Analysis program was developed by the Hydrologic Engineering Center of the Corps of Engineers at Davis, California. This program evaluates the total probabilities of occurrence of two independent events, in this case, those of wildfire and flood events. It must be recognized that the coincident frequency values generated by the computer program are not the maximum debris yield values to be expected, but rather the expected "mean" debris response, and as such are highly dependent on accurate frequency input for both hydrologic data and fire frequencies. The following is a step-by-step procedure for setting up an input file for use with the Coincident Frequency Analysis program. The procedure assumes the user is already familiar with the COE Debris Method and has previously prepared the appropriate input data (see Example 3, Part 3C in Appendix D). Located in this appendix following the step-by-step procedure is the users manual for the CFA program and following this are the input and output for 4 test examples provided by HEC. Four types of data are used as input for the CFA program; 1) Years-Since-100% Wildfire frequency, 2) discharge frequency, and 3) debris response relationships, along with 4) evaluation data. Los Angeles District Debris Method November 5, 1998 PROCEDURE FOR SETTING UP A CFA INPUT FILE Step 1/. Enter alphanumeric information identifying the location of analysis, project name, file name, user name, date, and any other pertinent information on TI records. Any number of TI records may be used but at least one is required. Step 2/. Enter the Years-Since-100% Wildfire relationship using DS, DT, and DP records. Refer to Appendix A for determining Years-Since- 100% Wildfire frequency relationships (see Table A-3, Appendix A for example). The DS record contains the number of coordinates used to describe the duration relationship in field 1, followed by an alphanumeric description such as "YEARS-SINCE-100% WILDFIRE". The DT record contains values for percent of time equaled or exceeded. The DP record contains the values of Years-Since-100% Wildfire occurrence corresponding to the percent of time equaled or exceeded values on the DT record. Step 3/. Enter the precipitation or discharge frequency data using FS, FR, and FP records (see Table D-3 for example of data). The FS record contains the number of pairs used to describe the discharge frequency relationship in field I followed by an alphanumeric description such as "PEAK FLOW (FT3/S/MI2) - EXISTING CONDITION". The FR record contains percent chance exceedance values. The FP record contains flow values in fi3/s/mi2 corresponding to percent chance exceedance on FR record. Step 4/. Enter the debris response relationships for Years-Since- 100% Wildfire using RS, RD, RF, and RP records. The RS record contains the number of sets of discharge versus debris response relationships in field I (max. 30) followed by an alphanumeric description such as "DEBRIS YIELD IN CU YD/SQ MI". The RD record contains the number of pairs that will be used to describe the debris response relationship followed by the set number for the number of sets on the RS record. The RF record contains the unit peak flow values (in fi3/mi2) beginning with the lowest value and monotonically decreasing. Los Angeles District Debris Method November 5, 1998 C-2 The RP record contains the debris response (in ydVmi2) corresponding to values on the RF record (the values will monotonically decrease if they correspond to values on RF record). Step 5/. Enter an anay of evaluation values on an VS and VR records. The program will use these values to define the debris frequency relationship. The values should cover the range of possible debris yields (max. = 30). The VS record contains the number of evaluation values (max --30) in field one, followed by an alphanumeric description of the response variable name such as "YIELD" left justified in field two followed by an alphanumeric description of the response variable units such as "YD3/MI2" (left justified). The VR record contains values of the response parameter to be evaluated. Successive values must monotonically increase or decrease. Step 6/. Enter a ED record as an end-of-data indicator. Los Angeles District D~bris Method November 5, 1998 C-3 CFA COINCIDENT-FREQUENCY ANALYSIS User's Manual (Preliminary) December 1989 U.S. Army Corps of Engineers Water Resources Support Center The Hydrologic Engineering Center 609 Second Street Davis, California 95616 (916) 756-1104 Los Angeles District Debris Method November 5, 1998 C-4 COINCIDENT-FREQUENCY ANALYSIS PROGRAM This preliminary version of the Coincident-Frequency Analysis Program was written by Harold E. Kubik. The procedures contained in the program are described in lecture outline 64, handout 39, and workshop 25 that is part of the Statistical Methods in Hydrology training course. At this time the program can only analyze situations where the frequency and duration parameters can be assumed to be independent. The Hydrologic Engineering Center (HEC) plans to add capabilities to the program in the future. Assistance may be provided by John Peters at (916) 756-1104. INPUT DESCRIPTION COINCIDENT-FREQUENCY ANALYSIS (CFA) I. Title Information (Required). FIELD VARIABLE VALUE DESCRIPTION 0 ID TI Record identifier. 1 - 10 TITLE Char Character or alphanumeric information to identify the location of the analysis. Any number of TI records may be provided, but at least one is required. II. Job Specifications (Optional). This record defines the transformation that is made to the frequency parameter before the curve fitting procedures are applied, sets number of decimal places and significant figures, and sets amount of diagnostic output. If this record is not provided, the default values under the variable names will be used. FIELD VARIABLE VALUE DESCRIPTION Los Angeles District Debris Method November 5, 1998 C-S 0 ID JI 1 LOGTF (0) 0 2 NDEC (2) 3 NSIG (5) 4 IDGST (0) -1 0 2 Record identifier. The frequency parameter (FP record) is not transformed, recommended for stage-frequency curves. Logarithmic transformation (base 10) will be made, recommended for flow-frequency curves. Number of decimal places in the table of results; 0, 1, 2, or 3 allowed. If blank, default value of 2 will be used. Number of significant figures in table of results. No rounding will be done. Round to five (5) significant figures. Round values to NSIG significant figures. No diagnostic output. Interpolated values will be output during the computational steps. Diagnostic output will be provided for each interpolated value. Caution, will create a lot of output. III. Duration Data. This set of records is used to input the duration curve for the less influential variable. Either a set of DT and DP records must be provided or a ZR record that reads the data from DSS. A. Duration Data Specifications (Required). FIELD VARIABLE VALUE DESCRIPTION Los Angeles District Debris Method November 5, 1998 C-E 0 ID DS 1 NDPTS + 2-10 LOCIDD Char B. Percent of Time Exceeded Ordinates (Optional). This record is provided ifNDPTS is positive. FIELD VARIABLE VALUE 0 ID DT 1 - 10 PTIME + C. Duration Parameter Ordinates (Optional). This record is provided ifNDPTS is positive. FIELD VARIABLE VALUE 0 ID DP 1 - 10 DPAR + D. DSS Input Pathname (Optional). This record is provided if NDPTS is blank or zero. Record identifier. Number of coordinates tised to describe the duration curve. Data are input on DT and DP records. Must be zero, or blank, if data are read from DSS.(Maximum of 30 points.) Location of the less influential variable. DESCRIPTION Record identifier. Percent of time that the duration parameter is exceeded. Values must monotonically increase or decrease. DESCRIPTION Record identifier. Duration parameter values that correspond to the percent of time exceeded ordinates provided on the previous record (DT). FIELD VARIABLE VALUE 0 ID ZR DESCRIPTION Record identifier. Los Angeles District Debris Method November 5, 1998 C-7 1 - 10 (pathname) Char DSS pathname of duration dam. Must be complete pathname or pathname parts if this is the first ZR record. Subsequent ZR records need only provide those pathname parts that are different. IV. Frequency Data. This set of records is used to input the frequency curve for the more influential variable. Either a set of FR and FP records must be provided or a ZR record that reads data from DSS. A. Frequency Data Specifications (Required). FIELD VARIABLE VALUE 0 ID FS I NFPTS + -1 2-10 LOCIDF Char B. Exceedance Frequency Ordinates (Optional). This record is provided ifNFPTS is positive. FIELD VARIABLE VALUE 0 ID FR 1-10 FREQ + C. Frequency Parameter Ordinates (Optional). This record is provided ifNFPTS is positive. DESCRIPTION Record identifier. Number of coordinates used to describe the frequency curve. Data are input on FR and FP records. Must be zero, or blank, if data are read from DSS. (Maximum of 20 points.) Frequency data are not provided and SFPV values (RF record) provided for the response function are percent chance exceedante values. Location identification of the more influential variable. DESCRIPTION Record identifier. Percent chance exceedance values. Los Angeles District Debris Method November 5, 1998 FIELD VARIABLE VALUE DESCRIPTION 0 ID FP Record identifier. 1 - 10 FPAR + D. DSS Input Pathname (Optional). Frequency parameter values that correspond to the percent chance exceedance values on the previous record (FR). These values must monotonically increase or decrease. This record is provided ifNFPTS is blank or zero. FIELD VARIABLE VALUE DESCRIPTION 0 ID ZR Record identifier. I - 10 (pathname) Char DSS pathname of frequency dam. Must be complete pathname or pathname parts if this is the first ZR record. Subsequent ZR records need only provide those pathname parts that are different. V. Response Function Data. These sets of records input the physical relationship between the frequency parameter, the response variable, and the duration parameter. A frequency parameter versus response function is provided for NCURV duration parameter values. If NFPTS (FS record) is equal to (-1 ), then the frequency parameter record will contain percent chance exceedance values. A. Response Data Specifications (Required). FIELD VARIABLE VALUE DESCRIPTION 0 ID RS Record identifier. 1 NCURV + Number of sets of frequency parameter -versus- response function curves (RD, RF, and RP records to provide. (Maximum of 30 points.) 0 Read from DSS (not programmed yet). Los Angeles District Debris Method November 5, 1998 C-9 -1 A negative value for NCURV indicates that the response functions can be computed from the duration parmeter and the frequency parameter. This is primarily used for lake-stage frequency analysis where the duration parameter is based on mean monthly lake levels and the frequency parameter is wind setup. The wind setup is added to the mean monthly lake level to obtain the response parameter. (Sets of RD, RF, and RP must not be provided.) 2-10 LOCIDR Char Location identification of response function parameter. B. Duration Parameter Value (Optional). NCURV sets of the records described in paragraphs B, C, and D are provided ifNCURV is positive. FIELD VARIABLE VALUE DESCRIPTION 0 ID RD Record identifier. I NRPTS + Number of coordinates used to describe the frequency parameter -versus- response function relationship that is defined for the duration parameter SDPV. (Maximum of 20 points.) 2 SDPV + Value of the duration parameter on which the following response function (defined in paragraphs C and D) has been based. The NCURV values of SDPV for the successive sets must monotonically increase or decrease. C. Frequency Parameter Values (Optional). FIELD VARIABLE VALUE DESCRIPTION 0 ID RF Record identifier. Los Angeles District Dcbris Mcthod Novcmbcr 5. 1998 1 - 10 SFPV NRPTS values of the frequency parameter. IfNFPTS is (-1), the SFPV values are percent chance exceedance. D. Response Parameter Values (Optional). FIELD VARIABLE VALUE DESCRIPTION 0 ID RP Record identifier. 1-10 RFUN + NRPTS values of the response parameter that correspond to the SFPV values on the previous record. These values must monotonically increase or decrease. VI. Evaluation Data. This set of records provides for writing results to DSS and allows the input of values of the response parameter that will be used to develop the frequency curve of the response parameter. Be sure that the input values include the full range of expected values otherwise inaccurate extrapolations may take place. A. Evaluation Specifications (Required) FIELD VARIABLE VALUE DESCRIPTION 0 ID VS Record identifier. I NEVAL + Number of evaluation values of the response parameter. (Maximum of 30 values.) The evaluation values will be computed by the program. The nominal number of values will be set to the maximum size of the array, currently dimensioned for 30 values. The evaluation values will be computed by the program. The nominal number of values will be set to #. A. Evaluation Specifications, VS record (Continued). Los Angeles District Debris Method November 5. 1998 FIELD VARIABLE VALUE 2 RPNAME Char 3 RPUNIT Char A. Evaluation Specifications, VS record (Continued). FIELD VARIABLE VALUE 4 RPMIN + 5 RPMAX + B. Evaluation Values (Optional). This record is provided ifNEVAL is positive. FIELD VARIABLE VALUE 0 ID VR 1 - 10 EVAL + DESCRIPTION Response variable name left jhstified. Only the first 4 characters are used in the table heading and written to DSS. Response variable units left justified. All 8 characters are used in the table heading and written to DSS. DESCRIPTION Minimum value for range of response variable to use in computing evaluation values. If both RPMIN and RPMAX are blank, the values will be computed from the input data. Maximum value for range. See description of RPMIN. DESCRIPTION Record identifier. Values of the response parameter to be evaluated. Successive values must monotonically increase or decrease. VII. DSS OUTPUT PATHNAME (Optional) This record is provided if results are to be written to DSS. FIELD VARIABLE VALUE 0 ID ZW 1 - I 0 (pathname) Char DESCRIPTION Record identifier. DSS pathname to write results. Must be complete pathname or pathname parts Los Angeles District Dcbris Method Novcmbcr 5. 1998 if this is the first ZW record. Subsequent ZW records need only provide those pathname parts that are different. VIII. END-OF-DATA INDICATOR (Required). ED records are used to separate data sets. Another data set may follow or the job will terminate if no other records are found. FIELD VARIABLE VALUE DESCRIPTION 0 ID ED End-of-data indicator for data set. Program will process data and output results before attempting to read the next data set. Los Angeles District Debris Method November 5, 1998 SUMMARY OF INPUT RECORDS COINCIDENT-FREQUENCY ANALYSIS (CFA) I. Title Information: * TI, TITLE (One or more title records of character information). II. Job Specifications: J 1 LOGTF NDEC 0 2 5 NSIG JTRAC 0 (Default values if no J 1 record). III. Duration Data: · .. Specifications: * DS NDPTS LOCIDD +# (Number of Duration data on each DT and DP record). 0 (Duration data will be read from DSS). · .. Percent of Time Values: DT PTIME (If NDPTS positive, NDPTS values). · .. Duration Parameter Values: DP DPAR (See DT record). · .. DSS Input Pathname: ZR (IfNDPTS is blank or zero, DSS pathname for data). IV. Frequency Relationship: ... Specifications: * FS NFPTS LOCIDF +# (Number of Frequency data on each FR and FP record)· 0 (Frequency data will be read from DSS). -1 (Frequency data not input, response values [RF] are frequency data). · .. Exceedance Frequency Values: FR FREQ (IfNFPTS is positive, NFPTS values). · .. Frequency Parameter Values: Los Angeles District Debris Method November 5, 1998 FP FPAR (See FR record). · .. DSS Input Pathname: ZR (IfNDPTS is blank or zero, DSS pathname for data). V. Response Function Data: ... Specifications: * RS NCURV LOCIDR +# (Number of sets of RD, RF and RP records)· 0 (DSS read not programmed yet). -1 (Response functions computed, no RD, RF, RP records needed). · .. Duration Parameter Value: RD NRPTS SDPV (If NCURV is positive, NCURV sets of RD, RF and RP records). · .. Frequency Parameter Values: RF SFPV (IfNCURV is positive, NRPTS values). · .. Response Parameter Values: RP RFUN (See RD record)· VI. Evaluation Data: · .. Specifications: * VS NEVAL RPNAME RPUNIT RPMIN RPMAX +# (Number of Evaluation values on VR record). 0 (Evaluation values will be computed by program, around 30). -# (Nominal number of values desired, cannot exceed 30). · .. Evaluation Values: VR EVAL (If NEVAL is positive, NEVAL values)· VII. DSS Output Pathname: ZW (Pathname if DSS write of results is desired)· VIII. End-of-Data Indicator: * ED Another data set may follow or the job will terminate if no other records found· * Indicates a required record· Los Angeles District Debris Method November 5, 1998 TEST NO. I Input for Test No. 1 TI TEST NO. 1 COINCIDENT FREQUENCY WORKSHOP P-25 TI INPUT IS STAGE-DURATION CURVE, FLOW-FREQUENCY CURVE AND TI CONDITIONAL BACKWATER CURVES J1 1 DS 10 MAIN RIVER STAGES AT B DT .01 10. 10.8 30. 39. 50. 62.5 DP 62.8 62. 61.4 60. 58.6 56° 53.3 FS 7 FLOW-FREQUENCY AT A FR 99.99 90. 50. 10. t. .1 .01 FP 1500 3000 4200 6000 8000 10000 12000 RS 6 RESPONSE -- STAGES AT C RD 4 50. RF 1500 3000 6000 10000 RP 52 55 60 65 RD 4 53.33 RF 1500 3000 6000 10000 RP 55 57.7 62.2 67.7 RD 4 56 RF 1500 3000 6000 10000 RP 57.5 60 64 68 RD 4 58.6 RF 1500 3000 6000 10000 RP 59.6 62.2 65.8 69.3 RD 4 61.4 RF 1500 3000 6000 10000 RP 62 64.5 67.6 70.7 RD 4 62 RF 1500 3000 6000 10000 RP 62.5 65 68 71 VS 16 STAGEFEET VR 55 56 57 58 59 60 61 VR 65 66 67 68 69 70 ED 70. 84.5 99.99 52. 50.5 49.2 62 63 64 Outout for Test No. 1 * CFA * COINCIDENT FREQUENCY ANALYSIS * PROGRAM DATE: DEC 1989 * VERSION DATE: 18SEP1990 * RUN DATE AND TIME: * 19 SEP 90 08:33:29 INPUT FILE NAME: CFA.DAT OUTPUT FILE NAME: CFA.OUT DSSIN FILE NAME: CFA DSSOUT FILE NAME: CFA * U.S. ARMY CORPS OF ENGINEERS * THE HYDROLOGIC ENGINEERING CENTER * 609 SECOND STREET * DAVIS, CALIFORNIA 95616 * (916) 756-1104 Los Angeles District Debris Me|hod November 5, 1998 ..... DSS---ZOPEN: Existing File Opened, File: CFA.DSS Unit: 71; DSS Version: 6-EA ** TITLE INFOP~MATION ** TI TEST NO. 1 COINCIDENT FREQUENCY WORKSHOP P-25 TI INPUT IS STAGE-DURATION CURVE, FLOW-FREQUENCY CURVE AND TI CONDITIONAL BACKWATER CURVES ** JOB SPECIFICATIONS LOGTF NDEC NSIG J1 1 JTRAC ** DURATION CURVE DATA DS 10 MAIN RIVER STAGES AT B DT .01 10. 10.8 30. DP 62.8 62. 61.4 60. 39. 50. 62.5 58.6 56. 53.3 *~ FREQUENCY CURVE DATA FS 7 FLOW-FREQUENCY AT A FR 99.99 90. 50. 10. FP 1500 3000 4200 6000 1. .1 .01 8000 10000 12000 ** RESPONSE FUNCTION CURVES ** RS 6 RESPONSE -- STAGES AT C CURVE 1 RD 4 50.000 RF 1500 3000 6000 10000 RP 52 55 60 65 CURVE 2 RD 4 53.300 RF 1500 3000 6000 10000 RP 55 57.7 62.2 67.7 CURVE 3 RD 4 56.000 RF 1500 3000 6000 10000 RP 57.5 60 64 68 CURVE 4 RD 4 58.600 RF 1500 3000 6000 10000 RP 59.6 62.2 65.8 69.3 CURVE 5 RD 4 61.400 RF 1500 3000 6000 10000 RP 62 64.5 67.6 70.7 CURVE 6 RD 4 62.000 RF 1500 3000 6000 10000 RP 62.5 65 68 71 ** EVALUATION DATA ~* NEVAL RPNAME RPUNIT PRMIN PRMAX VS 16 STAGE FEET .00 .00 VR 55 56 57 58 59 60 61 VR 65 66 67 68 69 70 70. 84.5 99.99 52. 50.5 49.2 62 63 64 Los Ang¢lcs District Debris Mcthod November 5, 1998 END OF INPUT DATA ED++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ -COMPUTED PERCENT CHANCE EXCEEDANCE VALUES- RESPONSE VALUES 55.00 56.00 57.00 58.00 59.00 60.00 61.00 62.00 63.00 64.00 65.00 66.00 67.00 68.00 69.00 70.00 FREQUENCY VALUES 97.55 94.05 87.78 80.17 72.07 64.35 57.33 50.99 44.62 36.62 26.77 15.98 7.23 2.44 .62 .13 -INTERPOLATED FREQUENCY FREQ RESPONSE VALUES- STAGE IN FEET .2 69.74 · 5 69.15 1.0 68.67 2.0 68.16 5.0 67.37 10.0 66.63 20.0 65.62 30.0 64.69 40.0 63.60 50.0 62.16 60.0 60.61 70.0 59.26 80.0 58.02 90.0 56.69 95.0 55.79 99.0 54.14 * - INDICATES EXTRAPOLATED VALUE(S) JOB COMPLETE LOS Angeles District Debris Method November 5, 1998 TEST NO. 2 Input for Test No. 2 TI TI TI TI DS DT DT 99.99 DP 572 DP 561 FS -1 RS 5 RD 10 RF 50 RP 565.0 RD 10 RF 50 RP 566.0 RD 10 RF 50 TEST NO. 2 INTERIOR PONDING EXAMPLE INPUT IS STAGE- DURATION CURVE AND RESPONSE CURVES CONDITIONED ON PERCENT CHANCE EXCEEDANCE IGNORE RESULTING FREQUENCY CURVE BELOW 565 FT. 11 MISSISSIPPI RIVER STAGES AT MOLINE, ILL APR-JUN .01 .12 .22 .50 1.10 2.20 4.30 570 569 568 567 566 565 10.50 23.00 61.00 564 563 562 FREQUENCY CURVE NOT REQUIRED, RESPONSE IS VERSUS EXCEEDANCE FREQUENCY MAXIMUM POND ELEVATION (APR-JUN) VS FREQUENCY FOR GIVEN MISS. STAGE 562 48 30 20 10 5 2 1 .5 .2 565.1 565.2 565.5 566.0 566.5 567.0 567.3 567.5 567.8 564 40 30 20 10 5 2 1 .5 .2 566.1 566.3 566.6 566.8 567.1 567.4 567.7 567,9 568.1 566 40 30 20 10 5 2 1 .5 .2 RP567.35 567.4 567.45 567.5 567.6 567.8 568.1 568.3 568.5 568.7 RD 10 568 RF 50 40 30 20 10 5 2 1 .5 .2 RP 568.4 568.45 568.5 568.6 568.7 568.9 569.2 569.4 569.6 570.0 RD 10 570 RF 50 40 30 20 10 5 2 1 .5 .2 RP568.85 568.9 569.0 569.2 569.4 569.7 570.1 570.3 570.6 570.9 VS 7ELEVATONFEET VR 565 566 567 568 569 570 571 ED Output for Test No. 2 * CFA * COINCIDENT FREQUENCY ANALYSIS * PROGRAM DATE: DEC 1989 VERSION DATE: 18SEP1990 * RUN DATE AND TIME: * 19 SEP 90 08:33:29 * U.S. ARMY CORPS OF ENGINEERS * THE HYDROLOGIC ENGINEERING CENTER * 609 SECOND STREET * DAVIS, CALIFORNIA 95616 * (916) 756-1104 , INPUT FILE NAME: CFA.DAT OUTPUT FILE NAME: CFA.OUT DSSIN FILE NAME: CFA DSSOUT FILE NAME: CFA Los Angeles District Debris Mcthod Novcmbcr 5, 1998 C-19 ** TITLE INFORMATION ** TI TEST NO. 2 INTERIOR PONDING EXAMPLE TI INPUT IS STAGE- DURATION CURVE AND RESPONSE CURVES CONDITIONED ON TI PERCENT CHANCE EXCEEDANCE TI IGNORE RESULTING FREQUENCY CURVE BELOW 565 FT. ** DURATION CURVE DATA DS 11 MISSISSIPPI RIVER STAGES AT MOLINE, ILL APR-JUN DT .01 .12 .22 .50 1.10 2.20 4.30 DT 99.99 DP 572 570 569 568 567 566 565 DP 561 10.50 23.00 61.00 564 563 562 ** FREQUENCY CURVE DATA ** FS -t FREQUENCY CURVE NOT REQUIRED, RESPONSE IS VERSUS EXCEEDANCE FREQUENCY ** RESPONSE FUNCTION CURVES RS 5 MAXIMUM POND ELEVATION (APR-JUN) VS FREQUENCY FOR GIVEN MISS. STAGE CURVE 1 RD 10 562.000 RF 50 40 30 20 10 5 2 1 .5 .2 RP 565.0 565.1 565.2 565.5 566.0 566.5 567.0 567.3 567.5 567.8 CURVE 2 RD 10 564.000 RF 50 40 30 20 10 5 2 1 .5 .2 RP 566.0 566.1 566.3 566.6 566.8 567.1 567.4 567.7 567.9 568.1 CURVE 3 RD 10 566.000 RF 50 40 30 20 10 5 2 1 .5 .2 RP567.35 567.4 567.45 567.5 567.6 567.8 568.1 568.3 568.5 568.7 CURVE 4 RD 10 568.000 RF 50 40 30 20 10 5 2 1 .5 .2 RP 568.4 568.45 568.5 568.6 568.7 568.9 569.2 569.4 569.6 570.0 CURVE 5 RD 10 570.000 RF 50 40 30 20 10 5 2 1 .5 .2 RP568.85 568.9 569.0 569.2 569.4 569.7 570.1 570.3 570.6 570.9 ** EVALUATION DATA ** NEVAL RPNAME RPUNIT PRMIN pRMAX VS 7 ELEVATON FEET .00 .00 VR 565 566 567 568 569 570 ** END OF INPUT DATA ** 571 ED++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ -COMPUTED PERCENT CHANCE EXCEEDANCE VALUES- RESPONSE VALUES 565.00 566.00 567.00 568.00 569.00 570.00 571.00 Los Angeles Districl Dcbris Method November 5, 1998 C-20 FREQUENCY VALUES 61.54 21.40 6.95 1.29 -INTERPOLATED FREQUENCY FREQ RESPONSE VALUES- ELEVATON IN FEET .2 568.79 .5 568.42 1.0 568.12 2.0 567.77 5.0 Q67.23 10.0 566.70 20.0 566.06 30.0 565.71 40.0 565.46 50.0 565.24 60.0 565.03 70.0 564.82 * 80.0 564.57 * 90.0 564.23 * 95.0 563.95 * 99.0 563.42 * * - INDICATES EXTRAPOLATED VALUE(S) .12 .01 .00 JOB COMPLETE Los Angclcs District Dcbris Mcthod November 5, 1998 TEST NO. 3 Input for Test No. 3 TI TEST NO. 3 LAKE LEVEL EXAMPLE FROM HANDOUT-39 TI RESPONSE FUNCTIONS COMPUTED BY ADDING WIND SETUP TO DURATION CURVE VALUES TI EVALUATION POINTS (VR RECORD) COMPUTED BY PROGRAM DS 10 LAKE MICHIGAN-HURON DURATION CURVE DT 99. 94. 85. 70. 50. 30. 15. 6. 1. DP -1.10 -.4 .38 1.17 1.94 2.67 3.33 3.93 4.65 FS 9 ANNUAL WIND SETUP AT GREEN BAY, WISCONSIN FR 99. 95. 80. 50. 20. 10. 5. 2. 1. FP 1.16 1.57 2.06 2.58 3.09 3.35 3.58 3.83 3.99 RS -1 TOTAL LAKE LEVEL VS -10 STAGEFEET ED .08 5.20 Output for Test No. 3 * CFA * COINCIDENT FREQUENCY ANALYSIS * PROGRAM DATE: DEC 1989 * VERSION DATE: 18SEP1990 * RUN DATE AND TIME: * 19 SEP 90 08:33:30 * U.S. ARMY CORPS OF ENGINEERS * THE HYDROLOGIC ENGINEERING CENTER * 609 SECOND STREET * DAVIS, CALIFORNIA 95616 * (916) 756-1104 INPUT FILE NAME: CFA.DAT OUTPUT FILE NAME: CFA.OUT DSSIN FILE NAME: CFA DSSOUT FILE NAME: CFA ** TITLE INFORMATION ** TI TEST NO. 3 LAKE LEVEL EXAMPLE FROM HANDOUT-39 TI RESPONSE FUNCTIONS COMPUTED BY ADDING WIND SETUP TO DURATION CURVE VALUES TI EVALUATION POINTS (VR RECORD) COMPUTED BY PROGRAM *~ DURATION CURVE DATA DS 10 LAKE MICHIGAN-HURON DURATION CURVE DT 99. 94. 85. 70. 50. DP -1.10 -.4 .38 1.17 1.94 30. 15. 6. 1. .08 2.67 3.33 3.93 4.65 5.20 ** FREQUENCY CURVE DATA FS 9 ANNUAL WIND SETUP AT GREEN BAY, WISCONSIN FR 99. 95. 80. 50. 20. 10. FP 1.16 1.57 2.06 2.58 3.09 3.35 5. 2. 1. 3.58 3.83 3.99 ** RESPONSE FUNCTION CURVES ** RS -1 TOTAL LAKE LEVEL CURVE 1 RD 9 (Note: Response functions have been computed by the program.) -1.100 Los Angeles District Debris Method November 5, 1998 C-22 RF 1.160 1.570 2.060 2.580 3.090 3.350 3.580 3.830 3.990 RP .060 .470 .960 1.480 1.990 2.250 2.480 2.730 2.890 CURVE 2 RD 9 -.400 RF 1.160 1.570 3.990 RP .760 1.170 3.590 CURVE 3 RD 9 .380 RF 1.160 1.570 3.990 RP 1.540 1.950 4.370 CURVE 4 RD 9 1.170 RF 1.160 1.570 3.990 RP 2.330 2.740 5.160 CURVE 5 RD 9 1.940 RF 1.160 1.570 3.990 RP 3.100 3.510 5.930 CURVE 6 RD 9 2.670 RF 1.160 1.570 3.990 RP 3.830 ~.240 6.660 CURVE 7 RD 9 3.330 RF 1.160 1.570 3.990 RP 4.490 4.900 7.320 CURVE 8 RD 9 3.930 RF 1.160 1.570 3.990 RP 5.090 5.500 7.920 CURVE 9 RD 9 4.650 RF 1.160 1.570 3.990 RP 5.810 6.220 8.640 2.060 1.660 2.060 2.440 2.060 3.230 2.060 4.000 2.060 4.730 2.060 5.390 2.060 5.990 2.060 6.710 2.580 2.180 2.580 2.960 2.580 3.750 2.580 4.520 2.580 5.250 2.580 5.910 2.580 6.510 2.580 7.230 3.090 2.690 3.090 3.470 3.090 4.260 3.090 5.030 3.090 5.760 3.090 6.420 3.090 7.020 3.090 7.740 3.350 2.950 3.350 3.730 3.350 4.520 3.350 5.290 3,350 6.020 3.350 6.680 3.350 7.280 3.350 8.000 3.580 3.180 3.580 3.960 3.580 4.750 3.580 5.520 3.580 6.250 3.580 6.910 3.580 7.510 3.580 8.230 3.830 3.430 3.830 4.210 3.830 5.0O0 3.830 5.770 3.830 6.500 3.830 7.160 3.830 7.760 3.830 8.480 Los Angeles District Debris Mcthod Novcmbcr 5, 1998 C-23 CURVE 10 RD 9 5.200 RF 1.160 1.570 2.060 2.580 3.090 3.350 3.580 3.830 3.990 RP 6.360 6.770 7.260 7.780 8.290 8.550 8.780 9.030 9.190 ** EVALUATION DATA *~ NEVAL RPNAME RPUNIT PRMIN PRMAX VS -10 STAGE FEET .00 .00 (Note: Evaluation values have been computed by the program.) VR .000 1.000 2.000 3.000 4.000 5.000 6.000 7.000 8.000 9.000 10.000 END OF INPUT DATA ED++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ -COMPUTED PERCENT CHANCE EXCEEDANCE VALUES- RESPONSE VALUES .00 1.00 2.00 8.00 9.00 10.00 3.00 4.00 5.00 6.00 7.00 FREQUENCY VALUES 99.98 99.17 94.28 .44 .01 .00 82.40 62.50 37.37 15.60 3.84 -INTERPOLATED FREQUENCY FREQ RESPONSE VALUES- STAGE IN FEET .2 8.27 .5 7.95 1.0 7.67 2.0 7.35 5.0 6.84 10,0 6.37 20.0 5.76 30.0 5.30 40.0 4.90 50.0 4.50 60.0 4.10 70.0 3.66 80.0 3.14 90.0 2.44 95.0 1.91 99.0 1.07 JOB COMPLETE Los Angclcs District Debris Method Novcmbcr 5, 1998 C-24 TEST NO. 4 Input for Test No. 4 TI TEST NO. 4 LAKE LEVEL DATA WITH DSS READ AND WRITE DS 0 LAKE MICHIGAN-HURON DURATION CURVE ZR/CFA TEST NO. 4/LAKE LEVELS/FREQ-ELEV//1974/DURATION CURVE/ FS 0 ANNUAL WIND SETUP AT GREEN BAY, WISCONSIN ZR F=FREQUENCY CURVE RS -1 TOTAL LAKE LEVEL VS 0 ELEVFEET ZW/CFA TEST NO. 4/LAKE LEVELS///1974/CFA OUTPUT/ ED Output for Test No. 4 * CFA * COINCIDENT FREQUENCY ANALYSIS * PROGRAM DATE: DEC 1989 * VERSION DATE: 18SEP1990 * RUN DATE AND TIME: * 19 SEP 90 08:33:31 INPUT FILE NAME: CFA.DAT OUTPUT FILE NAME: CFA.OUT DSSIN FILE NAME: CFA DSSOUT FILE NAME: CFA * U.S. ARMY CORPS OF ENGINEERS * THE HYDROLOGIC ENGINEERING CENTER * 609 SECOND STREET * DAVIS, CALIFORNIA 95616 * (916) 756-1104 ** TITLE INFORMATION TI TEST NO. 4 LAKE LEVEL DATA WITH DSS READ AND WRITE ** DURATION CURVE DATA ** DS 0 LAKE MICHIGAN-HURON DURATION CURVE ZR/CFA TEST NO. 4/LAKE LEVELS/FREQ-ELEV//1974/DURATION CURVE/ --ZREAD: /CFA TEST NO. 4/LAKE LEVELS/FREQ-ELEV//1974/DURATION CURVE/ DT .250 1.250 6.000 15.000 30.000 50.000 70.000 85.000 94.000 98.750 99.750 DP 581.620 581.120 580.320 579.700 579.110 578.340 577.580 577.000 576.450 575.720 575.430 ** FREQUENCY CURVE DATA ** FS 0 ANNUAL WIND SETUP AT GREEN BAY, WISCONSIN ZR F=FREQUENCY CURVE --ZREAD: /CFA TEST NO. 4/LAKE LEVELS/FREQ-ELEV//1974/FREQUENCY CURVE/ Los Angeles District Debris Method November 5, 1998 C-25 FR .200 ' .500 1.000 2.000 5.000 10.000 20.000 50.000 80.000 90.000 95.000 99.000 FP 4.560 4.190 3.920 3.650 3.290 3.010 2.730 2.280 1.950 1.800 1.700 1.530 ** RESPONSE FUNCTION CURVES ** RS -1 TOTAL LAKE LEVEL (Note: Response functions have been computed by the program.) CURVE 1 RD 12 581.620 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 t.530 RP 586.180 585.810 585.540 585.270 584.910 584.630 584.350 583.570 583.420 583.320 583.150 CURVE 2 RD 12 581.120 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 1.530 RP 585.680 585.310 585.040 584.770 584.410 584.130 583.850 583.070 582.920 582.820 582.650 CURVE 3 RD 12 580.320 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 1.530 RP 584.880 584.510 584.240 583.970 583.610 583.330 583.050 582.270 582.120 582,020 581.850 CURVE 4 RD 12 579.700 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 1.530 RP 584.260 583.890 583.620 583.350 582.990 582.710 582.430 581.650 581.500 581.400 581.230 CURVE 5 RD 12 579.110 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 1.530 RP 583.670 583.300 583.030 582.760 582.400 582.120 581.840 581.060 580.910 580.810 580.640 CURVE 6 RD 12 578.340 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 1.530 RP 582.900 582.530 582.260 581.990 581.630 581.350 581.070 580.290 580,140 580.040 579.870 CURVE 7 RD 12 577.580 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 1.950 1.800 1.700 1.530 RP 582.140 581.770 581.500 581.230 580,870 580.590 580.310 579.530 579.380 579.280 579.110 2.280 583.900 2.280 583.400 2.280 582.600 2.280 581.980 2.280 581.390 2.280 580.620 2.280 579.860 Los Angeles District Debris Mcthod Novcmbcr 5, 1998 C-26 CURVE 8 RD 12 577.000 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 2.280 1.950 1.800 1.700 1.530 RP 581.560 581.190 580.920 580.650 580.290 580.010 579.730 579.280 578.950 578.800 578.700 578.530 CURVE 9 RD 12 576.450 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 2.280 1.950 1.800 1.700 1.530 RP 581.010 580.640 580.370 580.100 579.740 579.460 579.180 578.730 578.400 578.250 578.150 577.980 CURVE 10 RD 12 575.720 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 2.280 1.950 1.800 1.700 1.530 RP 580.280 579.910 579.640 579.370 579.010 578.730 578.450 578.000 577.670 577.520 577.420 577.250 CURVE 11 RD 12 575.430 RF 4.560 4.190 3.920 3.650 3.290 3.010 2.730 2.280 1.950 1.800 1.700 1.530 RP 579.990 579.620 579.350 579.080 578.720 578.440 578.160 577.710 577.380 577.230 577.130 576.960 ** EVALUATION DATA ** NEVAL RPNAME RPUNIT PRMIN pRMAX VS 0 ELEV FEET .00 .00 (Note: Evaluation values have been computed by the program.) VR 576.500 577.000 577.500 578.000 578.500 579.000 579.500 580.000 580.500 581.000 581.500 582.000 582.500 583.000 583.500 584.000 584.500 585.000 585.500 586.000 586.500 WRITE DSS PATHNAME/PARTS ** ZW/CFA TEST NO. 4/LAKE LEVELS///1974/CFA OUTPUT/ END OF INPUT DATA ED++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ -COMPUTED PERCENT CHANCE EXCEEDANCE VALUES- RESPONSE VALUES 576.50 577.00 577.50 578.00 578.50 579.00 579.50 580.00 580.50 581.00 581.50 582.00 582.50 583.00 583.50 584.00 584.50 585.00 585.50 586.00 586.50 FREQUENCY VALUES November 5, 1998 Los Angeles District Debris Method C-27 100.00 99.99 99.60 98.23 95.34 54.98 42.54 29.56 18.22 10.00 .23 .06 .02 .00 .00 89.40 5.05 79.71 2.17 68.00 .77 -INTERPOLATED FREQUENCY VALUES- FREQ RESPONSE ELEV IN FEET .2 584.56 .5 584.18 1.0 583.88 2.0 583.54 5.0 583.01 10.0 582.50 20.0 581.91 30.0 581.48 40.0 581.10 50.0 580.70 60.0 580.31 70.0 579.92 80.0 579.49 90.0 578.96 95.0 578.54 99.0 577.77 --ZWRITE: /CFA TEST NO. 4/LAKE LEVELS/FREQ-ELEV//1974/CFA OUTPUT/ JOB COMPLETE ..... DSS---ZCLOSE Unit: 71, File: CFA.DSS Pointer Utilization: .25 Number of Records: 3 File Size: 6.7 Kbytes Percent Inactive: .0 ++++++++++++++++++++ NORMAL STOP IN CFA +++++++++~++++++++++ Los Angeles Dislrict Debris Method November 5, 1998 C-28 APPENDIX D EXAMPLE APPLICATIONS APPENDIX D EXAMPLE APPLICATIONS Example 1: Application of Equation I. Expected Debris Yield From a Small Watershed For a Specified Precipitation Event. Problem: Determine the expected unit debris yield and volume of debris to Bailey Canyon Debris Basin in the San Gabriel Mountains (see Figure D-l) resulting from a flood equivalent to that experienced during the storm period of February 5-22, 1979. The predicted debris yield results will be compared to that actually measured at this site for the same flood event. Step 1/. Determine the maximam 1-hour precipitation (P) applicable to the flood event and multiply by 100. Analysis of Los Angeles County Department of Public Works records indicated a maximum 1 -hour precipitation for this site of 0.50 inches, as measured at gauge #63. The maximum 1-hour precipitation multiplied by 100 is 5_.Q0. Step 2/. Draw the drainage boundary and determine the area of the watershed (A) in mi2 and ac. Using a standard 1:24,000 USGS topographic map and a planimeter, the area of the watershed was determined to be 0.6 mi2, or 384 ac. Step 3/. Determine the relief ratio (RR) of the watershed. Locate the highest point in the watershed at the end of the longest watercourse (4005 ft NGVD), and the lowest point (1170 ft NGVD) at the existing debris basin site; determine the difference between these two in feet. Next, determine the length of the longest watercourse, in miles (1.59 mi). Express the difference between the high and low elevations (in ft) and the length of the longest watercourse (in mi) as a ratio. In this example: 4005 - 1170 = 2835 ft, divided by 1.59 mi = 1783 ft/mi Step 4/. Determine the Fire Factor (FF) for the subject watershed. Using Figure 2 from the main text because the drainage area is less than 3 mi2, and knowing that the watershed suffered a 100% extent bum less than 1 year earlier (in October 1978), we see that the Fire Factor for a drainage area of 0.60 mi2 less than one year after a 100% bum is 6.50. (Remember, we are determining debris yield for the flood of February 5-22, 1979.) Los Angeles District Debris Method November 5, 1998 LEGEND ooo o toDD 2000 3000 -- STREAM CHANNEL FEET I~ 'DRAINAGE BOUNUARY DEBRIS BASIN Figure D-l: Example Application 1 Bailey Canyon Debris Basin, Sierra Madre, Ca. Drainage Area = 384 acres Los Angeles District Debris Mcthod D-2 November 5. 1998 Step 5/. Determine the Adjustment-Transposition Factor (A-T). Since the watershed is located within the area in which the regression analysis data was obtained, the A-T Factor is assumed to be 1.00. Step 6/. Calculate the Log (Base 10) of the factors P, RR, and A. FF and A-T are dimensionless and are used as is. From STEP 1, Log (P) From STEP 2, Log (A) From STEP 3, Log (RR) From STEP 4, FF From STEP 5, A-T = Log (50) = 1.70 = Log (384) = 2.58 = Log (1783) = 3.25 = 6.50 = 1.00 Step 7/. Since the drainage area is less than 3.0 mi~, the use of Equation I is appropriate. Solve for unit debris yield using the above values: Log Dy = 0.65 (Log P) + 0.18 (Log A) + 0.62 (Log RR) + 0.12 (FF) Log Dy = 0.65 (1.70) + 0.18 (2.58) + 0.62 (3.25) + 0.12 (6.50) Log Dy = 1.104 + 0.465 + 2.016 + 0.780 Log Dy = 4.365 Step 8/. Calculate the antilog of Dy AntiLog Dy = 23.186 vd3/mi2 Step 9/. Multiply the resulting Dy by the A-T Factor to get the adjusted unit debris yield for the basin. Adjusted Dy = 1.0 (23,186) = 23,186 vdVmF Step 10/. Multiply the adjusted unit debris yield by the drainage area to determine the volume of debris. 23,186 yd3/mi2 x 0.60 mi2 = total debris yield of 13,911 yd3 Actual debris inflow to Bailey Canyon debris basin during this period was 13,974 Vd3, while predicted debris yield was 13,911 Vd3. Los Angclcs District Debris Mcthod Novcmbcr 5, 1998 D-3 Example 2: Application of Equation 3. Expected Debris Yield from an Intermediate-sized Watershed for a Specified Flood Event. Problem: Determine the expected unit debris yield and volume of debris to Santa Anita Dam in the San Gabriel Mountains (see Figure D-2) resulting from a flood equivalent to that experienced during the period of January 18-26, 1969, and compare to observed debris yield. Step 1/. Determine the maximum unit peak flow (Q) from the watershed for the storm period in question in ItVs/mF. Records obtained from the Los Angeles County Department of Public works indicate that the peak flow during this period was 5500 ftVs on January 25, 1969. Expressing this as unit peak inflow results in a value of 509 ft3/s/mi2. Step 2/. Draw the drainage boundary and determine the area (A) of the watershed in both mi2 and ac. Using a standard 1:24,000 USGS topographic map and a planimeter, the area of the watershed was determined to be 10.8 mi2, or 6912 ac. Step 3/. Deten'nine the relief ratio (RR) of the watershed. Locate the highest point in the watershed at the end of the longest watercourse (5595 ft NGVD), and the lowest point (1463 ft NGVD) at the existing debris basin site; determine the difference between these two in feet. Next, determine the length of the longest watercourse, in miles (4.74 mi). Express the difference between the high and low elevations (in It) and the length of the longest watercourse (in mi) as a ratio. In this example: 5595 - 1463 = 4132 ft, divided by 4.74 mi = 871 ItYmi Step 4/. Determine the Fire Factor (FF) for the subject watershed. Because the drainage area is greater than 3 mi2, use Figure 3 from the main text. This watershed suffered a 100% extent wildtire approximately 15 years prior to the event in question. Since no wildrites of greater than 5% extent have impacted the watershed during the intervening time period, the Fire Factor was determined to be 3.00 for a drainage area of 10.8 mi=. Step 5/. Determine the Adjustment-Transposition Factor (A-T). Since this watershed is located within the area in which the regression analysis data was obtained, the A-T Factor is assumed to be 1.00. Los Angeles District Debris Mcthod November 5, 1998 D-4 "~,.,.~/~L-----.~-.,-~ <,.~ '~-"'- ' '--,,, ,, )'--- _/' .' ~ ~preading Ground LEGEND STREAM CHANNEL .I DRAINAGE BOUNDARY DEBRIS BASIN I 1/2 0 MILES Figure D-2: Example Application 2 Santa Anita Dam, Sierra Madre, Ca. Drainage Area = 10.8 mi2 Los Angeles District Debris Method November 5, 1998 D-5 Step 6/. Calculate the Log (Base 10) of the factors Q, RR, and A. FF and A-T are dimensionless and are used as is. From STEP 1, Log (Q) From STEP 2, Log (A) From STEP 3, Log (RR) From STEP 4, FF From STEP 5, A-T = Log (509) = 2.71 = Log (6912) = 3.84 = Log (871) = 2.94 = 3.00 = 1.00 Step 7/. Since peak flow data is available for this watershed pertaining to the event in question, and the drainage area of the watershed is between 10 and 25 mia, the use of Equation 3 is appropriate. Solve for unit debris yield using the above values. Log Dy = 0.88 (Log Q) + 0.06 (Log A) + 0.48 (Log RR) + 0.20 (FF) Log Dy -- 0.88 (2.71) + 0.06 (3.84) + 0.48 (2.94) + 0.20 (3.00) Log Dy = 2.382 + 0.230 + 1.411 + 0.600 Log Dy = 4.624 Step 8/. Calculate the antilog of Dy AntiLog Dy = 42.043 vd3/mi2 Step 9/. Multiply the resulting Dy by the A-T Factor to get the adjusted unit debris yield for the basin. Adjusted Dy = 1.0 (42,043) = 42,043 vdl/mi2 Step 10/. Multiply the adjusted unit debris yield by the drainage area to determine the volume of debris. 42,043 ydVmi2 x 10.8 mi2 = total debris volume of 454.061 vd~ Actual debris yield to this structure was determined by the Los Angeles County Department of Public Works to be approximately 440.000 yd~. Actual debris volumes are well within one standard deviation of the estimate, reflecting the adequacy of the calculated factors, the peak flow estimates and the estimated Fire and A-T Factors. Los Angeles District Debris Method November 5. 1998 D-6 Example 3: Application of Equation 4 and Coincident Frequency Analysis. Expected Debris Yield from a Larger Watershed with an A-T Factor Other than 1.0. Problem: Determine the expected unit debris yield frequency relationship for Santa Paula Creek watershed. This example differs from the previous two in that Santa Paula Creek (see Figure D-3) requires an A-T Factor other than 1.0, and due to a lack of any complete debris yield data, requires a somewhat more complicated procedure for determining the A-T Factor. A coincident frequency analysis approach is considered necessary to evaluate the expected unit debris yield from the watershed for different wildfire and flood conditions. Part 3a: Application of A-T Factor Technique 3 to Santa Paula Creek Watershed. This part of Example 3 problem utilizes Technique 3 for determining the A-T Factor (see Appendix B, How To Determine The Adj ustment-Transposition Factor). The unadj usted equation (A- T Factor = 1.0) is not directly applicable to the Santa Paula Creek watershed due to differences in vegetation cover, channel morphology, and differences in the potential mobility of debris in storage within the watershed itself. Four watersheds in close proximity to Santa Paula Creek possess long-term sediment yield records, as well as being quite similar to Santa Paula Creek watershed in vegetation, topography, climate, and geomorphology. One of these watersheds, Matilija Creek, has been studied in some detail by Corps of Engineers personnel during a recent analysis of wildfire impacts following the Wheeler Fire of August 1985. A simple linear regression of average annual sediment yield to average annual precipitation ratios (AASY/AAP; see Appendix B for derivation) was performed on the data from the four nearby watersheds and compared to the original regression line (Figure B-1, Appendix B). The comparison is shown on Figure D-4 (same as Figure B-2). Dividing the AASY/AAP ratio from the local area curve for 42.9 mi2 by the AASY/AAP ratio from the original regression curve for 42.9 mi2 gives an A-T Factor of 0.60. Part 3b: Application of A-T Factor Technique 4 to Santa Paula Creek Watershed. As stated in Part 3A, the unadjusted equation (A-T Factor = 1.0) is not directly applicable to the Santa Paula Creek watershed due to differences in vegetation cover, channel morphology, and differences in the potential mobility of debris in storage within the watershed itself. This part of Example 3 problem utilizes Technique 4 for determining the A-T Factor (see Appendix B, How To Determine The Adjustment/Transposition Factor). A field analysis of the watershed revealed a number of differences between the watersheds used in the regression analysis and the study watershed. A discussion of these follows: Los Angeles District Debris Method Novcrabcr 5, 1998 D-7 LEGEND -- STREAM CHANNEL DRAINAGE BOUNDARY DEBRIS BASIN · Se ebrls Basin SIte SANTA PAULA Figure D-3: Example Application 3 Santa Paula Creek, Santa Paula, Ca. Drainage Area = 42.9 miz Los Angclcs District Debris Mcthod November 5, 1998 0.16 AASY = AVERAGE ANNUAL SEDIMENT YIELD °'14j~r-' I'1 o.,2 ,. I' O 0.10~..5 o.o4; 0.020 20 40 60 80 Mi2 DRAINAGE AREA ( ) AAP = AVERAGE ANNUAL PRECIPITATION IF~IIIItlIIIIllflIIIltlF~]"I Jl~ - - - Watersheds In The - Western Tr-dnsv~ Ranges ~11 J~ Dam 12 Matilija Dem 13 Gibraltar Dam 14 Piru Dam (not shown) I ,., ---, ...... Watersheds Used In Regression Analysis 2 Big Dalton Dam 3 Devil's Gate DeLta 4 Faton Wash Dam 5 Santa Anita Eem 6 Sawpit Dem 7 Pacoima Dam 8 Cogswell Dam 9 Big Tujunga Deun 10 San Gabriel Dam 180 '="'~'00 LOS ANGELES DISTRICT METHOD FOR PREDICTION OF DEBRIS YIELD AASY/AAP RATIOS FOR DRAINAGE AREAS OTO 200 MI2 WITH LOCAL AREA CURVE 100 120 140 U.S. ARMY CORPS OF ENGINEERS LOS ANGELES DISTRICT SAME AS FIGURE B-2 FIGURE D-4 1/. The parent material of Santa Paula Creek watershed is somewhat different from the materials of the San Gabriel Range. It appears that there is, in general, less severe folding, fracturing, and faulting of the parent material in the study watershed than is evident in the regression watersheds. This is not to say that the rocks of Santa Paula are not highly modified and contorted by tectonic forces that have acted on this area, but that parent materials in the San Gabriel Range appear, in many cases, to be almost completely pulverized and much more susceptible to erosive processes than those of the Santa Paula Creek Watershed. From Table D-I (same as Table B-I), we determined the Parent Material factor (Subfactor Group 1) to be approximately 0.15. 2/. Although the type and structure of soils in the Santa Paula watershed appear to be quite similar to those of the regression watersheds, the Santa Paula Creek soils are better protected against raindrop impact and rill formation due to a large proportion of grasses covering the soil surface in the study watershed. Under normal vegetation cover, the study watershed will yield less debris per unit area to the processes of sheet flow and rill formation than an equivalent watershed in the San Gabriel range (regression watersheds). This results in lesser amounts of debris being delivered to debris storage sites during minor to moderate storm events, and hence, lesser amounts of debris available for movement during major storm events. Under conditions in which the vegetative cover is burned, the study watershed will respond in a manner similar to that of the regression watersheds, although at a lesser rate because of the lower availability of debris in storage, greater stability in the channel system, and better cementation in the soil profile. From Table D-l, we determined the Soils factor (Subfactor Group 2) to be approximately 0.15. 3/. The proportion of channel banks actively experiencing erosion is minimal within the upper reaches of Santa Paula Creek and its tributaries. This is in direct contrast to watersheds used in the regression analysis. Although it was estimated that over 50% of the lower channel reaches appear to be eroding, less than 10% of the more numerous upper reaches show any signs of active or recent erosion. This is in contrast to channel systems typical of the regression analysis watersheds in which over 80% of the entire channel system displays signs of active or recent erosion. From Table D-1, we determined the Channel Morphology factor (Subfactor Group 3) to be approximately 0. 15. 4/. The proportion of upland areas in the study watershed that are presently experiencing erosion due to mass movement (i.e., slumping, rockfall, soil slippage, etc.), rilling, or gullying is minimal when compared to regression watersheds. Although the Mud Creek watershed appears to be much worse, the overall debris contribution of these areas is considerably less than is evident in watersheds which were included in the regression analysis. Although mass movement and sheetflow erosion has undoubtedly contributed large amounts of debris to the channel system during times past, at present this source cannot be considered to play a primary role in the supply of debris to the channel system. Los Angeles District Debris Mcthod November 5, 199g TABLE D-1: ADJUSTMENT-TRANSPOSITION FACTOR TABLE Parent Material Folding Faulting Fracturing Weathering Soils Soils Soil Profile A-T Subfactor 0.25 0.20 0.15 0.10 Subfactor Group 1 Severe Moderate Severe Moderate Severe Moderate Severe Moderate Subfactor Group 2 Non-cohesive Partly Cohesive Minimal Soil Profile Some Soil Profile Soil Cover Clay Colloids Channel Morphology Bedrock Exposures Bank Erosion Bed and Bank Materials Vegetation Headcutting Hillslope Morphology Rills and Gullies Mass Movement Debris Deposits Much Bare Soil in Evidence Few Clay Colloids Few Segments in Bedrock >30% of Banks Eroding Non-cohesive Bed and Banks Poorly Vegetated Many Headcuts Many and Active Many Scars Evident Many Eroding Deposits Some Bare Soil in Evidence Some Clay Colloids Subfactor Group 3 Some Segments in Bedrock 10-30% of Banks Eroding Partly Cohesive Bed and Banks Some Vegetation Few Headcuts Subfactor Group 4 Some Signs Few Signs Evident Some Eroding Deposits The A-T Factor Is the Sum of the A-T Subfactors from All 4 Subfactor Groups. 0.05 Minor Minor Minor Minor Highly Cohesive Well-developed Soil Profile Little Bare Soil in Evidence Many Clay Colloids Many Segments in Bedrock < 10% of Banks Eroding Mildly Cohesive Bed and Banks Much Vegetation No Headcutting Few Signs No Signs Evident Few Eroding Deposits Los Angeles District Debris Method November 5, 1998 From Table D-l, we determined that the Hillslope Morphology factor (Subfactor Group 4) is approximately 0. 15. Adding these factors together, use of Technique 4 from Appendix B would indicate an A-T Factor of 0.60. This value agrees with the A-T Factor derived using Technique 3 in Part 3A of this example. Part 3c: Determination of Frequency Debris Yield For Santa Paula Creek Watershed Using Coincident Frequency Analysis. For the purpose of evaluating the potential debris yield of the Santa Paula Creek watershed, Equation 4 was selected on the basis of drainage area and the availability of flow frequency data. In order to evaluate the total probabilities of independent fire/flood events in the Santa Paula watershed, a coincident frequency analysis was performed (HEC computer program, Coincident Frequency Analysis o CFA). Four types of data are used as input for the CFA program; Years-Since-100% Wildfire frequency, discharge frequency, and debris response relationships, along with evaluation data (see Chapter 6 for a more detailed explanation of the input data and Appendix C for a discussion on how to use the CFA program). The frequency of wildfires was quantified through the use of the Fire Factor curves presented in Figure 3 in the main text (for 42.9 mia) and placed in a Fire Factor frequency chart as described in Appendix A (How To Determine Fire Factors). The Years-Since-100% Wildfire frequency relationship is presented in Table D-2. The unit discharge frequency data was determined using the discharge frequency curve shown on Figure D-5. This data is shown in Table D-3. Adjusted debris response relationships were then calculated using Equation 4 and A-T Factor of 0.60 for intervals of 1-15 years since 100% wildfire. These relationships are listed in Table D-4. A range of debris yield values (30) from 100 to 190,000 yd3/mia was input to be used as evaluation data and to define the debris frequency relationship. The CFA input file is shown in Table The final results consist of a table relating the debris yield of Santa Paula Creek watershed to the total exceedance frequencies of wildfire and flooding for 0.2, 0.5, 1.0, 2.0, 5.0, I frO, 20.0, 30.0, 40.0, 50.0, 60.0, 70.0, 80.0, 90.0, 95.0, and 99.0 percent. The output is presented in Table D-6. The results indicate that for a total fire/flood frequency of 1.00 (an event which has a 1% chance of being equaled or exceeded in any given year), the debris yield at the proposed debris basin site would be about 35,600 ydsVmF (from Table D-6) or a total of approximately 1,525,000 yds3(35,600 ydsVmi2 x 42.9mi2. Los Angeles District Debris Method November 5, 1998 D-22 TABLE D-2: YEARS-SINCE-100% WILDFIRE FREQUENCY RELATIONSHIP Frequency' Years-Since-100% Wildfire (Bi) 0 0 0.1 1 0.3 2 0.7 3 1.4 4 2.2 5 3.2 6 4.6 7 7.2 8 12.0 9 13.1 10 16.7 11 24.1 12 34.5 13 49.0 14 100 15 The frequency for which Years-Since-100% Wildfire is equaled or exceeded. Cumulative. This is not P[Bi]; P[Bi is the incremental difference for each Year-Since-100% Wildfire. Los Angeles District Debris Method November 5, 1998 LOS ANGELES DtSTRICT METHOD FOR PREDICTION OF DEBRIS YIELD 106 185 104 F L 0 I 103 N C 101 1o0 90 50 PERCENT CHANCE EXCEEDANCE FIGURE D-5 ANN PK FREO CURVE - COMP PROB ANN PK FREO CURVE - EXP PROB 5X CONFIDENCE LIffiIT · Sx CONFIDENCE LIMIT ANN MAX PK FLOW EUENT DISCHARGE FREQUENCY CURVE SANTA PAULA CREEK D.A. 42,9 MI2 TABLE D-3: UNIT DISCHARGE FREQUENCY RELATIONSHIP Frequency' Discharge (P[F3") (ftas/mi2) (F,) 0.2 1489 0.5 1000 1 719 2 499 5 288 10 176 20 96 30 61 40 40 50 29 60 19 70 13 80 8.0 90 3.9 95 2.2 · The frequency for which unit discharge is equaled or exceeded. Cumulative. "Probability is frequency divided by 100. November 5. 1998 Los Angeles District Debris Method Years- Since- 100% Wildfire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 TABLE D~4: ADJUSTED DEBRIS YIELDS As Calculated For Santa Paula Creek Watershed Drainage Area ~ 42.9 mF ADJUSTMENT-TRANSPOSITION FACTOR (A-T) = 0.60 Frequency of Exceedance (Per 100 Years) Debris Yield (yd3/mi2) 185,452 125,559 93,548 66,363 39,586 24,917 14,094 4,575 405 161,708 111,227 81,571 57,866 34,517 21,727 12,290 3,989 353 141,004 96,986 71,127 50,457 30,098 18,945 10,716 3,478 308 125,381 86,240 63,246 44,867 26,763 16,846 9,529 3,093 274 115,486 79,435 58,255 41,326 24,651 15,516 8,777 2,849 252 106,790 73,453 53,869 38,214 22,795 14,348 8,116 2,634 233 99,915 68,724 50,401 35,754 21,327 13,424 7,594 2,465 218 93,117 64,049 46,972 33,322 19,876 12,511 7,077 2,297 203 87,807 60,396 44,293 31,421 18,743 11,798 6,673 2,166 192 83,413 57,373 42,076 29,849 17,805 11,207 6,339 2,058 182 79,622 54,766 40,164 28,492 16,996 10,698 6,051 1,964 174 73,915 50,841 37,285 26,450 15,778 9,931 5,618 1,823 161 68,349 47,012 34,477 24,458 14,589 9,183 5,195 1,686 149 63,202 43,472 31,881 22,616 13,491 8,492 4,803 1,559 138 57,310 39,419 28,909 20,508 12,233 7,700 4,356 1,414 125 Los Angeles District Debris Method November 5, 1998 TABLE D-5: INPUT FILE FOR TEST NO. 1 Using Santa Paula Creek Watershed Data TI TI TI TI TI TI J1 DS DT DT DP DP FS LOS ANGELES DISTRICT DEBRIS METHOD ......................... FILE = TEST.DAT COINCIDENT FREQLrENCY ANALYSIS .............................. TEST FILE NO. 1 USING SANTA PAULA DEBRIS BASIN DATA ...................... D.A. = 42.9 SQ MI DS, DT & DP IS YEARS-SINCE-WILDFIRE FREQUENCY RELATIONSHIP FS, FR & FP IS DISCHARGE FREQUENCY RELATIONSHIP RD, RF & RP IS DEBRIS RESPONSE RELATIONSHIP ....................... JAN 1992 15 YEARS SINCE FIRE 0.1 0.3 0.7 1.4 2.2 3.2 4.6 7.2 12.0 16.7 24.1 34.5 49.0 100 1 2 3 4 5 6 7 8 9 11 12 13 14 15 15 PEAK FLOW CFS PER SQ MILE SANTA PAULA WATERSHED 42.9 SQ MILES FR 0.2 0.5 FR 60 70 FP 1489 1000 FP 19 13 RS 15 DEBRIS RD 9 1 RF 1489 1000 RP185452 127559 RD 9 2 RF 1489 1000 RP161708 111227 RD 9 3 RF 1489 1000 RP141004 96986 RD 9 4 RF 1489 1000 RP125381 86240 RD 9 5 RF 1489 1000 RPl15486 79435 RD 9 6 RF 1489 1000 RP106790 73453 RD 9 7 RF 1489 1000 RP 99915 68724 RD 9 8 RF 1489 1000 RP 93117 64049 RD 9 9 RF 1489 1000 RP 87807 60396 RD 9 10 RF 1489 1000 1 2 5 10 20 30 40 80 90 95 719 499 288 176 96 61 40 8.0 3.9 2.2 YIELD RATE IN YD3 PER SQ MILE 719 499 288 176 96 29 2.2 93548 66363 39586 24917 14094 4575 405 719 499 288 176 96 29 2.2 81571 57866 34517 21727 12290 3989 353 719 499 288 176 96 29 2.2 71127 50547 30098 18945 10716 3478 308 719 499 288 176 96 29 2.2 63246 44867 26763 16846 9529 3093 274 719 499 288 176 96 29 2.2 58255 41326 24651 15516 8777 2849 252 719 499 288 176 96 29 2.2 53869 38214 22795 14348 8116 2634 233 719 499 288 176 96 29 2.2 50401 35754 21327 13424 7594 2465 218 719 499 288 176 96 29 2.2 46972 33322 19876 12511 7077 2297 203 719 499 288 176 96 29 2.2 44293 31421 18743 11798 6673 2166 192 719 499 288 176 96 29 2.2 13.1 10 50 29 Los Angeles District Debris Method November 5, 1998 RP 83413 57373 42076 29849 17805 11207 6339 2058 182 RD 9 11 RF 1489 1000 719 499 288 176 96 29 2.2 RP 79622 54766 40164 28492 16996 10698 6051 1964 174 RD 9 RF 1489 1000 719 499 288 176 96 29 2.2 RP 73915 50841 37285 26450 15778 9931 5618 1823 161 RD 9 13 RF 1489 1000 719 499 288 176 96 29 2.2 RP 68349 47012 34477 24458 14589 9183 5195 1686 149 RD 9 14 RF 1489 1000 719 499 288 176 96 29 2.2 RP 63202 43472 31881 22616 13491 8492 4803 1559 138 RD 9 15 RF 1489 1000 719 499 288 176 96 29 2.2 RP 57310 39419 28909 20508 12233 7700 4356 1414 125 VS 30 YIELD YD3/MI2 VR190000 150000 125000 100000 90000 80000 70000 60000 50000 VR 30000 20000 10000 9000 7500 6500 5000 3500 2500 VR 1000 900 800 700 600 500 400 300 200 ED 40000 1500 100 Los Angeles District Debris Method November 5, 1998 TABLE D-6: OUTPUT FILE FOR TEST NO. 1 Using Santa Paula Creek Watershed Data * CFA * * COINCIDENT FREQLrENCY ANALYSIS * , PROGRAM DATE: DEC 1989 * , VERSION DATE: 18SEP1990 * , RUN DATE ~ TIME: * , 06 JAN 92 08:14:05 * * U.S. /~RMY CORPS OF ENGI~rEERS * , THE H~TDROLOGIC ENGINEERING CENTER * * 609 SECOND STREET * * DAVIS, CALIFORNIA 95616 * , (916) 756-1104 * INPUT FILE NAME: TEST.DAT OUTPUT FILE NAME: TEST.OUT ** TITLE INFOP~4ATION ** TI LOS ANGELES DISTRICT DEBRIS METHOD ......................... FILE = TEST.DAT TI COINCIDENT FREQUENCY A/~j~YSIS .............................. TEST FILE NO. 1 TI USING S/~NTA PAULA DEBRIS BASIN DATA ...................... D.A. = 42~9 SQ MI TI DS, DT & DP IS YEARS-SINCE-WILDFIRE FREQUENCY RELATIONSEIP TI FS, FR & FP IS DISCHARGE FREQUENCY RELATIONSHIP TI RD, RF & RP IS DEBRIS RESPONSE RELATIONSHIP ** JOB SPECIFICATIONS ** LOGTF NDEC NSIG J1 1 JTRAC ** DLrR. ATION CURVE DATA ** DS 15 YEARS SINCE FIRE DT 0.1 0.3 0.7 1.4 2.2 DT 16.7 24.1 34.5 49.0 100 DP 1 2 3 4 5 3.2 4.6 7.2 12.0 13.1 6 7 8 9 10 ** FREQUENCY CURVE DATA ** FS 15 PEAK FLOW CFS PER SQ MILE SANTA PALrLA WATERSHED 42.9 SQ MILES FR 0.2 0.5 1 2 5 10 20 30 40 FR 60 70 80 90 95 FP 1489 1000 719 499 288 176 96 61 40 FP 19 13 8.0 3.9 2.2 5O 29 ** RESPONSE FD'NCTION CLrRVES ** R$ 15 DEBRIS YIELD RATE IN YD3 PER SQ MILE Los Angeles District Dcbris Method Novcmbcr 5, 1998 CURVE 1 RD 9 1.000 RF 1489 1000 719 RP185452 127559 93548 CURVE 2 RD 9 2.000 RF 1489 1000 719 RP161708 111227 81571 CURVE 3 RD 9 3.000 RF 1489 1000 719 RP141004 96986 71127 CURVE 4 RD 9 4.000 RF 1489 1000 719 RP125381 86240 63246 CURVE 5 RD 9 5.000 RF 1489 1000 719 RP115486 79435 58255 CURVE 6 RD 9 6.000 RF 1489 1000 719 RP106790 73453 53869 CURVE 7 RD 9 7.000 RF 1489 1000 719 RP 99915 68724 50401 CURVE 8 RD 9 8.000 RF 1489 1000 719 RP 93117 64049 46972 CURVE 9 RD 9 9.000 RF 1489 1000 719 RP 87807 60396 44293 CURVE 10 P,/D 9 10.000 RF 1489 1000 719 RP 83413 57373 42076 CURVE 11 RD 9 11.000 RF 1489 1000 719 499 288 176 96 29 66363 39586 24917 14094 4575 499 288 176 96 29 57866 34517 21727 12290 3989 499 288 176 96 29 50547 30098 18945 10716 3478 499 288 176 96 29 44867 26763 16846 9529 3093 499 288 176 96 29 41326 24651 15516 8777 2849 499 288 176 96 29 38214 22795 14348 8116 2634 499 288 176 96 29 35754 21327 13424 7594 2465 499 288 176 96 29 33322 19876 12511 7077 2297 499 288 176 96 29 31421 18743 11798 6673 2166 499 288 176 96 29 29849 17805 11207 6339 2058 2~2 405 2.2 353 2.2 308 2.2 274 2.2 252 2.2 233 2.2 218 2.2 203 2.2 192 2.2 182 499 288 176 96 29 2.2 Los Angeles District Debris Mcthocl November 5. 1998 D-20 RP 79622 54766 40164 28492 16996 10698 6051 1964 174 CURVE 12 RD 9 12.000 RF 1489 1000 719 499 288 176 96 29 2,2 RP 73915 50841 37285 26450 15778 9931 5618 1823 161 CURVE 13 RD 9 13.000 RF 1489 1000 719 499 288 176 96 29 2.2 RP 68349 47012 34477 24458 14589 9183 5195 1686 149 CURVE 14 RD 9 14.000 RF 1489 1000 719 499 288 176 96 29 2.2 RP 63202 43472 31881 22616 13491 8492 4803 1559 138 CURVE 15 RD 9 15.000 RF 1489 1000 719 499 288 176 96 29 2.2 RP 57310 39419 28909 20508 12233 7700 4356 1414 125 ** EVALUATION DATA ** NEVAL RPNAME RPUNIT VS 30 YIELD YD3/MI~ VR190000 150000 125000 VR 30000 20000 10000 VR 1000 900 800 PRMIN PRMAX .00 .00 100000 90000 80000 70000 60000 50000 40000 9000 7500 6500 5000 3500 2500 1500 700 600 500 400 300 200 100 ** END OF INPUT DATA ** ED+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ -COMPUTED PERCENT CHANCE EXCEEDANCE VALUES- RESPONSE VALUES 100.00 200.00 300.00 400.00 500.00 600.00 700.00 800.00 900.00 1000.00 1500.00 2500.00 3500.00 5000.00 6500.00 7500.00 9000.00 10000.00 20000.00 30000.00 40000.00 50000.00 60000.00 70000.00 80000.00 90000.00100000.00125000.00150000.00190000.00 FREQUENCY VALUES 95.64 94.15 92.29 90.05 87.48 84.55 81.26 77.63 73.73 69.61 54.01 38,07 29.28 20..89 15.61 13.16 10,42 9.03 3.04 1.42 .78 .47 .31 .21 .14 ,10 .07 .03 .01 .00 -INTERPOLATED FREQUENCY VALUES- FREQ RESPONSE YIELD IN YD3/MI2 .2 70929.00 Los Angclcs District Debris Method November 5, 1998 D-21 .5 48892.00 1.0 35559.00 2.0 25123.00 5.0 15134.00 10.0 9271.00 20.0 5208.90 30.0 3400.60 40.0 2347.10 50.0 1689.10 60.0 1281.60 70.0 989.30 80.0 735.69 90.0 402.28 95.0 145.82 99.0 -328.63 * * - INDICATES EXTRAPOLATED VALUE(S) JOB COMPLETE Los Angeles Disu'ict Dcbris Method November 5, 1998 D-22 From: Sent: To: Subject: Van Winkle, Hans A MG HQ02 Monday, August 07, 2000 9:56 PM Potts, Eric R COL HQ02; D'Aniello, John P HQ02; Caver, Thomas F HQ02 RE: Cucamonga Creek (Deer Creek). CA Lets meet on this, think we have gone above and beyond the call of duty here. Unless there is good reason, do not want to spend more taxpayer money on this. mOriginal Messago From: Potts, Eric R COL HQ02 Sent: Monday, August 07, 2000 5:31 PM To: Van Winkle, Hans A MG HQ02; D'Aniello, John P HQ02; Caver, Thomas F HQ02 Subject: FW: Cucamonga Creek (Deer Creek), CA Sir FYI - note there is a second e-mail on same subject from the ASA-CW office. vr Eric --Original Message--- From: Scrocco, Raymond K. COL HQ02 Sent: Monday, August 07, 2000 1:22 PM To: Potts, Eric R COL HQ02 Subject: FW: Cucamonga Creek (Deer Creek), CA Summary of Deer Creek, CA actions. Is there an Executive Summary format we use to send things to the boss? Thanks. V/r, Ray --Original Message-- From: BBtson, Brian D HQ02 Sent: Monday, August 07, 2000 10:48 AM To: Scrocco, Raymond K. COL HQ02 Cc: Luisa, Pete C HQ02; Sing, Edward F SPD; Langlois, Hend A HQ02; Caver, Thomas F HQ02; Eiker, Earl E HQ02; Evelyn, Joseph ' B SPL; Ueda, James Y SPD Subject: Cucamonga Creek (Deer Creek), CA Col. Scrocco - Here is the summary of the issue we spoke about on Friday. Brian Cucamonga Creek (Deer Creek), CA. Since Oct 99, the Corps and ASA(CVV) have been involved in a continuous letter writing campaign with various opponents, and Congressional interests, of a proposed new home development in Rancho Cucamonga. CA. The opponents claim that the existing Corps flood control project is unsafe, and therefore no new development should be allowed. LA district has re-evaluated the project and found it to be safe, and that it provides greater than 100 year protection. The opponents had a technical analysis prepared by a consultant, and we have asked LA district to respond to that analysis. OASA(CW) has encouraged us to have the LA district's review checked by an independent reviewer, and we have agreed. The LA district analysis, and technical review by a private consultant have just been completed. On 4 Aug 00, ASA(CW) staff suggested that they want to give the opponents an opportunity to review the LA district analysis. ASA(CW) staff further wants us to arrange for our consultant (the technical reviewer) to receive the opponent's comments, analyze those comments, and provide us with a report on their view of the opponent's comments. ASA(CW) understands that there will be cost associated with the effort, but believes that we need to take this step to show good faith with the opponents. ASA(CW) staff also believes that the opponents would never accept a LA District review of their comments. The opponents have been very clear that they do not trust LA District. The recent LA District analysis, and tech review, were to lead to a 23 Aug briefing of ASA(CW) on this issue. Having the opponents review the LA District report, and handling the opponent's comments, will certainly delay that briefing. CW-B has discussed this approach with SPD, LA District and CW-E. Generally, the reaction is that this approach plays into the hands of the opponents because it will delay a final decision by ASA(CW). CW-E believes that we can withstand any amount of scrutiny on this subject, but it sets a bad precedent. We feel that we have the technical expertise to determine that the project is safe, and by dragging out the process, we cast a shadow of doubt on our efforts. We are also concerned about the potential for additional cost. We have probably spent on the order of $100K so far from O & M inspection of completed works funds. Based on the past actions of the opponents, it is likely that we will never satisfy them, no matter how cooperative we appear to be. The SPD staff has not yet approached the consultant about this possibility. Ultimate question for DCG-CW: Is there any objection to complying with ASA(CW) staff request that we have our consultant deal with the opponent's comments? Lugar, Lisa A SPL To: Cc: Su~ed: Sing. Edward F SPD Thursday. July 27, 2000 3:01 PM Bryson, Brian D HQ02; Eiker, Earl E HQ02; Stockton, Steven L SPD; Postlewate, Carl SPD Ueda, James Y SPD; Purcell, Cornelius W SPD; Grebinski, Michael A SPD; Sidhom, Albert F SPD; Bergnor, Donald L SPD; Krueger, Gerhard H SPD; Evelyn, Joseph B SPL; Leifield, Richard J SPL Deer Creek Update Importance: High Brian, Earl, Steve and Rusty: Here's an update on the status of the independent technical review as requested by higher authority of the Deer Creek information: (1) Independent Technical Reviewere: Dr. Bob Mussetter, Principal Engineer and Dr. Mike Harvey, Principal Geomorphologist, Mussetter Engineering Inc., Ft. Collins, Colorado (obtained through a task order with SPK's IDIQ contract with Ayres Associates, Inc., Ft. Collins, Colorado; CESPD-ET-EW (Sing) is the PM for this task order) (2) Schedule for A-E's Tasks: SCHEDULED COMPLETION ACTUAL COMPLETION Notice to Proceed July 19, 2000 July 19, 2000 Site Visit and Office Data Review 2000 July 25-26, 2000 July 25-26, Technical Review and Draft Final A-E Report August 2, 2000 with A-E's Tech Review Cmts Future Backcheck of SPL Responses to Tech Review Cmts and Final A-E Report August 9, 2000 Future Attend Briefing of ASA(CW) not available on 23 but would be available at an earlier date August 23, 2000 Task Order Option - A-E August Basin" (3) Items to be Reviewed by A-E: (a) Exponent's April 26, 2000 report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Creek Debris (b) SPL's review of Exponent's Report (c) SPL's November 29, 1999 report entitled "Review of Debris Production and Level-of-Protection Deer Basin" (d) Technical Analyses performed by SPL in support of (b) and (c) above. (e) Item 3 (b) above will be provided to SPD for forwarding to the technical reviewers on 28 July and will P include a comprehensive set of references provided by and or developed by S L, local flood control district, etc. all of which will be provided to the A-E for review. We completed the site and (SPL) office data visit on Tuesday and Wednesday of this week. During the Tuesda site visit, we were accompanied by two representatives from the San Bernadino Flood Control District. We visited the deeds basin, walked upstream a considerable distance to view upstream channel and watershed characteristics and viewed the Deer Creek flood control channel and overbank characteristics from the basin downstream to Deer Creek's confluence with Rancho Cucamonga Creek. During the Wednesday office data visit. SPL personnel provided an overview of the original Idesign of the debris basin and flood control channel and of how they have been addressing techncal questions that have been raised regarding the effectiveness of the Corps project features. After the August 9th milestone noted above, SPD will forward a complete package of information to HQUSACE including a synopsis of pertinent facts and conclusions. Please let me know if you have any questions regarding the above. Water & Geotech Branch U.S. Army Engineer Division - South Pacific 333 Market Street San Francisco, Ca. 94105-2922 415-977-8117 415-977-8129 (Fax) Lugar, Lisa A SPL =rom: To: Subject: Lei~eld, Richard J SPL Tuesday, August 15, 2000 2:19 PM Lugar, Lisa A SPL FW: Deer Creek, CA ..... Original Message ..... From: Evelyn, Joseph B SPL Sent: Tuesday, August 15, 2000 2:03 PM To: Carroll, John P COL SPL; Casey, Kerry T SPL; Delcau, Mitchell R SPL; Jung, Arthur Y SPL; Landry, Charles V LTC SPL; Leifield, Richard J SPL; Moore, Brian M SPL; Nesmith, Herbert M SPL; Temmel, Stephen E SPL; Vermeeren, Rene A SPL Subject: FW: Deer Creek, CA FYI ..... Original Message ..... From: Bryson, Brian D HQ02 Sent: Monday, August 07, 2000 10:12 AM TO: Eiker, Earl E HQ02; Ueda, James Y SPD; Langlois, Henri A HQ02; Luisa, Pete C HQ02; Sing, Edward F SPD; Scrocco, Raymond K. COL HQ02; Evelyn, Joseph B SPL Subject: FW: Deer Creek, CA FYI. I was aware that Jim was going to postpone the 23 Aug briefing. Original Message ..... From: Smyth, James J Mr ASA-CW [mailto:James. Smyth@HQDA.Army. Mil] Sent: Monday, August 07, 2000 11:33 AM TO: Reed, David M COL ASA-CW Cc: Westphal, Joseph W Dr ASA-CW; Bryson, Brian D HQ02; Overton, Sylvia B Ms ASA-CW; Davis, Michael L Mr ASA-CW Subject: Deer Creek, CA Col Reed, Last Friday (August 4, 2000), I had a phone conversation with the group that are concerned about the Deer Creek debris basin and flood control channel. On the phone, were Ms. Malissa McKeith, Mr. Dean Dunlavey, and a staff person of Senator Feinstein. The group asked Dr. Westphal for three weeks to review the Los Angeles District's evaluation of the Exponent Report. Later on Friday, I sent Mr. Dunlavey and Douglas Hamilton a copy of the District's July 28, 2000, evaluation. I told them they could have three weeks to provide comments on the Corps review. They also requested that they be able to provide these comments to the outside consultant the Corps hired to review the Corps July 28, 2000, evaluation of the Exponent Report, and also to have the opportunity to dialogue with the consultant about their concerns, and their evaluation of the Corps review. I believe that it will be beneficial to both HQUSACE and Army Civil Works to have the consultant stay involved. I am coordinating with the Corps 1 (through HQUSACE) to have the consultant do this additional work. Please note that the Corps has not yet agreed. Even if they do, a scope of eeds to be written, contracts need to be revised, consultant availability needs to be determined, and additional funds need to be found before we can commit to what the group wants and actually hire the consultant. I hope to get an answer from the Corps on this matter by the middle of this week. No matter what time frame we follow, we will not be able to effectively brief Dr. Westphal on the Deer Creek evaluation by August 23, 2000, the date that is currently on his calendar. This group's review and involvement with the outside consultant was not included in the current schedule which led up to the August 23, 2000 briefing. Even if the group provides comments directly to OASA(CW) there is not sufficient time for the Corps to review the material before an August 23, 2000 meeting. Therefore, will you please cancel this briefing. I will come up with a new date, and reschedule, after I figure out a revised schedule that would include the consultant review of the groups comments on the July 28, 2000, evaluation. Thanks. Lugar, Lisa A SPL From: Sent: To: Cc: Subject: Lei~eld, Richard J SPL Wednesday, August 09, 2000 9:02 AM h Carroll, John P COL SPL; Landry, C aries V LTC SPL Jung, ArthurY SPL FW: Cucamonga Creek (Deer Creek), CA FYI .... Original Message-- From: Bryson, Bdan D HQ02 Sent: Wednesday, August 09, 2000 9:02 AM To: Sing, Edward F SPD; Hove[I, Joseph F SPD; Ueda, .lames Y SPD; Evelyn, 3oseph B SPL; Lei~eld, Richard 3 SPL; Stoc~on, Steven L 5PD Cc: Langlois, Henri A HQ02; Scrocco, Raymond K. COL HQ02; Luisa, Pete C HQ02; Wolfe, Robert S SPD; Vamer, Elizabeth L SPD Subject: EW: Cucamonga Creek (Deer Creek), CA To follow up on the string of e-mails below - this morning I met with John D'Aniello, Earl Eiker and Col. Scrocco on this matter. After discussing it with John D., he called Jim Smyth and told him the following: We will not commit now to approaching our consultant to have the consultant involved with reviewing opponents comments and discussion with the opponents. We will review the opponents comments when they are available (about 25 Aug) with HQ, SPD and SPL involvement. We will jointly decide if we need the assistance of our consultant. Once we either deal with the comments ourselves, or arrange for the consultants' assistance as needed, we will finalize a presentation to Westphal and schedule the briefing. John emphasized MG Van Winkle's desire to come to an end of this affair, and he sees the briefing as the end of it. Jim Smyth was not happy to hear this, and predicts that we will incur further criticism of the opponents, and Sen. Feinstein and Boxer. I made sure John understood that based on past behavior of the opponents, this will not be the end of it. Brian -.-.-Original Message-- From: Bryson, Brian D HQ02 Sent: Tuesday. August 08. 2000 8:04 AM To: Caver. Thomas F HQ02 Cc: Luisa. Pete C HQ02; Ueda, James Y SPO; Eiker, Earl E HQ02; Langlois, Henri A HQ02; Wolfe. Robert S SPD; Varner. Elizabeth L SPD; Sing, Edward F SPD; Evelyn. Joseph B SPL Subject: RE: Cucamonga Creek (Deer Creek), CA Fred, ASA(CW) made the decision to give the opponents the opportunity to review the LA Distdct analysis. They expect to et the opponent's comments by about 18 Aug. Once those comments come in, someone will have to deal w~th them. I t~ink our best bet is to try to have our consultant do it. If we do it (internal to the Corps) we will have the same argument with the opponents that we have had from the beginning - they don't trust anything we do, so it will just prolong the dispute. Jim Smyth tells me that Sen. Feinstein's office has been supporting the opponents so he thinks we will at least be in a better position to defend our final position, if we have the consultant stay involved. I can't argue with his logic. am not opt m st c that we will be able to resolve this even if we do have the consultant involved, but there is a better chance of success. Even if we don't have the consultant involved, we will be spending more taxpayer money because we wilI have a[l of us involved in responding to the next round of letters from the opponents. Brian --Original Message-- From: Caver. Thomas F HQ02 Sent: Tuesday, August 08.2000 7:08 AM To: Bryson, Brian D HQ02 Cc: Luisa. Pete C HQ02 Subject: FVV: Cucamonga Creek (Deer Creek). CA Brian...see VW's view. Need your advice. Fred --Original Message-- Lugar, Lisa A SPL Sent: To: Subject: Evelyn, Joseph B SPL Friday, July 21, 2000 9:50 AM Carroll, John P COL SPL; Casey, Kerry T SPL; Delcau, Mitchell R SPL; Jung, Arthur Y SPL; Landry, Charles V LTC SPL; Leifield, Richard J SPL; Moore, Brian M SPL; Nesmith, Herbert M SPL; Temmel, Stephen E SPL; Vermeeren, Rene A SPL; Purcell, Cornelius W SPD; Rezac, Frank P SPD; Sing, Edward F SPD; Ueda, James Y SPD FW: Regional Issues (Deer Creek Briefing) FYI Sent: To: Cc: Subject: Joe/Jim/Earl, ----Original Message--- Bryson, Bdan D HQ02 Fdday, July 21, 2000 9:07 AM Evelyn, Joseph B SPL; Ueda, James Y SPD; Eiker, Ead E HQ02 Langlois, Henri A HQ02; Wolfe, Robert S SPD; Gdffin, John W SPD FW: Regional Issues (Deer Creek Ddefing) You can see from the exchange below that Vve failed to get the approval to brin Joe to DC for a briefing to ASA(CVV). I am mystified, Two weeks ago my preliminary feedback from the front office ha~been "it should be OK", but they never gave me a firm answer. Now I know why. Anyway, rd like Earl's help when the time comes. In fact, Earl, if you are willing to be the lead spokesperson that would make more sense. Joe, can you provide something that we can use to make this pitch to ASA(CW)? We will probably have to have you on standby on the phone (it's 0930, 23 Aug) - no one has said we can't do that, and I'm not going to ask. I realize that the review info isn't available yet, but we will have to have some help incorporating the reviewers' position during the time you are on leave. We should talk about that. early next week. Brian --Original Message-- From: Caret, Thomas F HQ02 Sent: Friday, July/21,2000 11:35 AM TO: g. Can't help, Brian. Sorry. This, unfortunately, is wrapped up with the on goin~ spitting contest over who runs the Corps - the Chief or the ASA. Our current policy is that it's not appropriate to interrupt d~strict (or even division) personnel from their important execution work to come brief the ASA. That's what we're for. We are to be capable enough to gather the necessary info and convey it to the ASA. It's also cheaper for us to go to the Pentagon than for field personnel. Also more appropriate for GE to pay for such briefings than projects and sponsors. The ASA has made, and continues to make, many, many requests for briefings from field personnel - often by name. It has gotten to the egregious point, and we are "disciplining" the system, Your request fell into this hornet's nest. --Original Message--- From: B~,/son, Bdan D HQ02 Sent: Fdday, July 21, 2000 9:00 AM To: Caver, Thomas F HQ02 Subject: RN: Regional Issues Importance: High Fred, I sent the e-mail below to AI Foxx. (I had asked AI and Dave Bastjan to get the OK to bring the district in here a couple weeks ago, and never got a firm answer, so I did the e-mail to force the issue), AI told me today that MG Van Winkle has said that we cannot bring the district in here to make the presentation. I don't know what is going on between the front office and ASA(CW), but I can't believe it. Can you help? I know that if I tell Jim Smyth that the expert from the district can't come in, ASA(CW) will not understand. The briefing is set for Westphal himself, not his staff, In all my dealings with the district and SPD staff, they have all agreed the key district person would be willing and available to come for this. Brian ---OdginalMessage-- 1 Lugar, Lisa A SPL TO: CC: Subject: Evelyn, Joseph B SPL Friday, June 02, 2000 5:56 PM Bryson, Brian D HQ02 Ueda, James Y SPD; Vermeeren, Rene A SPL; Leifield, Richard J SPL; Delcau, Mitchell R SPL; Casey, Kerry T SPL RE: Deer Creek Brian, As requested I've prepared some verbage that I hope will assist you in responding to some of the issues raised in the 22 May 00 letter to Senator Feinstein. See attachment below. Joe ---Original Message ..... From: Bryson, Bdan D HQ02 Sent: Thursday, ,lune 01, 2000 1:29 PM To: Evelyn, ]oseph B SPL; Ueda, Jams Y SPD Subject: Deer Creek I have another letter from Senator Feinstein that takes a slightly different approach. I'm going to send it out to you so you see it, but here are a couple of my ideas on info I need for a response. Jim, please fax Joe a copy. Joe, I know you are just barely back from vacation, and are probably overwhelmed with all kinds of stuff, but Ill give you a chance to look at this and call you early next week. They open by talkin9 about the Exponent Failure Analysis, I can say that we are doing a detailed review of that document. I don't know if ASA(CW) will want to wait for the results of that review before making this letter final. but they established a suspense date for this one of 12 Jun. In page one, they say we ignored the use of the design storm of either 1938 or 1969. I need a concise paragraph that can explain our methodology. On the second page, they include three bullets: Efforts to obtain a local sponsor. I think we can refer to informal contact with the city or county, and include their reaction. If you actually have any letters from them that say they aren't interested, then that would be even better. I know my one contact with Joe O'Neil (I think) from the city of Rancho Cucamonga was that they would not step up to cost share further study. What prevents us from accepting offer of local residents? I'll find the appropriate citations in WRDA's that define the kinds of entities that qualify as non-Federal sponsors. Why can't we direct the National Academy to study this matter? RI do some work on that one. My first reaction is that we trust the technical abilities of our district office, and see no reason to h~ve this matter studied further, but I'm sure that won't fly. I'm sure I119et some guidance from ASA(CW) on that one. I'm checkin9 with SPK to see what kind of cost was involved on one other occasion where we had the National Academy review the American River. Thanks, Brian CESPL-ED-H 2 June 2000 TO: Brian Bryson Subject: Comments Regarding Senator Feinstein's 22 May 00 Deer Creek Letter to Dr. Westphal I received the fax of the subject letter and your e-mail message of 1 Jun 00 regarding Deer Creek. Below I've provided some information that may be useful in preparing a response to the letter. The Corps review of November 1999 utilized the Los Angeles District 1992 debris yield procedures to estimate the quantity of debris production versus frequency of occurrence. The predictive formula in the 1992 procedure, for drainage areas sizes greater than 3 square miles such as Deer Creek, uses flood runoffmagnitode rather than rainfall magnitude to make the best estimate of debris production. Therefore there is no need to address questions raised regarding rainfall data, as that information is not directly relevant to the computation. In the derivation of the 1992 debris prediction procedure, debris production correlation to runoff magnitude was substantially better than rainfail for watersheds greater than 3 square miles. The November 1999 Corps review addressed the adequacy of the original design debris storage volume based on the current (1992) procedure for estimating debris production. The Los Angeles District 1992 debris yield procedure was developed based on the observed debris production for at debris basin sites in the southern California. The 1992 Corps debris yield procedure therefore explicitly utilizes the observed debris production experience of debris basins in rite region. As stated above and in previous correspondence from the Los Angeles District, including the 1992 technical review report, rainfall data was not directly used in the November 1999 debris yield evaluation. The March 1943 storm event was used as the basis for design flood determinations for the Cucamonga Creek Flood Control Project because it has the most severe precipitation depth and intensity relationships of observed storm events in the region for Cucumonga Creek sized watersheds. Although the 1938 and 1969 stoma events produced high rainfall totals over large areas for long durations, these storms were not the most critical flood producing storm events for the Cucamonga Creek watershed. Mr. Robert Kirby was the Corps hydraulic engineer who performed the computations of design floods and debris production estimates for the Cucumonga Creek Project. Mr. Kirby did not design the Deer Creek Debris Basin embankment configuration or the grading plan of .the debris basin area that establishes its storage capacity. Lugar, Lisa A SPL TO: Subject: Evelyn, Joseph B SPL Thursday, July 06, 2000 9:27 AM Carroll, John P COL SPL; Lei~eld, Richard J SPL; Vermeeren, Rene A SPL; Ternreel, Stephen E SPL; Nesmith, Herbert M SPL; Casey, Kerr,J T SPL; Delcau, Mitchell R SPL; Purcell, Cornelius W SPD; Sing, Edward F SPD; Landry, Charles V LTC SPL FW: Deer Creek FYI. I discussed the status of our evaluation of the Exponent Inc. report with Jim Ueda of SPD this morning, and will be doing the same with Brian Bryson of HQ today (we have been exchanging voice mail messages as of now). Joe -----Odginal Message---- Bryson, Brian D HQ02 Thursday, ,3uly 06, 2000 5:28 AM Evelyn, ]oseph B 5PL; Ueda, ]ames Y SPD Deer Creek I'm attaching a letter that we got from the State to Dr. WestphaL This is a different tactic, and I'm not sure how ASA(CW) wants to react, but I wanted you to see it. If SPD has an idea on Ms. Nichols idea of a task force, I'd be happy to hear it. Does it look like you will be able to send me your report/MFR on the Exponent analysis today or tomorrow? I know Jim Smyth will be bu99in9 me soon. Brian June 6, 2000 CESPD-OC Ms. Malissa Hathaway McKeith Loeb & Loeb LLP 1000 Wilshire Boulevard, Suite 1800 Los Angeles, Califomia 90017-2475 Re: Safety Study of Deer Creek Basin Dear Ms. Ms. McKeith: This is in response to your June 5, 2000 letter concerning my response to an e- mail from you requesting information regarding the processing of a permit by the Los Angeles District for the Lauren Development Corporation (Lauren Development) to hookup a replacement channel on Tract No. 14771 to the Deer Creek Channel. It is unfortunate that you found my reference to "District" ambiguous as you had inquired about the Los Angeles District's action. You had advised me that the San Bernardino County Flood Control District (SBCFCD) had determined not to process further permits related to the Deer Creek Basin and Lauren Development in particular and you wanted to know about the status of the matter in the Los Angeles District. I contacted the Los Angeles District and was advised that the requested permit was under review at that time. I am advised the Los Angeles District will continue to review permit applications referred to it by the SBCFCD. Of course as a practical matter, if SBCFCD suspends the processing of permits related to Deer Creek or Lauren Development, there will be nothing for the Los Angeles District to review. I also referred you to 33 CFR §203.81, which deals with local cooperation and participation in matters relating to privately owned levees and flood control structures. As the levee in question is on private land, I considered this to be the more appropriate reference. However, as you do not find this to be relevant, I refer you to Public Law 99- 662, The Water Resources Development Act of 1986 (WRDA '86). In that Act, Congress established cost-sharing on a variety of projects including studies. Congress determined that the costs must be divided between the Federal Government and non- Federal interests. To that end, Congress defined "non-Federal interest" in Section 214 of WRDA '86 to be as it is defined in the Flood Control Act of 1970, 42 U.S.C. §1 962d- 5b(b): "A non-Federal interest shall be a legally constituted public body with full authority and capability to perform the terms of its agreement and to pay damages, if necessary, in the event of failure to perform." Thus, a sponsor for a project needs to be a legally constituted public body. If I can be of further assistance to you, please advise. Sincerely, Cornelius W. Purcell Assistant Division Counsel Lugar, Lisa A SPL ~From: Sent: To: Subject: Evelyn, Joseph B SPL Tuesday, May 02, 2000 4:55 PM Leifield, Richard J SPL; Vermeeren, Rene A SPL FVV: Are you Dead? FYI ..... Original Message ..... From: Purcell, Cornelius W SPD Sent: Tuesday, May 02, 2000 7:02 To: Evelyn, Joseph B SPL; Temmel, Stephen E SPL Subject: FW: Are you Dead? FYI. Expect a phone call. I have responded that there is nothing sinister about Joe's (your) involvement but that he (you) is (are) my only contact on the technical side in SPL. Neil Purcell Assistant Division Counsel SPD-OC 415-977-8212 ATTORNEY-CLIENT PRIVILEGED COMMUNICATION. DO NOT RELEASE UNDER FOIA . DO NOT COPY. DO NOT FORWARD ..... Original Message ..... From: mmckeith@loeb.com [mailto:mmckeith@loeb.com] Sent: Monday, May 01, 2000 9:48 PM to: Purcell, Cornelius W SPD Cc: dhamilton@exponent.com Subject: RE: Are you Dead? Nell: Doug Hamilton's number is 714-755-5381. I find it curios that Mr. Evelyn would be involved with the approval of the replacement channel. Its a bit like Mr. Guidrey getting involved when its not his unit. Gee - what a coincidence. By this memo, I'm requesting that Doug call Joe to get the name of the actual individual handling matters. Thanks. "Purcell, Cornelius W SPD" <Cornelius.W.Purcell@spd02.usace.army.mil> on 05/01/2000 08:28:42 AM To: "'mmckeith@loeb.com'" <mmckeith@loeb.com> cc: ~Subject: RE: Are you Dead? I apologize for the delay but I have been out of the office on 1 business and just returned this morning. I do not have the name of the specific engineer assigned to the however, in view of the time that has passed, your engineer can either Joe Evelyn directly at 213-452-3525 who will put him in with the proper person or you can provide me the name and number of your engineer and I will forward it to Mr. Evelyn so that he or she may be contacted and his or her views can be heard. Neil Purcell Assistant Division Counsel SPD-OC 415-977-8212 ..... Original Message ..... From: mmckeith@loeb.com [mailto:mmckeith@loeb.com] Sent: Thursday, April 27, 2000 12:46 PM To: Purcell, Cornelius W; thodgini@spd.usace.army.mil Cc: john_hess@boxer.senate.gov; jim_lazarus@feinstein.senate.gov Subject: Are you Dead? Neil: I wrote to you on April 24, 2000 concerning the submission of the San Bernardino County Flood Control District to the Army Corps of Engineers the permit application for the hookup of Lauren Development's so-called Alternative Replacement Channel to the Deer Creek Channel. I sent an e-mail to you on April 25, 2000 regarding the same topic, and I left a yor you °nAp=. 2000. eaoh these n s I requested that the Corps reject that submission immediately, because San Bernardino and the Army Corps have the incorrect, underlying hydrology data to support the hookup permit. On March 20, 2000, the developer modified the replacement channel from a trapazoidal to a rectangular channel. He did not update the March 13, 1999 plans. Unless the developer's consultants are magicians, the hydraulic characteristics.would have change thereby affecting the discharge into the Deer Creek Channel. Please advise me immediately who the engineer is at the Corps' of Engineer's in Los Angeles and his or her telephone number so that our consultant, Doug Hamilton, can speak to them directly on this issue. I look forward to finally hearing back from you on what obviously is a critical issue. As you are well aware, the permit for the replacement channel is the last permit required by the developer before the levee is removed. With the recent report documenting that the Debris Basin was never designed to its Original specification, it would be nice if the Corps did not facilitate the levee being graded by mistakenly approving the hookup. Thank you. Lugar, Lisa A SPL :rom: 1'o: Cc: Subject: Bryson, Brian D HQ02 Friday, May 26, 2000 1:16 PM Evelyn, Joseph B SPL; Ueda. James Y SPD Pearre, Charles M HQ02; Eiker, Earl E HQ02; Luisa, Pete C HQ02; Leifield, Richard J SPL; Vermeeren, Rene A SPL Letter on Deer Creek Here is a letter that was signed out of here on 26 May. 2000. It responds to a letter we got from Senator Bums of Montana. Marylinda McKeith (maybe a daughter of Malissa McKeith?) wrote to Burns, as the family has a connection to Montana. I was able to draft the response with info I had on hand. So, attached is what we told the good Senator. I just had a call from Jim Smyth in ASA(CVV). They had a conference call with Dunlavey today. They are still pushing, and ASA(CVV) will be talking to Boxer and Feinstein staff, and will be looking for "options". I'll be in touch with some folks in HQ next week to start talking about that. Just so you know what Smyth is thinking - maybe Boxer or Feinstein would want to put something in our FY 01 appropriation to have the National Academy review the pro'ect. He doesn't really know if the Senator's staff are really interested in this issue. As you all know, not one member of ~ongress has asked the appropriation subcommittees for any funding in FY 01 related to the Deer Creek issue (so far). Jim also said he was going to give us (the district) the extra time required to draft the response to the 26 April letter from Dunlavey, and the review ofthe Doug Hamilton report. Mid Jun would be a good target. Brian Programs Management Division Western Execution Branch Honorable Conrad Burns United States Senator 324 West Towne Glendive, Montana 59330 Dear Senator Burns: Thank you for your letter of May 8, 2000, regarding the Deer Creek levee, and the Cucamonga Creek Flood Control project in San Bernardino County, California. You have asked that we review the information provided to you by Ms. Marylinda McKeith on January 10, 2000. The U. S. Army Corps of Engineers and the Assistant Secretary of the Army (Civil Works) have been involved in responding to issues surrounding the Deer Creek levee and the flood control project, since late last year. We have responded to inquiries from other members of Congress, and the general public, to include others like Ms. McKeith, who live in Rancho Cucamonga. Opponents to a proposed new home development have joined together to question the disposition of the Deer Creek levee, and the protection provided by the Cucamonga Creek Flood Control project. Our analysis to date indicates that the Deer Creek levee is not a part of the Corps project, and is located on lands owned by the developer, as stated in Ms. McKeith's information. The Corps, therefore, has no jurisdiction over the disposition of the lands owned by the developer. The Los Angeles District of the Corps has also reanalyzed the Deer Creek Debris Basin and Channel, and concluded that the Debris Basin has about a 111 -year level of protection, and the channel provides protection from about a 500-year event. Questions continue to be raised by opponents to the proposed development in Rancho Cucamonga, and we will continue to respond to those questions. Thank you for your interest in this matter. Sincerely, Richard P. Wagenaar Lieutenant Colonel, U.S. Army Assistant Director of Civil Works, Pacific Region Lugar, Lisa A SPL ~From: Sent: To: CC: Subject: Evelyn, Joseph B SPL Wednesday, May 10, 2000 6:31 PM Carroll, John P COL SPL; Landr,], Charles V LTC SPL; Leifield, Richard J SPL; Temmel, Stephen E SPL; Purcell, Cornelius W SPD; Bryson, Brian D HQ02; Ueda, James Y SPD; Moore, Brian M SPL Vermeeren, Rene A SPL; Delcau, Mitchell R SPL; Casey, Kerry T SPL; Nesmith, Herbert M SPL; Eiker, Earl E HQ02; Sing, Edward F SPD Deer Creek Conference Call with Dr. Westphal The purpose of this message is to document a 8 May 2000 conference call discussion between ASA(CW) and Los Angeles District staff regarding Deer Creek Debris Basin in Rancho Cucamonga, California. The conference call was requested by Dr. Westphal to discuss issues raised in a 26 April 2000 letter from Mr. Dean G. Duniavey of Latham & Watkins (attorney for Rancho Cucamonga residents opposing the Lauren Development proposal near Deer Creek). The 26 April letter was addressed to the Honorable Louis Caldera (Secretary of the Army) and Director James Lee Witt of FEMA. Mike Davis and Jim Smyth from ASA(CW),and Col. Landry. Brian Moore, Steve Temmel, Richard Leifield, and Joe Evelyn from LAD participated in the conference call. Dr. Westphal asked whether we had received a copy of the 26 April letter. Since we had not received a copy, ASA (CVV) faxed a copy to us to refer to during our discussion. The discussion covered background information related to Deer Creek, and focused on the following items: 1. Procedures used to determine debris yield for debris basin design in LAD. Whether those procedures are unique to our region or more general Corps procedures used nationally. What independent variables were used to compute debris yield for Deer Creek. 2. The relevance of rainfall data in the determination of debris yield for Deer Creek. 3. The procedures used to determine the debris deposition pattern for Deer Creek Debris Basin and the grading plan used to generate the design debris storage volume for the basin. 4. The declaration of Mr. Robed Kirby (this was an attachment to the 26 April letter), a former LAD hydraulic engineer, who developed the hydrology for the Cucamonga Creek Project including Deer Creek. 5. Our understanding of the reason local residents are so vigorously pursuing decertification by the Corps and FEMA of the 100-year level-of-protection afforded by the Deer Creek Debris Basin and Channel. 6. The prior history and current status of permit applications by the Lauren Development to place the local storm drainage from the proposed development into Deer Creek Channel. Our understanding of local interest (by City of Rancho Cucarnonga and San Bernardino Coun) in participating in a cost-shared feasibility study to reexamine the level-of-protection for Deek Creek Debris Basin an~YChannel. Dr. Westphal wanted to ensure that Deer Creek issues were well coordinated between ASA(CW) and the Corps of Engineers. He stated that ASA(CW) plans to request a proposed response from the Corps to the 26 April letter. We replied that we would prepare a draft response and route through HQUSACE to ASA(CW) after a review and evaluation of the information provided in the 26 April 2000 letter. Joseph B. Evelyn, P.E. U.S. Army Corps of Engineers, Los Angeles District Hydrology and Hydraulics Branch e-maih jeveiyn@spLusace.army.rnil phone: (213) 452-3525 fax: (213) 452-4202 Lugar, Lisa A SPL TO: CC: Subject: Lei~eld, Richard J SPL Monday, March 27, 2000 2:24 PM Lugar, Lisa A SPL; Sage. Thomas H SPL Evelyn, Joseph B SPL RE: FOIA request from Loeb & Loeb Lisa, George Davis had some construction drawings for Day Creek. Tom, please pass this on to George Davis. RJL ..... Original Nessage ..... From= Lugar, Usa A SPL Sent.= Nonday, Narch 27, 2000 2:10 PI'4 TO= Sage, Thomas H SPL; Villalobos, Ruth S~'L Cc= Lei~eld, Richard J SPL; Young, ira D SPL Subject: FOzA request from Loeb & Loeb l~mportance= High Hello, I need to know if you have any documents to respond to the subject request by close of business toda . Again, the requester is asking for the Congressional AUthority, EIS and ROD for Seven Oaks Dam and Day Cree,~ as we as design and engineering documents regarding Day Creek and the Deer/Day Separator Levee. If your office does not have any responsive documents please respond in writing with the details of your search efforts and/or why your office would not be the office of record for these documents. Please call me if you have any questions. Lisa A. Lugar Office of Counsel 213-452-3955 Direct Dial: 213-688-3622 e-mail: mmckeith@loeb.com April 20, 2000 VIA FACSIMILE Mr. Rex Hinesley, Chief Deputy County Counsel County Counsel 385 North Arrowhead Ave., 4th Floor San Bemardino, CA 92415 Re: Replacement Channel Tract No. 14771 Dear Rex: Further to our conversation this morning, I am requesting (1) a copy of the transmittal letter from the San Bemardino Flood Control District to the Army Corps of Engineers dated April 13, 2000; and (2) a response to my request of April 18, 2000, that the San Bemardino Flood Control District withdraw the package submitted to the Army Corps of Engineers based upon the facts that the developer's hydrology figures conceming the Replacement Channel are not the hydrology figures for the altemative replacement channel under consideration. Very truly yours, [Dictated, but not read] Malissa Hathaway McKeith cc: Ferdie Franklin, Esq. (via telecopy) Jon Epsten, Esq. (via telecopy) Dean Dunlavey, Esq. (via telecopy) Doug Hamilton (via telecopy MHM:jd 93163102408 Direct Dial: 213-688-3622 e-maik mmckeith@loeb .corn April 18, 2000 VIA FACSIMILE Mr. Rex Hinesley Chief Deputy County Counsel County Counsel 385 North Arrowhead Ave., 4th Floor San Bemadino, CA 92415 Re: Replacement Channel Tract 14771 Dear Rex: Further to our conversation this afternoon, enclosed are: (a) Exponent Failure Analysis comments regarding the Replacement Charmel application dated April 12, 2000; (b) My April 18, 2000 letter to Glenn Pruim requesting a response to Exponents' request for an extension based upon the failure of the District to produce the hydrology calculations required of the developer in connection with that channel. Please note that you were copied on that correspondence; (c) Letter dated April 13, 2000 from Mr. Guidrey to me stating that the District had forwarded the replacement channel application with an approval recommendation to the Army Corps of Engineers on that same date. I received that letter by mail this afternoon. As I stated to you today, I find the conduct of Mr. Guidrey very irregular. First, he is not in charge of the unit responsible for processing the application. Second, he did not provide any explanation for how the District could evaluate the application without having the hydrology figures. You yourself witnessed our copying the relevant documents during our meeting on April 5, 2000, and the hydrology figures Mr. Rex Hinesley ' April 18, 2000 Page 2 simply were not there. Third, the alacrity with which Mr. Guidrey reviewed Exponent Failure Analysis' substantive comments is remarkable. Please contact me as soon as you have had a chance to review the attached. I am requesting that the District immediately withdraw the application from the Army Corps of Engineers. Finally, the meeting requested with the District for May 1 deals with the sizing of the Deer Creek Basin and will not deal with the Replacement Channel. Therefore, Mr. Guidrey's reference to it - insofar is there is "time" to respond prior to the Corps issuance of the permit - is not on point. Thank you for your assistance. Very truly yours, Malissa Hathaway McKeith M~:jd 66666666666 LA225678.1 ce: Ferdie Franklin, Esq. (via telecopy) Jon Epsten, Esq. (via telecopy) Dean Dunlavey, Esq. (via telecopy) Bill Hawkins, Esq. (via telecopy) Doug Hamilton (via telecopy Direct Dial: 213-688-3622 e-mail: mmckeith@Ioeb.com April 24, 2000 BY TELECOPIER AND E-MAIL Cornelius W. Purcell, Esq. Assistant General Counsel U.S. Army Corps of Engineers South Pacific Division 333 Market Street Suite 1101 San Francisco, CA 94105 -2195 Re: Alternative Replacement Channel Tract No. 14771 Dear Neil: I hope you had a decent holiday. On April 13, 2000, the San Bernardino County Flood Control District CSBCFD'') forwarded for the fourth time the permit application from The Heights At Haven View Estates a/k/a Lauren Development ("Developer") to hook up the so-called Altemative Replacement .Channel to the Deer Creek Channel. I do not know the specific engineer at the Los Angeles District Office of the Army Corps who is handling this matter. I would appreciate your immediately forwarding this and the attached documents to him or her. Also, please provide me with the name of the engineer so that Doug Hamilton from Exponent Failure Analysis can communicate directly. Inexplicably, SBCFD has been relying on the wrong hydrology figures in processing the Alternative Replacement Channel. In 1997, the developer proposed a charmel that required an easement from the Los Angeles Department of Water and Power CDWP"). That easement was denied. Therefore, the dev~loper's consultants designed an Altemative Replacement Channel that utilized none of DWP's land. Comelius W. Purcell, Esq. April 24, 2000 Page 2 Although it is the latter channel being processed, the only hydrology figures in the SBCFD files are for the earlier channel. The Army Corps has denied the hook up permit three times. It is impossible for the Corps to process the application with the wrong hydrology figures as there is no way that the developer's consultants could redesign the channel to discharge the identical amount of water with the identical bulking factor. Additionally, as set forth in the letter from Exponent Failure Analysis, no analysis was conducted about what will occur if the inlets to or the Replacement Channel are blocked by debris - hardly an unusual event on the alluvial fan. Let's avoid a lot of expensive litigation. If we are correct with regard to the hydrology figures, reject the application outright immediately. I have requested that Rex Hinesley, the County Counsel in San Bemardino County, do likewise. I will be in the office today. Please give me a call at 213-688~3622. Thank you. Very truly yours, Malissa Hathaway McKeith MHM:jd 93163102408 LA226592.1 Enclosures cc: Jon Epsten, Esq. Coy telecopier) Ferdie Franklin, Esq. Coy telecopier) Dean Dunlavey, Esq. Coy telecopier) Douglas Hamilton Coy telecopier) William Hawkins Coy telecopier) Lugar, Lisa A SPL From: To: Subject: Evelyn, Joseph B SPL Friday, April 14, 2000 5:12 PM Leifield, Richard J SPL; Carroll, John P COL SPL; Landry, Charles V LTC SPL; Casey, Kerry T SPL; Delcau, Mitchell R SPL; Nesmith, Herbert M SPL; Lugar, Lisa A SPL; Sage, Thomas H SPL; Sing, Edward F SPD; Vermeeren, Rene A SPL FW: Cucamonga Creek (Deer Creek), CA FYI .... -Original l'4essage--- From: B~/son, Bdan D HQ02 Sent: Wednesday, April 12, 2000 11:02 AN To: Ueda, ]ames Y £PD; Luisa, Pete C HQ02; Wagenaar, Richard P LTC HQ02 Cc: Evelyn, Joseph B SPL; Eiker, Earl E HQ02; Griffin, John W SPD; Wolfe, Rober~ S SPD Subject: Cucamonga Creek (Deer Creek), CA 1. I'm just providing this to record recent events on Deer Creek. On Monday, Jim Smyth discussed with me several points about Deer Creek because Dr. Westphal was scheduled to meet with Sen. Boxer. We agreed that the Corps had done sufficient studies/evaluations to determine that the Deer Creek Debris Basin provided 111 year protection, and the channel more than 500 year (as we have stated in many letters). The effort to date is comparable to a Sec 216 study, funded by O & M (Inspection of Completed Works). Policy is that we would only spend about $20 K on such an effort. We believe that any further analysis should be cost shared, with a cost sharing sponsor (also something we have put in earlier letters). 2. Jim and Dr. Westphal met with Sen. Boxer on Tuesday. The discussion of Deer Creek took place mostly with a staffer named John Hess, before Sen. Boxer joined them. Jim says they emphasized our confidence in the evaluation done by SPL, and that any further study would have to be cost shared. Sen. Boxers office understands that, but apparently newspaper adds similar to the one in the Washington Post have come out in local papers, and Sen. Boxer is "not happy". Sen. Boxers office wants to know the cost of a "full blown" study. There was no arm twisting to do more at full Federal expense. ~;Jim called me today, and asked for us to get him an estimate this week for the study. We agreed that the estimate ould have to be a rough estimate of a feasibility level effort to examine the potential for a project that would provide a higher level of protection. 4. I discussed this by phone with Jim Ueda this morning. Jim suggested that he would try to get an estimate ($'s and duration) that included the entire Cucamonga Creek project, and a subset of that to include only the Deer Creek Debris Basin and Channel. (Also, if the district can quantify a lesser amount of funding that would allow for a "more complete" analysis of the Deer Creek Debris Basin, then we should provide that estimate too. In my earlier discussions with Joe Evelyn on that subject, he suggested that the Nov 99 evaluation was all that needed to be done). Jim agreed to try and get something by the end of this week. Brian FACT SHEET CUCAMONGA CREEK FLOOD CONTROL PROJECT ISSUE: Washington Post Paid Advertisement on 29 March 2000, states that the Corps is blocking a safety study on the Deer Creek Debris Basin. The advertisement claims that there is a cover-up. Extract of a project map, and pictures are at TAB A. BACKGROUND: A group of local opponents to a new residential development have been working for years to stop the construction of new homes in their community. In the fall of 1999, this group met with the Los Angeles District to make their objections known. The district provided information to demonstrate that an old "reception levee" was not a part of the Corps project. The land on which the levee sits was owned by the city of Rancho Cucamonga, and was subsequently sold to a developer. The developer was ready to level part of the levee for his project. · The opponents continued to raise their objections at the Washington level, through members of Congress and the ASA(CW). · The district conducted a further analysis of the Corps project in November 1999. That analysis conclusively shows that the features of the Corps project in this area (a debris basin and channel) provide substantial protection to the community. The Deer Creek Debris Basin provides a 111-year level of protection, and the channel will contain nearly a 500-year event. The district, HQ, and ASA(CW) answered numerous letters to the many opponents to the new development, and to Congressman Baca and Senator Boxer in January and March 2000. In these letters, we pointed Out that the Corps project still provides substantial protection, and that the developer's plans are subject to local permits. (Example letter at TAB B). Senator Feinstein also requested FEMA to do an analysis of this issue, and FEMA has declined, (TAB C). The Los Angeles District has worked closely with all local authorities and FEMA throughout this process. There has been no further correspondence with the local opponents in the past three months. As of this time, there has been no request from members of Congress to the appropriation subcommittees to add funds to our FY 01 appropriation to conduct further studies. Lugar, Lisa A SPL TO: Cc: Subject: Bryson, Brian D HQ02 Wednesday, Mamh 29, 2000 6:57 AM Evelyn, Joseph B SPL; Ueda, James Y SPD Wolfe, Robert S SPD; Griffin, John W SPD FW: Deer Creek - Paid Advertisement in Washington Post, 29 Mar 2000 We had some "fun" about Deer Creek this morning. The ad in the Post was paid for by a group called "CURE" (Californians United for Reasonable Expansion). Just wanted to keep you informed. -*-Original Message-- From: B~yson, Brian D HQ02 Sent: Wednesday, March 29, 2000 9:37 AM To: Luisa, Pete C HQ02; Eiker, Earl E HOG2; Caver, Thomas F HQ02; Beranek, DwightA HQ02; Wagenaar. Richard P LTC HQ02; Kenyon, David C HQ02 Subject: Deer Creek - Paid Advertisement in Washington Post, 29 Mar 2000 I put together the attached fact sheet, (along with copies of good background at tabs) for the Chief. A group of us met with the Chief for 5 minutes. He understands the situation and is prepared to discuss it with the Secretary as needed. (The Chief was going to meet with Mr. Caldera on other issues, but MG Fuhrman has us put this together since it would probably come up). Brian No flood danger; why continue fight? Page 1 of 2 Los Angeles Times, January 24, 2000 No flood danger; why continue fight? By ROBERT J. CRISTIANO Over the last two months, a small group of Haven View Estates homeowners have financed a cable TV and prim ad campaign proclaiming, "The Danger is Real" stating "thousands are at risk of flooding and debris flow if the levee is removed." This small group has claimed Rancho Cucamonga could experience something like the recent mudslides that devastated Venezuela. This scare campaign has been particularly effective in ftightening senior citizens and school children. Fortunately, their outrageous claims were recently proven false. The $170-million Cucamonga Creek Flood Control Project was recently reevaluated by the Army Corps of Engineers. Using current methodology, the project exceeded the 100~year FEMA flood certification. The Inland Valley Our Times published a well-written front-page article in the Weekend section Jan. 8-9. Reporter Elise Gee did a commendable job of educating the public on the history of the levee and why its removal has been deemed safe by every public agency. However, the headline "Residents promise to press levee fight" begs the question: Why? Why continue the fight if the city staff, the Planning Commission, the City Council, the county Flood Control District, the Federal Emergency Management Agency and now the Army Corps of Engineers has proclaimed removal of the levee to be safe? What would motivate their spokesman, William Hawkins, to say, "The Army Corps letter is more fiction than science" in a letter to Mayor William Alexander? After all, this group went to Washington, D.C., and asked the Army Corps to reevaluate the safety of the flood control project. Five individuals -- two custom-home builders, a paving contractor, a Realtor and a lawyer wage this fight. (No good fight is effective without a lawyer in the fray.) For years, they have controlled real estate sales and home building behind the gates at Haven View Estates. They have ruled both homeowners associations with a heavy hand. This small group has vowed that Lauren Development will never be allowed to build in Haven View Estates. It is not about safety. It is about money. They do not want competition behind their gates. In 1986, when I acquired the property, they illegally denied access to my own property. It took a lawsuit to settle the issue. Denying access is not about safety. In 1988, when I received the entitlements for phase II of Haven View Estates, they appealed to the City Council demanding an emergency access road. I agreed. However, in 1997, this group authorized the dumping of trackloads of trash and debris on my property to block their own emergency access road. It cost them $80,000 to settle the lawsuit out of court. Why would they block their own emergency access road? Because the emergency access road went through the levee that they had claimed was necessary to protect their lives. When I ~le://C:\WINDOWS\TEMP\No flood danger; why continue ~ghtl .htm 8/24/00 No flood danger; why continue fight? Page 2 of 2 reminded them there was a 200-foot wide gap in the levee, they attempted to fill the gap to create the fiction that the levee was still functional. Blocking an emergency access road is inconsistent with their safety concerns. This group has petitioned U.S. Sons. Barbara Boxer and Dianne Feinstein to intervene in a local issue. They have asked our senators to appropriate federal funds for yet another study estimated by the Army Corps to cost $500,000 to $4 million. One would hope our senators would have more important issues to address than spending millions of taxpayers' dollars on a new study to replicate a study completed in December 1999. Sometimes too much press is a bad thing as RC V president Bill Hawkins may have learned. His quotes that the homeowners associations have spent $800,000 have aroused the ire of the community. A group ofhomeowners has complained that Hawkins and his group raided the homeowners' reserve funds without authorization or approval. Unaudited financial statements obtained from their management company reveal legal fees of $193,371 in 1998 and $178,134 in 1999 spent to sue the city of Rancho Cucamonga. Residents challenge how Hawkins could spend the associationreserves when the gates to the community remain broken. Is there a happy ending to this tawdry tale? Yes, thanks to the Inland Valley Our Times coverage. The citizens of the city of Rancho Cucamonga have learned that their flood control project received a clean bill of health from every public agency. The community flood control system is safe. ROBERT J. CRISTIANO is a developer who plans to build homes on property north of Haven View Estates. ~le://C:\WINDOWS\TEMPM',Io flood danger; why continue ~ghtl .htm 8/24/00 DEER CREEK, CUCAMONGA CREEK FLOOD CONTROL PROJECT, (CA) January 2000 TYPE: Completed Flood Control Project LOCATION: City of Rancho Cucamonga, San Bemardino County; approximately 40 miles east of Los Angeles AUTHORIZATION: 1968 Flood Control Act (See House Doc. 323, 90th Congress, 2na session) NON-FEDERAL SPONSOR: San Bemardino County Flood Control District (SBCFCD) DESCRIPTION: Deer Creek Debris Basin and Channel are parts of the Cucamonga Creek Flood Control Project that was completed in 1985. The total project is mainly comprised of 4 debris basins and about 27.3 miles of improved (concrete-lined) channel that provide Standard Project Flood protection to the alluvial fan area undergoing progressive urbanization. Total project cost was about $100 million. The project has performed as designed since completion of construction. COMPLETED MILESTONES: The first construction contract, Cucamonga Creek channel at Prado Dam, was completed in November 1975. Deer Creek Debris Basin and Channel were completed in 1983. Total project completion occurred in 1985. The entire project was turned over to SBCFCD for operation and maintenance after completion of construction. ACTIVITIES IN FY 2000: As a result of a intense local controversy regarding how a proposed new housing development will affect the level of flood protection to downslope residents within the City of Rancho Cucamonga, SPL has been engaged in an extensive series of coordination and technical review activities with attorneys representing both sides of the controversy, SPD, HQUSACE, ASA(CW), local agencies (city and county), and the press. Activities have included coordination and preparation of correspondence, fact sheets, chronologies, briefing presentations, as well as attendance at meetings and extensive telephone discussions. FUNDING: There is no funding specifically allocated for the recent coordination and technical review activities for this project. O&M funds from the Inspection of Completed Works, and Permit Review accounts have been used to address issues, and to respond to correspondence and information requests. KEY ISSUES: A developer and residents are litigating over a proposed real estate development (Lauren Development) located about one-half mile downstream from Deer Creek Debris Basin along the western side of Deer Creek Channel. Residents opposed to the Lauren Development have insisted that an existing local levee (the Deer Creek Reception Levee) which will be partially removed by the development, is part of the Corps of Engineers Cucamonga Creek Project. The position of this group of residents and their attorneys is that the Deer Creek Reception Levee is necessary to complement the flood protection provided by the Corps' Deer Creek Debris Basin and Channel in order to maintain adequate flood protection to downslope residents. Following completion of the project the Corps certified for FEMA purposes that the Cucamonga Creek Project provides 100-year flood protection. Based on a review of Corps Design Memoranda and project constraction plans, the Corps concluded that the Deer Creek Reception was never a permanent functional part of the Corps of Engineers Cucamonga Creek Project. In other words the Deer Creek Reception Levee is not a component of the Corps project required to produce the project design flood protection on Deer Creek. SPL by letter dated 2 Nov 99 transmitted this information to attorneys representing residents opposed to the Lauren Development. The Deer Creek Reception Levee had been a modified by the Corps and SBCFCD to increase local flood protection in 1970-71 as part of emergency measures following a watershed bum. In addition the Deer Creek Reception Levee had been designated by the Corps as an optional disposal site for materials during the construction of Deer Creek Debris Basin and Charmel. Deer Creek Debris Basin was designed to capture debris and act as an inlet structuxe for directing flows into the improved Deer Creek channel. The original basin design was based on a Standard Project Flood (SPF) event and thought to have a level-of-protection of about 200-year. At a 4 November 1999 meeting the Corps of Engineers was asked by attorneys for concerned residents to re-evaluate the level-of-protection afforded by Deer Creek Debris Basin based on the latest Los Angeles District Debris Method, dated February 1992. Using readily available information, this technical investigation found that the Deer Creek Debris Basin design storage volume of 310 acre-feet was equivalent to a 0.009 probability (or 111-year) debris yield event. This means there is a 0.9% chance that the capacity will be reached or exceeded in any given year. In the course of this investigation it was also determined that the downstream channel (designed for 5,400 ft3/s) provides protection up to a .002 probability (or 500-year) event. Details of this analysis were provided to all interested parties in a brief technical report enclosed in a 16 Dec 99 letter. CONGRESSIONAL INTEREST: Senators Barbara Boxer and Diane Feinstein, and Congressman Baca. POINT OF CONTACT: Joseph Evelyn, Chief, Hydrology and Hydraulics Branch at 213-452-3525. Lugar, Lisa A SPL CC: Subject: Bryson. Bdan D HQ02 Thursday, March 09. 2000 11:45 AM Ueda, James Y SPD; Evelyn, Joseph B SPL Luisa, Pete C HQ02; Wagenaar, Richard P LTC HQ02; Griffin. John W SPD Deer Creek Today, I received copies of 6 letters signed by Dr. Westphal to various people who have written about Deer Creek - all signed on 3 Mar and 6 Mar. The letters are slight modifications of the ones I sent over there in January. Since I don't have the electronic version of the signed copies, I'll fax you the one to Sen. Boxer. The others are very similar, and were addressed to Dunlavey, Dutton, Maldonado, Bradford and Congressman Baca. If you want any of the others, let me know. The good news is that all the letters support the analysis the district prepared, and make no mention of any further study. Brian PS - Jim, could you fax a copy of the Boxer letter to Joe. I treed to get his fax number just now, but only got voice mail Lugar, Lisa A SPL To: Cc: Subject: Bryson, Bdan D HQ02 Wednesday, August 16, 2000 10:20 AM Evelyn, Joseph B SPL; Ueda, James Y SPD Langlois, Henri A HQ02; Eiker, Earl E HQ02; Smyth, James J HQDA FW: Deer Creek Joe, This message ca~e to me just after we finished our phone call this morning. Sounds like there must be a connection between Ms. McKeith's request and Doug Hamilton's call to you. So, the answer is, give them access to the reference documents they say they need. I think Jim's advice is reasonable - if you only have originals and they are too cumbersome to copy, give him an opportunity to review them at the district, or make copies of their own. Sorry I didn't have this insight when we spoke. I think that if you call Doug Hamilton directly, just ask him to make sure he tells Ms. McKeith that you are assisting him. Thanks for your patience, Brian ..... Original Message ..... From: Smyth, James J Mr ASA-CW [mailto:James. Smyth@HQDA.Army. Mil] Sent: Wednesday, August 16, 2000 11:43 To: Bryson, Brian D HQ02 Subject: Deer Creek Brian, Malissa McKeith send me a message that they are in need of the documents that were used by the Los ~ngeles in the review Of the "Exponent Inc." report. She was not specific other than the documents that were relied upon by the District for the draft July 28, 2000 evaluation. I believe these might be those listed under the "References" paragraph on the July 28, 2000 MFR. Remember that I sent her the enclosures to the memorandum, so I must assume it is the others they need. I think this is a reasonable request, so would you please ask the field to make these documents available. While it might be nice to provide a copy of each, some might be original documents, and if so, perhaps they could be made available for them to copy. Thanks. Jim Smyth Lugar, Lisa A SPL From: To: Cc: Subject: Bryson, Bdan D HQ02 Wednesday, August 09, 2000 9:02 AM Sing, Edward F SPD; Hovell, Joseph F SPD; Ueda, James Y SPD; Evelyn, Joseph B SPL; Leifield, Richard J SPL; Stockton, Steven L SPD Langlois, Henri A HQ02; Scrocco, Raymond K. COL HQ02; Luisa, Pete C HQ02; Wolfe, Robert S SPD; Varner, Elizabeth L SPD FW: Cucamonga Creek (Deer Creek), CA To follow up on the string of e-mails below - this morning I met with John D'Aniello, Earl Eiker and Col. Scrocco on this matter. After discussing it with John D., he called Jim Smyth and told him the following: We will not commit now to approaching our consultant to have the consultant involved with reviewing opponents comments and discussion with the opponents. We will review the opponents comments when they are available (about 25 Aug) with HQ, SPD and SPL involvement. We will jointly decide if we need the assistance of our consultant. Once we either deal with the comments ourselves, or arrange for the consultants' assistance as needed, we will finalize a presentation to Westphal and schedule the briefing. John emphasized MG Van Winkle's desire to come to an end of this affair, and he sees the briefing as the end of it. Jim Smyth was not happy to hear this, and predicts that we will incur further criticism of the opponents, and Sen. Feinstein and Boxer. I made sure John understood that based on past behavior of the opponents, this will not be the end of it. Brian --Original Message-- B~son, Brian D HQ02 Tuesday, August 08, 2000 8:04 AM Caver, Thomas F HQ02 Luisa, Pete C HQ02; Ueda, James Y SPD; Eiker, Earl E HQ02; Langlois, Henri A HQ02; Wolfe, Robert S SPD; Vamer, Elizabeth L SPD; Sing, Edward F SPD; Evelyn. Joseph B SPL RE: Cucamonga Creek (Deer Creek), CA Fred, ASA(CW) made the decision to give the opponents the opportunity to review the LA District analysis. They expect to get the opponent's comments by about 18 Aug. Once those comments come in, someone will have to deal with them. I think our best bet is to try to have our consultant do it. If we do it (internal to the Corps) we will have the same argument with the opponents that we have had from the beginning - they don't trust anything we do so it will just prolong the dispute. Jim Smyth tells me that Sen. Feinstein's office has been supporting the opponents so h~ thinks we will at least be n a better position to defend our finn poe t on, if we have the consultant stay involved. I can't argue with his logic. I am not optimistic that we will be able to resolve this even if we do have the consultant involved, but there is a better chance of success. Even if we don't have the consultant involved, we will be spending more taxpayer money because we will have all of us involved in responding to the next round of letters from the opponents. Brian ~Odginal Messago From: Caver, Thomas F HQ02 Sent: Tuesday, August 08, 2000 7:08 AM To: B~,/son, Bdan D HQ02 Cc: Luisa, Pete C HQ02 Subject: FW: Cucamonga Creek (Deer Creek), CA Brian...see VW's view. Need your advice. Fred ~Odginal Message-- From: Van Winkle, Hans A MG HQ02 Sent: Monday, August 07, 2000 9:56 PM ' To: Potts, Eric R COL HQ02; D'Aniello, John P HQ02; Caver, Thomas F HQ02 Subject: RE: Cucamonga Creek (Deer Creek), CA Lets meet on this, think we have gone above and beyond the call of duty here. Unless there is good reason, do not want to spend more taxpayer money on this. ----Original Message-- From: Potts, Edc R COL HQ02 Sent: Monday, August 07, 2000 5:31 PM H To: Van Winkle, Hans A MG Q02; D'Aniel[o, John P HQ02; Caver, Thomas F HQ02 Subject: FW: Cucamonga Creek (Deer Creek), CA Sir FYI - note there is a second e-mail on same subject from the ASA-CW office. vr Eric ----*Original Message-- From: Scrocco, Raymond K. COL HQ02 Sent: Monday, August 07, 2000 1:22 PM To: Potts, Eric R COL HQ02 Subject: FW: Cucamonga Creek (Deer Creek), CA Summary of Deer Creek, CA actions. Is there an Executive Summary format we use to send things to the boss? Thanks. V/r, Ray --original Message-- From: Bryson, Brian D HQ02 Sent: Monday, August 07, 2000 10:48 AM Cc: ;' d F SPD; Langlois, Henri A HQ02; Caver, Thomas F HQ02; Eiker, Ead E HQ02; Evelyn, Joseph B SPL; Ueda, James Y SPD Subject: Cucamonga Creek (Deer Creek), CA COl. Scrocco - Here is the summary of the issue we spoke about on Friday. Brian Cucamonga Creek (Deer Creek), CA. Since Oct 99, the Corps and ASA(CW) have been involved in a continuous letter writing campaign with various opponents, and Congressional interests, of a proposed new home development in Rancho Cucamonga, CA. The opponents claim that the existing Corps flood control project is unsafe, and therefore no new development should be allowed. LA district has re-evaluated the project and found it to be safe, and that it provides greater than 100 year protection. The opponents had a technical analysis prepared by a consultant, and we have asked LA district to respond to that analysis. OASA(CW) has encouraged us to have the LA district's review checked by an independent reviswer, and we have agreed. The LA district analysis, and technical review by a private consultant have just been completed. On 4 Au9 00, ASA(CW) staff suggested that they want to give the opponents an opportunity to review the LA district analysis. ASA(CVV) staff further wants us to arrange for our consultant (the technical reviewer) to receive the opponent's comments, analyze those comments, and provide us with a report on their view of the opponent's comments. ASA(CW) understands that there will be cost associated with the effort, but believes that we need to take this step to show good faith with the opponents. ASA(CW) staff also believes that the opponents would never accept a LA District review of their comments. The opponents have been very clear that they do not trust LA District. The recent LA District analysis, and tech review, were to lead to a 23 Aug briefing of ASA(CVV) on this issue. Having the opponents review the LA District report, and handling the opponent's comments, will certainly delay that briefing. CW-B has discussed this approach with SPD, LA District and CW-E. Generally, the reaction is that this approach plays into the hands of the opponents because it will delay .a final decision by ASA(CW). CW-E believes that we h h can withstand any amount of scrutiny on this subject, but it sets a bad precedent. We feel that we ave t e technical expertise to determine that the project is safe and by dragging out the process, we cast a shadow of doubt on our efforts. We are also concerned about the potential for additional cost. We have probab y spent on the order of $100K so far from O & M inspecfion of completed works funds. Basedonthepastactionsofthe opponents, it is likely that we will never satisfy them, no matter how cooperative we appear to be. The SPD staff has not yet approached the consultant about this possibility. Ultimate question for DCG-CW: Is there any obiection to complying with ASA(CW) staff request that we have our consultant deal with the opponent's comments? Lugar, Lisa A SPL TO: Subject: Bryson, Brian D HQ02 Monday, August 07, 2000 10:12 AM Eiker, Earl E HQ02; Ueda, James Y SPD; Langlois, Henri A HQ02; Luisa, Pete C HQ02; Sing, Edward F SPD; Scrocco, Raymond K. COL HQ02; Evelyn, Joseph B SPL FW: Deer Creek, CA FYI. I was aware that Jim was going to postpone the 23 Aug briefing. ..... Original Message ..... From: Smyth, James J Mr ASA-CW [mailto:James.Smyth@HQDA.Army. Mil] Sent: Monday, August 07, 2000 11:33 AM To: Reed, David M COL ASA-CW Cc: Westphal, Joseph W Dr ASA-CW; Bryson, Brian D HQ02; Overton, Sylvia B Ms ASA-CW; Davis, Michael L Mr ASA-CW Subject: Deer Creek, CA Col Reed, Last Friday (August 4, 2000), I had a phone conversation with the group that are concerned about the Deer Creek debris basin and flood control channel. On the phone, were Ms. Malissa McKeith, Mr. Dean Dunlavey, and a staff person of Senator Feinstein. The group asked Dr. Westphal for three weeks to review the Los Angeles District's evaluation of the Exponent Report. Later on Friday, I sent Mr. Dunlavey and Douglas Hamilton a copy of the District's July 28, 2000, evaluation. I told them they could have three weeks to provide comments on the Corps review. They also requested that they be able to provide these co~nents to the outside consultant the Corps hired to review the Corps July 28, 2000, evaluation of the Exponent Report, and also to have the opportunity to dialogue with the consultant about their concerns, and their evaluation of the Corps review. I believe that it will be beneficial to both HQUSACE and Army Civil Works to have the consultant stay involved. I am coordinating with the Corps (through HQUSACE) to have the consultant do this additional work. Please note that the Corps has not yet agreed. Even if they do, a scope of work needs to be written, contracts need to be revised, consultant availability needs to be determined, and additional funds need to be found before we can commit to what the group wants and actually hire the consultant. I hope to get an answer from the Corps on this matter by the middle of this week. No matter what time frame we follow, we will not be able to effectively brief Dr. Westphal On the Deer Creek evaluation by August 23, 2000, the date that is currently on his calendar. This group's review and involvement with the outside consultant was not included in the current schedule which led up to the August 23, 2000 briefing. Even if the group provides comments directly to OASA(CW) there is not sufficient time for the Corps to review the material before an August 23, 2000 meeting. Therefore, will you please cancel this briefing. I will come up with a and reschedule, after I figure out a revised schedule that would include the consultant review of the groups comments on the July 28, 2000, evaluation. Thanks. Jim Smyth Assistant for Water Resources Development Page 1 of 1 Lugar, Lisa A SPL From: Bob Mussetter [bobm@mussei.com] Sent: Thursday, August 03, 2000 10:41 AM To: Sing, Edward F SPD Cc: Evelyn, Joseph B SPL Subject: Joint probability calculations Attached is an Excel spreadsheet with my calculations regarding the joint probability of discharges and burn conditions for the Deer Creek debris basin. These calculations are the basis for our statements regarding para 1 lb. of SPL MFR. Bob Robert A. Mussetter, Ph.D., P.E. Mussetter Engineering, Inc. 1730 South College Avenue, Suite 100 Fort Collins, CO 80526 970-224-4612 fax: 970-472-6062 www.mussei.com 8/16/00 Years Fire Condi 1 2.2% 2 4.7% 3 7.5% 4 9.6% 5 12.6% 6 15.8% 7 18.0% 8 20.9% 9 26,8% 10 32.1% 11 41.0% 12 100.0% Unit Debris yield associated with 1% Prob. Flood yd^3/mi^2 ac-ff 373,781 860 292 317 672 236 295 543 192 954 444 158 363 364 133 307 307 120463 277 109 409 252 94,941 218 87,994 202 82,804 190 81.556 188 Joint Probability Joint RI (years) 0.00022 4,545 0.00047 2,128 0.00075 1,333 500 0.00096 1,042 0.00126 794 ~ 400 0.00158 633 ~" 300 0.0018 556 _ 0.00209 478 .! 200 0.00268 373 · c 100 0.00321 312 0.0041 244 ~ 0 0.01 100 100 Debris Yield Assoc Rec sociated with 100-year Discharge Recurrence Interval (years) 1,000 Debris Yield Associated with 100-year Discharge 500 450 ~ 400 ' 350 ~ 300 -o 250 ~.. 200. · ~- 150 ~ 100 50 0 100 1,000 Recurrence Interval (years) CESPL-ED-DS 21 June 2000 MEMORANDUM FOR CESPL-CO-O, ATTN: Ted Masigat SUBJECT: Deer Creek Channel - 57" RCP for Lauren Development, (EE97-155C) I. Reference your memorandum dated 19 April 2000, regarding subject Permit. 2. Engineering Division has reviewed the permit request and has the following comments. a, The proposed slotted chamber design has been modified since the last submittal to four-foot openings to achieve the submergence criteria. However, the updated hydraulic analysis provided to estimate losses in the slotted chamber design used a discharge of 111.7 cubic feet per second (cfs), which is less than the design discharge of 446.8 cfs. Please revise your hydraulic computations to reflect the correct discharge. Our hydraulic concern is that losses within the slotted chamber might cause a backwater effect upstream and cause potential interior flood damages. Provide some type of written documentation assuring no adverse hydraulic effects for this proposed lateral system and junction structure. b. Please provide a copy of the original hydrology report that was provided during the third submittal; the copy previously provided was accidentally discarded. 3. Permit must be resubmitted to Engineering Division. THOMAS H. SAGE, P.E. Chief, Design Branch SAGE CESPL-ED-D CONLEY CESPL-ED-DS VAN DORPE CESPL-ED-DS P97-62C.doc CESPD-ET-EW (1110-2-1150) July 17, 2000 SCOPE OF WORK SUBJECT: Independent Technical Review of Deer Creek, California Studies 1. ProjectData. a. A-E Firm: Ayres Associates 3665 JFK Parkway, Building 2, Suite 300 Fort Collins, CO 80527 Point of Contact: Telephone: Facsimile: Scott Hogan (970) 223-5556 (970) 223-5578 b. Contract Number: DACW05-99-D-0010 Task Order No. 000 2. Project Background. The effectiveness of one of the Deer Creek Debris Basin, part of the Corps of Engineers' Rancho Cucamunga Flood Control Project in Southern California has been called into question by a local homeowner's group (and their attomeys) who oppose a new housing development in the vicinity of the debris basin. The debris basin was constructed about thirty years ago based on the engineering information and design criteria available at that time. There's 30 years worth of additional hydrologic, hydraulic, sediment and meteorologic information available at this time in addition to updated design criteria. In November 1999, the local Corps district office had performed some reconnaissance level analyses based on these additional data which indicated that the debris basin, although not providing the original stated level of (Standard Project) flood protection to downstream areas based on the currently available data and design ~riteria, would provide a level of protection such that the downstream areas would remain out of the FEMA regulatory (100 year) floodplain. Since the November 1999 Corps analysis was performed, the homeowner's group and their attorneys retained an A- E (Exponent - Doug Hamilton, Principal Investigator) to assess the effectiveness of the debris basin. The A-E's report states that the Corps debris basin will not provide the level of flood protection stated in the Corps' November 1999 analysis report. The effectiveness of the Corps' debris basin is important to the homeowner's group for several reasons. One reason is downstream safety. Another is that as part of the new housing development, an existing levee (not part of the Corps project and not used by the local flood control district) that protected downstream areas prior to the construction of the Corps project will be taken down. 3. Contract Management. a. Coordination with the Corps of Engineers. The Corps of Engineers (COE) Project Manager for this task order will be Mr. Ed Sing. He will be responsible for the day-to-day coordination and management of this service coreract. All questions shall be directed to him. With the exception of contractor fee proposals and pay invoices, all written communications shall be addressed to the COE Project Manager at the following address: U.S. Army Corp~ of Engineers, South Pacific Division ATTN: CESPD-ET-EW (Mr. Ed Sing) 333 Market Street San Francisco, California 94502-2195 The COE Project Manager may also be contacted by facsimile or telephone: FAX - (415) 977-8129, ATTN: CESPD-ET-EW (Mr. Ed Sing) Telephone - (415) 977-8117 The COE Project Manager may visit the Contractor at any time after giving notice to review or inspect the progress of the work, or to resolve questions concerning the development of work covered under this Scope of Work (SOW). All Contractor fee proposals and pay invoices shall be mailed directly to the following address: District Engineer U.S. Army Corps of Engineers, Sacramento District ATTN: CESPK-ED- C (AlE Negotiations/Support Unit) 1325 J Street Sacramento, California 95814-2922 b. Coordination ~vith the Contractor. The Contractor shall assign a Project Manager who will maintain a project file to contain all correspondence and criteria pertaining to this project. During progress of work, the Contractor's Project Manager and the COE Project Manager shall coffer regularly to insure the timely completion of all required efforts. All correspondence between the Government and the Contractor shall be through the COE Project Manager and Contractor Project Manager. 4. General Requirements. a. The Contractor shall not depart from, or perform work beyond this Scope of Work, or change the criteria upon which this Scope of Work is based without written direction and/or consent from the Contracting Officer. The Contractor is cautioned to take no guidance from any source other than the Contracting officer during the course of this work which deviates from the requirements stated in this scope of work. The Contractor shall immediately notify the COE Project Manager, Contracting Officer's Representative, or Contracting Officer of any such requests. 2 b. All data, reports and materials produced under or relative to this Scope of Work shall become the property of the Government. c. Questions and concerns that arise periodically can be answered through coordination between the COE Project Manager and the Contractor Project Manager. This will ensure that the final product is acceptable to the Government with few changes required. d. All submittals shall become the property of the COE. The Contractor shall provide copies of backup data and all computations used in support of the contracted work. e. In the performance of this contract with the COE, the Contractor shall perform the following: i. Execute the work diligently and aggressively and promptly advise the COE Project Manager of all significant developments. ii. Prepare a summary of all significant discussions between the Contractor and representatives of other Government agencies relating to work under this contract and promptly furnish a copy to the COE Project Manager. iii. Prepare a summary of significant telephone conversations relating to the technical phases of work under this contract and promptly furnish a copy to the COE Project Manager. iv. Promptly furnish the COE Project Manager copies of all written communications pertaining to the work under this contract received from other agencies. When it is clearly indicated that a copy of the communication has been furnished to the COE Project Manager by the originator, the Contractor shall obtain the concurrence of any action items from the COE Project Manager. v. Take appropriate measures to obtain clarification of data gathering criteria requirements, to acquire all pertinent data gathering information, and to incorporate such information in the work being performed. This action will be accomplished through the COE Project Manager. vi. The Contractor shall be responsible for all land, air and water transportation required to complete the required work. f. Any problems relating to the design which endanger the fulfillment of contractual requirements shall immediately be brought to the attention of the COE Project Manager in writing. Oral understandings shall be confirmed in writing by either party. 5. Work and Services. a. Site Visit and Office Data Review. A Principal Engineer and Principal Geomorphologist shall perform a site visit to the project area, including the area of the Corps' Deer Creek Debris Basin, areas upstream and downstream of the basin on Deer Creek as well as Rancho Cucamunga Creek and the locally owned levee adjacent to the proposed housing development as well as perform a visit to the Corps' Los Angeles District (SPL) Office for the purposes of reviewing data pertinent to the requested work. b. Technical Review: The A-E is requested to perform a technical review of: SPL's November 1999 technical analysis of the Deer Creek Debris Basin's flood control capability; Exponent's report of the same; SPL's review of Exponent's report and any additional computations performed by SPL in verification of Exponent' s analyses; and, any other associated materials developed by the Corps or by the homeowner's group regarding the flood control capability of the Deer Creek debris basin. The technical review requested is the A-E's assessment that studies/analyses are performed in compliance with Corps technical policy and/or accepted industry standard practices. Technical review comments shall not only highlight the reviewer's concerns but also the potential impact the comments might have on the conclusions reached in the analyses being reviewed. (See the South Pacific Division Quality Management Regulation 1110-1-8 for the overarching quality management guidance for reviews of this type on the CESPD Interact homepage at http://spd.usace.army.mil). c. Draft Final Report. The contractor shall prepare a draft comprehensive report that details the site visit, data review and technical review requested herein. d. Backcheck of Responses: The Corps shall respond to the A-E's technical review comments on the Corps analyses and studies. The A-E shall backcheck the Corps responses to ensure resolution of their concerns. e. Final Report: The contractor shall prepare a final comprehensive report that details the site visit, data review and technical review requested herein as well as the backcheck of responses to A-E comments on the Corps analyses and studies. f. Briefing of ASA(CW): The contractor may be requested to participate in a briefing of the Assistant Secretary of the Army for Civil Works (ASA(CW)) in Washington, D.C. on 23 August 2000. g. Meetings. Meetings may be called, as necessary (with approval of the COE Hydraulic Manager) to resolve issues that may arise, to monitor progress, and to insure that all current requirements and studies of the COE are available to the contractor. Any meetings required for this effort shall be coordinated with the ongoing survey work. 6. Reviews and Submittals. The following work schedule covers the work in this SOW. 4 Work Schedule 1. Initiate Work 2. Site Visit and Data Review 3. Technical Review and Draft Final Report 4. Backcheck of Responses and Final Report 5. Briefing of ASA(CW) NTP w/i 7 Calendar days of NTP w/i 14 Calendar days of NTP w/i 21 calendar days of NTP w/I 36 Calendar Days of NTP 7. Period of Service. Period of service for work products and documents to support this SOW is 36 calendar days after NTP. 8. Contract Payments. The Contractor shall bill on a monthly basis for this tasking. The bills shall be submitted on ENG Form 93 available from CESPK A-E Negotiation Section and shall be mailed to the following address: District Engineer U.S. Corps of Engineers, Sacramento District ATTN: CESPK-ED-M, A-E Negotiations Section 1325 J Street Sacramento, CA 95814-2922 c f: CESPD-ET-EW CESPD-PM CESPK-Contracting Division CESPK-AE Neg Sec CESPK-Hyd Des Sec CESPL-ED-HH //S// Edward F. Sing, P.E. Project Manager Lara, Rosa M SPL TO,' Subject: B~son, Brian D HQ02 Monday, July 17, 2000 11:43 AM Griffin, John W SPD; Ueda, James Y SPD; Tsingos, John J SPD; Wolfe, Robert S SPD; Varner, Elizabeth L SPD; Keller. David N SPD; Stockton. Steven L SPD; Lee. LetMon HQ02; Langlois, Henri A HQ02; Lucyshyn. John HQ02; Lamont, Douglas W HQ02; Luisa, Pete C HQ02; Bastjan, David F HQ02; Rezac. Frank P SPD; Sanfilippo, Lee SPK; Phillips, Leslie L SPK; Horvath, Joseph A SPA; Hill. Carde J SPL; Hall. Thomas E SPN; Moore, Brian M SPL; Chadton, Mark C SPK; Rakstins, Arijs A SPN; Meehan, Robert E SPA; Evelyn Joseph B SPL; Smith, Michael D HQ02; Go dman, Howard V HQ02; Gamel, Gary L SPA; Domurat, George W SPD Hudak, Steven J HQ02; Henry, Leonard M HQ02; Devick, Larry L HQ02; Hall, Ken C HQ02 HQ Programs Management Support (Civil Works) to SPED To All, Just wanted to let everyone know that there are now two of us in Programs Management Division, Western Branch, that will be supporting SPD. A decision was made to generally break out our effor~ by District, so Henri Langlois will handle Los Angeles and Albuquerque, and I will handle San Francisco and Sacramento. (I will continue handling Deer Creek coordination for the time being). Obviously, there will be activities that do not neatly fit under one district or another, and Henri and I will do our best to handle those actions efficiently. We also will be doing our best to keep each other informed about what is going on in each others area, so that there is always back up. Henri's phone number is 202-761-0122. After we relocate to the GAO building we will be co-located, but we won't be sitting right next to each other until then. Not sure if our phone numbers will change when we move on 18 Aug. At the present time, Western Branch is shorthanded in support for NWD, so Henri will be taking care of some NWD actions as well, For those of us who regularly communicate by e-mail, it would be helpful if you include both Henri and me on your distribution. Thanks, Brian 415-977-8212 ginal Message--- From: mmckeith@ioeb.com [mailto:mmckeith@loeb.com] Sent: Wednesday, May 17, 2000 8:08 AM To: Purcell, Cornelius W Cc: dean.dunlavey@lw.com Subject: Deer Creek Dear Nell: I assume you received copies of correspondence dated May 15, 2000 from Ken Miller, Director of the San Bernardino County Flood District, to me stating that the District will put the replacement channel on hold until matters are resolved with regard to the Debris Basin. Colonel Carrol was copied on this correspondence. B~ this e-mail, I am requesting that the Corps confirm whether they too wdl defer processing the permit. Please ask the appropriate individuals and let me know. Additionally, would you please let me know the regulation requiring that a "local interest" participate in the Army Corps' reevaluation of flood infrastructure as well as any authority specifying that a private citizen or public interest organization cannot serve as that "local interest". Has the Army Corps requested that San Bernardino County or the City of Rancho Cucamonga serve as the "local interest" in this instance? Thank you for your help and your time last week. Please call Dean Dunlavey at 714-755-8260 or me if you have questions. Lara, Rosa M SPL From: To: Cc: Subject: Evelyn, Joseph B SPL Friday, June 02, 2000 5:56 PM Bryson, Bdan D HQ02 Ueda, James Y SPD; Vermeeren, Rene A SPL; Letfield, Richard J SPL; Delcau, Mitchell R SPL; Casey, Kerry T SPL RE: Deer Creek Brian, As requested I've prepared some verbage that I hope will assist you in responding to some of the issues raised in the 22 May 00 letter to Senator Feinstein. See attachment below. Joe DC comments on 22 May 00 Feins... ..... Odginal Hessage---- FrOm: Bryson, Bdan D HQ02 Sent: Thursday, June 01, 2000 1:29 PH TO: Evelyn, Joseph B 5PL; Ueda, James Y SPD Subject: Deer Creek I have another letter from Senator Feinstein that takes a slighfiy different approach. rm going to send it out to you so you see it, but here are a couple of my ideas on info I need for a response. Jim, please fax Joe a copy. Joe, I know you are just barely back from vacation, and are probably overwhelmed with all kinds of stuff, but I'll give you a chance to took at this and call you early next week. They open by talking about the Exponent Failure Analysis. I can say that we are doing a detailed review of that document. I don't know if ASA(CW) will want to wait for the results of that review before making this letter final, but they established a suspense date for this one of 12 Jun. In page one, they say we ignored the use of the design storm of either 1938 or 1969. I need a concise paragraph that can explain our methodology. On the second page, they include three bullets: Efforts to obtain a local sponsor. I think we can refer to informal contact with the city or county, and include their reaction. If you actually have any letters from them that say they aren't interested, then that would be even better. I know my one contact with Joe O'Neil (I think) from the city of Rancho Cucamonga was that they would not step up to cost share further study. What prevents us from accepting offer of local residents? I'll find the appropdate citations in WRDA's that define the kinds of entities that quali~ as non-Federal sponsors. Why can't we direct the National Academy to study this matter? I'll do some work on that one. My first reaction is that we trust the technical abilities of our district office, and see no reason to have this matter studied further, but I'm sure that won't fly. I'm sure I'll get some guidance from ASA(CW) on that one. I'm checking with SPK to see what kind of cost was involved on one other occasion where we had the National Academy review the American River. Thanks. Brian CESPL-ED-H 2 June 2000 TO: Brian Bryson Subject: Comments Regarding Senator Feinstein's 22 May 00 Deer Creek Letter to Dr. Westphal I received the fax of the subject letter and your e-mail message of 1 Jun 00 regarding Deer Creek. Below I've provided some information that may be useful in preparing a response to the letter. The Corps review of November 1999 utilized the Los Angeles District 1992 debris yield procedures to estimate the quantity of debris production versus frequency of occurrence. The predictire formula in the 1992 procedure, for drainage areas sizes greater than 3 square miles such as Deer Creek, uses flood runoff magnitude rather than rainfall magnitude to make the best estimate of debris production. Therefore there is no need to address questions raised regarding rainfall data, as that information is not directly relevant to the computation. In the derivation of the 1992 debris prediction procedure, debris production correlation to runoff magnitude was substantially better than rainfall for watersheds greater than 3 square miles. The November 1999 Corps review addressed the adequacy of the original design debris storage volume based on the current (1992) procedure for estimating debris production. The Los Angeles District 1992 debris yield procedure was developed based on the observed debris production for at debris basin sites in the southern California. The 1992 Corps debris yield procedure therefore explicitly utilizes the observed debris production experience of debris basins in the region. As stated above and in previous correspondence from the Los Angeles District, including the 1992 technical review report, rainfall data was not directly used in the November 1999 debris yield evaluation. The March 1943 storm event was used as the basis for design flood determinations for the Cucamonga Creek Flood Control Project because it has the most severe precipitation depth and intensity relationships of observed storm events in the region for Cucumonga Creek sized watersheds. Although the 1938 and 1969 storm events produced high rainfall totals over large areas for long durations, these storms were not the most critical flood producing storm events for the Cucamonga Creek watershed. Mr. Robert Kirby was the Corps hydraulic engineer who performed the computations of design floods and debris production estimates for the Cucamonga Creek Project. Mr. Kirby did not design the Deer Creek Debris Basin embankment configuration or the grading plan of the debris basin area that establishes its storage capacity. Lara, Rosa M SPL :rein: To: Cc: Subject: Lei~eld, Richard J SPL Friday, May 26, 2000 1:32 PM Carroll, John P COL SPL; Moore, Brian M SPL Evelyn, Joseph B SPL FW: Letter on Deer Creek For your info. We have the Doug Hamilton report and we are reviewing it. We are working up a draft response for HQUSACE and for City of Rancho Cucamonga. RJL ----Original Ivlessage- .... From: Bryson, Bdan D HC~02 Sent: Fdday, May 26, 2000 1:16 Pivl To: Evelyn, Joseph B SPL; Ueda, James Y SPD C,c: Pearre, Chades H HQ02; Eiker, Ead E HQ02; Luisa, Pete C HQ02; Leifieid, Richard .3 SPL; Vermeeren, Rene A SPL Subject: Letter on Deer Creek Here is a letter that was signed out of here on 26 May, 2000. It responds to a letter we got from Senator Burns of Montana. Marylinda McKeith (maybe a daughter of Malissa McKeith?) wrote to Burns, as the family has a connection to Montana. I was able to draft the response with info I had on hand. So, attached is what we told the good Senator. I just had a call from Jim Smyth in ASA(CVV). They had a conference call with Dunlavey today. They are still pushing and ASA(CVV) will be talking to Boxer and Feinstein staff, and will be looking for "options". I'll be in touch with some folks in HQ next week to start talking about that. Just so you know what Smyth is thinking - maybe Boxer or Feinstein would want to put something in our FY 01 appropriation to have the National Academy review the pro'ect. He doesn't reall know if the Senator's staff are really interested in this issue. As you all know, not one member of ~on ress has asked ~e appropriation subcommittees for any funding in FY 01 related to the Deer Creek issue (so ~rr). Jim also said he was going to give us (the district) the extra time required to draft the response to the 26 April letter from Dunlavey, and the review of the Doug Hamilton repo~c. Mid Jun would be a good target. Brian Deer Creek - HQ to Marylinda M.,. Lara, Rosa M SPL :rom: To: Cc: Subject: Evelyn, Joseph B SPL Friday, Ma~/12, 2000 6:02 PM Bryson, Bnan D HQ02 Leifield. Richard J SPL; Vermeeren, Rene A SPL; Ueda, James Y SPD RE: Deer Creek, CA Brian, I received your fax. I believe I have all the recently generated letters, declarations, and reports regarding Deer Creek. Due to the extensive nature of all the combined documents l'd like to ask for some additional time in drafting a reply to the 26 April letter. I believe the conference call with Dr. Westphal on 8 May provided sufficient background information for ASA(CVV) to either meet directly with opponents to Lauren Development or to brief Louis Caldera. Also I will be on annual leave from 16 May to 1 June. I've asked Rick Leifield (Chief, ED) and Rene Vermeeren (Chief, H&H Section) to fill in for me on Deer Creek during my absence if something urgently needs attention. Right now I've tasked our H&H Section staff to review the Doug Hamilton report, and to complete the evaluation of the original design and current debris storage capacity of the Deer Creek Debris Basin. Realistically I think a draft reply could be put together for HQ by mid-June that adequately addresses the new Deer Creek issues. Joe --~-Original Message- .... From: Btyson, Bdan D HQ02 Sent: Wednesday, May i0, 2000 5:28 AM To: Evelyn, .loseph B 5PL; Ueda, 3ames Y SPD Subject: RF: Deer Creek, CA I just went down to our fax machine to fax the letter, and I found that Jim had fax'd a copy of it to me last evening. However, the copy that Jim sent me was missing one page of Kirby's declaration, so I'll fax it as planned, in case you didn't get the entire document from ASA(CW). Thanks, Brian --Original Message-- From: Bryson, Bdan D HQ02 Sent: Wednesday, May 10, 2000 8:18 AM To: Evelyn, Joseph B SPL; Ueda, James Y SPD Cc: Griffin, John W SPD; Wolfe, Robert S SPD; Eiker, Earl E HQ02; Luisa, Pete C HQ02; Carroll, John P COL SPL; Wagenaar, Richard P LTC HQ02; Moore, Brian M SPL Subject: Deer Creek, CA Joe and Jim, I'm going to fax you the 26 Apt 00 letter that Mr. Dunlavey wrote to Caldera - this is the one that has the declaration from Robert Kirby as an attachment. (I'm faxing it to the PPMD fax, and I'll ask that it be delivered to Joe). I understand from Jim that Dr. Westphal called the district directly on this and talked to you about it. I know the e-mail system has been screwed up. but we were hoping to get a summary of that phone call. We would still like to hear how that discussion went. We don't have an official tasker on this letter yet, but expect that we will get one. Could you prepare an electronic draft response and provide it to me by the end of next week? I have mentioned to Jim that I had a call from Mike Grimm of FEMA here in DC. Mike says that Malissa McKeith asked for a meeting with Mr. Witt last week, but when Witt was unavailable. she wasn't interested in meeting with anyone else. She is apparently on a campaign to smear many of us, as you will note in the 26 Apr letter. Thanks, Bdan Lara, Rosa M SPL From: To: CC: Subject: Evelyn, Joseph B SPL Wednesday, Ma 10. 2000 6:31 PM Carroll, John P ~JL SPL; Landry, Charles V LTC SPL; Leifield, Richard J SPL; Temmel, Stephen E SPL; Purcell, Cornelius W SPD; Bryson, Brian D HQ02; Ueda. James Y SPD; Moore, Brian M SPL Vermeeren, Rene A SPL; Delcau, Mitchell R SPL; Casey, Kerry T SPL; Nesmith, Herbert M SPL; Eiker, Earl E HQ02; Sing, Edward F SPD Deer Creek Conference Call with Dr. Westphal The purpose of this message is to document a 8 May 2000 conference call discussion between ASA(CW) and Los Angeles District staff regarding Deer Creek Debris Basin in Rancho Cucamonga, California. The conference call was requested by Dr. Westpha to discuss issues raised in a 26 April 2000 letter from Mr. Dean G. Dunlave of Latham & Watkins (attorney for Rancho Cucamonga residents opposing the Lauren Development proposal near YDeer Creek). The 26 April letter was addressed to the Honorable Louis Caldera (Secretary of the Army) and Director James Lee Wilt of FEMA. Mike Davis and Jim Smyth from ASA(CW),and Col. Landry. Brian Moore, Steve Temmel, Richard Leifield, and Joe Evelyn from LAD participated in the conference call. Dr. Westphal asked whether we had received a copy of the 26 April letter. Since we had not received a copy, ASA (CVV) faxed a copy to us to refer to during our discussion. The discussion covered background information related to Deer Creek, and focused on the following items: 1. Procedures used to determine debris yield for debris basin design in LAD. Whether those procedures are unique to our region or more general Corps procedures used nationally. What independent variables were used to compute debris yield for Deer Creek. 2. The relevance of rainfall data in the determination of debris yield for Deer Creek. 3. The procedures used to determine the debris deposition pattern for Deer Creek Debris Basin and the grading plan used to generate the design debris storage volume for the basin. 4. The declaration of Mr. Robert Kirby (this was an attachment to the 26 April letter), a former LAD hydraulic engineer, who developed the hydrology for the Cucamonga Creek Project including Deer Creek. 5. Our understanding of the reason local residents are so vigorously pursuing decertification by the Corps and FEMA of the 100-year level-of-protection afforded by the Deer Creek Debris Basin and Channel. 6. The prior history and current status of permit applications by the Lauren Development to place the local storm drainage from the proposed development into Deer Creek Channel. )7. Our understanding of local interest (by City of Rancho Cucamonga and San Bernardino Coun) in participating in a cost-shared feasibility study to reexamine the level-of-protection for Deek Creek Debris Basin an~/Channel. Dr. Westphal wanted to ensure that Deer Creek issues were well coordinated between ASA(CVV) and the Corps of HQUSACE to ASA(CVV) after a review and evaluation of the information provided in the 26 April 2000 letter. Joseph B. Evelyn. P.E. U.S. Army Corps of Engineers. Los Angeles District Hydrology and Hydraulics Branch e-maih jevelyn@spl.usace.army.mil phone: (213) 452-3525 fax: (213) 452-4202 Lara, Rosa M SPL To: Cc: Subject: Evelyn, Joseph B SPL Wednesday, May 10, 2000 9:43 AM 'Guidry, Ken' Vermeeren, Rene A SPL; Delcau, Mitchell R SPL; Casey. Kerry T SPL RE: FVV: Deer Creek Dam Inundation Map KenI I don't think you need all the information requested to conduct a dam inundation study that examines the flooding that would result from failure of a debris basin embankment. The stage-storage-area relationship can be derived from topographic information you have for the basin. We have not compiled it because the storage capacity of a debris basin is allocated for debris storage only. The maximum water storage that would occur for a debris basin is the case in which the basin has been recently restored to its full debris storage capacity and a flood occurs which carries relatively little sediment that results in pooling water to the maximum surcharge pool level of 2674.13 feet. Again that storage volume could be determined from topography of the basin. The spillway is designed to pass the peak discharge of the Probable Maximum Flood without any attenuation of the flood by storage space within the debris basin. Hence we have not developed a rating curve for the spillway but simply provided a sufficiently large spillway to pass the peak disch3rge of the PMF. Reference paragraph 6-02e of FDM #6 for a discussion of the spillwa design. Paragraph 6-02~'gf FDM #6 describes the design of the debris basin pool drain which in the case of Deer Creek is a 36-inch diameter RCP. For the inundation study one would normally ignore the effects of the pool drain since its outflow is insignificant in comparison to spillway flow or dam breach discharge. Contact me if I can be of further assistance. Joe .... Ori inal Message--- From: ~uidry, Ken [mailto:kguidry@pwg.co.san-bernardino.ca.us] Sent: Tuesday, May 09, 2000 8:06 AM To: 'jevelyn@spl.usace.army.mil' Subject: FW: FW: Deer Creek Dam inundation Map Joe - ~ got a call from the engineer doing the dam inundation study and was asking about info requested in message below. He needs the info to begin his analysis. Thanks!! Ken > · ---Original Message-- > · From: Guidry, Ken · · Sent: Tuesday April 18 2000 7:54 AM · · To: 'jevelyn@spl;usace.a~my.mil' · · Subject: Deer Creek Dam Inundation Map · · Joe - · · The engineer that is preparing the dam inundation map requested >the · · following info for the DAMBRK analysis. · · 1) the stage-storage-area relationship · · 2) spillway hydraulics · · 3) outlet hydraulics · · Can you provide that info to us asap. · · Thankst! · · Monday afternoon I mailed the hard copies of the survey info I · faxed to · · yOU. · · Ken Guidry, Chief · · 909,387.2525 · · E~mail: kguidry@psg,co.san-bernardino,ca.us Lara, Rosa M SPL From: Sent: To: Cc: Subject: Bryson, Brian D HQ02 Wednesday, May 03, 2000 4:49 AM Evelyn, Joseph B SPL Griffin, John W SPD; Wolfe, Robert S SPD; Ueda, James Y SPD; Luisa, Pete C HQ02 RE: Are you Dead? (This is about Deer Creek) Just an interesting note from the Programs perspective regarding Deer Creek. Of nearly 500 Congressional member 1 requests for adds to our FY 0 appropriation for SPD, we have not seen anything asking for money to do more on Deer Creek. Of course we are still a long wa from seeing the appropriation. but it is interesting to see that no member has bothered to ask the subcommittees so ~r. Brian Original Message-- From: Evelyn, Joseph B SPL Sent: Tuesday, May 02, 2000 7:13 PM To: Purcell, Cornelius W SPD Cc: Carroll, John P COL SPL; Landry, Charles V LTC SPL; Leifield, Richard J SPL; Temmel. Stephen E SPL; Lugar, Lisa A SPL; Vermeeren, Rene A SPL; Bryson. Brian D HQ02; Ueda. James Y SPD; Sing, Edward F SPD Subject: RE: Are you Dead? Nell, The attached 10 April 2000 e-mail message is from Doug Hamilton asking to discuss his work on Deer Creek with me. I attempted to contact him by phone but got his voice mail. He returned my call on 14 April stating that he was in Mexico for a meeting but would contact me upon his return. To date I have not heard from again. I am an appropriate technical point-of-contact for hydrology/hydraulics related issues for the Deer Creek project, including permit activities. I am not aware of a "recent report documenting that the Debds Basin was never designed to its original specification" referred to by Ms. McKeith. Joe --Original Message~ From: Purcell, Cornelius W SPD Sent: Monday, May 01,2000 8:29 AM To: 'mmckeith@loeb.com' Subject: RE: Are you Dead? I apologize for the delay but I have been out of the office on business and just returned this morning. I do not have the name of the specific engineer assigned to the matter; however. in view of the time that has passed, your engineer can contact either Joe Evelyn directly at 213-452-3525 who will put him in touch with the proper person or you can provide me the name and number of your engineer and I will forward it to Mr. Evelyn so that he or she may be contacted and his or her views can be heard. NeilPu~ell AssistantDivision Counsel SPD-OC 415-977-8212 i-Original Message--- From: mmckeith@loeb.com [mailto:mmckeith@loeb.com] Sent: Thursday, April 27, 2000 12:46 PM To: Purcell, Cornelius W; thodgini@spd.usace.army.mil Cc: iohn hess@boxer. senate.gov; jim lazarus@feinstein.senate.gov Subject:~,re you Dead? ' Nell: I wrote to you on April 24, 2000 concerning the submission of the San Bernardino County Flood Control District to the Army Corps of Engineers the permit application for the hookup of Lauren Development's so-called Alternative Replacement Channel to the Deer Creek Channel. I sent an e-mail to you on April 25, 2000 regarding the same topic, and I left a phone message for you on April 26, 2000. In each of these communications, I requested that the Corps reject that submission immediately, because San IBernardino and the Army Corps have the incorrect, underlying hydrology data to support the hookup permit. On March 20, 2000, the developer modified the replacement channel from a trapazoidal to a rectangular channel. He did not update the March 13, 1999 plans. Unless the developer's consultants are magicians, the hydraulic characteristics would have change thereby affecting the discharge into the Deer Creek Channel. Please advise me immediately who the engineer is at the Corps of Engineer's in Los Angeles and his or her telephone number so that our consultant, Doug Hamilton, can speak to them directly on this issue. I look forward to finally hearing back from you on what obviously is a critical issue. As you are well aware, the permit for the replacement channel is the last permit required by the developer before the levee is removed. With the recent report documenting that the Debris Basin was never designed to its original specification, it would be nice if the Corps did not facilitate the levee being graded by mistakenly approving the hookup. Thank you. 2 Lara, Rosa M SPL ~From: Sent: To: Subject: Purcell, Comelius W SPD Tuesday, May 02, 2000 7:02 AM Evelyn, Joseph B SPL; Temmel, Stephen E SPL FW: Are you Dead? FYi. Expect a phone call. I have responded that there is nothing sinister about Joe's (your) involvement but that he (you) is (are) my only contact on the technical side in SPL. Nell Purcell Assistant Division Counsel SPD-OC 415-977-8212 ATI'ORNEY-CLIENT PRIVILEGED COMMUNICATION. DO NOT RELEASE UNDER FOIA. DO NOT COPY. DO NOT FORWARD Original Message From: mmckeith@loeb.com [mailto:mmckeith@loeb.com] Sent: Monda , May 01, 2000 9:48 PM To: Purcell, ~rnelius W SPD Cc: dhamilton@exponent.com Subject: RE: Are you Dead? Neih Doug Hamilton's number is 714-755-5381. I find it curios that Mr. Evel n , would be involved with the approval of the replacement channel. Its a ~oit like Mr. Guidrey getting involved when its not his unit. Gee - what a coincidence. By this memo, I'm requesting that Doug call Joe to get the name of the actual individual handling matters. Thanks. "Purcell, Cornelius W SPD" <Comelius.W. Purcell@spd02.usace.army.mil> on 05/01/2000 08:28:42 AM To: "'mmckeith@loeb.com"' <mmckeith@loeb.com> CC: Subject: RE: Are you Dead? I apologize for the delay but I have been out of the office on business and just returned this mornin . I do not have the name of the spec~c engineer assigned to the matter; however, in view of the time that has passed, your engineer can contact either Joe Evelyn directly at 213-452-3525 who will put him in touch with the proper person or you can provide me the name and number of your engineer and I will forward it to Mr. Evelyn so that he or she may be contacted and his or her views can be heard. Nell Purcell Assistant Division Counsel SPD-OC 415-977-8212 '2om LOE i S J-,OEBLLp ; DIrect DId] 213-6~8-362;Z vIA TELECopy ANB · Irl~ST CLAg~ L~AII~ F=bn~ry 15, 2000 A~sist~: Gcnczal Counsel Comeli~ Procell U.~. ~ ~s'ofE~ S~ffi P~i~c Dl~slon 333 M~ S~ S~i~ llO1 ~ F~c~co, CA 94105-2195 Replant ~cl Hook-Up to' Dca~N~.: ~}n Navemtzr 4, 1999, we met wit5 you and Colonel Hodgint at the ,s~ Corps i~ San Francisco. At thaz time, the issue of wh=tl~=r tit=. Ann3, Corps hm:i ~ l~t~- is a formal request that the Arm,/Cor~ ~tr ~ stay the prvccssi~ of L~t~n Dcvclopment'w request for a ]~'mlt to hookup ~e m-called c : Cl,,,t~el on Tract No, 14771 to the Deer Qeek ChaanCj f~- 60 daya to FOIA ,r~qucst~. ' go da~ despite I. mding The subj~t permit and docun~nts minting to it w=re identi.f~.le and available to the C0rp,n wl~ich has bee~ coldtiering th~ cJ~%.m,~l_ since luly 1 ~9~. The A~y ~ozps' failure to !~du~e thcs~ document~ for mmo 7O"dnys foltowin~ your statutory ~iuittme~t to do ~o is not justified and has been ~txzmeJy pr~juclicxal. Coincidentally, tl~ San Bcznatd~o County ~ood Control District to proddec those same doctun~nts in response to a Public R~zrds Act request from the replacement. eha~ne] f~ T~t 14~1 ' co~ernf~ the Rep~cem~t C~nnel~r ~ 14771. S~s~y FO~ ~te subbed on J~'3 ~d ~ 2000, On~ ~ ~e Co~ ~ed ~ occ~e~ Fcbruary 15. 20~ Pe~e 3 10C°un''e] Cornelius Purcell Vcry WUly Y~urs, LOEB LLOEBu-P ]V!~cj:L29,200O BY TELECOPIER - 703-697-7401 The Honorable Joseph WcstFhel Assistant Secretary of ~c Army ] 08 Army PerilaBort Washinglon D.C. 20310-010g Re: Dz~ Crcc~ Project ! D~ar Mr. Secretary: , I. w;ite ~o req~! ~ yo~ o~Ce ~cdiat~ly ~locatc ~ds to ~ Na~o~ A~my af Sci~cc ~. ~I ~ ind~p~r ~Y of ~ a~q~ ~f ~he De~ Creek ~d Day Cr~ :Debts B~ h Sm B~dino ~a~, ~ifo~a. LL Gene~ B~l~d's rc~ t~ cond~ ~al study d yo~ o~e, Sut~ Boxer, Scnalor ~d~ ~d ln~l~abl~. ~ ~y Co~s ~f Eng{n~ ~l~]y fried to b~ld ~c De~ Creek ~ojecl ~o ~ ~rigin~ Congre~i~ul Au~o~n~n- coYcr ~ {5 W~I~ ~[ ~ay~ doll~ ~ iu Ic~c~ ~sz~ ~ co~c~i~ duc~ents, by ~ing to cunducI a rccv~on ~c ~ins, gove~t agonies not Io g~ ~volved. ~ fact ~at LL G~ Ball~ is dir~tly ~c~ ~h!s co~ucl m~t b= ~ppcd. Morn bcf6re ~onmds of us ~mes ~ buih in a ~g~o~ phc= ~ r~nce oa ~ C~s' ~UcS5 ~1 ~ De~ C~ek Debts Ba be cvel~ ~ ~ abOU~ ~ Fo~ ~q~ ~ms~v~ ~m ~c S~amrs' o~ce, o~ a~ys ~m Lae~ & Wa~. ~ l meI ~ you on D~cm~ 8. 1~9, ~ ~ ~ue~a }~on~y ~ ~t ~ch a ~dy would ~ conduma ~d b= lo~. ~l Da~ md ~t h~ wo~d meet ~ ~L ~n~ B~ -" 04,/05Y00'' '~'lJ:=20; · ~22202'.:7~1~5295'.'~:::'''=~!. LQEB6~J_C)EB~LP ~ Honorable .Ios,'ph Mm'ch 29, 2000 ths following wa=k ~o discuss r~= funding. Bazr;ng Sena~' r~en~dv~ slated ~t ~ a~i~on wo~d ~ SOU~L L~5 ~ one ~bek la~, Lz. G=ml B~ ap~ved a b~ ~o la~cr ~ ~d ~ i~ odSi~ Con~io~ A~~ r~ 200 y~ ~ood pm~cG~. ~z=~ ~c Co~s now cl~ ~c lO0-y~ flood-~ Pollo~=Z ~t len~, you r~dvcd ~=~o~ncc ~ Wa~s a~ D=ccmb~ 29, 1999, po~n~ out On 3~ 19, 2000, S~wr Boxcz aE~in ~ozc CX}l~IOn ~ to W~I' h~ occ~ b=~ccn the Dcc~ber De~m~ l~, 1999 le~r w cl~inale ~= n~d for ~ $2~,000 s~dy. ~o r=spo~ w~ fa~com~g. ~t I ~dcrs~d, howcry, is s~y ~d confines ~o n~c w recv~ua~ Dc~ Cz=ck dcspi~ ~ rdq~ of o~ ~tir~ Con~cssion~ delegation, ' Oiv~ ~c f~l~= of ~e ~s Io condu~ ~ objec~e study ~ouz expiation, ~ S~s j~in~y ~ole zo ~es Lc~ ~ on [J~ l.~. 2000 requiting ~e sm~y b= done by FE~. I~cdi~=ly follo~ ~a~ lcm, ~ploy=cs of ~c Co~s sent n~o~ e-m~ls J~ ~A ~a ~c~=l B~er Engine~s. ~ng FE~ not m conauct FE~ hired Michael B~ to ~al~te ~c Co~s' D=c~r m~i~cd ~a~ cvsllon. Imze~, on F~b~ 16, 2~0, $EMA ~ co~0nd~= m S~r Boxer ~d Saner Fcim~in ~liuS ~ ~cafion, ~d ~az it would no~ c~nduc~ n ind~ud~t staY- ~s le~ ~ ~nz cv~ ~oUgh ~chael B~er ~ r~o~l~ concluded : In 1968, Confess ':~llocazcd $170,000,000 for consma~-tion if T.h= aucamon~a l~r~jcct ~ h~lc a 20~ ~oo~. V~ly cv~ ~pen ~vi~ ~ ~ of Basin ~l~cs lO0-y~ flood. ~cct to ~c o~gin~ Cn~csdo~ Au~od~d~n, . InEBF~dJ3EBuJ, Thc H~r~rabl6~oscphWestphal Y.~ch 29, 2000 Page 3 m~ofpcoplcatfiskh~eev~zofb~lme~ovcabil doU~in N~ A~dgmy of 5~c~e ~ c~m b~B bdom ~cgs~ of new h~cs Dec ~d Day Creek. Ev~ ifLl. Ocne~ B~=d s=~o~ ~ ~sco~z d~e L~ agcl~ O~cc ef~e ~s, you sho~ Wc apFceiatc your help. vc~ truly yours. I MalissaHa~'Asway McKei~ The HonoraT~le Barbara Boxer Omy ~lccopicr) The Honorable Dianc Fcinst~in (by The Flonorabl'*/oseph. Baca Cc, y xelecople=) 5ames Le,' Win, Dir~-'tor, Federal l';mezEency Manag~m~n~ Agency 0mY lelecopi~r} . Michel Grun,arnld, The ~a~hi,gton Post O~Y Dean Dunlay=y, Esq., Lat-hlm~ & Watkins (by ~elw. oplcx) David Thompson, Esq-, Laxham & Walkills (by lelecopier) DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARy CIVIL WORKS 108 ARMY PENTAGON WASHINGTON DC 20310-0108 O 1 NOV 2(Ju~ Mr. Dean Dunlavey Latham & Watkins 650 Town Center Drive Suite 2000 Costa Mesa, California 92626-1235 Dear Mr. Dunlavey: This is an interim response to your letters of August 28, 2000, regarding the Deer Creek Debris Basin, Rancho Cucamonga, San Bemardino County, California. As you know, the Army Corps of Engineers bdefed me on the results of their recent analysis of the project on October 13, 2000. The Corps findings are that the capacity of the Deer Creek Debris Basin and the level of protection provided by the channel are both less than estimated when the project was originally designed. However, the Corps believes that the overall project provides a 100-year level of flood protection. I am presently reviewing materials that the Corps has provided so I can deveI0p a final position on this matter. As Mr. James Smyth of my staff informed Ms. Malissa McKeith on October 26, 2000, we are coordinating these preliminary results with the Federal Emergency Management Agency (FEMA). Public safety is our first concern, and we want to be sure that FEMA is in agreement with the results. After I coordinate with FEMA, my staff will then coordinate the results with the State of California, San Bernardino County, and the town of Rancho Cucamonga. I understand that there are concerns that the project might not provide a 100-year level of flood protection to the community of Rancho Cucamonga. Due to a variety of reasons which I will not go into at this time, and while there are differences of opinion on what exact level of protection the project does provide, it is clear that the project does not provide the intended level of flood protection. More studies would be needed to reevaluate the project, and possibly, we might need additional authorization to modify it to increase the level of flood protection. In this regard, let me reiterate our position that if -2- a non-Federal govemment (city, county, or State) desires to pursue a study to determine the feasibility of providing a higher level of flood protection, the Corps is willing to undertake such a cost-shared effort. Please be assured that I intend to provide a final response to you and others on this matter as soon as possible. I hope that you find this information useful. ' s~s~'~~~t~PShecretary of the Arc~~W~stP~al~'my (Civil Works) 0CT-05-2000 13:28 BEST BEST & KRIEGEL LLP SUBDMRION8 909 686 3083 P. 82/53 , sA Meu. 66-256. C~beunda,'yll~es* Upon th, ~abdi'visi~n ti~ in. ~ rely ~icn o~ ~he ~ ~t~ the ~ie~ d a ~[~on ~ on ~y ~ map ~ ap~d ~rd of ~ey ~ ls ~hj~ to ~uD~on or flood h~d by ~mwa~e~, mmh ~c~ ~d ~on ~ prom~t no~ on e~ sh~ or sub n~p wh~on ~y such ~o~n ~ be sho~ {~de 1971, J I[ ~ ~icn 0[~he 1~ desc~h~ i~ ~i .n 86-~7 is $ubje~ ~ ~ho~ ~rfow or pon~nZ n[ Io~ ~om~cr or 8bo~d ~he ~th tn ~xdwa~ bc le3s th~ ~n [~t t~om the ~otmd 5urfa~, ~hc cornCoB .~el1 ;0 ~m thH ~ ~ ea~te ~m~5~oner. (Code 1971, J S~. 66-259. Na~wa~x~ or ~H~, d~e su~d~ e~ d~ ~ ~ua~ ~ght~r-w~ for st= ~nn~ pu~o~s, if bx the ~on of ~ ~,6~ ~ d~on is n~SS~. [[ the ~d n~rco~ dv~ net ~c en~ly ~ ~ch ~a~on, Jh~ mxbdjvjder m~ ~th~ ~n~c~ ~ ~d~ d~ ~ ~ dc&~en or de~ea~ th~ m~ au~ of ~h~ wn~rcounc upon ~e fm~ map or applied re~ or (Code 1971~ ~ 18.SZM40) [~, hi the oglnlon of the cmnm~ssion, either soweJs .r ~mz.m drain~ or both ~c noce~sary for ~t,: gene~a~ ~e o[Iot ownor~ m the ~bdivislon and su{:h s~wem or stem ~in3 cr both no~ to be inked ~ ~e ~t~ c~ ntch m,hdt~gicn. ~e ~ubdlvide~ sh~ eh~ up~ the ma~ (Code 10ql, ~ 18.SZMS0) See. 66.261. l~.vldFtnB ~h-uc~z.d .within ~m~. a~y f~ ~ap of 3 euh~fnn p~t~ ~ the w~n ~d ~un~l f~ ~cmptan~ or e~emen~ ~ ~ec~rJnn ~ ~ ~mp~ie~ ~ ~ addi~io~ ~py on wMch is deHnea~ ~1 dm~es e~zivg ~thin ~ e~m~l~. ~t pub~y owncd ~ ~, water lines, (~ 1~71, ~ 18.B2.270) 0CT-05-2000 13:28 BEST BEST & KRIEGEL LLP 909 686 3083 P.03/53 CHAPTER 1~: FLOOD DAMAGE pREVENTION pROGRAM ' · Chapter 13, consisting of §§ 8-13.01 through 8-13.13, codi~ed from Ord. 2109, elf. November 18, 1980, was mended by Ord. 2409, adopted January 5, 1988. Article 1. Purpose and Methods 8-13.101 Findings of fact 8-13.102 Statement of purpose 8-13.103 Methods of reducing flood losses Article 2. Definitions 8-B.201 Definitions 8-13.301 8-13.302 8-13.303 8-13.304 8-13 305 8-13,306 8-13.307 Article 3. General Provisions Lands to which ~his chapter applies Base for establishing the areas of special flood hazard Compliance Abrogation and greater restrictions Interpretation Wamin8 and disclaimer of liability Severability 8-11,401 8-13.402 8-13,401 Article 4..4dmtnt~xation Establishment of development permit Designation of the Floodplain AdIninistrator Dudes and responsibilities of the Floodplain Administrator Article 5. Provisions for Flood Hazard Reduction 8-13.501 8-13.502 8-13.503 8-13 504 8-13.505 8-13.506 8-13,50'7 Standards of construction Standards for utilities Sumdards for subdivisions Standards for manufactured homes Floodways Mudslide- (i.e., mudflow-) pron~ areas Flood-related ernsion-prone areas Article 6. Vaxhnce Procedure 8-13,601 Appeal board 8-13.602 Conditions for variances Article 1. Purpose and Methods ·Sec. 8-13.101. Findings of fact. (a) The flood hazard areas of Ontario, California are subject to periodic inundation which may result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood pwtecfion and relid, and impairment of the tax base. all of which adversely' affect the public health, safely and general welfare. Co) These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood h,'ighrs and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadecf, ntely fioodpteofed, elevated or otherwise protected from flood damage.aBo contribute to the flood loss. (§ 1, Ord. 2409) Sec. 8-13.102. Statement of purpose. It is the purpose of this chapter to promote the public health, sa~ly, and l!eneral welfare and to ip;n{mize public and private losses due to flood conditions in specific areas by provisions designed: (a) To pro~ct human life and health; Co) To minimize the expendit'are of public money for costly flood control projecLs; (c) To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; (d) To minimize prolonged business interruptions; (e) To mlnlmize damages fo public facilities and utilkies, such as water and gas mains, cledric, 39 200(3 S-1 0CT-05-2000 ~3:28 BEST BEST & KRIEGEL LLP 909 686 3083 P,04/53 Ontario - BuiM;-,~ Re~latious telephone and sewer lines, s~zects and bridges locatcd in areas of special flood hazard; (f) To help maintain a stable tax base by providing for the second use and development of areas of special ~o~i hazard so as to mhim~'e funire flood blight areas; (g) To insure that potential buyers are notified that prol~lty is in an ar~a of special flood hazard; and ~) To insure that those who occupy the areas of special flood hazard assume responsibiliW for their actions. (§ 1, Ord. 2409) Sec. 8-13.103. Methods of reducing flood losses. in order to accomplish its pusposes, this chapter includes methods and provisions for: (a) Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increase in erosion or flood heights or velocities; fo) .Requiring that uses vulnerable to floods, facilities which sere such uses be protected against flood damage at the ~mc of initial construction; (c) Confrolllng the alteration of natllral floodplains, stream channels, and natural protective barriers which help accommodate or channel flood waters; (d) Controlling filling, grading, dredging, and other development which may increase flood damage; and (e) Preventing or regulating the construction of flood barriers which will natorally divert flood waters or which may increase flood hazards in other areas, (§ 1, Ord, 2409) Article 2. Definitions Sec. 8-13.201. Defmitlons. Unless specifically defined below, words or phrases used in ~his chapter shall be interpreu:d so as tO give them the ffle~n|nE they have in coxnxnon usage and to givc this chapter ira most reasonable application. (a) "Appeal' means a request for a review of the Floodplain .Adrninistrator's interpretation of any provision of this chapter or a request for a variance. Co) "Area of shallow flooding' means a desigtmtcd AO or AH Zone on the Flood Insurenee Rate Map (FIRM). The base flood depths range from one (1) foot to three (S) feet; a clearly defined ch~m~el does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. (c) 'Area of special flood-related erosion hazard' means the area subject to severe flood-related erosion losses. The area is designated Zone E on the Flood Insurance Rate Map (FIRM). (d) "Arcaofspecialfiondhazard.' Sec 'Special flood hazard area, ' (e) 'Area of special mudslide (i.e., mudflow) hazard' means the area subject to severe mudslidcs (i.e., mudflows). The area is designated as Zone M on the flood Insurance Rate Map (FIRM). (f) 'Base flood' means the flood having a one percent chance of being equaled or exceeded in any given year (also called thc '100-year flood'). (~) 'Baseinent' means any a~a of the building havin~ i~s flOOr subgrade (below ground level) on all sides. (h) 'Breakaway walls' means any type afWalis,. whether solid' or lattice, and whether consu'ucted of concrete, masonry, wood, metal, plastic or any other suitable building material which is not pan of the structural support of the building and which is designed to break away under abnormally high tides or wave action without causing any denrage to the structural integrity of the building on which they are used or any buildings to which thcy might be carried by flood waters. A breaksway wall shall have a safe dasiEn loading resistance of not less finn ten (10) and no more than t~venty (20) potrods per square foot. Use of brcakaway walls must be certified by a registered engineer or architect and shall meet the following conditions: (1) Breakaway wall collapse shall result from a water load less ,_~n that which would occur during the base flood; and . (2) The elevated portion of the buildlnZ shall not incur any structural damage due to the effects. of wind and water loads iLL-ring simultaneously In thc event of the bsse flood. OCT-O5-2800 13:29 BEST BEST ~ KR[EGEL LLP 909 686 3083 P.05/53 Flood Damage Prevention Program 41 (i) "Development" means any man-made change to improved or unimproved real estate, including but not limimd to buildings or other su'uctures, mining, dredging, filing, grading, paving, excavation or drill~g operations- (j) "Flood" or "flooding" xn~ans a general and temporary condition of partial or complete inundation of normally dry land areas from (1) the overflow of ~oed waters, (2) the unusual and rapid accumulation of runoff of surface waters from any source, and/or (3) the collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currants ofwa~er exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of wav~r. accompanied by a severe storm, or by an unanticipaLed force of nature, such as flash ~xl or an abnormal tidal surge, or by some similarly unusual and unforeseanjDle event which results in flooding as defined in this definition. (k) "Flood Boundary and Floodway Map" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of flood hazard and the floodway. (1) "Flood Insurance Rate Map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. (m) "Flood Insurance Study" rneans the official report provided by the Federal Insurance Administration that includes flood proffi~s, the FIRM, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood. (n) "Floodplain" or "flood-prone area" means any land area suseoptible to being inundated by water from any source (see definition of "~o~i.~"). (o) "Floodplain manag=ment" m~ans the operation of an overall proSram of corrective and preventive measures for reducing ~oc~ damage including but not limimd to emergency pn.-.pare&ness plans, flood Control works and floodplain managernen~ regulations. (p) "FloOdplain management reguh~ns" means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term desiribes such slate and local regulations in any combination thereof, which prov!de standards for the purpose of flood dsn~ge prevanuon and reduction. (q) 'Floodproofing' means any combination of swacmral and nonstructural additions, changes, or adjustments to slructures which reduce or elirnioate flood damage m real estate or improved real property, wamr and sanitary facilities. structures and their contents. (r) 'Floealway' means the ch.n-el of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumniatively increasing the water surface elevation more than one foot. Also referred to as 'regularory floodway. "' (s) "Functionally dependent use" means a use which c.-not perform i~s hnended pth-~0Se unless it is located or carried out in close proximity m war~r. The term includes only docking facilities, port facilities that are necessax~ for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long- term storage or related manufacturing facilities. (0 "Hi~hes~ adjacent grade' means ~xe highest natural elevation of the ground surface prior to construction next to the proposed wails of a smxcture. (u) 'Lowest floor' n~aus the lowest floor of the lowest enclosed area (including basemear). An unfinished or fined resistant enclosure, usable solely for parkin~ of vehicles. building access or storage in an area other Lh_sn a basement area is not considered a building' s lowest floor; provided, that such enclosure is nor built so as to render the suucmre in violation of the applicable non-elevation design requirements of this chapmr. (v) 'Manufactured home' means a su-ucture, transportable in one or more sections, which is built on a p~rmanent chassis and is designed for us with or without a permanent foundation when connected to the , OCT-BS-2000 13:29 BEST BEST ~ KRIEGEL LLP 909 686 3083 P,06/53 Ontario - Building Regulations required utilities. For floodplain management purposes, the term "manufactured home" also includes park uailers, Wavel trailers and other similar vehicles placed on a site for greater ~an one hundred cighty (lSO) ~onseentive days. (w) "Manufactured home park or sulxlivision" means a pareel (or contiguous parcels) of land divided into two or more manufactured home loLs for sale or (x) "Mean sea level" means, for purposes of the National Flood Insurance Prop, the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base flood elevations shown on a communit'y's Finod Insurance Rate Map are referenced. (y) "New construction" means, for floydplain ntanagemcm purposes, stoictares for which the "start of oonsumction" commenced on after the effective date of a floodplain msnagemem regulation adopted by this (z) "One hundred year flood" or "100-year flood" means a flood which has a one pergem annual probability of being equaled or exceeded. It is identical to the "base flood," which will be the term nscd throughout this chapter. (an) "Person" means an individual or,his agent, firm, parmership. association or corporation, or agent of The aforementioned groups, or this state or its agencies or political subdivisions. Cob) "Remedy a violation" means to bring the structure or other development into complianc~ with gate or local floodplain management regulations, or, ff this is not possible, ro reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implengnting the enforcement provisions of this chapter or othenviae delennini~g filmr~ silrlilar violations, or reducing federal financial exposure with regard to the su'ucture or other development. (cc) "Rivering" means z~laling to, f~nned 'by, or resembling a river (including tributaries), stream, brook, .rid the like. (rid) "Special flood hazard area (SFHA)" means area having special flood or flood-related erosion hazards, ~nd shown on an FHBM or l..ui.M as Zone A. AO, A140, AE. A99, or AH. (co) "Sm.n of consu-u~on" includes substantial improvement, and means the ate the building permit was ~sned, provi&d the actual start of cons~uction, repair, reconstruction, placement, or other imgrovement was within oa~ hundred eighty (180) days of the permit date. The actual start means either the first placement of permanent consnmclion of a structure on a site, such as the pouring of slab or footings, the Installaxion of piles, the coaswaction of columns, or any work bcyond the stage of excavation; or the placement of a manufactured hmne on a foundation. permanent construction does not include !and preparation, such as clearing, grading, and ffiling; nor does k include the installation of and/or walkways; nor does it include excavation for a bas~nent, footings, piers or foundations or the erection of temporary forms; nor does R include the insullation on the propcrty of acccssory buildings, such as garages or sheds not occupied as dwelling units or not pan of the mein sxructure. (fO "Structure' means a walled and roofed building, includin$ a gas or liquid storage ,.nit; that is principally above ground, as well as a manufactured home. (gg) (1) 'Substantial impwvement' means any repair, recom~'uction, or improvement of a the cost of which equals or exceeds fifty percent (50 %) of the marke~ value of the structure either: (i) Before The lu~roven~nt or repair is started; or (ii) If the su-ucture has been damaged and is being reswred, before the damage occurred. (2) For die purposes of this dcfinirlon, "suhalantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other su'ucmral pan of the boildinS commences, whether or not diat alteration affects the external dimensions of the srmcture. The 2rm does not, however, include either: (i) Any project for irnprovemant of a structure to comply with existing smm or local health, sanitaxy, or safavy =ode specifications which arc solely necessary to assure safe living conditions; or (ii) Any alteration of a sumcmre listed on the National Register of Histori~ Places or a Invertwry of Hiswric places. 0CT-05-2000 13:29 ~EST ~EST & KRIEGEL LLP 909 686 3083 P.07/53 Flood Dnmn~e Prevention Program (1~) "V ariadon ' means a grant of relief from the requirements of this chapter, which permits Colasli'uctlon in a mnnner which wo~ld O~ b~ prohibi~i by ~ chapmr. (ii) Wiolation~ m~ans the failure of a structore or other development ~o be fully compliant with the COIlllllll~tl/'S ~OOdpl~In rn~n~gernent regulations. A structure or other developn~nt without the elevation cex'~f~ate, other certi~cadons, or other evidence of compll,n~e required in this chapter is presumed to be in violation until such time as that documentedon is provided. (9 1, Ord. 2409) Article 3. General Provisions Sec. 8-13 .301. Lands to which this chapter applies. This chapmr shall apply to all areas ~f special flood hazards, areas of flood-related erosion hazards and areas of mudslide (i.e., mudflow) hazards within the jurisdiction of the City. (§ 1, Ord. 2409) Sec. 8-13.302, Base for estab]ishhg the areas or special flood hazard. The areas of special flood hazard, areas of flood- related erosion.hazards and areas of mudslide (i.e., mudflow) hazards identified by the Pederal t~,mergency Management Agency or the Federal Insurance Aam;-;~lradon in a scientific and engineering repor~ enddcd "The Flood In~.vance Study San BernardLuo, as currently revised,' with an accompanying Rood Insurance Ram Map, and all later revisions thereof, is hereby adop~d by reference and declared to be a pan of this chapter. The Plood Insurance Study is on file in the Office of the City Engineer, City Hall, 303 East "B" Street, Omerio, California. This Rood Insurance Study is the'. m;.im~m area ofapplicabliity of this chapter and may he supplemented by studies or other areas which allow implemenufion of this chapter and which are recommended to the City Council by ~he Ploedplain Adm[n;_~zaror. (9 1, Oral. 2409) Sec. 8-13.303. Compliance. No su'ucture or land ~h.. hereafter IE constructed, located, extended. converts or altered without full compliance with the terms of this chapter ~.d other applicable regulations. Violations of the provisions of this chapter by f~llure to comply with any of its requirements (including viohtions of conditions and safeguards established in connection with contritions) shall constitute a misdemmmor. Nothing herein shall prevent the City Council from t~t4.t such lawful action as is necessary to prevent or remedy any violation. (9 1, Ord. 2409) Sec. 843.304. Abro~ation snd~reaterrestrictions. This chapter is no~ intended m repeal, abrolzam, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ord~nn-ce, easement, covenant, or deed res~zicdon conflict or overlap, whichever impos~s th~ more stringent restrlodons shall prevail. (9 1, Ord. 2409) $ec. 8-13301. Interpretation. In the interpretation and application of this chapter, all provisions shall he: (a) Considered as minimum requirements; (b) Liberallyconsu'uedinfavorofthegovarninE body; and (c) Deemed neither to |{m{t nor repeal any other powers granLL-d under. state statutes. (9 1, Ord. :2409) Sec~ 8-13306. WarninZ and disclaimer of liability.. The degree of flood protection required by this chapter is considered reasonshie for regulawry purposes and is based on scientific and en~inearin~ considerations. Lerger floods can and will Occur on rare ocasions. Rood heights may be increased by rn~..mede or natural causes. This chapter does not imply that land outside the areas of special flood hazards and areas of mudslide (i.e., mudflow) h,7.rds' or uses permitted within such areas wB1 be .free from flooding or flood clamage. This chapter shall not crezte liability on the pan o~ the City, any officer or employee thereof, or the Federal h~surance 0CT-05-2000 13:29 BEST BEST ~ KRIEGEL LLP 909 fiBfi 3083 P.08/53 & Ontario - Budding Reguh~ons Administration for any flood dnrnageS that result from reli~nee on thiS clnpter or any Sdmlnl-qratiVe decision lawfully made thereunder, (9 1, Ord. 2409) 8ec. 8-13.307. Severability. This clupter and the various parts thereof are declarad to be severable. Should any section of this chapter be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the chaptor as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. (9 1, Ord. 2409) Article 4. Admtnifffation See. 8-13.401. Establishment of development permit. A development pern~t shall be obtain~:l before consu'~aion or development beZins within any area of or areas of xnvd~T~d~ (i.e. mudflow) established in § 8-13.S02. Application for a developn~nt permit shall be made on forms fungshed' by the Floodplain. Administrator and may include, but not be li,~ited ro: plans in duplicate drawn to scale showing the nature, location, dime,ions, and elevation of the area in question, existing or proposed sU'uct-res, fill, storage of materials, .drainage facilities; and the location of the foreEoing. S[}ccifically, the followinS information is required: (a) Proposcd elevation, in r~lation to the mcen sea level, of the lowest habitable floor (includinE the basement) of all sl~uctures; in Zone AO, elevation of highest adjacent Erade and proposed elevation of lowest floor of all stowtares; (b) Proposed elevation, in relation re.mean s~a level, to which any structure will be floodproofed; (c) All appropriar~ certifications listed in § 8-B.40j(d) of this chapter; and (d) Description of th~ exam to which any watercourse will be alWred or relocated as a result of proposed development. (9 1, Oral. 2409) See: 8-13.402. Designation of the Eoodplain Administrator, The Development Director is bereby appointed to ad~;ni~ter and implement this chapter by granting or denying development permits in accordance with its provisions. (9 1, Ord. 2409) Sec. 8-13.403. Duties and responsibilities of the Floodplain Adm;n;¢f~'atOr- The duties and rcsponsibilities of the Floodplain Administrator shall include, but not be limited m: (a) Permit review. (I) Review all developmere permits to determine that the permit requirements of tiffs chapter have been satisfied; (2) All other required state and federal peC~lits have be~n (3) The site is reasonably safe from ~o4xling; (4) The proposed development does not adversely affect the carrying capacity of the floodway. For purposes of this chapter, "adversely affects" means that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more one foo~ as any point. (b) Use of other base flood dam, when base flood elevation dam has not been provided in accordance with § 8-13.302, the Floodplaln Aam{-~raror shall obtain, review, and reasonably utilize any ba~ flood elevation and floodway data available from a federal, smxe, or other source in order to adwlnkr~r Article 5. Any such information shall be submitted to the City Council for adoption. (c) Whenever a watercourse is to be altered or relocated: (1) Notify adjacem communities and the California Deplu h~nt of Water Resources prior to such alteration or relocation of a watercourse, subink evidcn~ of such notification to the Fadoral hlsul'~lee Admlnlql"~liOn; (2) Requirethatth~oodcartTingcapacity Of the altered or relocated poniun of said walereourse 0CT-05-2000 13:30 BEST BEST ~ KRIEGEL LLP 909 686 3883 P.09/53 Flood Dam~2e Prevention l'ro~ram 45 (d) Obtain and maintain for .public inspection and ra~ available as needed: (1) The certification required in § 8-13.501 (o)(1) (floor elevations); (2) Thece~ficaUonrcqniredby § 8-1t.501 (c)(2) (elevations in areas of shallow flooding); (3) Tbeccrfificafionrequkcdin§8-13.501 (c) (3)(iii) (elevation or floodproofing of non, residential (4) Theccni~cafionrequisedin § 8-13.501 (c){4)(i) or (ii) (wet floodproofing s~andards); (5) The certified elevation required in § 8-1S.503Co) (subdivision standards); (6) The certification required in § 8-13.505{a) (floodway cncroachments); and (7) The reports required in § 8-13.506(d) (mudflow standards). (e) Makcintezprer~tionswherenccded, asmthc exact location of the boundaries of the areas of special flood hazards, areas of flood related erosion hazards or areas of mudslide (i.e., mudflow) (for example, where there appears to be a conflict besveen a mapped boundary and actual field conditions). The persun contesting the location of the boundary shall be given a reasonablc opportunity to appeal the interpretation as provided in A~cle 6. (O Take action to remedy violations of this chapter as spccified in § 8-13J03 of this chapter. (§ 1, Oral. 2409) ArticJe 5. Provisions for Flood ~_n_,_nrd Reduction Sec. 8-13.501. Standards of construc~on. In all areas of special flood hazards, the following standards arc required: (a) Anchoring. (1) All new consmxction and substantial improvements shall bc anchored to preyera flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, includin~ the cf'f~cu of buoyancy. (2) All manufactured homes shatl n~ct the anchoring s~mdards of § 8-1S.504. fo) Construction materials and methods. (1) All new conswdction and substantial improvements shall be cons~zucuM with materials and utility equipment resistant m flood clamage. (2) AH new construction and snbslantial improvements shall be constructed using n~thods and practices that minimize flood damage. (3) All new construction and subsmntinl improvements shall be consnmcted with elec~ical, healing, ventilation, plumbing and air conditioning equipment and other servi~ facilities that are designed and/or located so as to prevent water from entering or sccumulating wilhin the components during conditions of flooding. (4) Require within Zones AH or AO adequate drainage paths awund structures on slopes to guide fio~l waters around and away from proposed (o) Elevation and floodproofing. (1) New construction and substantial improvements of any s~rucmre shall have the lowest habitable floor,. innluding basement, elevated to or above the base flood elevation. Nonresidential smlctures may meet the standa~s in § Upon the completion of the structure, the elevation the lowest floor, including basement, shall be certified by a registered professional enginear or surveyor, or verified by the COmmB/lity building inspector to be propcrly elevated. Such cafii~cation or verification shall be provided to the Floodplain Adv~ini~zator. (:2) New consuuction and substantial improvement of any su',~cmre in Zone AH or AO shall have the lowest floor, including basement, cleyated above the bi2hest adjacent grade at least as high as the depth number specified in feec on the' F~t.M, or at least two (2) fcc~ if no depth nnmher is specified. Nonresidential su-ucmres may meet the smdards in § 8-13,501(c)(3). Upon dte comple~on of the suuo~re. the clcvation of the lowest floor, including basemere, 'shall be certified by a regisrated professional engineer or surveyor, or verified by the conununity building inspector to bc properly elffated. Such certifieaticn or verifieadon the Floodplain Adm~nls~rator. ~ 0CT-05-2080 13:30 BEST BEST & KRIEGEL LLP 889 686 3883 P.10/53 Ontario - Building Regulalions (3) Nonfesidcntlal consU'u~don shall either be elevated in confonnancc with § 8-13.501(c)(1) or (2) or. ragether with atxendant utility and sanitary fecili~ics: (i) Be floodproofed so that below the base flood level the structure is wam~ght with walls substantially impermeable to the passage d water; (ii) Have sn'ncmral components capable of resisting ~ydros~atic and hydrodynamic loads and effects of buoyancy; (ili) Be cerdfied by a rcgisterad professional engineer or archRoot ~hat ~he standards of this subsection are satisfied. Such certification shall be provided w the Floodplain Administrator. (4) Require, for all new c. onsu'~ction and subslanfial improvemores, that fully enclosed areas below the lowes~ floor that are subject ~o flooding shall be designed to automatically equalize hydrostatic flood forces on exterior. walls by allowing for the enx~/and exit of floodwaters. Designs for meeting this engineer or architect or meet or exceed ~hc followin~ minimttm criteria: (i) Either a miniram of two openings having a mxal net area of not less than one square h~h for evcry square foot of enclosed area subject to flooding shall be providod. The beRom of all ' openings shall be no higher than one foot above gmd~. Openings may be equipped with screens, louvers, valvcs or other coverings or devices provided that they permit the auwmatic entry end exit of floodwaters; or (ii) Be certified te comply with a local fioodpwofing standard approvcd by the Federal Llsura~e Ad~iniSXradon. (5) Manufacmredhomesshallal$omeetthe standards in § 8-13.504. (§ 1, Ord. 2409) Sec. 8-13 .S02. Standards for utilities. (a) All new and replanemcm water supply and sanitary sewage systems shall be dcsigncd w minimize or eliminate infilmation of flood waters into the system and discharge from system into flood waters. Co) On-site waste disposal systems shall be located to avoid impairment m them or cone~miQation from them during flooding. (§ 1, Ord. 2409) Sec. 8--13.503. Stnndards for subdivisions. (a) A~I prcllnfmary subdivision proposals shall identify the flood hazard area and tc clcvation of the basc flood. (b) All final subdivision plans shall pwvide the elevation ofproposcd suucmre(s) and pads. If thc site is filled above the base flood, the final. pad clcvation shall be certified by a registered profcssional engincer or surveyor and provided to the Floodplain Administrator. (c) All subdivision proposals shall be consis~nt with the need to minLqliz~ flood dallagc. (d) All sulxlivision proposals shall have publi~ utilities and facilities, such as gwer, gas, electrical, and water systems, located and conswncted to mininlize flood damage. (e) All subdivisions shall provide ad,-quate drainage to reduce exposure to flood hazards. (t 1, Ord.'24~) Sec. 813.504. Standards for manufactured homes. All new and replacement manufactured homes and additions to manufacturcd homes shall: (a) Be elevated so that the lowest floor Ls at or above the base flood elevation; and Co) Be securely anchored to a permanent foundation system m resist fiora~on, collapse or lateral movement. (§ 1, Ord. 2409) Soc. 8-13.S0~. Floodways. Located within areas of special flood hazard established in § 8-13.30~- are areas designated as floodways. Since the floodway is an ex=emely hazardous area due to the velocity of flood waters which carry debris, pozcntial projectiles, and erosion potential, the following provisions apply: ~ - 0CT-05-2000 13:30 BEST BEST & KRIEGEL LLP 909 686 3083 P.11/53 Flood Damage Prevention Program 47 (a) Prohibit encroachn~nts, including fill, new construction, subsLsntial improvements, ~n,.1 other devctopmen~ unless certification by a registered professional engineer or architect is provided demonstrating that encroachrnents shah not result in any ~n~rease' in flood levels during the occurrence of the base flood discharge. Co) If subsection (a) of this section is satisfied, all new construction and substantial improvements shall comply wi~h all o~her oppli:able flood hazard reduction provisions of Article 5, (§ 1, Ord. 2409) Sec. 8-13.506. Mudsfide- (i.e,, mudflow-) prone areas. (a) The Floodplain Administrator shall review permits for proposed construction or other development to determine if it is proposed within a mudslide arca. (b) PermiLs shall be reviewed to determine that the proposed development is reasonably safe from mudslide hazards. Factors ~o be considered in rnaki~ this determination include but are not limited to: (1) The typ~ and quality of soils; (2) Evidence of ground water or surfac~ wator problems; (3) The depth and quality of any fill; (4) The overall slope of the site; and (5) The weight that any proposed development will impose on the slope. (c) Within areas which have mudslide hazards, r. he followin8 requirements apply: (1) A site investigation and further review shall be made by persons qualified in geology and soils engineering; (2) The proposed grading, excavation, new consnmction and substantial improvements shall be adequately designed and protected against mudslide damages; (3) Theproposed greclinll, excavalions, n~w consu'uction and substantial improvetoents do not aSgravate the existing hazard crudng either on-site or off-site dlsmrbanc.~s; and (4) Dr~inefle, playing, watering and maintenance shall not ~-~,.ger slope stability. (d) Prior to the issuance of building permits, all properties Within any Flood Zones inundated by the 100 year flood as designated on the latest edition of ti~ Flood Insurance Rate Map shall demonsn~ze to the Flood Plain AHminisl~ator that ally and all StruCtureS are adequately protected consistent with the most current provisions of the Zrading requirements set forth in the agencies latest edition of the adopted Building Codes. These requirements shall also include the followinE elements: (1) The location of foundation and utility systems of new consu'uCtion and substantial improvements; (2) Thelocation, drainage and toalntenance of all excavations, cuts and fills and planted slopes; (3) Protective measures, inaludinl; but not limited to retaining walls, bullress fills, subdrsln.% diver~r terraces, benchin~s, and the like; and (4) F. ngine~ringdrawingsandspe~ifications to be submin~l for all corrective measures, accompanied by suppozlinf{ soils ent]ineerint; and lieelegy reports. (§ 1, Ord. 2409) Sec. 843.~07. Flood-related erosion-prone areas, (a) The Floodplain Administrator shall require permits for proposed cunswaction and other development within all flood-related erosion-prone areas as known to the community. fo) Such permits shall be reviewed to determine whether the proposed site alterations and improvements will be reasonably safe from flood- related erosion and will no~ cause flood-related erosion hazards or otherwise aZgravate the existing hazard. (c) If a proposed improvement is found to be the path offiood-rehted erosion or would increase the erosion hazard, such improvement shall be retocated or aclequa~ protective toeasures shall be token w avoid aggravating the existinz ewsion hazard. (§ 1, Ord. 2409) 2000 S-I 0CT-05-2000 13:30 BEST BEST g KRIEGEL LLP 909 ~B6 3083 P.12/53 Ontario - Building Regulations Article 6. Variance Procedure See. 843.601. Appeal board. (a) The City Council shall hear and decide appeals and requests for variance from the requiremenu of this chapter. Co) The City Council shall hear and decide appeals when it is allel;ed there is an error in any requirement, decision, or dell:rmination made by the Floodplain Administrator in the enforcement or administration of this chapter. (c) In passinl; upon such applications, the City Council shall consider all ~.chnlcal evaluations, all relevant factors, srandards specified in other seerions of this chapter; and: (1) The danger that ma~rlals may be swept onto other lands to the injury of others; (2) The danger re life and property due to flooding or erosion damage; (3) The susceptibility of the proposed facility and its contents to flood danuge and the effect of such damage on the individual owner; e (4) The importance of the aerates provided by the proposed facility to the community; (5) The necessity to the facility of a waterfront location, where. applicable; (6) Theavallabilityofni~etnativelncations for the proposed use which are not subject to flooding or erosion damage; (7) The compatibility of the proposed use with existing and anticipated development; (8) The relationship of the proposed use W the comprehensive plan and floodplain management program for that area; (9) The safety of access to the property in time of flood for ordinary and emergency vehicles; (10) The expected heights, velncity, duration, raw of rise, ud sediraent wansport of the flood waters expected at the. siu~; and (11) The costs of providing governmental services during and a~r flood conditions, including maintenance and repair of public utilities and facilities such as s~wer, gas, electrical and water sysr~ns, and streets and bridges. (d) Generally, variances may be issued for new consn-uctinn and substantial improvements to be erected on a int of one-half (zh) acre or less in size contiguous to and surrounded by lots with exLqing sU'ucw. r~s construc~l below the base flood level, providing paregraphs (1) thwugh (11) of subsection (c) of this section have been fully considered. As the lot size increases beyond unc-half (2.4) acre, the technical jusfifiution required for issuing the variance increases. (e) Upon consideration of the factors of subsection (c) of this section and the purposes of this chapter, the City Council may auach such conditions to the granting of variances as it deems necessary w further the purposes of this chapter. (f) The Floodplain Adminis~ator ~h~l! mainlain the records of all appeal actions and report any variances to the F~leral Insurance Adrainisl~ation upon request. (§ 1, Ord. 2409) Sec. 8-13.602. Conditions for variances. (a) Variances may be issued for the reconstruction, rehabilitation or restoration of structurcs listed in the National Register of Historic Places or the Sta~ Invenwry of Historic Places, without regard w the procedures set forth in the remainder of this sccli0n. Co) Variances shall not be issued within any designated floodway if any in~'rease in flood levels during the base flood discharge would resulL (C) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. (d) Variances shall only be issued upon: (1) Ashowiagofgoodandsufficientcause; (2) A determination that failure to grant the variance would resuk in exceptional hardship to the applicant; and (3) A determination that the granting of a variance will not I~sult in increased flood heights, additional threeis to publle safely, or extraordinary public expense, tieare nuisances, cause fraud on or h~e victimizafion of the public, .or conflict wiill existing local laws or ordinances. OCT-05-2000 13:30 BEST BEST & KRIEGEL lip 909 686 3083 P.13/53 Flood Damage Preven~onPro2ram (e) Variances may be issued for new constraction and substantial improvements and for other development necessary for the conduct of a functionally dependent use, provided that the provisions ofsubsections (a) through (d) of this s~:tion are satisfied and that the structure or other development is protected by methods Lint minlrnize flood damages during the base flood and cream no additional threats to public safely, (t) Any applicant to whom a vari.nce is granted shill be given written notice that the s~uemre will be permitted ~o be built with a lowest floor elevation below the regulatory flood elevation and that the cost of flood insurance will be commensurate with the increa~d risk resulting from the reduced lowest floor elevation. A copy of the notice shall be recorded by the Floodplain Board in the office of the San Bernardino County Recorder and shall be recorded in a manner so that it appears in the chain of tide of the affected parcel of land. (§ 1, Ord, 2409) ; . 0CT-05-2000 13:31 BEST BEST & KRIEGEL LLP 909 686 3083 P.14/53 Ontario - Building Re~fiaflons ~ DCT-05-2000 13:31 BEST BEST ~ KRIEGEL LLP 90S 686 3083 P. 15/53 Chapter 12 FLOOD COIvI'KOL* ARicle L hi Genezzl Sees. 12-1--12-25. Ruefred, Anide ]L Flood Dama~ePreventioa Sec. '12-25. S~. ~-~. Ma~ 0f ~u~ ~ ~. ~c. 12-29. Sec. ~1. B~ f~ ~g ~ ~ of s~ ~ ha~. Sec. 1242. S~, 12-35. W~ ~d ~ of ~. S~. 12~. S~. 12-38. ~Du~ ud r,~tHi~es. S~ 1241. e~ Sac. 12~. Fb~wa~. pr~e Sec. 12-48, Conditions for variances. Sect. 1249--12-70, l~erved. Article ra Ares Flood Control Plus and Flood Coninml Fees Sec. 12-71. Intent4 applicability. Sec. 12-?l Establi,mhznent of.sz~a flood c~aixol phns. Se~ 12-73. F~ ~. ~-~4. Cs~fion of f~. ~ 1~75. ~. ~76. ~ ~m ~; s~ a~n~. ~ 12-~. D~ifionofs~l~nds. ~ 12-78. Fm ~e of smm dnin~ tees. sCraM referencer,--Buildin~s and building regula,,ions, oh. 5; planning and developmenr~ ch. 21; subdivisions, oh. 26; zoning, oh. 30. 0CT-05-2000 13:31 BEST BEST ~ KRIEGEL LLP 909 686 3083 P.16/53 FLOOD CONTROL § 12.29 ARTletP- L IN GENERAL Sees. 1~-1-12-2S. Reserved.. ARTICLE XL FLOOD DAMAGE PREVENTION 'Sec. 12-26- Findings. (s3 The flood hazard sreas of the cit? are sub- ject to periodic inundation which results in loss of life and property, health and safety hazards, dis- ruptien of commerce and ~vernmental services, extraordinary public expenditures for flood pro- tection and relief, and impairment ofthe tax base, all ef which adversely affect the public health, safety and general welfar~ Co) These flood losses are caused by the cttmu- lative effect ef obstructions in areas ef special flood hazs.rds which increase flood heights and veloel- ties, and when inadequately anchored, a.mn.~e uses in other areas. Uses that are inadequately floodproofed. elevated or otherwise protected from flood a-,~-Se also contribute to the ~ loss. (Code 1968, § 8-46; 0rd. No. 1078, § 2(8-46), 5-25-93) See. 12-27. Purpose of article. It i~ the purpose of this article to promote the public health, safety, and general welfare, and to mL-{-~i-e public and private losses due to flood condition in specific areas by provisions designed {1) ~2) '(3) (4) (S) Protect hu~_._~_n life and health; M{~m;,e expenditure of public maney for costly flood control pro~ects; Minimize the need for rescue and relief ef- forts associated with flooding and ~p. mer- ally undertaken at the expense of the ~en- eral public; Minimize prolon~ business interruptions; M;-~,~-~ dar~ tO public facilities and utilities such as wate~ znd ~as mn;ns| ele~ trio, telephone and sewer lines; and streets and hrid~es located in areaz ef special flood hazard; (6) Help mainfa;- a stable tax base by pro- viding for the sound use and development o£areas of special flood hazard so az,te ;,~i.e future blighted areas caused by flood (71 Ensure ths~ potential buyers are notified t_~-~ proper~y is in an ar~a of special flood hazard; and (8) Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. (Code 1968, § 8-47; Ord. No. 1075, § 2(8-47), 5-25-98) See. 12-28. Methods ofreducingfiood losses. In order to accomplish its purposes, this article includes methods and provisions to: (1) P. estr~ct or prohi'bit uses which are aa~. gerous to health, safety, and property due in damagin~ increases in erosion or flood heights or velocities; (P-) Require that uses vulnerable to floods, eluding f-~li~ies which sere such uses, be protected a~_i,,~ flood dama~ a~ the time of initial esnstruetion;. (a} Control the alteration of natural flood- plains, stream chinreels, and natural px~ tective barriers, which help a~n~late (4~ Control ~rmg, gr~ai,g, dredging, and other development which may increase flood a""~age; and {5~ Preventorregulatetheconstructiondflood harriers which will unnaturally divert flood- waters or which may increase flood haz- azds in other exeas. {Code 1958, § 8-48; Ord. No. 1078, § 21848}, 5-25.93) See. 12-29. Definitions. The followin~ words, terms and phrases, when used in this article, shall have the meaninfs as- cribed ~o the. m in this section, except where the context clearly indicate..s a different meaning. Un- 709 * 0CT-05-2000 13:31 BEST BEST g KRIEGEL LLP 909 686 3083 P.17/53 §12a9 FONTANACITYCODE less specifically defined in this section. words or phrases used in this article shall be interpreted so as to give them the meaning they h~ve in com,~on usage and to give this sxticle i~ most reasonable application. Accessory use means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located. Act means the statutes authorizing the National Flood Insurance Program that ar~ incorporated in 42 USC 4001-4128. Alluvial fan means a ~eomorphologic feature characterheal by a cone- or fen-shaped deposit of boulders, gravel, and fine sea,~ents that have been eroded From mnu~i, slopes, tren~ported by flood flows, end then deposited on the valley floors, and wMch is subje~ to flash flooding, high ve- locity flown, debris .~ow~, erosion, aea,.n~.nt move- m_~nt and deposition, and charreal migration. Apez means the point of highest elevation of an alluvial fan which, on unctisturbed fans, is gener- ally the point where the major sJrealll that formed the fan emerges from the mountain frsn~. Appeuls.me..~ a request for a review of the floodplain administratar's interpretation of any provision or this article. Area of shallow flooding means a d~ted AO, VO or AH zone on the ciW's flood insurance rate rasp (F1K~ with a one percent or greater annual chance of flooding to ~n averse depth of one to three feet where a clearly defined does not aist. where the path of flooding is .un- predictable and where velocity flow may he evi- dent. Such flooding is characterized by pending or sheet flow. Are,, of special fZood Aazard. See special flood ' hasard area. Are; of s.verial flood-reZuted erosion Aazard means the land within the city which is most likely. to he subject to severe flood-related erosion losses. The area may be designated as zone E on the flood insurance rate map (FIRM). A~a of sl~edal mudsllde (Le., mudflow) hazard eeanS the urea subject to severe mudslides mudglows. The area is designated as zone M on the flood insurance rate map (FIKM). Base flood me~us a flood which has a one per- cent chance of being equalled or exceeded in any given year, also called the 100-yeer flood. Basen~nt means any asca of the building having its floor subgrade foelow ground level) ea .all sid.es. B~emJsezaay wall means any type of wall, whether solid or lattice, and whether constructed of eencreto, vnn~onry, wood, metal, plastic or any other suitable building materi~ which is not pair of the sn-uctur~l support of the building and which is designed to break away under abnormally high tides or wave action without causing any damage to the structural integrity of the building on wMch ig is used or an3t httOdin_~ to which it might be carried by floodwater& A breaksway wall shall have a sa~e design loading resistance of not less ~hns ten and not more than 90 pounds per square foot. Use of ln'eakaway walls must he certified by a registered engineer or architect and shall met the following conditions: [1) Bre~J~nway 'wall collapse shal~ result from a water load less ~ that which would occur during the base flood; and · (2) The elevated portion of the building shall not incur any structural damage due to the effects of wind and water loads acting multaneously in the event ofthehase flood. Building. ~ee Structure. Coaztaj high h~ard area means en area of s-pe- chl flood harard extondin~ from offshore to the ~H~_d run/t of a primsty Frontal dan~, along an open coast and any other area subject to h/~h ~- loclty wave ac~^~ From storms or seismic ~ourcos. It is an erea subject to high velocity waters, in- cludin~ coastal and tidal inundation or toun~mis. The area is designated on 'a flood insur~uce rate map ~FIRM) as zone V1-VSO, VE. or V. Community means the City of Fontane. Deve/opmenf means ony m-~,~ade chan~e to im- proved or unimproved reel estate. includin~ hut not limited to, buildings or other structures. minir~ dredging, m~, grading, pavin~, exca- OCT-05-2000 i3:3i BEST BEST & KRIEGEL LLP 909 686 3083 P.18/53 FLOOD CONTROL vatian o~ clri11InE operalions or storage of eq~ip- men~ or n~aterlals. Elevated building means a nonbasemen~ budd- ing built, in the case of a bui~Ung in z~nes A1-30, AE, A, A99, AO, AH, B, C, X, or D, to have the t~p of the elevated fi~or elevated above the ground level by mean= uf pilln~, ~elumns (posts and piers), or shear wails parallel to the flow of the water aud adequately anchored so as not to pair the smxcttt?al integrity d the bufialng dur- ing a flood of up to the n~a.~nltude of the base fi~3d. In the ca~e of zones AI-S0, AE, A, A99, AO, AH, B, C, X, or D, elevated btuTb~in~ also ;-dudes a buildln~ elevat~:l by means of ~11 or solid foundation perimetor wAIl. with op~in~ ~ient to fadHtat~ the ,m;m.r~eded movement of floodwaters. El~.~ wmmun~ or 1~t~ip=Z~ ~mmu- nity means a ~omwunity for which the fsdensl insurance e~;-;~-ator hss authorize1 the sale of flood hsnnn~e under the Na~onal Fl~d In- stu-au~ Pr~mm. En~r~nt means the advance or ment of uses. plant ~ ~11; excavation, b.~lA. in~, permanent structures or d~velopment into a floodplain which may impede or elter the flow capacity of a fioodpl-i- Erosion means the process of the ~adual wear- ing away ofluad ~n.~sas. ,This peril is not per covered under the pr~rnm E~ep~.~n me--= a waivor ~ the provisiuns of Part 60 ef 44 CFR C]~ I (10-01-88 Edison) the requirements of a ruin, x~mlatiou, ordor or ether deter~qnttion made or issued pu~-.~ to. the a~t. Ex/.~t~ conUn~n m~ns, for the purposes of deter~-iug rates, structures far which the tire date of the FIRM or before January 1, 1975, for FtF. Ms efi~tive b~re that date. Existing con.~act~on may also be nforred to as e~sUxx~ structures. F_,~tin~ mqnu~tu~d ~om~ p~rk or sv~divi- don me-n~ a manufactured home park or subdi- vision for which the constru~on of fnen{~ies for ser~c{ng the 1~ ~n wklch the mennfa~'-ured homes ore ~ ~e ~11.~ ~ U~, ~ ~ 0f ~ d ~n~ ~, ~ com~ ~ ~e ~k or ~v~n m~ ~e ~on of ad~ ~ ~ ~e ~on d ~es for of ~5, ~e ~ ~u~ ba~ ~s ~ C~, ~ Ccmp~ ~ ~e C~, ~e F~ H~e ~e F~r~ S~ Fim~zc/d ;ssL~.~ means any form of loan, ~rant, ~mranty, insurance, payment, r~bato, sub- sldy,' ~jssstor assistance loan or $rant, or any revenue -~n-ing or f~nnula ~ants made to states. (1) AEeneralandh~mpm-aryconditionofpsr- ~;~1 or complete inundatinn of normally dry land sx~.as from: - . 8_ The ove~ow of inland or tidal w~- te~. b, The unusual a~d rapid sccumula- tiua ear rtmoff of surface waters anysourcs.. Sup~ ~o.~l 711 0CT-05-2000 13:31 BEST BEST ~ KRIEGEL LLP 909 686 3083 P.19/53 FONTANA ClTY CODE Mudslides (i.e., mud~ows).whlch sre apprn~imn~ely caused by fiO~,~;nff as defined in subsectlon (1)b of this cl~In;~on sxxd are ~lHn to a river of liquid and flowing mud on the sT- wheneazth is ch-'ried by a curren~ of waters and deposited alone the path of the current (~) The r,m?pee or subsidence ~ land alon~ the chafe ofa lske or other body Ofw,,,ter as a nsuk of erosion or underm~n~nff caused by waves or currents of wate~ · ~-~ anticipated cyclieal levels or suddenly caused by an unusually high water level in a natural body of water. accompanied by a severe storm, or by an ..... tielpate(1 forte Of nature, such as flash flood or mz abnormal tidal 2urn, or by some ~,~,'l--ly unusual and unfoze-~ee- able event which results in floodinK as d,~-ed in subs~on (1)a ofthl, de~ui- Flood ~ou.,.,~,,.~, am:t floodway m~p or FBFM wparm the o6;e;~l map on which the Federal ~,-~zey Management A~cy or Fedenl In- surance .a,~'m;'e;,tration has deftheated both the a.reu d spell,,1 flood hazards and the flacolway. 2~7o~d e/4vaff. on de~erm/.nation means a deter- Of the water a elevatio-~ of the base flood, tha~ is, the flood level that has a one per~mt cr ~reater ~--ce Of cocur~ence in any ~iven yea~. ~ e~evaHx~n s~V. dy means an aw-mln~t~on, evaluation and dets~-m(,xatlon of flood haz~rds 2ad, ~f appropriate, correspoxld~ water ~ce elevatiOnS, Or an examiution, evaluation end clete~m~tien of mudslide (i.e., mudflow) and/or fiscal-related erosion hazards.. F/oo~ ~zzard borzn~ m~p or F[~BM means an official map efa community, issued by the federal insurance ndm~n~strator, where the bound- aries of the flood, mudslide (i.e., mudflow) related erosion areas hayinE special hazards have been desi~tod as zones A, M, and/or E. · Floo~/ns~rance means the insurance coverage under the p.ro~ram. Flood insurenee rate map or FIRM means a ofi~c~l map on which the Federal Emergen~ Management Agency or Federal Insurance .Admin, istration has delineated both the ~treas of special · flood hazards ~a_ the risk premium zones appfi- cable to the community. Flood ~ns-r~we study. See Flood elevation study. Flood praea~n system m~-- tJ~se physical structural works for which funds have been au- thorized, appropriated, and espended nn~ which have been constructed speci~cally to modify fio~d- within the community subject to a special fiaxl hazard ~ the e~ent of the depths of associatsd flooding. Such a system typically includes hurri- area susceptible te b~n_- inundated by water fzmn any source (see definition of flooding). F/~dp/~/n ad:n/n/gra~r m~ans the btildi~ and safety m~-~er of the city. F/c~pla~n m~zgement means the op~ratien Of an ~ proSram of corrective and preventive measures for reduei~E flood ,~m~ge snd pres~- in~ end enhancinK, where possible, namzal re- works, floodplain ,----gent reSulatione, end open space plans. IWoodpla~z mm~emenZ re~2at/o,_s means th(~ m-,ticle and other zv~InS aces, subdivision reEulatiens, buildln5 cedes, health ret,ntlations, erosion control, and other applications of palice power which control developman(; in floodprone · areas. This term describes fedm~al, state or local reKulations in any combination thefed which provide standards for preventing and reducing flood loss and damage. F[oodproo~n~ means any comblnatiox! of struc- tural and nonstructural additions, cl~n_~es, or acliustmants to structures which reduce or elhni- Suffix. No, 11 712 0CT-05-2000 13:32 BEST BEST & KRIEGEL I_LP 909 686 3083 P.20/53 FLOOD CONTEOL § 22-29 nate flood aaron,re to real estate or hnptoved. real property, water and sanitary facilities, structure, aud their contents. Floo~-~lt, ted eros~,,n means the c~llapse o~ subsidence of land along the shore of a l~e or cthe~ hocly of water as a result o~ caused by waves or currents of water exeeecling antlc~pated cycllcal levels or suddenly caused ~y au unusua/iy high water level in a natural body of water, accompanied by a sever~ storm, or by an unant~cipa~ed force of nature, such as flash flood or an ~bnar..,~ tidal sttrge, or by some unusual and unforeseeable event which results in FZ~x~Z-rdated erosion ~zre~ or fio~-r~ht~Z s~n-prone a~e~ mean- a had aria ad~n~n~ the shore era lake or ~.h_~?. body d water, which due to the composition of the shoreline or bank and F~d.rdated enasi~n aregz mmu~enent means the operation of an overalT l~o~-am of corrective a41d preve~.~ve messas for redu~4nE flood° related erosion ~,~-_-e, includ~n_~ but not to emergency Zn'eparedness .n1,,% ~eod-related eros~oa contra] wo~ks, and fioodpla~ m~na~e- meat n~!ations. F~x~w~y means the ehgn-el of a river or other wa~m:o~rse and the adjacent hnd areas must be z~serve~ in c~ler te disehaz~e the b~se flood without c~nulafivel~ increasi~ ~e water surfwe elevation more t~n one foot; also refen~ to as re~xlatory floodway. Fi~wc~ enero~whme~t i~nes means the lines mark~uS ~he n~;t~ offioodwa~ on federal, sta~e and locs2 ~eoclpl~n maps. F/e~way fringe means ~hat ~rea of the ~codpls~n on either skle of the re~htaz~ ficodway where eneraach~.~t may ~e permitted. Ftn~d and uictimizq~on means that the varl- ance annted must not cause fraud on er xacthn- ization of the public. h examini~ this requize- meat, the city will consider tOe fact tOat every newly constructed buffdlns adds to government responsibfiities and x~ms;ns a part of the nity for 50 to 100 years. Buildings that are owners of the pro~,t~ and the com,~,mity as a whole are subject to all the costs, inconvenience. dan~er, and s,,;e?hl~ that those in _~-essed tl~,-~es bring. In addition, futun owners may purhn~e the property unawaze tha~ it is subject to potential ~cod damage, snd can be hnn=ed only at the very h/gh fieca insurance rates. Free/~rd me~-, a factor of sdety usually expressed in feet above a flood level for ptu'poses of floodplain ~--~%-ement. Freeboard t~ds to compensate for the many ~,, factors that could c~xtr~bute tO flood heights g~ater than the height c~dculated f~r a se/ected size ~mxi floodway conditions, such as wave action, tion of ~he watezxhecL ~ly a~pe~ use means a use wldch cannot perform its ~ purpose unless it is located er car~ed oat in dose pz~4-~y to water. fadli~es that are necessary for the lo~m-,~ and un~ea;,L~ of ee~ m~ ~ and sh~pbm'ld- ~u~ and ship ~ fadlitWs, and does not hchde longterm storage or related manufacturing facfi- ities. E~ddz~p means the ezcel~onal haxdship that would result from a fafiure to grant a requested variance. The city requires that the ~ be grnnted only for reasons which are exceptional; Mere economic or fin,he4,1 hardship alon, e ~S not excepti~m,l. unusua~ or lxcu]jar to the l~oger~ physical h~ndicaZ~, ~ preferences, or the disapl~va] ef ene's nei~hl~n likew~e eann~ ss a rule, qualif~ as an e~epffimal hantship. All of these probl~,-- can he resolved though other means without grantin~ a va/~ance, even ff the slternative is more aspensire, or z~uires the property owner to build elsewhets or put the parcel to a diff~ent use other fh~ originally intended. supp. ~ u 718 · 0CT-05-2808 13:32 BEST BEST & KRIEGEL LLP 888 686 3883 P.21/53 FON'f_~NACFIwfC0DE H/ghest adjacent grade means the highest nat- ural elevation of the ~round surface prior to COnS~TUL~On nsrt to the proposed w~l!~ of a struc- ture. H,_'~_~Hc xrruc~ mesas any ~t~uctur~ that ~: (1) ~ ~,,~ny ~ ~ Nafio~ ~- ~ of ~c P~, a ~ ~-~ ~ ~e D~t of ~, or ~of~e~~-ff~e~ roam ~ ~d~ ~ on ~e Na- ~ ~eW ~ ~e ~ ~ ~nm%ut- q~ M a ~ ~c (3) T-a~d-a~a~n~of ~ p~ on ~n~ ~ ~e ~ ap~ by ~e ~ ~; ~ a. By ~ ap~ s~ p~ ~ l~pe~ sa~n~ body me--~ a ~d~ ~ or s~n~c ~g~afion ~I~ ~ ~e m~n~ h~lo~, ~lo~, ~, ~ ~ ~ ~la~ ~ld of s~y con~ed ~ ~a~on ar p~n ~ ~e buaess d a~t- ~g loss .~s{m- ~ ~der ~e s~ ~od ~s~ce Insurance company or insurer means any per- Levee means a manmade structure, usually an earthen pm_hankment, designed and constructed in accordance with sound engineering practices to contain, control or dive~ the flow ofwate~ sq as provide protection fi~m temporary flooding. Levee system means a flood prots~tion 'system which consists c~a levee or levees and associated structures, such as closure and drainage devices, which are constructed and oparar~ in accord with sound enginesing practices. /~wes~/Zo~r me~- the lowest fi~ of the lowest enclosed are~, inoludin~ basement. (1) An ,,~-~nhed or fiesd resistant enclosure below the lowest floor that is usable solely for parL-i~ ~fvehicles, building access or storage in an area other than a basement area, is not considered a buil~i-~s lowest floor piov~led it conforms to appli~_b!e ncn~levation aa~-L~_ requi~,~_ts, incled- ing, but not limited the wet ~occlln~s~ standards in section 12-39(3). 12-39(1). c. the~onstru~donmate~-l-andmet~' ods standards in section 12-39(2). d. the standards £er utilities in'section 12-39(3). (2) For residential structures, all' subgrade enclosed area~ are pmbihited as they are considered to be basements. This pr~b~%i- tion includes below-~rade garages and storage areas. Manufuctured'home mesn-~ a structure, trans- portable in one or more sections, which is built en a Imrmanent chassis and is ~L-ned for use with or without a pe,...-nant foundation when at- t~eh_ed to the required utilities. For floodplain mansgenxent purposes, the term "manufactured home" also includes park traile~, travel trax]er~ and ether si,~ilar vehicles placed en a site for greater thnrl 180 consecutive days. Man ufac~ured home parl~ or ;ubdivlsion me.-~ a parcel or contiguous parcels aftand divided into two or more manufactured home lots for rent of sale. ~upp. No. ll 714 · 0CT-05-2000 13:32 ~EST 9EST ~ KRIEGEL LLP 909 686 3083 P.22/53 FLOOD CON'I~0L § 1~-29 M'Gp menn~ the flood h_n~,Zd boundary map (FHBM) or the flood i~urance rate map ) for the c~-,~,mity issued by the aSen~. /~fean sea ~vel means, for purposes Of the National Rood Insurance Program, the Naticul Geodetic Vertical Datum {NOVD) of 1929 or other datum, to which the base flood elevations showu on the cvmmun~ty's flood insurs~e rats map are Mud. sl~e a.e., mudflow) me~s and desoribes a condition whore ~ fion of ~q~ mud d~ a ~de, ~y ~ a ns~t ~ du~ con~fion · e ~bs~uent a~a~on Of wa~ on ~d, ~c~ by a p~ ~m~ he~ or s~-~ r~. Mv.~llde {i.e., mv~fiow) ~ man~evw. nt means the o~ of ~ ~ pw~ Of ~e ud ~ ~s for ~ mu~de a.e., mu~) ~, ~u~ but me~Hde ~1 w~, ~d ~ ~ m~t ~o~. ' MudsHale a.e., ml. dfiow) p'one ,,r~a means an area with land surfaces and slopes Of unconsoll- dated material where the history, 2eoloEy, and · Clhn~ts in~cate a petsntisl for mudfloW. New oonsZ?BctF~/l menn% for the plxrpos~ of detsrminlng insurance rates, structures for which the star~ of construction commenced on or d~er the effective dats of an inithl Firm or after Dec~hor 31, 19~4, whichever is later, and dudes any subsequent improve-merits to such structures. For fioodplaia ,~-~gemant purposes, new cen~truction means structures for wkich the start of constructiou commenced on or aYr, er the effective date of a fioodN_~ ,~ge~..ent reKtda- tion adopted by the community and includes any subsatuent improvements to such struct~u. es. pads, is completed on or s~er the effective date ~oodplaia ,---%-eraant ~e~tlaUans adopted by the Ob~ue~n qne!ude~, but is not l;'m~ted tO. ally ,~,-,,, wall, wharf, emb~,~u-,,,ent, levee, dike, pile, a~utl~.el'lt, pro~Ou, elcavati~l, .hmnn"li,~__tiOil, brid~e, conduit, culv~ bufid(nff, ~dre. fence, roe)r, ~ravel. refuse, ~1); structure, ve~tation or auy w~fm-cotuT, e which may altsr, impede. x~tard or ~-_~ the d~cn and/or veioc~ tithe Of water, due to its k~'ltion, its p~pensiby to or its li~.hl,~x~d of bein~ car~ed d.o~. O~-A,.z.,m~re~-yecw /Z,x~X or ZOO .~ f,~x~ See l)ase flood. Poli~ m~,,,,, the standard flood hsunnce pel- nearly continuous maufd or ~ Of sand with tides ~_n_d_ waves durin~ major coast~ storms. The i,l,,.) llm,; of the prim,,.-y ~'~ntal dane __,~-_.~-s at the point where thex-e is a distiact ,~...ee from a /~/~pa/structzwe means a structure used f~r the principal use ofthe ln~4:~ty as ~ ~n~n men-- the National Flood lnsurnn_~_ l~¥o~rs~m authorized by 42 USC 4001---4125. c~unit~s fio~p),~,, mana~-ment tive impl.....on~tion of those floodplain mant xt~da~ms or the s~audar~ Of ~;, article. Proje~, co. means the totsl ~--~ql cost of a fiOed protection syst~xn, iududin~ d~.m~; ]and its, unless the federal h~urance e~.~;-~watsr det~.u~nes a 2ivan cost not to be a part Of project cost. Public s,feCy and v,.~,~e means that the ~rantln~ ofa varq-~ must not result in - 0CT-85-2000 13:32 BEST BEST & KRIEGEL LLP 989 6BG 3883 P.23/53 § 12-2!) FONTANACITYCODE which is injm-ious to safety or health of an eaters ~,~,~unity or neighborhood, or any considm~bh numbe~ of persons, or unlawC~lly obstruct the ~ passage or use, in the customary ~n~--er, of any navigable lake, or river, bay, stream, c..nl. or basim P..ec~a~ion~ ue/ade means a vehide which ~s: (1) Built on a single (2) Fottr hundred squa~s feet or less when measured at the largest horizontal projec- (S} Designed to be eelf-prapened or perma- nently tewabla by a li_~h~-duty truck; and (4) Designed pximazily not for use as a per- torment dw-ll;-~ hut as temporary living or seasonal use. ~ Fogram me~-. the prv2ram autho- rized by the act under which risk Ixremium rates am required f~r the ~-st halA' Of avn,l,ble cover- emmstn,~6n- ~-~ su~tanfial ~:nprovements started December ~1, 1974, for FI1)Ms effe~L;ve on or be~um that date. A.~ burialrigs, the constn. xcfion of which ~ before the ~q'__~U~e date o£ the FIEM, er before January 1, 1978, for FIRMs effeeeve be(ere that date, are eligible for fL~t laye~ cmnsrz2e at either subsidized zates or risk prellllm rates, wh~hever are lower. Regardless of date of construction, risk premium rates are always required ~or the second layer coverage, ..R auc~ coverage ~s o~ered only ~ the federal insu.ra~ce 8.4-~;-{s'trat~r has comp]eted a risk studyYer the P,,eg~mto~ fl~ximay means the channel of a ~i~ or other watenmurse and the adjacent land areas that must ~e reserved in order to discharge the base flood ~thout cumulativdy increasin~ the water surface elevation niche than one foot, ~me~y ~ u~o~'/~ means to brin~ the struc- ture or other development into COmpl~ane~ with s~ate or lacal floodplain m~n~ment reSulet~on, or, ff~hls is not possible, to reduce the impacts o£ its noncompliance. Ways that impacts may be reduced include protec~n~ the structure or o~er a~ected development fi~xn flood d~ma~es, imple- menti~ the enforcement pmv~ious of the ordi- nance or otherwise deterring ~uture ~;,,~lar viola- .I~L~ ~oremg~ rates mennq tho-qe r~tes estab- lished by the federal insurance pu~uunt to individual C~-n,mx~ity studies and investigations which are undertaken to prmide flood insurance in accordance with section 1807 the act and the accepted act~u~fial prindphs. ifisk premium rates include profane fa~ costs aad -llowaucas. ~eHne me~-= rela~n.~ te, ~ormed by, ar sembNn~ a river, inchiding tribntaries, break, etc. Sam~ ~unes means naturzl!y or~g accu- mulations o£ sand in ridges or mounds landwaz~ gies and/or aasumpt~obs w~,i~ have been u't~ized ere hiappzuprlate ~or the ph.vical proceases being ' evaluated or are otherwise mus, : Shee~ fiow arew See Area ol shallow floedinS. 8.vec/o2 flood haz~n~ a~ea or S~ht means an area having sposial fiend. mudslide (i.e., mudft.), or flood-related erosion hazards, and sho~n on an FI'~M or FIRM as ?.one A, AO, A1-AS0, AE, A99, All, VO, E, M, V1-V~0, VE, V, M or E. (See section 12-40.) 8tand~cl flood ~sunvw. e l~olicy ~e_~.; the flood insurunee policy issued by the federal Inen~ ance ~drni-~.trater, or an insurer pursuant to an trator pumuant to federal statutes and regula- tions. Strut of construet/o~ (for ether than new con- struction or substantial improvements under the Coastal Barrier Resources A~t (Pub. L. 97-~48)), includes substantial improvement, and means the date the building pern~t w~s issued, pruvided the actual start ofcenstruction, x~palr. reeonstruc- tlon, rehabilltatlon. addition, placement, or other imp~-m_ment wa~ within 180 day~ of the permit date. The actual start means either the first placement o~ pezraanent construction of a ~truc- · gc.p.~ )~,~. 1! D 0CT-05-2000 I3:32 BEST BEST & KRIEGEL LLP 909 686 ~083 P.24/5'3 FLOOD CONTROL § 12-~9 ~u~e on a si~e, Such ~s the pouring of slab or ~oot~es, the izastallation of piles, the constrllcticn of co! ..... , or any w~rk beyond the sta~e of e~ava~on; or the placemen~ of a home on a foundati~u. Perm-~ent ccnstrtiction does not include land prepantion, sud~ as dear- in~, ~-~alnE, and fi]J,in~ nor does i~ include the installation of streets anti/or walkways; nor does it include ov~va~on for a basement, footinlp, piers, or foundation ~r the erection of temporary forms; x~or does it include Xhe installation on the property ~ accessory bttO~i~s, snch as gara~s or sheds not cccupied as dwon;~,~ units or not part of the main structure. For a substantial merit, the actual start of c~n_,~'tru~ion menn~ the first aReration of ~uy wall, Pfi~-E. ~xxr, or other str~c~ttral part or a bu~Ai-~, whether or not that alteratlen ~ffects the enernal a~menslonS oft~e buik~ng. S~z~e coo~irm~ qent-/mea~s the a2ency of the state ~ovex'nment, or other o~ce designated by the ~overnor of the state or by state statute at the re~,,,,,.~,; ~ the federal insurance eA,',,~,-,~,,.tx'.a- tot to assist in the implementation o~ the National Flood ~,~rance Program in the state. 8tnr, tu~ means, f~r purposes, a walled ,,a roofed building, indudinZ a gas or liquid storage tank, that is pxiacipally 8bove~'~ound, as well as a manu~actur~ home. -~tructun~, for insurance cove~aEe purposes, m~n a wsll~d and roofed building, other than a ~as or n~d sun~g~ tm~ that~ pr~u~pa~ s~eveg~una and ~ed to a permanent site, as well as a n~mufacP. u'ed home on a p~anent foundation. For the latter purpose, th~ term includes a bu~ld- ing while in the course of construction, alteration or re.nn;~ but does not include bu~lc~ materials or supplies ~ntended for use fix such constrnction alteration or repair, unless such materials or supplies are w~thln an enclosed builaln_~ mx the Substantial ~z~e means damage of any or- ion sus~ined by a stnctttre whereby the cost of clifton would equal or exceed 50 percent o£ the market value of the structure be~o~e the d~,~ge occurred. Sub~an~kzl ~p~ouem~n~ means any proposed ~ d~o~t da m~, ~e · ~ w~ ~ ~ ~ ~0 ~t ~ dud~ s~ w~ have ~ sub~- ~ ~, ~g~s ~ ~ ~ work ~i~ ~e ~ d~ ~ ~ff (1) My ~ ~ ~p~m~ of a s~6~ w~ ~ ~ ~n~ by ~e 1~ ~e ~t ~n~ nd ~ ~ ~ a ~c m d~ ~e ~'~ ~ d~- ~y ~ me ~ ~ ~-- ~ ~,~y ap~ due ~ ~ ~ ~t ~, ~ ph~ ~put ~ ~n~ of ~ ~ w~ ~ ~ ~ a m~ ~t wo~d o~ A ~e ~ o~h~ ~op~t ~ut el~a~ ~, ~ ~fi~o~ ~ o~ ~t d~~ ~ ~d~. (N6~) of 1929, ~ ~ da~ wh~.s~ ~ fio~pl~ ~ ~ or ~e ~. W~e~u~ m~ a ~, ~, ~ w~ ~, ~---~ ~ ~ ~n~ f~- ~~w~wa~fi~at~t~- ~ · 0CT-05-2000 13:33 BEST BEST $ KRIEGEL LLP 909 686 3083 P.25/53 CITY icaUy. Watercourse includes speci~cally deslg- hated axeas in which substant~ai flood damage (C~le 1968, § 849; Or~. No. 1078, § 2(8-49), 5.~.5.98; Ord. No. 1300, § 1, 9-21-99) ~enea~lly. § 12-30, Lands to which this article ap plies, This article shail apply to all areas of special flood haz~ds, areas of ~o~l-relatsd eroion haz- ards, and ar~as of mudslide (i.e., mudflow) hn.. s.nis within the jurisdiction of the city. (Code 1968, § 8-50; 0rd. No. 1078, § 2(8-50), 5-25-93) Sec. 1~1. Basis for ~s~ab!IxhlnE the areas of spe_~;! floral ~-~i. The areas of spe~al flood hazard, areas of tlOC~1,-x'~J ~t~:l er~m). h~,XtS, end ~ ofn:md,ditle of the Fedoral ~cX ~-,,-~-ement AX~xcy (FEMA) ~u the ~ Insurance Study ~IS) dated May 3, 1993, and accompanyinZ flood insur~_~_e rate maps (FI~M_~) and flood boundary snd floodway maps (FBFMs), dated May 3, 1993, and all subsequent amendments nnd/er rsvi~ons, are hereby adopted by reference and declared to be part ofthls article. This FIS end attendant mappinz is the minimum area of appficahlity of this article and may be supplemented by stu~es for other areas which allow impl*me~_~fion of this ar~cle and which are recommended to the city by the floodplain e~min~trator. The floodplain ~dmi-~'~ra~0r shsJ] mainhln on ffie and available for public inspec- tion and study FIRMs and FBFMs. (Cede 1968, § 8-51; Ord. No. 1078, § 2(8-51), 5-25-93) Sec. 12-32. Compliance. No structure or land shall hereafter be con- structed, located, e~r~nded, converted, or altered without fidl compliance with the terms ~ this ar~cle and other applicable regulations. ~iclatlo~t of the provisions o£ this .article by failure to with any of its requirements (includln~ violations of conditions and sde~uerds estab- l/shed in connection with conditions) shall consti- tute a misdemeanor. Nothiag herein Sh~ll prevellt the ,,4ty from t.l~,,g ~,h lawful. action as is necessary to prevent or ~edy any viola~ons. {Code 1968, § 8~52; Ord. No. 1078, § 5-25-93) Sec. 12-33. Abrogation and greater restrlc- tions. This article is not intended to repeal, abro~ato, or impair any ~-~ctin~ easements, covena~, or deed restrictions. However, where this article and another art~le, easement, covenant, or deed r~ ' striction co-~t or overlap, whichever imposes the more strix~.~t restrictions shall prevail. (Cede 1968, § Sec. 12-~4. Interpretation. In the inte,,'Fetation and application of (1) Cnns,:dered as m';-';-,mn requi~ments; (2) ~'benlly ccmst:rued in favor of the city and the ~e body;, and (3) Deemed neither to limit nor repeal any utss. (Code 1968, § 5-54; Ox~ No. 1078, § 2(8-54), 5-25-93) See. 12-35. WarningauddiscJ-i,,,erofllabil- The de~ree of flood protection required article is considered reasonable for regulatory purposes and is based on scientific and en~neer- ing cenaiderations. Larger floods can and will occu~ on rare occasions. Flood heights may be increased by run,made or natural causes. This article does not imply that land outside the area of special flood hazards, area of flood-related erosion hanrds or areas of mudslide (i.e., mud flow ) hazards or uses permitted within such areas w~l be ~ from ficod~ng or flood d~me~eS. This article shall not c~eat~e liability on the part of the city, any officer or employee thereof, or the Fed- eral Insurance Ad~jalstratlon, for any flood dam- Supp. No. 11 718' ~ OCT-05-2080 13:33 BEST BEST & KRIEGEL LLP 909 686 3083 P.26/53 ages' that result f~om reliance on 'this article or any s~,n~-i-tratlve decision ]awfu/ly made pursu- ant to ~h.i,~ article. (Code 1968, § 8-55; Ord. No. 1078, § 2(8-55), 5-25-93) · See. 12.116. Establl-hment of flood zone pox- miL ~ flood zone permit shall roe obtahed I~oze construction of development beans w'F~h;,, any area of special flood hazard established in s~"t~on 12-31. Applications for a flood zone permit shs/l be made on forms furnished by the floodplain sdm;-i~rater and may include, but not be lLmited to, phns in duplicate scale showin~ the nature, location. t~;,nensio~, and elevation of the orea in question and -~4-tlng or proposed structlLTeS, fill, location. Sl~ifically, the following information is required: (1) ]Proposed elevatio~ in sea level, of the lowest habitable floor, inclu~l~-_-basement, of all structures; and in zone AO Supp. No, I~ 718.1 ~ 0CT-05-2000 13:33 BEST BEST & KRIEGEL LLP 909 GBG 3083 P.27/53 FLOOD CONTROL or VO, elevation of existing ~rade ~ud pro- posed elevation of lowest habitable floor in (2) Proposed elevation in relatiox~ to mean sea level t0 which any structure will be flood- proofed; (3) AJ.I appropr~e certifications listed in sec- tion 12.39(c); e. ud (4) A description of the extent to wh~h ~ watercourse will be altered or relocat~t as a result of proposed development (Code 1988,. § 8-57; Ord. No. 1078, § 2(8-57), See, 1Z~37. Floodplain admletCrator-Desiz· hated. The 'fioodp]~L~ administrator is hereby ap- pointed to administer 2ud implement thi~ article by grating or denyin~ flood zone permit applica- tior~ in acesra~e with its provisions. [Code 1968, § 8-58; Ord. Iqo. 1078, § 5-25-93) See. 12.38. Same-Duties and responsibili- ties. The duties ~.ud responsibilities of the floodplain administrator Shrill include, but are not limited to the following. (1) The fioo~plain a~m~n~crator sheIt review ~11 development ~uAts to determine tha~: a. The permit requirements of this ticle have been satisfied. ' b. Alhtherrequtredsinteandfedera}per. mi~ have been obtained. c. The site is reasonably safe from flooding. d. The proposed development does not ad- versely affect the caxl~.ng capacity of · the floodway. For purgesee of this ticle, ed~,~o. ly afrect~ means that the cumulative effect of the proposed de- velopment when combined with all other existing and anticipated de,~elep- ment will not i-__~se the water sur- face elevation of the base flood more than one foot at any point. (2)' § 12.38 When base flood elevation data has not been provided in accordance with section 12-31, the floedplain administrator shall obtain, i'evlew, and reasonably utilize any base flood elevation data available from a fed- era} or state a~ency, or other source as pro- ' vided by the prope~y owner, owner's rep- resentative or applicant, in order to s,4,,,;,,;,,f~- this article. Any such informa- tion shell be submitted to the city for adop- tion by the 2o~r~,~n~ body. In alteration or relocatisn ofawateroourse, the floodplain e,~mi-~,~rator shall: · a. Noti~ adjacent c~,-_-n_unitice and the state department of water resources prior to such alteration or relesation; b. Submitevia--a~ofsuchnoti~catlonto the Federal Insurance ..Aam;,.,Id.,ration; 8,ud c. Ensurstha~thefieed~.arryingcapaclty within the altered or relocated portion of the watercourse is nmintained. The fiOOdph~T1 ~m~m~n~trator shKE eb+~_~- and maintain for public inspection and m.l~p av~;l-hle as needed the followlug'. a. Certification by a registered prolos- siena} e-_~-~er or suneyor cortifyin~ that all new a~d substantially im- proved structures in a SFI'ZA have been properly elevated, and cesUf)~nZthe el- evation, in relation to mean se~ level, .r the lowest floor, includin~ basement, to which the structure has been ele- vated. b. Certification by a ro~stored profes- slena} ex~Lqeer or azchitoct certifyin~ that the design ~or all new or substan- tially improved nonresidential Struc- tures in an SFIIA meets the minimum criteria of tl~s article. c. Certification by a ro~istored profes- sional en~ueer or ~rchitect certifyin~ tl~t the desi~x for wet fioodpreefin~ meets the minimum criteria of this ar- ticle and the elevation, in relation to mean sea level, to which the structure has been floodproofed. & Certification by a registered prefes- s~ona} en~n.eor or surveyor certlfyin~ ~ 0CT-05-2000 13:33 BEST BEST & KRIEGEL LLP 909 686 3083 P.28/53 § 12,88 FONTANA~TYCOD~ the pad elevation, in relation to mean sea level, for auy site that has been elevated above the base floc~i elevation by the placement OF fill m~terial and that such elev~-u meets fhe criteria of this Such certifications shall be preYideal to the . floodpl-ln eA~;-;sbrator by the applicant/ developer/proper~y owner. (5) Thefioodplalnadrninistratorshallm~l~ein- terpretations, where needed, as to the exact location OF the boundaries of the areas of special flood l~n,-rds, area of flood-related erosion hazards or areas of mudsMde (i.e., mudflow); for e~,~ple, where there appea~ to be a a-,mct between a mapped boundary and actual field conditions, Any person con- testing the location of the boundary shall be Given a reasonable opportunlt~ to ap peal the interpretation as provided in sec- tion 12-44. (6) The fioedpl.ln -a~-~-i~Tztor shrill te~e tion t~ remedy Yi~]n~ons'of this article as specified in section 12--~2. (Code 1968. § ~-59; Ord. No. 1078, § See. 12-39. Standards Of constrncfion. In all areas of special flood hazards, the fol- lowinK standards are required: (1) a. All new construction a~d subst~1 improvements ~1,M1_ be adequately an- chored to prevent fieration, collapse or lateral movement of the structure r~ sulting from hydrodynamic and hydro- static loads, including the effects OF buoy~cy.. b. Allmanufa~uredhomesshaJlmeetthe s~chorln~ standards of section (2) Oons~e~ion ma~e~Ts czar a. All' new construction and substantial improyement shall be ccns~'ucted with materisis and utility equipment resis- tant te flood damage. b. All new construc~n and substantial improvements shall be constructed us~g methods and practices that ,-i~. imize flood damage. ~ All new construction and substantial improvements shall be constructed with electrioal, heatinZ, ventilation, plumbix~ and'air conditioning equip- ment ~d other service facilities that aredesi~nedand/orlocatedseastopre- vent water from entering or accumu- latin~ within the components duri~ conditions or flooding. d. Within zones All er AO, adequate drainage paths are required around. structures on slopes to Guide floodwa- ters around and aw~ from proposed structures, Eleven ~ f/oodpr~fir~. The u~ w~ ~o~pl~ m"~t cient data ~ fa~ a b~is for ~e ~ob~.~~u~- ~ ~er so~ H p~ ~ ~e e~ o~, ~'s ~~ p~ ~n~Z ~ipt of ~ ~m ~e r~ ~ ~a~r. H~, when ;e~ flood b~.~ ~s dHiF- ~o~ ~d ~ surr~ ~ou ha~ b~ r~ ~ ~e ~ ~ ad- ~, ~ s~l apply. ~e tio~ ~e set r~ ~ s~n 1~40. In ~e Mequa~ or~e fi~p~n m-n~t re~o~ for fio~p~ne ~e~ ~cp~ by the ~mmu~ dep~ cn t~ ~nt of ~i~ ds~ rosy p~ ~ ~e ~m- mu~W ~ the f~ insumce ~tor. ~mum s~d~ for the ci~ & ~en ~e r~ iMum~ ~a~r h~ not de~ ~e ~ ~d ~ ~ ~th~ ~e ~mmu~, ~ not p~ wa~ su~ elm- OCT-laS-2000 ~3:33 9EST ~EST & KRIEGEL LLP 909 686 308,.~ P.29/53 FLOOD CONTROL tion data, and has not provided suffi- cient data to identify the fioodw~y, but the community has indicated the pre~ ence of ~uch hazards by submit~ng an application to participate in the pro- gtar~ the ~mmu~t construeion or other de~Jopment in the community, including the placement oE manufactured homes, so that it may determine whether such construction or other devel- opment ~s proposed wi~hln Flood- 2. Review proposed development to ensure that all necessary permits h~ve Been received from those gov- proval is required by federal or state law, incl,,a~ sestion 404 or the Federal Water Pollution Con- trol Act Amendmonte of 1972, 83 USC in34. determine whether proposed ~fa f~m ~o~xg. ]~ a propo~ building site is in a floodprone area, ~11 new con~r~xction and sub stsntial improvements shnll be de- si~n~d or modfi'xed and adequately anchored to prevent flotation, col- lapse, or lateral movement oF the structure restt~ting ~rom hydredy- namio end hydrostatic loads, cludin~ the effects of buoyancy; be constructed with materials rant to flood damage; be con- structed by methods ~nd practices that ~q~q~,e flood damages; and be constructed with electrical, heating, ventilation, plumbing, and air cond~tionin~ equipment and ~ther service facilities that are designed anchor located so as to prevent water fi~m entering or ac- durlng conditions of flooding. 4. Review subdivision proposals end other proposed new development, including manufactured home parks or subdivisions, to determine whether such proposal~ will be rea- sonably safe ~rom flooding. Ira sub- division proposal or other proposed new development is in a floodprone reviewed to ensure that all such proposals ere consistent with the need to minimize flood damage within the floodprone area; all public utilities and fist'illties, SUCh systems are located and con- strtlcted to mi~;mlze or ellmlnnte flood damage; and adequate posure to flood · ~: Require within floodprone areas new and replacement water supply systems to be designed to mi,e or -n,-Inate infiltration of floodwaters into the systems. 6. Require within floodprone areas new and replacement sanitary sewag~ systems to be de-'i.~ned to rnlnlmi~ Or ~!Imlnate infiltration of floodwaters into the Systems and · dischar~s from the systems to be located to avoid impairment to them or contamination from them during flooding. b. When the federal insurance admiais- trator has designated areas of spe~nl flood hairdo (A zones) by the publica- tion of the commnnity's FIRM, but has not produced water surface elevation data or identilled a floodway, the com- munity shall: 1. Require permits for all proposed construction and other develop- ments, including the placement of manufactured homes, within zone A on the community's FIRM. ~.. Requiretheapplicatlonofthestan- derds in subsectlons (3)a.2, (3)s.4, (3)a.~, and (3)v.6 of this see- 721 0CT-05-2000 13:34 BEST BEST & KRIEGEL LLP 909 686 3083 P.30/53 § 12.~9 FONTANA CITY CODE tlon to development w~l~;..zone A on the communiW's ~ Require Chat all new subdivision proposals ~nd other proposed de- velopments, {nduddngl~pcsals for ~__snufactured home parlm and sul~ diveions, Sreats~ than 50 lots or five ac~s. whichever is the lesser, include wiehl. such proposals base flood elevation data Ob~i-~ review end reasonably uti- lize ~ny base flood elevation and floodway dam avafia~le from a f~d- eraS, state. or other zour~e, duding data developed punuant to subsection (3)b.3 af tlfis section, as criteria £or reqt~rln~that new con. struction, substantial improve- ments, or other development in zone A on the co,-.~unit~'s FIXM meet the standsrds in suBsections (3)~2, (3)~2, {3)c,5, (S)c,6, (3)c.14, (3)d.2 and {3)d.3 of this see- tion. Where base fi~od elev~_._fi_~n data a~e utilized within zone A on the i. Obt~.in the elevation, in rela- tion to mean 'sea level, of the lowest fieor, including base- ment, of all new and substan- ii. Obtah, if the structure has been floodproofed in accor- dance with suhsedlon of Shh sec~n, 'She elevation, to which the structure was floodproofed; and Maintain a record of ell such information wiSh the official dasi~nated by She community - under section 1241.. Notify, in rlverine situations, ad- jacent communities and She sta~e coordinating office prior to any el- rotation er roleoa~on of course, end submit copies of such notifications to the federal insur- 7. Ensuxe that She fiood~zryin~ ca- pacity within She eltored or rolo- caeed portion of any watommne 8. Require that all manufactured homes to be placed within zone A on She commmdty's FIRM ahall be inst~lled usinS methods end prac- tices which minimize flood anrng~e. For She p~ of this resist fio~h_'_~n, ~,n_~pse, or latenl movement. Methods of anchoring may include, but are not to be lim- ited to, use of ovex~the-top or froroe ties to ground anchors. This r~ quirement is in addition to appfi- cable state and leoal ~ucherin~re- quirements for resisting wind tmt~ has provided a nofies of flood elevations for one or more special FIXM and,' if appropriate. has alesiC- --ted other slx~_'*~ flood h-,~.,~ areas without bas.e flood eleutions on the co,-,-unity's ~'LKM, but has not idon- rifled ~ regulatory floodway, the 1. Require the standards or subsec- tion (3)b of ~i. section within all A1-30 zones, AX zones. A zone~ AH zo-es. and AO zones, on the 2. Ilequi~e that atl new con~lzuctisu end substantial haprovements of A1-30, AE and All zones on She community's FIRM have the lowest floor, including bLqmnent, elevated to or above She base flood level. Requize eh_.~ all new construc~on and substantial hnprovements of nonresidential structures within - OCT-OS-200B 13:34 BEST BEST & KRIEGEL LLP 909 686 3083 P,31/53 FLOOD CONTI~I, zones AI-~0, AE and All zones on the commun~ty's FIRM: i. Have the lowest floor, in- cluding basement, elevated to or above the base flood level; iS. Together with attendant uti~ty and r~uitary facilities, be desired so ttmt below the b~es ~od level the structure i~ watertight with walls sub- pusgage of water and with s~-uctural components having ~e c~pebifi'~ of re~st~ tirestatic and hydrody~"m~c leads and' effects of buoyancy. 4. Provide that where a nonresiden- tial structure is intended to be made watertight below the base flood leveh i. A re2iotored professional en- velop and/or review struciural design, specifications, and plans For the construction, end shall certify thn~ the desi2n and methods ef construction are in accordance with ac- cepted standards ellnotice for meeting the applicable provi- sions or subsection ($)~Sji or (S)c.8.ii efthls section; and iL A record or such c~t:.fcates which includes the specific el- evn~ in relation to mean sea level, to which such struc~ tures are floodproofed, shell be maintained with the official designated by the community under section 1241. 5. Require, for all new construction and substantial improvements, that fully enclosed areas below the lowest floor that are usable colely for p~rkin~ ofveb~; buildi~ ac- cess or storage in an area other than a basement and which are subject to flooding shall be d~- si2ned to automatically equalize hydrostatic flood forces on exterior w_~lh_ by aLlowin6 for the entry and exit of floodwaters. Designs for meetin~ this requirement must eio thor be certified by a registered professional enZineer or a~chitect or meet or exceed the ~ollowing w,~.~,-.-.u~ criteria: A minimum of two op,~-i'aSS hav~ a total net area of noC less than one square inch for every square foot of en- closed exw, a subjee~ to fi~:iing be provided. The bottoms of all otse~i~ ehmfi be no higher than ' one foot above 6rode. 0penises my be equiE~ed with s~reeas, leu- vers, valves, or other coverin~ or devices preyideal th~ they permit the automatic entry and exit of ~oodwater~. Require that manufactured homes · tha~ are plm~i or subst~!y im- proved wi~:hln zones A1-30, ~ AE ea the eornmt~,ty's on s~tos: i. Outside of a msnufactured home park or subdivision; ii. In a new manufa~tund home park or subdivision; ~. Inane:gar~ontoanex~ting ,~,~ufas~ured home pask or subdivislon~ or iv. In sn ~xistlng m-nufactured home park or subdivision, on which a manufactured home "has incurred substantial d_m~ffe as the re~dt era he elevated on a permanent foundation such that the lowest floor of the manufac- tured home is elevated to or' above the !mse flood elevation and be securely ~u~hored to an adequately anchored founda- tion system to r~st flotation eellapse and lateral move- ment- - 0CT-05-2000 13:34 ~EST ~EST & KRIEGEL LLP 909 68G 3083 P.32/53 § 12.39 FONTANA Ot'X~ CODE 10. Require that within an AO z~ne on the com,~tmlty's FIRM that all new construction and substantial improvements of residential stru~ ture8 have the lowest floor, eluding basement, elevated above the highest adzscent grade at least as high as the depth numbe~ spec- ifled in feet on the c~mmunity's _s'14'~M, at least two feet lf ne clepth Require that within any AO zone on the commuuity's ~ that all new conata'uctien sad substantial improvements of nonresidential i, .Ituve the lowest floor, cluclLu~ basement, elevak*d above the highest adjacent b~tcle at least as ki;h as the depth number specified in feet on the co,-~,unity's FIRI~, at least two feet if no depth number is specified; or ii. Together with attendant utilRy and sanitary facilities be completely floodproofed to that level to meet the subsetion (3)c.ti of this soc; tion. l~qtt~re that within any A99 zones en the commu~ty's ~ the sten- dards ofsuhsectloas (8)a. 1 through (al~-4.i a~d (a)b.5 through Require, until a re~ulatery ~eodw~y b deei~nated, tha~ no new cm~struct~ subatautinl ~m- provenents, or other development. including fill, shall be permitted within zones A1-30 and AE on the community'e FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other ex- isting e~d anticipated develop- ment, ~ not increase the water more than one f~t at any point within the community. i1, Require w~th;. zones AH and AO adequate draina~ paths and strut'cures on slopes to ~uide flood- waters around and away from pr~- posed structures. 12. Require manufactured homes to be placed or substantially improved on sites in an exis~g tured home park or subdivision. · within zones AI-~0, All, and AE ou the commxlnitT'S flltb~ that ere not sulkeat to the provisions ofsul~ section (8)c6 Of this section be el- evated so that either: i. The lowest floor of the manu- factured home is at or above the base flood elevation; or i~ The manufactured home for~d piers er other founda- tion elements Of at least equiv- alent st~en~tit that are no less ~n_._ 36 inches in hel~,ht above Srade ~ud ale securely chored £otmdatien system to res~ ~oatati~n, sellapse, sad lateral movement. 13. Not~viths~din~ any other sloes of subsection (8) of this sec- tion, a community may approve cer2ain development in zones AI-30, AE, amd AH, on the com- munity's FIRM which increases the water surface elevation of the base flood by more than one foot, provided ~ the sommun;ty first applies ~or a conditional FIRM r~ such a revision, as established under 'the previeieas Of'section 1242, and receives the approval of the federal insurance adminis- trator. 14. Require that re~eational vehicles placed on sites within zones A1-300 DCT-05-2000 13:34 BEST BEST & KRIEGEL LLP 909 68G 3083 P.33/53 FLOOD CONTROl, § 1~4o All, and AE on the community's FIRM either: i. ' Be on .the site for fewer than 180 consecutive days; il. Be fully licensed and ready for highway use; or iii. Meet the permit requirements or subsectlon (SJb.1 and eleva- tion and anchoring require- ments for manufactured homes in subsection (3)r.6 of this seaion. A recreational vehicle is ready for highway use if it is on its wheels or ja~ld.g system, is attached to the site only by quick disconnect Vpe utilities and se~rity devices_, and has no permanently attached additions, i~aen the feder81 insurance mamlni~trator has provided a noti~ or ~l.=l base flood el- evatious within zones A1-80 and/or AE on the eomrn'lnity's ~ and, if approprLste, has designated A0 zones, All zones, A99 zones, and A zones on the communlty's l~ffilVl, and has provided data from which the community shall designate its re~da- tory floodway, the community shall: Moot the requirements or subsection (3)a throujh (ale ofthis section. b. Select and adopt a re&mlai~ory floodway based on the principle that the ares chosen for the re~ulatory floodway mus~ be designed to entry the waters or the base flood, without increasing the water surface elevation of that flood more th~. one root at any point, c. Prohibit er~roachments, including fill. new construction, substantial improve- ments, and other development within the adopted re~ulatory floodway un- less it has been demonstrated through hydroloa~ and hydraulic analyses per- formed in acaordance with sf~mdard en- ~naeering practice that the proposed en- croachment would not result in any increase in flood levels witan the com- munity during the oc~u-rence or the base flood discharge. d. No~.withstanding any other provisions of subsection (8) of this section, the com- munity may permit encreachmente w~*~!n the adopted reJulatory floodway that would result in an increase in base flood elevations, pr~ided that the com- mtmit7 first applies for a conditional NIBM and floodway revision, fulfills the reqttix~,ents fer such revisions as es- tablished under the provisions of sec- tion 12-4~, and rmives the approval of the federal insurance adminis~zater. (Code 19680 § 8-65~ Oral. No. 1078, § 2(8-60), S-25-93) See, 1240. Special flood hazed 'designa- tions, The foliowinfl are a list ofds,L-,~atious and de- (l) Zone A is un eres or special flood hazard without water surface elevations deter- (2) Zones A1-30 end AE are areas of special flood hazard with water surface elevations (8) 'Zone AO is an area of special flood having shallow water depths end/or unpr~ dietable flow paths between one and throe feet. (4) (~) Zone A99 is an area orspedal flood hazard where enouJtx preptess has been made on a protective system, such as dikes, dams, and levees, to consider it complete for insur- ance ratin~ purposes. Zone All is an area d special flood hazards having shallow water depths and/or unpre-' dietable flow paths between one and throe feet, and with water surface elevations de- Zone B. X is an area of moderate flood heZz- arcIs. (~) Zone C, X is an area of minimal hazards. (8) Zone D is an area of Undetermined but pos- sible flood Jxazards. ~ - 0CT-05-2000 13:34 BEST BEST ~ KRIEGEL LLF' 909 686 3083 P.34/53 § 12-40 FONTANA CITY CODE (9) Zone M is all area Of Special mudslide ~i.e., mudflow) Imzards. (10) Zone N is an area of moderate (i.e., mudflow) hazards. (11) Zone P is an are~ ofundeterm/neS, but'pos- sible, mudslide h; T~.rds. (12) Zone E is a.~ area of special flood-related ' (Code 1968, § 8.81; Ord. No. 1078, § 5-25-98) 8ec. 12.41. Maintenance of 'records by the community. The ~codl~l~- admin/stnter r~all maintain for public inspection -p_4 ~u-nish, upon request, for the dete~-ntion of applicable flood insurance risk premium raf~ wi+J~n ell e2eus having spe- cial flood hazards identified en a FIRM, any c~r- tificates of Floodpr~t~n~ 21ld ird'ormn~ion on the elevation, in relation to mean sea level, of the level of the lowest ricer, includinz basement, of all new or substantially improved structures, and include whether or x~ot such structures contain a basement and if the structure ha~ been flood- proofed, the elevation, in roT.,{_nn to mean sea level, to which the structure was ~esdproofe~L (Code 1968, § 8-62; Ord. No. 1078, § 2(8-62), 5-26-93) Sec. 12.42..Revision of flood insurance rate maps to reflect base flood eleva- tions caused by proposed en- cronchrnenta ("1 Whentheconununitypropoesstopermiten. croachments upon the floedp~-{- when a reEula- tory floodway has not been adopted or to permit encroachmeets upon an adopted reZulatory floodway which will cause base flood elevation in. creases in excess or ~ose permitted under section 12-39(3)c.1 or (S)d.~, the community shall apply to the federal insurance administrator for conditional approval of such action prior to permittinZ the encroachxnents to occur a shall submit the rol- lowing as part of its application: (1) A request For conditional approval o[ map change and the appropriate initial fee as specified by section 72.8. or44 CFR chapter I, 10-01-88 Edition or a request for tion/rein fees as specified by section 72.5 44 CFR chapter I, 10-01-88 Edition, which- ever is apprvpriate. (2) An evaluation of altematives which would not result in a base flood elevation increase above that permitted under section 12- 89(~)~10 or (5)d.3 demo~xstratin~ why these alternatives are not feasible. (3) Documentation of individual ls~al notice to all impacted property ewnen within and outside Of the community, expla~-~ the impact of the proposed action on thei{ prop- er~. (4) Concurrence of the chief executive officer of any other co,-,-unitias impacted by the (5} Certification that no structures are located in areas which would be impacted by the increased base flood elevation. (9) A request for revision of base flood eleva- tion de~-ntina~m "~-r~nZ to the provi- sions of section 65.6 of 44 CFR chapter I, 10-01-88 Edition. (7) A reqttest [or floodway revision in aceor- an~_¢e wlth the pmvl~ons of sectlon 65.7 of 44 OFI~ chaptar I, 10-01-88 Edition. (b) Upon receipt ofthe federal insurance achnin- istratofs conditional approval o[ map chan~e and prior to approving the proposed encroachmeets, the community shall provide evidence f~ the fed- oral insurance administrator of the adoption of floodplain manaEement ordinances incorporating the increased base flood elevptLnas and/or revised floodway refiectin~ the post, project condition. (c) Upon completion of the proposed encroach: meats, the community shall provide as-built cer- taficatlons in accordance with the provisions of section 65.~ of 44 CFR chapter I, 10-01-88 Edition. The £ederal insurance administrator will initiate a final map r~_sion upon receipt of such certifi- cations in accordance with part 67 of 44 CFR e~_apter I, 10-01-88 Edition. (Code 1968, § 8-63; Ord.. No. 1078, § 2(8-68), 5-25-93} ~ 0CT-05-2000 13:34 BEST BEST & KRIEGEL LLP 909 686 3083 P.35/53 FLOOD CONTROL § 12-44 -~ec. 12~.. Floodways. Located within areas of specia~ flood huard as- tablished in section 12-31 are areas designated as floodways. Since the floodway is an extremely has- ardous area due to the velocity of floodwaters which ce,,'ry dehr~, potev+~i projectiks, aad e~- sion potstilL the following provisions apply:.. {1) Eneroachmen~s shall be prohibited, in- cluding fill, new construction, substantial improvement, and other new development~ unless certification by a re2istered profas- sional engineer or architect is l~rovided dem- onstratingthat encroachmonte shall not re- sult in any increase in the base flood elevation during the occurrence of the base flood (2) If subse~don (1) of this section is satefled, all new construction, ~xbslantial improv~ merit, ~.nd ot~er proposed new develop:nen~ shall comply with all'other applicable flood hazard radtuetion proveotto of section 12-39. (Code 1968, § 8-64; Ord. No. 1078, § 2(8-64), 5-25-93) Sec. 1244. Hoodplain management c~iteria for mudslide (i.e., mudflow) prone The federal insurance -~,~_is~rator will pro- vide the data upon which floodplsh mana~ment regulations shall be ba~ec[ If the federal insur- ance administrator has not provided sufficient data to furrdsh a basis for these regulations in the com- munity, the community shall shtain, review, and reasonably utilize da~a av=~l~kle F~om ether fed- oral, state or other sottrees pending receipt of data from the federal insurance administrator. How-' ever, when spe~-! mudslide (i.e., mudflow) hasaxd area desiEuations have been furnished by the fed- oral insunnce aJmqnqstrator. they shall apply. The symbols del'min~ such special mudslide (i.e., mud- flow) howard designations are set forth in section 64.3 of 44 CFR chapter I, 10-01-88 Edition. In all cases, the minimum requirements for mudslide (i.e., mud flow) prone areas adopted by the commu- nity depend on the mount of technical data pro- vided to the cernmux~ty by the federal insurance administrator. Min~m,~m stendanb for the dry are as follows: (1) When the federal insurance W~rn(n~txator has not yet identified any area within the community as an a~a having special mud- slide (i.e., mudflow) hasa~ls, hut the com- munl~ has indicated the presence of such hazehis by submlttin~ an application to ps~- tielpate in the p~o~ram, the community shall: a. Esquire permits for all proposed con- stn~ction or other development in the eammunity so that it ma~ determine whether development is proposed within mudsride (i.e., mudflow) pz~ne b. Require review of each permit applica- tiontode~q-ewhethartheproposed site and improvements ~ be reason- ably safe from mudslides (i.e., mud- flows). Factors to be considered in making such a deter, hie. Hart should include but, not be ]imi'r~t 1. The type and qualiW d' sons; 2. An~ evidence of ~roundwatar or surface vmter problems; 2. The depth end quality of any ~l; 4. The averall slope orthe site; and 5. The weight that any proposed " structure will impose on the slope. c. Requize, ifapropasedsiteandimprove- merits are in a location that may have mudslide (i.e., mudflow) hazards, that~ 1. AsiteinvestigaUonandfurtherre- view is ms~le by persons in SeoloSy and soils engineering, 2. The proposed grading, excavations, new constn2ction, and subetm3~,d_ improvements are adequately de- signed and protected a~zlns~ mud- sfib (i.e., mudflow) d~m_ages; 3. TheprepasedErading, excavations, new construction and substantial improvements do not aggravate the existin~ hazard by creating ei- the~ onsite or offsite disturbances; 727 0CT-05-2000 13:35 ~EST ~EST & KRIEGEL LLP 909 GSG 3083 P.~G/53 FONTANA CITY CODE 4. Drohage, planting, watering, and ms. intenanc~ are such as not to era- (2) When the fede~l insurance sdm~r~4a-ator . has delineated zone M on the community's FIRM, the community shall: s. Meet the requirements ofsubsection (1) of this section; and b. Adopt and enforce a grerl~._~ ora~._nnes or regulations in actordance with data supplied by the federal insurance ad- 1. Regulates the location o.f founda- tion systems and utility Systems of new construction and substan6_n! improvements; 2. Reeulates the location, drainage and maintenance of all excava- tions, cuts and fills and planted slopes; 3. Provides special requirements for protective me~suru inclvd~E, but not necessarily limited to, re- taining v~1., butt~ss ~Is, sul~l- etc~; end 4. Requirese~t_~.eerlnZdrawingsfor ~ oil corrective measures, a~mmpa- nted by supporting soils engi- neeflag and. geology reports. Gttid- anca may be obtained from the provisions of the latest edition the Uniform Building Code and any subsequent. editions or revi- sions. (Code 1968. § 8-65; Ord. No. 1078, § 6-26-63) See. 1246. Floodplakx management criteria for flood-related, erosinn.prone The federal ins~xanca adm~n~trator will pro- vide the data upon which floodplaln nmnsgement regulations/'or flood-related, orosion-prone areas shall be base& If the federal insurance admirals- tra~or has not provided sufficient data to furnish a basLs for these reZulations in the community, the community shall obtain. review, .and reason- ably u~il ~-e data availshle from other federal, s~_te · or other sources, pendlngrecelpt or data from the federal insurance administrator. However, when special flood-related erosion hazard area designa- tions have been furnished by the federal insur- eleg admlnq~.rator, they shall apply. The sym- bols d~nlng such special flood-related erosion hazard designations are set forth in section 1140. hall cases, the minirnmnrequiroments governin~ the adequacy of the floodplain man~-ement reg- ulations for flood-related, erosion-prone areas adopted by the community depend on the mount of technical data provided to the community by the federal insurance administrator. Minimum standards for the city are as follows: (1) Whell the federal hmtlrance admi~istrater has not yet identified .any area ~vithin the community as having special ficod-rehted erosion hazards. but the cem,~unity has in- dicated the presence orsuch hazerole by sub- mittlnS an application to participate in the program, the community shall: a. Require the is,~a~,~ of a permit for all proposed construction, or other devel- opment in the area of flood-related ero- sion hazard, as it is known to the corn- munity. b, Requirereviewofeashpormitapplica. tion to determln~ whether the proposed site alterations and improvements will be reasonably safe from flood-related erosion and will not cause flood-related erosion hazards or otherwise aggravate the existing flood-related erosion hazard. ~ If a proposed improvement is found to be in the path of.flood-relatod erosion or to increase the erosion hazard, re- quire the improvement to be relocated or adequate protective measuPes to be talcen which will not aggravate the ex-. isting erosion hazard. (2) Wher~ the federal insurance admlnleh-atm- hns delineated zone E on the communlty'e FIRM, the community shall: a. Meet the requirements ofsubsection (1} of this section; and b. Require a setback for all now develop- ment from the ocean, lake, bay, ri.ver- ,C 0CT-05-2000 13:35 BEST BEST & KRIEGEL LLP 909 686 3083 P.37/53 FLOOD CONTROL 12-47 front or other body of water, to create a safety buffer consistin; of a natural vez- etativ~ er contour strip. This buffer will be d~ignated by the fedenl insurance s~'~;-~strator accarding to the flood- related e~.osion ~n-~:l and ermion rate. in conjunction with the ~n__h_'cipated USefill life of structures, and dependin~ upon the SeoloZic, hydrolo~ic, topographic and cli- matic characteristics of the connnunity's laud. The buffer may be used for suit2ble open space purpcees, such u for q~x~-ul- rural, forestry, outdoor recreation and w~d- life habitat areas, and for other activities ~ tenapor~l-y 82d portable S~ only. (Code 1968, § 8-66; Oral. No. 1078, § 2(8-66), 6-25-93) Sec 1246. Design req~ts, (a) Str~ctm~2 sy~em.~ Structural s~ .d ~ ~ s~ s~ be ~, ~n- n~ ~d ~ ~ r~fio~Uo~ ~e~ ~t h~ m~mmt due ~ 1~ ~ fi~ ~ ~ ~e b~ ~ ~a~ ~ d~ ~ a~c~m ~ we~b~ q~ loa~ sh~ ~ e~bHshed by (c) ~ ~mS~ ~ (d) ~s ~nc~e~ ~l~able s~ess~ my ~ ~ dead lead or &~ ~ Mve load ~mb~- m~ ~ c~d~ u de~ 1~ whm ~d~- ~ dead ~d Mve load con~o~. ~ 1~ my be co~d ~ ~ ~ds ~ o~ load ~mbi- (e) Over~urn/n~. Bnlldin~s and structures and parts or el~n_-,_ts slt~l_l be rl~l to re,st sllclin_~ or overtumin~ by a~ least 1.5 limes the laf4ral fi:wce or overturnln..- moment caused by ~,,d and flood loads actin~ simultanemut~. F~r the purple of provldl,.- stability, only the dead load shall be consideed drective in tesist~ (9 Bred~zwey wgZZs.'Whan wren- or partitions located ~ ~ ~ ~ ~m~ m ~ q~ ~ ~ ~ay h a~ ~ ~. ~ (c) d ~ s~o~ ~ w~ ~n ~ d~ s~ for not ~s ~ ~ ~ ~ sq~ f~ ~ ~ m~ ~ 20 ~ ~ ~ v~ ~ ma. (C~e 1~, f ~7; ~ N~ 107~ ~ 2(~7), ~2~98) quitembers of'J',;. article. fo) The ~,.-;,,_- bely ~.n hear and decide aPPealswhenltk~.herefsanenwhany requ~remant, decision, or determination made by the fiooclp~,,~,, aa,,,;n~--~'rab~r in the enfotu,,JnanC or aami,,;~'at:~on of this ert~e.. (c) In passing upon such applications and ap- peals, the city coancn of the city ,,~,.n consider all te~h-;~al evaluations, ell. relevant factre, stan- dards speci6ed in other sections of this ar~le, (1) The d~ that materials may be swept (2) The danger to life and property due to ~oo~;-_= or erosion dama~, (8) The susceptx'b~ity of the proposed facility uad its contents to flood damage and the e~ect of such damage on the individual (4) The hnportap~e of the services provided by the propped facility to the community, (5) The necessity to the facility of a water- front location, when applicehle; .Supp. I(o. 11 ' '7~9 ' · 0CT-05-2088 13:35 BEST BEST & KRIEGEL LLP 989 686 3883 P.38/53 FONTANA CITY CODE (6) The avat7 of atsrrmt~e locatlou for the prowsea use which are not subject to flooding or erosiou (7) The compatibility of the p~opesed use with ~_~ug and antidpated develop- ment; (8) The relationship of the proposed use to' the comprehe~lsive ~l~.q and floodplain ~--~_~ement program for that area; (9) The safety of ~cess to the properby in times of flood [or orai.~y and emergency (10) The e,4~cted b-~Sht, ve/ocity, duration, rate of rise, and seAi,-ent tr--~=t efthe floodwaters and the effects of wave action, if apt, li~_~_ble, expected at the site; and (ll) The costs of providing governmental set- · ~-duding m-t-~..,ne and zipair c~puh- gas, decttical and watar ~'~pms, and (d) Generally, variances may be issued f~r new ezicted an a lot ~fone-half a=e or ~_, in size contiguous to ..a surzmmded by lots with exist- level, p,vv;a~nS subsections (c~l) through (11) of this section have been fully consider~cL As the lot size {---eases beyond the one-halfaee, the tesh- nical justifications required for jinxing the vari- (e) Upon consideration of the factors of this section and the. purpose of this article, the gov- erning body my attach such conditions to the &sra~*{-.~ of variances as it deems necessary to ~urther the purposes of ,hi, article. ~ The floedpls~n ~dm;-;~trator w~l a record of all variance actions, including justifi. cation ~r their i~sum~ce, and report such vari- ances issued in its biennial report submittal to the Fedenl Insurance ~,~;-i~tration, Federal EmerKency M.~m,'~emont Agency. ICede 19S8, § 8-68; Out. No. 1078, § 5-25-93; Ord. No. 1300, § 2, 9-21-99) See. 1248. Conditions for variances. (aJ Variances may be issued for the repair or rph~hffitation of historic structures upon a detor- · ~;-=tion that the proposed repair or rehab~in- tion will not preclude the struc~tu~'s con~nued desi.m~_~tion as an h~u~ric struc~re, and the variance is the mlniv-um necessary to preserve (b) Variances a,.1_1 not be issued within any mapped regulatory floodway if any increase in flocdlevelsduringt~ebasefiooddisclmrgewould (o) Variances shall only be issued upon a t~,anation *hat the u,dance is the am neceasar~, considerinll the flood h---~l, to afford relief. Minimum necessary me-n~ to afford relief with a m;-;-,um of deviation from the mqu~re- merits ~ th/s article. For m'nv-ple, in the rise va~--_~s_ to an elevoh_'_--_ requ~ment, this means the city need not 2rant per,-;- _~on for the appll- cant to bnila_ at grade, or even to whatever eleva- · tion the application prolxr~e, but only to fixat elevation which the city believes will both provide (d) Vaziances sh.n only be ~ssued upon sat~s- [action of all of the following.. (1) A showh~ of good and su~cient cause such as nonelective renDration, rehabili- tation or reconstruction necessitated by causes beyond the apl~tican~s control Vatl- ances ~ssued ~or .economic consideration,. aesthetics or because variances have bsen used in the past are not good and suffi- cient cause, (2) A determination th~ f~lure to ~rant the variance would result in exceptional hard- ship to the applicant, (3) A.dete~nlnatlon that the grantinZ ef a variance ~ not result in increased flood he~hte, additional threa~s to public safety, e,~traordlnary public expense, create nui- 5~x1CeS~ Cause fraud oll or V~'~fim{~n~ Of the public. or confli~ with o~;ting lesal laws or ordinances. Supp. No. I1 730 ~ . 0CT-05-2000 13:35 BEST BEST ~ KRIEGEL LLP 909 686 3083 P.39/53 FLOOD CONTEOL (e) Variances may be issued for new construc* tion and substantial improvements and for other development necessary f~r the conduct ~f a fun~ tionally dependent use, provided that the provi- sions dsubsecti~ (a) through (d) of ~;- section are sati~ied and that the structure ~ other development is protected by methcds that m~e flood damages during tile base ~c~d and c~eate no additional threat to public safety. (f) Any applicant to w~_nm_ ~ variance is granted shall be give~ written netice ~ver the signature of a co-~_~,mity official that: (1) The ias,,~_e of a vax~nce to c~-truct below the base flood level will result in increased premium rates for ~oed insur- ance up to amounts as high as $25.00 for $100.00 of insurance coversge, and (2) Such construc~on below the b~se flood level increases risk t~ life .~ property. It is t~ccmmended that a copy ~f the n~tice istratcr in the office of the San Bernar- rescuer so that it appears in the ~-~ title o~ the atr~ec~d paxcel of laud. (Code 1968, § 8~9; Ord. No. ~0~S, § 5-25-9~; Orcl. No. ~00,, § 3, 9-91-99) Sees. 12-49--1~-70. Reserved. ARTICLE 111_ AREA FLOOD CONTROL PLANS AND FLOOD CONTROL FEES* Sec. 12-71. Intent; appHcabillty. The intenJ: o~ this article is to require the payment of flood centtel fees for most new con- struction that dry;-,, or ~ drakx int~ the fiecol control facilities c~ntained within an adopted area flood control plan. Such fees v~l~ be paid prior to the issuance of build~n~ permits, grading permits or other city appr~mls, for the purposes of defraying the actual or e~mn~ costs ~f construc~n.~ p]~-d flood control facilities. The auth. ority for ~ article is derived from the *Cross refere~ces--Subdlvlsicns, .oh. 2{$; starm draia~e acreage fees, § 22-256 et seq. article ,~,U be applied only to proper~ which will drain into the flood amtrol ~acilities described ia the area fiood ccntrcl plans that have been adopted by the city council, and ,h~u have no force or effect in any other pm'fion of the city. The xules, regulations, fees and plan areas are ~O~+~;ned in t~e as~ciated tex~ ~f each area flood control (Code 1968, § 37-1) Sec. 12-'~. Estabmiekmen[ of area flood con- trol plans. control plan, ~n find and deter~i~ that devel- opment or redevalopment of the property in the control plan and that the flood control fees are fairly apportioned amon; the ~ that will utilize the area fiead ~mtrol plan Co) The ~ control fees .h.ll be lr,~i-ly appor,- timied based on 'one or m__,~e of the followix~ (1) Onthebasisofbenefxtsmn~.=donpr.l~ (2) 'On' the need for flood control facilities creat~l by such develapment ~-~ the de- (3) On the basis of the proportionate stormwater runcff frvxn each parcel. (c) The cit~ conrid1 shall adopt or amend an area flood control plan by r~olutio~ The resolu.- tion shall do all ofthe followix~. (1) Identify the purpose of the fee. (2) Identif)' the use to which the fee is to he put Irthe use is ~n~n,'~n_~ public facili- ties, then the Ea~ilit~es shell be identified. ence to any public document which iden- tffies the facilities for which the fee is 731 ~ · DCT-05-2000 13:36 BEST BEST ~ KRIEGEL LLP 909 686 3083 P.40/53 § 12-72 FONTANA CITY CODE '(3) Contain a findi~ thnt there is a reason- able relationship between the fee's use and the t~e of development project on which the fee ~s imposed.. (4) Contaiu a finding that there is a reason- able relationship between the need for the public faciliW and the tm0e of develo~- · ment project on which the fee is imposed. (5) Contain a ~uding that there is a reason- able relationship between the mount of the fees and the cost of the flood centre1 fn~ties, or pox~ion thereof, attributable to the develoV,-e-t on which the fee is (d) Area fiuod coutrol phns and the fieed con- tml fees max be adopted by the city courtall, and therear mended at any time, only al%er hold- ~ a public heszin~. The requirements of Govern- ment Code § 66004 shall be followed priur to holdlnZ a public hearing establishinS or nmcUf:r- lS68, § 37-2) See. 12-73. Fee collection mad accounting.' (a) Except as otherwise provided in seetion 1245, whene,~ a bui3a;-5 lmmit, =radin~ per- mit or other city aplmyval in conne~a_--~ with new coustrtwtlon is requested forpx~pertTwhich dr~.- or will drain into the fac~litles contained an area flood control plan, the spa:tried flood control fee shall be deposited to the appropriate pl...od flsed control facilities fund. Any interest income earned by the money in the fund taxall also be deposetel in the fund. The emount of the flood control fee shall be specif~ wi,~_-_ the schedule of fees fi= each area flood ~ontrol plan. The fee required under the. section shall be due as vided fo~in article V of chapter 21 ofthls Code. (b) Flood control fees reqx~ed by this ert~c/e shatl be pa/d to the city and deposited into a pln.~ed flood control fati]/ties fund. A sopsrate fund shall be established for each area flood control plan. Mozties in such funds shall be ex- penaed solely for the construction and reimburse- ment for the conStruction of flood control facili- ties, i-eluding. without limitation, related edmirdstration expenses, wig{n_ the area ~'om which the fees comprising the funds were col- lected, and to r~,-hurse the city for the cost of ~mering, fight-of-way acquisition and eami,, istrative serv/cos requL-ed to design and construct facilities w~,~- the area flood control phn. (Code 1968, § 37-3; Oral. No. 1237, § 5, 2-3-98) See. 12-74. Calculation of fees, (a) Fees assessed under this a~dcle at the thne of the issuance uf a buiXai-s pt~iL gr~,t~-s permit or other city approval related to new construction shalZ be based upon the total ma of · th~ parcel, provided the pazcel has an ax~a of less than one aa'e. Cb) Fees assessed at the time of the issuance of a buildlnZ permit, ~rading permit w other city approval related to new ce-~'uction on a panel which h~_e an area of one ac~e or more ~h~11 be based ~n the area of the developed portion of the parcel or one acre, whichever is greater. As used ;" ~ section, the plnse "asea of developed perthan of the pazue/" means the sum of the followi~ two areas: (1) . The area of that portion of the parcel lyin; wi~h;n a single rectsmgle Which all improvements, landscaped areas, ster- a~e areas and pa~16n_, areas; end (2) The area of~ portion of the parcel lying within a single rectangle which encloses all improvements related to the required a~ess for the parcel. This second rectan-. gle shall not include any area contained in the rectangle described in subsectlon (b)(1) of this (c) The amount of fees assessed and the ma on which the fee is based shall be calculated by the city en~ueer. The city en~u~er may require an applicant to submit a]/ information necessary to calculate the ~ees. (Code 1968, § 37-4) Sec. I~--75. Construction h-lieu option, Pursua~xt to article VI of chapter 21 of this code, the city may aHew part~sl or complete sat- isfaction of all fees required by this section through 0CT-05-2000 13:36 BEST BEST & KRIEGEL LLP 909 686 3083 P.41/53 FLOOD CONTIK)L § 12-76 e~ecution of an a~reemen~ rec~uirinZ the construc- tion of public improvements and/or dedication of pr,,peny. (Oral. No. 1236, § 5, 2-3-98) Sec. 12-76. Exemptions from feet, special ~ments. (~) Aduancemeng of money by d~veZot~er. (1) When required for the implempnf~tion o~ an adopted area flood control plan, an agreement may be entered into between a developer and the city whereby the devel- 8upp, No. 11 732.1 ~ 0CT-85-2800 13:36 BEST BEST ~ KRIEGEL LLP 909 686 3883 P.42/53 FLOOD CONTROL §1247 oper may advance money, in addition to those fees which the develope~ is required to pay pursuant to this article, for the consn'uction of facfiifies or dean of such facilities W~thln all area flood contr~l plan. Sulkeat to the restrictions in subsection (a)(2) of ,h~s section, the sole security to the developer for repayment of money or other censfderation advancod shall be money subsequently collected from other develol~ers or owners of property upon the issuance of building permits, ~'rading per- mite or oth~r city approvals cencem~-S flood control facilities contained within an adopted area flood control plan end depos- ited in the appropriate pl---ed flood con- trol. facilities fund. Reimbursement shall be for the mount agreed upon in advance only and shall not include interest or other shar~es. The a~reement shall ex- pire 15 years after the date it was entered into, and any money paid into the fund therea~er shall accrue to the fund with- out obligation to a developer whose agree- merit has expired. (2) The cit? may desi2nate that up to 25 percent of the funds collected from build- ing permits, grading permits or other city approvals in the area subject to the area flood control plan be uH}~ed for reimburse- ment for any agreement entered into pur- suant to subsection (aX1) of this section. Other than the mount so designated by the dr'y, planned flood control facilities fimds shall not be used as reimbursement for any alFeements authorized by subsec- tion (aXl). (b) ,4ZZemuti~e c~s~z~on. ia.n agreement may be entered into between a developer and the city whereby other consideration may be ~iven to and accepted by the city in lieu of part or all of the payment of flood control fees, including but not limited to the dedication of rights-of-way, actual consbmctlon, or design work by a civil engineer. Prior to approvinZ' such an a~reement0 the city council shail find that the aiterna~ive consider- ation is acceptable and is equal to or ~eates in value than the required fee. (c) Ennemp~t.o~. Flood control fees shall not be required for: (1) Minor alterations and repairs havin~ a cost' less than 20 percent of the value of the. -d ,ring imprevement b ein~ altered or repaired. (2) Reconstruction in'the event Of a disaster. (3) An addition to a single-famOy residence when the addition does not exceed 650 square feet in a~a. (4) Constxuction related to existing residan- tiai constru~on or c~n~truction of ~a- rages, carports, storage buildings, patio covert, sw~mm~' pools, spas, boundary or decorative fences, television microwave towers, amateur radio devi~es or earth stations and the like; provided such im- provamants do not exceed 650 ~luare feet in area. (5) Existing structures built prior to the ,~ctive date of the ordinance codified in this article. (d) ~ren~fo~j~e~o~s~oym~L Ira flood trol fee for a pan:el or pertion theree~ h~_ been prev~ensly paid, c~-ed~t shnll be ~ven for such prior payment toward any fee payment requi~ed by ~_~ article. (e) F~'olee~y $~isc~ ~ e~eF ~.~sex$~nents. The provisions of thi~ article shall not be applicable to property subject to other assessments for the same flood control facilities. (Code 1968, § 37-~; Ord. No. 12~6, § 5, 2-3-98) Sec. 1247. Disposition of surplus funds. (a) A~cer completion of facilities end the pay- ment of all c|a{ms ~rom any planned flood control facilities fund, the cit~y council shall deterndue by resolution or other leE~slative action the amoant of the surplus, if any, ramaining hi any of these fiznds. My surplus shall be used, in those amounts as the c~ty council may determine, for one or more of the followin~ purposes: (1) For transfer to the general ~und of the city, provided tl~t the amount of the trans- fer shall n~t exceed five percent of the total amount expended from the part~en-- Supp. No.S ~ 0CT-05-2000 13:36 BEST BEST & KRIEGEL LLP 909 686 3083 P.43/53 FONTANA ~ CODE (2) (S) lit fund, and provided that the funds ~ansfarred are used to support the oper- ation and w~-t~.nsnce of those facilities far wMch the fees were collected. For the construct/on of additional or mod- ified facilities wi~h;~ the same area flood control plau. As a refund in the mauner provided in subsection (b) of this section. (b) Any surplus remn~n;n~ after the city has either expertdeal the mounts authorized in sub- se~on (a)(l} and (2) oftMs section, or h~, decided not to make such expenditures, shall be refunded as follows: (1) There sh~l be refunded to the current owners of property for which a fee was previously cellecte~ the b-l~-ce of such moneys in the same proportion which each individu~l fee collected bears to the total of a]~ individual fees collected under the area flood control plan; Where property far which a fee was pre- viously collected has subsequently been subdivided into mere than one let, each current owner of a la~ shall share in the refund payable to'the owuers of the prop- er~y fer which a fee was previously col- lected in the same proportion which the area of such individual lot hears to the total area of the property for wh/ch a [e~ was previously collected; and (3) There shall be transferred to the general fund of the c~ty any remaining portion of · the surplus which has not been paid to or claimed by the persons entitled thereto within two years from the date that the owners antifled thereto were seat notice ~o such entitlement. Notice shall be deerned complete/zpon the mailing of a certified letter to the current owner of the property, as shown on the most recent tax assessor's rolls. (c) Subject to the provisions of subsections (a) nd (b) d tl~s section, commencing on the ~ ear after imposition of a flood control fee,for an plan and annually thereai~er, app. 1%'o. 8 734 the city council 'shall hold a hearin~ and make findings with respect to any portion of the fee r~m~;~;nZ unexpended or uncom~i~l in its a~count for five or more years after deposit of the fee. If the city councfi is 'unable to demonstrate a reasonable relationship between the need for the fee and the purpose for which it was char~ed, the city shall refund to the then owners of lo~s ur units in development project~ within the area flood control plan on a pr~ rata bssis any such unexpended or uncv,,~m.;tted fees plus interest accrued thereon. When applicable, refunds shall be made in accordance with Government Code § 66001. (Code 1968, § 37-6; Ord. No. 1236, § 6, 2-3-96) Sec. 12-78. Fees exclusive of storm drainaEe fees. The flood osntrol ~ss established by this arti- cle are exclusive of those storm dr~n~Ee acreage fees established by chapter 26, article V. (Code 1968, § 37-7; Ord. No. 1236, § 5, 2-3-98) [TJm next page is 771J 0CT-85-2088 13:36 BEST BEST & KRIEGEL LIP 989 686 3883 P.44/53 .lJ,18,010 Clmpter 1S,18 FLOOD HAZARD AREA REGULATIONS ' Sections= 15.18.010 15.1&07,0 /5.18,030 15.18.040 15.18.050 15.18.060 15.18.070 15.18.080 15.1&090 15.18.100 15,18.110 15.18.120 15.18./30 15.18.140 15,1&IS0 15.1&160 lfl&170 15,1&180 15.18.190 15.183,00 1S.I&310 1f.18,220 15.18.230 15.18.240 Statutory authodufion. Findings of fact. Statement of puxpns~ Methods of x~!nchlg flood losses, Defiuition~ Lands to wb/ch this chapter applies. Basis for establishing the areas of special flood han_-d. Complinnce, Abrogation and greater restrictions. Interpretation. WarDing and c~cintmer of liability. Development permi~.-- Apphfion- Aamlnlqrator---De~j~Dated. Admioistrator--Dulins and S~ of construcfio~ Staminr~ for ulllie~ Standards 6Dr subdivisinM. Standards for manufactured hnmes. Ste~dards for storage of m~ferl~ and equipment, Mudslide (L~, mudflow>prone Flood-rala~ed erosion-prone areas. Varinuce procedure--Appeal board, Conditions for Varfances. 1~.18.010 Sumtory authorization. The Legislature of ~he state of California has in Gov- ornment Co~h~ Sections 65302, 65560 az~ 65800 cun- froTed upon local government units authority to adopt reEu/ations designamd to prumo~ ~he public h~allh, safevy and Sanoral welfare of i~s ci~nry. T/3e,~fure, the city council of the city duns ord~n as follows in this ~ap~r. (Oral. 0-18-87 § 1.1,.1987) 15.18.020 Flmdings of fact. A. The fined h,,,,_~ areas of time F. ity ax~ subject re pcrlcdic inundation which resalr, in loss of li~c und propcr~y, health and safety hanrds. di~ml, iou of roeace and ~overnmcntal services. ex~anrdinry public expenditures for flood p/o~,~ion and relicf,'sud impair- merit of the tax base, all of which adversely affect the public health, safcty and gensrdl welf'~e. B. ~hose flood losses ax~ cans~d by d~ cumulative effect of oban'uctions in s~s of special ~oed hazards which inci~se flood heights and velocidns, and when inadcq,,-~Hy anchored, damage usns in other arcns. Uses that ~rc inadequately fioodptoofcd, elevated or other, vise protected ~rom flood dm~e also conUibute to the flood loss. (Oxd. 0-18-87 § I3. 1987) 1~.18.030 Statensent of purpose. h is the purpose of this cbap~r to promot~ the public health, safety and general welfare, and to mince public and privazc losses due to fioad conditions ia specific areas by provisions cl~signed: A. To ;n'otect bumsn life and health; B. To minlmi~ cxpendkurc Of ImbHc money for costly flood-control projects; C. To ~ te uosd for rnscuc and relief efforts associ;;~,.d with flooding and geucr~ly undauken at expense of ~e 6ancra~ public; D. TO ~3inlmi~e prolOn~ed bnsinnss ~n~m'up~ious; E, TO mirdmizc damage ~o imblic' fac~fiins and u~lidos such as water and gas mains, elecu'ic, telephone and sewer fines, stz'~ts and bridgu l~4ued in areas of special fiend F. To help maintain a stable tax based by providfmg for the second use and doveJopmsul of 'a~as of s~cclal flo~ci hazard so as to minimlan future flcwxl blight ar~ns; G. To insure that potential Imyors ax~ notified that prol~y is in an aru of sl~a/flood b,,-,~ and H. To iusurc that those who occupy tbe ~cas of sl~ial fic~d b--_~d assume rcslxmsibility for m~i_,: ac- tions. (Ord. 0-18-87 § 1.4, 1987) 15,1&040 Methods of reducing flood losses. In order to accomplish im puxposos. t~s chalxer In- cludes me~ods and provisions A Restricting or prohihiling uses which m-e dangcr-. ons to heath, safety and l=opm. ty due to water or oresion hazards, or which rcsu/t in dama~ng tncreas~ In esosion or In flood hcighis or val~dcs; B. Requ;ring that-~-s vulnerahi~tofiocds, incieding. ~aci~fies which serv~ such as~s, be proteclzd against flood dam.~ ax ~he time of Initial conswuedun; C. Conlrolll~ te alterationof n.h,ql finedplains, sueam channels, and unmml prov~'~ve bar~rs. which help acconunodate or clmnnel BEST BEST & KRIEGEL LLP 909 686 3083 P.45/53 - 0CT-05-2000 : 1~.1&040 i3:36 D. Conu'olling fillln~; grading, dreXlging, and other development which may Inct~as~ flood damage; and E. Preventing or regulating the construction of flood balliCl~ Which Will tl~n"tw'ql~y dlver~ floodwaters of winch may increase flood hannts in other aress. (Ord. 0-18-$7 § 1.5, 1987) 1f.18.100 Definitions. Unless specifically defined below, words or phrases used in this chapter shall be hte,~,~ted so as to give them the meaning ~hey have in common usage and give this chal~ter its most reasonable application. 1. "Appeal" means a sequest for a review of the floodplaln admiinswator's interpretation of any provision of this chapter or a requasl for a variancc. 2. "Area of shallow floecling" means a desi~n~_r_ed An or AH zone on the Flood Insurance Ra~ Map fFIRM*), The base flood depths range from one to dm:e fe~, a clearly defined channel doeS not cxjst, the path of fi~xling is unpredicrable and indeterminate and velocity flow may ha evident, 3, "Area of special flood hazard' means as follows: See "Special ~o4xi heza~l area.' 4. "Area of spenial ~ood-reh~i erosion hazard" means the area subjees to severe fiood-ralated erosion losses. The area is designa~ci as zone E on ~he Bond $. "Area of special muds fide (i,e., mudflow) means the area subject to severe mudslides mudflows). The area is dasigna~ed as zone M on the good Insorance Rate Map (FIRIvl). 6. "Base flood" means the flood having a one-per- cent chance of being equalled or exceeded in any given year (also called thn "one-hundred-year-~oecl"). 7, "Basement" means any area of d~ building having lls floor subgrade (below ground level) on all sides. 8, "Breakaway walls" means any type of walls, whether selld or |artlee, and whether oonsizu~ed of con- crone, mason/~, wend, moral, plaslie or any odzr stamble building margrinl which is not pan of ~he ~rel sup- port of fl~ building and winch is designed Eo break away under abno,~ally ingh tides or wave action without causing any damag~ to die stmaural integrity of bag on which they are used or any buildings to winch they might be cart'led by ~o~lwa~zs, A b~r, akaway wall shall have a safe dcsign loading resistance of not less ~han h-n and no morn than rivesty pounds per square fool Use of breakaway walls mes~ be osrdiied by a regisu:rcxi engineer or archimct and shall meet ~he ftalow- inl] conditions: 346 a. Breakaway wall collapse shall restat fi'om a water load less ri~an tha~ winch would occur during the base flood; and b. The elevated portion of the building shall not incur any structural damage due to the effects of wind and wa~ loads acting simultaneously in the event of the base flood. 9. 'I)evcinpment' means any man-made change to improved or unimproved teal esbato, including but not limited to buildings or other sn'antores, v,;,h,g, dredging, ffiling, grading, paving, excavation or chilling operations. 10, "F, xisdnff manufantorcd home ~ or subdivision" means a manufacv. u'ed home park for winch the consSue- finn of facilities for servicing the lot on which the manu- fanmred homes are to be affixed (including, at a mum, the installation of utilities, either final site or the pouring of concrete pads, and the construction of s~eets) are completed before the effeelivc da~e of flood- plain management re~u!,h_'ons adopted by a community. 11. "F, xpansion to an existing manufacnlred home park or subdivision" means the preparation of additional sites by the conswdcdon of fecffities for servicing the lots on which the rnanufacV. n~ homes are to he affixed (including the installation of uglities, either final site gnding or pouring of conetin pads, or the consn'antion of streets). 12. "Rood Boundary and Roodway Map" means ~he official map on which the Federal Emerffcl~y Massfie- ment Agency or Federal Insurance Administndon has delineated both the azcas of flood hazard and the flood- way. 13. '~lood Insuram;c Raze Map (FIRM)" means the official map on winch d~e Federal Emergency Manage- ment Agency or Federal Insuranc~ Admitaslntion has delineated both the asess of special flood hazards and the risk prominto zones applicable to the community. 14. "Rood Insurance Study" means the official report provided by the Federal Insurance Admfnhrration that includes flood pzofilos, the FIRM, the Flood BoundaI!t and Roodway Map and the water rob'face elevation Of rh, base flood. 15. "Flood or fioodinf' means a general and ~ ~ condition of partial or complete Inundation of nor- really dzy hnd areas from: ~. The overflow of floodwaters; b. T/m= unusual and rapid ancumelation or runoff of surfacewaters from any souwe; and/or e. Theco]lapseorsubsidenccoflandalong them of a lake or other body of water as a ~esalt of erosion or undermining caused by waves or eerren~s of water e~- ce=ding andciVated cyeiioal l~cls or suddenly caused by an unusually ingh wa~r level in a natural body of water, 0CT-0~-~000 13:37 BEST BEST ,9, KRIEGEL LLP 909 686 3083 P, 46/53 15,18.0~0 accompanied by a severe stm'm, or by an unanticipanxt force of nann~ such as ~uh flood or an abnormal tidal surge. or by some shnilarly unusual and unforcseeable event which results in flooding as defthad in this defini- tion, 16. "Floodplainmanngcment'mesustheoperatiqnof an ovcndi program of corrective and preventive messurns . for reducing flood damage, including but not limited to emergency preparedness plm~ flood-control works and fioc~plein mannSemenr te~ulalions. 17. '~loodplaln management reguht~ons" means zonin~ oralinmates, subdivision regulations. buildlug codas, health re~uladons, spucial purpose ordinances (such as floodplain ordinance, ~z~llng ordinance mad ewsinn control ordlnnnce) and other applications of police power. The term de.scribas such staze or local regulations in may combination thereof. which provide stsnd~:ts for the purpose of flood datn~e preve~ltinn mad redu~tinn. 18. 'Tloodphtin or fiood-pwne ares" means any land eres susceptible to being inundated by water from may source (see definition of 19. "F/ocdproo~ng"meansanycomhinatinnofstzuc. torsJ and nonstn~cinral -aa_Itions, changes or adjustments to slAmtu~s which reduce or elinfinam flood dama~ to ~ astat~ or improved real prqzrty, water and ssni~uy fa~lidus, structures and their contents. 20. '~axiway" mesns the channel of a river or other watw~ou~c and the edjncent land areas that must be reserved in order to discharge the base flood without cumuladvely increasing the water sudace elevation more than one foot Also referr~f to as "reguhtory floodway." 21. "Functionally dependent use" means a use which cannot pa~orm its intended purpose unless it is leesred or cart'led out in clnse,proximity to water. Th~ term includes only docking facilities, port facifities that necessn-7 for the loading and unloadins of carXo or PaSSenEcI~ and ship-bul/d~ttg and ship-repair fanifidcs, but does not inelude long-~nn stora~ or rehted mneu- facturing fucifities. rn~ clcvation of the ground surface prior to cons~c~on next to the proposed walls of a sh'ucmre. ' 9t. "Lowcsx ~oer" means .the lowest floor of the inwast enclosed area (including basement), An unfinished or ~cod-zusistant encinsure, usable solely for patking of vehiclas, building -c~u or storage in an area other than a basement ~ is not considered a bui~ding's lowest fleet, provided, that such enclosure is not built so as to ~ the structure in violation of the sppficable nonelevation dasign requireman~ of this 24. "Manufzctured home" muus a ~u, ucture, trans- portable in one or more sections, which is belk on a permanent chassis and is designad for use with or without a permanent foundation when connected to the required utilities. l~or ~oodplah management porpusas the term "manufacturai home" also includes park trafi~s, lravel tnliars and other ~imilor vehicles 9]nt:cd on a si~e for lp~tter than on~ hundred ei~hiy consecutive days. 25. "Manufactured home park or subdivision" means a patti (or contiguous parcels) of land divided into two or more mmaofactm~t home lots for sale or rent. 26. "Memn sea level" m~ns for purposes of the Na- tlcoel Flood Insurance Program, the Natlena] Geo~t~c Venicnl Datum fNGVD) of 192g or other datum, to which base fioed elevations shown on a communiW's l?. ~New cous~rucfion~ memos for floatp~in m~neK~- mcnr porl~ses, s~ucmres for which tho "strut of cousu~c- tion' commenced on or ~ the effectlye d~e phin n~nagemcnt re~mhfion adopu~l by tiffs communi~. 28. "Onc hundred-y~r-flood' mesus z flaxl which h~ · one ps~,ent annusl probablli~ of being ~ullad or cxesadaL It is identical to th~ "bes~ flood," which will bc the ~rm used throughout ~s chapter. 2~. "Pc~on" means ma individual or his a~enr, firm, parmersbip. associnxion or corporation, or aforemenlionad groups, or this state or its a~cncias or political subdivisions. ~0. "Remedyaviohfion-mcanstobrinSthcsu. uctlhre or other devclol~nant into complimace with stot~ or local fioodp]aYm management reZnladuns, or if tiffs is not possi- ble, to rcducc the impacts of its noncompliance. Ways that hupacrs may be reduced include p,,;,;,;~rjmg the su~c- ture or other affected development fwm flood damages, implemen ~ng the maforccment provisions of the ordinance or othcrwlse deterring ~ similar violations, er reduc- ing federal financisi expus~e with regard to the su'uaure or other davelopment. 11. "Riverhc"meansrelathg to, fonnaibyorresem. blinS a river (including t~butsries), sircam, brook, ctc. axea having $peciel flood c~ficod-related erusinn imz,ards, and shown on an FHBM or FIRM as zone A, AO, A1-30, A~, A99 or AH. tl. "SX~X of consnucdon" means as follows: a. Includes subs~mafial improvemens, aud means the dare the bin]dins paxnix was issued, fffovidad the acttud ~ of cousmiaion, ropelr, rcconstruaion, placement or ' othen' improvement was within one hundred c~hty days b. The ~cnud sinrt means either the fu~t placemant of pcnnancnt construction of a su'ucturo on a site, such ~' 0CT-05-2000 13:37 BEST BEST & KRIEGEL LLP 909 686 3083 P.47/53 1~.18,050 as the pouring of alab or foolin~s, the installation of piles, the consu'uction of colunms, or any work beyond stage of excavation; or the placement of a manufacO,u'ed home on a foundslion. c. Permanent consuuction does nor include land prcpamtion, such as cle~ing, grading and tilling; nor does it include the installation ofsu'ccts and/or walinvays; nor doc~ it include excavation for a ba,~,,,-n.~, footings, piers or foundations or the orccfion of temporary forms; nor does it include the installa~on on the property of accessory buildings, such as Earages or sheds not oncu- pied as dwelling enhs or not pax~ of the msin su'ucturo. 34. "Sm,,cmrc" means n w'Aled and roofed building, includin2 a gas or liquld s~'a~e tank, xhat is p~actpally a~ove~wund, as well as a manufactured home, 35. "Substantial hnpwvemenC' means any repair, rcconsuuction or improvement of a sn'ucmre, the cost of which equals or exceeds fifty percent 6f the market value of d~ strocmre either: (I) Ix~ore the improvement or repair is stoned; or (3) ff the su-uctu~ has been damaged. and is being restored, before the damage nccurred. Nor te purposes of this definition "substan~hl im- provemcnf' is considered in occur when the lust alter- afton of any wall, ceiling, floor or oter su'ucEoral pan of the building unnuur. uccs, whether or not tha~ al~enxion affects the external dimensions of the siruculre. The xerm does no~, however, include either:. (1) any project for improvement of a structure ~o comply with existing suue or local health, sanity or safety code s~cificafions which are solely necessary to assure safe living condi- tions; or (2) any al~'atlon of a s~raciurc lis~d on d~ National Re~isu:r of Historic Places or a Sta~e Invemay of Historic Places, 36. "Variance" means a/rant of rdicf fxom the rn- quiremcn~s of tis chaptot which permits conswacxion in a manner tat would otherwise be prohibited by chapter. ~?. 'q/ioladon" means Xhc failure of a sa'uco,ue or otha dcvelopmen~ to be fully compliant with the turn or other development without the elevedon ceaifi- cat~ otlzr certifications, or o thor evidence of compliance required in this chapmr is presumed to be in violation un~l str. h time as that tiocumentation is provided. (Oni 0-1~-87 § 2.0, 1~7) 1S,18,060 Lands ~o which fixls chapter applies. This chapter shall apply to all nras. s of special flood hazards, orces of fined-relaxed e~sion hazels and ereas of mudsfide (i.c., mudflow) hazards within the jurisdic- tion of the city. (Oral. 0-1S-87 § 3.1, IS.18,070 Basis for esinbl~h~-_~ the cress of specisl final hazard. A. Theareas ofspcchl fioodhszard, oreas of~eod- relaxed erosion hazards and areas of mudsride (i.e., mudflow) hazards identified by the Fec~al Bmer~ency Management Agency or the Federal Insurerice Adminis- ration in a scientific and engineering report entitled Niood Ix~unnce Study for ~ city of ColEon, ~ Ms~h 19~7, with sn accompanyin~ l~ocd Insurance Ra~ Map is adop~l by reference and declared to be a par~ d dgs chapel. This l:in~l hsonnce Study is on file at the City Hall, 650 Noah La Cadcoo Drive, Colton, Califor- B..~s Flood Insurance Study is the mirthhum area of appficsbility of this chapter and may be suppicmenw, d by studies for other axeas which allow impleman~on of · is ch~er and which ax~ recommonded xo the city council by the floodplain ad~in~'ator. (Ord. 0-18-87 § 3.Z 19g?) lS.I&080 Cemplinnce, No $G-ucwre or land shall bernafter bc consmxcled, lncal~l, exuded, convened or slr~ed without full com- pliance with tetorms of tiffs chapter and other applicable reEuin~ons. ViolaScos of te provisions of this chap~r .by fitilure to comply with any ofi~s requ~exnenxs (includ- ing violations of conditions and safeguards established in connccfiun with condition) shall consfim(e a misdemean- or, Nothin~ in this chap2r shall proveto the city cou~il fi'om ~aking such lawful a~un as ~s necessary to prevent or P,~edy any violation. (Ord. 0-1g-S7 § 3.3, 198T) 1~1&090 Abrogation and gr~.-. r~Tlctions. This chapter is not intended to repeal, abrogate or imp sir any existing easements, covenants, or deed rcsu'ic- tions. Howcva, where this ch~pn:f and another o~dinsncc, e~scmenx, covenant, .or deed restriction confiicE or over- lap, whichever imposos the more sn~ngcnt tusn~c~ons shall l~evail. (O~d. 0-1S-S7 § ~.4, ~7) 1~.18.100 lnferp~ . In the inte4-pre~ion and application of this chapS, all provisions ~l be: A. Considaed as minimum requlremonix: B. Liberally constn~l in favor of tha governing body; and C. Deemed ncidgr to limit nor repeal any other powe~ granted under state statutes. (Ord. 0-Ig-87 § 1987) l~.l&ll0 Warnln_, and disclntmer of liability. A. Thc degn~e of flood protection required by this 348 0CT-05-2000 13:37 BEST BEST & KRIEGEL LLP 909 686 3083 P.48/53 '13.18.110 chapter is consldercd reasonable for ~cZulatory purposes and is bescd on sciontiflc and ugineuiug considerations. Largcr~oods can and willoccurunrm~eccasions. Fiood hei2hts may bc increased by re,--made or natural causes. B. This chapter does not imply that land outside the areas of special flood hazax~ areas of erosion h,,,-,~s and afces of mudslide O.c-. mudflow) from ~eodln8 or flcod damagcs. This chapter shall not crcate liabilky on the ~ of the city, any offiecr or employee ~z~'cof, or die Federal L, xsurancc Administra- tion, for any flood damages .that resull from rcliance on · IS chapter or any adminisxndve decision lawfully made thcreunder. (Ord. 0-18-87 § 3.6, 1987) 15.18.L!0 Development permit---Applicalion. A. A development l~xmlt shall be ob~ned before consmxction or dcveiopment bct,,ins within any arca of spccial flood hazards. areas of ~ood-ralazd erosion hazards or axw.s of mudslides (i.e., mudflow) established in Sectlou 15.18.070. B. Application for a devclopment pennlt shall be --,de on ~orms furuished by the floodplain administxator and may include, but noc bc ~ to, plans in duplicate drawn to scale showing the name, Incadon, dimensions and e|cva~oa of the areain question; calsting orproposcd stnmmres, ~l, smra~ of malerials, drainagc facilities; and the location of the foregoing. 3pecifically, the follow- iug informtalon is x-..quired: 1. Pwposcd elevafion in r~h~on m mean sea level, of thc inwcsz floor (including basement) of all suu~a~s; in zone AO or VO, elevation of highest adjaccn~ grade and proposed elevation of inweat floor of all suncrates; 2. Proposed elevadon in xwls_-_'on ~ me. nil sea level zo which any suncrate will .be floodproofed; 3. All appwpziaxe .cenfficefiens listed in Section 15.18.140(1)); and 4. Description of thc cxienx to which any water- coux,se will be altered or rciocatui as a resulz of pwposcd dcvclopmanL (Ord. 0-18-87 § 4.1. 1987) 15.18,/30 Arlm|,~f. raO~f__D~ignated. The dixccmr of pubH~ wodc~dty enZinenr of the city is appointed to administer and implement this chapter by grandng or denying devclopment penn§re in accordan~c with its provisions. (Ord. 0-18-87 § 4.2, 1987) 1&18.140 Aa'"a'q~trml~,-.Dutles ,_m) resl~mibi!lites. The d~des and msponsibilide~ of te floodplain ~huin. isu-~xor shall include, but not be limited to: A. Pcrmit review: ~49 1. Review all d~velopmen~pesmits m determine ~hat the pezmk requircments of this ~hapter have been antis- fled; 2. All etl~r required sta~ and federal .De~nits have been obtained; 3. The site is reasonably sa~ from flooding; natal, no ncw consu"dction, substantial improvements or other devclopmcnz shsll be pcrmil~ed within zones A1 and AB unless it is demons~xed that the cffea of th~ proposed devalopment, when comliioed wixh all other existing and antictpaled development, will not incrcese the water sin'face alcvalion of the basc flood more thsn one foot at any Imint. B. Use of Othcf BE Fleat Da~ When besc iloai elcvaxion data has not been pxovidcd in accoxdancc with Section 15.1~.070, ~he floodplain adminisxrator shall obmln, x~view and rcasvnably utilize any base flood clcvaxinn end floodway dam awi~hlc from a fcdcral, state or or~f source, in order to adminisxer Sections 15.1S. 150 through 15.15,220. Any such information shall be submitS§ to the city council for adoption. C. Whcnevcr a wa~coursc is xo be altered or cated: 1. Nodf'y adjacent communities and the Calibmia Dcpar~cm of Waler Resotu'c~ prior m such alteration or relncafion of a wa~r. oux~e, end submit evidence of such nolification to the Fedenl Insm'ance Administration; 2. Require that ~he fiood.an~n~ capacky of the alw, r~d or reloca~l lx~inn of said watacourse is main- Xained. D. Obtain and mainlain for public inspection end makc available 'es needed: 1. The ceaificetion xcquix~l i~ 5ection 15.18.150 (C)(I) (floor cleva~ns); 2. The ecrtification required in Scciion 1~.18.150 (C)(2) (clcvazinns in areas of shadow fiondint); 3. TheccnificadonrcquiredinSecxion 15.18.1~0(C) (~)(c) (eiovatien or fioodps'oofin8 of nonrcaidential slruc- tares); 4. ThccenificationrequiredinSeainn 15.18.150(C) (4)(a) or (cX4)fo) (wet ~xtpronfinz mnderd); 5. The certified ciovatinn requin:d in Section 15.18.170(B) (subdiviSion stends~is); 6. ThecexlificationrequiredinSection (floodway encroachmcnts); 7. The rqn~s requirai in Sea§on 1~.18.210(D) . (mudflow s2nderds). I: Makeinrapretelions whaenecded, esm thcexaa locmien of the Imve~,ies of thc sr~as of special flood hanards, areas of fieed-~-,-d erosion hazards or ~rens of mudslide (i.e., miniflow) (for example, where · 0CT-05-2000 15,18.140 BEST BEST ~ KRIEGEL LLP 909 GSG 3083 P.49/53 appears to bca con~jcz bctwecn a mappcd boundary and · aczual ~ald conditions). The penon conroofing the loca- zion of the boundary shall be glvcn aressonablo opportu- nity to aVpeal the inunrpnstadon as provided in Scotions 1~.13.230 and F. Takc action m remedy vloladons of ~ chapzer as specified in ,~don I~.18.080. (Ord. 0-18-87 § 1987) 15.18.150 Standards of construction,. In all arcas of special flood h:,=,rdS the following A. Anchoring. 1. All new constnsodon and substantial improve- merits shall ho anchored m prffent finration, collaps~ or lat~.ml movement of ~ns sn, ucmre rasalting ~om hydrody- nanllc and hydrostatic loads, including th~ cffcc~s of buoyancy, 2. All mannfasted homes shall m~er the anchorin8 standards of Section 15.18.180. B. Construnion Mal~ials a~l Methods. 1. All new conslr~ction and substantial imptoys- merits shall be consn'ucted with materials and utility ~luipmenz rasistant to flood damage. 2. 'All new conslrtlction and subslall~al improve- ments shall be consnmcred using mothods and practices zhar ~ flood dama~. 3. All new construction and substantial improv~ n~ots shall be consm~aed with elcc~cal, beming, vend- lation, plumbing and air neuditioning equipment and otha sen, ice facilities that a~ designed and/or lo~a~l so as m prevent water f~om ent~ziag or accumulating within tbe components during conditions of flooding. 4. R~u~ro within zones AH or AO, aclequar~ drain- age paths around s~ un slopes to guid~ finodwann's arotmd and away .'.ran proposed stowtares. C. l~lcvmion and Floodproofing. I. New consmnion and substamial In~provc4nent of any smscmr~ shall have the lowes~ floor, including base- ment, allyatoll to or sbovs zhs base flood clsvation, Nonresidential strucnn'es may meet ~ standards in subdivision 3 of ~his subs4~'tion. Upon completion of sn'ucmr~ tho e.~va~on of the lowest floor including ment shall be cenifi~ by a ragist~,ed professional engi- neer survcyor. Such certification or vui~cafion shall be proyield to the floodplaln adminisuaWr. 2. Ncwcons~mctionandsubszantislimpmvemantof any slrueture in annc All or AO shall have ~ lowest floor, Inclu~ling basement, clevar~ above ths highest mija~t Srade a~ lenst as high as the depth number speci- fied iufect on zh~ FIRM, or al least iwo ~ if no d~pth number is sl~cffi~. 350 Nomcsidcnfial sn'ncmros may m~ct the standards subdivision 3 of mis subsecdon, Upon completion of tho s~ucmre, th~ elevation of the lowest floor including basement shall be enr/i~ed by a re~ister~ pm~sslonal engines, or Suah codification or verificetien shall be provicl~ m th~ floodplain sdvd~;entor. 3. Non~sidonfial consnction shall either be . in oonfonnanc~ with subdivision 1 or 2 of this Subsenion or tog~thor with auendant utility and sanir,~'y facililies: a. Bsfimx[pmof~dsothatbolow~hsbasefioodlevel the s~ucmro is v/a~rtight with walls substantially pern~- ablo to the passage of wazer;, b. Have slrucmral components caFablo of rsisting hydrosrati~ and hydrodynamic loads and effects of buoy- aucy; and c. Bc ceaified by a z~gisl~n~i profassimlal engineer or archizec~ ~ha~ r/m standards of this subsection aro sadsfisd, Such ec~ificadons shall be provided to floodplain adminisu'amr. 4. Rntuire, for all new conslnnion and subs~amial imFmveme~s, ~ha~ fully enclosed areas holow th~ Iowast floor thaz am subjecz to flooding shall be designed to m~'omag~ally ~qualize hydrosm~io flood foz~,s on e~c~rior walls by allowing for the enlzy and exit of floodwaters. Dasigni for me~dng this requirement must either be certified by a r~gistered professional engineer or architect e. ERheraminimumoftwoopeninRshavin8atotal n~ az~a of not less than ono squ~e inch for every squaze foot of enclosed aren subject to flooding shall be proHd- ed. Tho boUom of all openinSs shall be no higher than One foot above grade. Openings may be ~quipped with screens, Iouven, valvns or other cov~'ings or devices; p~c, ided, ~ they permit ~ notomati~ cnff!/and exit of floodwaters; or b. 'Bo o~ified to comply with a lnosi flood-proofing stalldistal at~oved by ~he Fedelll Inqffallco tion. ~. Manofactoredhumnsshallalsomeet~hestsndards in Section 15.18.I~0. (Ord. O-18-87 § $-1, 19S7) 15,18.164) Stsndsrds for utilities, A. All new end replacement war~r supply and sani- tary sewago systems shall be tinsigned to minimize or e~minam infiltration of ~oodwazcn into the sys~'m and discharge fzom systems into floodwaters. B. On-sire was,,. disposal systems shall be located to avoid impairment to them or con~minstion ~c,,, ~ during flooding. (Ord. 0-1~-87 § $,2, 1987) 1S./8.170 Stzndards for SUbdivldan~_ A. All~srysubdivisionproposalsshallidenti, 0CT-05-2000 13:3B BEST BEST & KRIEGEL LLP 909 686 3883 P.50/53 '15.18.170 fy the flood h~,~-I araa and the elevation of the base floe& B. All final subdivision plans shall providc the eleva- tiun of proposed su'ucture(s) and l~ads. If the site is ~lk~d above the bare ~oczd, the final pad alevation shall be cerliBed by a registered pzofessinnal en~ neor or sun, eyor and provided to r~e floodplain C. All solxfivisinn proposals shall be cons§surer with the need to mio~mlv~ flood dotcage. D. All sob<llvisinn proposals shall have public utili- tins and facilirins such as sewer, l~ar, electrical and water systcnls loca~_.d and constructexl to min]rn;~e flood dam- E. All sulc~ivlsiosls shall pwvide ~e~uale drainage to reduce exposure to flood hazards. (Ord. 0-18-87 § 1987) 15.18.180 Standards for mnnufacmred homes, A. The following standards shall apply m all manu- factured homes that are placed or substanfielly improved within zonns A1-30, AH and AE on the community's flood insurance raze map on sizes thai arc 1) outside of a manufactured home park or subdivision, 2) in a new manufaumred home park or subdivision, 3) in an expan- sion to an existing manufactured home park or subdivi- sion, 4) in an exis~n~ manufacnlred home park or subdi- vision on which a mariufzcnszcd hotlie has incurred "sub.. stantial damage" as the result of a flood: 1. Be alevareii on a purinanun: foundarion such thai the lowest floor of the manuf'actored home is elevated to or above the bar~ flood elcvatinn and be securely chomd to an adcq,,~r,,~y anchored foh-6;,_ton sys~n ro resist floatorion collapse and lot. oral movement. Z Sizes located within zones V1-30, V and VE on the commurd~y's flood insurance rare map will me~t the szandercis of Section 15.18.210 below. B. All toanufacturcd homes to bc pLr, ed or substan- tially improved on sites in an exisdng manufactured home park or sulxfivision within acuns AI40, AH, V and VE on the colDznunity's flood insurance rate map that arc: not subject to the provisions of subsection A of this section will be elevazed so that eltha:. I. The lowesl floor of the manufactured home is or above the base flood elevation, or 2. The manufactured home chassis is supix)lied by rcinforcat pien or other foundation elements of at least equivalent strength thaz are no less than thirty-six inches in height above grade and be securely anchored to foun- dation sysrtm to zesis~ fioa,~ation, collapse, and lateral movement. (Ord. 0-1-92, 1992: Ord. 0-1~-87 § 5.4, 1987) 15.18,190 Heedways. Located within areas of special fic~xi h-;tni nstab- lished in Section 15.18.070 m'e arens desi~-fed ns floodways. Since the floodwa) is an extremely hv2rdons are~ due to the veleci~y of fioodwaw.~ bris, potential proje~ilns, and erosion potential, the fui- §owing provisions apply: A. Prohibit encwachn~ls, including ~l, new con- slructlon, substantial improvements, and other develop- ment unlnss certification by a registotal professional engineer er archin~-z is psuvided demonstoting that enczoachmenu shall not re.sult in any inkease in flood L-veis during the occurrence of the base flood dischsrge. B. If subsecfion A of this sc~tioo is satisfied. all new construction and substantial improvemenls shall comply with all other applicable flood ~n,~ni reduction provi- sions of Sections 15.18.150 through C. Prohibktheplacementofanym~-uf~tu~dhomns except h an existing manufaciured home park or subdlvi- sion. D. If no floodway is identified then a setback of fifty fe~t from the bank(s) of the wa~r~ourse will be estab- lished, whero eneroachmen~ will be prohibited. (Ord. 0-18-87 § 5,5, 1987) 1~,18.200 S~na~,rds Eor sterage of and equipmeut. k The sn;z'age or processing uf rnau~als rh,r arc in dine of ~oodi~ buoyan[, ff:~mmable, explosive or could be injurious to human, animal or plant life is pwhibitcd. B. Swra~c of Other malarial or equipment my be allowed if not subjac~ to major damage by floods and fmnly artchoral to prevent fiomtinn or if reaclily remov- able from the area within the zkne available ax~er flood warnint. (Ord. 0-18-37 § 5.6, 1987) 15.18-210 Mudslide (i.e., mudfiow)-prone sreas. A. The floodplaia admlnisWator shsll review perrobs for pwposed consm~ctlon or other development to deter- mine ff it is proposed within a mu&l;d6 ares. proposed development is rexsunably safe from mudslide hazards. Facton to be considered in nudcing this determl- nazion include~ but are not limited 1. The type and quality of so§is: 2. Bvldcacc of 8roundwa~r or surfacewazer psub- . lures; 3. The depth and quality of any fill; 4. The overall slope of the size; and 5. The weighs: thor any proposed development will impose on the slope. 0CT-O5-2000 15.18.210 13:38 BEST BEST ~ KRIEGEL LLP 909 686 3083 P.51/53 C. Within areas which have mudslide hazards, the following zequircmcnrs apply: 1. A site invudgadon and fo.qha r~view shall be .made by F. rsons qualified in geology and soils engineer- 2. Th~ proposed gradinll, e:,eavafion, n~w constoic- don and substantial improvements shall be design~l and proz~'~ed against mudslide damages; 3. Th~ proposed gn~ding, excav~ons, new consreac- tion and substantial improvemonts do not aggtavam Zbe existing hazard by crentin~ sither on-sire or off-slw dis- 4. Drainage, planling, watering and maintcnanc~ shall not endanger slope stabillty. D. Within zone M on the Flood lnsorance Ra~ Map, the community shall adopt a drainage ordinance which at least complies with the swandaz~s of Secaons 7001 fl=ough 7006 and Sections 7008 thsough 7015 of the most r~aent amendment of th~ 1973 Uniform Building Code: 1. Th~ location of f~undation and utility sys~ms of new consnction end substantial improv~nents; 2. The location, drainago and malnx~nan~ of all eneavalions, cuts and fills and planu:d slops; 3. Pwt~tive measures including, but not limiusd v:2ining walls, bum~ss fills, subdrains, dlvener tarracas, benchings, et~.; and 4. Hngin~'ing drawings and spr~;i~ations m be submitted for all corre~ive measo~s, a~companied by supporting soils en~!n~ring and geology ropons. (Ord. 0-18-87 § 5.7, 1987) 1S.18.22~ Floo~-related eg~lon-pron~ areas. A. The fic~Iplain adm;~is~ator ihall require permils for proposed consu'uction end other dcvelopmen~ witbln all fiood-relaw, d ewsion-prone areas as known Io community. 11. Such permils shall be revinwed to dew. nninc whether tho pwpos~d si~ aheAmions and improvaments wili be r~asonably safe from flood-rH~,ed erosion and will not eanso fiood-r~lated ~rosion h~--_,,ds or o~henvise C. If a pmposod improvoment is found m bc in pith of fiood-reaaW, d ~roslon or would increas~ the ero- sion b----d, such improvement shall be re. located or sdequa~ pmte~ivc measuz~s shall be taken to avoid aggravating the e, xisting en~sioo hazard. D. 1. Wizhln zone E on rbs Flood Insoraneo Ram Map, a setback is r~luired f~r all nnv devclopmen~ rwm the ocean, lake, bay, fiverfnmt or o6~r body of wa~t c~-~,L a safely buffor consisting of a natural vegarelive or contour swlp. 352 2. This buffer shall be designa2d according to the float-related erosion hazard and crnsion ra~ in relation zo ~e anticipated "uSeful life" of structures, and depend- ing upon the gnologio, hydralogic, topographic and clima. tic characralstics of the land. 3. The buffer may be used f~r sulzshin open space purposes. such as for agriculnnl, forasuT, outdoor recre- ation and wildlife habi,,e areas. and for o~her activities usinZ rcmporany and poaable suuco3ses onty. (Oni 0-18- 1S.18..~0 Varis,~_,? procedm'e--Appeal board. A. The city council of the city shall hear and da:itic appeals end'ratucsts for variances from the requiramenrs of this chapter. B. The city council shall hear and decide apl~2ls wben it is alleged thgre is an error in any requirement, .d~ision or determination made by the fio~xlplaln admin- mslrator in the enfomement or adminlslrmion of~ds cbap- C. InPaasinguponsuchapplications,~hechycoancil st~ll consider all ~echnlcal cvsluations, all relevant fac- tors. standards specified in other s~dons of rbls cbsp~er. 'and: I. Thcdangor~hsrmazerlalsmaybeswep~ontoother lands to the inju~ of others; 2. The danSer of life and pwln.ty dun ~ flooding or ~rosion danm~; 3. ThesnscepZibili~yofthepwpsedfa~lliWandlis contents to flood rlnmage and the e~ect of such demage on the individual ownS, 4. The importance of the services provided by the proposed facility m thn conunuhity; 5. The necessity 1o the focifity of a wa2dron~ loca- tion. where applicable; 6. The avallabillty of alenative locations for the proposed use which are not subject to flooding or erosion 7. The enmi3alibiliW of the propose4 nsn with exis(- iag and anticipaled development; 8. Thnrelalionshipofthepwpnsedusctolhecom. prcbensivc plan and floedplain managcmsut program for 9- The safety of access m tho property in time of flood for ordinary and eme~geacy vehiclas; 10. The expccl~i heighu, velocity. duration, rain of rise, and scdimsdt Uansport of the floodwatch expected at the al|c; and 1 I. The oosls of providing gova'nmenlal scrvicu durlnt] and afar fioed eondidons, inclnding mainnance end rq~air of public udlilies and facilids such as sewer. gas, eincuie and water syslcm, and sirnets and bridges. , 0CT-05-2000 13:38 BEST BEST & KRIEGEL LLP 909 686 3083 P.52/53 1~.18.230 D. Gsnn'ally, variants my be issu~l fat amy con- slzucdoa and substantial improveheats m b~ ere~c~l on ' a lot of one-half sere or less in size contiguous m and surrounded by lots with axistinZ sm~ctures eonsn~eted below ti~ base floral le~.l, providin~ subdivisions 1 tin'ough 11 ofsubseaion C ofthls sealon have been f~lly considered, As th~ lot size increases beyond one-half acre, the technical justification requir~l for issuing th~ E. Upon consideration of dz racers of subs~ction C of ~ scotion and th~ pur~ses of figs chap~r.r, th~ city council may affach such cenditions ~o th~ grantin~ of vadances as it deems ocet. ssary m fu~her th~ purposes of this chapter. F. The floodplaln ~lmlrfiSlratOr shall maintain the records of all apt~l actions and report any variances ~o the Pcderal Insm'znce Administration upon reque~L (Oral. 0-18-87 § 6.1, 1987) 15.18.240 Conditions for variances. A. Variances my be issued for ~e reconsu'uction, rehabilitation or restoration of streetares Listed in National Register of I-rntoric Places or ~e Slate Invento- ry of Historic Places, without legald to the procedures set foffh in the remainder of this section. i. Variances shall not be issued within any designat- ed floodway if any ima'ease in flood levels during the base flood discharge would result C. Variances shatl only be issued upon adetermlna. tion that the varianc~ is the mln;m~m neeessay. consid- ering the flood hazard, to affcrai relief, D. Variances shall only be issued. upon: I. A showing of good and sufficient cause; 2. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and 3. A determination .that tbe granting of a variance will not resuh in increased flood heights, additional threats to pubic safety, axtraor~;--,y pubtic expunse, mate nuisances, cause fraud on. or victimizatlon of the pubBe, or coiLflier with existillg local laws or onii~ances. E, Variances may be issued for new consiruefion and substantial improvements and for other developmant necessary for the candraft of a fllnctionally d~pandent use provided that the provisions of subsections A through D of this scotion g satisfied and that the sm~ctore orethor development is prof~ted by methods that minimize flood damages during the base flood and clea~ no additional thleim to pubno safety. F. 1. Any applicant to whom a variance is granted. shalI be given written notice that the stoictore will be permitted to be built with a lowest floor elevation below the regulatory fi~xI elevation and that the cost of flood insurance will be commensura~ with the increascd risk resultin~ f~m the reduced lowest floor elevation. 2. A copy of the riodee shall be recorded by th~ ~oedplalo beard in the office of the San BemanLino coanty i'w-~n~ and shall be recorded in a mannes se that i~ sppears in tha chalo of titie of the affected parcel of land.(Ord. 0-18-87 § 6.2, 353 0CT-85-2888 1~.20.010 13:38 BEST BEST & I<RIEGEL LLP 989 686 3883 P.53/53 Chapter 15,20 STANDARD SPEt~aVlCATIONS FOR PUBLIC WORKS CON~'fRUCTION Sections: 15-~0.010 Adopted. 15,20.020 Penalty for viohtio~ 15-?,0.010 Adopted. The provisions of the 1976 edidon of u%e "5$andard Specifications for Public Works Consu~cdon," Fparexi and pmmulgai-_xl by the Southern CAlifornia Chap~rs of the Amcdcan Public Works Associmiou and zbe Assucial- ed General Conhacmn of C~tf~mh, arc adopted and applicable to aH public works consncdon undevakn afar the effective dam of the ordinance codfled in dtis chapter. (Oral, ~512 § I (pro), 1977) 15.20,020 Penalty for ~iohtion. h is unlawful for any porson, ~,m. or corporadon to erect, install, .alter, repair, remove, convert, demolish, or cons~uct any public works impmvemenZs in lhe dty or came the same mo be done, conlrary to or in violalion of any of the provisions of these sZandard specifications. Any person, firm or corporation violaHnz any of the pwvisinns of rkls code is guilty of a misdemeanor, and each such porson is guilty of a sepaira~ offcnse for canh and every day or portion thereof during wl~ch any ~iola- tion of any of ~ho provisions of lhis code is cornmitre, continued, or [~miv. cd, and upou conviction of any such violation, such person shall be pnnl,hable by a fin~ of more than three hundred dollan, or by iml~isonment of not more than ninety days, or by both such fine and imprisonment (Ord. 1512 § 1 (,van), 1977) 354 Cha~ter 15~4 FENCES Sections: Lq~A.010 15~4.020 15,24.040 15.24.050 15~L060 1U,4.070 15.34.080 DermilionS. Oassifica~on. Hdgbt sad location. Fences n~luired--pods. Electric and barbed wire fences. Enforv. mont 1524.010 Dermifinu~ The meaning of mum set forth in this cJ, mpter shall have rh~. meax~ as defined in ~he zoning ordinance. (Ord. 0-13-87 § I, 1987) 1524.020 Cinssifica~on. All fences and wails in thc city, whcd~r cons~-uc~exi or of nannal growth, shall bc classified as follows: A. Clnss h mnsomy, cnne~t or similar type mat~- al; B, Class 2: ornamcn~l iron or ~ type material; C, Class 3: w~ven wire wi~ either wood or metal pore: D. Class 4: wooden ma~al (or similar type mated- als) where at lensz fifty percent of the area x-emalns open; E. Class 5: all fences uoi or~se cla~ directly or indirecdy, including hedges or other objeczs of uamral ~ creating an enclosure 'or sight-z~sric~v~ objec~ (0 rd. 0-13-87 § 2, 1987) 15,24,030 R~i~t and Ioc~flon. A. No foucc or wall in e~,ss of zh~a feet in lgight shall ~ lunmit~l in tl~ front yard s~baek area or side yard of a corner lot adjacent to a key 1o: of any residential pmporty except ~s provided heroin. Fences of Class 3 shall bc permitled in said fi'ont yard providing such. fence' shall noz ~ fivc f~et in bright mad the opcnings shall not be obscored in any way nor designed in any way Io interfere wilh pedeslrian or anw driver view. B. No fences orwalls in excess ofsix focZshall be permitted in ~ side or rear yard of any propen!/excapz ss follows: 1. Feneas and walls in a buildable'az~a may exceed sixfc~ 2. Punors and walls promc~ing slorage yanls or a legal business or of a public utility yard may ex_cee,! six feel Federal Emergency Management Agency Washington, D.C. 20472 JUN I 6 2000 Ms. Malissa Hathaway McKeith 4993 Ginger Court Rancho Cucamonga, CA 91737 Dear Ms. McKeith This is in response to your letters received on June 8, 2000, which were addressed to Director WiLL and me, regarding the Deer Creek Debris Basin in San Bemardino'County, Califomia. As you are aware, at the request of The Honorable Barbara Boxer, United States Senate, we have written to both the U.S. Army Corps of Engineers (US ACE) and to San Bemardino County officials to clarify the Federal Emergency Management Agency's (FEMA's) position on the certification of the Deer Creek Detention Basin by the USACE and the effects of this certification on local floodplain management and flood h~.ard mapping. The USAGE has previously certified lht the Deer Creek Debris Basin will provide protection from the base (l -percent-armual-chance) flood. Under separate cover, we transmitted the report entitled "Evaluation of the Debris Storage Capacity of the Deer Creek Debris Basin," prepared by Exponent, Inc., dated April 26, 2000, to the USAGE for their review to determine its effect on the certification of the basin. Because the USACE is the recognized expert within the Federal government on the design and construction of flood control projects, FEMA policy accepts the USACE certification of flood control projects. Once the USACE has issued its certification of a project, FEMA is required to change the Flood Insurance Rate Map (FIRM) to reduce or eliminate the Special Flood Hazard Area (SFHA), the area inundated by the base flood, to reflect the project's protection. Because the Deer Creek Debris Basin continues to be certified by the USACE, the downslope area is designated Zone X, an area outside the SFHA. We want to take this opportunity, however, to emphasize that in a situation like this, FEMA is committed to ensuring that a thorough review of the Exponent report is accomplished to be certain of an accurate determination concerning the certification of the Deer Creek Debris Basin. As part of its floodplain management practices, a community may elect to use the FIRM issued by FEMA or impose stricter criteria, which could still restrict or prohibit development in the area protected by the flood control project. In many parts of the country, communities are prohibiting new development and rejecting attempts for the constraction of flood control projects. If the USACE's review of the above-referenced report results in the de-certification of the Deer Creek Debris Basin, a revision to the FIRM would be required. Additional analyses would need to be submitted in support of the revision to determine the extent of the flood baTard downslope of the basin. In addition to the review of the above-referenced report, the Operation and Maintenance Plan for the Deer Creek Debris Basin should be reviewed to determine if the activities described in that plan have been carded out by the agency responsible for the maintenance of the basin. In order to maintain certification of the basin, this plan must remain in effect and be implemented in accordance with the plan. As you are aware, we have requested this determination by both the County and the USACE. If the agency responsible for carrying out the plan cannot comply with the activities listed therein, then the basin will be de-certified. 2 We will inform you of FEMA's future actions with regard to continued accreditation of the Deer Creek Debris Basin upon our receipt of the USACE and Sax! Bemardino County's responses. Sincerely, Mic2~ Associate Director for Mitigation CC2 The Honorable Barbara Boxer U.S. Senate The Honorable Dianne Feinstein U.S. Senate The Honorable Joseph Baca U.S. House of Representatives The Honorable Gray Davis Governor, State of Califomia Mr. Joseph Evelyn Chief, Hydrology and Hydraulics Branch USACE, LA District Mr. Kenneth Zwickl Planning Division USACE, Headquarters Mr. Dallas Jones Director, Califomia Office of Emergency Services Mr. Ken A. Miller Director, Department of Transportation and Flood Control _ ,. San Bernardino County Mr. Mike Fox Chief, Water Resources Division Department of Transportation and Flood Control San Bernardtoo County Mr. Jack Elckidge Chief, Community Mitigation Programs Branch FEMA, Region IX Mr. Dean G, Dunlavey Latham & Walkins Mr. Andre~v K. Hartzell ,./ Hewill & McGuire, LLP Federal Emergency Management Agency Washington, D.C. 20~-72 APR 19 2000 Mr. Roboft J. Cristiano, Ph.D. 1151 Dove Street, #295 Ne~:,oR Bear. h, CA 92660 Mr. Cdsdano: This is in r~sponso W yot~ letter date. x/March 5, 2000, regarding propon~ th~ you own in t~ City of Rancho C,t~monga~ Califomla. You ~t~d that an abarglon~t ~ I:~'m, previously known as the Deer Creek reception levo¢, is located on your property. You requested clarification of s~s,prn. ents contained in a September 4, 1997, letter to The Honorable William Alexander, Mayor of the City of Rancho Cueemonga. You requested clarification as to whether the Federal Emergency Management Agsney has cex~ified the Deer Cnr..k nxeptinu leve~ and if that eertific~.ion is still valid today. You asked if tho Deer Creek reception levee is par~ of any cuxrently operating flood enmrol system and, if it were removed, would it change the eraTent Flood InmUanee P,~te Map (HRM) and cause homeownen below the levee to purchase flood insunmce. You s~;d that the certification oftho Deer Creek Debris Basin by the U.S. Army Corps of Engineen (USACE) is being challenged, and asked ifde-cttti~eefion of the Insin would chsnge the FIRM and require residents to purchase flood insurance. Finally, yon re. quested elabo,~on on the criteria used to credit an earthen berm with providing pro,e~inn from the base (1-percent-annual-chance) flood. Our $ to your questions are summarized below. The September 4 letter states that the Deer Creek rectpfion levee "was ¢redRed on a previously effective FIRM for the CRy of Raneho Cueamonga, doted September 5. 1984, with p,oviding protecdon from the base flood." Please note that the Deer Creek reception levee 'was credited on ~c FIRM before the curroot Icvcc rcquiroments wore implemented. At this time, we do not have enough information to detmmine whether the Deer Creek reception levee will provide p,~tcction from the base flood. Subsequent to the issuenee of the t 994 FIRM for the City of Rancho Cucamonga, the USACE construerod the Deer Creek Dobris Basin upslope of the ~ Creek reception levee. That detention basin was certified by the USACE as providing base flood protection to mcas downslope and, consequently, exedited with providing such protection on the effective FFRM for San Bemardino County, California and Incorporated Areas, dated March 18, 1996. The Deer Creek reception levee is not a part of this flood control systtm, and its removal would not result in a revision to the FIRM or change flood insurance requlrement~ for those homeowners below the levee. If the Deer Crook Debris Bssin wen: de-nttti~ed, a revision to the FIRM would be required. Analyses would need to be submitrod in support of the rovision to determine the extent of the flood b,~rd downslope of the basin. As stated in our September 4 letter, we must xeceivo documentation "demonstrating that all reasons which preclude us from continuing to credit the detention basin with providing base flood protection, do not also preclude us from continuing to credit the levee with such protection:' Therefore, we must receive documentation to show that the levee can be credited with providing base flood protection_ The tt,i., submittal tequittments pertaining to icycos arc destribal in Section 65.10 of the Nmlotml Flood/nsurance Program (NFIP) reguhlinns. The data submittal requirements lgrmining to mctured flood control )O0/ZOO'd )tO0# dd-sd-ZR/"tr~Ra )OlCg~gZOZ 9~:9i O00Z,OZ'Ea~ measures in areas subject to alluvial fan flooding, such as the: arcas downslopo of whe~ ]:)t~r Canyon exits the mountn;, front, ar~ described in Section 65.13 of the NFIF regulations. A copy of the NFIP regulations is enclos~ for your use. Wc trust you havc found this informatioli helpful. If you have further qualions rcgarding this matt0r, please conta~tme in Washington, DC, citkr by t~lcphone at (202) 646-2878 or by facsimile at (202) 646-4596. Sincerely, " Michel Grimm Project Officer, Team West H~-~/s Study Bmch Mitigation D~ Ev.~los~r~ ~O0/~O0'd ~L00# dd-Sd-ZRArR2a ~OIEg~gZOZ L~:9I O00Z,OZ'~aV -, Federal Emergency Management Agency D~ M~ McKei~: ~s is ~ ~g to yo~ le~er dated Feb~ 17, 1~9, regging ~e cff~tiv~ Flood I~gee ~te ~p ~IN for ~ Be~o ~, ~ifo~ ~d Ingo~mted ~- In yo~ lell~, you expr~ed ~n~ over ~e propos~ r~oval of a ~on of a levee l~ed on ~e ~luvi~ f~ do~lo~ of Deer ~yoa in ~= Ci~ of ~c~o Cu~ong~ CallroSa- On a previo~ly effec~ve FIg for ~e City of ~cho Cu~onga ~tcd Sept~ 5, 1994, ~e leve= ~ credited ~ p~iding pm~tio~ ~m ~e ~ ~ving a 1-~ent c~ce of being equaled or ~cced~d ~ ~y given y~ ~ ~o~). In a Lette~ of Map R~sioa ~OMR) dated Aug~ 19, 1~1, ~ FIg ~ ~gd ~o ~ow ~e effcc~ of a d~bds ~in d~igned by $= U~. gY Co~ of~gin~ ~SAC~ ~d ~ u~o~ of~ I~ ~c dgb~s ~ ~ ~by~USACE~provid~g~gpmt~gnjodo~loFg~s da~ed Mgh 18, 1~6, re~ ~e 1991 LOM~ Yo~ leuer ~ed ~ ~ sup~ ofde~i~on of~g deb~s ~i~ ~ indi~g ~e need for ~e I=vec. ~ i~ concern ~e ~ sto~gc ~gW me~ ~d by ~c USACE in 1992, &~ o~ncd ~o sho~ ~at $e b~in ~ a lower sto~ge ~ci~y ~ it ~d when o~Hy built. ~d ~m obtained since the 1991 LOMR to show ~at ~g b~in should have a grater sto~g= ~pacity ~ i~ o~gi~l d~ign ~clty- o~er to ~ ~e Ng, we m~t r~eivc ~ n~ ~ including engine~ng ~y~, ~o for ~qu~ng ~p revN~0ns ~ d~fi~ in g~ 65 of ~= National FI~ Im~ce Progg ~FIP) regu{atiog. ~e' da~ submill ~uircmen~ ~i~ng to le~ ~e d~ in 8~on 65.10 of ~e ~I P ~g~a~o~ ~e dam ~b~ gqu~m~ ~g lo s~c~ ~ ~n~l mg in ~ subject ~o ~luvN f~ ~ng, su~ ~ ~c m do~lo~'ofwhg D~ ~yon ~i~ ~e mo~min ~nt, g d~ in S~ion 65.13 of~NF~ ~gulatio~ Ifsu~ci~t &m ~s~ to shgw ~t ~e b~n ~ot pm~de ~ ~ pmt~on, g ~Y ~ ~abtg to ~ntinue to c~k ~= l=vee ~ su~ p~t~tion. In ~ddifion, in order to m~p ~ in ~g ~ci~ of ~d con~l s~c~ ~t we ~ot ~dit ~ providing b~e ~d p~tectio~ w~ require analys~ of ~t flooding situation ~ ~ the s~ in pta~ ~d o~fing ~ intende~ ~d ~out ~= sl~ctur~ in 2 We am enclosing a copy .of the NFIP regulations and a set of detailed applica3ion and certilication forms to aid you in organizing tim document' tion we will need to revise the FIRM. ple-ase note that Form 1, entitled "Revision Requ%vter and Community OfliclaI Form," requires acknowledgment of any revision request from a community officiai. The Federal Emergency Management Agency has implemented a procedure to recove~ costs associated wltli reviewing and processing requests for modifications to published flood information and maps, The initial fcc fdr revision r~ucsts involving structural flood control mcasun:s in areas subject to alluvial flm flooding is :I;5,000. Costs beyond the initial fee are assessed at a rate of $50 per hoar. We will not begin our review of a request until we receive the initial fee. After we have completed our revlcw and before wc issue our determination, we will send you an involcc for any outstanding balance, Alter wc receive any outstanding balance, we will send our determination to the Chief Executive Officer of your cormmunity, with copies to you. Wc will kccp the City informed about our processing of the data submiUcd. If you have any questions regarding this mattcr, piearc contact Mr. Max Yuan of my staff in Washington, DC, either by telephone at (202) 646-3843 or by facsimile at (202) 646-4596. Sincerely, Matthew B. Miller, P.E., Chief H=Tnrds Study Branch Mitigation Directoram cc: The Honorable William Alexander t/' Mayor, City ofRancho Cucamonga DIANNE FEINSTEIN CALIFORNIA q.:lnitetl States Stnate WASHINGTON, DC 20510-0504 June 27, 2000 COMMITFEE ON APPROPRIATIONS COMMITTEE ON THE JUDICIARY COMMITTEE ON RULES AND ADMINISTRATION Mr. Andrew K. Hartzell Hewitt & McGuire, LLP Attorneys At Law 19900 MacArthur Boulevard, Suite 1050 Irvine, Califomia 92612 Dear Mr. Hartzell: This is in response to your letter regarding the Deer Creek Basin in Rancho Cucamonga. Please be assured that neither Senator Feinstein nor any member of her Califomia staff have taken a position on the merits or demerits of the proposed development. This matter is being treated as a constituent request for assistance with a federal agency. As you are well aware, Ms. McKeith and the other residents adjacent to the Deer Creek area have raised concems about the Army Corps debris basin flood capacity studies and the Federal Emergency Management Agency's reliance on those reports. This office, along ~vith other Congressional offices, has asked the departments to insure that the residents' concerns are answered. Thank you for contacting our office. Should you have any questions, do not hesitate to call me at 415/536-6868. With warmest personal regards. Sincerely yours, James L. Lazarus State Director FRESNO OFFICE: 1130 O STREET LOS ANGELES OFFICE: SAN DIEGO OFFICE: SAN FRANCISCO OFFICE: January5,2000 Mr. Andrew Hartzell Hewill & McGuire, LLP 19900 McArthur Boulevard Suite 1050 ir~'ine, Califomia 92612 Dear Mr. Hartze[l: This is in response to your letter re~,ardin~, the Lauren Development. Please be assured that I have taken no position on the merits, or demerits, of the development proposal. My office was contacted by nearby residents concerned about the scope of review given flood plain issues by the Army Corp of Engineers. i, along with other members of the California Congressional delegation, have urged the Army Corp to provide both proponents and opponents with the fullest possible review of the flood issues. In fact, as you point out, development of the site may pose little or no risk to new or existing residems. However, in my opinion, the life safety. concerns raised by the residents deserve a thorough stud),. Recent costs to the Federal Emergency Management Agency and the Federal government from damage to property, constructed on flood plains throughout America should have taught us no less. Wilh warmest best wishes for the New Year. Sincerely yours, United States Senator Robert J. Cristiano Ph.D. 9 Aurora Irvine, CA 92612 Senator Dianne Feinstain C/o Ann llurst 331 Hart Senate Office Building Washington D.C. 20510 Deer Creek reception levee Rancho Cucamonga, California Dear Ms. I-iurst, I am disturbed. I am a constituent of Senator Feinstein's. I am a law-abiding taxpayer. All I have attempted to do is build 40 homes on zoned residential property within the City of Rancho Cucarnonga. I have followed every municipal code. followed every state law, an honored the dem.~nds of every agency at a cost of hundreds of thousands of dollmrs to earn my entitlements. Opponents to my project have sued the City of 'Raneho Cucamonga and me nine separate times. Superior Court Judges, District Court Judgesand Appellate Cotwt Judges have decided in our favor on every claim. Each local, county, state ~md federal agency that has investigated the "so-called" safety issues affecting my project has found the claims to be based on inaccur,~te or false assumptions. This includes most recently, FEMA, at the request of your office. Yet, your office treats me --,s if I am a criminal, guilty before being proven innocent. Obviously I refer to the prej edieial treatment 1 have received from your office. And the preferential treatment provided to my opponents. Here is some background information about the people you have decided to support: SAFETY ISSUES: · I n rent ads, opponents claim the earthen berm on my property is 40 feet high. 120 feet wide, 6,000 feet long, armored with rip-rap, built by the Army Corps of Engineers, and a multi-million dollar federal flood con~ol structure whose removal will cause mudslides like tl~ose n~entty in Venezuela. -Each of these statements was known to be false when made. · Opponents have c-laimed, in public testimony, that the Los Angeles office of~he Army Corps of Engineers is "con_~pi~ng" with the local Flood Control District. That is why they demanded the Washingmn D.C. office of ACOE to respond. - Vv'hen the Washington D.C. office supported 'the determinations of the LA office. public testimony by the opponents accu;~ed the ACOE of "covering their asses". Mr. Hawkins stated publicly that thf: ACOE letter was "more fiction than fact". Opponents again said in public testimon~y that if FEMA determined it safe to remove the levee, "this battle is over". When FEMA made its determination, opponents, in public testl mony, again decried foul play - the wrong rainfall dala was used. LEGAL ISSUES * Ms, McKeith, leader ofthe opponents, publicly claims that ifthe levee on my property is removed, thousands of people downstream will have to obtain flood insurance. This is a false statement. More alarming is the fact that she is now atte, mpting to de-certify the Dc~r Creek Debris Basin, a fedorally funded project that provides 100--year protection to thousands of families. If she is successful in her efforts to de-ccrthey the Deer Creek Debris Basin, thousands of people have to buy flood insurance. Her claims are contrary to her own actions. , McKcilh, a lawyer who lives in the community, has filed multiple lawsuits against the City clairaing conspiracy, presence of endangered species, rare plant habitat, need for water re-charge, presence of blue-llne streams, Indian burial grounds, seismic, flood, and other equally specious ~hargcs. Each charge, at a cost or hundreds of thousands of dollars, has been proven to be false or rounded on inaccurate facts. McKcilh has also unsuccessfully sued the California Department of Fish & Game over their issuance ors 1603 permit. , The homeowners associations have sued the City three times claiming my property is open space. This despite the fact that ',dl or their homeowner documents have shown since 1988 my property to he developed as 40 homes. The first case was dismissed, thc appeal denied, and thc third ~ksc heard on February 241h o f this year. - In 1999, the homeownc~ rcqueatcd the courts issue a temporary restraining order Io block development four separate times. Each request was denied. , {n 1988, the homeowners asked for, and I agreed, to install an -Emergency Access Road on my property for thclr benofii. A 2OO-foot wide section of the abandoned levee was removed and the road installed. The localion or the road, and their obligation to maintain the road was noted in an amcndmcnt to the CC&Rs of the community in 1990. The amendment required a majority vote of the homeowners. In 1997, the homeowners association authorized the illegal titspass and illegal dumping of trash and debris on my prope$ly. 200 truckloads of trash and dcbris were illegally dumped on my property in an effort to fill in the hole in the levee. The actionS were at the same time McKeith began claiming the levee critical to their safety. I sued those responsible for illcga[ trespass and dumping. To avoid public cmbarrassmont, the hoard members settled out of court for $80,000. The behavior of the opponents is consistent. They will do whatever it I'dkes to stop my project. They have no shown no respect for proparty rights. They have not hesitated to provide false testimony to federal ~gcncics. They do not care how many hours arc spent by public agencies to chase their false accusations. They run print ads and have gone so far as to prepare and broadcast a video on local cable television scaring :~cnior citizens in an allcrept to procure the City Council to revoke my entitlemerits. As I said, I am disturix,-d. I cannot understand why Senator Fcinstein would suppod people whose actions are so deceitful against a citizen who has obeyed every law, and answered every accusation. Nine lawsuits and four attempts for restraining orders have been dccidcd against th6 opponents. What is it that the City of Rancho Cueamonga, San Bernardinn County Flood Control Dislrict, Ca~fomia Dcparlment of Fish & Game, U.S. Department of Fish & Wildlife, ACO'F_,, FEMA, the Superior Court, the District Cou~ and the Appellate Court understand that Senator Feinstein's office does not? Let me ask a few questlosts. I would appreciate a written response, · Your office providcd lime for a personal meeting so that Lhe opponents of my project could present their Facts. Why was I not offered a shnilar opportunity? · Why didn't your office ask the City of Ranch0 Cucamonga to explain this local dispute before your intervention? · Why is your off~ce intervening in a loral matter? - The opponents have claimed special access and privilege afforded their attorney? Is this true? · The em'thcn berm on my property was built in 'the 30s. It was abandoned in 1986 after thc local flood control district was paid a fee for removal of their flood control casement. Why is file federal government intervening in a residential developmcnt project on private property? · ACOE stated in their Ca'st letter rnspolme that the levee on my proparty is not part of the flood central project. They referred to it as "a disposal site"..Why is your office asking for a study about removing an abandoned levee that is not part ors flood control system and has a 200-foot wide hole in it? · Did the opponents make your oilice aware oftheir failure to find any 'support in the state and federal courts? · . Was your office aware that the opponents of my project are competitors? Homebuilders, contractors, lawye. rs~ and a realtor who bavc publicly claimed a, desirc to block] competition in the community;~ · Lastly, is your office aware that Ihese compeltints depleted the entire reserves or two bomeowncrs associations to fight heir self-serving legal battle? Were you aware that they illegally used the association's reserves with no knowledge of the community? No reports were provided, no votc was taken, and no authorization was received to use the association rL-serves. State law Ibrbids board members from spending more than 20% over an approvcd budget without a vote of the community. They spent several hundred thousand dollars of other peoplc's money without any consent or approval. I sincerely bopc tlrat your office was unaware of ttt. csc matters. It would allow mc to believe that Scnator I:einstcin acted in the best interest of all of her constitucnts. Howcver, ifthe~ facts wcrc known beforehand, t'han I will bo du.'ply disturt~d. If'there is anything that you would like to see sobstantlaled, all you have to do is ask, If'you fecl it approprla{e, I will fly to Washington D.C, at your rcquest to make may case personally. In the meantime, 1 am confident that the City of Rancho Cucamonga is acting in a very responsible nranner as it considers the needs ofall of its citizens. Sincerely, Robert J. Crist/ano Submission to City Council in Connection with Appeal of Modification to Development Review 98-13 VOLUME III The Heights at Haven View Estates, LLP Submission to City Council in Connection with Appeal of Modification to Development Review 98-13 VOLUME III November 2000 Hewitt & McGuire, LLP 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 (949) 798-0500 1 2 3 4 5 6 7 8 9 10 1t 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o3s-~36o JAMES L. MARKMAN (State Bar No. 43536) CITY ATTORNEY CITY OF RANCHO CUCAMONGA RICHADS, WATSON & GERSHON A Professional Corporation MITCHELL E. ABBOTT (State Bar No. 64990) STEVEN H. KAUFMANN (State Bar No. 61686) MATTHEW D. MITCHELL (State Bar No. 198027) 333 South Hope Street, 38~' Floor Los Angeles, California 90071-I469 Telephone: (213) 626-8484 Attorneys for Respondent, CITY OF RANCHO CUCAMONGA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO - RANCHO CUCAMONGA DMSION HAVEN VIEW ESTATES HOMEOWNERS ASSOCIATION and RANCHO CUCAMONGA V-HAVEN VIEW ESTATES HOMEOWNERS' ASSOCIATION, Petitioners, vs. CITY OF RANCHO CUCAMONGA, a municipal corporation, etc., Respondent. LAUREN DEVELOPMENT INC., a California corporation; CRISTIANO PARTNERS I, a California general partnership; HAVENVIEW ESTATE PARTNERS, a California general partnership; THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, a California limited liability company; and DOES 1 through 50, inclusive, Real Parties in Interest. Case No. RCV 37920 [Assigned to Hon. J. Michael Gunn] MEMORANDUM OF POINTS AND AUTHORITIES OF RESPONDENT CITY OF RANCHO CUCAMONGA IN OPPOSITION TO PETITION FOR WRIT OF MANDATE [Request for Judicial Notice Filed Concurrently] Hearing: June 23, 1999 Time: 8:30 a.m. Dept.: 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS _Page I. INTRODUCTION ..................................... I II. PROCEDURAL AND FACTUAL BACKGROUND ................ 3 A. The Adoption of the City's General Plan and Zoning Ordinance ..... 4 B. The 1990 Decision to Approve Tentative Ma 14471 Grading of the Subject Property and Removal of the ~evee ' ............. 5 C. The 1997 Decision to Deny Development Review 97-11 .......... 8 D. The 1997 Decision to Approve the Final Map for Tract No. 14771 ...................................... I0 E. The 1998 Decision to Approve Development Review 98-13 ........ 11 III. THERE IS NO "INCONSISTENCY" BETWEEN DR 98-I3 AND THE GENERAL PLAN .......................... 13 IV. THE CITY'S APPROVAL OF DR 98-13 FULLY COMPLIED WITH THE REQUIREMENTS OF THE CITY'S DEVELOPMENT CODE ............................. 2I A. The City Properly Accepted the DR 98-13 Application ........ . . . 21 B. A Second Review by the Technical Review Commitlee Was Not Required .................................... 23 C. Lauren Satisfied the Applicable Filing Requirements ............ 25 D. Petitioners Cannot Demonstrate Prejudice, Substantial Injury or Any Likelihood of a Difi'~rent Result ..................... 27 V. THE CITY COUNCIL'S FINDINGS ARE PROPER AND SUFFICIENT .................................... 28 VI. SUBSTANTIAL EVIDENCE SUPPORTS THE CITY COUNCIL'S FINDING THAT DR 98-13 WILL NOT BE DETRIMENTAL TO THE PUBLIC HEALTH, SAFETY AND GENERAL WELFARE .......................... 31 A. The Substantial Evidence Test .......................... 32 B. Substantial Evidence in the Record Supports the Conclusion That the Deer Creek Debris Basin was Adequately Sized and Designed ....................................... 33 VII. THE CITY'S DECISION FULLY COMPORTS WITH THE REQUIREMENTS OF CEQA .......................... 38 VIII. CONCLUSION ................................... 42 -i- t 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R[CHARDS, WATSON & G~:RSHON TABLE OF AUTHORITIES page CASES A Local & Regional Monitor v. City of Los Angeles, 12 Cal. App.4th 1773 (1993) ............................. 32, 33 Benton v. Board of Su ervisors 226 Cal. App.3d F~67 (19~1) ............................... 40 Bowman v. City of Petalurea, 185 Cal. App.3d 1065 (1986) ............................... 41 ............................... 18 Breneric Associates v. City of Del Mar, 69 Cal. App.4th 166 (I998) Coalition for Student Action v. City of Fullerton, 153 CaI.App.3d 1194 (1984) ............................... 30 Comsnittee for a Prooressive Gilroy v. State Water Resources Control Bd. 192 Cal.App.3~847 (1987) . · ......... ' .... 40, 42 Endan ered Habitats Leaoue Inc. v. State Water Resources Control Board ~3 Cal. App.4th 225~(1397) ...................... '. ..... 30 Fund for Environmental Defense v. County of Orange, 204 Cal.App.3d 1538 (1988) ............................... 41 Gentr2( v. Ci of Murriem 36 Cal.~pp.4th 1359 '(1995) ............................... 33 Greenbaum v. City of Los An eles 153 Cal. App.3d 391 (19~,~) '. .................. 34 Greenebaum v. Ci of Los Anoeles 153 Cal. AppZd 391 (t98X5 ' · ............... 18, 19 Hawkins v. Court of Marin 54 Cal.App.~d 586 (19~6) .............................. '.. 13 Kane v. Redevelopment Aoency 179 Cal. App.3d 899 ~1986i ............................... 30 Las Virgenes Homeowners Federation, Inc. v. County of Los Anoeles, 17'~ Cal. App.3d 300 (1986) ................... ~. ......... 19, 20 /// -ii- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WATSON & GERSHON 1 2 3 4 5 Laurel Heights Improvement Assn. v. Regents of the Univ. of California, 47 Cal.3d 376 (1988) ................................... 33 MarkIcy v. City Council of the City of Los An~,eles 1~1 Cal.App.3d 656 (1982) ........ ~. · -' .................... 29 McMillan v. American General Finance Corp., 60 Cal.App.3d 175 (1976) ................................ 29 Mola Development Co . v. City of Seal Beach, 57 Cal. App.4th 4~P5 (1997) 42 People ex tel. California Regional Water Quality Control Board v. Ban-y, 194 Cal.App.3d i58 (1987) ............................... 29 Pescolido v. Smith, 142 Cal.App.3d 964 (1983) ............................... 34 Sequoyah Hills Homeowners Association v. City of Oakland, 23 Cai. App.4th 704 (1993) .............................. 17, 18 Sierra Club v. County of Sonoma, 6 Cal.App.4th 1307 (1992) ........................... 32, 33, 37 Sunset Amusement Co. v. Board of Police Cornmrs., 7 Cal.3d 64 (1972) ..................................... 34 Temecula Band of Luiseno Mission Indians v. Rancho Cal. Water Dist., 43 Cal.App.4th 425, n. 3 (1996) ............................ 42 Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974) .............................. 28, 29, 31 STATUTES California Environmental Quality Act Section 15162 ................. 10, 31 Development Code: Section 17.02.140 Section 17.06.010 ..................................... 22 Section 17.06.010.B ..................................... 23 Section 17.06.010.C .................................... 23 ................... 23 Section 17.06.010(C)(~ 5 ~ ....... ~ j Z Z Z Z S5 ~ ................ 23 section 17.06.010(E) .................................... 24 Section 17.06.010(E)(2) ................................ 23, 24 Section 17.06.010(E)(4) .................................. 24 Section 17.06.010(F)(3) .................................. 21 Section 17.06.010(G) ................................. 21-23 Section 17.06.020(G) ................................... 22 Section 17.24 ...................................... :. 25 -iii- 990528 1 I23 [*00059 sas MEMO. OF PS&AS OF RF~;PONDENT CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WRiT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FiICHARDS, WATSON & GERSHON Development Code: (Continued) Section 17.24.020 ..................................... 25 Section 17.24.030 Section 17.24.030(Li 2 2 ................ 25 ... 25 Government Code: Section 65009 ........................................13 Section 65009(c) ....................13 Section 65010Co) ......................................27 Section 66499.37 .................................... 11, 14 Public Resources Code Section 21166 ............................. 32 Title 14, California Code of Re utations State CEQA Guidelines ("~uidelin~s"): Section 15162(a) Section 15162(a)(3i(Xi ................................... 32 .................................. 32 Section 15162(a)(3)(C) ...................................32 Section 15303(a) ......................................42 Section 15378(c) ......................................40 TREATISES KosLka & Zischke, Practice Under the Col. Environmental Quality Act, ¶ 19.37, p. 745 (CEB 1997) ............................... 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 RIQHARDS. WATSON & GERSHON 03B~3~0 MZEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This is the fifth lawsuit brought by neighboring homeowners seeking to block a 40-home subdivision from being built in the City of Rancho Cucamonga. The lawsuit has no merit, but is merely the latest in a relentless litigation campaign to bar development and perhaps force the developer to sell his land to the homeowners' association for park or open space purposes. The litigation history is worth summarking, to place the current lawsuit in perspective: (1) Cucamongans United for Reasonable Expansion ("CURE") v. City of Rancho Cucarnonga (San Bernardino County Superior Court, Docket No. RCV 30406). Petition for writ of mandate challenging CEQA compliance re City's handling of Design Review application DR 97-I 1; petition denied by Judge Frederick A. Mandabach; petitioners have appealed. (2) Haven View Homeowners Assn. v. City,of Rancho Cucamonga (San Bemardino County Superior Court, Docket No. RCV 31906). Petition for writ of mandate challenging City's approval of Final Tract Map for Tract No. 14771; alemutter to petition for writ of mandate sustained without leave to amend by Judge J. Michael Gurm on statute of limitations grounds; petitioners have appealed. (3) Cucamongans United for Reasonable Expansion ("CURE") v. City of Rancho Cucamonga (U.S. District Court, C.D. Cal., Docket No. CV 974828 GHK (CTx)). Civil rights action alleging approval of tentative map extensions for Tract No. 14771 as a violation of due process of law; motion to dismiss granted by federal District Judge George H. King as to all but one count, and motion to abstain granted as to the remaining count; plaintiffs have appealed to the Ninth Circuit Court of Appeals. -I- 990528 I 1231-00059 s~s MEMO, OF PS&AS OF RESPONDENT CrfY OF RANCHO CUCAMONGA IN O~'P. TO PETITION FOR WR/T OF MANDATE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (4) Spirit of the Sage Council v. City of Rancho Cucamonga (San Bernardino County Superior Court, Docket No. RCV 38355). Petition for writ of mandate challenging City's approval of Design Review application DR 98-13 on CEQA grounds based upon alleged endangered species habitats; action pending before Judge Kayashima. (Motion for consolidation pending.) (5) Haven View Homeowners Assn. v. City of Rancho Cucamonga (San Bernardino County Superior Court, Docket No. RCV 37920). Petition for writ of mandate challenging City's approval of Design Review application DR 98-13 on grounds of non-compliance with CEQA and on grounds of inconsistency of project with City's General P/an; action pending before Judge Gunn. (Motion for consolidation pending.) Respondent will demonstrate that the latest two lawsuits should meet the same fate as the first three. The homeowners' associations (representing about 200 homes) did not oppose this 40-home subdivision when it was approved in 1990; to the contrary, Haven View Estates Homeowners Association wrote a letter to the Ci~ Planning Coraraission supporting it! Now, eight years later (and after the developer has invested many hundreds of thousands of dollars in reliance on the tentative tract map), the homeowners have filed a barrage of lawsuits seeking to stop it at all costs. As the following discussion will demonstrate, however, the City scrupulously complied with the State Subdivision Map Act and its own Development Code in processing the developer's various applications. Substantial evidence in the record supports the City Council's discretionary decisions, and on that basis, the petition for writ of mandate should be summarily denied. /// /// /// /// /// -2- 99052~ 1123 i-00059 sas M£MO. OF PS&AS OF RE~PONDENT CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WRIT OF MANDATE PROCEDLIRALAN~ FACTUALBACKGROUND The property which is the subject of this litigation is a 25-acre parcel located on the north central border of the City of Rancho Cucamonga, east of Haven Avenue and generally northeast of Ringstem Drive. (See Site Map, 1 A.R. 177.)~ Previously approved Tracts 12332 (Haven View Estates) and 12332-2 (RC-V) are located to the south and west of the subject property and consist of 204 lots, many of which are now built out with single-family dwellings. (1 A.R. 164.) Petitioners Haven View Estates Homeowners Association and Rancho Cucamonga V-Haven View Estates Homeowners Association are comprised of the homeowners who reside in those two neighboring tracts. A court-supervised seulement agreement guarantees access to the subject property over the existing streets in this gated community connecting to Haven Avenue. (1 A.R. 164, 5 A.R. 1227-1255; 6 A.R. 1529-1530.) An unengineered, unlined, earthen levee was constructed some time prior to 1938 and runs across the southerly portion of the subject property, north of Ringstem Drive and Tackstem Street. (6 A.R. 1522; 18 A.R. 3966.) In 1989, a major breach in this levee, over 210 feet in width, was created to provide an emergency access road for Haven View Estates. This breach and access road was required at the request of Petitioner Haven View Estates Homeowners Association as a condition of granting an extension of the tentative map for Tract 12332-2. (6 A.R. 1524.) Comprehensive flood protection for this area, including the subject property, and the neighboring Haven View Estates and RC-V, is now provided by the Deer Creek Debris Basin and Channel, constructed by the U.S. Army Corps of Engineers in 1983. As explained by the County Flood Control District, which now maintains this facility: "The Corps used its normal high standards for the design and 1/ All references to the 30-volume Administrative Record lodged with the Court are abbreviated "A.R. ", preceded by the volume and followed by the page number to which reference is made. -3- 99052g 11231-110059 sas MEMO. OF PS&AS OF RESPO NDENT CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR W1UT OF MAIqDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS. WATSON & GERSHON construction. The facility was sized to handle a 'standard project flood event,' which for this facility was estimated to be a '200-ydar return event'." (6 A.R. 1570.) In 1986, with the Debris Basin and Channel in place, the Flood Control District formally abandoned an "Easement for Flood Control and Water Conservation" it previously recorded over the Subject Property.2J (6 A.R. 1523.) It also approved the breach in the earthen levee for road purposes. (6 A.R. 1524.) A. The Adoption of the Citv's General Plan and Zoning Ordinance. The City of Rancho Cucamonga was incorporated by the vote of its residents in 1977. In 1981, the City of Rancho Cucamonga adopted its General Plan, consisting of a number of "elements" as required by the State Planning Law. (12 A.R. 2524.) One of the elements of the General Plan was a "Land Use Plan" (12 A.R. 2560) which designated the general area of the subject property partially for "Very Low" density residential development (not more than 2 units per acre) and partially "Open Space-Flood Control/Utility Corridor" (with a maximum allowable development of 1 unit per 10 acres). The General Plan also contained an "Open Space Plan" which designated the general area of the subject property panially for "Flood Control Lands and Utility/Transportation Right of Way" and partially as "Streamside Woodland & Water Recharge Area." (12 A.R. 2696.) In 1983, the same City staff which had drafted the General Plan two years before prepared and submitted a proposed Development Code (13 A.R. 2816) and Development District Map (hereinafter referred to as the "Zoning Map") for the City. (13 A.R. 2989.) The same City Council which had approved the General Plan in 1981 approved the Development Code and Zoning Map in 1983, and specifically declared _2/ As explained by Flood Control District: "In 1985, at the request of the owner at the time, Walter Laband, the District reviewed the need for the flood control easement and levee. Due to the existence of the Deer Creek Dam and Basin, plus the improved outlet channel that had been constructed by the Corps of Engineers, it was determined by the District that the easement was no longer necessary for use in controlling regional floods. Accordingly, following receipt of compensation from the property owner, the District quitclaimed its easement interest in the property." (6 A.R. 1572.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that ~'the Development Code is an implementation of the General Plan goals and policies .... "(13 A.R. 2816.) The Zoning Map coincided with the general land use designations shown on the General Plan's Land Use Plan Map, and zoned the subject property "VL', allowing residential development not to exceed a density of 2 units per acre, and adjacent property as "FC" or flood control land. (13 A.R. 2989.) B. The 1990 Decision to Approve Tentative MaD 14471, Gradinl~ of the Subject Property and Removal of the Levee. Efforts to develop the subject property began in 1989. In June 1989, the prior owner of the property, M. J. Brock, Inc. ("Brock"), applied to the City for approval of a Tentative Tract Map No. 14771, to subdivide the subject property into 40 single-family residential lots, and for approval of a Conceptual Grading Plan for the development. (1 A.R. 2, 163-165 .) The application proposed, inter alia, replacement of a portion of the existing breached levee with a drainage channel along the site's northern boundary.3J Contrary to the misimpression petitioners seek to create in their "factual statement", the levee issue was not overlooked during the 1990 tentative map and conceptual grading approval process. The levee issue was raised and addressed by the City at least six different times before the City, in July 1990, determined to accept the application as complete. (See generally 1 A.R. 11, 13-14, 17-22, 30, 32, 34, 4143 and 46-59, 61, 97, 100, 103.) On August 14, 1990, the City completed an Initial Study EnQironmental Checklist which determined that the project would have no significant effects on the environment. (1 A.R. 112-118.) Brock's representatives then conducted three neighborhood meetings concerning the proposed Project. (1 A.R. 107-109, 151,166, 194, 232-233,236.) On November 12, 1990, petitioner Haven View Estates 3_/ Engineering experts who prepared the various hydrologic and hydraulic studies for the replacement channel later opined that "the replacement of an aged, urdined, earthen training levee that was constructed years ago to provide flood protection until the Deer Creek Channel was complete, by a hardened concrete channel designed to current hydrologic and hydraulic standards, is one where the benefit is so obvious that it speaks for itself." (3 A.R. 693.) -5- 1 2 3 4 5 6 7 8 9 10 1t 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RrCHARDS, Homeowners Association wrote a letter to the Planning Commission specifically advising that, after several meetings with homeowners, the developer "has mitigated our concerns," that the Association agreed that the developer's revised design represented "an acceptable compromise," and asking that the Planning Commission approve the project. (1 A.R. 232, 248.) On November 14, 1990, after two public hearings (1 A.R. 159, 187-191, 217,248-249), the Rancho Cucamonga Planning Commission approved a Negative Declaration for the project, approved the Conceptual Grading Plan and approved the Tentative Tract Map for Tract No. 14771, subject to 73 detailed conditions (i A.R. 251-260.) These conditions required, among other things, the preparation of grading plans to substantially conform with the approved Conceptual Grading Plan (1 A.R. 255), specific engineering requirements directed to replacement of the levee!~ (1 A.R. 264-265), and lot-specific design standards to be incorporated in a future application for development/design review of the houses proposed on the 40 approved residential lots. (1 A.R. 263.) No appeal was taken to the City Council, and no lawsuit challenging these decisions was ever filed. The administrative decisions thus became final, for res judicaza purposes, in 1990, as discussed below. As approved, Tentative Tract Map No. 14771 plainly specified that the land was located in the "VL" zone (16 A.R. 3624) and would be developed with 40 homes on 1/2 acre lots (16 A.R. 3631 .) The Resolution approving the Tentative Tract Map expressly found: "The development of 40 single family lots on 25.9 acres of land is consistent with the Very Low Residential Land use designation of the General Plan." (1 A.R. 262.) /// //I 4/ Specifically, the City required the replacement drainage protection facilities to "be designed ~'o the satisfaction of" the flood control district, to "provide a continuous seal" to protect the approved development and the adjoining tracts, and to "be operational prior to removal of the existing levee within the project area." (1 A.R. 264-265.) ~6- 990528 11231410059 sa~ MEMO. OF PS&AS OF RESPONDENT CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 tl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON GERSHON Tentative Tract Map No. 14771 was thereafter extended on October 28, 1992 (2 A.R. 367), October 20, 1993 (2 A.R. 379), October 30, 1995 (2 A.R. 414), and June 18, 1996 (2 A.R. 416). C. The 1997 Decision to Deny Development Review 97-11. On April 16, 1997, the current developer of the subject property, Lauren Development CLauren''), applied to the City for Development Review CDR") 97-11 to approve detailed architectural and site grading plans for the 40 homes proposed for the approved residential tract. (2 A.R. 427-432; 3 A.R. 638-651.) On September 3, 1997, after two lengthy public hearings before the Rancho Cucamonga Planning Commission (3 A.R. 306-749 and 1358-1427), the Rancho Cucamonga City Council voted to deny Development Review 97-11 ._5/The City Council first found that "the proposed design of the homes will not be compatible with the character of the surrounding custom homes." (9 A.R. 2461 .) Specifically, the City Council had two primary design concerns: (1) not enough different floor plans and (2) not enough variety in the exterior elevations. (18 A.t:L 3989.) FurLher, in response to objections from new opponents to the project, the City Council concluded "that no further environmental /// /// /// 5/ During these hearings, neighbors expressed concern about the continued nccd for the cxisting ~arthen levee. The U.S. Army Corps of Engineers (4 A.R. 1001), the County Flood Control District (4 A.R. 1011), and a private geotechnical consultant (4 A.R. 960) all gave unqualified opinions as to the stability of debris basins and flood control channels constructed in the vicinity by the Corps in the early 1980s, which supplanted the levee. The Corps reported that the flood control facilities were designed to handle a "100-year flood event", that they were designed to maintain structural integrity through a magnitude 8.0 earthquake on the San Andreas Fault and a magnitude 6.4 earthquake on the Cucamonga Fault, and that "the joint probability of a 100 year flood event and either earthquake is very rare, approximately 3.4 and 2.8 chances in 100,000, respectively." (4 A.R. 1001.) As noted, because of the construction of these facilities, the Flood Control District quitclaimed its flood control easement rights on the subject propercy in 1985, effectively abandoning the earthen levee. (4 A.R. 1013.) Any development of the subject property will of course be subject to standard storm drain design requirements, but the carthen levee is no longer a factor in controlling regional floods. (4 A.R. 1001, 1013.) -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 review is required in conjunction with Development/Design Review 97-11."-6/(9 A.R. 2465 .) Project opponents then filed a petition for writ of mandate in this court, challenging the City's environmental finding. Cucamongans United for Reasonable Expansion ("CURE") v. City of Rancho Cucamonga (San Bernardino County Superior Court, Docket No. RCV 30406). On September 28, 1998, after reviewing a host of environmental issues raised (including issues concerning levee removal and the adequacy of the Deer Creek Debris Basin for flood control protection), this Court, Hon. Frederick A. Mandabach, judge presiding, denied the petition, ruling that the City's decision was supported by substantial evidence in the record. (City Request for Judicial Notice CtLIN'), pp. 11-23.) Petitioners' appeal from that judgment is now pending in Division Two of the Court of Appeal for the Fourth Appellate District. D. The 1997 Decision to Approve/he Final Map for Tract No. 14771. On October 15, 1997, the Rancho Cucamonga City Council conducted a further public hearing to consider the ministerial approval of the Final Map for Tract No. 14771. (15 A.R. 3561.) The City Engineer made the required finding that the Final Map was "substantially the same" as the Tentative Map. (30 A.R. 7314.) On October 16, 1997, at the conclusion of the public hearing, thd City Council approved the Final Map for Tract No. 14771. (15 A.R. 3607-08.) The two petitioner homeowner associations in this case then filed a second petition for writ of mandate in this court, challenging the City Council's decision and raising the identical and principal argument urged in this proceeding -- namely, that the 6/ The City Council made essentially the same findings which petitioners challenge by way of their CEQA contention in this case: "(a) That no new environmental information of substantial importance which was not known or could not have been known on November 14, 1990, has been presented since the Negative Declaration for Tract 14771 was issued on November 14, 1990; and "(b) None of the criteria stated in Section 15162 of the California Environmental Quality Act guidelines requiring subsequent environmental review exist or are present with respect to the project." (Compare 9 A.R. 2465 with 26 A.R. 6477.) 990528 I I?3t-CX3059 sas MEMO. OF PS&AS OF RESPONDENT CITY OF RANCNO CUCAMONGA IN OPP. TO PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City~s approval of the project is inconsistent with the General Plan. On June 16, 1998, this Court, Hon. J. Michael Gunn, judge presiding, sustained the demurrers of the City and the real parties in interest without leave to amend, ruling the mandate proceeding to be time-barred because petitioners failed to timely challenge the earlier 1990 approval of the tentative tract map within the 90-day statute of limitations in Government Code section 66499.37. (City PUN, pp. 1-10.) Petitioners' appeal from that order of dismissal is now pending in Division Two of the Court of Appeal for the FourLh Appellate District. E. The 1998 Decision to Approve Development Review 98~13. On June 2, 1998, Lauren reapplied to the City for Development Review ("DR") 9843, see 'ldng approval for the 40 homes previously approved for the tract, but redesigned to respond to the City Council's previnusly-expressed aesthetic concerns; Lauren also sought approval of a Preliminary Grading Plan. (17 A.R. 3779-3834, 3835.) As to grading, Lauren noted: "As required by the conditions of approval, the enclosed proposed Preliminary Grading Plan is totally consistent with the earlier approved Conceptual Grading Plan, with the only refinements being in the immediate area of each home." (17 A.R. 3780.) Further, Lauren explained that in contrast to the design approval sought in DR 97-11, this new application proposed that "[a]ll forty homes in this development will be unique. No two homes will be the same." (17 A.R. 3779.) Specifically: · Outwardly visible architectural features were made standard instead of optional, where they might not be selected by a buyer. · All garages at the rear of the homes were shielded from view by the careful placement of either Porte Cocheres or elegant gates with pilasters. -9- 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, ',,VATSON & GERSHON · Building elevations were broadened to include several different styles: French Country, Spanish Colonial, Italian Tuscan, Prairie and Traditional. · Entirely different building "footprints" for the houses were added. · The total size of the homes was increased from the homes previously proposed. (17 A.R. 3779-3780.) Detailed building elevations and exterior colors were provided for each of the homes. (17 A.R. 3793-3832, 4046-4057; 18 A.R. 4187-4226.) Staff-level public meetings were conducted on the application by the Design Review and Grading Committees. (17 A.R. 3872-3876, 3880-3885.) On August 12, 1998, the Rancho Cucamonga Planning Cornmission conducted a public heai-ing on the application after which it voted to approve DR 98-13. (18 A.R. 4064-4093, 4095- 4102.) The matter was appealed to the Rancbo Cucamonga City Council (18 A.R. 4123), which likewise conducted a lengthy public hearing on the application on September 16, 1998. (26 A.R. 6205-6326.) The City Council then closed the public hearing (26 A.R. 6316), and continued the matter to enable the City Attorney to explore a possible settlement with the homeo~vners associations. (26 A.R. 6323-6326.) On November 15, 1998, after settlement efforts proved unsuccessful, the Council voted to approve DR 98-13. (26 A.R. 6435-6472.) The Council found, inter alia, that "It]he proposed design is in accord with the objectives of the Development Code and the purposes of the district in which the site is located, is in compliance with each of the applicable provisions of the Development Code, and will not be materially injurious to properties or improvements in the vicinity" (Resolution No. 98-178). (26 A.R. 6473-6474.) In addition, to bring closure to the various environmentzl issues renewed in this proceeding, the Council determined that "no subsequent environmental review is necessary for DR 98-13 for Final Tract No. 14771" (Resolution No. 98-179). Specifically, the City Council found: "3 .... [T]he environmental materials presented and environmental concerns raised by the bearing on this design review matter did not relate to 5 6 7 8 9 t0 11 12 13 14 15 16 !7 18 19 20 21 22 23 24 25 26 27 28 WATSON & the discretionary matter before the Council, the lot-specific design of the residences in question. "4. Based upon the substantial evidence presented to this Council during the above-referenced public bearing, this Council further finds that, in any event, none of the criteria in Section 15162 of the California Environmental Quality Act Guidelines requiring subsequent environmental review exist or are present with respect to the Council's action on the Development/Design Review application." (26 A.R. 6477.) III. TH]ERE IS NO "INCONSISTENCY" BET~c'EEN DR 98-13 AND THEE GEN'ERAL PLAN. Petitioners first attempt to resuscitate an argument that has been laid to rest once by this Court and numerous times by the City Council and ale City staff. The City Council expressly and impliedly found that the Zoning Map was consistent with the general land use designations shown on the General Plan's Land Use Map when the Zoning Map and Development Code were first adopted in 1983.1t The City Council found that the Zoning Map was consistent with the land use designations and overall policies of the General Plan and therefore approved the zoning of the subject property as "VL" ("very low"). (13 A.R. 2816, 2989.) This zoning decision is compelling 7_/ Petitioners' inconsistency argument in fact begins with the adoption of the 1983 Zoning Ordinance, which zoned the subject property for "Very Low Residential (less than 2 units per acre)." The City obviously disputes that any inconsistency exists. Even if the Zoning Ordinance were somehow inconsistent with the General Plan, however, the time for challenging it expired 90 days after the Zoning Ordinance was adopted, in 1983. Govt. Code, § 65009(c); Hawl~tzs v. County of Madn, 54 Cal. App.3d 586, 592-593 (1976) (lawsuit alleging inconsistency of conditionaI use permit or zoning ordinance with General Plan must be brought within the time allowed by § 65009). -11- 99052S [ 1231-1X~59 s~s MEMO. OF PS&AS OF RFjPONDENT CITY OF RANCHO CUCAMONGA IN OPP. TO PETIT[ON FOR WRIT OF ~.IANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & because the City Council members who voted for the Development Code and Zoning Map in 1983 were the same City Council members who approved the GeneraI Plan in 1981. The City stuff members who developed and drafted the Development Code and Zoning Map were the same staff members who developed and drafted the General Plan. The City Planning Commission made the same finding agaLa in 1990, that the zoning of the subject property as "VL" was consistent with the General Plan, when it approved the tentative tract map for Tract No. 14771, allowing for the development of 40 detached single family homes on the subject property. (1 A.R. 251-60.) The petitioners did not appeal the Planning Commission's decision, and in fact, supported the approval of the project. (1 A.R. 232, 248.) In 1997, the City Council approved the FLnal Map for Tract No. 14771. (15 A.R. 3607-08.) It was durLag this approval process (seven years after approval of the tentative tract map and fourteen years after enactment of the ZonLng Map) that the petitioners first unveiled their "inconsistency" argument. After the City's approval of the Final Map, the petitioners flied a writ of mandate in this court seeking a reversal of the City's decision. This court denied the writ holding that "[o]nce the determ~ation [of consistency with the General Plan] has been made at the Tentative Map stage, the determination does not have to be revisited at the Final Map stage." (City KIN, p. 8.) Remarkably, petitioners make exactly the same argument again, arguLng that the City Council's approval of the "design review" application affords them the opportunity to renew their "inconsistency" argument. This is simply not the case. This court specifically held that the 90-day statute of Imitations in Goverment Code section 66499.37 barred petitioners from raising their "inconsistency" arguments at the Final Map stage. (City KIN, p. 8.) A foniori, petitioners are also barred from raising these arguments at a later, more narrow, stage in the development process. The number of houses -- i.e., the "density" of the project -- has not changed. It was 40 houses in 1990, and it was 40 houses in 1998. The design review process had nothing to do with the density question -- rather, it is 9<{)528 I 1231-00059 s;~ MEMO, OF PS&AS OF RESPONDEN'F CITY OF P, ANCHO CUCAMONGA IN OPP. TO Pk~'ITION FOR WPJT OF ~4ANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RIChlARDS, WATSON .& GERSHON used .to fmalize fie architectural features and grading of the buildings in a development project. The City Council's approval of the design, elevation, and exterior color of the homes on the subject property does not open the door for petitioners to reargue "inconsistency" with the land use designations of the General Plan. This finding was made at the tentative map stage over eight years ago and is no longer subject to challenge. Even if the court were to allow the petitioners to make their "inconsistency" argument at this late stage in the proceedings, that argument must still be rejected. As demonstrated below, there is ample evidence to support the City's determination that the proposed development of Lauren's 25-acre parcel with 40 single family homes (a density of less than 2 units per acre) is in fact consistent with the General Plan. City Manager Jack Lain (who was then the Director of Community Development) was involved in the drafting of the General Plan which was approved by the City Council in 1981. Mr. Larn and the current Director of Community Development, Rick Gomez (who was then a City Planner), were both involved in the drafting of the Development Code and the Zoning Map which were approved by the City Council in 1983, and both were involved in the approval of the Tentative Tract Map for Tract No. 14771 in 1990. As the declarations of Jack Lam and Rick Gomez make clear, it was always the intention and understanding of the City that the Land Use Plan, the Open Space Plan, and the other maps contained in the General Plan were "rough delineations rather than hard lines which precisely follow parcel lines" and were intended to illustrate the .planned land uses for various parts of the City when fully /// I/I III III III -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1B 16 17 18 19 20 21 22 23 24 25 26 27 28 developed. (17 A.R. 3957-65.)sJ The Zoning Ordinance, prepared by the same staff and approved by the same City Council, was designed to implement the General Plan by zoning each parcel of land in the City for certain types of uses. As Rick Gomez, who presented the Staff Report to the City Council, states in his declaration, "The Staff and City Council intended that the Development Code and Development District Map were consistent with, and would implement, the City's General Plan." (17 A.R. 3964.) Petitioners do not dispute that a substantial portion of the subject property (like their own development) is designated for very low density residential development on the Land Use Plan. The Zoning Map is consistent with this designation f- the subject property is zoned "VL" which allows residential development at a density not to exceed 2 units per acre. Petitioners' "inconsistency" argument is apparently based on the fact that while a substantial portion of the subject property was designated for very low density residential development on the Land Use Plan, another portion was designated as "Flood Control/Utility Corridor." This is not an inconsistency -- the Zoning Map simply classified the entire parcel for very low density residential development. The General Plan itself ac'knowledged that the lines were "rough delineations" (12 A.R. 2569) and stated that: "The Land Use Plan designates land uses on a general scale. Consequently, . . . the density range [shown on the Land Use Plan] may not be achievable because of the parcelization pattern." (12 A.R. 2570.) The Zoning Map is consistent with the Land Use Plan but of necessity "squares off' according to property lines, so that a zone change does not occur in the middle of a single piece of property. As both Mr. Lain and Mr. Gomez state in their declarations, this is the shandard practice in the area of city planning. (17 A.R. 3959, 3963.) The Zoning Ordinance itself states that it is intended to "implement" the General Plan (12 _8/ The prior mandamns proceeding and the arguments regarding "consistency" with the General Plan were very much a part of the public hearing process. The attorneys for the homeowners associations repeatedly referred to the prior litigation (26 A.R. 6447-6449), and so the declarations submitted to the trial court in that prior litigation were entered into the administrative record. -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R~CHAROS, WATSON ,~ GERSHON A.R.-3802), and both the Tentative Tract Map for Tract No. 14771 and Development Review 98-13 were expressly found to be "consistent with the Very Low Residential Land use designation of the General Plan." (1 A.R. 262; 26 A.R. 6474.) It is well settled that a Zoning Ordinance (or subdivision map) need not be a "mirror image" of the General Plan in order to survive a consistency challenge. In Sequoyah Hills Homeowners Association v. City of Oakland, 23 Cal. App.4th 704 (1993) the Court of Appeal noted that "state law does not require an exact match between a proposed subdivision and the applicable general plan." 23 Cal. App.4th 704, 717. In Sequoyah Hills, a homeowners association sued to overturn a tentative tract map approved by the City Council for a subdivision of 46 homes nearby. The homeowners association argued that the density of the proposed development was one unit per 8,075 square feet of land, whereas the General Plan called for a density not to exceed one unit per 10,000 square feet. The Court of Appeal noted that "The [Land Use] Map merely 'indicates in its broad configurations, but only tentatively in its details, the planned predominant land uses. Variation from the details is appropriate where it is demonstrated that this would serve the Comprehensive Plan's written goals and policies just as well or better."' 23 Cal. App.4th 704, 718. The court concluded that there was substantial evidence that the proposed project would be fully consistent with at least 14 of the 17 General Plan policies applicable to residential developments. The Court then stated: "Respondents also argue ~at.. . a Eiven proiect need not be in perfect conformity with each and every [General Plan] policy. We a~ree. Indeed, it is beyond cavil that no project could completely satisfy every policy stated in the [General Plan], and that state law does not impose such a requirement. · . . Once a general plan is in place, it is the province of elected city officials to examine the specifics of a proposed -15- 990528 1123 I~C~59 sas MEMO. OF PS&AS OF RESPONDEN'T CITY OF RANCHO CUCAMONGA IN OPP. TO pETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 project to determine whether it would be 'in harmony' with the policies sated in the plan. It is, emphatically, not the role of the courts to micromanage these development decisions.' Sequoyah Hills Homeowners Association v. City of Oakland, 23 Cal. App.4th 704, 719 (1993) (emphasis added). Similarly, in Greenebaum v. City of Los Angeles, 153 Cal. App.3d 391 (1984) the Court of Appeal recognized that the land use element of a general plan represents a goal, rather than a rigid requirement: "'The general plan which a city or county is required to adopt is simply a statement of policy. A general plan or policy.. . serves to provide a sanding consistent answer to recurring questions and to act as a guide for specific plans or programs.'" Greenebaum v. City of Los Angeles, 153 CaI.App.3d 391,406 (1984) (citing Bownds v. City of Glendale, 113 Cal. App.3d 875,881 (1980)). The Court of Appeal then noted that a presumption of validity attaches to a City Council's determination that a project is "consistent" with the general plan: "[T]he City Councfi issued an express finding that the proposed subdivision tract map was consistent with the district plan prior to its approval of the proposed tract. The trial court, as noted above, could reverse the agency's decision only, if based on the evidence before the agency, a reasonable person could not have reached the same conclusion. The City Council's decision, although based on conflicting evidence, was reasonable and within its discretion, and was supported by its fmdings which 1 2 3 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, were based on substantial evidence. Based upon the evidence before the agency, the trial court correctly refused to reverse the agency's decision." Greenebaum v. City of Los Angeles, 153 Cal.App.3d 391,408 (1984). In Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles, 177 Cal.App.3d 300 (1986), a case remarkably similar to the case at bar, neighboring homeowners challenged approval of a tentative tract map on the grounds that the 35-acre parcel was designated on the General Plan Land Use Policy Map as nonurban (less than one unit per acre) whereas the tract map called for a development of 15 units per acre. The Court of Appeal rejected this argument: /// /// /// "Because it is necessary to judge proposals in relation to stated policies of the General Plan in addition to the policy map itself, a proposal may be consistent even if not literally supported by the maD. The mere examination of land use and other policy maps is insufficient to determine consistency. . . . The General Plan was designed to include the more specific areawide plans as component parts. The trial court's conclusion, that there is but one general plan of which the MSMMAP [Malibu/Santa Monica Mountains Area Plan] is a consistent and necessary component, is correct. The areawide plan serves to complete, extend and refine the General Plan land use policy, not contradict it. We therefore fred no inconsistency between the project land use densities and the -17- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON MSMMAP, or between the MSMMAP and the County General Plan." Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles, 177 Cal. App.3d 300, 310, 311-12 (1986) (emphasis added). The Attorney General has reached the same conclusion in several opinions on the subject of consistency with general plans. "[i]t is quite apparent that the 'consistency' or 'conformiw' need not require an exact identity between the zonin~ ordinance and the ~eneral plan." 58 Ops. Cal. Arty. Gen. 21, 25 (1975) (emphasis added). In another opinion specifically addressing subdivision plans, the Attorney General stated: "[I]t is apparent that consistency between the subdivision map and the ~.eneraI plan does not require an exact identity, rather that the proposed tentative or fmai subdivision map be in agreement with or harmonious with the general or specific plan." 59 Ops. CaI. Arty. Gen. 129, 131 (1976) (emphasis added). .In light of the foregoing authorities, and the declarations of Jack Lam and Rick Gomez, respondent respectfully submits that there is no inconsistency be~'een the proposed subdivision and the General Plan, or between the Development Code and the General Plan. As the maps attached as Exhibits B through H to the Lam declaration demonstrate (17 A.R. 3966-73), the Land Use Plan and Open Space Plan are themselves somewhat divergent, in that they each describe a slightly different area as being designated for "flood control" use and for residential use. The Zoning Map simply classifies the subject property as being in the "VL' zone, which is consistent with the Land Use Plan, and draws the line for "Flood Control" at the eastern boundary of the property. The Tentative Tract Map, in turn, is consistent with the Zoning Map. The "lines" on the Land Use Plan and the Open Space Plan upon which petitioners rely so heavily are in fact so thick that they themselves cover up or obliterate whole parcels of land. The borders of the "flood control" area are designated on the Open Space Plan in a scalloped or "bubble" border, reminiscent of the 990528 1 I23 I~0059 s,~ MEMO. OF PS&AS OF RF. SPONDEN'r CITY OF RANCHO CUCAMONGA IN OPP. TO PETIT1ON FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R,C,~ROS, G~RSHON 0384360 "bubbles" which contain unexpressed thoughts of characters in comic strips. (12 A.R. 2696; 17 A.R. 3968.) Yet this is the map upon which petitioners base their "inconsistency" argument. What possible "meaning" do these scalloped lines have, other than to make clear to the reader that the lines are not rigid or precise, but are generalized7 IV. THE CITY'S APPROVAL OF DR 98-13 FULLY COMPLIED WITH THE REQUIREMENTS OF THE CITY'S DEVELOPMENT CODE. The City's Development Code provides that before approving a Development/Design Review Application, a finding is required that "the proposed use is in compliance with each of the applicable provisions of the Development Code." (R.C. Dev. Code, § 17.06.010(F)(3); City PjN, p. 31.) The City Council made that finding in approving DR 98-13. (26 A.R. 6474.) Nonetheless, petitioners erroneously contend that the City violated the technical requirements of the Development Code in three respects. (Petitioners' Brief, pp. 31-37.) A. The City ProperIv Accepted the DR 98-13 Application. The Development Code establishes procedures for new applications following the denial of a development review application. Section 17.06.010(G) states: "Following the denial of a Development Review application, no application for the same use or substantially the same use on the same or substantially the same site shall be filed within one year from the date of denial." (City RJN, p. 31.) -19- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioners first contend the City and Developer violated the one-year requirement in this provision. (Petitioners' Brief, p. 33.) However, Section 17.06.010(G) has no application here. The Development Code defines "use" as "the conduct of an activity, or the performance of a function or operation, on a site or any building or facility." (R.C. Dev. Code, § 17.02.140). Petitioners offer a simplistic and unduly narrow reading of the word "use" -- namely, DR 97-11, which was denied, and DR 98-13 both propose a "residential" use, and therefore the one-year period must apply. The City, however, reads the word "use" more broadly, ta'kiug into account the underlyin=o purpose of Section 17.060.010(G) and the nature and comext of the DR 98-13 Application. This was proper. The one-year requirement, a common provision in municipal zoninS codes, is repeated in various sections of the Rancho Cucamonga Development Code. (See e.g., R.C. Dev. Code, § 17.06.020(G); City RJN, p. 33.) Its purpose is to "prevent[] the applicant from submit~in=o the same application over and over without revising the project," and thus overtaxing the City and its stuffs resources. (26 A.R. 6340.) Here, Lauren did not simply resubmit the same application to the City. The basic use -- 40 single-family residences -- was approved long ago, at the tract map and conceptual =orading phase. Therefore, the appropriate focus of the staff evaluation for whether or not a revision occurred centered on the project's desi=on and architecture. After all, the City Council denied the prior application, DR 97-11, for basically two reasons: the architectural design proposed too few floor plans and an insufficient variety in the buildin=~ elevations. Without saying it in so many words, the City Council simply did not want to approve a "tick-y-rocky' development where all of the houses look alike. In DR 98-13, Lauren responded [o these concerns and proposed a substantial change to the project architecture, and the City staff so found. (26 A.R. 63-40.) Substantial evidence in the record supports that determination. As previously explained, the aspect of the "use" being reviewed in DR 98-13 differed from DR 97-11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in the following ways: (1) each of the 40 homes will be unique in design and configuration; (2) outwardly visible architectural features, previously optional, are now standard and wi/I be applied on a house-by-house and lot-by-lot basis; (3) all rear garages are now proposed to be shielded from view through placement of Porte Cocheres or gates with pi/asters; (4) a variety of elevations are now proposed, including French Country, Spanish Colonial, Italian Tuscan, Prairie and Traditional; (5) entirely different home "footprints" have now been added; and (6) the square footage of the homes has been increased. (17 A.R. 3779, 3989-3990.) Thus, the City's staff properly determined that Section 17.06.010(G) did not apply in the circumstances presented. B. A Second Review by the Technical Review Committee Was Not Required. Petitioners next argue the Development Code was violated because DR 98- 13 was not reviewed by the Technical Review Committee. (Petitioners' Brief, pp. 34- 36.) This likewise misconceives the requirements of the Development Code. Section 17.06.010 of the Development Code provides for "Development/Design Review." Section 17.06.010 establishes review procedures for all of the various types of developments which may be proposed in the City. This includes single-family residential subdivisions, as well as residential projects which propose five or more dwelling units. CR.C. Dev. Code, § 17.06.010.B & C; City PJN, pp. 27-29.) Three staff-level committees -- the Design, Grading and Technical Review Committees -- are "established to be advisory to the Planning Commission and the City Planner." (R.C. Dev. Code, § 17.06.010(C)(3); City PjN, p. 29.) These committees provide initial review of development proposals, and are required to "make a recommendation on each project for consideration by the Planning Commission or City Planner, if applicable." (R.C. ev. Code, § 17.06.010(E)(2); City Rj'N, p. 29; emphasis added.) The City's Design Review and Grading Committees did meet in connection with DR 98-13 and did make advisory reconu-nendations to the City Planner and -21- 990528 11231-0CG59 sac MEMO. OF PS'c~AS OF RF. SPONDENT CETY OF RANCHO CUCAMONGA IN OPP. TO pETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON Plaming Commission. (26 A.R. 3870-3885.) However, there was no need for the Technical Review Committee to meet because, as explained below, that Committee did its job in reviewing the original subdivision and grading proposal. Another review by the Technical Review Committee was not "applicable~ within the meaing of Section 17.06.010(E)(2). Section 17.06.010(E) of the Development Code sets forth the responsibilities of each of the Committees. As to the Technical Review Committee, the Development Code provides: "Review by this Committee will consider items, such as, but not limited to circulation; street improvements, ri.ht-of-waV dedication; utility easements; ~radinm draina.~e facilities; storm drain immrovements; uniform buildinZ code requirements; security; fire flow; ememencv access; location of fire hvdrants; water and sewer line connections and sizina; water pressure; permit fees; streetscape and landscape standards; setbacks; parkinto and requirements for environmental l~rocessin~. The Committee will require changes in any development for compliance with adopted codes and standards. They may also make recommendations to the City Planner and Planning Cornmission on any policy issues or areas not covered by existing codes and standards." (R.C. Dev. Code, § 17.06.010(E)(4); City RIN, pp. 30-31) (emphasis added.) The Technical Review Committee met on August 14, 1990 to review, and to make recommendations concerning, the original Tentative Tract Map and Conceptual Grading Plan. (I A.R. 119-125.) The record establishes that virtually all of the items to be considered by the Technical Review Committee under Section 17.060.010.E.4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS. were- addressed at that time by that Committee and/or by the conditions imposed on the tract map approval. (Id.; 1 A.R. 251-257, 262-265.) This is typical in the subdivision context. As City staff explained: "[A]s a departmental policy, development review applications for an approved tentative map are only subject to review by the Grading Committee and Design Review, and not the Technical Review Committee." (26 A.R. 6340.) The City Plarmer's determination that review by the Technical Review Committee is not applicable to the lot-specific refinement of the project is thus amply supported by the record. Moreover, in approving the Tentative Tract Map, the City imposed a condition requiring the project to "conform to all provisions of the Hillside Development Ordinance (Section 17.24 of the Development Code).'' (1 A.R. 263.) The Hillside Development Regulations establish that "[a]I1 projects within a hillside area · . . shall be subject to Grading Committee and Design Review Committee review with approval by the City Planner, or Planning Commission." CR.C. Dev. Code, § 17.24.020; City RJN, pp. 38-39.) Again, both Committees reviewed the 98-13 Application and provided input. (26 A.R. 3870-3885.) A second and duplicative review by the Technical Review Committee was not required. C. Lauren Satisfied the Applicable Filin,o Requirements. The application filing requirements for Hillside Development Regulations are contained in Section 17.24.030 of the Development Code. (City RJN, pp. 3%41.) Section 17.24.030 requires, among other things, the submittal of a natural features map, a colored cut and f~l map, a conceptual drainage and flood control facilities map, a slope analysis map, slope profiles, a geologic and soils report, and a statement of conditions for ultimate ownership and maintenance of the development. Section 17.24.030(L) further provides that "[e]xceptions to the filing requirements.. . shall be determined by the City Planner ...."(City PJN, p. 41 .) Here, Lauren satisfied these filing requirements, to the extent they apply, during the processing of its approved tract map and conceptual grading plan. -23 - 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioners argue, in effect, that Lauren was required to make duplicative submissions by physically resubmitting the same documents in connection with DR 98-13 which had previously been fried. (Petitioners' Brief, pp. 36-37.) This suggestion was succinctly and correctly answered by the Staff Report: "As the project is tied to the previously approved Tract 14771, for which all f~ing requirements were submitted, it was determined [by the City Planner] that certain fling requirements were not applicable as they contained an unnecessary duplication of existing material. "In any event, the natural features map, cut and fril map, conceptual drainage and flood control facilities map, and slope analysis and slope profile map were submitted and approved with Tentative Tract 14771. Conditions of approval for Tract 14771 require the submission of a Soils Report during the grading plan check of the project. The statement of ultimate ownership and maintenance are contained in the CC&Rs that were recorded with the tract map." (26 A.R. 6340.) The Hillside Regulations sensibly provided the City Planner with the authority and discretion to determine compliance with the fling requirements. The documents petitioners label as "missing" had in fact already been submitted to the City (10 A.R. 2467-2479) or, in the case of the soils report, was dealt with specifically in the course of the Tentative Map Approval (30 A.R. 7362-7439.) The City Planner properly determined to exempt the developer from the need to make a duplicative submission. /// -24- 99052S 11!3 I~XD59 s~s MEMO. OF PSiAS OF RE~PONDEN'r CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WRIT OF MANDATE 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R,GI'~ARDS. WATSON & G~RSHON oss~eo D. Petitioners Cannot Demonstrate Prejudice, Substantial Iniurv or Any Likelihood of a Different Result. Even if one were to assume for the sake of argument that the processing of the DR 98-13 Application fell procedurally short in any of the above respects (a proposition which respondent strongly disputes), petitioners' arguments still have no merit. Government Code section 6501000) provides a curative statute for procedural miscues that arise during the land use review process. Section 65010(b) states that no action, inaction, or recommendation by a local agency or officials on any land use matter shall be held invalid or set aside by any court by reason of any error, irregularity, informality, neglect, or omission, as to any matter of procedure, un/ess (1) the court finds that the error was prejudicial, (2) the party complaining or appealing suffered substantial injury from that error, and (3) a different result would have been probable if the error had not occurred. Although they raise technical objections in an effort to block the Lauren project, petitioners simply have not demonstrated any prejudice, substantial injury or likelihood of a different result as a result of the City Planner's acceptance of the DR 98-13 Application within one year of action on DR 97-11, his determination not to require a second review of matters already considered by the Technical Review Committee and acted upon at the tentative map and conceptual grading stage, or his decision not to require a duplicate submission of documents previously provided to, or otherwise dealt with by, the City. For all of these reasons, respondent respectfully submits that the court should reject petitioners' arguments based on Development Code requirements. /// /// /// /// /// /// -25- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & GERSHON TIlE CITY COUNCIL'S FINDINGS ARE PROPER AND SUFFICIENT. Despite two prior lawsuits on the identical issues raised in this case, petitioners incredulously attempt to argue that the City Council's findings do not adequately apprise them of the basis of the City's decision to approve DR 98-13. However, petitioners own voluminous brief belies such a conclusion. In Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 5i4 (1974), the Supreme Court held that an administrative board "must render findings sufficient both to enable the parties to determine whether and on what basis they should seek review, and, in the event of review, to appraise a reviewing court of the basis for the board's action ...."Because the administrative body has the technical expertise to aid it in arriving at its decision, "the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision." Id__. Petitioners single out two findings as being inadequate. First, they argue that Resolution DR-178 fails to include a finding that DR-13 is consistent with the General Plan. However, as amply demonstrated in Section III, supra, consistency with the General Plan is a determination which is made at the tentative map stage. It bears emphasis that in this case, petitioners not only failed to object to Tentative Tract Map No. 14771, they expressly uraed the Plarmin~ Commission to approve it. (1 A.R. 232, 248.) Moreover, in any event, Resolution DR-178 specifically states that DR-13 "contemplates the construction of 40 single family homes on 25.35 acres of land which is consistent with the Very Low Residential land use designation of the General Plan." (26 A.R. 6474.) This provides a succinct and legally adequate explanation of why DR- 13 is consistent with the General Plan. Nothing more was required under Topanga. It is well-settled under California law that administrative findings by a local government need not rise to the level of formal legal findings of the type a court would -26- 990528 11231~0059 sas MEMO. OF P.~f,:AS OF RE~PONDENT CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WP/F OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F{ICHARDS. WATSON & GERSHON make following a trial. "To, panga reiterates the long established rule in California that admiEistrative findings need not be as precise or formal as would be required of a court." Markley v. City Council of the City of Los Angeles, 131 Cal.App.3d 656, 673 (1982) (citing McMillan v. American General Finance Corp., 60 Cal. App.3d 175, 183 (1976). Furthermore, petitioners did not object to the sufficiency of the findings at the time they were adopted, and this constitutes a waiver of such objections, as well as a failure to exhaust administrative remedies. Each of these is fatal to petitioners' argument. In People ex rel. California Regional Water Quality Control Board v. Barry, 194 Cal. App.3d 158 (1987) the Court of Appeal rejected an attack on the sufficiency of administrative findings: "Batty also contends the regional board failed to make findings of fact sufficient to support its cleanup resolution (No. 86-057), citing Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) i1 Cal.3d 506, 515 [113 Cal.Rptr. 836, 522 P.2d 12]. Barrv has waived this claim. The doctrine of exhaustion of administrative remedies provides that, with exceptions not applicable here, a litigant may not assert in court claims of correctable administrative a_.oencv that were not tendered to the a-_,encv. Barry's claim that the regional board made inadequate findings was correctable by the state board, but Barry never tendered the issue to that board in his petition for review. Thus, neither the trial court nor this court may consider it in the first instance." People ex rel. California Regional Water Quality Control Board v. Barry, 194 Cal. App.3d 158, 178-79 (1987) (emphasis added) (citations omitted). -27- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 !5 16 17 18 19 20 21 22 23 24 25 26 27 28 The same result is reached under the doctrine of failure to exhaust administrative remedies. In Endangered Habitats League, Inc. v. State Water Resources Control Board, 63 Cal. App.4th 227, 237 (1997), the Court of Appeal recently explained: "Under the exhaustion doctrine, 'where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.' (AbeHeira v. District Coum of Appeal (1941) 17 Cal.2d 280, 292 ....) This is a jurisdictional prerequisite, not a matter of aeneral discretion (id. at p. 293), and applies to actions.seeking both ordinary and administrative mandamns [citation]. The exhaustion doctrine is codi~ed in CEQA in [section] 21177." 63 Cal. App.4th 227,237 (emphasis added) (citations omitted). The exhaustion doctrine "precludes judicial review of issues, legal and factual, which were not first presented at the administrative agency level." Kane v. Redevelopmerit Agency, 179 Cal. App.3d 899, 924 (1986). "The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subject to judicial review." Coalition for Student Action v. City of Fullerton, 153 Cal. App.3d 1194, 1198 (1984) (italics in original). Petitioners additionally argue that Resolution 98-178 fails to include a finding that the project "will not be detrimental to the public health, safety, or welfare." However, Resolution 98-178 states that DR-13 "is in accord with the objectives of the Development Code and the purposes of the district in which the site is located, is in compliance with each of the applicable provisions of the Development 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON ~, GERSHON Code, and will not be materially injurious to properties or improvements in the vicinity." (26 A.R. 6474.) Furthermore, Resolution 98-i79 was adopted concurrently by the City as a separate resolution addressing the environmental issues raised by DR-13. In Resolution 98-179, the City Council expressly "finds that the envkonmental materials presented and environmental concerns raised at the hearing on this design review maUer did not relate to the discretionary matter before the Council, the lot- specific design of the residences in question." (26 A.R. 6477.) The City Council also "finds that, in any event, none of the criteria in Section 15162 of the California EnvkonmentaI Quality Act Guidelines requiring subsequent environmental review exist or are present with respect to Council's action on the Development/Design Review application." (26 A.R. 6477.) These determinations, which included the removal of the levee from the property, were proper and adequate, and as demonstrated in Section VI, infra, were amply supported by the evidence in the record. See Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 516-17 n. 16 (1974) (zoning agency's findings of fact "need not be stated with the fonnaliry required in judicial proceedings. ") SUBSTANTIAL EVIDENCE SUPPORTS THE CITY COUNTCIL'S FINDING THAT DR 98-13 I~VILL NOT BE DETRIMENTAL TO THE PUBLIC HEALTH, SAFETY AND GENERAL WELFARE. The City Council found, based upon substantial evidence presented, that no subsequent environmental review under CEQA was required with respect to the approval of DR 98-13. (26 A.R. 6477.) In the prior CEQA lawsuit, challenging an identical City finding in connection with the earlier Design Review Application, Judge Mandabach ruled that the City's determination not to require a supplemental EIR -29- 990528 11231-0C059 s~s MEMO. OF PS&AS OF RESPONDEN'I' CITY OF RANCHO CUCAMONGA IN OPP, TO PETITION FOR WRIT OF MANDATE 1 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RIChLARDS, WATSON & regarding removal of the levee was supported by substantial evidence. (City KIN, pp. 11-13 .) Petitioners here reassert the same issue, this time in the context of whether DR 98-13 will be detrimental to the public health, safety and welfare. They make precisely the same argument as was rejected by Judge Mandabach in the prior CEQA case, to the effect that evidence was submitted to the City Council showing that removal of the earthen levee (which already has a 210-foot wide opening and street right-of-way manhag through it) will create the danger of flood damage followhag a major storm event. (Petitioners' Brief, p. 29-31 .) The substantial evidence test standard of review applies regardless of how petitioners try to characterize the issue. The City's findhag is supported by substantial evidence in the record. A. The Substantial Evidence Test. In the CEQA context, once a Negative Declaration has been adopted for a project, a public agency's discretion to require supplemental environmental review is lirnited. Sierra Club v. County ofSonoma, 6 Cal. App.4th 1307, 1316-1317 (1992). A subsequent EIR shall not be required unless "[s]ubstantial changes" are proposed in the project or in its circumstances which will require "major revisions" of the previously approved environmental document, or "new information, which was not kinown or could not have been l, mown' at the time of the EIR or Negative Declaration, becomes available. Pub. Res. Code, § 21166; Title 14, California Code of Regulations, State CEQA Guidelines ("Guidelines"), § 15162(a). The "new haforrnation' must show ihat the project will have a significant impact not previously analyzed or that the impact will be substantially more severe than previously analyzed. Guidelines, § 15162(a)(3)(A), (C); A Local & Regional Monitor v. City of LOs Angeles, 12 Cal. App.4th 1773, 1800 (1993). The purpose of this rule is to avoid repeating the CEQA process once environmental review has been completed and the time for challenging that process has expired. Kostka & Zischke, Practice Under the Cad. Environmental Oualitv Act, ¶ 19.37, p. 745 (CEB 1997). 990528 11231430059 sa~ MEMO. OF PS&AS OF RESPONDENT CITY Of P, ANCHO CUCAMONGA IN OPP. TO PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When a court reviews an agency decision not to require a subsequent or supplemental ELR, the traditional, deferential "substantial evidence" test applies. Sierra Club v. County ofSonoma, 6 Cal.App.4th 1307, 1318 (1992). The agency's decision not to require further environmental review "must be upheld if it is supported by substantial evidence in the record as a whole." Gentry v. City of Murdeta, 36 Cal. App.4th 1359, 1401 (1995). In applying the substantial evidence test in this context, the reviewing court "may not substitute [its] own judgment for that of the [decisionran'king] agency" (A Local & Regional Monitor v. City of Los Angeles, 12 Cal. App.4th 1773, 1799-1800 (1993)) and "'must resolve reasonable doubts in favor of the administrative findings and decision.'" Laurel Heights Improvement Assn. v. Regents of the Univ. of Califonzia, 47 Cal.3d 376, 393 (1988). As such, "if there are conflicts in the evidence, thek resolution is for the agency." Sierra Club v. County ofSonoma, 6 Cal. App.4th 1307, 1317 (1992). The very same rules apply to judicial review of a decision on a development/design review application. Brenedc Associates v. City of Del Mar, 69 Cal. App.4th 166, 176 (I998). B. Substantial Evidence in the Record Supports the Conclusion That the Deer Creek Debris Basin was Adequately Sized and Desio~ned. Petitioners contend that "there is no contrary evidence to the substantial evidence that removal of the Flood Control Levee will create an mediate and imminent danger of flood damage following a major storm event." (Petitioners' Brief, p. 31 .) This argument centers on the adequacy of the Deer Creek Debris Basin to protect downslope properties from flooding and debris flow. Contrary to petitioners' assertion, the record does indeed contain conflicting expert evidence on this issue. "Where, as here, the evidence was conflicting, the City Council was permitted to give more weight to some of the evidence and to favor the opinions and 99052~ 1 I231-(~1359 sas MEMO. OF PSiAS OF RESPONDEN7 CITY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 estimates of some of the experts over the others." Greenbaum v. City of Los Angeles, 153 Cal. App.3d 391 (1984). Indeed, the City Council is "the sole arbiter of all conflicts in the evidence, conflicting interpretations therefrom, and conflicting inferences which reasonably may be drawn therefrom ...."Pescolido v. Smith, 142 Cal. App.3d 964, 970-971 (1983). The trial court does not reweigh the evidence, although petitioners appear to urge this Court to do so. Sunset Amusement Co. v. Board of Police Cornmrs., 7 Cal.3d 64, 76 (1972). The Deer Creek Debris Basin is located at the mouth of Deer Canyon. The embanl~nent consists of a compacted earthfall structure, with a maximum height of 58 feet and a crest length of 1,857 feet. A rectangular broadcrested concrete channel is located on the east side of the embantqnent fill and has a width ranging from 75 feet at the crest to 51 feet at the downstream end, and a depth of 19.5 feet at the crest. The channel has been designed to pass a maximum probable flood of 15,000 cubic feet per second. The Debris Basin has a capacity of 310 acre-feet of debris storage. The entire facility occupies about 32 acres. (7 A.R. 1846.) Petitioners f~rst misread some of the purported "facts" they atwibute to this facility. They note the following statement in written materials provided to the City by a representative of the Flood Control District: "Deer Creek Debris Basin was designed to accommodate 310 acre feet of debris. However, a cursory review of the chart, given the 3.7 square mile watershed of Deer Creek it appears that 440 acre feet would be closer then [sic] the 310 acre feet the C. of E. came up with." (29 A.R. 7094; emphasis added.) However, the record demonstrates that this "cursory" review was truly incomplete, and therefore not accurate. It was based on one of the applicable tables (29 A.R. 7155), but did not account for the debris production factors and correction factors shown on other applicable tables which, when applied, explain why the debris basin capacity is correctly designed to be 310 acre feet. (See 29 A.R. 7114- 7115 (Corps of Engineers Design Memorandum, pp. 111-2 and III-3, providing the calculations for the Deer Creek Debris Basin).) -32- 9~0528 I 123 1~0059 ~s MEMO. OF PS&AS OF RESPONDENT CITY OF RANCI':O CUCAMOf'~GA iN OPP. TO PETITION FOR WP, IT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F{ICHARDS. WATSON GERSHON Petitioners also point out that the most recent debris capacity calculation for the Deer Creek Debris Basin, made in October 1994, was 257-acre feet. (29 A.R. 7103.) However, it should not be surprising that the basin periodically accumulates debris -- this is its very purpose! When debris accumulates, the remaining capacity of the debris basin is obviously reduced. In response to this very issue, the Flood Control District explained that it undertakes regular maintenance reviews of this facility, that "maintenance activities are accordingly scheduled when warranted, including removal of sediment that may have been deposited behind the Dam,' and that the State Division of Safety of Dams also conducts annual inspections and would notify the District if it perceived any maintenance deficiencies which must be corrected. (6 A.R. 1570; 29 A.R. 7219.) In any event, the question of whether the Deer Creek Debris Basin was adequately sized and designed is not a new issue at all. In the f~st CEQA l~wsuit, Judge Mandabach squarely addressed this issue, noting first the conflicting evidence before the City and then ruling, based upon the settled standards set forth above: · . . the court hearing the writ does not reweigh conflicts in the evidence and may not substitute its judgment for that of the City. The test is only whether the City's action is based on substantial evidence even if there is evidenced to the contrary. The administrative record has substantial evidence to support a position that the capacity of the Debris Basin is adequate. Therefore this court fred that the Respondent City's determination not to require a SEIR [Supplement EIR] regarding Debris Basin capacity was based on substantial evidence." (City PJN, p. 16.) -33- 9~1528 11231430059 sas MEMO. OF P.S&AS OF RESPONDENT CITY OF ILANCHO CUCAMONGA IN OPP. TO pETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judge Mandabach considered the identical arguments and essentially the same evidence presented in this case by both petitioners and the City. (Indeed, Volumes 1-12 of the Administrative Record in this case constituted the Admi~strative Record in the prior CEQA case). Petitioners, on the one hand, point to a table in the Flood Control District materials which purport to compute debris production using a method updated by the Amy Corps of Engineers in 1992. While the Debris Basin was designed to accommodate 310-acre feet of debris based on a debris producing storm occurring 4 to 5 years after a 100% bum, petitioners would argue that this table indicates that application of this new method would estimate a debris production of 764- acre feet for a comparable period after a major bum. (29 A.R. 7102-7103.) Petitioners then point to an ersatz declaration from David Willjams (not signed by Dr. Williams, but by someone else) which concluded that "removal of the existing secordary levee and construction of homes in its location would place future and existing homeowners in danger." (23 A.R. 5570.) By contrast, the record incluues other evidence which demonstrates that the Corps of Engineers constructed this facility in 1983 based upon detailed Design Specifications, an Enviroranental Impact Statement and a Design Memorandum. (7 A.R. 1844-1847.) In the context of the development/design review proceedings, the Flood Control District, which took over the operation and maintenance of the Debris Basin, specifically advised the City: "The Corps used its normal high standards for the design and construction. The facility was sized to handle a 'standard project flood event,' which for this facility was estimated to be a '200-year return event. (6 A.R. 1570.) The Flood Control District further explained that the State Deparnnent of Water Resources ~hrough its Division of Safety of Dams "previously has certified the -34- 9~1528 1 I23 I-0(](Y39 m MEMO. OF PS&AS OF RE~PONDENT CITY OF RANCHO CUCAMONGA IN OPP. TO Pt: 111 ION FOR WPjT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dam and makes annual inspections to assure that the Dam meets State guidelines." Cid.) Moreover, in 1991 the Corps certified that, as constructed, the facility would withstand a 100-year flood event (1 A.R. 272), although it was designed to withstand an even larger flood -- one "that would be exceeded on an average of once every 200 years at the upstream gage, and once every 300 years at the downstream gage." (4 A.R. 1067.) As a result, the Flood Control District (1) abandoned its flood easement across the subject property in 1986, (2) approved a 210-foot breach which was cut in the earthen levee in 1989, (3) supported a decision by FEMA in 1991 to lift the flood risk designation on the property, and (4) approved the construction of the replacement channel along the northern portion of the property.s` (1 A.R. 279; 2 A.R. 356; 6 A.R. 1524, 1572; 7 A.R. 1848.) The City Council was entitled to give lesser weight to the evidence on which petitioners rely and to give greater weight to the other substantial evidence which supports the conclusion that the Deer Creek facility was adequately sized and designed. Sierra Club v. County ofSonoma, 6 Cal. App.4th 1307, 1317 (1992). It is not the Court's role in this case to reweigh that evidence. Substantial evidence, therefore, supports the City Council's determination not to require further environmental review, as well as the Council's finding that DR 98-13 will not be detrimental to the public health, safety and general welfare. /// /// I// /// _8/ A qualified geotechnical consultant further compared the replacement channel and the breached earthen levee, and concluded that in its "professional opinion that, from a geotechnical perspective, the proposed [replacement] storm drain channel and associated slopes are more stable against gross failure than the existing levee. (4 A.R. 1171.) While no organization currently maintains or operates the breached levee, the replacement channel will be maintained by a private homeowners' association covering the subject property or the City if the association were to default in its maintenance responsibility. (2 A.R. 358; 3 A.R. 694.) -35- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. TH2E CITY'S DECISION FULLY COI~I?ORTS WITH TFrE, REQUIREMENTS OF CEQA. In the ftrst lawsuit challenging the City's decision on DR 97-11, Cucamongans United for Reasonable Expansion ("CURE") v. City of Rancho Cucamonga (San Bernardino County Superior Court, Docket No. RCV 30406), Judge Mandabach upheld the City's determination not to require a supplemental EIR, ruling the City's decision to be supported by substantial evidence in the record. (City RJN, p. 16.) In an effort to skirt that adverse ruling and to relidgate the same issue, petitioners now attempt to recast the CEQA issue. Specifically, they argue that DR 98-13 involves a "new" and different project, and thus Lauren should have been required to start the entire CEQA review process all over again, with an Initial Study and under a different standard of review. (Petitioners' Brief, pp. 43-45.) This is factually and legally wrong. DR 98-13 did no more than approve the precise architectural design of the residences to be constructed within the subdivision project approved in 1990. The nature, scope and environmental consequences of the project were fully defined at the tract map stage. At that time, the developer proposed a custom loftresidential subdivision for 40 single-family homes. (1 A.R. 24, 163.) The City approved Tentative Tract Map No. 14771, which determined the exact layout of lot lines for each parcel created, and a Conceptual Grading Plan, that included "prototypical lot grading and layout scheme . . . which indicates that split level foundations will be provided." (1 A.R. 165.) The condition~ of the tract approval specifically anticipated the precise development of the site represented in DR 98-13. The City required, inter alia, the preparation of grading plans which substantially conform with the approved Conceptual Grading Plan, and final grading plans for each lot, on an incremental or composite -36- 990528 112314210059 sas MEMO. OF Pi&AS OF RESPONDENT CITY OF RANClIO CUCAMONGA IN OPP. TO Pi: i 11 ION FOR WRIT OF 8,1ANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FilCHARDS, WATSON & basis, prior to the issuance of building or gradLug permits. (1 A.R. 255~256.) As to design review, the City further required that: (1) split level pads, stem walls and varying floor plans be incorporated to minimize grading; (2) there be no garage doors facing Ringstem or Tackstem; (3) the number of front-on garages be limited to 33% of the total lots; and (4) the specific houses designed on Lots 2 and 3, with garages located in the ground, might be needed to accommodate the slope of the lot and to prevent a structure which might exceed the required buildLug envelope. (1 A.R. 263.) Thus, in DR 98-13 Lauren applied to the City for the lot-specific development of this approved residential tract. The application did not propose any change to lot lines or the number of lots approved. The previously approved grading was refined on a lot-specific basis. The basic design features spelled out in the original tentative tzact map approval were implemented. Specifically, the Application for DR 98-13 included a site plan reflecting a unique architectural design for each of the 40 homes proposed. (17 A.R. 3989-3990 .) A Prelirnlnnry Grading Plan reflecting split*level formclarions was also submitted, which Lauren explained is "totally consistent with the earlier Conceptual Grading Plan, with the only refinements being in the immediate area of each home." (17 A.R. 3780, 3990.) City staff concurred in that explanation. (17 A.R. 3990.) Petitioners now baldly assert that the Conceptual and Preliminary Grading Plans are "significantly different," apparently because the former was conceptual and the latter is site-specific. (Petitioners' Brief, p. 44.) However, as City staff concluded from its review of both plans: "[The] [p]roposed grading is in substantial conformance with the originally approved grading plan." (17 A.R. 3990.) Petitioners ignore the staff conclusion. Mischaracterizing the record, petitioners also argue that "[i]n less guarded moments," the City acknowledged in Staff Reports that the two projects were separate and distinct. (Petitioners' Brief, p. 44.) In fact, however, the record demonstrates that City staff fLrSt pointed to attached exhibits which contain the Conceptual Grading Plan and the Preliminary Grading Plan. (3 A.R. -37- 99(~28 1 I231-00059 sss MEMO. OF PS&AS OF ILESPONDEN'I' CiTY OF RANCHO CUCAMONGA IN OPP. TO PETITION FOR WRiT OF ~tANDATE 1 2 3 4 5 6 7 8 9 t0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS. WATSON & 625; -17 A.R. 3990.) This was followed by the conclusion, quoted above, that the more refined grading proposed by the Preliminary Grading Plan "is in substantial conformance with the original approved grading plan." (17 A.R. 3990.) Petitioners' argument is also wrong as a matter of law. CEQA anticipates that a project may require a series of discretionary approvals. The CEQA Guidelines provide: "The term 'project' refers to the activity which is being approved and which may be subject to several discretionary approvals bv ~overnmentaI a.~encies. The term 'proiect' does not mean each separate ~overnmental approval." Guidelines, § 15378(c); Committee for a Progressive Gilroy v. State Water Resources Control Bd., 192 Cal.App.3d 847, 863 (1987) (emphasis added). Thus, the fact that the 1990-approved project necessarily required further separate City approvals does not convert each subsequent discretionary component of the project into a "new" or "different" project for purposes of CEQA compliance. The California courts have consistently rejected arguments that changes transformed a previously approved project Lnto a "new" project reqniring the entire CEQA review process to start over -- even when the changes were quite substantial. Here, by conn'ast, the subsequent DR 98-13 proceeding did not involve any change to the project at all -- it merely approved the precise architectural design for the 40-lot residential project approved in 1990. For example, in Bentot, v. Board of Supervisors, 226 CaI.App.3d 1467 (1991), the County approved the construction of a winery and issued a "mitigated negative declaration." (Under CEQA, a mitigated negative declaration is a finding that the project will have no material adverse effect on the environment if certain mitigating conditions are satisfied). Thereafter, the developer sought, and the County again approved, a second use permit to relocate a winery one mile from the original approved site and closer to some existing nearby homes. Rejecting an argument similar to that raised here, the Court held that "we are satisfied that the project before the board was a modification of the existing winery project, not an entirely new project." 226 -3g- 990528 I ] 23 l-OK)059 sas MEMO, OF PS~S OF RESPONDENT CITY OF KANCHO CUCAMONGA IN OPP. TO PETITION FOR WP, IT OF MANOAT6 1 2 3 5 6 7 8 9 10 !1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS, WATSON & Cal. App.3d at 1483-1484; see also Fund for Environmental Defense v. County of Orange, 204 Cal.App.3d 1538, 1542-1548 (1988) (court treated a second use permit for a research facility as a modification of the earlier approved project, not a "new" project, where property surrounding the project had since been redesignated wilderness park and developer proposed to add a new building and increase size of the project by 30%); Bowman v. City of PetaIutna, 1.85 Cal. App.3d 1065, 1076-1079 (1986) (court treated a reapplication for a subdivision map as a modification of an earlier subdivision approval, despite new changes proposed in access to the subdivision and circulation). These cases demonstrate that if a subsequent permit seeking modifications to a previously approved project is not treated as a "new" project, then - afortiori -- the same result must apply to the mere implemenmtion of an earlier approved project, as here. Finally, petitioners erroneously suggest that the 1990 approval contemplated a "custom" lot development in which each lot would be sold and separately developed by the purchaser. The record demonstrates that who ultimately builds the houses was not an issue. The 1990 approval anticipated that the iots might be developed "on an incremental or composite basis." (1 A.R. 255-256.) Here, DR 98-13 approved plans and elevations which will result in 40 "unique" homes; no two homes will be the same. (18 A.R. 377%3780, 3989-3940.) Petitioners' point also proves too much. Lauren could just as well have waited until aI1 approvals have been obtained and the tract has been fully prepared before applying separately for design review of each of the individual homes proposed or, as petitioners posit, selling off the lots so that individual lot-purchasers might do so. In that instance, far from starting the CEQA process anew (as petitioners urge), the development of each single-family residence (potentially no different than precise development prop. osed in DR 98-13) would likely be categorically /// /// /// -39- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARDS. WATSON & GERSHON exempt altogether from CEQA's requirements.st See CEQA Guidelines, § 15303(a) (exemption for construction of one single-family residence in a residential zone). On the record presented in this case, therefore, DR 98-13 was not a "new" project and no subsequent CEQA compliance was required. The City's treamaent of the DR 98-13 Application fully complied with the requirements of CEQA. CONCLUSION Petitioners have advanced a welter of arguments against the City Council's processing of Tract No. 14771, most of which have already been considered and rejected by this cour~ in prior lawsuits. One of the central principles of the Subdivision Map Act is the proposition that an approval of a Tentative Tract Map for a development, once the time for appeal has lapsed, is final. The Developer may safely proceed in reliance on that Tentative Map and take steps to have .a _Final Map approved, followed by the site-specific development of each of the lots created. Similarly, CEQA contemplates that the potential environmental impacts of a project will be evaluated once, at the very outset. After CEQA has been satisfied, the Developer may proceed, confident that he need not restart the CEQA process at every subsequent stage as his project progresses. /// _9/ Petitioners snipe at the adequacy of the Initial Study prepared and the Negative Declaration adopted in connection with the 1990 tract approval. However, because neither petitioners nor anyone else ever challenged the 1990 decision, the City's decision to approve the tract map and Negative Declaration became resjudicata; its preclusive effect bars any challenge at this point to the adequacy of the Initial Study or Negative Declaration. Mola Development Corp. v. City of Seal Beach, 57 Cal.App.4th 405, 410 (1997) (rule applied to a late challenge to subdivision approval); Temecula Band of Luiseno Mission Indians v. Rancho Cal. Water Dist., 43 Cal. App.4th 425,430 n. 3 (1996) (late challenge to a negative declaration barred by the statute of limitations). indeed, the Initial Study and Negative Declaration are conclusively presumed to be valid and to comply with CEQA. Committee for a Progressive Gilroy v. State Water Resources Control Board, 192 Cal. App.3d 847, 863 (1987). -40- 990528 112.tl-00059 sa~ MEMO. OF PSIAS OF RESPONDENT CITY OF RANCHO CUCAMOi~GA IN OPP. TO PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ;:{[CHARDS, WATSON & GERSHON This is the fundamental, common-sense reason why this petition for writ of mandate, like its predecessors, must be summarily denied. Instead of facing an orderly deveiopment process, petitioners would have the Developer mna never-ending gauntlet of booby-traps, ambushes, and last-minute attacks, any one of which would reopen matters decided years ago and start the entire process over again, and over again. This is neither lawful nor equitable, based upon the facts. The court should reject the petitioners' petition on the grounds that it comes much, much too late and that in any event, the City Council's decision is amply supported by substantiai evidence in the record. DATED: May 28, 1999 Respectfully submit'ted, JAMES L. MARKMAN City Attorney City of Rancho Cucamonga RICHARDS, WATSON & GERSHON A Professional Corporation MITCHELL E. ABBOTT STEVEN H. KAUFMANN MATTHEW D. MITCHELL By:, , .-[/,:,':fZ2'-~_ ",', cM~tchell E. Abbott -41- 990528 1 I2314X3059 sa~ MEMO, OF PS&AS OF RESPONDENT CITY OF RANCHO CUCAMONGA IN OPP, TO PETITION FOR WRIT OF MANDATE (PROOF OF SERVICE -- 1013a, 2015.5 C.C.P.) STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am a resident of the aforesaid county, I am over the age of eighteen years and not a party to the within action; my business address is: First Courier, 1511 W. Beverly Boulevard, Los Angeles, Ca 90026. On May 28, 1999, I served the within: MEMORA/q]DUM OF POINTS AND AUTHORITIES OF RESPONDENT CITY OF RAIqCHO CUCAMONGA IN OPPOSITION TO PETITION FOR WRIT OF MANDATE on the interested parties in said action, by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST XX (BY PERSONAL SERVICE) I delivered such envelope by hand in the offices of the addressees. Executed on May 28, 1999, at Los Angeles, California. X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a metabet of the bar of this court at whose direction the service was made. Type or Print Name Signature SERVICE LIST (BY PERSONAL SERVICE) ROBERT S. BOWER, ESQ. JEFFREY M. ODERMAN, ESQ. RUTAN & TUCKER, LLP 611 ANTON BOULEVARD, SUITE 1400 COSTA MESA, CALIFORNIA 92626-1998 ANDREW K. HARTZELL, ESQ. MARK McGUIRE, ESQ. HEWITT & McGUIRE, LLP 19900 MacARTHUR BOULEVAR/D, IRVINE, CALIFORNIA 92612 SUITE 1050 RICHARD L. STONE, ESQ. JACK H. RUBENS, ESQ. SHEPPARD, MULLIN, RICHTER & ~AMPTON LLP 333 SOUTH HOPE STREET, 48TH FLOOR LOS A/qGELES, CALIFORNIA 90071-1448 8 9 [0 12 13 14 I8 19 20 21 22 23 24 23 26 27 - i! RUTAN & TUCKER, LLP JEFFREY M. ODERMAN (SBN 63765) ROBERT S. BOWER (SBN 07234) 61 t Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1998 (714) 64[-5100 HEWITT & McGUIP. E, LLP ANDREW K. HARTZELL (SBN 147499) MARK McGUIRE (SBN 150185) 19900 MacArthur Boulevard. Suite [050 Irvine, California 92<5t2 (949) 795-07 [4 Attorneys for Real Parties in Interest. LAUREN DEVELOPMENT INC., a California corporation; CPdSTIANO PARTNERS I, a California geaeral partnership: HAVENVIEW ESTATE PARTNERS, a California general parmersbip; THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, a California limited liabiIity company SUPEt~OR COUP, T OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO HAVEN VIE\V ESTATES HOMEOWNERS ASSOCIATION and RANCI40 CUCAMONGA V-HAVEN VIEW ESTATES HOMEOWNERS' ASSOCIATION, Petitioners. v. CITY OF RANCHO CUCAMONGA, a munici- pal corporation and political subdivision of the State of California acting by and through its City Councii, PIanning Commission. Department of Planning and Redevelopmerit, Department of Public Works, Technical Review Committee. Grading Committee, Design Review Com.rnittee and other committees. commissioners. staff, agencies, departments and officials, gespondent, LAUtLEN DEVELOPMENT INC., a California corporation; CRISTIANO PARTNERS [, a California general parmership; HAVENVIEW ESTATE PARTNERS, a Ca'lifornia general partnership; THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, a California limited liability company; and DOES 1 through 50. inclusive, Real Parfie. s in Interest. Case No. RCV 37920 (Assigued to Hon. J. Mmbael Gunn) ME.MOI~ANDUM OF POINTS AND AUTHORITIES OF REAL PARTIES IN INTEREST IN OPPOSITION TO PETITION FOR WRIT OF MANDATE Hearing: June 23, 1999 Time: 8:30 a.m. Dept: 8 7 8 9 10 11 12 I3 14 I5 16 18 19 20 21 22 23 24 25 26 27 28 IIl. IV. TABLE OF CONTENTS Pa~e INTRODUCTION AND SUMMARY OF ARGUMENT .............. I STATEMENT OF FACTS .................................. 5 The Adoption of the City's General Plan and Development Code .............................................. 5 B. The Processing of Tracts 12332 and 14771 ................... d C. The 1997 DcniaI of DR97-11 ................. ' ........... 9 D. Thc 1997 Approval of the Final Map for Tract No. 14771 ......... 10 E. The 1998 Approval of DR 98-13 .......................... I0 PETITIONERS' GENERAL PLAN CONSISTENCY CHALLENGE IS MERITLESS ............................................ 11 Petitioners are Barred Undcr ti~c Applicable Statute of Limitations From Challenging thc Project's Consistency with The Density Standards of the General Plan ................... 1 l Petitioners are Precluded Under the Res Judicata Doctrine from Challenging DR 95-13 on Grouuds that tbe Project is Inconsistent ,.viti~ tbc Density Standards of the General Plan .............................................. 12 Tbc Project is Consistent with d,,c Gencral Plan Density Standards .......................................... 17 1. Standard Of Judicial Review ....................... 17 The City's Determination of Consistency is Not Based on Evidence From Which No Reasonable Person Could Have Reached the Same Conclusion ............... 17 SUBSTANTIAL EVIDENCE I'N THE RECORD DEMONSTRATES THAT THE REMOVAL OF THE REMAiNS OF THE LEVEE WILL NOT BE DETRIMENTAL TO THE PUBLIC HE.~bTH, SAFETY, OR WELFARE ............................................. 24 Petitioners arc Barred By The Statute of Limitations and the Doctrine of Res Judica.ta from Challenging the Removal of the Remainder of the Levee .............................. 24 Substantial Evideoce in the Record Supports the Conclusion That Removal of the Remainder of the Levee Will Not Pose a Danger to the Public ................................. 26 I 2 3 4 5 6 7 9 10 1[ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VI. VII. THE CITY COU t'NCIL'S APPROVAL OF DR 98-I3 FULLY COMPLIED \V[TFI THE REQUIREMENTS OF THE C[TY'S DEVELOPMENT CODE ................................................. 29 A. The City Properly Accepted the Application for DR 98-13 ........ 29 The Technical Review Committee Was Not Required to Re- Review DR 98-13 Because it had Already Done so in Connection with the Tentative Map ......................... 31 C. Lauren Satisfied the Applicable Filing Requirements ............. 32 Petitioners were not Prejudiced by any Procedural Failure by tile City ............................................ 33 PETITIONERS' CHALLENGE TO THE FINDINGS SUPPORTING DR 98-13 IS WITHOUT NIERiT BECAUSE PETITIONERS FAILED TO CHALLENGE THE FINDINGS BELO\V; MOREOVER, THE CITY DID MAKE SUFFICIENT FI'NDINGS, AND TO THE EXTENT EPd2.OR WAS MADE, IT WAS HARMLESS ................................ 34 PETITIONERS' CEQA ARGUMENT IGNORES THE RECORZ), CEQA, THE CEQA GUIDELFNES, CEQA CASE LA~,V AND PETITIONERS' OWN PRIOR ASSERTIONS REGARZ)ING CEQA COMPLIANCE ..... 36 VIII. CONCLUSION .......................................... 38 1 2 3 4 5 6 7 8 9 10 11 12 [3 [4 15 [6 17 18 19 20 21 22 23 24 25 26 27 TABLE OF AUTHORITIES Pa~e(s~ CASES A Local & Regional Monitor v, CiW of Los Angeles (1993) 16 Cal. App.4th 630 ..................................... II, 12, 17 Benton v. Board of Surervisors (1991) 226 Cal. App.3d 1467 .......................................... 37 BriL2_os v. Rollin~ Hills Estates (1995) 40 CaI.App.4th 637 .......................................... 12 California Coastal Corn. v. Superior Court (Ham) (1989) 2[0 Cal. App.3d 1485 ......................................... [3 City of x,Valnut Creek v. County of ConIra Costa (1950) [0l Cal. App.3d i012 ......................................... 35 Coca-Cola Comvanv v.. State Board of Etnuatization (1945) 25 CM.2d 918 .............................................. 19 County of Santa Clara v. Redev. Ar, encv (1993) IS CaI.App.4th 100S ......................................... 37 deBottari v. City Council (1985) 17l Cal. App.3d [204 ......................................... 21 Dorc v. Countv of Ventura (i994) 23 Cal.App.4th 320 .......................................... 17 English v. Ciw of Lon~ Beach (1950) 35 Cal.2d 155 .............................................. 35 Families Unafraid To Uvhold Rural Etc. County ("FUTURE") v. Board of Sumervisors (1998) 62 Cal. App.4th 1332 ...................................... 20} 21 French v. Risehell (1953) 40 Cal.2d 477 .............................................. Gon~ v. City of Fremont (1967) 250 CaI.App.2d 568 .......................................... 17 Grecnebaum v. Ciw of Los Angeles, (1984) 153 Cal.App.3d 391 ..................................... 20, 29, 36 Guild Wineries and Distilleries v. Whitehall Co. (9th Cir. 1988) 853 F.2d 755 .............................................. 13 Henslet v. Citv of Glendale (1994) 8 Cal.4th I ................................................ 25 28 l 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 18 19 20 21 22 23 24 25 26 2~ 28h TABLE OF AUTHORITIES (Continued) CASES (Continued) Page(s) Horn v. County of Venrura (1979) 24 Cal.3d 605 ........................................... 13, 14 Jackson v. County of Los Angeles (1997) 60 Cal. App.4th 171 .......................................... 23 Laurel Heights imorovement Assen. Regents of thc Universitv of Cal. (1993) 6 Cal.4ti~ 1 l [2 ............................................. 37 Lucas Vallev Association, inc. v. Count,., of Maria (1991) 233 CaI.App.3d 130 .......................................... 35 McMillan v. American General Finance Corn. (1976) 60 CaI.App.3d 175 ........................................... 35 Millcr v. County of Santa Cruz (N.D. Cal. 1992) 796 F.Supp. I316, aft'd, 39 F.3d 1030 ............................. 15 33 Mitlcr v. County of Santa Cruz (9th Cir. 1994) 39 F.3d 1030, 1032-33 ..................................... 13, 14 Mola Dcvclotamcnt CorD. v. Citv of Seal Beach ([997) 57 CaI.App.4th 405 .......................................... 12 No Oil, Inc. v. City of Los Angetes (1987) i96 CaI.App.3d 223 .......................................... 17 Park Area Neighbors v. Town of Fairfax (1993) 29 Cal. App.4th 1442 ......................................... '35 Patrick Media Group v. California Coastal Corn. (1992) 9 Cal. App.4th 592 ........................................... 12 PeorMe v. Sims (1982) 32 Cal.3d 468 ........................................... 14, 15 Plaine v. McCabe (9th Cir. 1986) 797 F.2d 713 .............................................. I4 Redevelormncnt Agency v. Sm3erior Court (1991) 228 Cal. App.3d 1487 ......................................... 35 Robinson v. City Bf Yucaba (1994) 28 Cal. App.4th [506 ......................................... 19 1 3 4 5 6 7 8 9 10 i1 12 13 [4 [5 16 17 18 19 20 21 22 23 24 25 26 27 TABLE OF AUTHORITIES (Continued) Pa_oc(s) CASES (Continued) Rvmer v. Haglet (1989) 211 Cal. App.3d I171 ......................................... 14 Sea & Sac,_e Autobon Society. Inc. v. Plannin_a Commission (1983) 34 Cal.3d 412 .............................................. 35 Secmovah Hills Homeowners Association v. Citv of Oakland (1993) 23 Cal.App.4th 704 ..................................... 17, 20, 21 Timberidle Enterarises, [tic. v. City of Santa Rosa (1978) 80 CaI.App.3d 873 ........................................... 25 Tooanna Association for a Scenic Con3munhv v. Cotin[,.' of Los An_oeles (1974) 1 I Cal.3d 506 .............................................. 35 United States v. Utah Construction & ,Minin~ Co. ([966) 354 U.S. 394 [86 S.Ct. 1545] ................................... 13 University of Tennessee v. Ellloft (1986) 478 U.S. 785 [106 S.Ct. 3220] .................................. t2 Vallcv \Vood Prcscrvia~. Inc. v. Paul (9th Cir. 1986) 755 F.2d 751 .............................................. 15 Youn_oblood v. Board of Suoervisors (1978) 22 Cal.3d 644 ............................................ l, 16 STATUTES 14 California Code of Regulations Section 15004(b) ............................................ 37 Section 15378(c) ............................................ 37 Code of Civil Procedure Section 1094.5 ........................................ 14, 15, 35 Evidence Codc Section 664 ................................................ 17 1 3 4 5 6 7 8 9 10 [1 12 13 i5 16 19 20 21 22 23 24 25 26 27 TABLE OF AUTHORITIES (Continued) Pa=eCs~ STATUTES (Continued) Government Code Section 57376 ............................................... 6 Section 65009, subd. (b) ....................................... 34 Section 65010 .............................................. 35 Section 66424.6 .............................................. 7 Section 66473.5 .............................................. 9 Sacdon 66474(a) ....................................... .... .... 9 Section 66499.37 .................................... 10, 11, 12, 25 Public Resources Codc Section 21065 .............................................. 37 Section 21167.2 ............................................. 37 MISCELLANEOUS 7 Witkin, Cal. Proccdurc (4th Ed. 1997)Judgment Scct[on 254 12 [ 2 3 4 6 7 8 9 [0 l[ [2 [4 [5 17 [8 19 20 2[ 22 23 24 25 26 27! 28 I. INTRODUCTION AND SUBITX'IARY OF ARGUTvIENT In 1990, tile Planning Commission of Respondent City of Raocbo Cucamonga ("City") approved a tentative tract map development of 40 single-family residential lots oil approximately 25.35 acres of land located in the City. (The 40 lot development .,.viII be referred to as the "Project" and the 25.35 acre parcel will be referred to as the "Subject Property. ") In connection with Project approval, the Platruing Con~mission also approved a negative declaration and a conceptual grading plan. No one objected to these approvals, and they were neid~er appealed to the City Council nor challenged in court. In fact, one of the Homeowners Associations expliciriy supported approval of tile Project oil rite record. On October 15, 1997, the City approved the final tract map ibr tile Project. Petitioners, the Haven View Estates Homeowners Association and the Rancho Cucamonga V - Haven View Estates Homeowners Association (collectively "Petitioners"), then challenged tile approval of the final map oll grounds the Project's density. was inconsistent with the density prescribed for the Subject Property in the Land Use Plan and Open Space Plan of the City's General Plan. Essentially. Petitioners argued that under the General Plait, die Subject Property was designated as "open space," allowing only one unit per ten acres (two units total on rim Subject Property), v.'hereas the City treated tile Subject Property as "very low residential," aIIowing up to two units per acre (in this case 40 lots). In June of last year, this Court sustained without leave to amend tile demurrer's of the City and the Real Parties In Interest. Lauren Development, Inc. and Cristiano Partners I (who, along with the other Real Parties in Interest herein, will be referred to collectively as "Lauren'), to Petitioners' petition for writ of mandate. Tile Court ruled that Petitioners were barred by the 90-day statute of limitations under the Subdivision Map Act which ran from file approval of the tentative tract map iq 1990. from challenging the Project's consistency with tile density limits of the General Plan. Significantly, in its order, this Court expressly referenced Youn.~blood v. Board of Supervisors (19~8) 22 Cal.3d 644, 656, where the Calilbrnia Supreme Court held that the date ,.vhen the tentative map is presented is the crucial date when the governing body decides whether or not to approve / the subdivision, because the developer relies upon this approval to expend money to comply 2 with the conditions attached to tile map. City's Request For Judicial Notice CPjN'), 3 E,'dlkbit A, p. 4. 4 Subsequently, pursuant to die City's Development/Design Review procedure, 5 Lauren submitted various plans for approval, consisting of derailed grading plans, lot 6 layouts, and the architectural renderings for the houses it intended to construct on the lots. '7 On November i8, t998, tile City Council approved Development/Design Review 98-13 8 ("DR 98-13') for the Project, determining that the Project complied with the design, 9 aesti~etic, and functional srandards of the General Plan, and minimLzed ally adverse Lmpacts t0 on surrounding properties. 13 AR 28'74.' It Taking ain~ at tile City's approval of DR 98-13, Petitioners have launched this 12 broad-based challenge to tile Project, essentially raising five arguments as to wily the 13 approval should be invalidated: 1 14 (l) Akhough DR 98-13 is limited to design, aesthetic, and functional 15 considerations, Petitioners' primary challenge to DR 98-13 is a resurrection of the General t6 Pian density h~consistency argument rejected by r21is Court one }'ear ago in cmmection with Petitionlets' final map challenge. That is, Petitioners again seek to challenge the density of 18 tim Project, this time utilizing as its vehicle the Development/Design Review approval, 19 rather Lhan ~e final map approval. As already held by this Court, however,.' the 20 appropriateness of the Project's density under the .City's General Plan .was long-ago 21 decided. Tile statute of limitations for challenging file Project's density has expired, and 22 the process of Development/Design Review does not restart the limitations period. 23 ivloreover, because density consismncy was expressly determined at the Planning 24 Commission's adjudicatory proceeding on the tentative map in 1990, a proceeding which 25 afforded Petitioners an adequate opportunity to litigate the issue of density consistency, 26 Petitioners are now precluded from challenging density consistency issues under principles i "All" refers to the 30-volume .-\dministrativc Record lodged herein. It is preceded by ll~c volume number and followed by the page number. I of res j:dicata. Finally, even were Petitioners not barred from challenging the Project's 2 consistency with General Plan density standards, it is clear that the Project is consistent. 3 Petitioners rely upon ambiguous, conflicting evidence (such as very general, gross-scale 4 drawings), and ask this Court to strip away Lauren's proper~ rights by overlooking not 5 o~y the Ci~'s consistent trea~ent of ae Subject Proper~ as very low densi~ residential 6 proper~, but also ~e Petitioners' own prior admissions ~at ~e Subject Proper~ was ~ atways deemed to be residential. Lauren's long-established properD' rights should not be 8 forfeited based on Petitioners' sudden "epiphany" that ~e Project, which even Pedtioners 9 supponed in 1990, should bare been approved for only two lots instead of forty. 10 (2) Petitioners next argue, i3 an apparent effort to offer me Court sufficient l l reason to take the drastic step of stripping Lauren off its development rights, ~at it 1~ somehow would be unsafe to develop the Subject Property because that would entail 13 removal of the remaining portions of the 1930s earthen levee that is on ~e site. Substantial 14 evid'ence in the record belies this claim. Not o~ly is $e levee unable to hold back any 15 offsite flows (because of the 200-foot breach that was carved into it in 1989 to provide 16 Petitioners with a required emergency access road), it was also rendered obsolete by the t7 Deer Creek Citadel and Debris Basin constructed to ~e nor~ of the Project site in 1983 18 by the U.S. Army of Co~s of Engineers. Morevet, an on-site concrete chapel will be 19 constEeled as part of the Project prior to ~e levee's removal to handle ranoff ~om below 20 ~e Debris Basis. Substantial evidence aus shows ~at public safeW will be endneed by 21 ae removal of ~e remainder of ~e levee, not ~reatened. 22 (3) Third, Petitioners assert DR 98-13 must be invfilidated because ~e CiW 23 violated various provisions of its Development Code, such as (a) allowing consideration of 24 DR 98-13 less than a year after the denia[ of a previous Devel0pmenffDesign Review 25 application for the same site; (b) not requiring Technical Review Committee review of DR 26 98-13; (c) not requiring the submission of various maps prior to ~e review of DR 98-13 27 by the Grading and Design Review Committees; and (d) failing to make certain required 2S findings in approving DR 98-13. These allegations fail to withstand scrutiny. First, the i City has always coustrued die one-year forbearance provision to disallow only the 2 resubmission of ttze same Design Review application, not a resubmission which has been 3 modified to address the concerns expressed for the initial denial. DR 98-13 was modified 4 to address ~e Ci~ Council's reservations sated dur~g its review of ae earlier application 5 (DR 97-11), and to make ~e Project more compatible wi~ ~e adjacent developments. 6 Moreover, ais provision is pr~arily for ~e Ci~'s benefit. It is intended ~o prevent a 7 developer from wasting staff t~e by presenting the same proposal over and over. Waiving 8 its provisions would not give rise to a cause of action to opponents of a project. Thus, dm 9 consideration of DR 98-I3 was ~ot an abuse of dm City's discretion, especially in light of ~0 dm fact that DR 98-13 was submitged almost ten monQ~s after dm denial of DR 97-11, and t l was not approved by the City Coundl until 15 months after the denial of DR 97-11. 12 Petitioners' assertion dmt dm City violated d~e requirement ~at d~e Technical 13 Review Committee review DR 98-13 prior to official action on d~e application is similarly t4 unlbunded. The Technical Review Committee reviewed file Project in 1990 at ~e time of 15 tentative map approval, and all Development/Design review items wifl~ which the 16 Committee is typically concerned were addressed at ~at time. The Code requires review 17 by g~is Committee o~y "if applicable," and the CiW did not abuse its discretion in 18 determining a second review by ~e Cogittee was not necessary when ~e CiW processed 19 DR 98-13. Bog ~e Design Review Cogittee and ~e Grading Coginee revieweQ'DR 20 98-13 ~ accordance wi~ ~e Hillside Development Regulations, which do not require 21 Technical Review Cogittee review. 22 As to Petitioners' assertions ~at Lauren failed to submit various maps wi~ its 23 application for DR 98-13, again ~ese f~ing requirements were satisfied during ~m 24 processing of its tentative map and conceptual grading plan in 1990. Thus, fl~ese maps 25 were part of the Project's file and were available to tl~e City prior to ~e approvat of DR 26 98-I3. Moreover, even were certain code requirements not precisely met in comiection 27 with the processing of DR 98-13, Petitioners have shown no prejudice because of the 28 nmnner in whid~ the maps were submitted. l 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 25 (4) Petitioners next claim that the City did not adopt adequate findings. Petitioners are barred from making this claim because they did not e,,Lhaust their administrative remedies by challenging the findings at the hearings in front of the City Council. Moreover, the City did make sufficient findings; to the extent any error was made, it was harmless. (5) Finally, Petitioners assert that DR 98-13 was a "new" project, "fundamentally different" from the residential Project approved in 1990. and that as a result review under tile California Environmental Quality Act CCEQA") must begin anew. This mis-characterization of DR 98-13 ignores the fact titat the City consistently and properly treated DR 09-13 as a subsequent discretionary approval necessary to implement tile Project, which underwent site-specific CEQA review in 1990. Petitioners' mis- characterization also ignores their own comments on DR 98-13. Most importantly. Petitioners' mis-characterization of DR 98-13 ignores CEQA, the regulations promulgated to implement CEQA CCEQA Guidelines"), and a substantial body of case law interpretlug CEQA. STATE~/IENT OF FACTS A. Tile Adoorion of the Ciw's General Plan and DeveloDmA~nt Code. In 1981, the City adopted its General Plan, which included a Land Use And Development Super-Element (establishLag a Land Use Plan for the City) and' its Envirommental Resources Super-Element (establishing an Open Space Plan for the City). TIle Land Use Plan and the Open Space Plan set forth use restrictions and density limitations for various areas hi the Cit)'. 12 AR 2560, 2696. For example, the Land Use Plan provides that land designated as very low residential has a gross average density range of 0. 1 to 2.0 dwelling units per acre. 12 AR 2559. In conira:it, property designated as open space is limited to an average density of I unit per net buildable I0 acres. 12 AR 2695. Tilere is conflicting evidence in the record as to what the Subject Property was desiguated in the Land Use and Open Space Plans in 1981. Petitioners, cousu-uing the I Plans as parcel-specific designations, assert that most of the Subject Property was 2 designated as "Flood Control/Utility Corridor" open space uuder the Land Use Plan, and 3 as "Streamside Woodland & Water Recharge Area" and as "Flood Control Lands And 4 Utility/Transportation R.O.W.' under the Open Space Plan. 5 The City, on the odmr hand, has never construed these Plans to be parcel-specific 6 regulations of land uses. The Record reflects that the plans were drafted at a 'very gross '7 scale, and merely to show ate intended spatial application of the written policies of ate 8 General Plan. indeed, tile scale was such that a thick pencil line encompassed a 9 cousiderable amount of acreage. That is, file Plans were intended to set forth rough 10 delineations rather than hard lines which precisely follow parcel lines in setting forEll tile I 't spatial relationships. I7 AR 3958. Had greater detail been intended, much larger scale 12 would have been required. 13 In f983, the City adopted its Development Code (Zoning Ordinance), which was 14 the City's primary vehicle to implenient tile General Plan. [2 AR 2569, 2763. It is the 15 Development Code, not tile Genera[ Plan, which provides tile parcel-specific regulation of 16 land uses in the City. Si~,ni~cantly the Subject Property was zoned in 1983 as "very low 17 residential,' allowing up to two units per acre. 13 AR 2885. The Property has never been 18 zoned under any of die open space districts in the Code (open space district, flood control- 19 open space district, or utility corridor-open space district). 13 AR 2960, 2989. Moreo. Ver, 20 the 1983 zoning of the Property has never been challenged as being inconsistent with the 21 General Plan.~ 22 B. TIle Processin~ of Tracts 12332 and 14771. 23 When tile City zoned the Subject Property in 1983, it was under one ownership 24 with what is now tile property of Petitioners' members (the 141 acres abutting the Subject 25 26 ordinance governed the use of the newl;, incorporated properties. ; The City's very low residential zoning designation for the Property was consistent with the County of San Bernardino's zoning designation for tim Property of very low density residenIial prior to the City's incorporalion in 1972.22 AR 5469:26 AR 6289:15 AR 3594. Until the City adopted its own General Plan in 1981 and its Zoning Ordinance in 1983. the County's zoning Se__¢. Coy. Code § 52376. I Property to tlte south and west of the Subject Property), which was also zoned very low 2 densit.,,'. In 1983, tile City approved Tentati`,'e Tract Map No. 12332, which subdivided the 3 141 acres of abutting property into 204 lots. The Subject Property was included in TTM 4 12332 as a 'renminder parcel," that pordou of the property that was not divided for 5 purposes of sale, lease, or financing. See, Coy. Code § 66424.6 [a subdivider may 6 designate as a remainder parcel that potdon of his property which is not divided for ale 7 purposes of sale, lease, or financing]. Significantly, however, this remainder parcel S concepttzally depicted the Subject Property with a residential lot layout similar to the ]41 9 acres t/tat were subdivided. [6 AR 3653, 3654, 3655. The Subject Property could not be t0 subdivided at this point because the Uviied States Corps of Army Engineers ,,;'as just in the t l process of completing Deer Creek Channel and Debris Basin, designed to protect tile 12 Subject Property from offsite flows and tile County Flood Control District still had a flood 13 control eascnlent over the Subject Property. 21 AR 5 199. Three years later, however, in 14 1986, the County abandollcd its eascme;~t attd any maintcnaucc responsibility for tile ou-site I5 levee siilce they had beeiT rendered u!:;:eccssary by the Deer Creel-: Channel and Debris I6] Basiu. 6 All 1523. The Subject Property titus becau:c readily developable. 17 Iu June 1989, an application was filed to subdivide tile Subject Property, ,,vhicll 18 uhimately was designated as Tentative Tract Map No. 14771. During tile ensuing months, 19 the Project went through several Technical Review Committee reviews and input. See, 20 e.R., 13 AR 2990-91, 3093-94, 2997-3032, 14 AR 3107-3116. The application, however, 21 was not deemed complete and accepted for filing by the City until over a year later, in July 22 1990fi I AR 102. In connection with TTM 1477 I, the City completed an envkonmental 23 checldist lbr dm Project. I AR 112. Under tile category of "Land Use and Plam~iug 24 Considerations," the City checked "no" as the auswer to tile questim~ as to wheffter the 25 proposal would "conflict with any designations, objectives, policies, or adopted plans of any 26 governmental entities.' I AR 114. Obviously, this corroborates the Cit),'s irtterpretation This extended processing of the Project is one of a number of exan~ples which belie Petitioners' ch?.rz~cterization of the Project as one which rcccived preferential processing by the City. 6 7 8 9 10 12 13 I4 i6 18 i9 20 21 22 23 24 25 26 27 28 of its Genera[ Plan as designating the Subject Property as very low density residential. Addktionally, tile de;'eloper beld three neighborhood meetings with members of the Haven View Hon-teowners Association to discuss any concerns they bad regarding the Project. Although various concerns were expressed over on-street parking, front-facing garages, and impacts on existing honmowners' property values, no issue was ever raised regarding the Project's consistency with the General Plan's density limits, or with the City's marked conclusions on the environmental checldist. I AR 15t-52, 107-09. 104, 233. Indeed, because of modifications agreed to by the developer during negotiations kvittl Petitioners, oil November 12, 1990, the President of tile Haven View Estates Homeowners Association wrote a letter on behalf of the Board of Directors supporting the Project and urging the City to approve it. 14 AR 3220, 3236. On October 19, 1990, the City published a notice of the Planning Commission's public hearing on TTM 14771 attd the environmental assessnlent therefor. The City also posted the property and mailed notice of the public hearing to property owners within 300 t~et of the Project, including the Haven View Estates Homeowners Association. I AR 237, 2 14-22l. This notice included the following ,.varning: if yot! dtallenge any of tile foregoing actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing for final action described in this notice. or in written correspondence delivered to the Platruing Commission at, or prior to, the public hearing. 1 AR 223. The Planning Conn'nission held public hearings on TTM M771 on September 26, and November 14. 1.990. The staff reports for these meetings identified the Subject Property in several places as "very low residential (less than two dwelling units per acre)." 14 AR 3152, 3223. No one objected to the Project, either orally or in writing, as being inconsistent with the City's General Plan. 1 AR 187-19l, 236. 248-49. As stated, Petitioners urged its approval. Moreover, contrary to the suggestion of Petitioners, the fact titat development of Tract 14771 would entail removal of tile remainder of the earthen levee ou site was well understood by all. 2l AR 5232: I AR 127; 13 AR 2999, 3001. 3003, 3007. After the last public bearing, the Platruing Commission approvgd TTM 14771 (14 AR 32~9-3254), and specifically found as follows: The development of 40 single-family lots on 25.9 acres or' laud is consistent with the vet-), low residential laud use designation of the general plan .... The tentative tract is consistent with the general plan .... The design or improvements of the tentative tract is consistent with the general plan .... 6 7 8 /4 AR 3250; emphasis added. These findings were required as a matter of law tbr, in 9 order to approve a tentative tract map, d~e public entity must expressly find that the map l0 is consistent with its general plan. Go','. Code ~q§ 66473.5, 66474(a). ~l Sign. i~camiy, no o~:e challenged these consistency determinations by either 12 appealing them to the City Council as provided by City Code (13 AR 2827), or by filing 13 a v,,rit of mandate action challenging the tentative map's approval. 14 C. The 1997 Denial of DR 97-II. [5 On April !.6, 1997, Lauren applied to the City for Development/Design Revie'`v 97- I6[ l t regarding detailed arcbitecrura[, site, and grading plans for the 40 lots. 2 AR 427-32; 17 3 AR 62-'-701.. The City Council denied the application on the ground dmt there was not 1.8 enough variety in the elevations. 17 AR 3989. 19 The Council also concluded, hov,,ever, that "no new environmental information of 20 substantial importance" had been presented since the approval of the negative declaration 21 for Tract 14771 in 1990, and that "no further environmental review is required in 22 conjunction with Development/Design Reviev,, 97- I 1 ." 9 AR 2465. The Council made this 23 finding because Project opponents had raised a "kitcher~-sink' attack on the Project. alleging 24 a variety of new factors and changed circumstances which they-claimed warranted the 25 preparation of a subsequent or supplemental EIR. 26 Opponents of the Project filed a petition for writ of mandate to overturn this 27 determination of the City, arguing a violation of the California Environmerltal Quality Act 2SiIiCCEQA"). Cucamon,',ans United For Reasonable Ex~ansion (CURE~ v. City of Rancho 1 Ct camonga Case No. RCV 30406. The Court, the Honorable Frederick A. Mandabach 2 presiding, rejected tlie challenge, including assertions regarding the danger of removing the 3 levee and the inadequacy of the Deer Creek Debris Basin for flood control purposes, 4 holding that substantial evidence supported the City's determination. City's R. jN, Ex. B. 5 D. The 1997 Approval of the Final MaD for Tract No. 14771. 6 On October 15, i997, the City Council approved ~e final map for Tract No. 7 14771.15 AR 3607. The Petitioners in ~is case then filed a petition for writ of mandate, 8 cballengthg the City Council's decision and raising the identical argument urged in this 9 lawsuit, that is, that the City's approval of the Project was inconsistent with the density 10 standards of the General Plan. On ~u~e 16, 1998, the Court, the Honorable J. Michael t I Gug presiding, sustained the demurrers of fine City and Lauren wigout leave to anmnd, 12 ruliug the lawsuit to be time-barred because Petitioners failed to challenge ~e earlier 1990 13 approval o[' the teutatNe tract map withiu the 90-day statute of limitations of Government 14 Code section 66499.37. City's RJN, Ex. A. 15 E. The 1998 A~Droval of DR 98-13. ~6 On June 2, 1998, Lauren reapplied to the City for Development/Design Review t7 (DR 98- B), a redesign of the 40 homes proposed in the approved tract. 17 AR 3779-3833. i8 3835. Smff-level public meetings were conducted on ae application by ~e Design Review 19 and Grading Cogittees. 17 AR 3872-3876, 3880-3885. On August 12, 1998,. '~e 20 Pla~ing Cogission conducted a public hearing on ae application a~er which it 21 unanimously approved DR 98-13. 18 AR 4064-4093, 4095-4102. The.runner was then 22 appealed to the CiD' Council, which likewise conducted a !eng~y public hearing on the 23 application on September 18, 1998. 26 AR 6205-6326. At the conclusion of the hearing 24 on September 18, the City Council closed the public hearing on ~is matter. The matter 25 was continued until November 18, I998, at which time the Council also unanimousb, 26 approved DR 98-13.26 AR 6435-6472. 2~7S Petitioners now seek to invalidate the City's approval of DR 98-13 on grounds _ ~ having nothing to do with the desigu or development standards of the General Plau or Development Code, but upon grounds of inconsistency with tile density standards of tile 2 General Plato As stated, Petitioners sought to do tile same thing at the final map approval 3 stage, but their action was dismissed as having come too [ate. Instead, this Court found 4 that any action challenging the Project's density shouId have been brought at the ti.me the 5 tentative tract map was approved in 1990. This new action by Petitioners is even further removed from the tentative tract map approval, and Petitioners' density challenge is barred on statute of limitations grounds, under the doctrine of res judicata, and under equitable principles. Moreover, all of Petitioners' challenges are substantivel;,, widlout merit. III. 6 7 8 9 PETITIONEP, S' GENEI~xAL PLAN CONSISTENCY CHALLENGE IS l0 MEO, ITLESS. I1 A. Petitioners are Barred Under tile .-Xtanlicable Statute of Limitations From 12 Challengin~ the Proiect's Consistency with The Densiw Standards of the 13 General Plan. 14 As stated, last year this Court dismissed Petitioners' challenge to the City's ~5 approval of the fin:d map for the Project on the ground that the challenge was barred by 16 tim 90-day statute of limitations set forth in Government Code section 66499.37. City's 17 RjN, Ex. A. As is ~e case here, Petitioners' challenge ~en was to ~e Project's [8 consistency wi~ ~e General Plan's density standards, i.e., Petitioners asserted Lauren's 19 map granted for~ lots while ~e General Plan au~or~ed but ~o. To ~e extent ~at 20 Petitioners' arguments here assert ~e same point, ~ey are a ~i~y veged challenge to the 2[ Project's map, and dins remain time-barred by Goverment Code section 66499.37. See, 22 A Local & Regional Monitor v. Ciw of Los Angeles (~993) 16 Cal. App.4th 630 23 ("ALARM"). There, plaintiff challenged the sufficiency of an environmental impact report 24 for a conmmrcia[ development project, contending dmt the project did not conform to the 25 requirements of the city's general plan because the general plan xvas legally inadequate. 26 The court held that pIaintiff was barred from making that argument because it was a thinly 27 veiled challenge to the adequacy 61' the city's general plan, and was thus time-barred 28[ because it was not commenced within 120 days afmr the adoption of the general plan as i I required by Government Code section 65009. [cl. at 648. '~ Here, Pctitioi~ers are using the Development/Design Revie~v process, a process 3 concerned with aesthetics, grading, and similar issues, to argue that Lauren's 40-lot ,4 subdivision map is not consistent wid~ ~e density l~ita~ions of ~e General Plato Thus. 5 this action is really a challenge to dm map, not to ~e Development/Design Revie~v of 6 Project. Accordingly, under the principles set ford~ in dm ALARM case cited above, such 7 a challenge is barred by dm 90-day statute of limitations which co~trols a challenge to the 8 map itself (Govcrnmcn~ Code ~ 66499.37). Thus, Petitio~ers' density challenge comes 0 eight years too late. [ B. Petitioners arc Precluded Ut~der the Res Jltdicora Doctri~c from Challenging l[ DR 98-[3 o~ Grotmds that the Proiect is inconsistent wit~ the Density ~2 Sta~d:~rds of the Gc~mra[ Plan. 13 The doctri~e o1: l'esj'ttdt'cata (claim preciusion) rests on the principle ~lat a party 14[ who once has hurl a chalice to litigate a claim beibrc au appropriate tribunal usually ought 15[ ~ot h:~vc uuothcr chalice to do so. 7 Witkin, C3.1. Procedure (~th Ed. 1997) Judgme~ td[ ~ 284, p. 824, quotin~ from the Second Restatemere of Judgmcr~ts, Ch. t. p. 6. 17~ Thus. res judicata gives certain co~clusive effect to a i'ormer determination 18' subsequez~t litigation revolving the same controversy, even where ~he former demm~ination [9 is in an administr~ive tribunal. University of Tennessee v. EIliott (1986) 4?8 U.S. 788. 20 '799, 106 S. Ct. 3220 [because plaintiff did not seek judiciat review of ~e administrative 21 determination ~at t~is dismissal was not racially motivated, ~at determination was entitled 22 to preclusive effect and was a bar to plaintiff's court claims under civil rights statutes}: 23 Bri~s v. Rollin~ Hills Estates (1995) 40 Cal.App.4d~ 637,644 [homeowners' failure to 24 seek judicial review of city's zonh~g decisio~ precluded them from raising issues in court 25 in a later independent actim~ under civil rights acts]; Mola Develonment Corn. v. Ci~v of 26 Seal Beach (1997) 57 Cal. App.4ti~ 405,410 ]devcioper's dismissal of a mandate 27 challenging a city's disapproval of its tentative tract map precluded ~he developer's action ~8.~ Ibr damages lbr re~tdatorv [aking]; Patrick Media Grouo v. CalifOrnia Coastal Corn. (~992) I 9 Cal. App.4th 592, 617 [where billboard owner failed to petition for mandate to revoke 2 Coastal Commission's permit requiring dm billboard's removal, the issue of compensation 3 for removal of tile billboard was resjudicata]; California Coastal Corn. v. SuDerior Court 4 (Ham) (1989) 210 Cal. App.3d 1488, 1493, 1499-1500 [resjudicata barred an action for 5 damages where plaintiff failed to petition for mandate to challenge a condition requiring 6 dedication of a public easement across his beach-front property]. 7 Preclusion extends to state admknistrative adjudications of legal, as well as factual 8 issues, even if urtreviewed by a court, so long as dm state proceedings satisfy the 9 requirements of fairness outlined in United States v. Utah Construction & Minino_ Co. l0 (1966) 384U.S. 394,865. Ct. 1545. Miller v. Countv ofSanm Cruz(9Lh Cir. 1994) 39 11 F.3d [030, 1032-33; Guild Wineries and Distilleries v. Whitehall Co. (9all Cir. 1988) 853 12 F.2d 755,758. 13 TIle fairness requirements of Utah Construelion are: ([) that the administrative 14 agency is acting in a judicial capacity; (2) flint the agency resolves alepuled issues properly 15 be/i3re it; and (3) Sat tile parties have an adequate opportunity to litigate. Utah 16 Construction, 384 U.S. at 422. Where these requirentents are tnet, the courts tnust give [7 the agency's determitzation preciusive effect. 18 The Utah Construction criteria are met here. First, it is clear that the City was 19 acting Ln a judicial capacity when it approved TTM 14771 in 1990. Horn v. Counw of 20 Venmra (1979) 24 Cal.3d 605, 614 [approval of a tentative subdivision.map i~ a quasi- 21 judicial act subject to review for abuse of discretion under Code of Civil Procedure 22 § 1094.5]. 23 Second, the Planning Commission resolved disputed issues before it, e.g., the now- 24 disputed issue of whether the Project was consistent with file Land Use Plan and Open 25 Space Plan of dm City's General Plan. 14 AR 3250. 26 Finally, the parties had an adequate opportunity to litigate tile disputed issues. Tim 27 Planning Commission held a noticed public hearing on TTM 14771, publishing notice of 28 tile hearing in dm newspaper, posting the property itself, and mailing notice to all property I owners within 300 feet of the Project, including the Haven View Homeowners Association. 2 I AR 237,214-221. These notices expressly warned the public that if they challenged the 3 Project in tile courts, they would be ILmited to tile issues raised befbre tile Planning 4 Commission. TIle public was given the right to address any issues concerning the Project 5 on two separate occasions before the Planning Commission; they had file right to appeal any 6 determination of tile Harming Commission to the City Council; and they had the right to v seek court review of any adverse findings under Code of Civil Procedure section [094.5. 8 Horn v. County oi" Venturn, supra, 24 Cal.3d at 6[4. 9 Petitioners, however, failed to even raise tile issue of General Plan density t0 consistency, much less challenge the City's consistency finding in court. This failure by I ! Petitioners to seek mandate relief precludes their action here. ,Miller v. Count~, of ,Santa 12 Cruz, supra, 39 F.3d at 1033-34, n. 3 [plaintiff's failure to invoke his right to seek judicial 13 review in state court required tile court "to detertuine whether that decision is binding on l~[ all that was, or could have been, determined there"}; PooDle v. Sims (1982) 32 Cai.Bd 468, 15 481-82 ['\Vhat is significant here is that the CountV had . . . tile opportunity . . . to present 16 its case to the hearing officer .... The People cani~ot now take advantage of the fact that !7 the Count), avoided its litigation responsibilities and chose not to present evidence at the 18 prior proceeding."]; Rvmer v. Ha~.ler (1989) 211 CaI.App. Bd 117[, [179 ['IT]here is no 19 showing that appellant was denied the opportunity to introduce evidence on the issue.' He E0 simply chose not to do so. It is the opportunity to litigate that is important in these cases, 21 not whether the litigant availed himself or .b. erself of the opportunity"]; Plaine v. McCabe 22 (gth Cir. 1986) 797 F.2d 713, 719, n. 12 ["if an adequate opportunity for review is 23 available, a losing party cannot obstruct a preclusive use of the state administrative decision 24 shnply by foregolug tier right to appeal. "]. 251 Moreover, filere is no requirement that an administrative proceeding have all of the 26} procedural protections of a court hearing in order that the administrative decision be given preclusive effect. French v. Rischell (1953) 40 Cal.2d 477,481 [an unappealed Industrial Acciclel~t Comnfission finding was entided to preclusive el't~ct even though the Conm~ission I used a different burden of proof, proceeded informally, received hearsa:,: evidence, and was 2 not bound by the rules of evidence]; People v. Sims, suora, 32 CaI.3d at 480-8I. 3 In determining whether a party had a "full and fair opportunity to litigate his claim 4 under Utah Construction, the U.S. Supreme Court has held that "state proceedings need do 5 no more than satisfy the minimum procedural requirements of the Fourteenth Amendment 's 6 Due Process Clause .... "Kremer v. Chemical Construction Corn. (1982) 456 U.S. 461, 7 48I, 102 S. Ct. 1883. "No single model of procedural fairuess, let alone a particular form 8 of procedure, is dictated by the Due Process Clause." id. at 483. 9 That Petitioners here had an adequate opportunity to litigate is perhaps best l0 illustrated in Valley \\rood Preserving. Inc. v. Paul (9th Cir. 1986) 785 F.2d 75/. There, 1 t the ,Ninrj~ Circuit, applying California law. held that an informal hearing by the county 12 board of supervisors in connection with the revocation of a conditional use permit was 13 entitled to preclusive effect. Evelt though the hearing entailed unsworn testimony, the 14 casual receipt of inl'ormation ol~ an ex pat're basis. and no cross-examination, it still met the 15 Calit'omia requiremei~ts for claim/issue preclusiom Id. at 752-54; se._.ge, also. Miller v. 16 County of Santa Cruz (N.D. Cal. 1992) 796 F. Supp. 1316, 1319, aff'd, 39 F.3d 1030 (9th 17 Cir. 1994) [action by a terminated detention officer was barred by a hearing before the civil !.8 service conm~ission because even though no pre-hearing discovery was available to the 19 employee, constitutional due process did no.~t require the agency to afford the employe.e all 20 elements of a traditional judicial proceeding. Plaintiff had the right to seek a writ of 21 mandamus pursuant to Code of Civil Procedure § 1094.5, and thus had an adequate 22 opportunity to litigate his claim]. 23 Here, Petitioners could have challenged the Project's consistency with the General 24 Plan's density standards by raising rile issue in front of the Plarming Cornmission, by 25 appealing any adverse finding to the City Council. and by seeking court review of the 26 Councit's actions under Code of Civil Procedure section 1094.5. Petitioners did none of 27 these things. Consequently, ale City's express administrative determination fitat ale Project 28! is consistent with the General Plan's deusity standards must be giveu res judicata effect. ;. -_~- ~ Petitioners will undoubtedly argue that the General Plan consistency door with 2 regard to the Project's density has been reopened by tile Development/Design Review 3 process, because tile City's Zoning Ordinance requires that for approval, a finding be made 4 that "the proposed project is consistent with the General Plan .... "13 AR 2881. Such 5 a conclusion would be inappropriate for several reasons. 6 First, Development/Design Review issues do not entail density issues. That is, 7 Development/Design Review, as its name implies, is intended to ensure th~t.a project 8 complies with various loca[ design guidetines; that the project's adverse effects on 9 surrounding properties and the envirotm~ent are minimized; and that the project is consistent l0 with tile aesthetic and ~nctional standards of the General Plan's policies and objectives. t l 13 AR 2874. The Development Code provides iu great detail that ~e focus of the t2 Development/Design Review process is on con~munity design standards. aesthetics, 13 architecture, landscaping, signage, parking areas, streets, grading. topographic features. 14 slopes, circulation, ingress/egress, school facilities, public services. energy conservation, t5 buffering of adjacent properties, and g~e like. 13 AR 2874-76. 2878. Nowhere in the i6 Developmetzt/Desigtz Review section of the Zotzitzg Orditzatzce, however, is it contempl~ed 17 that the City will revisit the issues of consistetzcy with the General Plan's densiq 18 standards. 19 Nor would such a construction of ~e DevelopmentDesign Review re~uire~ints 20 make sense. DensiW issues are decided when a ten~tive map is approvea. As ~e 21 California Supreme Court has held, ~at is the crucial date when ~e gove~g body decides 22 whether or not to approve the subdivision. Because the developer relies upon ~is approval 23 to expend moi~ey to comply with the conditions attached to ~e tentative map, it is offiy hit 24 to the developer and ~e public interest to require the densi~ issue be dete~ined ~en, not 25 somewhere later down-the-line, when merely the grading of ~m lots already approved or .26 the elevation and style of the houses on those lots is being decided. Youngblood v. Board 27 of SuDervisors, supra, 22 Cal.3d at 656. By then~ the number of lots available to the 28~; developer has been settled. expenditures based thereon have been made. and the financial t feasibility of the project has been detern~ined. Any argument that the City, at this late date, '~ could revisit the Project's density ~-~4 ahnost as an after-thought, determine that the 3 Genera[ Plan (which has not been amended regarding the Subject Property since its 4 adoption) entities Lauren to two Iots ra~er ~au forty, would directly undermine 5 equitable principles espoused by our Supreme Court. 6 Final[y, this Court has already ruled ~at Petitioners' previous action, challenging 7 ~m Project's density when the final m~p was approved in October of 1997, was untimely. 8 This action, brought a year later, is even more untimely. 9 C. The Proigct is Consistent widl the General Plan Density Standards. 10 Even were it appropriate to revisit the General Plan densi~ consistency issue at this 11 late da~e, substantial evidence in ~c record supports ~e Cky's determination flint it~e 12 Project is consistent. 13 1. Standard Of Judicial Review. 14 A city's findings that a project is consistent with its general plan can be reversed [5 only if it is based on evidence from which no reasonable person could have reached the i6 same co~mlusion. A Local & Regional Monitor v. Citv of Los Angeles, supra, 17 CaLApp.4th at 648; No Oil. Inc. v. Ciw of Los Angeles (1987) 196 Cal. App.3d 223,243. 18 The city's action comes to fi~e review~g court wiHx a strong presumption of correcmess, 19 and ~e burden is on ~e petitioner to demonstrate o~mrwise. Evid. Code ~ 664; Sequovah 20 Hills .Homeowners Assn. v. Ciw of Oafand (1993) 23 Cal. App.4~ 704, 717; Dore v. 21 Counw of Yentara (1994) 23 Cal. App.4fix 320,326-27; Gong v. CiW of Fremont (1967) 22 250 CaI.App.2d 568, 574. The Court may not substitute its view for ~at of ~m 23 council, nor reweigh conflicting evidence presented to ~at body. Sesuovah, supra, 23 24 Cat. App.4th at 717,720. 25 2. The Ci~'s Dete~ination Of Consistency Is Not Based On Evidence 26 From Which No Reasonable Person Could Have Reached The Same 27 Conclusion. 2Si~l TI~c only 6vide~ce Petitiouers adva~ce to establish inconsistency between the Project 't -17- .. 2 3 4 5 6 7 9 [0 1[ 12 13 14 I5 t6 17 20 21 22 23 24 25 26 27[ and the General Plan is (!.) tile Land Use and Open Space Plans of the General Plan, allegedly showing the Subject Property being designated as open space, and (2) alleged "admissior~s" in certain City staff reports generated in tile 1980s that tile Subject Property was designated in tile General Plan as open space. None of this evidence is sufficient to carry Petitioners' burden. First, although there may be conflicting evidence as to where tile open space designation lines fail oll the Land Use Plan and the Open Space Plan, chis is simply a result of the fact that these Plans were not meant to be precise, parcel-specific regulation of land uses. As stated in tile Land Use and Devetopment Super-Element of tile General Plan, its purpose is to designate "the proposed ge.,zeral distribution and ge:,~eral location and extent of the uses of tile land.for housing, business, industry, open space .... " 12 AR 2552. Elsewhere, the General Plan ack~lo,.vledges that tile "measurements of land use acreages are ro,','gh deli,eatio,s rather the, hard li, es which precisely follow parcel lines," and that "tile Land Use Phm designates land uses on a ge,e,"al scale." 12 AR 2569, 2570. emphasis added. indeed, the current City Manager, v.'ho was file Director of Conmmnity Development and tile staff persoil primarily responsible for the preparation of tile General Plan when it was adopted, states in the record: It was never intended tlz~t the General Pla, would constitute a parcel- specific regulustort of land uses .... lT]he Ge, eral Plan sets forth general, city-wide plaanirzg objectives a,d goals, rather than specific land use regulations for specific parcels. [~] In 1983, the City Council adopted tile "Developnlent Code" or zoning ordinance for the City of Rancho Cucamonga. As Director of Community Development. I was intimately involved in the preparation of the Development Code and the Development District Map (or "zoning map") which accompanied it. The Developme,t Code was designed to ",nplement" the Ge,eral Pla, by assigaing zotzi,g classificatio,s consistent with the uses desig,ated i, the Ge,eral Plan. U, like the General Plan which designated laad use objectives for various parts of the city without reference to property liaes, the Developme,t Code a,d Develop,zent District Map establish zones and pertnissible la,d uses o, a parcel-by-parcel basis throughottt the entire city .... FI'he veO' low density residential designation on the Subject Property] is co,sistent with the "Very Low" residential density for the property specified in the Ge,eral Plan .... [~i] As a professional planner, [ am f~miliar with tile General Plans of other cities as well as that of Rancho Cucanlonga. I know of no General Plan Land Use Map which is drawn i 2 3 4 5 6 8 9 i0 1l 12 13 t5 16 1'7 18 19 20 21 22 23 24 25 26 27 2SI precisely to reflect existing property lines. Indeed, if the GerieraI Plan Map %vere so precise aild detailed, there would be no real purpose served by the Development District Map. Instead, tile General Plan is intended to describe the ukimate arrangement of land uses in various parts of tile City when tile City is fully developed. Tile Development District Map then assigns zontng classifications, parcel-by-parcel, street-by-street, tt~roughout the entire City. 17 AR 3957-3961. This evidence is corroborated by the current Director of Community Development for file City ~vho was the City Plaruler at tile time that the Development Code was adopted. As to any divergences between the General Plan and tile Zoning Ordinance, the Director notes: in many cases the Development District Map diverges slightly from the Land Use Plan Map i~ the General Plan. This is because it was necessary Jbr zhe Developnteut District Ma ~ to follow ropetry boundaries and zo avoid chan,,ing zones itz the trzid~e of a sz',z~,~e parcel of property. When the Development Code and Development D'istrict Map were a. pproved in 1983 the staff expressly stated titat an overriding objective was to "Coordinate attd im lement the existing general plan goals, objectives, and policies .... "['iFht my opinion, [the very low density residential use zoning designation on the Subject Property} i~; consistent with tile General Plan tot the City a~d for this particular area. 17 AR 39G3-64. This evidence is sigi~ificant in that it is well settled that when an administrative agency is charged with administering a statute or ordinance, the administrative agency's interpretation of the applicable law is given great deference by the reviewing court.4 The administrative agency's construction of the law need not be the offiy reasonable ix~terpremtiou, and its application of the law will be upheld unless it is arbitrary, capricious, lacks any rational basis, or disregards the plain meaning of the ordinance. Robinson v. Citv of Yucaina (1994) 28 Cal.App.4th 1506, 1516; Coca-Cola Company v. State Board of Ecnualization (1945) 25 Cal.2d 918, 92!. Thus, the opinions of the people who wrote tile General Plan and k:lew witat they intended the diagrams to be and how those diagrams Petitioners obviously agree \vit[~ this point, since they rely heavily (although mistakenly) on staff's characterization or' the Subj::ct f'roperty in ihe 1980 staff reports. See, infra. 5 $ 9 11 12 14 15 17 19 20 21 2 23 2~ 25 2~ ',,,'ere implemented through the zonthg ordinance are entitled to great weight.s Moreover, it is well-settled that "state taw does no__t require an exact match between a proposed subdivision and the applicable genera[ plan. (Greenebaum v. City of Los Anaeles (1984) 153 Cal. App.3d 391,406-407 .... )" Secluovah, supra, 23 Cal. App.4th at 717. A project need merely be "in harmony" with the general plan to be consistent. I_d. at 718. Where conflicting evidence of consistency exists, the courts must defer to the legislative body: Once a general plan is in place, it is the province of elected city officials to examme tile specifies or' a proposed project to determine whether it would be "in barmot~y" with tile policies stated in tim plan .... It is, emphatically, tlof the rote or' tile courts to micromanage these development decisions. [d. at 719. Petitioners' reliance upon Families Unafraid To Uphold Rural Etc. Count,,' ("FUTURE"~ v. Board of Sumervisors (1998) 62 Ca[.App.4th 1332, is unavailing. Tilere, the court found the approval of a low density residential subdivision project to be incousistent with the draft general plan's [and use element, which required that areas designated as low density residential (LDR) be contiguous to community regions and rural centers to provide for a transition of density into die rural regions. The evidence was undisputed that no part of the project site was contiguous to a community region or a rural center; in fact, the project ``yes separated from community centers and rural centers by ai-eas designated as rural residential. Id. at 1340. The FUTURE case is readily distinguishable from the case at bar. First, the plaintiffs there timely challenged the project at file subdivision map/general plan and zoning ordinance approval sage. In the case at bar, the general plan designation was made in i981 the zoning designation was approved in 1983, and the subdivision map was approved s Petitioners' insistence that the City admitted in the previous final map litigation that the Subject Property was designated as open space in the General Plan is absurd and completely unsupported by the record. TIm City merely stated that the General Plan designates the ~eneral area or' the Subject Propert>' to be both very low residential and open space. 17 AR 3936. -20- tl [2 13 14 t5 t6 17 18 20 21 22 23 24 25 26 27 28 t in 1990, yet Petitioners have only recently challenged the Project's con.sistency within the 2 General Plan. 3 Second, in FUTURE the issue was not what the general plan's land use map 4 designated the developer's property; clearly, it was designated as LDR. Rather, the issue 5 was whether that LDR designation was consistent with the clear-cut policies of the general 6 plan which restricted the LDR application to certain properties. Thus, FUTURE concerned 7 specific, fundamental, and clear-cut provisions, and undisputed evidence of their violation 8 by the project at issue. 9 Here, on the other hand, the issue is where the General Plan intended the division i0 between open space land and very low residential land to fall. There is conflicting evidence on this issue, with very substantial evidence supporting the finding that the Subject Property was always intended to be very low density residential. The Court may not reweigh that evidence or substitute its view for that of the City Council .6 Titat the City has always viewed the Subject Property as very low density residential th its General Plan is further reflected by the fact that the City zoned it very low density residential in 1983. This zoning, by the very terms of both the General Plan and the Development Code, was to implement the General Plan's land use policies.7 12 AR 2569, 2763; 13 AR 281.6, 2820, 2898. It was never challenged. Moreover, it should be recalled that at the time of General Plan and Zoping a Petitioners' reliance on deBottari v. Ciw Council (1985) 171 Cal. App.3d 1204 is equally unavailing because that case dealt xvith zoning consistency, not a subdivision project or design review. Moreover, the deBortari court upheld the city council's refusal to put a referendum on the ballot that would have repealed a city rezoning ordinance. The council based its refusal on the finding that passage of the referendum would result in enacm~ent of a zoning ordinance that would be inconsistent with the recently enacted general plan. Id. at 12 10-1213. As pointed out in the Se~uoyah opinion, "[i]n this respect, deBottari supports the view that v.,o defer to the . . . City Council's consistency findings." Se~uovah, 23 Cal. App.4th at 717-718, n. 5. 7 As stated, the City's General Plan and Zoning Ordinance merely continued the general plan and zoning designations for the Subject Property when it ',,.,as in the County (prior to the City's incorporation). 22 AR 5469:26 AR 6289; 15 AR 3594. i Ordinance adoption, the Subject Property and the land underlying the residences of 2 Perkloners' members were held by the same owner; indeed, prior to subdivision, it was all 3 one property. Upon ~nalization of the first two tract maps, the Subject Property became 4 a remainder parcel. When the application to subdivide the Subject Property was processed 5 in 1990, there was no perceived need for a General Plan amendment and nobody, including 6 the Petitioners, raised this as an issue? 7 As to Petitioners' assertion that certain staff reports generated in the 1980s admit 8 that the Subject Property is open space, Petitioners simply misunderstand the staff reports. 9 As stated, in 1983 the Subject Property and the land underlying the residences of l0 Petitioners' members were one property held by the same o,.`.,ner. The owner then applied 1 t for a tentati,.,e tract map (no. 12332) which included the Subject Property v.,ithin it as a 12 "remainder parcel." Indeed, a conceptual residential layout ,,,,'as included for the remainder 13 parcel even though it was not being subdivided for sale at that time. The staff reports to 14 wbicl~ Petitioners refer state that the Project site, which includes the Subject Prol~erty gs 15 a retnaitulerl2arcel, is designated in the General Plan as very low residential. The staff 16 reports do indicate that the property to the north of this project is open space, but that 17 reference is to the Los Angeles Bureau of Power and Light easement property outside of 18 the City's boundaries and within the CiiT's sphere of influence. 16 AR 3639, 3653, 3654, 19 3655, 3658, 3662, 3663, 3666, 3670, 3671, 3675. During this period of time, the Supject 20 Property was always within the City's boundaries. and not within the sphere of influence. 21 Thus, rather than supporting Petitionera' position, the referenced staff reports corroborate 22 that the City has always deemed the Subject Property to be very low density residential 23 24 25 26 s Petitioners also argue that the General Plan indicates that flood control lands are one of three major sources of open space in the City, along with agricultural lands and private vacant lands. From this. Petitioners leap to the conclusion that because the Subject Property at one time had a flood control easement on it, the General Plan intended this l.~c~nicular p,=rcel Clearly, this conclusion does not withstand scrutiny for the generalized statement in the General Plan does not provide that dl flood control lands, a/l agricultural .lands, and all private vacan{ laods are to be designated as open space. Moreover. the Subject Property was never owned by the County Flood Control District, which only maintained its easement until 1986. t '7 8 9 10 l[ 12 [3 15 19 20 21 22 23 24 25 26 2'7 (rather than open space) under its General Plan. That the recently advanced consistency argument is simply a make-weight invention o f Petitioners' attorneys is especially evident from the past treatment of the Subject Property by Petitioners. For example, in tile late 1980s, litigation over various access issues between Petitioners and the owner of file Subject Property was settled.9 The settlement documentsm specifically provide for easements and rights of way over Petitioners' streets 'tbr tile purpose of access by construction personal, vehicles, equipment and materials to and from the [Subject Property] . . . until the construction of homes and related inzprovements on the [Subject Property] is complete." 21 AR 5101-5102. Thereafter, titis grant of access "shall be effective for the use by owners of no more than forty-five (45) homes Ion the Subject Property], so as to avoid overburdening of the Access Streets by tile ultimate residents in tile [Subject Property]." 2 [AR 5102. The documents also specifically acknowIedge titat tile Subject Property was currently being reinappeal for "no greater than 42 lots." 21 AR 5102. These documents thus reflect that Petitioners have always understood the Subject Property to be intended for residential development, and even contemplated a density in excess of tile 40 lot project no`.v at issue. See, also, 15 AR 3421; 14 AR 3176. Indeed, Petitioners expressly supported the Project at the Platoring Commission public hearing on TTM 14'771 in 1990, and urged its approval. 14 AR 3220, 3236.u 9 Access to Petitioners' tracts and the Subject Property is off of Haven Avenue through gates. The streets in the tracts are all private. m TIle settlement documents consist of (1) the Developer Street Easement and Maintenance Agreement, recorded February 16, 1.989, as Instrument No. 89-056050; (2) the Association Street Easement and Maintenance Agreement, recorded on February 16, 1989, as Instrument No. 89- 05605 1; and (3) tile First Amended and Restated Grant of Mutual Easements, recorded March 23. 1990, as hlstrunmnt No. 90-111246, all in the Official Records of San gernardino County. 21 AR 5099. ~' Petitioners full>' urged the approval of the Project at the quasi-judicial proceeding before tile Planniog Commission in 1990, after negotiatblg several concessions from Lauren's predecessor ill interest. 14 AR 3220. Consequently, Petitioners should be judicially estopped frOIll now pursuing tile incoosistent course of actioo of seeking to overturo tile Project. Jackson v. Count'.' I For all the above reasons, Petitioners' Genera[ Plan inconsistency challenge must 2 be rejected. 3 IV. SUBSTANTIAL EVIDENCE IN THE RECORD DEMONSTRATES THAT 4 THE REM'OVAL OF THE REMAINS OF THE LEVEE WILL NOT BE 5 DETRI.~'IENTAL TO THE PUBLIC HEALTH~ SAFETY. OR WELFARE 6 A. Petitioners are Barred By The Statute of Limitations and the Doctrine of Res 7 Judicota from Cballen~ino~ tile Removal of the Remainder of tile Levee. 8 As part of the approval process for Tentative Tract Map No. 14771 in 1990, an 9 ana(vsis of site contours attd a conceptual grading plan were submitted and reviewed as 10 required by the Hillside Development Ordinance. Tile conceptual grading plan was 11 approved concurrentIy v,ith the Tentative Tract Map. which expressly showed that the levee 12 was to be removed in connection with the development of the Subject Property. Indeed, 13 one of the conditions of approval of the map required that all future grading be consistent I4 with that col~ceptuai grading plan, and'that a drainage cllannel first be installed along the 15 north project boundary prior to renqo;'a[ of tile ren:ainder of tile levee. 14 AR 3253. t[67Subsequently, tile then-owner of tile Property submitted a "rough grading plan"to the City which ,.,,,as approved by file Planning Department on March 24, 1992, as being 18 consistent with the 1990 conceptual grading plan. 21 AR 5149-5150. The rough grading 19 plan ILke the conceptual grading plan, expressly included the removal of the on-site lek~ee. 20 16 AR 3630, 3621-3623. 21 As required by the conditions attached to the Tentative Map, the gradhag plan that 22 was submitted in connection with DR 98-13 was merely a plan which was consistent with 23 the 1990 conceptual grading plan and the 1992 rough grading plan. 21 AR 5150; 14 AR 24 3230 (site development, cond. #3). That is, the conceptual grading plan established witl~ 25 certainty street locations, widths, elevations, etc. Grading within these established areas 26 27 of Los Angeles (1997) 60 CaI.App.4th 171,181-183 [judicial estoppel is designed to maintain the 25! purity and integrity of tile judicial process by preventing inconsistent positions from being .I asscrt~d]. 10 [1 12 13 16 19 20 21 22 23 2~ 25 26 2~ was also established. Detailed grading approval, as part of the Design Re(dew, did nothing more thai1 amend the interior lot grading to accommodate the footprint of the home. Essentially, the only difference between the conceptual grading plan and the detailed grading plan was the addition of the home foundations, which could not be determhned until approval at Design Review. Thus, had Petitioners wished to attack, review, set aside, void or annul the cond ition of approval of the Tentative Map and grading pIan allowing removal of the levee, they should have done so within 90 days of the 1990 approval as provided in the statute of limitations of Government Code section 66499.37. TimberidEe Entermrises. Inc. v. City of Santa Rosa (t9'/8) 86 Cal.App.ad 873,886 [the approval of a subdivision map and the attaching a condition thereto must be challenged widlin the limitations period of Coy. Code § 66499.3V]; see, Henslet v. City of Glenda[e (1994) 8 Cal.4th 1.22 and n. 11,23-2.5, 27 lit challenge is to application of a reguIatitu~ to a specific property, statute of limitations runs fron~ approval of tentative map]. Because they did not do so, they are barred by the statute of limitations from doing so at finis late date.~: Moreover, because Petitioners did not challenge. the 1990 approval allowing removal of the remainder of the levee, an approval made at the quasi-judicial proceeding before the Plantling Commission, that decision is now final and Petitioners are barred under the iz It was well 'known to Petitioners in 1990 that the remainder of the levee was ~o be removed in connection with development of the Subject Property. In August, 199'/, in connection with tile controversy over the approval of the Final Tract Map for the Project, a prior resident of Haven View Estates and member of he Homeowners Association wrote the City Courteli as follows: [ felt that you should know that there is no truth in the slalement that it was not kuowl1 that the property where the old flood control berm is located was going to be developed. Not oldy was I aware that there were plans to remove the berm aud add 40 additional houses, the CC&R docutneuts also showed the proposed map of the site. Finally, the City had two or three neighborhood meetings when all of this information was discussed .... I find it interesting how the Homeowners Association can now state that they ,.,.'ere not aware of this Project. 21 All 5232. -25- 6 8 9 10 II 12 13 t4 15 20 21 22 23 24 25 26 I doctrine ofresj~tdicata from challenging that decision in this proceeding. See, Section IlI 2 B, SnOra. 3 B. Substantial Evidence in the Record SI-[DDOFtS the Conclusion That Removal 4 of the Remainder of the Levee Will Not Pose a Dan~er to the Public. 5 Even were Petitioners now legally able to challenge DR 98-13 on the grounds that removal of the remainder of the levee \vould be detrimental to the public health, safety, and wel fare, substantial evidence in the record supports the City's decision to approve DR 9813. Petitioners' assertion of public danger is based on the adequacy of the Deer Creek Debris Basin and Channel to protect downslope properties from flooding and debris flow. Petitioners rely primarily upon the following written comments from a representative of the Flood Control District to support their assertion: Deer Creek Debris Basin was designed to accommodate 310 acre feet of debris. However, [sic] a c. rsoo' review of the chart, given tile 3.7 square mile watershed of Deer Creek it al~pears that 440 acre t~et would be closer then [sic] the 310 acre feet the [Corps of Engbmcrs] came up v'ith. That the pl-ojcct opponents feared 29 AR 7094; emphasis added. The record demonstrates, ho~ve,.'er, that this "cursor"' review is in crrol' because it did not take into account the debris production factors and correction factors shown on applicable tables which, when applied, illustrate that the debris basin capacity is correctly determined to be 310 acre feet. 29 AR 7114-7115 [Corps of Engineers Design Memorandum providing the calculations for Deer Creek Debris Basin]. Petitioners also point to the declaration of David Williams to support their contention that removal of the remaining portions of the abandoned levee on the Subject Property would pose a danger to public safety because of "new information." 27 AR 6486- 6487. Mr. Willtams' declaration is seriously flawed in a number of respects. Petitioners fail to mention the fact that the project opponents submined this declaration for the first time on tile final night of the public hearing and, telli.gly, sl~ecifically rejQtsed to allow Lauren an opportunity to analyze, review or even read Mr. \Villiams' declaration during tile course of the hearing on September 16tb. 27 AP. 6483-84. any careful examination of Mr. \Villiams' statements is -26- indicative of their attempt to create the ilkision of a public safety issue when in fact there 2 was none. 3 Beyond the fact that Mr. Willieins did not even sign his declaration, his statements 4 were properly discounted for a number of masons. For example, Williams a&nits that he does not ~ow if Deer Creek basis is undersized. 23 AR 5572 ("Even if the Debris Basin 6 has adequate volume capacity...."). Also, Mr. Williams made a variety ofsi~i~cant factual 7 e~ors and unsuppo~ed assumptions in his declaration which unde~ine the credibility of 8 his "conclusions" or speculations. 27 AR 6486. Funher, Mr. Willjams appears to have 9 ignored that the AmV Co~s of Engineers had ample time to account for the lessons learned 10 in the flood events of 1965, 1969 and 1978 to which Mr. Williams refewed, prior to the 11 ACOE's construction of the Deer Creek facility in ~983. 12 Petitioners also make much of the fact that a debris capacity calculation done on the 13 Deer Creek Debris Basin, in October I994, was 257-acre feet, rather than the assigned 14 capacity of3i0-acrc/~ct. See, 29 AR7103. Again, this argumcnt is to no avail, for it is 15 undisputed that the debris basin has a design capacity of 310-acre feet, and the hct that 16 capacity will be diminished at cenain points of the year when debris has accumulated in ~m 17 basin does not render the debris basin undersized. The County Flood Con~ol District 18 undeaakes regular maintenance reviews of the hci lity; maintenance activities are scheduled 19 when wa~anted, "including removal of sediment lhat may have been d~osited behind the 20 dam;" and the basin is restored to 100% capaciW at the beginning of each winter. The State 21 Division of Safety of Dams also conducts annual inspections that would noti~ the Dis~ct 22 if any maintenance deficiencies had to be co~ected. 6 AR 1570; 29 AR 7219; 22 AR 5526 23 [County restores basin to 100% capaci~ at beginning of each winter and does annual clean 24 out of basin during the summer]. 25 Fu~hem~ore, Petitioners' asse~ion that the County Flood Control Dis~ct developed 26 safety concerns about the removal of the remaining portions of the levee lacks any 27 reasonable foundation. Petitioners' attempt to suppo~ this proposition by pointing to 28 matcrial at Tab 452 [~tlls short of the mark. Petitioners refer ~o several disjunct page excepts I from those materials, but it is al,.,.,ays the Petitioners ,.vho create imagined cor~clusions for 2 the Flood Control District that arc not found in the documentation itself. l¥owhere in 3 material -- or in any ot/ter doctzntent -- has the Flood Control District stated t/tat it now 4 believes tentoying the remaining portions of the abandoned levee poses a danger to public 5 safeO'. 6 Moreover, t~m record is replete with evidence that removal of the levee '.viII not 7 endanger the public. For example, the record reflects that the Deer Creek Debris Basin and 8 Channel `.vere constructed in 1983 and "sized to handle a 'standard project flood event,' 9 `.vhich for this f~acility was estimated to bca '200-year return event."' 6 AN 1570. The 10 State D~partment of Water Resources through its Division of Safcry of Dams certified the 11 dam, and, as stated, makcs annual inspections to assure the dam meets State guidelines. [d. t2 As a result of thc construction of the Deer Crock Debris Basin and Channel, the 13[ Count,',' Flood Control District (i) abandoned its flood easement across the Subject Property [4 in 1986, reserving no rights to maintain or preserve the leveu; (il) approved the grading of ~.5} a major breach in the levee of over 200 f~et in v.,idth so as to pro;'ide an easterly emergency 16~ access road for Ha`.,cnvie,.v Estates in 1989; (iii) supported the 199t decision of the Federal 17 Emergency Management Agency to lift the "t"lood risk" designation on the Subject Property; 18 and (iv) approved the construction of the on-site replacement channel along the northern 19 portion of the property. I AR 279; 2 AR 356; 6 AR 1524, 1572; 7 AR 1848. 20 Finally, a geotechnical consultant determined that 'the on-site replacement channel 21 and its associated slopes would be more stable against gross failure than the existing levee. 22 4 AR 11'71. Consequently, the determination that the removal of the levee '.'.,ill not pose a 23 hazard to the public is supported by substantial evidence, which evidence more than justifies 24 the conclusion that public safety will actually be enhanced by replacing the remnants of an 25 old, breached earthen levee (through which flood waters would readily rio'.'.') with a 26 hardened concrete channel on-site that is designed to current hydrologic and hydraulic 27 standards. 15 AR 3438. Petitioners misleadingly compare the on-site channel to the levee, 28!1 su-_o_estin~ that the Ic`.:cc (before it ,.,.'as breached) had much re'cater flood contro~ capacity I than the on-site channel will have. The on-site channel, however, is not intended to replace 2 the levee. Rather, it was Deer Creek Debris Basin and Channel constructed north of the site 3 in 1983 which repIaced the Ievee by providing protection from flooding from the 2,374-acre 4 Deer Creek watershed. The on-site channel is intended only to handle the runoff from the 5 125 acres between the Debris Basin and the Subject Property. 21 AR 5198. Thus, 6 Petitioners' comparisons in this regard are irrelevant. 7 Even were Petitioners abte to show credible conflicting evidence, however, the City 8 Council was permitted to give more weight to other evidence and to favor the opinions and 9 estimates of some experts over others. Greenebaum v. Cirv of Los An~ctes (1984) 153 10 CaI.App. Bd 39t, 413. Because substantial evidence exists in the record supporting the 11 determination that the removal of the levee ',viii not constitute a public hazard, and because 12 the Court cannot reweigh the evidence and substitute its judgment for ~that of the Council, 13 Petitioners' challengc must be rejectedJ~ 14 V. THE CITY COUNCIL'S APPROVAL OF DR 98-13 FULLY COMPLIED 15 WITH THE REOUIREMENTS OF THE CITY'S I)EVELOPMENT CODE. 16 A. The Citv Properly Acecored the ADolication for DR 98-13. 17 Petitioners argue that DR 98-13 must be invalidated because the City allowed 18 consideration of DR 98-13 less khan a year after the denial of a previous 19 Developmen,f Design Review application for the same site (DR 97-11). Petitioners cit~ to 20 section 17.06.010(G) of the City's Development Code, which provides that following the 21 denial of a Development Review application, "no application for the same use or 22 substantially the same use on the same or substantially the same site shall be filed within 23 one year from the date of denial." City's P-.j~, Ex. C, p. 31. The administrative 24 interpretation of lhis provision by City staff, which must be given ~eat weight by the Court, 25 26 27 25 judmncnt for that of the Citv. ~ _ , II '~ Judge Mendaback has already ruled in khe first CEQA lawsuit (CURE} that the finding by the City that the Deer Creek Debris Basin was adequately sized and designed was supported by substantial evidence. He khus refused to reweigh khe evidence or substitute his City RTN, Ex. B, p. 16. 3 4 6 7 9 12 13 ~4 15 16 [7 I9 20 22 23 24 25 26 27 28! denial oF DR 97-11 is that its purpose is for the benefit of the City -- to prevent an applicant "from submitting the same application over and over without revising the project." 26 AR 6340. it is not jurisdictional, and has never been invoked to prevent a developer from submitting a design review application within one year after denial of a previous application when, as here, the project has been substantially changed. 26 AR 6318. The City determined that because DR 98-13 was substantially revised from DR 97-1l in order to deal with the City Council's expressed concerns `,vith regard to the desigTt of DR 97-11, DR 98-13 was a new application. Thus, the one year forbearance period of the Code did not apply. 26 AR 6340. Substantial cvidencc supports tile City's determination. For cxamptc, upon recci`,,ing the application for DR 98-13, tile City stzff specifically asked for additional information concerning the relationship between the plans for DR 95-I3 and the plans for DR 97-1. [a response, Lauren submitted a matrix sho`,ving the wide variations in the designs of DR 98-13 as comparcd to DR 97-11. 17 AP,. 3889-3590. The matrix sorted all thc horace by lot numbers, and illustratcd that there would bc S different house sizes and 15 distinctly different home structures, `,vith each of the structures varying in elevation, veneer, roof design, roof style, entry decks and po~als, exterior color, and material textures. ld. Further. in DR 95-13 Laurcn added many new features that affected the out,.vard appearance of the homes, and made many of these features "standard," which in the previous application had been "optional." Thus, there would be no chance of buyers buying "stripped down" versi'ons of other homes, and creating too much of a tract home appearance. To further differentiate the homes, Lauren reconfigured garage locations, added bonus rooms and master bedroom sitting areas, increased o,)era[l square footage, and added Bvo totally new ele`,,ation types to tile three styles previously used. Additionally, foundations ','.'ere changed from slab-on-grade foundations to raised foundations, allowing a greater extent of contour ~m-ading on each lot. 18 AR 4125; 17 AR 3779-3534, 3989-4057. In light of this evidence, it was not an abuse of discretion for the City to ha`,,c accepted DR. 98-13 for processing prior to tim expiration of one year from the date of tile , especially in light of the t~ct that DR 98-13 ',:'as submitted almost 10 I months after the denial of DR 97-11, and was not approved by the City Council until 2 months after said denial. 3 B. The Technical Review Committee Was Not Recmired to Re-Review DR 98- 4 13 Because it had Already Done so in Connection with the Tentative MaD. 5 Petitioners next complain that although DR 98-13 was reviewed by the Grading 6 Committee and the Design Review Committee prior to approval, it was not reviewed by the '7 Technical Review Committee as set forzh in section IZ06.010 of the City's Development 8 Code. A brief description of each committee will help put the matter in context, and v.,i[I 9 illustrate that Petitioners' argume~t is without merit. 10 The Design Review Committee is comprised of the City Planner and two members 11 of the Planning Commission. City's PUN, Ex. C, p. 29. It's purpose is to make 12 recommendations based upou a project's design and layout, its architectural design, its use t3 of colors and texttires, etc. [..~d. 14 The Grading Cor~vnittcc is composed of rcprcscmativcs of each di,,'isioi~ of the 15 Comn~unit.v Development Department, and it co;~,~idcrs such items as cut and fill areas, 16 drainage, flood control, erosion control, rctainh~g walls, etc. k.d. at p. 31. 17 The Technical Reviev,' Committee, the focus of Petitioners' challenge, is comprised 18 of members of the planning, engineering and building & safety divisions of the Community 19 Development Department; the Fire Protection Dis~ct; the County Water District; and'Ihe 20 Sheriffs Department. It considers items such as circulation, street improvements, fight of 21 way dedication, utility easements, Fading, drainage facilities, storm drains, Uniform 22 Building Code requirements, security, fire flow, parking, etc. Id. at pp. 30-31. As is 23 evident from this list of concerns, these issues were all addressed and resolved when the 24 Tentative Tract Map for the Project was processed iu 1990. It was at that time that the 25 Technical Review Committee revlev.'ed the Project, and all of its concerns and 26 recommendations were incorporated into modifications to the Project. See. e.g., 13 27 2990-3094; 14 AR 3107-3112. The Code provision upon which Petitioners rely speci ticall>' 28 qualifies the requirement of comnfittee revie,.v to be necessary only "if applicable." City's i 3 4 5 RJN, Ex. C, p. 29. The City did not abuse its discretion in determining that a second review by the Technical Review Committee was not necessary when the City processed DR 98~13, since that Committee did its job in reviewing the original subdivision and grading proposal. As explained by City staff: [A]s a departmental policy, development review applications for an approved tentative map are only subject to review by the Grading Committee and Design Review Committee, and not the Technical Review Committee. 6 7 8 26 AR 6340. It is undisputed that the Grading Committee and Desig-n Revie~v Committee 9 reviewed DR 98-13 and provided input. t7 AR 3870-3885. A redundant review by the i0 Technical Review Committee was not required. 11 C. Laurcn Satisfied the Aonlicablc Fitin~ Rentiirements. 12 Under section 17.24.030 oFthe City's Development Code (the Hillside Development 13 Regulations), an applicant must submit, among other things, a natural features map, a [4 colored cut and fill map, a conceptual drainage and flood control facilities map, i~ slope 15 analysis map, slope profiles, and geologic and soils report, and a statement of conditions for 16 ultimate ownership and maintenance of the development. Petitioners complain that these 17 submittals ~verc not made in connection with DR 98-13. 18 However, the record demonstrates that Lauren satisfied these filing requirements 19 during the processing of its Tentative Tract Map and Conceptual Grading Plan in 1990.' As 20 stated in the staff report for DR 98-13: 21 As the project is tied to the previously approved Tract 14771, for which all filing requirements were submined, it xvas determined that certain filing 22 requirements were not applicable as they contained an unnecessary duplication of existing material. 23 In any event, the natural features map, cut and fill map, conceptual 24 drainage and flood control facilities map, and slope analysis and slope profile map were submitted and approved v.,ith Tentative Tract 14771. 25 Conditions of approval for Tract 14771 require the submission of a soils report during the grading pIan check of the Project. The statement of 26 ultimate ownership and maintenance arc contained in the CC&R's that were recorded with the Tract ivlap. 27 251 . , -32- 26 AR 6340; 30 AR 7461 e_t seq. Thus, because the "missing documents" were already par~ of th? City file, the City 2 properly determined to exempt Lauren from the need to make a duplicate submission. D. Petitioners were not Preiudiced bv any Procedural Failure bv the Citv. Assuming that the City's processing of DR 98-13 contained procedural mistakes, 5 which it did not, Government Code section 650t0, subdivision (b), provides a curative 6 statute for procedural mistakes that arise during the land use review process, which bars 7 invalidation of DR 98-13: 8 9 I0 [l 12 [3 14 15 No action, inaction, or recommendation l~.v any public agency or its legislative body or any of its administrati;'c agencies or officials on any matter subject to this title shall he held invalid or set aside by any coart . . . by reason of any error, irregularity, and formality, neglec4 or omission (hereafter, er,'oO as to a.y .tatter pertaining to petitions, apl;lications, notices, findings, . records, hearings, reports, recotntnendations, appeals, or azt.r ntatters of procedare subject to this title, unless the court finds that the error was prc~/udicial and that the party compklining or appealing suffered s~ibstantial injury fi'om that error and that a dtfferent result would }lave been probable if the error had not occurred. There shall he no presumption that error is ln'ej. diclal or that i.juO' .'as riolie if the error is 5'hcl~t.tt. [6 Enlphasis added. [7 Petitioners raise technical objections, but fail to demonstrate any prejudice, any !8 substantial injury from the alleged errors, or that a different result would have been probable 19 (i) had the City not accepted the application for DR 98-13 v,'ithin one },ear of the deniai of 20 DR 97-I1 (ii) had the City required a second review of matters already considered by the 21 Technical Review Committee, or (iii) had the City required a duplicate submission of 22 documents previously provided to the City. 23 Thus, even had the City failed to live up to tile letter of its Development Code, 24 Petitioners' challenge v.'ould still be without merit. 25 III 26 III 27{/// 28,{ III -33- ~ VI. 2 3 4 5 PETITIONERS' CHALLENGE TO THE FINDINGS SUPPORTING DR 98-13 IS WITHOUT MERIT BECAUSE PETITIONERS FAILED TO CHALLENGE THE FINDINGS BELOXV: i','IOREOX"ER. THE CITY DID MAKE SUFFICIENT FINDINGS, AND TO THE EXTENT ERROR WAS MADE, IT WAS HAR.MLESS. Although its decision is appealable to the City Council, it is the Planning '~S ~ Plalmb~g Commission's findings, ..~ 6 7 Commission that is charged under the City's Development Code with the responsibility of 8 approving Deve[opmentJDesign Reviews for residential projects of more than four dwelling 9 units. [3 AR 2876. Here, the Planning Con~mission heard the DR 98-13 application on 10 August I2, 1998, and the public notice published by tbc City with regard thereto expressly l l warned the public that any court challenges to the project would be limited to issues raised 12 at or before tim hearing. [7 AE 3859; see, Gay. Code ~ 65009, subd. (b). After the public 13 hearing, the Planning Commission approved DR 98-13 by Rcsolutlon No. 98-55. 18 AR [4 4095. The Planning Comm/ssion's Resolution included four findings as required by the 15 Dcvclopmcnt Code. Comaare, 18 AZ 4095 with City's RJN, Ex. C, p. 34. As petitted 16 by the Development Code, Petitioners appealed ~he Planning Comm/ssion's decision, setting Z forth sevcra[ detailed grounds for the appeal. 18 AR 4104-4117. Noticeably absent as a reason for the appeal was the alleged inadequacy of the l~lanning Commission 's findings 19 of approvaL Ibi d. Nor did Petitioners verbally oNect to these findings at the two hearings 20 in front of the CiO~ Council on their appeal 26 AR 6205-6326; 6435-6471. 21 Moreover, the public notice published by the Ci~ ~vith regard to the Ci~ Council's 22 hearing of Petitioners' appeal again expressly warned the public that any cou~ challenges 23 to the project would be limited to issues raised at or before the hearing. 19 AR 4375; Gay. 24 Code ~ 65009, subd. (b). Significantly, ~he proposed City Council Resolution approving DR 25 98-13 was included in the City Council's ageride packct and was available to the public 26 prior to tbc City Council hearings on Petitioners' appeal. It contained findings that wcrc 27 substantially similar to the findings made by the Planning Commission. As with the hoxvever, Petitioners never ot~jccted either in writing or verbally, to any alleged deficiencies in the findings as set forth Dt the proposed Resolution. 2 The City Council ultimately denied Petitioners' appeal and upheld the Planning 3 Commission's approval of DR 98-13, adopting the proposed Resolution. 26 AR 6473, 6476. 4 Had Petitioners objected to or appealed the Planning Commission's findings, or objected to 5 the findings as set forth in the proposed Council Resolution, the CiW Council would have 6 been presented with an oppomniW to remedy any alleged deficiencies at the administrative 7 level. Having thus tiMled to exhaust their adminis~ative remedies by first raising below the 8 issue of the alleged inadequacy of either the Plannh~g Commission's findings or the 9 proposed City Council findings, Petitioners arc now b:~ed from litigating thos~ matters. 10 City off Walnut Creek v. County of Contra Cosm (I950) I01 CahApp.3d [012, 1019-20; RedevelogmentA~encvv. SuoeriorCou~(1991)228CaI.App.3d t487, 1492-93 [exhaustion doctrine applies to all local government decisions for which an adminiswative procedure 13 exists to challenge the decision; an administrative procedure exists if the public is afebrdcd adequate notice of the hearing on the development application and an opportunity to be heard]; Park Area Neighbors v. Town of Fairfir< (1993) 29 Cal App.4th 1442, 1447; Sea & Sa~c Autobor~ Society. inc. v. Plannin~ Commission ([983) 34 Cal.3d 412,417. 17 Moreover, it is not enough for a writ of mandate to issue where there has merely 18 been an abuse of discretion; a prejudicial abuse of discretion must be found. Code Civ. 19 Proc. ~ 1094.5, subd. b. That is, not eve~ abuse of discretion is a prejudicial one. Coy. 20 Code ~ 65010; Lucas Valley Ass'm, Inc. v. Counw of Mafia (1991) 233 Cal.App.3d 130, 147-148; see, Enalish v. City of Lona Beach (1950) 35 Cal.2d 155, 159-160. Here, even 22 if e~or as to the findings is assumed, any such e~or was hapless. The essential 23 of findings is to infom~ the pames to the decision, and a reviewing coua, of the basis for 24 the local agency's decision. Topanna Ass'n. for a Scenic Community v. County of Los 25 Al~efes (1974) 11 CaL3d 506, 515. Fo~ is not to be exalted over substance in 26 asccaaining the adequacy of findings. ~. at 517, n. 16 [findings need not be stated with 27 the formality required in judicial proceedings.] In McMillan v. American General Finance 28 Cortx (1976) 60 CahApp.3d 175, 184, for cxample, the court stated: 4 5 [W]her. e refercirce to the administrative record informs the parties and rev~e,.vmg courts of the theon,.' upon which an agency has arrived at its ultimate finding and decision, it has long been recognized that the decision should be upheld if the agency "in truth fouud those facts which as a matter of law are essential to sustain its . . . [decision]." (Citations omitted, emphasis added.) 6 7 8 9 10 II [2 [3 15I [7i 19 20 21 22 23 24 25 26 27 _g!! ftmdan~entally different." Here, Petitioners cannot honestly say that they did not 'know the basis for the decision the Planning Commission and City Council in approving DR 98-13. The only concerns expressed to the City by Petitioners were those issues raised in this lawsuit (except for the alleged deficiencies in the findings themselves). The City went out of its way to address those concerns, znd specifically advised Petitioners and the public of the City's conclusions with regard to each issue raised by Pctitioners. See, c._c,., 26 AR 6339-6341: Greenebaum v. City of Los An_~eles, suora, 153 Cat. App.3d at 413 [city specifically responded to appellants' charges with the city's analysis and comments both orally and in ',;'rittcn communications and documents]. While Petitioners might disagree v,'ith the Planning Commission and City Council conclusions, the>' nevertheless perfectly well understood the basis for the approval of DR 95-13. VII. PETITIONERS' CEOA ARGU~'IENT IG'.",'ORES THE RECORD. CEOA. THE CEOA GUIDELINES. CEOA CASE LAX",' AND PETITIONERS' PRIOR ASSERTIONS REGARDING CEO A COMPLIANCE On August 12,' 1998, counsel for Petitioners wrote to the City PlamTiing Commissioners regarding DR 98-13 to assert that "additional environmental review under CEQA is required as result of significant new information and changed circumstances regarding the project since 1990. [Petitioners noted in a footnote at this point that this CEQA issues were "currently being litigated in Cucamon~ans United for Reasonable Exoansion v. Citv Of Rancho Cucamon_oa. et al., San Bemardino Superior Court Case No. R.V. 30406."] In addition, it is now clear that the project itself has significantly changed since 7990." 405 AR 3895, 3904-5 (emphasis added). Now Petitioners assert that the "1990 Project and the current Project are Pctitioncrs' Brief at p. 43, lines 25-26. Howcvcr, the Project did -36- 6 7 8 9 10 It 12 13 14 15 i6 17 18 19 20 21 22 23 24 25 26 27 28 not change between the time of Petitioners' August 1998 letter and the filing of Petitioners' Memorandum of Points and Authorities. What did change is that the original CEQA challenge made on the basis of alleged changed circumstances and alleged new information, which the August letter made reference to, failed at the trial court level. City's RYN, Exh. The Project remains the same; only Petitioners' tactics have changed (but to no avail). A "project" for purposes of CEQA is an activity which may cause a direct physical change in the environment or a reasonably foreseeable indirect physical change, including activities that involve the granting of entitlements for use by one or more public agencies. Pub. Res. Code § 21065. "The tem't 'project' refers to the activi~ which is being approved by governmental agencies. The term 'project' does not mean each separate governmental approval." 14 Col.Code Regs. § 15375(c). CEQA review of the physical consequences of a project is to occur as early as feasible in the planning process. 14 Col.Code Reg. § 15004(b). Once CEQA review has occurred for a project (via preparation of a negative declaration or environmental impact report), there is a presumption against requiring another negative declaration or environmental impact a report, even if the original CEQA documentation "is discovered to have been fundamentally inaccurate and misleading in the description of a significant effect or the severity of [a project's] consequences." La._ure[ Heights Imt~rovement Assen. Regents of the Univ. of Cal. (1993) 6 Cal.4lh 1112, 1130; Pub. Res. § 21167.2; Benton v. Board of Supervisors (1991) 226 CahApp.3d 1467. The only question that may be considered by any agency before granting a further discretionary approval for a project for which a negative declaration or environmental impact report has already been prepared is v,'hether changes to the project or changed circumstances will result in, or new and previously un'k.nov.,able information of substantial importance reveals, significant new environmental effects or a shbstantial increase in the severity of previous identified significant effects. 14 Cal. Code Regs. § 15162(a)(1); County of Santa Clara v. P. edcv. Agency (1993) IS CaI.App.4th 1008, 101S. t With the above-referenced "black letter" law as the legal framework, it is simply 2 ludicrous for Petitioners to assert that the City should have started the CEQA process ane,.v 3 for the Project when considering DR 98-13 because the initial subdivision approval in 1990 4 did not include architectural plans, house footprints, slopes between lots or any forn~ of pad 5 grading, all of which are necessary and obvious implementing components of the Project. 6 Tellingly, Petitioners do not raise a single environmental concern about the architectural 7 plans, house footprints, slopes bet,.veen lots or the form o~'pad grading. Rather. Petitioners 8 revert to criticizing the environmental analysis contained in the 1990 Initial Study and 9 negati,.'e declaration. 10 The City acted appropriately '.'.'hen it treated DR 98-13 as a subsequent discretionary I 1 approval for the Project. Moreover, the'City properly determined that the environmental 12 concerns raised during the hearing, such as the removal of the remainder of the abandoned 13 and breached levee and clearing ofthe vegetation on the Subject Project, did not relate to 14 the lot-specific design of residences'presented in DR 98-'I3, and that the environmental 15 issues raised did not '.'.,arrant preparation ofsubsequent environmental review under CEQA t6 in any e,.'cnt. Tt'~e City's dete,'vnination was supported by substantial evidence and the City's 17~ prior determination concerning the exact same issues in connection with its denial of DR 18 97-11 was affirmed against a CEQA challenge in CURE v. City of Rancho Cucamon~a. 19 Therefore, the Court should reject Petitioners' CEQA claim. 20 VIII. CONCLUSION 2l This lawsuit is one of many challenges to the Project by Petitioners. Persistence, 22 however, is not a substitute for merit. Petitioners' primary challenge regarding the 23 consistency of the Project with the density requirements of the City of Rancho Cueamonga's 24 General Plan comes almost a decade too late. The density of the Project was decided in 25 I990 when the Tentative Tract map ,.vas approved. Because it was determined at a quasi- 26 judicial proceeding that the 40-1ot Project was consistent with the General Plan, Petitioners 27 are no,.v barred by the statute of limitations and by the doctrine of res fi~dicoto fi'om 28 challenging the density of the Project. Moreover, this challenge is a make-weight argumet~t 5 6 7 9 iO it~ denied. I2 DATED~ [3 14 15 16 IVi DATED: 19 20 21 22 23 24 25 26 2S fashioned by Petitioners' attorneys which contradicts not only those recorded documents which govcrn both Petitioners' tract and the Project, but the very position taken by Petitioners in urging the Project's approval in 1990. The Petitioners, the property owner, the CitS,, the county, and the public at large (indeed, everyone but the Petitioners' recently- retained attorneys) have treated the Subject Property as very tow denjity residential since prior to the City's incorporation in 1977. The remainder of Petitioners' arguments are all technical in nature, and foundcr upon Enc rock of substantial cv[dcnce which supports the City's determination in approving DR 98-[3. The Court should defcr to the City's reasonable administrative construction ~[\'en to i[s o\vn ordinances, and should not substitute its judgment for that of that City Council. The petition for \\'fit of mandate should bc May 25, 1999 RUTAN & TUCKER, LLP s. Attorpcvs for Real Panics in interest May 28, i999 HEWITT & McGU[RE, LLP By: ~'~ ~Z--'~ Andrew K. Hartzel[----.j Attorneys for Real PROOF OF PERSONAL SERVICE STATE OF CALiFORNiA, COUNTY OF,/OP~NGE of 1 "~d not a party to the within action. My business address is On May 28, 1999, I served ~he document described as MEMO~ OF POI~S ~ A~HORITIES OF REAL P~TIES IN I~EREST IN OPPOSITION TO PETITION FOR WRIT OF b~ATE upon the interested parties in this action by personally delivering i~ to the offices of the persons listed below: Richard L. Stone, Esq. PERSONAL SERVICE Jack H. Rubens, Esq. Sheppard, Mullin, Richter & Hampton 333 South Hope Street, 48th Floor Los Angeles, CA 90071-1448 james L. Markman City Attorney City of Rancho Cucamonga Mitchell E. ~bboEt Daniel L. Pines Richards, Watson & Getshot 333 South Hope Street, 3Sth Floor Los Angeles, CA 90071-1469 PERSONAL SERVICE In the course of my employm. ent with Rutan & Tucker, LLP, I have, through first-hand personal obse~--vation, become readily familiar with Rutan & Tucker, LLP's practice for collection and processing of correspondence for mailing with the United States Postal Service. On May 28, 1999, i placed copies of the attached documents entitled: MEMORIU~DUM OF POINTS AND AUTHORITIES OF REAJ~ PARTIES IN INTEREST IN OPPOSITION TO PETITION FOR WRIT OF MANDATE in envelopes addressed as set forth below. I then sealed those envelopes and placed them in an out-box for collection by other personnel of Rutan & Tucker, LLP and for ultimate posting and placement in the United States mail later that same day. If the customary business practices of Rutan & Tucker, LLP with regard to collection and processing of correspondence and mailing were followed, and I am confident that they were, those envelopes were posted and placed in the United States mail at Costa Mesa, California, that same day. Craig A. Sherman, Esq. Attorney at Law 1901 First Avenue, Suite 335 . San Diego, CA 92101-2322 Executed on May 28, 1999 at Costa Mesa, California. [~] (State) ! declare under penalty of perjury under the laws of the State of California thac the foregoing is true and correct. [] (Federal) I declare that I am employed by the office of a menubet of the bar of this court at mose d~ ec7 th s rvl~a. ~,' 'r ' ' e e ' s made. ' "/; - ,/,/"' S~nt 6y: DEPT OF JUSTICE 2138972616; 06/02/00 9:13j JetFax #256jPage 2/43 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 !7 18 19 20 21 22 23 24 25 26 27 28 BE LOCKYER, Anomey General of the State of California MARY E. HACKENBRACHT, Assistant Attorney Geaeral FF.I I=.N G. ARENS, State Bar No. 150572 Deputy Attorney General 300 South Spring Street, Suit~ 500 Los Angeles, California 90013-1204 Telephone: (213) 897-2607 Attorneys for Respondeat California . Department of Fish & Game SL!~ERIOR COURT FOR THE STATE OF CALlYORNIA FOR THE COUNTY OF LOS ANGF-T -ES CUCAMONGANS Lr~l'l ~D FOR REASONABLE EXPANSION C'CURE"), an ,mlncoq~ora.ted association, Peddoner, CALIFORNIA DEPARTMEXqT OF HSH & GAME, Rcspondent. THE EIGHTS AT HAVENVIEW ESTATES, a Limited Liability Company; LAUREN DEVELOPMENT, INC., a California Corporation; CHZRISTIANO PARTNERS, a California general partnership; DOES I through 100, inclusive, ,Real Parties in Interest. - CEINTRAL DISTRICT ) ) ) ) ) ) ) ) ) NO. BS056542 Ped~onFHed:April6, 1999 Assigaed for all purposes to: Ho~ David P. Yaffc - Dept. 86-Writs & Receivers DECLARATION OF HFJ.EN G. ARENS IN RESPONSE TO OSC RE SANCTIONS DATE: June 12, 2000 TIME: 9:30 ara DEPT.: 86 TO TILE, COURT A_,%fD TO ALL pARjrlES .,U~D -f~ {.: IR AqTI'ORNE1C. S OF P,.'ECORD: Respondent California Department of Fish & Game hereby submits the Declaration of Deputy Attorney Genend Helen G. Arens in response to the Court's Orderto Show Cause re Sinactions for Violation of Order Setting December 16, 1999 Trial. 1 DECLARATION OF bin! .~,r G. AKENS IN RESPONSI~ TO OSC RE SANCTIONS ~pnt by: DEPT OF JUSTZCE 2138972616; 06/02/00 9:13; ]~arj~_#256;Page 3/43 DECL~J~TION OF I-I~LEN G. ARENS IN RESPONSE TO OSC KE DISMISSAL CURE v. DEPARZMENT OF FISH & GJME. et aL Los Angeles Superior Court Case No. BS 056542 I 2 3 4 5 I, I-)F,I .F,N G. ARENS, declare as follows: 6 1. I am an attorney-at-law, duly licensed to practice before all courts in the State of California ? a.ud am a Deputy Attorney General in the Office of the Attorney General, California Department of '8 Justice. located at 30(J South Spring Street in Los Angeles, Califomia. Iamthe handling depmy 9 asslimit to represent Respondent California Department nfFish 8c Game C'D epartment") in this I0 aztion brought by peti~oner Oacamongaas Unked for Reasonable Exp~n~ion CCUKE"). As such, 11 I have personal knowledge of the within facts and, if called upon as a wimess, I could and would 12 competently testify thereto. 13 2. As stated in my prior Declaration(s) in this matter. Real Panics in Interest submitted a 14 Streambed Alteration Agreement Application az the D.'partment's request on or about March 12, 15 1999. Attached hereto as Exhibit A is a tree and correct copy of that Application CExhibits 1 through 16 4oftheApplicationhavebeenreduced),providedtomebyRealPartics' counsel_ As Real Parties' t 7 Application states (see Exhibi: A hereto, pages 3 and 8-11 of 13), the "streambed" in question is 18 actually a d~, boulder-strewn drainage charmel that traverses the north-e~t comer of Real Parties' 19 25 acres (approx.) of property in the City ofRancho Cucamoaga, wher~ they plan to build 40 homes. 20 As the aerial map at'InChed to the Application (page 8 of 13) shows, the Real Parties'wedge-shaped 21 property is imme. diately adjacent to an existing development where, as I understand, Petitioner's 22 member and counsel 8f record, Malissa Hathaway McKelth, resides. Well before the Department 23 acted on the Application-which did not occur until October of i999, Petitioner filed its Verified 24 Petition for Writ of Mandate on April 6, 1999. The Petition, at paragraphs 15-16, attacks as 25 purported CEQA. violations the Department's tentalive "decision" to a~ as a respomible agency 26 rather than as a lead agency. Thus. the Petition does not contain allegations of any final act 27 challenged under CBQA. Nonethe. less, in the interests of judicial economy and To avoid future 2g 2 DECLARATION OF HELEN G. AKEN$ IN RF.-SPONBE TO OSC RE SANCTIONS Sent by; DEPT OF JUSTZCE 2138972616; 06/02/00 9:13] Jeffa2[_#256~Page 4~43 litigation costs, the Deparament attempted to settle tlis matter. 2 3. Settlement ~egotiztiom began on May !7, 1999, with a settlemeat meeting held at 3 Pctitioner's couaser s office. Over the next several months, settlemetal negotiatinas c~n~nned by 4 telephone and in va'iting until about mid-luly, whom all of the parries' counsel agreed to the basic 5 terms of the Settlement Agreement, iacluding a confidentiallty clause which. contai=ed language 6 suggested by Real Parties counsel as well as by Pedtioner's coutsel (Petitioner sought restziction~ 7 on what Real Parties could my about this lawsuit). At no time during these settlement discussions 8 did Petitionef's cou~s~ suggest tie coafide~allty clause was "mac~astitutioml" or prob!~matic in 9 eny Way. The only outstaadig item was the need tn identify a method/procedure by which CURE 10 would pro-ride a list o:~ its membership to a~ appropriate person for a~slsti~g with the practicable 11 e~d'orceability of the Co~fidentiality provision. We finally agreed that the list would be submitted 12 uad."r seal with the Court. I was asked to prepare a dra_~c Se_Ming Ol'der, which I faxed to 13 McKeiti and Real Parties in ~nterest's cou.~el on September 13, 1999. Petitioner, tlxough its 14 member a~d counsel of record, Ms. McKeit~ ~inally agreed to allow CLrRE's membership list to be 15 issued if put under seal and fiRcol PaFdes had to big a motion to confirm if certain names were oa 16 it; these changes were incorporated into the draft Sealag Order. 17 4. l had provided Ms. McKeid~withacopyofthedra~iNotice0fDc"termi~atloarega-rdlng 18 ~c Suea.mBed AkeratiO~ A~eeme~t oa August 18, 1999. Sh~ was aJl0wed to make cha~ges to tlis 19 documem as well. I relied on MS. McKeiti's representations and I believed we had a senleme~t. 20 The Notice of Determination, S~ttlement Agreement and Sealing Order were finnli~,ed and provided 21 to Ms. McK. eith to forward to her client. Ms. McKeith was out nf tom at the time (altiough was 22 reachable by telephon;a~d hersecretary assured me her mall was being ovemighted to her every day) 23 so l offered to file the Notice of Settleme-~:. Atmeandcorrestcopyofmylettercontalnlngthe 24 proposed Notice of Settlement is attached as Exjibit B. 25 5. By foxed haadwritten ~ote dated 9/25799, Ms. McKelth stated that, although ~ere "had 26 been some delay in reaclig everyone for ~n~l approval" since she had been traveligg that week, she 27 informed me that "The terms of the Set~eme~t and Order are acceptable. Please forward signature 3 DECLAjL~TION OF HELEN G. A_~'NS FN KESPONSE TO OSC RE SANCTIONS Sent by: DEPT OF JUSTICE 2138972616; 06/02/00 9:14; )etF~x #256;Page 5/43 1 copies." The proposed Notice of Settlement was also attached without any changes, indicating'that 2 she approvexi of its wording. A true and correct copy of said note and Notice of Settlement are 3 attached as Exhibit C. 4 6. The Streambed Alteration Agreement was thereafter issued, the Notice of Determination 5 wns filed by the Deparm~emt ofFish and Game on October 4, 1999, andlVls. McKeithwasprovided 6 a copy of the fled Notice of Determination (NOD), Attached hereto as Exhibit D ks a true and ? correct copy of the cover letter and NOD sent to Ms. McKeith and others. No challenges were made 8 by any person or enti~ in response to the NOD. 9 7. Ha~ng not received the signed Settlement Agreement back from Ms. MoK,e2~ I started 10 Calling her but could ~ot reach her ,until November 29, 1999, when I finally spoke with her by telephone. After I asked her when I would be rec. ei~g the signed settlement documents, she said 12 that "now that it's all burned and destroyed [rderring to an October, 1999 fire at the project site], 13 it doesn't matter much anymore," however, she did tell me she would forward the settlement 14 documents to me by the "end of the week." I did not received the papei-s. 15 8. InsteM, on Friday aRemoon, December 17, 1999, I received a call fi'om Ms. McKeith's 16 associate at LOEB & LOEB, aBra-utDvek~n. He informed me that the CURE members do not want l? togiveu?theirnamcs. He asked ifwc could "get the setfiemen.'- doae without the membership list." 18 Hc cxpli~ed that there were not that many "players" anyway, that Ms. McKeith is the "main 19 memb or" [of CURE] and that [Peal party] "Lauren' already knows who the "main players" are at 20 CURE. ~th~sugg~(edthati~La~a~ready~knewth~iride`nfitics~thentheys~u~dn~t~aveany 21 objection to relea_~ng their names. Mr, Dveitin then explained that some of the 22 "homeowners"[appargntly referring to the reside, his of the subdivision immediately adjacent to the 23 proposed development at issue] "don't want to give thek identifies in light of the recent events and 24 fire." He would not elaborate, other.than that the fire occurred in October (of 1999). He did disclose 25 that Ms. McKeith (who also lives in that adjacent subdivision) and a "iV/~i;nda," who Mr. Dcvelrln 26 stated was DIs. McKeith's "~aptcd mother," provided an account of the incident that to him 27 innlicates there has been a "problem over there ever sinc~ that fire." I greed to convey Ms proposal 28 4 DECLAK4.TION OF likEN G. ARENS IN RESPONSE TO OSC RE SANCTIONS ,'-'.mr by: DEPT OF JUSTICE 2138972616j 06/02/00 9:t4] ]f:trsx #256;Page 6~43 1 toRealParties'coussel. Ithenasked Mr. Dveifinwhatthe statusofthePetition'sheafingdatewas, 2 and he said he had called the Court on December 3, 1999, a~d was told that the hearing was off 3 calendarbutth~ttheCourthadseta~OSCfortheendofDecember, the29m. WhenItoldbimthat' 4 no onehad toldme about anyOSC, he took a mi~trte to confrm the data and he correcrX-d h~rn~elf, 5 informing me that the papers he /mas indicate the OSC was set for December 22, 1999. Hedidnot 6 explain why he waited so long tO inform me about the OSC, nor why his offi~:e had waited almost two 7 months after this fire, and after the Petitinn's previously scheck~ed December 16, 1999 hearing dale, 8 t~jnf~rmthe~~u`.1an~thepardesab~uthi~ctignt~sa~~egedc~~ng~~fheartsternmingfr~mthis~re. 9 9. I thereafter telephoned Re.2J Parties in Intere~c's counsel, Andrew Hertzell, to relay what I 0 l~.k. Dveirin had told n~e and if he could shed re'ore ljg.ht on the "problem" Mr. Dveirin 'was 11 about. Mr. Hertzell sent me a copy of the Police Report descn'bing the events surrounding that 12 October21, 1999fire. Atraea.udcorrectcopyofthatPoliceReporcisattachedheretoasExhibi~ 13 E. 14 10. It appears from the Report that a bulidozer had entered the subject property to clear 15 weeds and debris, but before a water tanker track could get onto the property, a "Marylinda 16 McKeith," blocked the access road (a fire access road) to the property by driving a leep Cherokee 17 registered to Pedtioaer's member and counsel Malissa H. McKe[th at 1000 W;!ghlre Blvd. in Los 18 Angel~CLOEB&LOEB'saddress),andpzrkingacrosstheen~rancetothe~reazcessroad. Exhjbk 19 E, pages I and 4, The Report indizatcs "Marylinda" was asked by the workers to move the Jeep, 20 kff'o~wnlng her that the ,fvater mack is obliged to follow the bulldozer because of the fire ha 7~rd it could 21 potentially create, but she refused and the Police were called. Exhibit E, page 1. 22 11. TheRepo~tdescribeshow"Maryllnda" at firstwouldaotidentifyherselftoofflcers, thea 23 said she had no identification to confirm her identity, only giving her name as Marylinda McKeith and 24 her date of birch. Exhibit E, page 2. The Report states that, aft, or "IVIazylinda" was informed by the 25 Sheriff that she was illegally parked. she told the Sheriff%ire me." Exhibit E, page 2. The Report 26 goes on to recountthat"Marylhada"thene:dtedtheleepand, ai~erthefire broke out, she still w~uld 27 not move the .loop, instead asldng a group of 8-10 people that had gathered (which apparently 28 5 DECLARATION OF ~ 6. ARENS IN ]~F-qPONSE TO OSC RE SANCTIONS Sent b'y: DEPT OF JUSTICE 2138972616; 06/02/00 g:14; ]et~x #256;Page 7/43 included Ms. Malissa McKe'r~h, who is described in the Keport gs a wom~n w~I/,4ng with the aid of 2 ad~g~andwasid~n~~~edas~~Lary~inda~s``sbtef~)f~rthe~r~p~n~~n~nwhethershesh~u~dm~vethe 3 Jump. Exhibit E, page 3. A~ the fire spread, the Report notes officers ordered "Maryllnda" to 4 ~mmediately move the Jeep, as it was preenring the water truck and d~spatched fire personnel access 5 to the fire road. Exhibit E, page 3-4. The Keport describes how Marylinda thtu "reluctantly' walked overtothcJe~p and moved it. ExblbitE, pagc4. Itapp~ass ffomtheKeportthat, bytb~, 7 the fire had grown, the water tanker tm~ could not extinguish'it and the matter had to be leit for fire fighters. Exhibit E, page 4. 9 12. A/ter the Decea'abef 22., 1999 OSC, as Rtal Pafiies' counsel, Mr. Dvckfi. n and I were 10 ddscusshag th~s matter in the hailway, I asked M~'. Dveifin why/VLs. McKelth represented in her 11 Sept~mberfaxtha~herc~ient~smembers["every~ne~~]hadag~eedtotheset~ementtermswheninfa~t 12 they had not. He said that the members were agreeable then, but not now. 13 13. Subsequently, Pe~doner's counselIris. McKeith and Mr. Dveirin; Keal Pax'des' counsel 14 ~ir. Hartzell and Mr. Halle; as well ~s Ann Malcolm of the Department of Fish ~, Game and myself 15 mettelcphon]caij. y on February l0, 2000. Atthat~me, Petitioner's counsel did not offer any nnmes 16 aspoten~alholdersofthemembershipl~st. They could not ~ven con~rm ifany n~me would be 17 zgre~able Io Petitioner, but promised to consult their client on the issue m!d relay their client's 18 response to the parties. 19 14. I subsequently contacted Conapex Legal Sea'vices ~s a potential holder ofth~ membership 20 list.~inc-~Iknowtheya.reawell-estahllghe~idocumentrepository. IspoketoSalvadornl(800)426- 21 6~39 and asked it they could hold a con.fdentlal list ~h~ coula only be released to someone beaxing a court order for its release. Hecheckodwithh[ssupervisorandconfwm~dthattheyhavedon,~thi.s 23 sort Of~h~ng before and can do it at no charge for us. I conveyed the above to all counsel on 24 February 16, 2000. but Petitioner refused to provide the list. 25 15. Neither my client nor myself were aware, prior to December 17, 1999, ofPefitioncr's' 26 ~h~ngc~fheartal~g~d~yasaresu~t~fthe~tober~reandi~m~ti~n~tt~abidebyth~ir~unse~ 27 promlseth~the settlamentikgmementwouldbeera,'euted. H~aee, my o~ke did not pfoceed with 28 6 DECLARATION OF m=/ ,RN G. ARRqS IN RESPONSE TO OSC i~E SANCTIONS :.;{=lit by: DEPT OF JUSTICE 2138972616; 06/02/00 9:15; ]p, Ei2L_#256;Page 8~43 l 2 3 4 5 6 8 9 10 !I 12 13 14 15 t6 17 18 19 20 21 22 23 24 25 26 27 28 the December 16, 1999 trim (which I understand the Court took off calendar anyway, upon receit:t of the Notice of Settlement). At ~o time did I intend to nor did I believe I was violating any Order setting this matter for a December 16, 1999 trial. I relied on Ms. McKeith's word that this matter was settled and that she would forward the executed settlement agreement to me "by the end of the week" of November 29, 1999 (i .e. by December 3, 1999). I believed my reliance on Ms. McKeith's word was teas onabl e in light of my knowledge that she was both counsel for and a member of CUP, E, and up until December 17, 1999, I was given no indication that the Petitioner would not cons~mmate the settlement. I declare under penalty of perjury under the laws of the State of C~lifomia that the foregoing is true ~¢ud correct. ' '~ Executed this 1" day efJune~ 2000, at Los Angeles, California. HELEN G. ARENS 7 DECLARATION OF H2,LEN G. ARENS IN RESI~ONSE TO OSC RE SANCTIONS 2 3 4 6 7 9 10 12 13 14 15 16 17 19 20 2t 22 23 24 25 26 27 28 BLL LOCKYEK, Attorney Genera[ of the State of Callfomia ~.L~Ky E. H,~.CKEN'BRACHT, Asslstaat AHorney General hELEN G..-~jENS, State Bar No. 150572 Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, California 90013-1204 Telephone: (213) 897-2607 Attorneys for Respondeat California Department of Fish & Game SUPER/OR, COO,XT FOR THeE STATE OF C.'LLSOR/",r[A FOP-. THE COUNTY OF LOS A2,'GELES - CENTP~.~"&. D[STR/CT CUCA3,'IONG.~NS Ut't'N'~TED FOR, R_EASONA3LE E.'~2A2NSION ("CURE"), an uninco~ora~ed asso:iation, v. C.ALEFORNqA DEPARTMENT OF FiSH & G.-M',,5~.. Respondeat. THeE HEIGHTS AT KM/EN'VE\V ESTATES, a Limited Liability Company; LAUT,.EN DE\~ELOP,,s,'ENT, [NC., a Ca!ifon~ja Coloration; CFLRiSTIA2NO PA.P, TNERS, a CaJifomja general p~_r~nershjp; DOES I ~hrough i00, inclusive, P,,ea[ Parlies in interest. NO. BS056542 Petition Fil-.d: April 6, 1999 Assigned for all purposes to: Hon. David P. Yafi~ Dept. S6-\Vrits & Receivers DECL.A.R.A.T[ON OF HELEN G. A2-,.ENS i'N RESPONSE TO OSC DIS,M]SS.-XL DATE: Januar7 24, 2000 TL.\'E: 9:30 am DEPT,: 86 TO THE COURT AND TO ALL PARTIES AND TE~EI:R A"FFOP~NEYS OF RECORD: Respondent California Department of Fish & Game hereby submits the Declaration of Deputy A~tomey General Helen G. A.rens in response to 'the Courrs Order to Show Cause re Dismissal/Sanctions against Petitioner/Loeb & Loeb. I DECL,x2j,T[ON OF HELEN G. ARENS iN RESPONSE TO OSC RE DISNLISSAL I1 2 4 5 DECL.,%{IION OF HiELEN G. ,,KENS I~I KESPONSE TO OSC RE D[S~,~ISS.tL CURE v. DEPARP/[EtVT OF FiSH c~ G.~WE. et Los .A~ngeles Superior Court Case No. BS 056542 [, HELEN G. ARENS, declare as follows: 6 1. [ am an attorney-at-law, duly licensed to practice before all courts in ~h~ Stz~e o 7 California and am a Deputy Attorney G~n=ra[ in the O~ice of the Attorney Gsn=r~, Californ~: S D~p~menc og]ustic~, located at ~00 South Spring Street in Los .~ng~es, Californiz. [ am th~ 9 Mndi~ng d~puty assigned to rgprcscrt respond~nt C~iforn~a Department of Fish & Game t0 "Depa~m~nt" in this action. As such. [ have personal bowl~dg~ of th~ ~n fac~s ~qd, ifcz!l~d I I upon as a v,'itn~ss, I cou d and would compct~nfiy testif/thereto. !2 2. On or about March 12. Igg~, Real Panlos in Interest submined a Streambed 13 Agreement Applizafion at xhe Dcpa~men~'s request. Auached hcreto as E~ibk A is a tree ~nd 14 correct copy of ~hat Applicadon ~xNbi;s ~ ~hrough 4 of the Application hay= b=cn rcduc=d). 15 provided to mc by Kca[ Pa~ies' couns:l. As R=a~ Panics' Appiication s~a~=s (scc Exhibit A [6 pages 3 and S-I I of 13). zhc "szrcambcd" in question is actually a dr/, bouldcr-strc~n dralnagc 17 chznne[ that ~ravcrses zh= nonh-eas~ comer ofKeaI Pa~i~s' 25 acres (approx.) ofprop=~/in the City [8 of Rgzho Cugamsnga, where zhey plan zo build 40 homes. As the aerial map aunthad to xhe 19 Application (page 8 of 3) shows, ~he Real Pa~ies'~,'edge-sha,ed =ro~=~y is immcdlateiy adjacent 20 zo an e~sting development where, as I understand, Pefifioner's member gd counsel of r=zord. 2 [ M~issz Hathaway MzKekh, resides. Well before ~he Department acted on ~h= Application-which 22 did not occur umit October of 1999, Petitionerfiled its Verified Pet t on for WHt of M~date on April 23 6, 1999. The Petition. at paragraphs 15-16, attacksaspu~o~ed CEQAviolationsthcDepanment's 2'4 tentative "decision" to act as a rcsponsible agency rather than as a lead agency. Thus. ~he Petition 25 does not contain allegations of any ~na[ act chileneed under CEQA. NonetMless. in xhe imer=s~s 26 of judicial economy and to avoid ~zurc litigation costs. the Dcpanment a~tempted ~o seulc this 27 maxtar. 28 2 DECLA.:L-!TiON OF FELEN G. AP. ENS IN P. ES?ONSE TO OSC RE D[SMISS.-'.L 6 7 9 !0 ~3 14 [6 I7 19 20 21 22 23 24 25 26 27 28 3. Settlement negotiations began on Niay 17, 1999, with a settlement meeting he!d PeEitioner's counsel's o~ce Over the next several months. settlement r,e~otiations continue~; b telephone and in writing umil about mjd-.ruty, when nil oFthe p~nies' counsel agreed to th~ bzsi terms of the Sealsmeat Agreemenk ~h ~he o~y outstanding item being the nesd ~o identi?y: method/procedure by ~vhich C~ ~vould provide a fist ogits membership to an appropriate perso~ For assisting with ihe practicable enforceability oFthe Con~dentiality provision. We finally agree: that the llst wou~d be sub~Hed under seal with the Coup. [ was ~sked to prepare z dr~ Se2iin~ Order. which [ faxed {o ~.'[s, ~'[cKilth and Real Paaics in [merest's counsel on September 13. !~99 Petitioner, through ks member and counsel ofrezord. ~'~s. ~'fcKckh, finally agreed ~o a[[o'.v n~embership lls~ to be issued if put under seal and if Rca{ ?an~es had ~o bring a motion eo conjrm ce~z~n nan~es ~:.'crc on iE ~hese changes were inzo~ora~ed in:o ~hc dra~ Sealing 4. [ had provided Ms. ~'fcKeith ~h a copy of abe dra~ No~ice of De~eMinztion the Streambed .~teration Agreement on Augus~ I S, 1999. She ~'as allowed to make =hanges document as well. [ relied on Ms. MaK~ieh's reprcs~n~ations and [ believed we had a The No~ce ofDttc~inatloa, S~tlemcnt Agreemere and Sealing Order were ~nalize~ ~nd prov~ed co b-Is. ~'~:Ke{zh to [oF~,.'ard ~o her clie~. ~[s. ~'~cK~h was ou~ of~o~'.'n a~ the time (zkhough was reazhab [e by tel=phone and her seareras/assu red me her mall was being ovemighted to her eveFy day) so [ o~red ~o ~[c :he Notice of Sctt!emenL A tpde and cowc~t copy of my I~lter con~nin proposed No~ice of Settlement is attached as Exhibit B. 5. By f~xed hand~Hen note da~ed 9f25/99, ~s. McKeith stated ~hat. ~lxhough ~here "had been some delay in reaching evenone for final approval" since she h~d been traveling ~hat infoMed me that "The te~s of the S~ulement and Order are acceptable. Please fo~'~rd signature copies." The proposed Notice of Seztl~ment was also aunthod ~.~thout any changes. indlc~tlng that she zpproved of its wording. A tree and covert copy of said note and Notice of Senlemzn~ are ~Hazhed as E~ibk C. 6. The S~reambed ~teration Agveemcnt waslherea~er issued, lhe No~iccofDetcMina~ion was file5 by xhe Department ogFish and Game on October 4.1999. and ~'ls McKeilh was provid~d 3 DECL.-.'.P, AT[O.'~ O.-' [-ELE>: G .~..P2N5 IN ?-'SPONSE TO O5C P,E DIS.',.IISSAL 4 5 6 7 c) [0 13 14 15 a copy of the filed Notice of'Determination (NOD). Attached hereto as Exhibit D is a tee ~'~: correct copy of'the cover letter and ~:OD sent to ~Is ~[cKeith and others. ~'o challenges were by my person or entity in response to the NOD. 7. Having not received the signed Settlement Agreement back from Ms. ~'[cKeith. [ star.`ed cziIing her but could not rezeh her unt[! November 29, 1999. when I finally spoke with her by te!ephone..;L.-ler [ asked her when [ would be receiving the signed settlement documents, she said that ':now thzt it's all burned and destroyed [referring to an October, 1999 fire at the project it doesn't matter mur. h znymore." ho~:.e'.'er, she did tell r~e she would fogyard the settlcmer, t documents to me by tb.e "end of tb. e week." I did not received ti~e papers. S. instead. on rr~szy ,2n.cmoon. De:ember [7. 1999. [ received acaII from N[s. McKcith's assoz. i~_te at LOEB & LOEB, a Bran', D','eZr{n. He informed me that the CU'P,~E members do not to give up their names. He as~:ed if we cau!d ='get the scttIemcnt done ~.~thout the membership list." He explained ~hat ~here were not that many "players" a~n~,~'ab,'. that Ms. McKelth is the "m,;n member" [of CUT',.E] and that [Real Par, q] "Lauren" already knows who the "main players" are at CD?~E, [ then suggested ~hat ifLauren ~ready knew their identities. then they should oat have any obje:gloa to reteasing their names. ~'[r. Dvelrin then =xplaincd that some of "be:n..eowners"[zpparent[y referrig to ~.he residents of the subdivisEon immediately' adjacent to the [S [ Drooose~d deveIoD52ent at 19 20 21 22 23 24 25 26 27 2S issue] "don't want to gEve their identities in light of the recent events fire." Ee would not elabo~-zte, other xhan that the ~=~ oc~u~ed in Octobzr (of 1999). H~ did disclose that Ms. ~'[;Ke~th (who also lives in that aJja;~nt subdivision) ~d a "~e[ind~," who ~'k. D~v~da stated was Ms. McK~i:h's "adopted moth~r." provided ~ account of the in;ident lhat to him indlcat~s ~here's be~n a "problem over ~h:re ever since ~hat fire." I agreed to convey his proposal to ~eal Pa~i~s' counsel. [ ~h~n as~:~d ~'~r. Dv~irin what the status of~h~ P~tifion's hearing date ~'as. and h~ szld h~ had Eelled lh~ Cou~ on D~c~mb~r 3. 1999. and ~'as told ~h~t the h~aring wEs off calendar but ~hzt ~he Cou~ hzd s~t an 05C for ~he ~nd o~ D~c~mb~r. the 29~. When [ told him no one had told me about a~y OSC, h~ took a minute ~o con~ th~ date and h~ corrected hims~iC inferrig me =hat ~he pzp:rs he has indlca~e the OSC ~vas s:t for D~cemb:r 22, t999. He did not DECL.-'P~-'.TiON OF ~LE:~ G AP~E:X'S iN P..ESPON__.E TO OSC P,E I exs ~;n v'hv he walled so ion~ {o inform me abou~ [he OSC. nor why his o~ce had waked atmos{ 2 mon:hs after cbjs fire, and after the Peckion's prs'.'[ousI~' schedu~ej December {5, 1999 hearin~ 3 to bffom the Court md the pa~ies abo~ his cEsnn's aUe~ed chan~e or'heart stemming from t~s 4 9. [ ~hereafier t~ephoned Keal Panics in Intsres~'s counsel ~dr~w H~eII, to rday wh~ 5 ~'L Dveirin had told me and iF he could shed more [iSht on the "problem" ~'~. Dveirin was 6 about. ~'[r. Ha~zeU s~nc m~ a copy of ~he Police K~po~ d~scribinS ~h~ events surroundins 7 October 21, t999 fire. A ~me and correc~ copy o[ ~he Police Repo~ is artached hereto ~s S E. 9 ~0. [; appears from fi~ ~epo~ ~ha~ a buUdoz~r had enacted ~he subjec~ prop~y ~o cI=a ~0 ~'.'~ds and debris, bun b~ore a wa~r maker .... cou!d 2c~ onto ~h~ prop~y, a i I ~'fzKehh," b[ozk~d zhe access mad (a fire access road) m the prop~y b?' ~dvinS a J~p Chcrok~ [2 re,is:trod m P~:ifion~r's m~mbcr and counsel ~falissa H. N~cK~kh at i000 Wilsh~r¢ BIrd. in Lo~ ~ ] :tn~i~s (LOEB ~ LOEB's address), and parkin8 across ~he ~n~rance ~o the ~r~ ncc=ss road. 14 ~ babes ~ and 4. The R~o~ indicai~s "N'faO'linda" was asked by the workers ~o mov~ the 15 [nfo~in~ h~r iha~ Eke wEmr ~mck is ob(i~ ~o [oUow ~hc bulISozcr becaus~ office ~r~ h~nrd iE could 16 po~n:iail~' cr~z~. bu~ sh~ rc~zs~d an~ ihc ?oiice v.'¢r~ cali~d. Exhibk E, pa~¢ ~. i 7 I i. Th~ Kcpo~ d~scribcs how ':R'[nr:'~inda" a~ ~rs~ '~.'ou[d no dcn G' h~rsdfio o~ccrs. zh~n [ S sai~ she h~d no i~cnti~ca~ion ~o confirm her {~cnfinv, oral',' ~'~'~n~ hcr nsme as ~'~s~iin~ ~'fcKckh and I 9 I her date ofbi~h. Exhjbk E, pa~e 2. Th~ Rspo~ sm~cs lhs~. crier "~'fa~ljnda" wss in[om=d by 20 ~ Shc~fftham she was ilIe~a y parked, she told lhe Sh~Hff"chc me." ~xhlb[m E, ps~e 2. The 21 ~otsen~orccount~ha~"~la~'lindz"mhcncxjtcdthsjccp~nd. aficrthe~rsbrokc. ouhsh=still would 22 no~ move the Je=p, ~nst~sd ~skinB ~ ~roup o~ 8-[0 p~ople lhz~ h~d Bathered (which ~ppar~nfiy 23 iac[ud~ ~'[s. ~'[slissa ~'[cKc th who is dssc~bsd ~n ths Kcpo~ as a womzn wzlkin~ ~th thc ald 24 s doS, and wss identified ~s ~'[~O'linda's "sistsr") for ~hiir opinion on whcth=r she should move 25 Jc~p. Exhibk ~ sa~e 3. As ~hs fire sotcad, the Ecoo~ no~cs o~]csrs ordered "~'fs~'llnda" 26 immediately move ~he ]~cp, ss it was prtvcnt;n~ the wztsr track snd dlspntchcd fire personnel access 27 ~o the fire road. E~bk E, ps~c ]-4. Th~ Ecpo~ d~scHbes how ~'fz~'llnda thsn "reluctantly" 2S DECLAPJ. T[ON OF .'-.'ELEN G .-'.?~ENS iN RESPONSE TO OSC ?.E D!S).fiSSAL 1 S 9 t2 15 17 IS 19 20 21 22 23 25 26 27 walked over to ~he Jeep end moved it Exl'~bit E, pa~e 4. [t '-9pears from :he EepoR that, by the2 the fire had growa so large thac the water tsnk~: frock appzr~ndy could non e:<fingu{sh k and :h~ matter had to be is~ for ~re Etght~rs. E~:ibk E, pag~ 4. [2..~er the December 22, 1999 OSC, as Rsal Panics' couns=i, Mr. Dveirin and I discussEng this m3ner in the hallway. [ asked ~k. Dvdrin why Ms. McKdth represented in Sep:ember fax tha: her cllent's members [::evc~'oae"} h~i agreed to ~he seuiement terms when in fzc~ they had nOL He sa~8 that the members were agreeab{e then. but not now. [ dec[are ur:~er peaak',' oFpcrjur,,' under the !av.'s oFthe Since oF CaEifornla that t,he foregsi,':g 2[ii da';' o~' january, 20'30. at Los Angeles, C:diforni:l. FT_LEN G..-x,R_ENS 6 DECLA2.-'.TiON OF HELEN G .;..HENS iN RESPONSE TO OSC RE l 3 4 5 6 7 9 10 I1 12 13 I5 I6 I7 18 19 20 21 22 23 24 25 26 27 28 Andre',,,' K. Hartzetl (State Bar No. 147499) William E. Halle (State Bar No. 150686) HEWITT & McGUIRE, LLP 19900 MacArthur Boulevard Suite 1050 irvine, California 92612 (949) 798-0500 Attorneys for Real Parties in Interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC. LAUILEN DEVELOPMENT, INC. and CKISTIANO PARTNERS SUPERIOR COURT OF THE STATE OF CALIFORNIA FORTHE COUNTY OF LOS ANGELES CUCAMONGANS U.~ITED FOR ZEASONABLE EXPANSfON ("CUE"). an unincorporated association, Petitioner, CALIFORNIA DEPARTMENT OF FISH & GAME, Respondent, THE HEIGHTS AT HAVENVIEW ESTATES, a Limited LiabiliW Company; LAULZEN DEVELOPMENT, i~,;C.. a California corporation; CRISTIANO PARTNERS, a California general parmership; DOES i through 100, inclusive, Real Parties in Interest. CASE NO. BS056548 Assi~ned to Hon. David P. Yaffe Department 86 DECLAPL4.TION OF ANDPLE~,V K. HARTZELL REGARDING OSC P,.E: DISMISSAL .HEARING: Date: January 24, 2000 Time: 9:30 a.m. Dept: 86 I, Andrew K. Hartzell, declare as follows: 1. i am an attorney-at-law duly licensed to practice before all courts in the State of California and am a partner in the law finn of Hew;It & McGuire, LLP in Ir,,ine, California. I am legal counsel to Lauren Development, Inc., The Heights at Haven View Estates, LLC and Cristiano Partners I, Real Parties in Interest in this case. I also am an HARTZELL DECLARATION P,E OSC {GI\OOOIGOOg. DEL~d I a~torney of record to Rea] Parties in Interest {n this act{on. As such, I have personal 9 knowledge of the facts set fo~h beIo,.v, and if caltcd upon as a witness, [ could and wouid 3 compctently testify thereto. 4 2. I believe that CURE's petition for writ of mandate is ',','holly without merit. 5 CURE has been attempting to block my clients' 25-acre residential project using 6 Section 1603 of the California Fish & Game Code, among other purported and meritless 7 bases, since 1997. 8 3. CURE's Petition does not contain any challenges to any final action taken 9 by tile California Department of Fish and Game CDeparrrnent'). Based on CUKE's 10 histo~' of actions regarding Real Panics' residential project, [ believe that CURE filed hs i i Petition solel:,' in an a~empt to intimidate the Department into not issuing a Streambed !2 Alteration Agreement to my client. 13 THE SETTLEMENT I4 4. As explained broadly at the December 22, 1999 hearing on the Court's I5 Order to Show Cause, Real Parties believed this maner had been settled. Real Parties 16 were willing to cxplorc a settlement of CUKE's concerns in ibis matter solely as a means 17 tO reduce the anticipated costs of litigation and to achieve a more expeditious final I8 resolution of This issue. The confidentjailS' provisions of the Settlement Agcemcnt were 19 extensively negotiated with CUR_E bct~.'een May and September, and I communicated 20 clearly to CURE that these provisions were essential to any sertlement agreement. 21 5. I believed that the parties had all approved the Settlement Ageement and 22 Sealing Order in late September 1999. Not only did my office send out final execution 23 copies of the Settlement Agreement for the Parties' signature based on that understanding, 24 but [ also received additional confirmation of CURE's agecment in writing from Ms. 25 McKeith, as seen in Exhibit A. 26 6. That CURE would now attempt to renege on this agreement well-past the 27 t,.vel~h hour and squander more judicial resources is typical of its many other attempts to 28 terminate my clients' project through litigation and other means. 2 MARTZELL DECLARATION .~,-' OSC I VEXATIOUS LITIGATION 2 7. CURE's petition for writ of mandate in this case represents one of seven 3 actions filed either by petitioner CUE or its two allied opponents of my clients' proposed 4 25-acre residential project in the gated residential neighborhood of Haven View Estates, 5 located in the City of Rancho Cucamonga (the "City"). Five of these other six lawsuits 6 have been filed in the Superior Courl of the County orSart Bemardino-Rancho 7 Cucamonga Division. The other suit '.'.'as filed in July 1997 in federal District Court for 8 the Central District of California. 9 8. CURE itself has brought a lawsuit against the City of Rancho Cucamonga tO aIleging violations under 42 U.S.C. 1983 in federal district court (Cucamon~ans United for 11. Reasonable Exnansion v. Ciw of Rancho Cucamon~a, et el. Case No. 97-4828). CUPdE 12 also filed a petition for ~,-rit of mandate alleging CEQA violations associated with the I3 denial of an architectural desi~n review application by the City for this residential project [4 (Cucamon~ans United for Reasonable Exnansion v. Ciw of Rancho Cucamon~a, et el., 15 Case No. RCV 30406). The ~.'o existing homeowner's associations in this gated [6 community ("HOAs") filed an action in 1997 asserting General Plan violations (Haven 17 Vie`,.., Estates Homeowners' Association. et el. v. Ciw ofRancho Cucamon~a. et el., Case I8 No. RCV31906). They also brought a separate action against the City and Real Parties I9 challenging an architectural design r~view application for this project in 1998, asserting 20 General Plan violations, CEQA violations and other claims (Haven View Estates 21 Homeowners Association. el el., v. CiW ofRancho Cucamon~a et el., Case No. RCV 22 37920). The Spirit of the Sage Council C'Sage Council") filed a petition for writ of 23 mandate challenging the same City approval, but on a contrary and conflicting legal theo,"y 24 in Snirit of the Sa.c,e Council v. Ciw ofRancho Cuoamonaa, etal., Case No. RCV 38355. 25 Finally, one of the HOAs filed a complaint in intervention purporting to allege (ironically) 26 claims of nuisance (Crisfiano Parmers I v. Angel. et el., Case No. RCV 33906). 27 9. To date, no court has found in favor of CURE, the HOAs or Sage Council in 28 their seven lawsuits challenging this project. CURE 's CEQA action against the City 3 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 resulted injudgement against it. The district court in CURE's federal action abstained, believing this matter to be more appropriately heard in state court. Naturally, CURE has appealed both decisions. The HOAs' Case No. RCV 3 1906 was terminated byjudgement following damutter, which was upheld on appeal, and the "nuisance" claims of Case No. RCV 33906 were dismissed upon demurrer. The most recent CEQA cases filed by the HOAs and Sage Council, filed approximately 13 months ago, are still pending. The HOAs and Sage Council have taken numerous actions which have delayed the hearing on the roefits of their petitions; currently tha'. hearing is set for January 20, 2000. 10. There is ample evidence that CURE, the HOAs and Sage Council are coordinating, or acting in concert, wi~h one another on these various lawsuits. For example, at various times the anomeys for ~hese entities have copied one another on correspondence concerning their many lawsuits, their anempts to lobby government agencies to stop this project and their efforts to otherwise stop Real Panics' residential project. ~[oreover, many, if not all. of the members of GUILE are likely to be members of one of the two HOAs. Also, iris. Leona Klippstein, who has acted as lead spokesperson for Sage Council in challenging this residential project, has testified before the City Counc. il on the record that at times she has been a member of CURE. 11. Similarly, Ms. Malissa McKeith, who is also a member of CURE and its legal counsel, is a member of one of the HOAs and desperately wants to prevent homebuilding on what she apparently perceives is her own "open space." (Real Parties' 25-acre residential project constitutes the ihird and final phase of residential development within ~he Sated neighborhood of Haven View Estates, a neighborhood of custom and semi-custom homes which includes a home owned by Ms. McKeith.) ] 2. Ms. ~v~cKeith, CURE member and counsel of record in this case, testified before the City Council opposing Real Pa~ies' residential project on August 20, 1997, ".. · I kid you not, I will not stop litigating in this case. We have one lawsuit filed in federal court; we will file another state action, and this case will go on and on and on .... I am operating in this game from a sig-n ofstren~h." A copy of a portion of the certified 4 2 3 4 5 6 7 8 9 I0 12 13 14 15 I6 17 18 19 20 21 22 23 24 25 26 27 28 transcript from that City Council hearing is attached as Exhibit B. 13. On October 12, 1999, the City issued a gading pe~'Tnit to Lauren Development. The gading permit contained an effective date and time of October 15, 1999 at 5:00 p.m. The City notified Ms. McKeith, attorneys for the HOAs, attorney for Sage Council and others directly by letters dated October 12, 1999 of the City's issuance of the grading permit and its effective date and time. A copy of the letter sent by the City to Ms. McKeith is attached as Exhibit C. By providing this advance notice, the City afforded CURE, Ms. McKeith and others ample time to request a stay or temporary res~aining order ("TRO") from the cou,qs regarding this gading operation. [4. CURE never requested any stay or TRO from this court or any other court to hail ~he ~ading of this project site. 15. Clearing, grubbing and gading of the majority of the 25-acre property commenced on October 21, 1999. This activity included operations covered by 'the Section 1603 Streambed Alteration Ageement which is the subject of CURE's petition for writ of mandate before this Court. 16. The HOAs did request a stay/TgO from the San Bernardtrio County Superior Court on or about October 25, 1999 and on several separate occasions thereafter through eariy November 1999. These requests were denied. Neither the HOAs. nor Sage Council nor CURE ever raised as a gounds for a stay Ihat the issuance ofihe Section 1603 Stceambed Alteration Ageement was in any way defective. I declare under penalty of perjury under the laws of the State of California that the foregoing is l'rue and correct. Andrew K. Hartzel[ 5 HARTZ_ELL DECLARATION R= OSC mal ind~ 213 8972~02~ 0g127199 13:39] JetF~x #21; Page sos-ses-eTo2 p.: 1LOEB'Bg. LOEBmo FACSIMILE TRANSMITTAL FRO M: P;e, ase deliver these __ pages <including ~hls cover Ma,!is~. Ha:j'a_.'a,.ay McK6t.h Pc_-so.,.,.,.,.,.,.~J ID:00496 C!i~'~-:F:?-c: 6666~6-666(y6 void: :2/3 - 'g'f?- ,2~'o2 DL,'cctDiaJ: 2!3-688-3622 Fzc,siz-,jlc: 213-68g-3q60 NOT~: lfL,-e. ns.m;.ssion ~s not comalc,'c plr_z~ cz]l o:.:r op~aLo: aJ 2134,gg-34?g. re~t/n,"n~ 'Luo_r t/a n e Se;,: ~y: ,~e~Fex Mg10 213 B972S02; 0g/27/~; t3:39; ]f, LiS?,:s~#21; Page 3/~ B ]2 33 14 ~RNL~.. DEZ~'T ~ ~ & GAM:E, ' '~ ~CrHT~ AT HAVENW1EW ESTATES, CHR.iS LbtNO PA,RI'NE:RS, · ~fa,.-'~ tenera{ ! 13 I4 21 ;Z3 2..~ .:; U .... ",' O ,.,. 'Z BEFORE Yi~ CZTf COD~,.'CZL OF P_-'~WC:.~O CUC~MONGA ~=n Appeal for Deve!opmenL Review 97-!! for ORIGINAL ..'P~";SC~,i,-'T O? PROCEDiKG5 Ransho C'Jca..m.cn_:a. California We~__n~s~ay, Az~dS: 20, 1~7 Reporzed by: CO~'N'ZE ~[A2_~DN Hearin~ Reporter jOB No. 4SD240 2062 ! rare and beautiful parcel in add'ition to the safety 2 issues. 3 i approached Mr. Crisciano, because as a 4 property owner, he is entitled to the fair market 5 value of his investment. I represent develOD~--s 6 That is what my claim to fame is; not being on the 7 o~her side of cases; although, i have had a big S education in The last couple of months about issues 9 that i used to think were not particularly !0 significant. !! Yl. Cris~iano ~as offered a sum of money 12 that he will never see again at this point in time. 13 Because for every dollar tha~ we spend on legal fees 14 is another dollar that we do not have to purchase that 15 property and put it in The State Wild!ire Consercation 16 fund. 17 i have been very frank and open about 18 nrying to reach a settlement ~ith Mr. Cristiano early !9 on, trying to make Lauren -- trying to avoid the 20 litigation with the city. I recently spoke to the 2! city attorney who represents the city on the federal 22 action. I said, "Listen this is something ~here if 23 D~OD]~ sat down and ~orked together, we could 24 theor=tica~v work it out," because i kid you not, i 25 will not stop !icigating in this case. 2141 79 ! We have ene lawsuit filed in federal 2 court; we will file another state action, and this 3 case will go on and on and on. we will all spend a 4 !or of money, whe~ we could sit down and try ~o work 5 things out. ~nen i make these overtures, everybody 6 thinks this is a sign of weakness. it is not a sign 7 of weakness. i am operating in this game from a sign B of strength. 9 ! have a lot of substantial evidence in !0 the record. ! have a major law fim behind me. !! we aren't going anyp!aze. ~nd maybe the !a~Vers will !2 make a lot of mona9 on the fact that clients don't sit 13 down and fi~?ure how to work things out. You have that !4 choice. 15 The correspondence of YI. Cristiano is !6 -very, very clear in the record, and i would urge you !7 to read that, because his impression was created that 18 .we ~'ere sot, chow tryin~ to rip his property off for 100 !9 thousand dollars. That ~as not the case. 20 His tentative map is stuck, though. He's 21 going to have a lot of trouble selling that property, 22 because i'll tell you, there is nobody that is going 23 to come along and develop that property that doesn't 24 kno~ they have to deal ~ith us. 25 This time ~e will know ~hat's going on. 2142 2 3 4 5 7 9 !0 !! 13 14 15 17 iS !9 20 21 22 23 25 We didn't .~..o if r had known before ~'~ 23rd, T would have been out there battling a lot sooner. There's no reason in the world i would have sat on my hands for a development like this. So this notion than we had notice a long time ago. is not correct. There is a lot of evidence over the last several months. My fear, because it's late in the evening, is that once, again, it's going to be easy to decide to continue this h=a-~c i would urge you to do the fol!o~'ing: Take the evidence this evening Close the record. if you do not close the record ~e will be out there tomorrow and the next day and ~ne next day and the next day hiring new experts, gettin~ the Army Corps of Engineers to do this, that, and the other thing. You ~ere the ones that ~anted the hearing on Au~-nlst the 2Oth. We prepared for this hearing. We ~ou!d like to close the record. if you need to take it under. submission, if you need to get a second opinion -- I ~ould urge you to get a second opinion. This is an important decision for the city, not only in terms of the !e~al fees, ~hich your city attorney will tel! you, ~ork my ~ay, not his ~ay, in the event I prevail on the civil rights action on the enviro.~menta! case, but it's a liabi!iny issue. 2143 7 H E C ANCHO C ~ T Y 0 F UCAHONGA October 12. 1999 Malissa Hatjaaway McKefth Brant H. Dveifin. Esq. Loeb & Loeb 1000 Wiishire Boulevard, Sure 1800 Los Angeles, CA 90017-2475 Dear Ms. Mckeith & Mr. Oveidn: In a~Tdance ~..'/tjq the in~ruc~jonS o,' the Ci.~, Council o1' the Cib· of Rancho Cucamonga. you hereby are noL;'fied that a grading pe,nmit has been issued for Tract 14771 pursaant ~o Grading Plan Check 9~°~3026. The pe,,"m,~ ~,as issued subje~ to those hems contained in We Ietter to M,r. Bill Ford, a copy of which is ~[~dched So this [e~er {oged~er v.~h a copy of the grading pen~ PusIf. Please no~e thst the grading perm~ may not be u~ilized prior to 5:00 p.m. on Friday. October 15.1999. %::!4e3%IGELOPMENT DEPARTMEr~I' ..L1i RG:{G:mIg Jcck Lcm./~JCP Cry Mcncger Gobbar 12, 1_'2.99 Ford Lauren Development P.O, Box 790 A'gcura HElls. CA 91376 SUBJECT: GRADING PLAN CHECK 99-30'25 Dear Mr, Ford; The Ci.*y of P. arlcho Cuca,t--:.onga has --m~t~.'..d its rev;e,,.,, o; ~he Grading Plan for Trot( 1-1771. and approved Grading Plan Check 99-3025. The Grading Pe,,-m.[l for lhe sublet[ site is hereby issued subie:~ ~o ~ne Con. ~istent with the CanalbEans o[ Ap.2. rc,-,z,[ for Trac~ 14771 . no grading shall occur on any po~[on cf~he levee un!i[ such llme as lhe drainage channel adjacent ~o the norahorn bcunda,->.' of the trace is sampieCe. No grading sha[l occur on a~9 pan[on of the OV,/P prope,i-ty to the north of the tract until such t{n,.e as pe,rm,,Zssbn has been provaried by `the DVVP ;o grade on '[belt property 3. This GradErig Permit shall no[ become effective and no grading shall occur on the proiect site for a perOod of 72 hours. This ,--'if[ allow rot the oppoduni`ty tO haiti",/the Homeo,,vners Assasia!EDna. 'the organizations. and the a.~omeys interested ~n the proiec[. in accordance ,,'.'ith `the inst;'JcLicns of:he Ci~'/Council. The Grading Permit. may firs[ be udlized ca Friday. October 15. '~999, at 5:00 p.m. Shou!d you have an), ques',icns. please cz, nZa:[ me at (909) 477-2700. Sincerely. CC M¢~VELOPf,,',ENT DEPARTf,IENT ~ G~ '1 PACE SEND CONFipdv~TiON REPORT JOB~ REMOTE STATION 496J 9 DATE/TiME 10-12-99 ¢:32P MACHINE ID 909477284 ~L~,CHZNE NAME R CUC&~E)f'~A CON DE PAGE 10-12-99 4:30Pfi 2'02"J 4/ EC , S LETED TOTAL 2'02" 4/4 NOTE: EC ERROR CORRECTZON 96 550D BPS SELECTED 48 ~800 BPS SELECTED CR CONFIDENTIAL RECEIVE Pi POLL-iN PO POLL-OUT MP ~ULTI-POLL SA SUBADDRESS PW P~SS~P~ BC BROADCAST MS NAZLGOX RD REMOTE DIAGNOST City of Rancho Cucamonga TELECOPY Telephone: (909) 477-2750 FAX,: (909) 477-2847 MESSAGE: Laurc:...::. Si;,vcr, -2,::L 302 Sy::.-=ore Sc~cc: Mill VaE:y. CA 9494 [ Fax 415-3g3-7532 Palchad L. Pace. ~.=q. jack H. R"-be:.5. Esq. D-~c/B. tV. esm2. Shqyp-_:d, M61;--~, R3cbcc~, & 333 Sou5~ Hope S=,--cr: 48~ Floor ~S k'l~clcs. CA 90071.144S Fax 213-G20-139S E::cE~ -V-"-L':ag~--,,cnt Co. ?.O. Bcx !510 ~ UpL~zd, CA 9i785-:5[0 :3 r'.-:.;t,,t 6 T !i E C I mA NC7 HO "'~U Y 0 r- -,"\H O N C October 12. 1999 Richard L. SLone, Esq. Jack H. Rubens, Esq. Daniel B. Mes:az Eso. Shepard. ,',.,lu[lin. Richter & Hampton 333 South Hope Sireel. 48='' Floor Los Angeles. CA 90071-1448 Dear Mr. Stone, ~ubens -S. ,'4es[az: In accordance vdth the ins',r'dcdons of th.e City Council o[ the CiIy of Rancho Cucamonga, you hereby are no:ified the', a grading permR has been issu~d for Tract 14771 pursuant [o GradEn9 Plan Chat:-; 99-3025, The pe..-m.i: was issued subjet.'. to those items contained in ;he leuer lo Mr. BHI Ford, a copy o; which is e~ached to Is.let *.oge:her v:ith a cop>' cf the gradErig permit iLseCf. Please note the: the grad/rig permEt may not be utHZzed prior :o 5:00 p.m. on Fr/dSy. October 15. 1999. P~OOF OF SERVICE 2 STATE OF CALIFORNIA ) ) S COU.'.'NTY OF OR_A_NGE ) 4 5 6 7 S 9 [0 ll [2 __ I3 14 15 X [6 I7 [ am. employed in the County of Orange, State ofCalifomia. [ am over the age of 18 and not a party to the v/ithin action; my business address is [9900 MacArthur Blvd., Suite 1050, [,'wine, CA 92612. On Ja.uarv 14, 2000, [ sen'ed the foregoing document described as DECLAP..ATION OF ANDREX',' K.'HARTZELL REGARDING OSC PLE.: DIS,.`,IISSAL on the interested parties in this action by placing a true cop}' thereof enclosed in sealed envelopes addressed as follows: N[alissa Hathav;ay McKeith grant H. D,/eirin :X[ardm Simrp Loeb & Loeb LLP 1000 Wilshire Blvd, Suite IS00 Los Aa~geles, CA 900[7-2475 Bill Lockyet Ma::y E. Hackenbracl:t Helen G. Areas State ogCalironda 300 South Spring Street, Suite 500 Los Angeles, CA 900ta-t204 BY REGULAR ,.".'tAIL: [ caused such cavetopes to be deposited in the United States mail at in'the, California, u,'id~ poseage ~hereon full.,,' prepaid. [ am readily familiar v.'id~. the ~rm's practice ogcollection and processing co~espondcncc for mailing. it is deposited '.vith thc Unked States Postal Ser,'[c~ each day and that practice ,.,.'as follov,'cd in the ordinao' course ofbusin~ss for tee sen'{ce herein attested to (C.C.P. § [0[3(a)(3)). BY FEDERAL EXPPjESS: [ caused such en,.'cEopes to bc deposited in Federa! Express at [n'ine, California, v.'ith postage thereon full}' prepaid. [ am readily familiar v.'ith the ~nn's practice o/collection and processing coa'espoadencc for mailhtg. BY PERSONAL SERVICE ([ caused said documents to bc delivered by hand to tim address(es) !isLed above.) BY FACSi),HLE: ([ causec sa~:: riocur. rent to bc fa:<ed to the addressed and fax numbers listed above. 2O 21 22 23 24 25 26 dec a[e under pena ty ofpedur,' under the laws of the State of California that the above is tree and correct. Executed on January 14, 2000, at [rvine, Ca~//~//~ MARY E. RICE . Print Name ~ g 'de ' 27 28 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BILL LOCKER, Attorney General of the State of California 2 MARY E. HACKENBRACIffl' Senior Assistant Attorney General 3 HELEN G. ARENS, State Bas No. 150572 Deputy Attorney General 4 300 South Spring Street, Suite 500 Los Angeles, Califomia 90013-1204 Telephone: (213) 897~2607 Attorneys for Kespondent California Department of Fish & Crame SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COLINTY OF LOS ANGELES - CENTRAL DISTRICT CUCAMONGANS UNITED FOR REASONABLE EXPLNSION C'CURE"), an unincorporated association, Petitioner, v. CALI2FORNIA DEPARTMENT OF FISH & GAME, Respondent. THE EIGHTS AT HAVENVIEW ESTATES, a Limited Liability Company; LAUREN DEVELOPMENT, INC., a California Cqrporation; CKISTIANO PARTNERS, a California general pannership; DOES I through 100, inclusive, Real Parties in Interest. NO. BS056542 Petition Filed: April 6, 1999 Assigned for all purposes to: Hon. David P. Yaffe Dept. 86-Writs & Receivers JOINDER TO MOTION FOR ENTRY OF ORDER OF DISMISSAL Heating: Date: July 6, 2000 Time: 9:30 am Dept. 86 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that Respondent California Department of Fish & Game does hereby Join the Motion for Entry of Order of Dismissal fled by Real Parties in Interest, The Heights at' Havenview Estates, LLC, Lauren Development, Inc., and Cristiano Partners I. Dated: June [c2~--, 2000 BILL LOCKYER, Attorney General of the State of California HELEN G. ARENS, Deputy Attorney General By: ~ -- /~~N G. ARENS Attorneys for Respondent' ' JOINDER TO MOTION FOR ENTRY OF DISMISSAL 156 Andrew K. Hartzell (State Bar No. 147499) William E. Halle (State Bar No. 150686) HEWITT & McGUIRE, LLP 19900 MacArthur Boulevard. Suite 1050 Irvine, California 92612 (949) 798-0500 Attorneys for Real Parties in Interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, LAUREN DEVELOPMENT, INC. and CR/STIANO PARTNERS I SUPER/OR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CUCAMONGANS UNITED FOR REASONABLE EXPANSION ("CURE"), an unincorporated association, Petitioner, V, CALIFORNIA DEPARTMENT OF FISH & GAME, Respondent, THE HEIGHTS AT HAVENVIEW ESTATES, a limited liability com any; LAUREN DEVELOPMENT, INE, a California corporation; CR/STIANO PARTNERS, a California general partnership; DOES I thxough 100, inclusive, Real Parties in Interest. CASE NO. BS056542 Assigned to Hon. David P. Yaffe Department 86 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO . OPPOSITION TO MOTION TO DISMISS HEARING: Date: June 6, 2000 Time: 9:30 a.m. Dept: 86 [Filed Concurrently With Demurrer] Real parties in interest The Heights at Havenview Estates, LLC, Lauren Development, Inc. and Cristiano Parmers I (collectively, "Real Parties") submit the following brief in reply to the Opposition to Motion to Dismiss Petition for Writ of Mandate ("Opposition") filed by petitioner Cucamongans United for, Reasonable Expansion ("Petitioner"): -~---'-~._ REPLY BRIEF RE: MOTION TO DISMISS. 128 I I. 2 INTRODUCTION 3 Petitioner argues the Court should deny Real Parties Motion to Dismiss (the 4 "Motion") because the pleading is not a sham, Petitioner "scheduled" a hearing on the 5 Petition within time periods set forth in Public Resources Code section 21167.4(a), and 6 Real Parties have not been prejudiced by Pefitioner's failure to prosecute its Petition 7 diligently. In ma~ng these arguments, Petitioner does not adequately address the fact that 8 the Petition does not set forth a cognizable claim, it does nothing to address the policy 9 behind Section 21167.4(a) to avoid exactly the type of delay Petitioner has orchestrated in 10 this case, and its excuse for the delay and "lack of prejudice" argument are based on a 11 tortured representation of facts. Because the Petition is a sham, and because Petitioner has 12 engaged in dilatory conduct rather than diligent prosecution of its Petition, the Motion I3 should be granted. 14 II. 15 THE PETITION IS A SHAM 16 Real Parties demonstrate that the Petition does not set forth ajudicially-cognizable 17 claim in its briefing supporting the concurrently-filed demurrer. Petitioner decided to file 18 yet another complaint challenging Real Parties' development in its overall scheme to 19 prevent the development through the sheer delay and expense of multiple lawsuits. It 20 therefore filed a baseless challenge to the "refusal" of the California Department of Fish 21 and Game (the "Depa~ tment") to slate for the record -- before taking action -~ that it would 22 act as a Lead Agency in connection with the Real Parties' application for a streambed 23 alteration agreement ("Permit"). The patent deficiency of the Petition is amply discussed 24 in connection with the demurrer, and Real Parties respectfully refer the Court to that 25 briefing. But some background analysis of Pefitioner's claims is helpful to demonstrate 26 that the Petition is not merely deficient, but a sham. 27 According to Petitioner, the Department violated CEQA when a staff member 28 "confirmed" that it would process the Permit application in accord&~..~i.'.'th its February 23, 1999 letter, i.e., as a Responsible Agency. (This, Petitioner contends, deprived it of 2 the opportunity to submit more information to the Depax tment about the development, 3 even though Petitioner had been submitting as much information purportedly about the 4 development as it desired.) Notwithstanding Petitioner's contention, the Department's 5 normal role would be to act as a Responsible Agency in the context of Real Parties' 6 development (the City of Rancho Cucamonga was and is the Lead Agency for the 7 residential project). What Petitioner was trying to do in its communications with the 8 Department in 1998 and 1999 was to persuade the Department that it should conclude that 9 the conditions under CEQA Guidelines Section 15052 were met in this circumstance such 10 that the Department should "shift" into the role of Lead Agency. However, the 11 Department cannot be deemed to have reached a final decision on whether any of the 12 conditions set forth in Section 15052 that would require such a shift are present until it 13 actually adopts CEQA findings and acts on the Permit, which did not occur until many 14 months aj~er Petitioner filed its Petition. I5 Nothing in the Opposition refutes the argument that the Petition is a sham pleading. 16 It is clearly premature, and it is not capable of curative amendment. The Court should 17 therefore order that it be dismissed pursuant to its inherent powers. Lvons v. Wickhorst, 18 42Cal. 3d911 (1986).t 19 III. 20 THE PETITION SHOULD BE DISMISSED FOR LACK OF PROSECUTION 21 22 23 24 25 26 27 28 Petitioner does not quarrel with the policy underlying Section 21167.4(a) dismissal fights as articulated by Miller v. City of Hermosa Beach, 13 Cal. p I 118 (1993). Ap . 4th ' Petitioner attempts to lend credibility to its claims by stating with "outrage" that numerous parties have imtiated various lawsuits opposing Real Parties' development and some of those lawsuits involved representation by prestigious law firms. Op osition 'at 3:19-23 (fn.2). This tells only half the story. What Pentioner neglects to say is t~:t of the seven lawsuits that have targeted the development nine different courts (three appellate courts and six trial courts) have ruled on the meri~ and none have ruled in favor of any project opponent on any claim. Moreover one ofi'l~e "well-respected" firms Orrick, Herring.ton & Sutcliff, acted only in the callacity of counsel for Marylinda H.'McKeith in connection with the October 21, 1999 fire regarding inquiries from the departments of the City of Rancho Cucamonga. ' ' REPLY BRIEF RE: MOTION TO DISMISS 130 193M30050101.rpy.w~J I Instead, io~norlng Real Parties' policy argument, Petitioner simply states it diligently 2 prosecuted the Petition by scheduling a hearing on its Petition and by not unreasonably 3 delaying the hearing on the Petition.: 4 Ample evidence exists to conclude that Petitioner intentionally engaged in conduct 5 designed solely to delay the hearing on the merits of the Petition. Much of that evidence 6 has been presented in connection with past orders to show cause regarding dismissal and 7 sanctions, and it is the focus of a hearing on an Order to Show Cause Re: Sanctions 8 scheduled before this Court on June 12, 2000. Put simply, Real Parties contend that 9 Petitioner engaged the parties in settlement discussions with the intent of delaying the 10 litigation and with no intent to complete a settlement. This contention is supported not 11 only by Petitioner's delay in communicating its "change of mind," but also by its conduct 12 outside of this litigation. For instance, Petitioner repeatedly represents to various 13 governmental officials that it is embroiled in litigation and, therefore, that somehow the 14 existence of litigation itself evidences that such agencies or officials should take action 15 which would be adverse to the completion of the residential project. Continued litigation 16 against Real Parties appears to be an end in itself for Petitioner. 17 As argued in the moving papers, the Miller court states that the public policy 18 underlying Section 21167.z~(a) is to ensure expeditious resolution of CEQA matters and to 19 avoid the state of"limbo" in which Petitioner has placed this litigation. See generally 20 Motion at 5:5-6:28. 21 Petitioner states that Real Parties "concede that Petitioner has met the requirements 22 of California Public Resources Code Section 21167.4(a)." Real Parties concede no such 23 thing. Rather, Real Parties argue that scheduling the hearing may not always be enough 24 by itself. The Miller analysis suggests that, when the "scheduling" is coupled with 25 deliberate, dilatory conduct like that in which Petitioner has engaged, the requirements of 26 Petitioner argues it pressed for a trial date, even seeking one from the 27 appellate court by way of writ of mandate. Op osition 'at 2:19-21. One should keep in mind that Petitioner did not make such demands until after it reneged on the settlement 28 agreement and after this Court ordered petitioner sanctioned7 ' [REPLY B[RIEF [RE: MOTION TO DISMISS 1 the statute have not been met. Petitioner has, in effect, created "precisely the circumstance 2 which Public Resource Code section 21167.4 is intended to avoid." Miiler,-]3 CaI. App. 3 4th at ] 135. Real Parties therefore urge this Court to rule that Petitioner's claims are 4 subject to a Section 21167.4(a) dismissal. 5 Petitioner offers various excuses for the delay it has caused, none of which ring 6 true. For instance, Petitioner states the "It]he main reason why the settlement fell through 7 is due to Real Parties' insistence that CURE disclose its membership list, despite new facts 8 which made such disclosure impossible for CURE." Opposition at 6:8-I 0. It adds that, 9 because of"heightened hostility" caused by "illegal grading" of Real Parties' property and l0 resultant fire on October 21, 1999, Petitioner concluded it could not consummate the 1 l settlement agreement. 12 initially, and as this Court observed at a hearing on an order to show cause in this I3 action, the "main reason" the settlement "ill through" is that Petitioner decided to change 14 the terms of settlement after agreeing to them. Moreover, Petitioner' s contention that the 15 events following the October 21 grading caused a change of heart is not believable: at the 16 end of November, some six weeks after the grading, Petitioner confirmed that signature 17 pages on the settlement agreement would be forthcoming "~vithin the week." Why would 1S those signatures be forthcoming if events from six weeks prior had caused a change of 19 heart? Real Parties believe the answer is clear: Petitioner never intended to finalize a 20 settlement a~eement. Rather, Petitioner intended to delay resolution of this litigation as 21 long as possible. 22 IV. 23 THE "NO PREJUDICE" ARGUMENT 24 IS BASED ON MISREPRESENTATIONS 25 Petitioner argues that discretionary dismissal for lack of prosecution of cases 26 pending less than two years or five years requires a finding of prejudice, based on Sections 27 583.420 and 583.310 of the California Code of Civil Procedure, and that Real Parties have 28 suffered no prejudice. Opposition at 7:11-25. First, Real Pix~i~i r~l'~'~ronly on Sections 4 _.o '132 1 2 3 5 6 7 8 9 10 I1 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 /// 27 /// 28 /// 193~0050101,t~y.wl~d 583.420 or Section 583.310, but also on Section 21167.4, which does not expressly require a finding of prejudice. More to the point, however, Real Parties have been prejudiced. The centerpiece of Pefitioner's lack of prejudice argument is a May 15, 2000 letter it obtained from the County of San Bemardino Flood Control Depatttuent (and to which Real Parties object as inadmissible hearsay and as lacking foundation) which gives the initial impression that Real Parties' development is "stalled" based on serious flood control issues. No "serious flood control issues" exist, and the May 15 letter is a response to what is apparently the most recent in a long-line of misleading communications to various public agencies. First, Real Parties presently anticipate obtaining only one permit from the county's flood control depawment, which is a relatively minor permit necessary to connect a flood control channel contemplated as part of the development to the existing Deer Creek Channel. The future need for this permit has done nothing to "stall" the project. Second, a careful reading of that May 15, 2000 letter indicates that the delay in the county's review for this small aspect of the project will be eliminated with the results of a study to be delivered in early June. Third, as will be explained in more detail in the Declaration of Andrew K. HartzelI Regarding OSC Re: Sanctions, Petitioner's ploy -- sending false, misleading and alarming information to a public agency like county flood control to create what is always a temporary agency issue -- is the last link in a long chain of similar events. Each time after the agency learns more about the actual situation (i.e., the true facts), the agency concludes that Petitioner has not substantiated its allegations. Put simply, and without addressing all of the misstatements in the Opposition, the continuing existence of the instant litigation has been a burden on Real Parties - a burden implicitly acknowledged by the policy underlying Section 21167.4(a) - and has indeed prejudiced them and their ability to continue to develop their property. REPLY BRIEF RE: MOTION TO DISMISS 133 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 193~00050101 .rpy,wpd CONCLUSION For the foregoing reasons, and those articulated in the moving papers, Real Parties urge the Court to grant their motion to dismiss the Petition. Dated: June Z, 2000 HEWITT & McGUIRE, LLP By: ~(/~~/ Wilham E. Halle Attorneys for Real Parties in Interest THE HEIGHTS AT HAVENVIEW LLC, LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I REPLY BRIEF RE: MOTION TO DISMISS 134 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew K. Hartzell (State Bar No. 147499) William E. Halle (State Bar No. 150686) 2 HEWITT & McGUIRE, LLP 19900 MacArthur Boulevard 3 Suite 1050 Irvine, California 92612 4 (949) 798-0500 5 Attorneys for Real Parties in Interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, LAUREN DEVELOPMENT, INC. and CKISTIANO PARTNERS I SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CUCAMONGANS UNITED FOR REASONABLE EXPANSION ("CURE"), an unincorporated association, Petitioner, CALIFORNIA DEPARTMENT OF FISH & GAME, Respondent, THE HEIGHTS AT HAVENVIEW ESTATES, a limited liability com any; LAUR_EN DEVELOPMENT, IN~-, a California corporation; CRISTIANO PARTNERS, a California general partnership; DOES 1 through 100, inclusive, Real Parties in Interest. CASE NO. BS056542 Assigned to Hon. David P. Yaffe Depam,ent 86 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO : OPPOSITION TO DEMURRER HEARING: Date: June 6, 2000 Time: 9:30 a.m. Dept: 86 [Filed Concurrently With Motion to Dismiss] Real parties in interest The Heights at Havenview Estates, LLC, Lauren Development, Inc. and Cristiano Parreefs I (collectively, "Real Parties") submit the following brief in reply to the Opposition to Demurrer to Verified Writ of Mandate ("Opposition") filed by petitioner Cucamongans United for Reasonable Expansion ("Petitioner"): ..... ' '" REPLY BRIEF RE: DEMURRER ~16 1 I. 2 INTRODUCTION 3 Real Parties demonstrate in their demurrer that the Petition does not state facts 4 sufficient to state a cause of action because it does not challenge (1) an approval of (2) a 5 project, the necessary predicates to any CEQA claim. Petitioner argues that it has alleged 6 a claim, based entirely on its mantra-like conclusion that the California Department of Fish 7 and Game (the "Depa~h,ent") made a "final decision" in March 1999 to act as a 8 Responsible Agency rather than Lead Agency in processing Real Parties' application for a 9 streambed alteration agreement ("Permit"). This argument fails, as explained in the 10 moving papers and again below, because this "final decision" was not (1) an approval of 11 (2) a project. The Petition therefore does not include allegations sufficient to give rise to a I2 cause of action. 13 Probably recognizing this deficiency, Petitioner argues that it should be granted 14 leave to "amend" its Petition. In doing so, however, Petitioner blurs the critical distinction 15 between an "amendment" to a pleading and a "supplemental" pleading. Petitioner has 16 proposed no amendment -- i.e., allegation cf fact that occurred prior to the filing of the 17 Petition -- that can cure the defects of the Petition, and the law is clear that a supplemental 18 pleading cannot breathe life into Petitioner 's prematurely-filed pleading by "relation 19 back." For these reasons, the Court should sustain Real Parties' demurrer without leave to 20 amend. 21 II. 22 THE ALLEGED "DECISION" TO ACT AS RESPONSIBLE 23 AGENCY CANNOT SUPPORT A VIABLE CEOA CLAIM 24 Petitioner repeats throughout the Opposition that the Febmary/March 1999 25 "decision," or "final decision," of the Department to act as Responsible Agency rather 26 than Lead Agency supports its Pctition. Opposition at 2:3, 2:lS, 2:17, 3:16-17, 4:16, 4:lg, 27 5:22, 6:27-28. If the February 23 letter did not constitute the Depaz h~ent's "final 28 decision" to act as Responsible Agency, Petitioner argues, then th~..h 31 verbal REPLY BRIEF RE: DEMURRER 117 "confirmation" did. Opposition at 4: 17-19. This argument fails because, even assuming 2 Petitioner?s version of the facts, the "final decision" is not one subject to a CEQA 3 challenge. 4 First, and as explained in the moving papers, CEQA applies only to those actions of 5 a public agency where the agency (1) "approves" (2) a "project." Denauger at 3:16-18. 6 Even assuming arguendo that the Department had made a "final decision" to act as 7 Responsible Agency in March 1999, this decision was not "approval of a project." 8 Petitioner's argument begs the questions: what approval? what project? The procedural 9 "decision" to act as Responsible Agency was not an approval of anything, much less a 10 "project" under CEQA. Id. at 3: 16-4:19; see also Col. Pub. Res. Code § 21080(b)(5) 11 CCEQA does not apply to projects which a public agency rejects or disapproves"). The 12 Permit remained unissued as of March 1999, as the Depa~ hnent did not act on Real 13 Pa~ies' application until October... months later. The March 1999 "decision" to act as 14 Responsible Agency simply does not satisfy the conditions precedent for a CEQA 15 challenge. 1 16 Second, if"final decisions" regarding the method of processing a project subject to 17 CEQA could be attacked before the reviewing agency approves the project, as Petitioner's 18 ar~mament necessarily implies, the floodgates would swing wide open to piecemeal 19 litigation and a multiplicity of lawsuits. Ira reviewing agency were to "decide" to conduct 20 a hearing in a manner which offends a project opponent, the project opponent could file a 21 CEQA lawsuit before the agency decides what to do with the project. If a reviewing 22 agency were to "decide" to 'circulate a draft EIR that does not respond to a project 23 24 25 26 27 28 ' It should be noted that it is beyond dispute that the Department's normal role would be to act as a Res onsible Agency in the context of this project (the City of Rancho Cucamon a was and is ;tEe Lead Agency for the residential project). What Petitioner was trying to ~ in its communications with the Department in 1998 and 1999 was to persuade the Department that it should conclude that the conditions under CEQA Guidelines Section 15052 were met in this circumstance such that the Depamttent should "shift" into the role of Lead Agency. However, the Depam.ent cannot be deemed to have reached a final decision on whether any of the conditions set forth in Section 15052 that would require suc.h a s.hift are present .u. ntil it actually adopts C.E.QA findings-mad ar~, ,,,, the Permit, whmh d~d not occur until many months after Petmoner filed its Petil_L_:ill~_~,~, REPLY BRIEF RE: DEMURRER 118 193\0005010Oxpy.w~d 1 opponent' s comments, the project opponent could initiate CEQA litigation before the 2 agency certifies a final EIR. There would be no end to the litigation that project opponents 3 could initiate based on "final" procedural "decisions," all before reviewing agencies even 4 decide whether or not to approve the project. 5 Third, the case law simply does not support Petitioner's view of CEQA. As one 6 xvould expect, the courts interpret CEQA as requiting a committed action by the agency 7 before it will be deemed to have "approved" a project under CEQA. See City of Vernon 8 v. Bd. of Harbor Commnrs., 63 Cal. App. 4th 677, 688 (1998); Miller v. City of Hermosa 9 Beach, 13 Cal. App. 4th 1118, 1142-43 (1993) (both cited in the moving papers). Although 10 neither City of Vernon nor Miller is "on all fours" with the instant litigation (which is 11 usually the case), they both support the proposition that the Department's "decision" to act 12 as Responsible Agency cannot be construed as an "approval" under CEQA subject to 13 attack without action on the Permit application itself. Petitioner's attempts to distinguish 14 those cases fail. 15 Petitioner argues that the City of Vemon case is not applicable because it involved 16 only the pre-approval expression of "feelings," and the Depattment had more than 17 "feelings" about whether it would act as Responsible Agency: "The City of Vernon case 18 deals wilh the issue of whether early intentions about a project results in predisposition 19 and has nothing to do with the alleged premature filing of a petition for writ of mandate 20 resulting in dismissal." Opposition at 6:18-7:2. While it is tree that City of Vernon dealt 21 with the issue of predisposition to approve a project, it is not accurate to argue that it has 22 nothing to do with the case at bar. 23 In City of Vernon, lhe City of Long Beach and the Board of Harbor Commissioners 24 (the "Board") were faced with planning decisions related to a naval base closure. While 25 processing environmental review ofreuse of that facility, the Board entered into a five 26 page letter of intent and a subsequent agreement regarding reuse. After an initial 27 successful CEQA action by the petitioner-cities, the Board rescinded the agreement, 28 adopted supplemental mitigation measures and re-approved the pro_q~e~.The trial court REt=LY BRIE[: RE: 9t!MURRI!R '1 '19 1 nonetheless determined in subsequent litigation that the Board' s CEQA process was 2 flawed because "the project was the Board's own idea" and, therefore, the certification of 3 the final EER was a mere post-hoe rationalization. City of Vernon, 63 Cal. App. 3d at 685. 4 The appellate court disagreed with the trial court's analysis. Noting that public 5 agencies often harbor an institutional bias for the projects before them, the court held that 6 a predisposition favoring a project is not to be equated with "approval" under the CEQA 7 Guidelines; instead, the court explained, "approval" requires a legally-binding 8 commilrnent toward action on the project itself: 9 The CEQA Guidelines define "approve" not as a feeling, but as "the decision by a I0 public agency which commits the agency to a definite course of action in regard to a 11 project intended to be carried out by any person." The agency commits to a definite 12 course of action not by simply being a proponent or advocate of the project, but by 13 agreeing to be legally bound to take that course of action. 14 Id. at 688 (citations omitted; emphasis added). 15 In the case at bar, the Depmhnent did not commit in any legally binding sense to 16 review the Permit application as a Responsible Agency until the time it issued the Permit 17 Capproved the project"); all Petitioner alleges is that a Department staff member 18 "confirmed" in March 1999 that the Department intended to act as Responsible Agency. 19 Nothing in the facts alleged, or in any authority cited by Petitioner, even suggests that the 20 March 1999 "confirmation" amounts to a legally-binding commitment to approve the 21 Permit application as a Responsible Agency. City of Vernon teaches that such a level of 22 commitment is required for CEQA "approval," and therefore supports the demurmr. 23 Petitioner attempts to draw a distinction between the case at bar and Miller in 24 similar fashion, pointing out that the Miller court dealt with the issue of the expiration of 25 the statute of limitations, rother than a "ripeness" challenge like that Real Parties make to 26 Petitioner' s claims. This is a distinction without significance. 27 In Miller_, the City of Hermosa Beach issued a building permit to construct a hotel 28 within the coastal zone, and a project opponent challenged the issu,~o. fthat permit REPLY BRIEF RE: DEMURRER 120 I93X0005010~.rpy.wlxi 1 wkhin 180 days of issuance of the permit. The responderos contended that the statute of 2 limitations had expired because the petition was filed more than 180 days after the city had 3 issued an earlier approval "in concept." 4 The appellate court rejected the respondcnts' argument, holding that the carly 5 c~nc~pma~appr~valwasn~tthe``appr~val~~nec~ssaryt~tfiggerthestaamte~f~imitati~ns: 6 "The decision to approve the hotel project was not the issuance of the Approval in 7 Concept... but rather the issuance of the building permit .... which is the formal, legally 8 enforceable event." Miller, 13 Cal. App. 4th at 1143. Miller, like City of Vernon, focuses 9 on the legally-binding action of the revicv~ng agency in determining whether an agency 10 has "approved" a project for CEQA purposes. 11 Kotska and Zischke, Califomia's teadine commentators on CEQA, frame the issue 12 as one ofripeness: 13 Under the ripencss doctrine, a CEQA challenge may not be maintained before the 14 agency has made its decision on whether or not to approve or carry out the project. 15 San Diego County Archaeological Soc ~ v. Cornpadres (1978) 81 CA3 d 923,927, 16 146 CR 786, 788, disapproved on other grounds in 31 C3d at 299 nl 1, reversed on 17 other grounds in 80 LEd 2d 237. Stated another way, an agency action is 18 ordinarily not sufficiently ripe for judicial review until all aclminisl~ative 19 proceedings have been completed (see §23.99), and the agency has reached a final 20 decision in the matter (see §23.107). 21 Kotska and Zischke, Practice Under the California Environmental Oualitv Act (CEB Aug. 22 1999), §23. 106, p. 1020.1. The Depam,ent did not complete the "proceedings" before it 23 until it issued the Permit in the Fall of 1999. As such, the Depathnent did not reach a final 24 decision to "approve" the Project prior to the filing of the Petition. Petitioner's premature 25 claims thus were not ripe for review. 26 In other words, the Febmary/March 1999 "decision" to process Real Parties' Permit 27 application as a Responsible Agency was not (1) an approval of (2) a project under CEQA. 28 The Petition therefore does not properly allege a CEQA vi'0~at'~on. _ ~__ REPLY BRIEF PiE: DEMURRER 121 2 THE DEMURRER DOES NOT IMPROPERLY 3 ATTACK MATTERS OUTSIDE THE PLEADINGS 4 Petitioner contends that Real Parties improperly rely on matters extrinsic to the 5 Petition in bringing their demurrer. Specifically, Petitioner argues that reference to the 6 October 1999 approval of the Permit application and filing of the Notice of Determination 7 ("NOD") "should not be considered in determining the adequacy of the Petition." 8 Opposition at 5:5-12. Although Petitioner is correct in its recitation of the law regarding 9 speaking demurmrs, the argument is misplaced. 10 Real Parties do not inject the post-Petition information -- the fact that the 11 Department acted on Real Parties' permit application and filed its NOD in October 1999 12 M for purposes of testing the sufficiency of the pleading. The deficiency of the Petition is 13 revealed by the allegations of the Petition alone: the Petition is devoid of facts that can 14 support a conclusion that the Department (1) "approved" (2) a "project." Rather, Real: 15 Parties make reference to the October 1999 final action and NOD because those facts 16 render it impossible for Petitioner to amend or supplement its Petition to cure its fatal flaw. 17 There is nothing improper about introducing facts outside the pleading to demonstrate that 18 leave to amend/supplement should not be granted. See Goodman v. Kennedy, 18 Col. 3 d 19 335,349 (1976) (burden is on plaintiff to show reasonable probability amendment will 20 cure defect of pleading); Blank v. Kinvan, 39 Cal. 3d 311, 318 (1985) (defects of 21 complaint must appear on face of complaint). 22 IV. 23 THE COURT SHOULD NOT GRANT LEAVE TO AMEND 24 Petitioner argues that the liberal policy favoring amendment requires that it be 25 given opportunity to "amend" its petition to cure the defects (presumably, by alleging that 26 the Department somehow violated CEQA with its October 1999 approval of the P;mdt 27 application -- the legally enforceable event). Petitioner's argument fails, however, 28 because (1) it ignores the critical distinction between an "amendm_e~Ct.~.. a pleading and a 1 "supplemental" pleading and (2) it is based on misconstmction of the "relation back" 2 holding ofRadar v. Rovers, 49 Cal. 3d 243 (1957). 3 Petitioner argues that the court's discretion to permit "amendment" ofpleadings 4 must be exercised liberally in favor of amendment. Opposition at 8:9-14. The liberal 5 policy, however, concerns amendments to pleadings, not supplemental pleadings, and 6 Petitioner can cure the defects of its Petition only by a supplemental pleading. 7 An mended complaint is one which includes factual allegations different than 8 those contained in the original complaint, which "new" allegations all relate to facts that 9 occurred before the filing of the complaint. "There can be no question that a supplemental 10 complaint serves a different purpose. Primarily, a supplemental complaint deals with 11 matters occurring after commencement of the action .... A supplemental complaint is in 12 no sense an amended complaint." ITT Gilfillan, Inc. v. City of Los Angeles, 136 Cal. 13 App. 3d 581,586-87 (1982)(underscore in original; italics added). 14 As explained in the moving papers, supplemental pleadings, unlike certain .' 15 amendments to pleadings, do not "relate back" to cure statute of limitations deficiencies. 16 Id. at 586-89, and cases cited therein; Radar, supra, 49 Cal. 2d at 247 ("where an action is 17 prematurely brought, and the original complaint must fall, a supplemental complaint has 18 no place as a pleading"). 19 In the unusual facts of Radar, the court concluded that an exception to the general 20 rule that supplemental complaints do not relate back for statute of limitations purposes 21 should be made. In Radar_, the plaintiffs brought claims against the estate of a decedent for 22 injuries due to the decedent's negligence. A demurrer was sustained without leave to 23 amend based on (former) Section 714 of the Probate Code, which provided that a holder of 24 claims against the estate must bring suit on those claims against the adminishator of the 25 estate within three months of the administmtor's rejection of those claims (similar to 26 California 's Torts Claims Act requirements). 27 The Radar plaintiffs brought suit against the estate, but since the administrator had 28 not yet been appointed, they named "John Doe or Jane Doe" as tht~i. nistmtor. [93\O~050100.rpy.u,~d I Naturally, the unappointed administrator neither was presented with nor had she rejected 2 the plaintiffs claims prior to the filing of the lawsuit. 3 The administrator was appointed one year after the plaintiffs filed the lawsuit. The 4 plaintiffs thereafter presented the administrator with their claims, which she promptly 5 rejected. The plaintiffs "amended" their complaint to name the administrator as 6 representative of the estate and, in a second "amended" complaint, alleged the post-filing 7 rejection of their claims. The administrator demurred to the second amended complaint on 8 the Founds that "the suit was barred by limitation because it was not instituted after, and 9 within three months after, the rejection of the claims" as required by Section 714. Radar, 10 49 Cal. 2d at 246-47. I 1 The court noted that the "amended" complaints were in fact supplemental 12 complaints, because the claims presentation and rejection occurred after the plaintiffs 13 brought suit. Normally, the court stated, supplemental pleadings do not relate back for 14 statute of limitations purposes. However, in the action before it, the plaintiffs had an 15 existing valid cause of action for negligence at the time the lawsuit was filed, but the claim l 6 was procedurally impossible to perfect because no administrator had been appointed to 17 receive and reject claims. That is, the facts supporting the cause of action, the negligent 18 conduct of the decedent, has occurred prior to the filing of the complaint. Id. at 248. 19 These unique facts justified a deviation from the general role that a supplemental 20 complaint does not relate back to the original complaint for relief from a limitations bar. 21 Why? The Court makes it clear that an exception was justified because the acts that 22 supported the underlying c~iuse of action had already occurred when the original complaint 23 was filed: 24 It has been said that "The general role is that where an action is prematurely 25 brought, and the original complaint must fall, a supplemenial complaint has no 26 place as a pleading." (Walton v. County of Kem (1940), 39 Cal. App.2d 32, 34 27 [other citations omitted]. But the rule of the Walton case is by no means absolute 28 and universal. The statement quoted was made in connectiLu~. a holding that a REPLYBRIEFRE: DEMURRER 124 1 supplemental complaint cannot aid an original complaint which was flied before a 2 cause o/action had arisen. Here there was a cause o/action when the original 3 complaint was filed. The cause o/action accrued when the accident happened. 4 Every/act essential to the cause o/action, at least in the absence ofaplea in 5 abatement, is well pleaded. 6 Id. at 247 (emphasis added). 7 Petitioner attempts to convert the exception articulated in Radar to a general role. 8 But the Radai- exception was applied to facts simply not before this Court, i.e~, where the 9 cause of action existed at the time the original complaint was filed. Since Petitioner had 10 no viable cause of action at the time it filed its Petition - the cause of action had not yet I 1 accrued -- Petitioner cannot avail itself of the Radar exception. 12 Should the Court have any doubt that relation back of a supplemental pleading is I3 the rare exception, Real Parties respectfully direct it to the discussion in ITT Gitfil lan, 14 supra, 136 CaI. App. 3d at 586-89, in which the court echos the prohibition against relation 15 back of supplemental pleadings twenty-five years after Radar and discusses numerous 16 cases that apply the rule.2 17 As Radar, ITT Gilfillan, and all the cases discussed in those cases instruct, a 18 supplemental complaint like that Petitioner would have to file cannot resuscitate time- l 9 barred claims. Leave to "amend" should therefore be denied. 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 2 Petitioner attempts to distinguish ITT Gilflllan on the ~,ounds that it involved a "significant lapse of time between pleadings- 16 years. ' Opposition at 8:28. This is a distinction without significance, as nothing in ITT Gilfillan -- or any of the cases upon which it relies -- suggests lapse of time is a factor in the analysis. Rather, ITT Gilfillan simply represents a generic a lication of the general rule that a supplemental ~ does not relate back to cure c~ef~ctive pleadings bar~ed-by~h~d~tute of rimitations. ' REPLY BRtEF RE: DEMURRER 125 1 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION The Petition does not allege facts sufficient to state a cause of action, because it does not allege that the Department "approved" a "project" as those terms are interpreted under CEQA. Put differently, Petitioner did not have a ripe claim until the October 1999 Permit issuance and NOD filing. The demurrer should therefore be sustained. Not only should the Court sustain the demurrer, it should do so without leave to "amend." The time to challenge the Permit issuance expired long ago. Because Petitioner would have to "supplement" its complaint rather than "amend" it, Petitioner cannot rely upon the relation back doctrine to avoid the limitations bar. For these reasons, amplified both in the moving papers and above, Real Parties respectfully submit that the Court should sustain Real Parties' demurrer without leave to "amend" and enter a judgment of dismissal against Petitioner. Dated: June/, 2000 HEWITT & McGUIRE, LLP William E. Halle Attorneys for Real Parties in Interest THE HEIGHTS AT HAVENVIEW LLC, LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I REPLY BRIEF RE: DEIdURRER lZb 2 3 5 ? 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 2~ 25 2d 27 Andrew K. Hamell (State Bar No. 147499) William E. Halle (State Bar No. 150686) HEWITT & McGUIRE, LLP 19900 MacArthur Boulevard Suite 1050 Irvine, California 92612 (949) 798-0500 Attorneys for Real Parties in interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CUCAMONGANS UNITED FOR REASONABLE EXPANSION ("CURE"), an unincorporated association, Petitioner, v. CALIFORNIA DEPARTMENT OF FISH & GAME, Respondent. THE HEIGHTS AT HAVENEW ESTATES, a limited liability com any; LAUREN DEVELOPMENT, IN~.., a California corporation; CRISTIANO PARTNERS, a California general parmership; DOES 1 through 100, inclusive, Real Parties in Intm-est. CASE NO. BS056542 NOTICE OF MOTION AND MOTION TO DISMISS PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: April 26, 2000 Time: 9:30 a.m. Dept: 86 [Filed Concurrently With Demurrer] TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on April 26, 2000, at 9:30 a.m., or as soon thereafter as counsel can be heard in Depa, h.ent 86 of the above entitled Court, located at 111 N. Hill Street, Los Angeles, California, real parties in interest will and hereby do move for an order dismissing the Verified Petition for Writ of Mandate._~._:-_ MOTION TO DISMISS PFI fllON FOR W~IT Of MAND~,TE 1 2 3 4 5 6 7 9 I0 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 193~00100~ ~.Mo2.,~ This Motion will be made pursuant to Section 583.150 of the California Code of Civil procedure and Section 21167.4 of the California Public Resources Code on the grounds that the petition is fictitious, t~aseless and a sham, and on the further grounds petitioner has failed to prosecute its petition with the diligence required by the California Environmental Quality Act. This Motion is and will be based upon this notice of motion, the attached memorandum of points and authorities, the concurrently-filed Demurmr to Verified Petition for Writ of Mandate, the pleadings and papers on file heroin (including the Declaration of Helen G. Arens in Response to OSC Re Dismissal, filed January 14, 2000), all matters of which judicial notice may be taken, and upon such further argument and evidence as may be considered by the Court at or before the hearing on this Motion. Dated: March 2.~, 2000 HEWITT & McGUIRE, LLP By: ~m~ Attorneys for Real Parties in Interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I MOTiON TO DISMISS P~ H HON FOR WRIT OF MANDATE 76 1 2 3 4 5 6 7 8 9 10 11 12 $ . 13 15 16 o 17 I8 19 20 21 22 23 24 25 26 27 28 193XO0010011.MO2,wlpd MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This action, a petition of writ of mandate, is but one in a series of meritless lawsuits launched by Petitioner and its allied parties aimed to block development in the City of Rancho Cucamonga (the "City"). As explained in the concurrently-filed demurrer, Petitioner has failed to allege facts to support any justi.ciable claims against respondent California Department of Fish and Game (the "Depa~ tment") or the real parties in interest ("Real Parties"). For that reason alone, the Court should dismiss the Petition. However, it is not only the inability to state a claim that justifies dismissal. This Court has ample ground to dismiss the Petition both in the exercise of its inherent authority to dismiss sham actions and pursuant to the California Environmental Quality Act CCEQA"). Petitioner filed a baseless lawsuit, negotiated and agreed to a settlement of claims and, only after many months' delay, reneged on its : agreement; all the while failing to prosecute its Petition through a regularly noticed hearing. In short, Petitioner has failed to prosecute its baseless claims with due diligence and in the manner required by CEQA. For these reasons, as amplified below, the Court should dismiss the Petition. STATEMENT OF FACTS Real Partics have processed applications and have received approvals to build forty homes on approximately twenty-five acres of property in the City. (the "Project"). See Petition at 11~I 8, 11 ;45. Originally, in or about November. 1996, the Department determined that the Project did not require a streambed alteration agreement under Section 1603 of the California Fish and Game Code (~'Permit" or "1603 Permit"). Id. at11 12. The Depax tment reversed itself the following year, taking the position that the Project indeed required such a permit. Id. at 11 13 and Exhibit I thereto. Real Parties did not agree to that /1/ 77 ~4OTION TO DISMISS Pt: 111 ION FOR ~NI~IT OF MANDATE ~versal, and continue to maintain that the D~a~ tment has no authority to require s~ch a pea'nit. Id. ~t~'~ 1~, 19, E~hibit I. 3 By letter dated February 23, 1999, the Depa~b.ent noted the disagreement regarding 4 the need for a 1603 Permit, and indicated its intent to comply with CEQA and review the 5 Real Parties' application as a "responsible agency" if Real Parties were to submit an 6 application. The Depax h.ent specifically qualified its preliminary assessment of the 7 matters in its February letter. Petition at Exhibit I. In response, Real Parties subsequently 8 submitted a Section 1603 Permit application, with a reservation of rights. See Declaration 9 of Helen G. Arens in Response to OSC Re Dismissal CArens Decl.") at Exhibit A thereto I0 (p. 2 of 13).''l 11 Long before the Depattment approved the application -- which did not occur until 12 late September/early October 1999 -- Petitioner filed its April 6, 1999 Verified Petition for 13 Writ of Mandate. The Petition attacks as purported CEQA violations the Depat|anent's 14 preliminary decision to act as a responsible agency (rather than a lead agency) and its 15 preliminary assessment of the mitigation required for Permit approval. Petition at ~I~[ 15, 16 16. As explained in detail in the concurrently-filed demurrer, the Petition does not state 17 facts sufficient to support a cause of action. In short, it is a sham pleading. See generally 18 Demurrer to Verified Petition for Writ of Mandate. 19 Despite the frivolous nature of the Petition, the Depam.ent agreed to discuss 20 settlement with Petitioner, and included Real Parties in those discussions. After all, a 21 negotiated settlement would be preferable to victory through judgment in that (so the 22 Depaz tittent thought) it would conserve judicial resources and be less expensive for all. 23 According!y;-th~e parties artended a settlement meeting at Petitioner' s offi_c_es on_ May_ 1_7, 24 1999. Artms Decl. at ~I 2-3. 25 Several weeks later, and after considerable negotiation, the parties reached 26 agreement as to basic terms of settlement. Id. The terms included a confidentialit)' 27 28 The Arens Declaration was filed in this action on Jam~Ey:.14, 2000. 2 MOTION TO DISMISS P~ I I I ION FO~ W~IT OF MANDAT~ 78 1 2 3 4 5 6 7 8 9 10 11 a, 7. 12 13 z ~ 17 18 19 20 21 22 23 24 25 26 27 28 193\0001001 l.MO2.w~ provision, designed in part to address the concerns of Real Parties that Petitioner would abuse the settlement agreement.2 Although the parties ayeed to keep the terms of settlement confidential and to not discuss the settlement agreement with other persons or public agencies, they could not initially agree to an enforcement mechanism: Real Parties insisted that Petitioner provide a membership list, to ensure accountability regarding the confidentiality provision; but Petitioner refused, for reasons one can only guess. Eventually, however -- in September 1999 -- Petitioner agreed to submit its membership list to the Court under seal. Arens Decl. at ~ 3. With the parties in agreement, the proposed settlement agreement and related sealing order were forwarded to Petitioner's counsel. After the delay it took Pefitioner's counsel to "contact[] everyone for final approval," Pefifioner's counsel wrote to counsel for the Depattment on September 25, 1999: "The terms of Settlement and [Sealing] Order are acceptable. Please forward signature copies." Id. at ~ 4-5 and at Exhibit C thereto. Signature copies of the settlement agreement were forwarded to Petitioner... and...: nothing. No signatures. No telephone calls. Only silence. Id. at ~l 5-7. The Department intended to file a Notice of Determination ("NOD") in conjunction with any approval of the Permit application (by settlement agreement or otherwise). As settlement talks progressed, the Depat huent provided Petitioner's counsel with a copy of the draft NOD, and permitted her to make changes. Id. at ~14. Afterward, the Department approved Real Parties' application for the 1603 Permit and, on October 4, 1999, filed the NOD. I_ft. at ~] 6. Four days later the Depm h.ent sent a copy of the filed NOD to Petitioner. Id. at Exhibit D. As such, Petitio_n~r had actual knowledge that the Pemiit had been issued and the NOD filed. As Petitioner well knew, the filing of the NOD meant that any person who 2 Due to the conduct of Petitioner, its counsel and attics clearl. aligned. with Petitioner in other litigation, Real Parties have a genuine fear ~aat, after settling Petmoner's frivolous claims, Petiuoner (i.e., its members) would try to legitimize its conduct to the City or other public agencies with claims that Real Parties we, te-som~haw "fomed" to settle. -~L~-: ~3 MOTION To DISMISS P= i i i iON FO~ ~N~IT OF MANDATE 79 193~O010011.MO2.un~ 1 wanted to challenge the Permit issuance on CEQA grounds would have to do so within 2 thirty days of the filing of the NOD. No challenges were made by any person or entity in 3 response to the NOD. Id. at '~ 6. 4 More time passed, and telephone calls by the Depa~hnent to Petitioner were not 5 returned. Finally, on November 29, 1999, counsel for Petitioner and for the Depa~,ent 6 spoke. When asked when the Depam,ent could expect signatures, Petitioner's counsel 7 (alluding to an October fire on the Project) said that "now that it's all bumed and 8 destroyed, it doesn't matter much anymore"; but that signatures would nonetheless be 9 forwarded "by the end of the week." And then... more nothing. Id. at ~17. 10 Instead, about two and a half weeks later, on December 17, 1999, Petitioner called 11 the Department to try to renegotiate the settlement agreement. According to Pefi~oner's 12 counsel, Melissa McKeith (counsel of record for Petitioner) is the "main member" of 13 Petitioner, and the parties ought to change the settlement agreement to eliminate the 14 requirement of a membership list. ld. at ~I 8. This however. (as Petitioner well knew) was 15 wholly unacceptable to Real Parties, as they made clear in the settlement negotiations that 16 confidentiality and the agreed-upon enforcement mechanism was critical. Hartzell Decl. at 17 ~4. 18 During that December 17, 1999 telephone call, the Department inquired as to the 19 status of the hearing on the Petition (Petitioner originally noticed a.hearing for October 22, 20 1999; that date was continued to December 16, 1999). Petitioner responded that the Court 21 informed him on December 3, 1999 it had been taken off calendar, with an OSC st-t for 22 December 22, 1999. CThis was the first notice the Department or Real Parties had of the 23 OSC.) A[_en.s Decl.__a[~l 8. 24 The parties appeared at the OSC - the tentative for which included a monetary 25 sanction against Petitioner's counsel - and Petitioner's counsel explained that Petitioner 26 was backing away from the settlement, that the membership list included over a thousand 27 individuals, and requested a continuance of the OSC. The Court agreed to the continuance, 28 ordered all parties to appear January 24, 1999 for the contini~e~OS_C~efitioner, in a ~4 .... MOTION TO DISMISS PE'I I'I'ION FOR WRIT OF MANDATE B0 1 hallway discussion after ~he hearing, again a~empted to renegotia~e the terms of settlement; 2 Real Parties explained that petiti~ner's counsel previously informed all parties tha~ ~e 3 terms of settlemere were a~reed to, that ).he con~dentiality provision was critical in its 4 present form and was heavily negotiated, that petitioner's claims were subject to dismissal 5 anyway, and that Real Parties would not agree to other terms. The deal was what the deal 6 was. Se_c id. at"~12. 7 Is sum, petitioner filed a baseless Petition, later agreed to terms of settlement, the 8 parties acted in reliance on thai settlement and, after a lengthy and silent delay, Petitioner 9 reneged. Between the time it communicated settlement until the time this Court threatened 10 Petitioner with sanctions, Petitioner did nothing to bring its merklcss Petition to heating. 11 Under these circumstances, the Court should order the Petition dismissed. 12 III. 13 ARGUMENT 14 The CoUrt can and should dismiss the Petition on two separate Founds. First, as' 15 explained in detail in the concurcently-filed alemutter, the Petition is baseless. It does not 16 attack any action by the Depat ta,ent that is subject to challenge under CEQA (or 17 otherwise) and, as such, is "fictitious" or a "sham.''3 This Cour~ has inherent authority to 18 dismiss such actions, a power it should exercise in light not onty of the lack of merit, but 19 also based on Petitioner' s conduct described above. See Lvons v. Wickhorst, 42 Cal. 3d 20 911 (1986) (court has inherent authority to dismiss sham litigation). Second, the Petition 21 should be dismissed because Petitioner did not bring its claims to hearing as required by 22 23 24 25 26 27 28 CEQA. Because of4hCinherent abitityffor protect _oplq__o_n~e~..~s to abuse CEQA as a dcla~y.. mechanism, CEQA actions are subject to judicial priority. Cal. Pub. Roe. Code § 21167.1. One aspect of that priority is codtried in Section 21167.4 of the Public Resoumcs Code, ~ Rather than repeat the argument c laining the baseless nature of the Petition, the Court is respectfully referred to th~c~un'cr and4tta~ints and authorities. -~--'~": ~5 MOTION 'to DISMISS Pk: l I ~ ~ON FOR WRrr OF MANDATE 81 1 which provides as follows: "[T]he Petitioner shall request a heating within 90 days from 2 the date of filing the Petition or shall be subject to dismissal .... "Cal Pub. Res. Code § 3 21167.4(a). Although drastic in nature, the dismissal requirement is in keeping with the 4 intent of the statute, viz., "to ensure that the mandate proceeding is conducted A 4t" 5 expeditiously." Miller v. Cit-¢ of Hermosa Beach, 13 Cal. pp 1118, 1135 6 (1993)(quotes and citation omitted). The Petition was filed more than ten months ago 7 . .. and Petitioner has failed to prosecute its claims at a hearing based on its unilateral and, 8 until December 17, 1999, uncommunicated decision not to execute the settlement 9 agreement. l0 Petitioner will correctly argue that applicable decisional law holds that Petitioner 11 meets the requirements of Section 21167.4 if it schedules the heating even if the hearing is 12 not ,conducted within the ninety day period after the filing of the Petition. The discussion 13 in Miller, however, strongly suggests that dilatory tactics by the petitioner justify dismissal 14 pursuant to the spirit of Section 21167.4, even if not stated in the "letter" of the statute... 15 In Miller, the petitioner timely filed a CEQA petition and moved for a preliminary 16 injunction. The preliminary injunction was denied, and the real parties in interest 17 subsequently moved for judgment on the pleaclings for failure to schedule a heating on the 18 petition within ninety days. The petitioner argued that the scheduling of the injunction 19 heating met the statutory requirements. The appellate court rejected the argument,4 noting 20 the statutory purpose of expeditious CEQA proceedings: "[Section 21167.4] appears 21 manifestly designed to place CEQA challengers in the position of either tendoting their 22 claim to the court for resoluiion or losing it altogether." Id. The mere scheduling of a 23 heating on_aninj unction js._i_n_.mjfficient, for "La_]_p_e_titioner could abandon the matter for a 24 long period following denial of a request for a preliminary injunction, leaving the project in 25 limbo." Id. That "limbo," the court of appeal explained, "is precisely the circumstance 26 which Public Resources Code section 21167.4is intended to avoid." Id. 28 default pursu --~L-----: MOTION TO DISMISS Pt: I I I ION FOR WP,1T OF MANDATE 82 1 The Miller reasoning justifies dismissal of the case at bar. Petitioner filed a baseless 2 Petition, purported to have entered not only into good faith settlement negotiations, but 3 also an agreement, altered the behavior of the parties based on this settlement, sat idly by 4 while the applicant conducted its work pursuant to the Section 1603 agreement without 5 objection, and, after months of silence, stated its intent to renege on a term of settlement 6 that it _knew was critical to the settlementfi Such delay, Real Parties submit, is "precisely 7 the circumstance which Public Resources Code section 21167.4 is intended to avoid." As 8 such, the Court should dismiss the Petition. IV. CONCLUSION For the foregoing reasons, and those set forth in the concurrently-filed demurrer, Court should order that the Petition be dismissed. the Dated: March 2~7, 2000 HEW1TT & McGUIRE, LLP By: ~ ~mEoHa Attorneys for Real Parties in interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I s The Court mi ht wonder why would Petitioner do such a thing? Althou it is difficult to ex lain any o~Petitioner"s conduct, the seven lawsuits that Penfioner an~or its counsel or alFied parties have filed attacking the Project make clear that one of its overriding goals is to delay, delay, delay the Project, by hookq~r by ,.i,.,~:;-. "A day wafted is a day earned." '~-"-'~":'- ' 1 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 16 17 18 19 20 2I 22 23 24 25 26 27 28 Andrew K. Hartzell (State Bar No. 147499) William E. Halle (State Bar No. 150686) HEWITT & McGUIRE, LLP 19900 MacArthur Boulevard Suite 1050 h-vine, California 92612 (949) 798-0500 Attorneys for Real Parties in Interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC, LAUREN DEVELOPMENT, INC. and CR/STIANO pARTNERS I SUPER_IOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CUCAMONGANS UNITED FOR REASONABLE EXPANSION CCLrRE"), an unincorporated association, Petitioner, CALIFORNIA DEPARTMENT OF FISH & GAME, Respondent, THE HEIGHTS AT HAVENVIEW ESTATES, a limited liability com any; LAUREN DEVELOPMENT, IN~.., a California corporation; CRISTIANO PARTNERS, a California general partnership; DOES 1 through 100, inclusive, Real Parties in Interest. CASE NO. BS056542 Assigned to Hon. David P. Yaffe Depat t.,ent 86 NOTICE OF DEMURRER AND DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHOR/TIES IN SUPPORT THEREOF HEARING: Date: April 26, 2000 Time: 9:30 a.m. Dept: 86 [Filed Concurrently With Motion to Dismiss] TO ALL PARTiES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on April 26, 2000 at 9:30 a.m., or as soon thereafter as counsel can be heard, in Department 86 of the above entitled Court, located at 111 N. Hill Street, Los Angeles, California, real parties in interest The Heights at Haven View Estates, LLC, Lauren Development, Inc. and Cfistian'o ~'artn~ri_,Lwill and hereby do NOTICE OF DEMURRER AND DEMURRER 66 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 ~93~99120~66,DM2.u~pd demur to the Verified Petition for Writ of Mandate ("Petition") on the grounds that the Petition fails to state facts sufficient to constitute a cause of action because it presents no judicially cog-air. able claim. [Cal. Civ. Proc. Code § 430.10(e)] The demurrer will be and is based upon this Notice of Demurrer and Demurrer, the memorandum of points and authorities attached hereto, the concurrently-filed motion to dismiss and supporting papers, all matters of which judicial notice may be taken (including the Declaration of Helen G. Arens in Response to OSC Re Dismissal, filed in this action on january 14, 2000), the complete records and files in this action, and upon such further evidence and argument as may be presented at or before the hearing on this demurrer. Dated MarchLTff, 2000 HEWITF & McGUIRE, LLP WillSerrS. Halle Attorneys for Real Parties in Interest THE HEIGHTS AT HAVEN VIEW ESTATES, LLC., LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I NOTICE OF DEMURPER AND DEMURRER 67 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION 4 This action is but one of a series of'~rlMBY" lawsuits aimed to block a small 5 residential development in the City ofRancho Cucamonga. In this case, on April 6, 1999, 6 petitioner filed a petition for writ of mandate against the California Depazhnent of Fish 7 and Game ("Department") and real parties in interest ("Real Parties") purporting to allege 8 a claim under the California Environmental Quality Act CCEQA"). The action attacks a 9 letter written by the Depa~ anent concerning its anticipated issuance of a streambed 10 alteration agreement under California Fish and Game Code section 1603 (the "Permit"). I 1 The petition, however, suffers from a fatal flaw: the Petition purports to allege a CEQA 12 violation, but does not attack a final decision by a public agency (the Depa~ h~ent) as 13 required for a CEQA challenge. The Petition therefore fails to state facts sufficient to 14 support a cause of action such that this demurmr must be sustained. 15 Not only should the Court sustain the dernurrer, it should do so without leave to 16 amend. When the Depa~ anent finally approved Real Parties' Permit application (several 17 months after the filing of the Petition and after Petitioner agreed to the terms of a 18 settlement),I Petitioner chose not to file suit; and the time for filing a CEQA challenge to 19 that action has long since passed. For these reasons, as amplified below, the Court must 20 sustain this demurmr without leave to amend. 21 II. 22 STATEMENT OF FACTS2 23 Pefitioner's claims are based on a letter by the Department regarding the anticipated 24 issuance of the Permit to Real Parties in connection with development of 40 homes on 26 25 26 27 28 I See generally Motion to Dismiss Petition for Writ 0fMandate, filed concurrently herewith. 2 Real Parties assume for the purposes of this pleading only the troth of any pro erly pleaded factual allegations contained in the Petition and reserve the right to deny or ~spute any of the allegations recited herein. Senno v. Prim, '5 Cai. 3d 584 (1979). ~1 .... NOTICE OF DEMURRER AND DEMURRER 68 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acres in the City ofRancho Cucamonga (the "Project"). See Petition at ~1~] 8, 11, 15, Exhibit I. Originally, in or about November 1996, the Dcpaz tmcnt determined that the Project did not require the Permit. Id. at ~1 12. The following year the Department reversed itself and took the position the Project did require such a permit. Id. at ~] 13. Real Parties disagreed with the Departmcnt's new position, and they continue to maintain that the Department has no authority to reverse its original determination or require the Permit. But they did eventually apply for a Section 1603 Permit, with a reservation of rights. Id. at By its February 23, 1999 letter, the Department informed Real Parties and Petitioner that it intended to act as a "responsible agency" under CEQA - not the "lead agency" - with respect to the processing of Real Parties' Permit application. The Dcparcrnent also suggested likely conditions of approval. Id. at Exhibit I. This, Petitioner claims, constituted "prejudgment'ofthc mitigation necessary forthe Pcrmit. id. at 'l]~I. 15, 16. Petitioner objected to the Deparmcnt's letter and, based thereon, filed this lawsuit. The tentative nature of the De'pat h .cnt's February 23, 1999 letter is obvious on its Should your client [Real Parties] apply for a [Permit] and if the information contained in the application is different from our current understanding, some or all of the items below will need to be re-evaluated. DFG, therefore, reserves the right to make changes to Ihe information provided in this letter. Petition at Exhibit I (emphasis added). Months later, on or about October 4, 1999, the Department approvcd the Permit application and filed its Notice of Determination regarding its decision to issue the Permit to Real Parties, with a copy mailed to Petitioner. Declaration of Helen G. Arens in /// /// HI NOTICE OF DEMURRER AND DEMURRER 69 193\99120066.DM2.w~d 1 Response to OSC Re Dismissal, filed January 14, 2000 CArens Decl.'), at ~ 6, Exhibit D.3 2 Petitioner contends that the Department 's February "decision" to act as a responsible 3 agency and "decision" to issue the Permit with mitigation measures were "erroneous as a 4 matter of law." Petition at ~ 16. As explained below, however, neither of these decisions 5 are final agency actions or, to use CEQA parlance, "approvals." They are thus not 6 reviewable under CEQA. 7 III. 8 ARGUMENT 9 A. The Petition Does Not State Facts Sufficient To Constitute A Cause Of Action 10 Whether one views Pctitioner's claims as a challenge to the Depamncnt's 11 "determination" to act as a responsible agency or to the De-pat h.ent's letter explaining 12 likely conditions for the anticipated issuance of the Permit, the Petition is subject to 13 demurrcr. The Petition fails to state facts sufficient to support a cause of action, because it 14 does not attack a final action by the Dcpam.cnt "approving' the application for a Section 15 1603 Permit. The approval occurred months after the Petition was filed. 16 CEQA generally applies to discretionary projects proposed by or approved by 17 public agencies. Cal. Pub. Res. Code §21080(a). The relevant inquiry is whether an 18 agency proposes (1) to "approve" (2) a "project." Lexin~on Hills Assoc. v. State of 19 California, 200 Cal. App. 3d 415,430-33 (1988). The CEQA Guidelines define "approve" 20 as: 21 the decision by a public agency which commits the agency to a definite course of 22 action in regard to a project intended to be carried out by a person. The exact date 23 of approval of any project is a matter detecmined by each public agency according 24 /// 25 /// 26 27 28 Because Petitioner initiated this action before the Depat huent acted upon the Permit application, the Notice of Determination is not alleged in the 'tion. A true and correct copy of it, however, is attached to the Atoms Declamti6i at_h__e_E_'~.'lit D. NOTICE OF DEMURPER AND DEMURRER 70 1 to its rules, regulations, and ordinances. Legislative action in regard to a project 2 often constitutes approval. 3 14 Cal. Code Admin. Regs. § 15352(a) (emphasis added). For private projects, "approval 4 occurs upon the earliest commitment to issue or the issuance by the public agency of a 5 discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, 6 permit, license, certificate, or other entitlement or use of the project." 14 CaI. Code 7 Admin. Regs.§15352(b); see also City of Vernon v. Bd. of Harbor Commnrs., 63 Cal. 8 App. 4Ih 677,688 (1998) (no "approval" for CEQA purposes until agency agrees to be 9 legally bound by decision); Millerv. CitvofHermosaBeach, 13 Cal. App. 4th 1118, 1142- I 0 43 (1993) (issuance of building permit was the formal, legally enforceable event, not the 11 "approval in concept"). 12 In light of the foregoing, the Petition does not present a legally cognizablc claim 13 under CEQA, for it does not challenge an "approval" of any project by the Depathncnt. 14 The Depattmcnt did not issue the Permit -- the legally enforceable event -- until 15 September 28, 1999, months after the Petition was filed. The preliminary "detcmdnation" 16 to act as a responsible agency instead of a lead agency and to "prejudge" the necessary 17 mitigation simply is not the final, committed legal act that is necessary for a CEQA 18 challenge. As such, the Petition does not state facts sufficient to constitute a cause of 19 action. 20 B. The Demurrer Should Be Sustained Without Leave To Amend 21 'vVhen a reviewing agency files a Notice of Detem~ination ("NOD") regarding its 22 project approval declaring ihat the project will not have a significant effect on the 23 environment, as the Depaamcnt did in this instance, any challenge to that approval must 24 be brought within thirty days of the filing of the NOD. Cal. Pub. Res. Code § 21167(b). 25 Because Petitioner failed to challenge the Pcz mit issuance within thirty days after the 26 Depa~ tment filed its NOD, it is too late for it to allege such claims. The Court should 27 therefore sustain this demurfor without leave to mend. 28 /// ~4 .... NOTICE OF DEMURRER AND DEMURRER 71 193\99120066.DM2.'~Ixl 1 The Depa~ tment ultimately issued the Permit -- the only "approval" it gave to Real 2 Parties -- and filed the NOD on October 4, 1999, over ninety days ago. The Department 3 also sent Petitioner' s counsel a copy of the NOD. Petitioner thus had actual notice of the 4 Depa~ tment's action and the NOD filing? Because more than thirty days have passed 5 since the filing of the NOD, it is too late to challenge the approval... and Petitioner has 6 only itself to blame. 7 Petitioner might argue amendment is proper under the "relation back" doctrine. 8 See Austin v. Massachusetts Bondin~ & Ins. Co., 56 CaI.2d 596, 600 (1961). That 9 argument, however, is doomed to failure: allegations of events which occur after the filing 10 of a complaint constitute "supplemental" pleading, which cannot cure the defects of a 11 premature lawsuit. Cal. Civ. Proc. Code § 464(a) (facts after original filing constitute 12 "supplement" to complaint); Radar v. Rovers, 49 Cal.2d 243,247 (1957) (supplemental I3 complaint does not aid prematurity defects of original complaint); ITI' Gil~ltan, Inc. v. 14 Los Angeles, 136 Cal. App. 3d 581,589 (1982) (relation back doctrine not applicable.m 15 supplemental complaints). Therefore, Petitioner simply cannot allege any new facts to 16 cure the defects of the original Petition. 17 Petitioner brought this challenge to anticipated Department action, which action did 18 not constitute an "approval" as defined under CEQA. As explained in the concurrently- 19 filed Motion to Dismiss, the Department and Real Parties accepted Pe~tioner's invitation 20 to discuss settlement instead of challenging the Petition on the merits. The ensuing 21 settlement discussions resulted in an apparent settlement agreement that Petitioner refused 22 to sign after approving it. In so doing, Petitioner placed itself in the position of having no 23 viable claim: it filed a lawsuit before the Depa~hnent "approved" the Project and it failed 24 /// 25 /// 26 /// 27 28 ' In fact, Petitioner was allowed to make changes___to ~__t.hlllguage of the draft NOD, at Petitioner's request. Arens Deel. at ~ 4. 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 25 26 27 28 1 2 difficult position, perhaps, but one of Pcfitioner's own making. 3 IV. 4 CONCLUSION For the foregoing reasons, Real Parties urge the Court to sustain this alemutter without leave to amend. Dated: March~__, 2000 HEWIT7 & McGUIRE, LLP 193\99120066.DM2,w~xJ to bring a challenge to the only 3usticiablc agency action within the limitations period. A Attorneys for Real Parties in Interest THE HEIGHTS AT HAVENVIEW LLC, LAUREN DEVELOPMENT, INC. and CRISTIANO PARTNERS I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA COUNTY OF ORANGE PROOF OF SERVICE I am employed in the County of Orange, State of Caiifomia. I am over the age of 18 and not a party to the within action; my business address is 19900 MacArthur Blvd., Suite 1050, Irvine, CA 92612. On March 30, 2000, I served the foregoing document described as NOTICE OF DEMURRER AND DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by placing a lrue copy thereof enclosed in sealed envelopes addressed as follows: Malissa Hathaway McKeith Brant H. Dveirin Martha Sharp Loeb & Loeb LLP 1000 Wilshire B tvd., Suite 1800 Los Angeles, CA 90017-2475 Helen G. A.rens Mary E. Hackenbracht Bill Lockyer 300 South Spring Street, Suite 500 Los Angeles, CA 90013-1204 X BY REGULAR MA/L: I caused such envelopes to be deposited in the United States mail at Irvine, Caiifomia, with postage thereon fully prepaid. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the United States Postal Service each day and that practice was followed in the ordinary course of business for the service herein attested to (C.C.P. § 1013(a)(3)). BY FEDERAL EXPRESS: I caused such envelopes to be deposited in Federal Express at Irvine, California, with postage thereon fully prepaid. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. BY PERSONAL SEt~VICE e! caused said documents to be delivered by hand to the address(es) listed above.) BY FACSIMILE: (I caused said document to be faxed to the addressed and fax numbers listed above. I declare under penalty of perjury under the laws of the State of Califomia that the above is true and correct. Executed on March 30, 2000, at Irvine, California. WILLIAM E. HALLE Print Name ORIGINAL SIGNED AFTER MAIUNG Signature No. 99-1711 In the Supreme Court of the United States CALIFOR~NIAdqS UNITED FOR REASONABLE EXPANSION ("CURE"). a Non-profit Corporation; THOMLAS BRADFORD; MARILYN SUE BRADFORD; LEO ORVANANOS: SHIRLEY ORVANANOS, Petitioners. [ferSLG CITY OF RANCHO CUCAMONGA: BRAD BULLER, an Individual, in His individual and Official Capacity; THO,.VLAS GRAHN, an Individual, in his Indh'idual and Official CapaciD,.', Respondents. ON PETITION FOR WRJT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NENTH CIRCUIT LODGING OF PETITIONERS' REPLY TO BRiEF IN OPPOSITION MALISSA HATHAWAY MCKEITH LOEB & LOEB LLP 1000 Wilshire Boulevard, Suite t800 Los Angeles, CA 90017-2475 213-688-3400 LARRY D. SANDERS StERJL,% DEFENSE PROJECT c/o SYRCL P.O. Box 84 [ Nevada City, CA 95959 (530) 265-596 [ ~'V[ARFNA TRAMONTOZZ[ Counsel of Record C/O CURRY &. TAYLOR Suite 601-5 815 lfzh Street, N.W. Washington, D.C. 20005 (202) 393-1070 DEN2'qlS P. DER. RICK Of Counsel Seven Winthrop Street Essex, MA 01929 (978) 768-6610 Attorneys)br Petitioners LA234756. [ 93163 i02407 06113/2_000 MbTM jw TAaBLE OF CONTENTS III. IV. Pa~e INTRODUCTION ...................... I SUFFICIENT FACTS ARE NOW KNOx, VN TO STATE A CLAIM FOR DEPRIVATION OF SUBSTANTIVE DUE PROCESS ........................................................................................................7 DEFENT)A2NTS CONT)UCT IS FUNDtMMENTALLY UNFAIR AN'D BASED UPON AN IMPROPER MOTIVE TO PREVENT CHALLENGES TO LOCAL DEVELOPMENT ...................... THIS COURT MAY PERM2T AN AMENDING OF THE COMPLAINT EVEN AT THE APPELLATE LEVEL ................................ 14 ABSTENTION IS NOT .&PPROPRL-XTE IN iNST.&NCES WEERE A COURT CAN PREDICT, WITH CERTAINTY. HOW THE CALIFOR~kTIA SUPRENfiE COURT WOULD RULE ............................................................................................................. ABSENT REVERS.4.L OF THE COURT OF APPEAL ON THE ISSUE OF ABSTENTION, THIS COURT SHOULD CERTIFY THE QUESTION OF PETITIONERS' PROTECTIBLE PROPERTY INTERESTS TO THE CALIFORaxFiA SU'PREME COURT .............................................................16 VII. CONCLUSION .............................................................................................17 TABLE OF AUTHORITIES Cases Altaire Builders. Inc. v. Fillage of Horseheads, 551 F. Supp. 1066 (W.D.N.¥. 1982) ..............................................................13 Bateson v. Geisse, 857 F.2d 1300 (9u~ Cir, 1988) ..................................................................................................13 Belloni v. Baird, 428 U.S. 132 (1976) ..............................................................4, [6, t7 Bellow v. Walker, 840'F.2d t124 (f'~ Cir. 1988) ..........................................................................t3 Brady v. Town of Colchester, 863 F.2d 205 (2d Cir. 1988) ............................................................................t3 Brennan v. Stewart, 834 F.2d 1248 (5t'h Cir. 1988) ......................................................4 Calder v. Bull, 3 U.S. (3 Datl.) 386 (1798) ...............................................................12 Cohen v. illinois [nstitute of Technolo~o'v, 581 F.2d658 (7'''~ Cir. 1978) ............................................................................ 14 Columbia v. Paul t~: Howt2rd Co., 707 F.2d 338 (8"h Cir. 1983) ......................................................................14, 15 Drum v. Fresno County Dept. of Pubh'c F/brks, t44 Cat. App. 3d 777 (1983) .............................................................................2 FormGn v. Davis, 37[ U.S. 17S (1962) ......................................................................[4 Gut_~viller v. Fenik, 860 F.2d 13 17 (6u' Ciz. 1968) ....................................................t2 Horn v. County Of/entura, 24 Ca[. 3d605 (1979) ........................................................................................2 Lapham v. Calzfornia Ener~v Resources Conservation & Dev. Cam.,. 705 F.2d 358 (9"'~ Cir. t983) ..............................................................................5 Lehman Brothers v. Schein, 4[6 U.S. 386 ([974) ............................................4, 16, 17 Pearl investment Co. v. CiCy of San Francisco, 774 F.2~I t460 (9"h Cir. 1985) ..............................................................................................................3.5 LA234756.1 Page(s) Railroad CommLvsion v. Pullman Co., 3 12 U.S. 496 ( t 94 1 ) ..............................3, 5, l 5 Roebin v. California, 342 U. S. 165 (1957) .....................................................................................4, 5 Scott v. City of Indian Wells, 6 Cal. 3d 541 (1972) ..........................................................................................2 Steu~rt v. Suskie, 857 F.2d 1148 (8m Cir. I989) ....................................................4, 12 Thompson v. Gallagher, 489 F~2d443 (5t~ Cir. 1973) ...............................................11 Olher Aulhori~es D. Hagman and J. Juergensmeyer, Urban Planning and Land Development Control, § 10.2at296 (2deal 1986) ...............................................................................12 Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1O71 (1974) ........................................................................3 Monaghan, Of"Liberty' and "Property", 62 CORNELL L.Rev. 405 (1977) ................................................................................................................4 V. FONT.&N'A, .MD~'~,4qCIPAL LIA_BILITY: LAW AzNT) PRACTICE section 4.8 (1990) ....................................................12 Rules Cal. Rule of Court 29.5 .............................................. 17 Federal Rule of Civil Procedure, Rule 15(a) ........................................................14, 15 I. FNTRODUCTION This is a civil fights case about government corruption for personal gain resulting in irresponsibl~ decisions exposing Petitioners' families to substantial inju5.' and properry damage due to flooding. Several local challenges by homeowners associations, environmental goups and Petitioners to the removal of the Deer Creek Levee has become an extraordinarily controversial matter, because these challenge threatens to halt hundreds of millions of dollars of development that cannot proceed if the flood infrastructure is unsafeJ A finding that the flood infrastructure is unsafe will directly affect the pocketbooks of wealthy developers. The City also w'ill be forced to disclose to tens of thousands of people that they are living in a dangerous flood plain, and they must purchase costly flood insurance. Moreover, correcting the inadequate flood infrastructure could cost as much as S1 billion. Under the circumstances, the local political opposition has been fierce, and the tactics employed by public officials unconstitutional. Simply put, the wrongful conduct at issue in this manor affects the safety of literally thousands of people, and it deser,,'es review by this High Court. t The Deer Creek Levee CLevee'') essentially blocks any eat west access across the alluvial fan and foothills, because it is a subs~ntial structure whose heig.ht ranges fTOm 20 tO 40 feet. It is, in many respects, the "gateway" to development ofthousancLs ofasres of land. Although it was the Lauren Developtnent Project that focused Petitioners on the removal of the levee in the firs'z instance, it is a much larger conspiracy that has prevented a fair and impartial safety study of the situation. Uafortm~atety, despite appeals by our entire Confessional delegation, the final decision as m whether the Levee is removed rests in the hands of a City Council '.,,'hose members admit to direzt, personal financial interests in this very. project that wilt destroy the levee and in the hands of a demonstrably corrupt county, flood congo[ district which sold tbjs fedorally built levee to a local developer to accommodale a joint-venture, public/private golf cou:se. The Levee, which cost the federal government more than $10,000,000 (CPI) to construct, v-as sold for 558,000 less than two ,,,'ears crier the .Army Corps of Engineers tamed the flood project over to the San Bemardino County Flood District for m~iintenance and operation. Decisions of the San Bemardino County Flood Corn:col District are particulariy biased because it ov,'ns much of the 8,000 acres whose development is negatively impacted if the Levees remain or if the Deer Creek Debris Base and Channel. This proprietary interest is the motivation behind much of the bad faith that has occurred. If the land is unsafe to build because of potential flooding, the City and the County are the big financial losers. When the underlying complaint was stayed by the District Court and subsequently briefed to the Ninth Circuit, Petitioners had no idea of the magnitude of Respondcuts' malfeasance. As such, the underlying complaint did not allege the strongest gound for federal jurisdiction - namely a violation of substantive due process. Instead, the complaint was couched in terms of procedural due process violations based upon the City of Rancho Cucamonga's CCiry") failure to provide notice and an opportunity to be heard when the City extended Lauren DevelopmenUs tentative ~ract map in 1992, 1995 and 1996. It also alleged multiple violations of the California Public Records Act. By the time of the District Court hearing on the motion to dismiss in December 1997, Petitioners naively believed that the City had turned over all relevant documents based upon the representations of their counsel. In reality, the Ciw,, intentionally had concealed the very most critical documents confirming that the Deer Creek Debris Basin and Charmel were dangerous. Petitioners were unaware of such intentional concealment until early i999. Due to the limited nature of Petitioner's procedural due process claim, the District Court stayed the lawsuit and abstained from deciding the merits on the gounds that California law was unclear as to whether Petitioners' had a state recognized proteczible propeg interest triggering the right to procedural due process. In the Ninth Circuit Court of Appeal, Petitioners argued that abstention was inappropriate, because the trial court could predict with some alegee of certainty hov,' the California Supreme Court would decide that Petitioners' had a protectible property interest based upon a long line of state court cases upholding the due process rights of adjacent propert'y owners.' The abstention doctrine arliculated in 2 Horn v. County of Vem'ura, 24 CaL 3d 605. 162 (1979) "it is by now senled law that propera,.' interests ot'aytjacent landov~T~ers are at stoke in a land use proceeding, and that procedural due process protections are therefore invoked." See also, Scott ~'. C~ty olindiem Wells. 6 Cal. 3d 541,549 (1972) C[C]onstimtional notice and hezring requiremen. ts are Iriggered by governmentaI action which results in "sigr~ficant' or 'substantial' deprivation ofpropem,.'.") and Drum v. Fresno County Dept. of Public Worlc$, 144 CaL App. 3d 777,782 LA2.;4756. [ 93163 [ 02407 Railroad Commission v. Pullman Co.,j is a narrow exception to the district court's duty, to decide cases properiy before it and is proper "only in exceptional cases where principals of comity, and federalism justifV postponing the exercise of jurisdiction that Confess conferred upon federal courts." Pearl Investment Co. v. City of San Francisco, 774 F.2d t460 (9~ Cir. 1985). In Pearl, the Court stressed that a district court should exercise jurisdiction unless it "cannot predict with any confidence how the state's highest court would decide an issue of state law."). M. at 1462. As the California Supreme Court historically has been a leader in upholding the rights of citizens to due process in government proceedings, PetiEioners argued that clear precedent existed for recognizing a protecfible property interest particularly given the severity of the safety issues involved. From a policy perspective, Petitioners further argued that the District Court should be even less inclined to abstain in civil ri~ts cases where the Petitioners would end up before a court biased by local politics - a viewpoint advocated by many scholars. See Field, AbsTention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071 (1.974) (Federal Courts can only abstain when the State provides the pazties with adequate means of adjudication. The staIe procedure should be deemed inadequate when individual iitigmnts suffer substantial prejudice in addition to that accompanying Lhe delay.). Finally, Petitioners asserted that, even if abstention were approp.6a~e, the Ninth Circuit should certify the maner to the California Supreme Court as doing so provided the most expeditious remedy for vindication of Petitioners' civil rights. Where certification is available, this Court consistently has (1983) ("Notice and an opportunity to be heard are due process prcrequisites for adeqtmte adzninistra6ve proceedings.") 3 312U.S.496(1941). LA234756.1 93163102-:'07 06/[ 3t2000 j w 3 held that it is preferable over abstention. Lehman Brothers v. Schein, 4 16 U.S. 386 ( 1974); Bel[otti v. Baird, 428 U.S. 132 (1976).4 The Ninth Circuit did not address the substantive due process argument applicable to this marker, as it had not been advanced at the trial cour~ or in the Ninth Circuit briefs. The extent of the City's wrongdoing against its own residents simply was unknown in I997, when the District Court stayed the action. Had Petitioners known of these facts, they could have mended their complaint to add a claim for deprivation ofsubstamive due process rights. This Court has long recognized that citizens possess certain fundamental. rights that'no government should infringe. The right to be safe in one'k home unquestionably is such a fundamental rig.ht and, to infringe that rig.ht due to ulterior motives such as personal financial gain in situations where people could die "shocks the conscience" and satisfies ~he test enunciated by this Court for determining whether a claim for substantive due process will lie.s .&rgurnents before the Ninth Circuit in January 2000 included a discussion ofexrro recordevidence about the status quo susrokmding removal of the FE;VLA- rated Deer Creek Levee. Specifically discussed was the fact that Senator Feinstein and Senator Boxer had just demanded at the Secremr,/of .&rmy conduct the very safety study Petitioners had been requesting. At that time, it was assumed that the Pentagon would conduct the safety studv in resttahoe to the Senators. D. fact, despite repeated Congressional requests since January 2000, the Pentagon refuses to conduct a safety study absent a "local sponsor", i.e., the San Bernardino County Flood Control District. Because of the progress being made on the political front in Washington D.C., as of jantmry, it sffmed Petitioners had found a non-judicial remedy to save the levee. Saving the Levee, however, is but one of the forms of relief sought in the underlying civil rights case. Petitioners also seek to vindicat~ the significant deprivation of rights that has occurred by virtue of their inability to obtain an independent safety study due to local corruption; the monetary effect on Petitioners having to spend hundreds of thousands of dollars to secLLre those rights; and the fact that there remains no guarantee that the levee will not be demolished regardless of the Senators' help, thus jeopazdizing Petitioners' right to be safe in their homes. s Rochin v. Caizfornia. 342 U. S. 165 (1957). See also, Brenn~n v. Ste~'art, 834 F.2d 1248, 1255-57 (5:'~ Cir. I988); Monaghan, Of"Liberty" and "ProperD"', 62 CO~NELL L.Rev. 405,420 (1977). Substantive due process is the "hea,,Ly artillery of constitutional litigation.. . "SIeuart v. Suskie, 857 F.2d 1148, 1150 (8:'h Cir. I989). Although the Rochin L.42347551 9]163102407 Aside from a legitimate claim for substantive due process violations, Petitioners have stated a claim for violation of procedural due process - a right long afforded adjacent property owners under California law. Contrary to the City's assertion. this matter is not a garden-variety "land use" case involving uniquely local concerns necessitating Pullman abstention. indeed, none of the Nimh Circuit's decisions upholding Pullman abstention even are remotely on point. The most applicable decision, Lapham v. California Energy Resources CorL~ervation c~ Dev. Corn., 705 F.2d 358 (9~ Cir. 1983), merely involved whether Petitioners had a right to due process before an electrical transmission line was installed near their homes. The Ninth Circuit held that there was sufficient uncertainty about the applicable state statute that the trial court had not abused its discretion.6 Unlike the instant case, however, absolutely none of the Ninth Circuit decisions contained allegations of unlawful or con-apt conduct on the part of the very. decision-makers involved. The magnitude of the v~TOngS alleged -- and the consequence of not remedying those v, Tongs in a federal court -- are serious. The issue before this Court is whether Petitioners have a fight to be heard in a neutral federal court where a fair trial can be had or whether they will be forced to proceed in a local s~ate court located in the very building comptex where defendants reside. Unlike the federal court, these elected judges are subject to local politicai pressure. The resolution of that issue turns on whether Petitioners' enjoy a substantive right against government action that subjects Petitioners to unsafe conditions -- including the potential loss of life - all due to the self*interest and improper motives of public officials. test is most often employed i.n excessive force cases, the Rochin formula has been applied in various contexts as it lends itself for simple application. ~; The Lapham decision, moreover, has lilIle or no analysis but mereiy parrots other Ninth Circuit decisions dealing ~th land use and Pullman abstention. in other dealsions, such as Pearl, the Ninth Circuit acn.k2ily has expressed reser,.'a~ions concerning the zeal with wkich abstention is applied. 96/131'2_000 Jw 5 This Petition lbr Writ of Certiorari also addresses whether abstention was indeed appropriate given the dear line of California Supreme Court cases recognizing upholding the rights of adjacent property, owners to due process. Alternatively, if abstention were appropriate, Petitioners submit that certification to the California Supreme Court would better facilitate the strong policies underlying abstention both in terms of comity,. Certification also would avoid subjecting Petitioners to a [en~-rLhy process in the local courts7 before the matter is heard before an appellate court.8 7 The notion that the Superior Court in Rancho Cucarnonga v'ill recognize a protectible property interest given their h'-ack record in maners relating to Deer Creek is completely unzealistic. Given Ihe past conduct of the local judges, Petitioners wil[ simply lose. This is akin to instructing the NX-tCP to redress their civil fights in art Alabarna state court. As an exampie, in the first local case filed by CURE in October 1.997. Attorney Kaufman falseiy asserted that the Deer Creek Cha.qne[ was designed to convey ("pass") flood flows of 15,000 cubic feet per second. Mr. Kaufman made this false assertion though three separate documents in the Ciry's possession listed 5,400 cubic feet per second as the maxima capacity o~' the Deer Creek Channel. prior to convergence with other streams. Petitioners attempted to submit these design documents veriS,.'ing the charmer capacity. ~ only 5,~00. Were the court impartial. it would have corrected the record and likely reprimand the Ci~' for its failing to include critical docmmen:s. instead, the judge in his decision issued as a specific finding that the Deer Creek Charmel has a 15,000 cubic foot per second capacity, which the City nov,' trumpets as "the truth." in a related case, another local judge recenI[y enjoined a horncow'hers association from spending additional funds over the Levee in an apparent arterupt to obstruct the prosecution of an appeal against one of his colleagues' recent decisions. Remarkably, this TRO v-as issued even though the homeowners enjoined '.','ere not parties to the litigation and had not been served vdth process. This conduct may be the basis of a complaint v,~.th the 'California Commission on Judicial Performace. A~notherjudge on this small bench was the former mayor of P, ancho Cucamonga and a former partner of the City, Attorney. $ As an example, in the first local case filed by CURE in October 1997, Attorney Kaufman falsely asserted that the Deer Creek Charmel was designed to convey ("pass") flood flows of 15,000 cubic feet per second. Cucarnongarts (J'nized for Reasonable Expansion v. City of Rancho Cucamonga, San Bernardtrio Superior Court Case No. RCV 30406. Mr. Kaufman made this ihlse assertion though three separate documents in the Ci~"s possession listed 5,400 cubic feet per second as the maxima capacity of 'the Deer Creek Channel, prior to convergence with other streams. Petitioners attempted to submit these design documents veriS'ing the channel capacity as only 5,400. Were the 'COLLr~ impargial, it would have corrected the record and likely reprimand the City for its failing to include critical documents. Instead, the judge in his decision issued as a specific finding that LA2,34756 I I63102407 0ei/13r20CO Jw 6 If. SUFFICIENT FACTS AP~ NOW KNOW ,.'N TO STATE A CLAIM FOP,. DEPMVAT[ON OF SUBSTANTIVE DUE PROCESS. Petitioners request that this Court permit amendment of the complaint to include a claim for substantive due process. Given Petitioners' request, a further factual back~ound is neoessa.7 to place ~his matter in its proper conte×t.9 Although many of ~ese facts were alleged in the underlying complaint; significant new evidence has been discovered in the past three yea=s supporHng claims against additional individual defendants including the Ci~' Engineer, ~e Ci~ Attorney, and the Deer Creek Charmel has a 15,000 cubic foot per second capacity which the City now trumpets as '~the truth." in a rela:ed case, another local judge recently enjoined a homeowners association from spending addifiona[ funds over the Levee in an apparent arterupt to obstruct the prosecution of an appeal against one of his coI[eagues' recent decisions. Remarkably, this TRO was issued even though the homeowners enjoined were no~ parties ~o the litigation and had not been served ~-ith process. Tpjs conduct may be the basis of a complaint wkh the CaJifOtTLia Commaission on Judicial Performance..-Lnoth~rjudge on Lkis small bench was the former mayor of R.ancho Cucamonga and a fo.'Tner parlner of the City Attorney.. 9 Petitioners' coal below, Loeb & Loeb, did not eL-oh L, he Petition for Writ of Certiorari. It was approached literall.',' days before the deadline by a WashingIon D.C. firm willLag to draft the Petition at a substantial discount. Prior to that time, Petitioners had not contemplated a writ in the United Sates Supreme Court because of the monetar~ investment involved a~nd fie statistical likelihood that Petitioners are denied. Because Petitioners' counsel had only limited involvement in the dEI~ing of that brieC, there was one facalal error made. in approvLng the ten~.ti,/e map in t990, the City justified removal of the Levee (as opposed to conditioned removal of the Levee) based upon the ups[ope debris b basin. This is not i material factor in the Comrt's decision. LA.234756. [ 93163102407 06/I 3/2000 jw 7 employees of the San Bemardino County Fiood District.1° The tollowing facts would be atleged in an amended complaint.11 In i990, the City. of Rancho Cuc=~monga approved the developer's 40-home residential development based upon a negative declaration The negative declaration - which is the document under State lave alerting the public to environmental and safety concerns -- was completely silent about the Deer Creek Levee's removal. Indeed, there was not a single public document alerting the community to this fact. None of the Petitioners lived in the area in I990, as the surrounding properties were largely undeveloped and actually owned by the developer providing notice.I: Petitioners first learned of the impending removal of the Levee in late May I997, long after they had consmatted their homes. Counsel for CURE immediately served a Public Records Act Request wi~h defendant Graban in anticipation of a June l i, 1997 final hearing. At that time, the Pinsmine Commissioner, David Basket, instructed respondents BuHer and Gram not to produce certain documents to Petitioners, because doing so would prevent Petitioners from properly preparing for the June 1 [. l0 The San Bemardino Corona' Flood Control Dis~ct is tasked with the respoasibili.ry for protecting the public from flooding; ho~.'ever, it also o,a~s approximately g,000 acres of land intended to be sold for private use. If the Deer Creek Basin is t. mdersized, those sales cannot take place. The local flood conlzol district has been so remiss in its responsibilities that the California O~ce of Emergency Sep,'ices has thseatened to refer their conduct to the Stare Attorney General's oft'ice. Los Angeles Times June 10, 2000. 11 Tin_is new evidence also was not available to Petitioners until earl}' I999 - a date long after the briefing in the Ninth Circuit Court of Appeal and after the final approval of the developer's project. l: tMoreover, no notice was given to several government agencies and other enIifies likely to object to the project even though these entities were included on the certified notification list of adjacent properly owners. instead, it was noted in the record that no addresses were available for the local water district, the U~ted States Forest Service, Southern California Edison Company. and the San Bemardino County Flood Control District. Further, no notice was given to =he California Department of Fish & Gam~ as required by law, wNch agency recently had designed the' subject property. as containing globally imperiled habitat. 06/13/2X3Oj~ g [997 public henzing.13 Defendant Grahn also falsely told members of the coramunity that the Levee was not actually being removed as part of the project, and further informed people that the matter was being heard on the Consent Agenda so that no public input would be permitted. The response to Petitioners' Public Records Act request was paltry,, and several material documents obviously were omitted including documents concerning the City's Memorandum of Ageement with the United States Fish & Wildlife Service restricting development in areas of sensitive habitat. Moreover, there were absolutely no documents produced concerning the safety issues surrounding removaI of the Levee.14 Orl June [1, 1997, the Planning Commission continued the marker to July 9, [997. Thereafter, counsel for Petitioners made several efforts to contact City Attorney James Markman by letter and te{ephone to seek his assistance in obtaining docum.ents. No response or return phone calls were forthcoming. In filing the original complaint, Petitioners were attempting to force the City to produce the relevant documents before the July 9 hearing and to ensure the City understood that, with so many families and homes at risk, the residents would do whatever was necessary, to counter the City'5 unsafe actions. The complaint was seD'ed less than five days before the July 9, 1997 Planning Commission heating. The documen~ were not received before that hearing and the Plam'~ing Commission, chaired by ,,Ms. Barker, ganted the deve{oper's permits. An appeal to the City Council ensued. Prior to the City CounciVs hearing on August 20, 1997, a number of documents were produced, and Pefitioner~ believed that the City had complied. ft 13 tn administrative proceedings, it is incumbent that all evidence be introduced before a final decision is rendered at which point the administrative record is closed. Therefore, Barker's intention was to prevent Petitioners from fully asserting their rights 'at the local level thus preventing any effective appeal of the decision to a trial court. t4 Those documents never surfaced until earl>' 1999 (aecer the complaint in' this matter was dismissed) when copies were discovered in another government agency showing that the City of Rancho Cucamonga had been a recipient on those documents. LA234756,1 93163 I02-'07 061'13t2000 jw 9 was only discovered literally 15 momhs later that the City had withb. eld and concealed numerous specific documents about the flood infrastrdcmre proving that the City. had knowledge that the situation was unsafe. None of those documents were available in August 1997. In August 1997, a member of the City Council who was receptive to conducting furLher environmental review, questioned the City. Engineer, William O'Neill, whether removal of the Levee was safe. In response, the City Engineer falsely represented that he had "no idea" about the capacity of the Levee, that no one knew '%vho built it" and that it was essentially a ';mound of dirt". Unknown to PetiTioners at that time, the City Engineer actually had documents within his reD' files reflecting the fact that the A..-my Corps of Engineers had made substantial construction improvements to the Levee in the early 19'70s and 1980s, and that FE~'vLA had credited the Levee to handle a I00-year flood event in 1984, less than one yeaz before the San Bernardino County Flood Control DisTrict sold it to a private developer and approximately six )'ears prior to the City. approving its removal.Is Based upon this evidence, the City Council held that no further environmental review was necessar2'. The City points out, correcEly, that Petitioners were able to ~s Attorney Kaufman false{y characterizes the Levee as an "tmJined, trairting levee" that was breached before the CRy approved its grading in 1990. (Respondcries Brief at n 2). This is simply false. One of the documents that the CiD' faded to produce in 1997 FENL~,.'s Lener of Map Revision as well a.s documents from the developer's own consulm.nts showing that the flood capazity of the Levee as holding more than 72,000 cubic feet of water per second. Why would FEt4A rate the levee to withstand the 100-year flood so that hundreds of houses could be constructed if it were in the condition claimed by Mr. Kaufman7 Moreover, the City misrepresents when it states that the Levee had a 200-foot breach in it in 1990. The Levee was tm. law~lly breached by the developer in 1992. Were the City at all responsible, it would have required that the breach be filled in immediately. The Levee is a rip-rapped re-directional (i.e., training) levee, designed to mm and convey high velocity flood & debris flows. Even the developer estimated the Levee can handle more than 257~acre feet or 400,000 tons of debris and 72,000 cubic feet per second. The Levee is substanlialiy laxget than the citemotive rrapazoi~ta[ "channel" referenced by the City at page 3 of their brief. That charmel - as cornrise[ well knows - is designed to handle 474 cubic feet per second onJy or .6 percent of the Levee's capacity. Even if it would hold one percent of what the Levee holds, Petitioners rake no solace in such a "replacement".. challenge that decision on an Administrative Writ of Mandate, and that the trial court upheld the City's decision.'6 These mandate proceedings are based upon a limited administrative records and, under California law, the trial court must defer to the Ci.t.tT Council if there is any evidence to support its holding that no additional environ- mental review is requirerift The remedies in these mandate cases, moreover, are vastly different than what Petitioners pray for in a federal civil rights action. Under mandale, the trial court does not address any of the bad faith conduct of the City or the individual defendants (none of whom can even be named in mandate cases), including the concealment of documents demonstrating the Ciry's knowledge that removal of the levee was dangerous, and intentionally false statements by the City (and its anorn~'s) about the capacity of the flood channel. No discovery. is permined at either the Cit*v.. Council or rdal court stages so that it is impossible to cross-examine or rebut witnesses or delve into the financial bias of the decision-makers. No jury trial is available and no monetary damages can be awarded. II[. DEFEN'D.&NTS CON'IDUCT IS FUND.&MZENTALLY UNFAIR AN1D BASED UPON ,&N IM?ROPER MOTIVE TO PREVENT CHALLENGES TO LOC.AL DEVELOPMENT. Without question, Petitioners enjoy a substantive due process right to be free from goverTLment action that would render them unsafe in their own homes. Substantive due process affords "a general prohibition against arbitrary. and um'easonable goverrlmental action." Thompson v. GaHagher, 489 F.2d 443,446 (5Lh ~s The California Court of Appeal in May 2000 sated its intention to uphold the tda[ Court; however, oral argumehts ,.'rill lake place on July 6, 2000, and a final decision rendered sometime thereafter. t7 For example, the completely false and misleading testimony of the City Engineer that the FENLA-rated Levee had "no 'k_no,.,m flood control f-anction" is the ~'pe of "evidence" that sufficed to uphold the City's decision. Cir. 1973). See also, Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6~h Cir. I968) (substantive due process "stems from our .American ideals of fundamental t~.irness · .. [which] enmeshes the judiciary in substantive review of governmen.tat action.") it is the ';heavy artillery" of constitutional litigation.. ." Steuarr v. Suskie, 867 F. 2d [148, 1150 (8Ih Cir. 1989). Although this Court has witnessed a resurgence of substantive due process claims where government officials have engaged in wrongful conduct impacting a plaintiff's fundamental rights, its roots date back to the eazliest days of our union· 'The people of the United States erected their Constitutions.. . to establish justice, to promote the general wellale, to secure the blessings of liberty; and to protect their persons and properry frorn violence·" Calder v. Bull, 3 U.S. (3 Dall.) 386, 3867 (/.798). "Substantive due process ~ew out of the natural law theories of the Seventeenth and Eighteen centuries. All men were thought to be possessed with certain fundamentaI rights that no government should infringe." D. Hagman and J. Juergensmeyer, Urban Planning and Land Development Control, § 10.2 at 296 (2d ed I986). Substantive due process rights are not dependent upon property rights under state law as in the case of procedural due process. Rather, substantive due process affords plaintiffs a broad residual theon· to challenge the root of governmental conduct and ~'pical[y affords remedies consistent of' compensatory and punitive damages along with equitable relief ';,'here appropriate. See V. FONTANA, · MXjN'ICIPAL LLABILITY: LAW AND PRACTICE § 4.8 (I990). Government conduct premised upon bad faith or other improper pecuniary motives like that alleged here undisputedly supports such a claim in the instant matter. The notion that goverrkment employees empowered to protect the health and LA,2347561 q3163102407 06/13,2000 jw ] 2 safety, of their communis.', would conceal and destroy documentsis demonstrating unsafe conditions for economic reasons satisfies Ihe %hocks the conscience" test cmp[o,ved to ascertain the appropriateness of a claim. Nor is any special deference provided government emplo,,,'ees simply because the mailer involves land use. A[tafre Builders. [nc. v. k'i[Z~ge oj'Horseheads, 551 F. Supp. 1066, 1069 (W.D.N.Y. 1982) CRegardless of the deference normally accorded zoning practices by the courts, the Constitution does not tolerate arbitrary and unreasoned action.") The Ninth Circuit also has applied substantive due process in the land use context. In B~teson v. Gei~e, 857 F.2d 1300 (9m Cir. 1988), the Ninth Circuit observed that "arbitr'aT administration of the local regulations, which singles out one individual to be treated discriminatorSly, amounts ~:o a violation of that individuals substantive due process. See Br~dy v. Town of Colchexter, 863 F.2d 205 (2d Cir. I988) (reversing summary judgment for cis,,'; building permit denial as a result of political animus violates substantive due process.) See also, Bellow v. t~/cd/cer, 840 F.2d 1124 (3''d Cir. 1988) ("substantive due process available where municipaliD' had improperly interfered ,,vith the permit process, and did so for partisan political or personal reasons un.relaEed to the merits of the application.") Here, defendants' conduct in concealing information and then ruling against performin~ a safety,, study allegeally is motivated by factors urn-elated to the merits of the permit process. Certainl?', individual property, owners impacted b?' those decisions have no less ri,~Tht to a substantive due process claim then the permitlee. Having alleged that the government officials in this case have acted wrongful, Petitioners have demonstrated a substantive due process violation IS One such document calculaed ~:hat, after a fire in rj~e watershed, a SO-year storm generaIts more than seven million Ions of mudrio',,,' or debris..4_nother such document calculated ',.hat the debris basin would fail in only a 12-year storm. L,-L234756. I 93163102~07 IV. THIS COURT NL4Y PER_MiT AN A~MENT)FN'G OF THE COMZPLAINT EVEN AT THE .-LPPELLATE LEVEL. Federal Rule of Civil Procedure, Rule 15(a), declares that leave to amend a complaint "shatl be f?eely given w'h~n justice so requires." As this Court has stated on numerous occasions, "Jill the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ouglnt to be afforded an opportunity. to test his claim on the merits. In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the pan of the movant, repeated failure to cure deficiencies by amendmenLs previously allowed, undue prejudice to the opposing .parry by virtue of allowance of the amendment, futility of amendment, etc. - the leave sou~ht should, as the rules require, be 'freely given'." Forrn~2n v. Davis, 371 U.S. 178, 82 (1962). None of those factors limiting the right to amend are present here.. In the context of a civil rights action, the Seventh Circuit held that the ';amendment [of a complaint] can be allowed with leave of the Court of Appeals. [Citations ornined]. This rnay be accomplished either by the appellate court iLself ~anting leave to amend or by remanding ro the District Court to consider the motion." Cohen v. illinois Institute ofTechnoloKv' 581 F.2d 658, 62 (7a Cir. 1.978). The Ei~?_.hth Circuh Court of Appeals also has held that "[ajn amendment can be proper after r~ma_nd to the District Court even if the claim was presented for the first ~ime on appeal or had not been presented to the District Court in a timely fashion." Columbia v. Paul N. Howard Co., 707 F.2d 338, 34l (8~ Cir. 1983) (reversing summary, jud_m-nent and directing trial court to permit amendment of pleading even though_& theory, not raised below). In Howard, the appellant made his first specific reference to a tort theon,' of recovery on appeal, independent of his original contract claim. The Appellate Court ordered "[i]fthe District Court did nor rule on Howard's ~ort claim, that court shoutd consider the claim in the first instance. If the court feels the issue had not been presented below, the court can permit Howard to amend its counterclaim pursuant to Fed. R. Civ. P. 15(a) to include the tort claim.*' M. Recognizing the liberality with which amendment is ~anted under Fed. R.Civ. Proc. Rule 15(a), Petitioners urge this Court to permit amendment now. V. ABSTENTION [S NOT APPROPRIATE IN INSTANCES WHERE A · COURT CAN PREDICT. WITH CERTAINTY. HOW THE CALIFORNIA SUPREME COURT WOLFLD RULE. In denying Petitioners' appeal, the Ninth Circuit held that the three prongs of Pullman were satisfied. According to the Court, "The first prong of the Pullman test was satisfied because this case involves land use planning and 'land use plarming is a sensitive area of social policy that rneeLs the ftrst requirements for Pullman abstention"' Memorandum Opinion at 4a [ekations omiued] Characterizing this maner as involving ':land use planning" simply is ~,T0ng Once this case is viewed in the context of serious government corruption, rather than as a typical land use decision, the first prong of Pullman no longer is satisfied. The instant case touches upon an important issue of federal constitutional ri~j~ts that wan'ants retention of jurisdiction and not a sensitive issue of local land use.. The District Court and Ninth Circuit further erred in holding that the third Pullman prong was satisfied. Petkioner already has briefed at length the issue of whether the state law supporting protectible property inrere3t iS unclear, and it '.viii not do so again here. (See Petitioner's Opening Brief at 13-t9.) It is the duty of the federal court to exercise its properly invoked jurisdiction, and the burden to reject that jurisdiction should be high. The overwhelming body of California law has recog~nized the rights of adjacent property owners to due process in instances far less e~egious than the facts pending before this Court. That the Supreme Court has not spoken to the applicabiliD' of due process in the context of tentaIive map extensions does not preclude a feddral court from anticipating ,,','hat that Court would do. 163 [ 02~07 o6/z 3,2000 V'[. ABSENT REVERSAL OF THE COURT OF APPE?& ON THE iSSUE OF ABSTENTION, THIS COURT SHOULD CERTIFY THE QUEST[ON OF PETITIONERS' PROTECTIBLE PROPERTY [NTEKESTS TO THE CALIFORNIA SU'PRjEiME COURT. Petitioners assert that California law is clear regarding the existence of its protected property interest. However, to the extent that there is any uncertainty. as to whether California law gants Petitioners a protectShie interest, this should be clarified by the California Supretue Court now. As discussed below, this Court repea~zectly has held that certification is preferred to abstention given the prejudicial cost and delay's associated with the latter. Moreover, certification is preferred over the "problemuric" abstention doctrine because it promotes cooperative judicial federalism. 7irginia v. .4meritart Book. sellers Assoc., inc., 484 U.S. 383,396 (1988): Lehman Brothers v. Schein, 416 U.S. 386,391 (1974). Without question, the pariies' interests (including the City's) are better sewed by the expediency of certification as opposed to abstention. Bdlotti v. Baird, 428 U.S. 132, 151-152 (1976). Certification is proper ',','here a part)"s interests are adversely affected by abstention. tn BelloreS, the appellees-plaintiffs brought claims against the Anorney General and District Anomey of Massachusens claiming that a Massachusetts statute requiring minors to rec.~i,,'e parental consent before obtaining an abortion was violative of the Fourteenth Amendment. The District Court did not abstain from hearing the case and both panics appealed its ruling on the constirmional issue. 428 U.S. 132-133. In Belloui, the Supreme Court held that the District Court should have abstained and certified the case to the state supreme court. In its analysis, this Court determined that because the abortion statute was susceptible to the State's interpretation which woutd change the nature of the federal constitutional issue, the case should be certified to the szate supreme court. [d= at I46-148. In addition, this Court stated that because there were substantial personal interests that could be LA2147.~6.[ 3.2000 affected by the statute, "It]he importance of speed in resolution of the instant litigation is manifest." [d_= at 152; see ~enerall,i Lehman Brothers, supra, 4 16 U.S. at 391-392 C[C]ertification procedures ... save time, energy and resources . . ."). Accordingly, the case was remanded to the District Court for proceedings to determine certification issues. The importance of speed of resolution is also paramount in this case. In late April 2000, former Army Corps of Engineer employees and personnel from the Los Angeles County Flood Control District came forward testifying that the debris basin is inadequate and unsafe. Since that time, ~he City and San Bernardino County Flood Control District have been racing to ~ant the developer's last permit to allow the developer to demolish the levee. The arguments vigorously advanced by the City to oppose a speedy resolution of the issue aze not compelling. Petitioners have satisfied all of the elements of California Rule of Court Rule 29.5 which provides that certification is appropriate where: (1) the certifying court requests the az:swer; (2) the questions may be determinative of a cause pending in the certifying court; and (3) the decisions of the California appellate courts provide concerning the certified question." [d. at Rule 29(a).. opposing certification are transparent and unavailing. no controlling precedent Respondcries' motives in VII. CONCLUSION The United States Supreme Court has the power to assume jurisdiction and · address Petitioners' constitutional rig.his. This is not a local land use case but a case about the destruction of federally constructed infrastructure without proper notice to the impacted parties. The existing and proposed amended complaint is an indictment of those local officials and politicians who would recklessly endanger the public safety simply to line their own pockets. Petitioners have fought this banle at great personal expense to protect '~heir families ~orn unsafe conditions created by the verv government entmsted to protect Them. Those rights are protected by the federal consT&ution and should be vindicated in a federal court free from local bias. For the reasons stated above, Petitioners request that the Petition for Writ of Certiori be Vanted. Curry & Taylor Marina Tramontoz.zi By: Marina Trarnontoz, zi Attorneys for Petitioners Dennis P. Derrick Dennis P. Derrick Attorneys for Petitioners L.&234756.[ f~iOV-z3-S9 TUE 9:21 A!,{ RW~G ORANGE COUNTY FAX }tO. 714 990 6230 P. 6 RICHARDS, WATSON 8,, GERSHON November 23, 1999 Jack H. Rubcns Sheppard, Mullin, Richter & Hampton LLP Attorneys at Law 333 South Hope Street, Forty-eighth Floor Los Angels, California 90071-1448 Response to your letter dated November 22, 1999 (Heights at Haven View Estates Conceptual Alternative Storm Drain Plan) Dear Jack: Following our conversation which occurred last evening, I did speak with Brad Bullet, City Planner of the City of Raneho Cucamonga, and inquired whether any alternative storm drain or drainage plan for the above-referenced project had been officially submitted to the City ofRancho Cucamonga. Brad's response was in the negative. Brad mentioned that he understood there was a meeting at which the Developer's representatives may have discussed with or shown to the City's engineering and planning staff such a plan but that no such plan has been submitted for processing and no application of any nature is on file. I believe the above-stated facts ate completely responsive to your letter dated November 22, 1999. Insolaf as that letter constitutes aPublic Records Act request, the response to the request is that there is no document in the custody of the City which meets the description in the request. As to your legal conclusions and assertions as to how an alternative drainage plan must be or may be processed, as I indicated to you last evening, I cannot agree or disagree with your conclusions. If and when such a plan is presented for TOE 9:21A~i RI~&G ORANGE COUNTY FAX NO. 714 990 6230 P. ? RICHARDS;, WATSON &- GERSHON Jack H. Rubens November 23, 1999 Page Two processing, I certainly plan to discuss it .with the Rancho Cucamonga plarming and engineering staff at which time we will reach our conclusions as to the proper method of processing the same. Very truly yours, City Attorney City of Rancho Cucamonga F AXED AND MAILED CC: Brad Bullet, City Planner CEncl,) Kick Gomcz, Community Development Director CEncl.) Joe O'Ncil, City linginecr CEncl.) Mitch Abbott (Encl.) Steve Kaufrnann (Encl.) 'rUE B: 18 A~ RW&G ORANGE COUNTY FAX NO. 714 000 6230 P. 2 (213) 617-4216 j~ns®smr~.com .5HEppARD, {vlULLtN, RICHTF--R & HAMPTON November 22, 1999 VCD47682 BY FACSIMILE AND U.SJ~iAIL james L. Ma~kmazh Esq. Rich~ds, Watson & G~shon 1 Civic Center Circle P.O. Box 1059 Bran, California 92822-1059 Re: Heights at Haven View Estates - Conceptual A~ternativc Storm Drain Pla~ Dear Jim: This is i/t response to you~ September 3. 1999 lcttcI to me rcgardixlg the pot~tial rodesign of the drainage charmel at the northerly bouach~ry of Tract No. 14771 (the "Cm'remt Drainage Chau~l"). I apolo~c for the delay ia my response, which is hugely attributable to the recent ~urp7 of litigation activity with respect to the projec~ iu the wake of the developer's grading of Tract No. 14771, which ~cludeA the reopening of the l~vee breach and which occurred with the perufission of ~e City of Raucho Cucemonga (the "City"), we now generally uttd~rsmd fiat the developer is working with the City en the redcsigu of the Cu~m~t Drabage Channel. Ttiq raises two primaxy issues, both of which we have addressed, but not resolved, i~ otu previous con-cspo,,dcucc- First. if o~ understanding is correct, we aga~ request that the City disclose the ~exlesigu of the Current Drainage Chamacl Froposed by the developer. ~7o~r Sept~mbcz 3 letter. you "reaffim~cd" that the City Cotmcil had bastmeted you to inform us of tha administrative process rexleered with ~cspc~t to any replacement or altcmafiv= drainage channel C Aitemafiv~ Drainage 'rUE B:tS AM R~G ORANGE COUNTY FAX NO. 714 990 6230 P. 3 cjHEppARD' ~vlULLTN, RtCNTE¢~ & HAMPTON LLP 3~mes L Markman, Esq. November 22, 1999 Page 2 Channel") and that you would continue to follow that instruction. You also indicated that, as of September 3, the dcvelol~r had not submitted plans for any Alternative Dralm~ge Channel to the City. I would appreciate it if you would ad~sc me immediately whcthe~ the developer has now formally submitted the "conceptual alternative drain plan" that Lauxen Development Inc. informally subn~.tted to the City in 1997 (tile "1997 Alternafiv¢ Storm Drain Plan"), or wkethex the developer has now submitted any other plans or documents regarding any othcx Alternative Drainage Channel. In addition, if any such plans or docttmcnl's hav~ been subznitted, I would like to discuss with you when that tubmission o~ur~ed, the administraeve approval process that applies, and the Gu.r~cnt seaPus of that process. We note that, ill your Septcraber 3 letter, you stated that no alternative dPi"age plan had been gabmiRed "to your knowledge", We assume and expect tha~ your response to ibis lett~ will not b~ lintited to your personal knowledge, but will instead be based on full inquil3r with the City. In addition, pursuant to the California Public Records Act (California Coyeminent Code §§ 6250 et ~.), vie txea'eby request copies of any and all documents in the files of the City that refeI to, relate to, mention, disruss or evidence the redosign, replacement, raodificatlon, relogalion and/or o~her change to the Cumnt D~ainage Channel, including ~vitbout limitation (a) all plans, maps, profiles, drawings, diagrams and readeriugs that visually desGdbe any proposed Alternative Drainage Channel, (b) any test. study, report or other document that relates in any way to any proposed Alternative Drainage Channel (c) the adrninis~ative approval process required for any proposed Alternative Drainag; Clmrmel and (d) any and all internal memoranda, notes and draft documents relating in any way to any proposed Alternative DraLnage Chtmml- While the City has up to 10 days to respond, we would hope that, given the significance of this issue and the presttmably small number of documents involved, the City would be in a position ~o produc~ the rextuested documcfits by this Wednesday, prior to the Thanksgiving holiday· The second issttc relates to the a~ninistrafive approval process required for any Alternative Drainage Channel. You briefly address this issue in your September 3 letter, ~ut discuss only your interpretation of ~our own commcnt~ at the Septamber 16, ~99g public hearing regarding the nccd for a new discretionary approval process if trio developer proposes an Alternative Drainage Chav~nel- AJttho~.~gk we TOE 9:20 AM N'tI&G ORANGE COUNTY FAX NO. 714 990 6230 P. 4 SHF~IDpA,~D, MULL~N, RICHTER & HAMPTON ,Tam~s L, Ma~cr~au, Esq, November 22, 1999 Page 3 apparently disa~ee on ~ sp~ i~not ~ l~r; of yo~ co~ea~ on ~is subject at ~ September 16, 199g h~g, ~os~ statcm~n~ o~o~lY do no~ ~n~ol wh~r addi~ ~scre~a rc~w is req~ed ~ r~pect to ~y rcdesi~ or o~ mo~ficadon of ~e C~cut DrYage C~d- h~, it is ~c Ci~s Dcvelopm~nt Code (~c "~,elopm~t Code") ~d o~cr appli~ble laws ~at govc~ wh~h~ such ~screfio~ rc~ is rcq~. ~u~t ~ Section 17.02.070B of ~e Devdopmc~t C~c, re~slons or ' modi~ca~o~ to site ply, ~g ply, l~cap: pl~ or ~tec~ pl~ w~ch ~ not c~sid~ed ~ (~ desc~bed ~ Se~ 11.02.070A) ~1 be ~nside=ed a mjor reds[on. Major ~ions mu~ be processed ~ough ~c s~e ~pro~ pr~e ~d au~o6~ w~ch F~tcd ~he o~ app~o~Z As you ~ow, ~c appmvcd Fa~ng p}~ for ~e project inclu~ ~e spcmfic~o~ for ~e ~ent D~ge C~el. It is app~t ~ ~e 1997 ~tcma~ve Sto~ Dra folly sub~ by ~e D~elo9~, repres~t ~ maj~ ;~s[on ~at would have to be proCessed in ~c sine ~cr as Tcn~fi~ ~ct M~ ~o. 147~ l ud Development K~cw 9B-13. R wo~d ~so h~c to ~mply ~ ~e ~slde Devclopm~t ' be Rega~o~. ~e ~o~er ~te~fivc ~nage Chennel wo~d ~ep~d~tly r~ewe~ it is diffiGult to ~a~c ~at ~y such Ch~cl would not ~so consd~te a ~j~ rc~slon. We ~so no~ 1997 ~tems~ve St~ ~ PI~ o; ~o~er Alt~c b~age C~el somehow be ~e~ed to boffi ~e Pl~g Co~ssion ~d ~c Ci~ ~cll p~t to Sec6on 17.02.0g00f~c D~a0pment Code. ~ce ag~ if ~ d~eloper B fom~Y ~a ~ 1997 ~t~s6~ Store Drm PI~ or ~o~er ~fivc D~e Ch~ f~ sppm~, we request ~t you specify ~s61ose ~e le~l of sami~s~five renew fit ~e Ci~ ~t6n~ to teq, e ~a ~c supp~g re~ons format dete~on. ~OV-23-gB TUE S:21 AM RW&G ORANGE COUNTY FAX NO. 714 990 6230 P. 5 SHE, PPARD. I~AULL1N, RtCHTER& HAMPTON James L. Markman, Esq. November 22, 1999 Page 4 Pending your written response to this letter, I would appreciate it if you would call m6 before the close of business today so we can discuss these issues luther, Thank you for your prompt attention to this matter. Very truly yours, Jack H. Rubens for SHEPPARD, MULLIN, RICHTER & HAMPTON u-~ Enolosure ' Es (BY FACSLM]LE AND U.S. MAIL) co: Malissa Hathaway McKeith, q. Otaig Sherman, Esq. (BY FACSIMILE AND U.S. MAIL) Ms. Bruce Ann Hab. n (BY FACSIMILE AND U.S, MAIL) Mr, William Hawkins (BY FACSIlV~LE AND U.S. MAIL) Ms. Liz Wfi.liams LOEB<Sd_OEB 1000 WILSHIXE BOULEVBXD SUITE 1800 LOS ANGELES, CA 9001%2475 TELEPHONE: 213.688.3400 FACSIMILE: 213.688.3460 www.loeb.corn --:90v Direct Dial: 213-688-3622 c-mail: mmck¢ith~loeb.com October 23, 2000 VIA MESSENGER AND TELECOPY Colonel John Carrol Army Corps of Engineers 911 Wilshire Boulevard Los Angeles, CA 90017 Re: Your Letter of October 10, 2000 Dear Colonel Carrol: Thank you for your letter of October 10, 2000, which I received this morning. As your office is directly across from mine, may I suggest in the future that you simply. call my secretary, and we can send a messenger. Alternatively, perhaps sending it by facsimile or e-mail might reduce the two-week delay in receiving materials. More than anything else, your letter underscores the idamental problem with the Los Angeles' District's unwillingness to submit to any meaningful independent process for review of the Deer Creek Debris Basin. First, the Corps has never addressed the fundamental problem with Deer Creek - namely that the Los Angeles District used the wrong design storm. Second, you continue to assign this matter to the very engineer, Joseph Evelyn, who participated in the original design of the basin. Mr. Evelyn finally has admitted that design was "unreasonable," however, you nevertheless expect us to accept his latest engineering "judgment" that the project, as opposed to the debris basin, can still handle a 100-year event. Finally, there has been no independent review of anything. The so-called "independent" consultant (which I note was paid for by the Corps) did not conduct an independent evaluation of the debris basin. It merely "audited" the Corps' August 4, 2000 memorandum (in a matter of days) and stated that some of the assumptions were reasonable. You even objected to the Pentagon allowing us to meet with or provide input to this so-called independent consultant, whereas your engineers had daily contact. In reality, you simply selected the parts of the MEI report that you liked and ignored the rest. As the most obvious LOS ANGELES NEW YORK NASHVILLE TOKYO ROME LOEB(:~J_OEB LLP Colonel John Carrol October 23, 2000 Page 2 example, ME1 recommended further studies be conducted, and yet Los Angeles ignored those recommendations without explanation. The bottom line is that the Corps has not conducted the complete, thorough review based upon current data long ago requested by our Senators on November 16, 1999. Worse yet, you have personally turned this into a "battle" between genuinely concerned .citizens and the United States government. From the outset, your staff dismissed our concerns as unfounded. Twice now, we have forced your staff to grudgingly admit to problems with the basin. Even though Mr. Evelyn used the vaguest possible language in his latest August 4, 2000 report, the Los Angeles District's conclusion that the basin holds only 162-acre feet - or nearly 50 percent of the original design capacity - cannot be escaped. Further, we take absolutely no solace in the preposterous claim that the concrete channel can handle 130-acre feet of debris. The original Design Memorandum went so far as to warn against the hazards of "Russian Thistle" blocking the charmel and causing flooding, but you now expect us to believe that hundreds of thousands of tons of debris can pass through it! Your continued resistance to submitting this matter to third party review speaks volumes about the merit of the Corps' position. The Corps' work product simply could not pass muster and you know it. Ill am wrong, then why not submit this matter to the National Academy of Science or to some other independent party for a complete analysis of the situation? Until you develop a truly fair process, Deer Creek will continue to plague you. Nothing has changed in the past year except that we are more certain of the technical problems at Deer Creek. It is regrettable that someone in your institution simply does not address the situation in a professional manner and solve the problem. What follows are specific responses to your correspondence. 1. Thank you for confirming that the Corps has no documentation reflecting any inspections by the Army Corps of the Debris Basin. Such inspections are required by the Corps' own regulations, yet you have kept no records. The absence of any clear records retention policy in the Los Angeles District may be one reason why so many critical documents relating to Deer Creek are missing. LOEB~S,d_OEB ~.L~ Colonel John Carrol October 23, 2000 Page 3 2. Your statement that the San Bernardino County Flood Control District has submitted its flood inundation maps in accordance with the State guidelines is false. Attached is a September 1, 2000, letter from the Govemor's Office of Emergency Services COES") rejecting those maps as inadequate. OES confirmed this morning that the San Bemardino County Flood District has not resubmitted them. Moreover, San Bemardino County Flood District is attempting to exclude any debris ever overtopping the basin in developing the flood inundation maps, thereby negating the very danger about which people are concerned. Do you honestly consider such an exclusion to be acceptable in designing inundation maps intended to advise local communities of the potential dangers of a debris basin failure? 3. Your statement that the San Bernardino County Flood Control District - rather the Corps - is responsible for developing inundation maps is a feeble attempt to avoid your responsibilities. According to Corps' regulations, it is the obligation of the Army Corps to ensure that the local interests develop those maps if the Corps does not; The Corps has done nothing for 18 years to require that San Bernardino County Flood District develop inundation maps. 4. You claim that the deflector levees provide a secondary "line of flood protection," and then you admit that this claim is made without any "calculations... for the debris and/ur water conveyance capacity of the deflector levees." The absence of any actual engineering study makes our point about why you cannot reasonably rely on these levees. 5. Unlike the deflector levees which have never been tested in any major flood event, the Deer Creek Levee successfully held back and redirected flood flows away from our homes in both 1938 and 1969 - a point which your staff has never denied. Further, the 1983 Letter of Map Revision from the Federal Emergency Management Agency CFEMA") shows the Levee as the southern boundary of the AO zone. If the Levee had not been certified to handle the 100-year event, the area beneath the Levee where we live could not have been developed. FEMA long ago acknowledged the Levee's certification, so you cannot rewrite history on this issue.' 6. Your willingness to rely on the uncerti~ed deflector levees for secondary protection, while you personally promote destruction of the proven Deer Creek Levee, is confusing at best. Perhaps you are simply trying to help San Bemardino County out of the awkward position of having sold a federally funded LOEBC:~J._OEB Colonel John Cancol October 23, 2000 Page 4 levee~ without any studies and for a paltry $52,000. The Levee is a substantially larger structure than the two small deflector levees, and it should not be removed until we have fully evaluated and corrected the shortcomings of Deer Creek. As we have recommended to the County of San Bernardino on several occasions, it could easily swap its land to the east of Havenview with the developer and start maintaining the .Levee again. Ken Miller admitted to me, in 1997, that the Levee takes minimal maintenance and that the now famous breach on its eastern portion could be fixed 'without much fuss. 7. With regard to all of your speculative comments about what FEMA would or would not require, I believe it would be more appropriate for FEMA to comment on such issues. Exponent Failure Analysis is one of the leading experts in 'the country on FEMA remapping and debris basins. Exponent is emphatic that the Corps cannot rely on the suppos6d capacity of the channel (which has never been studied) or other flood infrastructure in certifying the basin. By your own admission, neither the Corps nor the County has developed inundation maps, which would form the basis of such analysis. If the Corps is so confident in its interpretation of FEMA's standards, then why is the Corps so insistent that FEMA not get involved? 8. I will leave your comments about the failure of the concrete channel to the engineers. The September 18, 2000 Report from Exponent Failure Analysis addresses this issue and includes excerpts from your own Design Memoranda which refute the District's latest "hypothesis" on the channel. Parenthetically, I have never seen any "sediment transport models" developed in connection with establishing that the channel can carry debris. If these exist, you somehow have escaped producing them in response to the many FOIA requests that have been sent over the past year. 9. With regard to your comments on the embankment, Mussetler Engineering Inc CMEI'') recommended further studies in connection with potential overtopping of the embankment. (8/3/00 Mussetter Report at 8). The Corps ignored these recommendations without explanation. ~ Although you claim that the Deer Creek Levee is not part of the Project because west really meant east, I note that you have never denied that the federal government paid for the Levee. LOEB~,LOEBLLP Colonel John Carrol October 23, 2000 Page 5 10. The State Department of Water Resources does not inspect the basin in connection with its debris capacity as you wrongly assert. San Bemardino County Flood District unsuccessfully advanced this similar misrepresentation in the past. Correspondence dated November 18, 1999 from the Division of Dam Safety clarifies that such representations from other agencies are untrue. You are not going to easily shift blame to the State when Deer Creek fails. 11. I believe the Los Angeles Times Article speaks for itself. I note that the County (and apparently the Corps) dropped its claims about the deflector levees once we publicly poked fun at these claims. 12. The developer has submitted the incorrect hydrology for the /replacement chinreel hookup on four separate occasions, and he most recently failed to provide you with his Sediment Transport Report developed in June 2000. Exponent finally forwarded that study to you last month, The sediment study shows 4 V2 feet of debris entering the channel at the hookup. Despite the developer's failure to provide the Corps with even this basic information, you still elect to support him at every turn. It is difficult to ignore the "coincidental" timing of your correspondence with .his permit hearings before the City of Rancho Cucamonga on the replacement channel.. In closing, although I agree that the Army Corps "has responded to our allegations" as you claim in your letter, you have merely responded in a defensive posture rather than dealing affirmatively and in a positive fashion. We are not the "opponent" as the Corps' suggests. We happen to be the citizens for whom you built the Debris Basin in the first instance. The Army Corps' hostile attitude lies at the heart of our inability to solve these important issues. The Corps has only responded when battered into doing so. May I remind you that, until November 1999, your staff insisted that the basin handled the 200-year event, The question remains: what does the Corps intend to do to fairly resolve this situation? If your response (or that of your superiors) is to continue ignoring the overall problem and relying on the unsubstantiated August 4, 2000 report, then 'you leave us with no option but to continue this battle. LOEB~I._OEB ~,~.~ Colonel John Carrol October 23, 2000 Page 6 As always, I would be happy to engage in some constructive dialogue on this issue. I note that no one from any office of the Corps has ever initiated a single phone call to address this matter in three years. Very truly yours, Malissa Hathaway McKeith MnM:jw 66666666666 Enclosures co: '['he Honorable Dianne Feinstein .(by teiecopier and w/enclosures) The Honorable Barbara Boxer Coy telecopier and w/enclosures) The Honorable Mary Nichols (by telecopier and w/enclosures) The Honorable Dallas Jones Coy telecopier and w/enclosures) The Honorable Joseph Westphal (by telecopier and w/enclosures) Maj or General Flowers, Commander, Army Corps of Engineers (by telecopier and w/enclosures) The Board of Supervisors of San Bemardino County (by teleeopier and w/enclosures) James Lee WiU, Federal Emergency Management Agency COy telecopier and w/enclosures) Dean Dunlavey, Esq. (by telecopier and w/enclosures) LOEB&J..OEB A LIMITED LIABILITY pAP, TNEII.~HIp INCLUDING pI~OFESSIONAL COP, I~OP~ATIONS TELEPHONE: 213,688.3400 FACSIMILE: 213,688,3460 ---:90v Direct Dial: 213-688-3622 e-mail: mmckeith@loeb.cora July 10, 2000 BY MESSENGER AND VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Colonel John Carrol Army Corps of Engineers 911 Wilshire Boulevard Los Angeles, California 90017 Deer Creek Army Corps Evaluation of the Exponent Report Dear Sir: I am disappointed that you have yet to respond to my correspondence of June 7, 2000, requesting: (1) copies of the "as builts" of the Deer Creek Basin and Deer Creek Reception Levee; (2) contracts between the Army corps and the San Bemardino County Flood District; and (3) documents establishing that the Corps has complied with its internal obligations to monitor and ensure compliance by the local operator of Corps projects. We have yet to receive any of the above documents. Lisa Lugar did forward a copy of the contract specification drawings for the project claiming they were "as builts". I informed Ms. Lugar in writing that contract specifications were not the surveyed as builts being requested, because they do not reflect what was actually constructed. We have yet to receive a response. The original Freedom of Information Act CFOIA") request was served by Latham & Watkins in December 1999 - over six months ago. We again urge the Army Corp to comply with its legal obligations to produce documents within your possession. We believe that those documents exist and that your staff simply is not "locating" them to prevent a full evaluation of this situation. LOSANGELE~ NEW yORK NASHVILLE TOKYO ROME LOEBC~LI_OEBLLP Colonel John Carrol July 10, 2000 Page 2 I also write with regard to the issue of de-certification of the Debris Basin. Our understanding is that the Los Angeles District has decided to respond to the Exponent Failure Analysis Report by claiming that the "6% debris slope to the spillway crest" holds sufficient debris such that the basin still satisfies the 100-year flood event. We understand that the Corps alternatively will claim that any spillway or basin failure will funnel debris to be captured by the diversion levees. Hopefully this is not the Corps' intention, because such a conclusion is transparently flawed and is not legalia, adequate to satisfy FEMA's criteria for determining 100-year flood protection. As someone who lives beneath the basin, I do not want the safety of my family dependent upon an outdated, discredited method of slope calculations in the event of a major flood. The notion that the spillway will handle excess debris and/or that debris would funnel to the west and be captured by the diversion levees is just that - a notion. Particula~y given the Corps' own estimates of flow velocities at up to 86 feet per second, it is more likely that the debris will clog the channel as Exponent predicts and cause both debris and water to overtop the channel. The Corps simply should not be speculating about how the basin may or may not perform where millions of dollars of property and people's lives are at stake. We repeatedly have asked that an independent party review the safety issues at Deer Creek rather than the Los Angeles District doing so. Most of the very engineers responsible for the inadequacy of the basin design and the project construction manager responsible for the failure to construct Deer Creek prope~y remain under your command. You have resisted independent review by a neutral third party, and your employees have lobbied FEMA not to undertake such an analysis. Nor has your staff even once contacted our consultants to engage in some meaningful dialogue about what obviously is a serious issue. The resistauce of yoi~r staff to peer review .m~ans that whatever your office generates already lacks credibility. Any evaluation that includes a fanciful analysis of debris slope or debris storage in the spillway will be all the more suspect. In addition to this flawed analysis of debris storage, the L.A. District has yet to account for its reliance on a 1943 storm event rather than calculating the duration and frequency of the general winter storm designated by the Corps itself in the Design Memorandum as the most severe storm. Such general winter storms specifically were noted in the Design Memorandum as storms of more than 20 inches of rainfall per day. Instead Corps used the short- duration Los Angeles area storm for its design on Deer Creek. Such an analysis violated the analysis in the Design Memorandum, the LOEB~:XJ._OEBLLP Colonel John Carrol July 10, 2000 Page 3 concurrent NOAA frequency analysis, and the hydrology map which the Corps submitted to the USGS for peer review on the Project. An analysis of 20+ inches of rainfall per 24 Hours as a 100-Year storm is consistent with the San Bernardino County hydrology manual and the conclusions of a variety of Climatologists. Moreover a 20+-inch estimate more accurately reflects the actual storm events of 1916, 1938 and 1969. I also have requested of both Cornelius Purcell and you that the Corps commit not to process the permit application from The Heights at Havenview Estates for hookup of the developer's replacement channel until the larger issues surrounding the Debris Basin are resolved. I urge that you do not allow the destruction of the Deer Creek Levee - which is a federally funded and constructed levee - until this matter can be fully addressed and resolved. If people are ultimately injured when the basin fails, because you facilitate removal of the Deer Creek Levee, then you will not enjoy sovereign immunity. There simply is too much evidence that the situation is not safe and the actions of the staff your supervise has not acted reasonably in connechon with evaluating the situation. Finally, if the Levee is removed, it is not going to detract from our efforts to decertify the basin. To the contrary, removal of the Levee will intensify those efforts because it will mean that we are significantly less safe in our homes and our children less safe in their schools. Moreover, we have every intention of enforcing the contracts between the Army Corps and the San Bemardino County Hood District that prohibited encroachment on the levees and which further required the set-aside of open space for recharge and mitigation. We have both the resources and tenacity to continue to challenge this situation no matter how long it takes. LOEB<~,ILOEB LLP Colonel John Carrol July 10, 2000 Page 4 I look forward to receiving the requested documents. Thank you. Very truly yours, 477. Malissa Hathaway McKeith [dictated, not read] MHM:Iam 93163102408 LA238377.1 cc: The Honorable Dianne Feinstein The Honorable Barbara Boxer The Honorable Joseph Baca The Honorable Joseph Westphal Lisa Lugar, Esq., Army Corps of Engineers, FOIA Officer Dean Dunlavey, Esq., Latham & Watkins Douglas Hamilton, P.E., Exponent Failure Analysis MEMORANDUM TO: FROM: . DATE: RE: Board of Directors Havc,~view Estates/Rancho Cucaunonga V Malissa Hathaway MeKeith June 26, 2000 Status of Deer Creek-related matters Timre is a less than 15 percent chance that I can get the Dobris Basin decorrifled before the City issues the Replaccment Channel permit to Cristiano within the next two to four weeks. That doesn't mean that we can't stop the permit but it will take a team effort. I have been warning ,Ion Epsten since April that we needed legal and teclmieal support at the City and County levels on the replacement channel. If you want to stop Cristiano grading the levee, you need to co,~sidcr the following actions: A. Exponent must bc retained to corarncnt on the new hydrology for the replacement channel and to attend all future gradlag, planning eon-anission and City Council meetings. Cfistiano submitted the new hydrology in May. Exponent also needs to process an LOMR. for the replacement channel through FEMA, The processing fee for FEMA alone is $3,100. Doug thinks that this filing could rually screw up the situation for C~stiano. Doug said that his time would not exceed $10,000. (I think $7,500 is more likely) Doug is very fair with his billing on this matter, because he thinks it is the most dangerous situation in which he has ever been involved. B. Legal Counsel must be retained now to work on this issue. Jim Markma,~ was at the'grading committee meeting last week. Latham & Watkins would be the best to handle the replacement channel with the City and the Corps; however, Dean is extremely busy in July and would have trouble handling it. Nevertheless, we need competent ~ounsel fanfiller with the facts heeause there no longer is time to bring some one else up to speed so someone else 131'eton K. Lobnor Jut~e 20, 2000 Page 2 ticcds to convince him that this situation matters. The cost of Lath-',m handling all aspects of the repiacement chatreel at the City level is $7,000 C. Negative publicity about the City ne~s to keel~ running in the paper. Anyone who thiztks that the City is going to do the right thing at this point is ignoring what they have done for tltree years. I am putting as much political pressure a~s possible on the County through the Board of Supeotisors, but I can do nothing at the City. D. Each Board member needs to play a more active role, We are at a critical .stage and extra effort now would make all the difference. Board members should personally me~t with each resident at Havenview and RC-5 and contact non-residents so that they really have tlleir questions answered. We have never done so which is why Cristiano has been able to divide and conquer. It takes time, but if each of'you contributed merely five hours per week. it would mal~e all the difference iu getting people to the City Cormell meetings ou July 5 and July 19. These will b~ it~portant City Council meetings E. Fund the appeal. With the appeal briefed, Crockett says that we have an excellent shot at getting a stay if the replacement channel permit issues. There is no economic upside to going to another appellate firm. I use them regularly and they are as expensive a.s Latlmm and don't Icnow the record. In order to go forward with the appeal, Latham needs the Boards to pay the outstanding $33,000 plu. v a $40,000 for the appeal = $73_.Z!~Qg~000 II. Where we are on the Deer Creek Deeerti~cation I will be going to Washington D.C. tomorrow for the fifth time in two months. We are going to win on the basin alecertification, but it is a complicated, politically charged situation that is extremely eontro.ersittl. Both Senators are firmly behind us and their staffs are a~;tively involved on almost a daily basis. The California Secretary of Resources wrote an aggressive letter to tile Pentagon on this matter last Thursday. Secretary Nichol's involvement will really shlke up the Corps because the Corps dependg on the State tbr matching funds and Io~ of political cooperation. Secretary Nichols also is extremely commented in Wasi~ington D.C, and Joseph Westphal is not going to want her complaining about him. This was an important victory for us. Breton K. Lobner Junc 20, 2000 Page 3 Ds What people need to understand, however, is that fixing the basin is expensive and admitting it is too small means the Corps will have to admit that several afthe basins are too small. 'rite people who are responsible For this mistake still centre[ the L. A. District. We have a lot of peopl~ leaking infernoalien to us from (hat office and this is a serious matter for them. The LAX World Airports is writing to the Pentagon about the impacts to Ontario AirporL We presented information .to the Commission last week and there is unanimous support for a complete study. There are other major property owners in {he area who have begun to be concerned about their investments including Costco and Majestic, This type of broad-based support means that Crisliano caraxot continue characterizing this situation as a bunch of NIMBY's, The fact that Latham is involved means that these corporations are taking the matter very seriously. The funding for Los Oso$ is likely to be permanently pulled. This will croat¢~ an uproar becaus,: if it is unsafe to build a school, th~ll it is unsafe to buiM homes, Fund the $I0,000/month to keep Lathanl involved at the federal level.' This situation is extraordinarily time intensive. Dean has txandled all of the direct communications with Secretary Westphal and Secretary Caldera and we do not need a change in the team at this point. Nor can I be as effective. Wc need the clout and me need the political contacts. You can delay thc replacement channel with a stay in the Court of Appeal, but you cannot permanently prevent Cristiano' from grading unless we win on the larger issue of the basin. Even with the [eve. e, people are not safe and we need the flood infi'astrxtcturc taken ca~e of. Brcton K. Lobnor June 20, 2000 Page 4 RESOLUTIONS FOR THE MEETING It. IlL IV. Retain Exponent Failure Ax~alysis to handle the Replacement Channel iss.es. Not to exceed $10,000 (over six weeks) plus the $3, I O0 FEMA fee. Retain l,atham to handle the Replacement Cham~cl issues. $7,000 Retain Latham to prosecute the appeal. $73.000 Retain Latham to continue the De-certification $10,000 per month foc five months or $50,000 Approve funding for local press coverage. Bill? SITRICK AND COMPANY INC- Novcab= 1.5, i999 13 LIt Hawkins President R. sncho CucamonC6 V Bruce Arat Hahn president Flevenvjew ilomeowncre Association clo Euclid Management t 425 Foothill BouleYazd Upland. CA 9t'784 Dcar lvir, Hawld,ls and Ms. Ha,h.n: This letter, when uccepted an behalf af Havenview l{omeowners Association (the "Company*) as provided below, will constitute the Agr~.ment wRh reaper/, to the engs~ement of Sitrick. And Company, Inc., a California corporation ("Sl(rkk') as corporate communicatiords I~lVlsar, spedallot and ~;onsuttent on the followlag ~erms and conditions: · The I-lavcnv~ew Homeowners Associatiom effectlye as of November 12, 1999, has rotab~ed Siltick on the advice of their co~sel, Lithorn & Walkins, to 6Uist in connection with potential liti5ation involving the A ray Corps of Enl;Incus to provide adVi~ and public relations se~,i~c~. Sitrick will wive its customary g~teiner of $50,000.00 as a minimum, ennui fee. In lieu thereof Cnmpnny shall pay Sitrick a non-rcfundublc n~ta/ncr of $1 5,O00.00 as e minimum fen. Sltrlck's time che. rgas will be billed poein.st 0',e retainer at the houriy me.ranp~e of $150 to $460, depending on the person perfonninp~ the sent ices. When the re,a] ncf has bees applled poainst time charges, a,~d itional lime charges in any year will be billed as incurred end Uc payable within twenty days aRer receipt. C~narr, us are computed on a portal-lo-poRal buis for any travel time for meetings held outsl,lc of Sitrick'e offices. Timc Ls blllsd by Sitrick in increments o( o.nc-quuter of an hour. Please review out bills each month upon receipt, If yuu have any questions, please feel free to cull. However, unless you make some palest to mc in writin8 within twenty days of receipt of the bilL, it will be presumed you have no objccriom to it end pc, me to Ihe rcUonableness and necessarlness of tl%e bill The Campany shell reimburse Siu~ck within twerdy days of invoice date fo~ ~y ~d all out of ~ck~ ~stm ~d expends inc~ by S[~ in co~cctiun wi~ its en5~tmcnt het~. }nctudin~ witho~ [imi~tio~ travel ~m, p~l~ ~s~. {0n~ dism ed ph~py clog., ~vmi~m ~ o~ o~*of-~et ~ ~ ex~. Rcimbu.abie cas~ ~ nat ipplie4 ~mi~ ~c ~al~ and will ~ billed men~ly by Sl~k Siszick's c~Cpocmeut hercun4er my be tcrminslcd by chhcr p~ on 30 days prior ~u~ n~ce. All pray is{o~ oftb I~er relating ~ the payment uff~ ~d en~os ~d jndmni~adon will suave any radiation of ~ e~l by eithu p~, In ~c event any employee of Sitrink is required ur rcquestod to participate or provide testimony or other evidence in any Briton, arbitration or other proceedinn, relating, directly or indlr~clly, to our whether or not nUT enOsCamelOt has been tennirmted, ~ Company shell pay Sitrick for the time spent in preparing, for and ptovidlmz such p~ticipatlon or icsdmony, at Sltzick's then standard billing, rates, sad for any cons sad expenses Jncerred in coiu~ectjon ther~wiil~. 21k~9 C~atury hrk ,~asL Suite t1~0, L~o A. ngeb. e, CA 90067 (~lQ)TRa-zar~l F'sx:(31Ol'TRB-~856 15, L999 Company agrees to lades. Sly and imtd harrnlcss Sit~ick, its shat~hoid, cr..% ufficerr., directors, employees and sgcn~s (ca¢h such entit7 or Forson being referred m u an 'ladesniffed l'ersom") ['tom and against any and edl IoIBcs, claims, damages. iiahiiRici, cam and expenses (including. b~lt not |iratied reasonable attomcy's fees} whie~ eny lmlcmntfied perstun may be subject to or incur in connection with the services to be rendered by Sitrick to Company. This paragraph shatl not apply to may such ctalms, d~a~tagcs. liabilities, costs or expenses af an:/lndemnj~:d Ye~on that iLrc judicialiy determined to h~vc resulted from S Rrickes or such other tndcmni~ed per~n's gross negligence or willful misconduct. Each of the prolies hersic agTees to keep this |otter egrccmcat, and the terms m~$ condidon~ hereof, siridly confidentSat, exc~:pt only M may be necusa~, to enforce this letter. Each of the Faxties agrees not to 5olicit for empIoymcnt, nor employ, any graployce of the other duz~g the pending or Sitrick*a engagement and for a perled of two years thereafter. Any sums not paid to Si~ck within ten days when due s~611 be~r interest at the rote o{ Icn peruera per annum. If ar.~lon be cemmeng~ to enforce any provision of this letlet' agr~en~ent, the prevailing par~ shale bc cmi|ted to reasonable siloracy fees. Any conuovcrs~, claim or dispU(c relating to this letter agreement shall bc reached by binding a~httration in accordsflee wlth the rules arthe Amer(cml Arbitration Associatjcn putlevant to an arbitraXlon cnnducted in Los Ange{esCounty, Cslifomia- Judgmentupon ~uGhafbitrafionmy Igcntcr~d inthaSuperiorCourt for Los Angeles. County. CaJifomia. which the perti~ ~rec h~, and hereby ca,sent to. j~arisdi~tion over all such matters. This least eF. reement ~hail be interpreted and enforced in accordance with the substantive laws of the State of. California applicable to cataracts made end ~o be performed therein. Very truly yours, And Co ,~ and Chief Executive Oftira Agreed to end accepted this . .day of 'Company' By SITRICK AND COMPANY INC. kO~ ,N~,E~,{8#NEW yORK November 15, 1999 Pige ) Havenview Homeowners Association c~o Euclid Managemutt 1473 Feo~ill Boulevard L1pi&nd~ CA 91184 Re: HavetlvieW }{olneowfiuts Ansoci,,lion ~qVOICE Retainer for the period bcglnning: November 12, 1999 ................................ $15,000.00 TOTAL DUE ..................................... $15,000.0g pleuc wirc tranffcr funds SITKICK AND COMPANY. INC. CITY NATIONAL BANK HEADQUARTERS Beve~y Hills, California ABA # 122Q1~066 Credit A/C 019-4 16127 CENTUKY CITY OFFICE A~t, Kjcki Vogel Phone (310) 888,6886 or Plear~ m~ke check psyable to: SITKICK AND COMPANY 2029 Century Pm'k Eut, Suite 1750 Lus AnGelera, CA 90067 (310) 781-2g$0 Fcd. ID No. 95-4 198188 DaTe .Hours [(a{C Amount 03/Ot/0O 1,0,3 170.00 170.0(] 03~ I e.'O 0 ' .d 0 t TO_Or) 10:2, O0 Gs3.~23t'C'O .20 L70.OQ 34.00 03/24/00 _59 170.00 8~.OO Dc~ TELEYHONE, CALL ',VlTI~ 1'.4. MCKEITH AND D. DUNLAV.E.Y (.4): W'RtTE QUESTION FOR EPW COMMITrEI'-(.(~) TELEPHONE CALL WITH M. MCKEITI-~ {..6) TELEPHONE CALL WITH J, HESS TELEPHONE CALL %VtTH M. MCKErI'I{ From; Anne DeWnile West Coast Time: FAX SITRICK AND COblPANY iNC. 2029 Century Perk East, Suite 1760 Los Angolee0 CA 90067 Phone: (310) 788-2860 Fax: (310) 788-9463 Pages: . including (his cover sheeL To: Fax-' To: Fax: To: ," Fax: To: Fax: To: Fax: To: Fai: To: Fax: To: ~ax2 To: Fax: To: Fax: To: Faxl !f ~,ou did not receive all pages or experienced problems, please call (31(~J ~Sa-2a~o as soon as ~vossible, Sitrick and Company m C~mmenf~: [] Plmase RagIV I'1 Please Rec:'yda SITRICK AND COMPAlqY INC. December 14, 1999 Invoice submitted I-IAVI~N )flEW E,iTATE$ C/O MAUSSA HATHAWAY MCKEITH LOEB & LOEB LiP 1000 WILSHiRE BLVD. SUITE 1 BOO LOS ANGELES CA 9u017-2475 In Reference To: DEE~ CRISEK LEVEE Professlonad services end expenses through; Current month's professional fees Gutrent rnonth's cxpenses $31.648.75 $725,26 Amount Current profeRslonal fees End expenses 12/14/S9 Credit from retainer account Balance due ' $32.374.01 ($~5,000.Q0) $17,374.01 Terms: Due mqxm pn.t, catation~ Plcisc make cite. ok SF!I>JCK/LiD COMI'ANY INC. l:ederal Tax il) 9.5-4198'1S8 20Z9 CanttRy emuk Fat,, st~tte t?50, z.,os As3(ele$, CA 90067 (3 t0) 788-ZB:~0 Fax (310) 788-2855 HAVEN ViEW Invoice thrmJgh: I 1 ./3O/gg SITRICK ANO COMPANY INC. Page 2 Professional SummaW ~',lNb. DE. WOLFE RUSH LOVING, JR.. LISA WElL SALLY STEWART SHOREEN MAGI, lAME I fours Rate Amount T"E5'5 '315.00 $5,512.50 7.25 300,00 $2,175.00 50.50 235.00 $1 t ,867.50 0.25 225.00 $56,25 53.50 225.00 $t2,037.,50 Professional Services DE'WOLFE I tit t/99 ADW He~d meeting with Ma]issa McKe~th re Havenvlew si~ation. Fofiowlng the meeting, brainstermed with team how to handle situation. hdUdi~j e a~ons to be t~ken, betant/el media to contact, etc. Gay input to. end appleveal a delivc~abh2s m.--me. Supervised due dilige, ce re media coverage. 11115/99 AOW P, cvlewed information sent us by Malissa, disc, Jssed wilh foam where we were ~n foilow-up including backgroundar. what media we should centaur, timing issues, etc. held conference ~all w th me issa and team. 11/1G/99 ADW Spoke with Rush Loving re interesting repuderS at the Washington POSt and/or Nalional Joum~d, NY Tunes, USA Today. Reviewel ruelure situation and brainstoffiqed p0sitioning, sent him ~ilr~w-up material by e-mail and fax. Made folfow~p colt to Maltsea. Reviewed skategy with team moving fone/ard, discussed t~:~v sheteen shuuld present herself at the meeting, b~vltJng Tom German or the LA. Times, etc. Con inued to review materials ~sent by Maltese. 11/18/99 ADW Held conference col| with Marlsea and Bill. Held follow-up strategy session with team. Spoke to Rush Loving re progress 'w~th WaShin~nn oat, National Journal, 11/19199 ADW Held disc=des/on with team on other media to purSUe, strateSy re handling oily courtall an{3le. 11/22/g9 ADW Discussed all media contacted ta date. Reviewed and edited backgrounder, media memo, Discussed peiitiorling of stoP/wRh media. Called and discussed stow with two reporters at me Wall Sireat Journal Sent them matedab. Called produce' at Dateline. Updated M~is.s= wt~'e thi~s stood, strategy moving fenyard, 11~3/99 AOW spoke with producer deity ende~son at date0ne and sent her materials. t sent motor(ale tO mldy pastor at the waft stree journal. 11/24199 AOW Spoke furlher with Dateflne producer and Wail Street Jouma~ te(xtter. ,Sent her additional bfermatlon on situation. 1112919g ADW I te4d cu~ferenca call wRh Malissa and I:1111. Made foltow~p media t, atis. Discussel strategy moving forward with team. Ho~ 3.50 2,50 Amount 3.00 1.00 0.75 2,75 1.00 1 ,O0 2029 CentuP/Panic Eautq Sultc r/SO, Los Angeles, CA 90067 (3 t0) '/88-2850 Fez (3tO) 78t1-2855 FtAVEN VIEW hiveice through; ' 11/30/99 SITRICK AND COMPANY INC. 1130/99 A(::)W Held strategy sesslurl With team, Spoke with producer et dateline who said she is passing the slop/on to NBC nightly news, Called 5'iend el 60 M~l:tutes 2, made slight revisions to, and sent rlcr background informlion and a~kcd her to pa.s:5 infof'ma~on on to CBS Nighfly News. SUBTOTAL: LOVING 1/18/99 RLJ C~dled Washington Post writer about stop/, and'red wl/Vine DeWolre, try to reach NationaJ Journal editor. Itl 9/g9 Rt, J CoOrdinated fact sheetand p(acement ht Washington Past with Anne DeWella, called National Journal editor again. 1/22/99 RLJ Studying ta(klng polnL$, pro Sting Io use them, c.'dled Weshingto~ Post again. foxed materials to ~shlngton Post. RLJ Talked againw~th National Journal. also put together a packet for them, coordinaied with Anne DeWella, 1/24/99 RLJ Talked again with Washington Post, rcported resulls to Anne DeWella and Lisa Welt. Page 3 Hours Amount 17.50 1.50 t 25 1,75 2.25 0.50 SUBTOTAL: MAGI'tAME 11110199 $M 11/11/99 SM 11112./99 $M 11/13/99 SM tillS/g9 SM t1/16/99 SM Meeting w/poten~ual new client (Haven View Hameo'.vn~rs A~socialjan) regarding Deer Creek levee media plan, InclLtdln Anne and Lisa Well end Loeb & Loeb at~.omey; debrief Men ice Masuda Po~lowZng KNX Business Hour appearalice: dinner wi~ LA Times rapedot Ed Beyer and Dally Journal rapetier Marry Berg, Write p.r. proposal with Lisa Well for Haven View new allant; s~b'atecjy meeting wi~h ADW and LW, meat w/ADW and Lisa regarding action plan; review documents, begin research, 13~cjin draft of backgrounder, etc. (HAVEN VIEW HOMEOWNERS ASSOC.) Research on army corps; beckgroundet. Work on baekgf'ounder, research an Army Corps; vado,,Js discussions w/Anne. Lhldao Maltese M, Bill H, review or background metedsis, letterm. etc, Discussjane w/Jim Re/nay ~uld Ed I~eyef et the LATrnas. Backgrounder convetsatlorl w/Bll Haw~ns. Usa Waif; research on army cams, inducting calls to LA Time~ repcxler end others, Work an back rounder, discussion w/P,u~h Loving con~emLng Washington media etc, ~afls to Wash rigton, etlv tonmental group rega~Jing LA iRNer rompedsons and Army Ce'ps work, sic, [ 7.2G 2.175.00] 4 ;J.00 3.00 3.00 5,0o 5.00 SITRICK AND COMPANY INC, {AVEN VIE'V'/ Invoice throu~l: 11/30/90 11117/99 $M 11118199 SM 11119/99 $M 11/22/99 SM 11123/99 SM 11124/99 SM 11129/99 SM 11130/09 GM Review or bad,ground materials. indudlng writing Of bacJcgrour~er; prep for city counct meetin , including various discussions wlBffi Hawkins, Lisa,/~lne. etc. Trav~lo Rancho Cucamortga to attend ~:ity council meeting. Also various discussions w/repOders from KNBC, FOX. LA Trnes, NY Times. Vadous discussions WlADW. Lisa, LA Times ropedera, Fox reporter, KNBC produ~'er. etc. Also BIll Hawkins, Malissa McKelth. COntinue work on backgrounder, DiscussiOns W/Bill Hawkins and Ma(~sa McKelth regarding r4oxer/Felnsteln biter, end tape fr~n city council meeting. Also discussflax Boxer/F=lnSteln Iett~ to LA Times repadet. Calls to various reporters, Including Los Angeles T~m=s, New York Times, FOX, etc. Work on final revisions to backgrounder; review new doouments, materials. Meet w/Usa, Anne. Changes to beck(trounder,, calls Io media, Including LA Times, NY Times, N8C4, UPN13. FOX11. C~I Io Sr. Producer a| ABC News. Also include follow up memo and materials fsxed to reporters. Revision of bar_.kgrounder, research on ether Army Corps Involvement. VadouS discussions wJMalissa McKeith, ADW, LW. Various discussions w/reporters including sr. producer st ABC News rage'cling call to Joseph WestphaL Also discussion with Sat1 Fnancisca -Examiner environmentat repOrter. Follow ups with UPN, FOX, LA Times, Meat W/LW. Order McPhee book. Call to Today st~w producer,/~1C producer. Fox reporter, write memo for reporters. Follow up with San Francisco Examiner reporter. CAllS tO media, including ASsociated P~ess, Los Angeles Times. KNBC. ABC, Daay Bulletin. NBC (Today show}. UPN. KNX, etc. Conference with Meliasa McKeith and Dill Hawkins, including ADW regarding sLatus, other duties. Briefing Call to KNX/CI3S Radio reporter Myma Robarts; also follow up with elher media, Baxer's offHe. eta. SUBTOTAL: ~TEWART 11/22/~9 $~ Diecu~sion Wl Lisa Weil re: media inIer~t ~nd i~3tentiai re/~od. ec~ at USA Tod~ and KNBC, 0/99 LW m|g w/poteGtlal new client L~b end Loeb 8~d ~o D, Gnd Sh~n m Cu~m~ge h~eo~v isles Page 4 Hours Amount 10.00 5.00 2,00 5.50 1.00 53,50 12,037,501 0.25 0.25 56.251 (3 [O) 788-2850 F~. (310) 71t8-ZS55 invoice thr~h; 11111199 LW 11/12/99 LW 11/15/99 LW, 11116/99 LW t1117t99 LW 11/18/99 LW 11/19199 LW 1 t122/99 LW 11/23/99 LW 11P24199 LW 11/25/99 LW 11/2oJQ9 LW 11/30199 LW S{TRICK AND COMPANY prepare proposal and memo re sfrategy plan for media and political ac~idn; cant, wl Shoreart re Haven Itt~}vmeers Assn; cQfff. wl Anne fax memo to Malissa Mr, Keith; review does from client review of memo from arty/client in Haven HorneDwhet,3 Assn as new diefit; mtg wl ,Nme D. arid Sheroan re acth plans md mr'dlo Implementaria: telec~n to David Thompson at Latham re case ccnf. w/anne D. and shoreon re~ Haven View HorneDwhom and Army Corps ~ssues, taleIcon to Melissa Mckeith re strategy; research re Army Corps; calls tO LeLhem; Envtre ocnsultants and EPA re Info on Army corps, memo [o Ruysh Loving re media placement of story in C)C; review of Itrs end info from client re requesl to Army Co~$ to examine issue end conduct safety cv~u~ti~'l. conf, w/Anne D, and Sheroan re: rncdla pitches, City Council preperatiort; mtg wl client: review of resem'd~ on ,~zTrsy Cotpy issues and levee issues: caTIs to environmental consultan(s; calls to reporters; c~tfi to Bill Hawkins re background info teiecnn w/rptr re story - NY '~mes, LA Times, David Garda Fox Nc"ws; fax memo to David Garcia wl info on issue reseerc~ matef Lois on Army Carp and review beckcjrounder for facts of case. Teldean wl Bill Hawkins and Sheroan. Prepare for CiW C~unc~ mtg; travel to Ranchn Cucagmong and aftend City C~uncil mtg. Conf. wl rptT for LA l~mes, Bliss Gee, Conf. w/Bill Hewidns; teJ]con wl Bill t lawkiss call wl Client to review Ciht Council mtg 0rid celts to reporter at LA Times, Mem<~ to reporter w/research and lettees to Corps: review of into from Lathes; review of levee research; mtg w/Ainne and Shoreart to discuss ~lrelegy and rnedla pitch. review research on disasters and idttcrs from arty; mtg wl Anne and sheteen; telef con wt Rush re: DC media and fax intO; ca(Is to Fox; LA Times; NY Times; memos to Malisse Mcketth; revise draft backKgreunder conf. w/Anne and Sheteen and Mal|ssa McKelth; pitching to NY'1', USA Today, LA 'T'smes, Fox end Ch 4. Finellze background info rnemn. Calls to Boxer s(Rff and to An'ny Co~0s - Bob Joe. Memos to Rush Loving re Journal slory and background snfo. Review research on Amy Corps calls to Fox, Ch 4 Io tallow u~, Cal( to Army Corps - Bob Joe~ Memo to client c~ttle to Riverside press Enterprise, carl from David Garda - Fox News,. fax memo end into to U~;A Today, review research from eJlent review memos from client ~l response to client confl Anne D and Sheroan re research and media srdtegy, cells to David Tl'mmpson at Lathes, calls to ReD Joe at AffTly Corps, Calls to RIverside Press, Fox News, Ch, 4, review reseafd~ ull other floods from clients. m(g w/Anne 0 end Sh~e~ re meffia slratc<Jy, ca(b to BOb Joe, David thofnpson. David Garcla, Fumeil Chatman, Michael Jacks<~n Show. Phune bdermg wl Keyin Smi~ from Dal[y Bulletin end Myma Robads Page 5 Het~rs Amount 2.50 2.00 3.50 5.00 10.00 3,50 4,50 7,50 1,00 2.00 0.50 2.50 3.50 2029 Ccatur/Perk East, Sails. 1750, Los Angeles, CA 900~7 (3t0) 788-2550 Y~x (310) 788-2855 HAVEN VIE'V,/ Invoice U~rou~,l'~: SITF~ICK AND COMPANY INC, -KNX, Memo end background meterlois to KNX aand Dally Bulletin and Riverside press, cell from IDaivd GOtCi-d SUBTOT~.; Total time Gharges Summary of out-of-pocket expenses FAXES MEALS AND LODGING MISC, ON-LINE RG<;EARCH POSTAGE AND DELIVERY PUBMCATIONS AND ADVERTISING TELEPHONE SERVICES, CELL, ON-LINE ACCGa~, FAX, ETC. TRAVF_L & PARKING WORD PROCESSING Total out-of-pocket expenses Page Aznount 50.50 11,867.50] 129,00 $31,648.75 130.00 65.21 38.38 6.12 9,15 21,35 329,38 7.26 118.35 $725.26 2029 Ceobxy Padc East, Suite 1750, Los Ax:gdes. CA 9O067 (310) 788-7-850 Fsx(3X0)'/88.2855 SITRICK AND COMPANY INC. LOS A~NGELES~L~'W yOf;tY, A~tASH~NGTON ~ Jonuary 20, 2000 lhvoice submitted HAVEN VIEW ESTATES Mr. Bill Itawkk~s President Rancho Cucomonga 10400 Bani:ma Avenue Fontaria CA 92337 In Ref~enGc To: DEER CREEK LEVEE Professione, t.sentlccsandcxpen~esthrougrt: t2/31/99 Curm.t mon~h's professional fees Currefit mon~'l's expcnse~ * $21,547,50 $1.551.72 ' ,a~mounl. Current professional fees end expenses Pre~ous balance $23,099.22 St 7,374.01 Balanco due $40,473.23 *Exper~es m c.5afgcd whr~ p.i~, Ltte~fOre dacy may ~ ~m = pdor~de~ ~l~c ~ke chee~ ~:~k tot S~CK A~ ~MP~ ~C- Fermi Tax ~ 9~ 198788 2029 Cc~tu.~ P~zk East. Su[I~ t750. Lo~ Angeles, CA 90067 !3tO) ?sa-2a50 F~ 0 tO) 7~a-28ss t-tAVGN VIEW Invite- through: 12/311<.)9 AND COMPANY INC. Page 2 ANNI:: 0F_V~QLI-E ' RUSH LOVING, JR. LISA WElL SHOREEN MAGltAM~ Professional Summary Profc'ssional Services Hours Rate AmoUnt 19.00 ~ "'~,;5.00 18.50 300,00 $5,550.00 18.25 225.00 $4,10625 26.25 225,00 $5,906,25 CONSULTING 12./lf99 ADW Followed up 'wN't Shells Muto of W,SJ end Maltsea, and Bill, after their intenAew. Sent mateflat to Shetie and had discussions wilh her regarding these, Discussed with her and Malissa the kxJIstlc~ of meethip at RC tomorrow, 'I2DJ99 ADW Traveled to Rant.he (",ucamQttga and participated in interview between Shcila Muto of the Journal and Mallass, Bill, Mark and Malinda. Traveled with mpQ,'ter to levee site, P, etumed to LA. 12/3/99 ADW met with team to discuss media strategy moving fopNard relative to meeting in Washington. Conveyed our th{nking to Melisse of~ this s<;ore. Reviewed document she sent to Sheile, 12/6/99 ADW Spoke with Sl'leila to ascertain status of sloP/, piles or1 additior~al information to her, spoke with malissa and bill fa stor',,f StatuS, possible washington post interview. called boxers office to see ir she would consent to interview wilJ~ juumal. spoke with rush rc IogistiCs of washlngtofq visit. spoke with teem te ether media foltow-up. 1217199 ADW Spoke with and e-mailed malissa several timesre oumal stoW, metin tomorrow, potential follow-up with washingto~ post, national Journal, discussed same with Rush Lov~ng, as well ~ the Lehmr Report. Held a h couple of conversations w;th Sheits Muto re further information s e might need, eoint~d her in rtght direction. Spoke with team about media sloP/ following outcome of meeting tomorrow. 1'2./8199 ADW Discussed outcome at' meeting with Corps with Melissa. Strategized media moving forward with teem, including pushing rnorat~'ium Issue. E-mailed copies of articles to eft concerned, discussed washi{retort post, lehrer report fofiow-up with Rt.ffih in Washington, caned shells to let her Iq~ow eRlc~e was balanced and we 6ppre;iated thaL 12/9/99 ADW E)is~ssed and diredad media (ollovmp of team re LA Trile$. Daily Bulietln. Dave Gettie. eU',~ local media, etc. Discussed pursuing Washingtot1 Pest, Hellorust JOUrnal. Leher report storie. s with Washington office. Discussed whether to pursue haititot IsSUe involving Sian'a Club. Held a couple of conversations with Matlass. 5111 Hawkins. o~q meeting outcome. Cha~ged team with secudng Boca letter for media. Researched additional media opporturtitJes mevk'~ topNard. Hours Amount 2.00 9,00 1.00 1.75 2,00 20Z9 Cct~t~7 Pa~; East, Suite 1750, Los Aisg, ele=, CA 90067 (3 10) 71S8-2850 Fax (310) 788-28:~5 HAVEN ViEW Invoice through: 12/31/99 12/14/99 ADW 12/1/g9 RLJ RLJ 12/2/99 RLJ RLj 12/3/99 RLJ 12/6/99 RLJ RLJ RLJ RLJ RLJ 12/rl99 RLJ RLJ RLJ RLJ RLJ RLJ l?-.Ja/g9 RLJ RLJ RLJ RLJ RLJ 12/9199 RLJ SITHICK AND COMPANY INC. Spoke with Bruce Ann end Bill re upcoming meeling and motile activity at this llme. Talked extensively With contact at Wash ngt0n Post about story, (Incitedes 1 ~t. and live min, ur t~av~l time,) Prepared ~:td sent more backWound materfal to conla~'t qt Washin~on Post, Trying to reach c~n~Ct at Lehrer. TracVJng down whereabouts of Lehrer reporter and ca ng National Journal again. Coordinating with Anne r~eWolfe. Planning and coordinating Gill6 to media. Receiving documents, phone call wE h Anne OeWo fe on Wed. rlleeting, p arming media placement. Phoned Washlngtnn Post offedng inlerviews wtUl homeowners, Trying to coord aate DC meeting. Studied maledal conferred w th ,atone DeWolfe talked with National Journal. Talked witl~ Juurnal, emailcd, searched for sloey on intochat. Planning post pilch, DisGussad Washington Peel wia~ Anne DewalTo, re~d e-mail, checked Peel sources, Talked With source about approaching D,C, bureau o~ LA Times, talked with WashMOron Post. e-mat la Anne DeWella, Called media source about which edffition~ publications could be targeted, Suggested using Sierra Club in O,C, sent e-mall Io. Called media ¢xmlact about whereabouts Of Lehre~ ~elxN'ter. Checking on Washington Peel Editor, Trying to reach washington Post and Lehrer staffet, T~ing to ~each Lehrer, Call Io LA concerning Wall --qtr~el Journal slory, Checking and anely'z4ng Wall Sireel Journal story. Called LA about WashingIon Post and National Journal. Page 3 Hours Amount 0,25 4,00 0.75 0,50 1.00 0,25 0,25 1,00 0,25 0.25 2.00 1.25 O,2b 0.50 0,75 0.50 0.50 0.50 0.50 0,75 0,2,5 0.25 0,25 2029 Century Pink East, Suite 1750, Los Augale=, CA 90t16'1 13 1.0) '78R*~.g.',g l:ax (310) 788-28~5 VIEW Invoice through; 12731/99 SITRICK AND COMPANY INC, 12/9/99 RLJ al_J RLJ 12/t0/<J9 RI_J 12./13/99 RLJ RLJ 12/1/99 SM 12/2/99 12/3/99 SM 12/6/99 SM 12/7/99' SM 12/8/99 $M 1219199 SM 12/10/99 SM 12/13/99 SM 12/14/99 SM Calle~ Anne DeWDire abuut Lehrer News Hour reporter. Forking with Lisa Well CaUsal A~r~e DeWrife and reading e~nail. Called Lehret repQ~er, Sending cover note to Lehrer, Overseeing prep. el' packet for Lehrer. Conference call with Mallsea McKeith, ADW USa Well regardin~ progress of case. Separate cai s to Mal sea, and Bale Phifibosian. Also called Sylvia Tongue at KCBS, Craig Be~gts~on at ABC News, Myn~a Roberrs at KNX, Tom German at LA Times, Oaw~t Rusol0V at UPN 13, etc, Wrote memo, and se~t package to Syl',~a. CaJI to Bob Phllibos~n; follow up ca{is will1 repealere. Shteg~;e, meet with LW, also joint Cells. Review motedais from Malissa Mc, Koith, p~t another c~ll into Ph~Jibosl'an, revise b~:kgroundor materials. Meet writ ADW and LW'regardin0 ID.C. meeting, press release and pns, ss bderr, gs. Various discussions and co{Tespondence wilh Bi{I Hawkins, B~b Phiilbesiarl, Maltese McKeiib, ADW, LW regarding upcoming D.C. meeting, Ix~sible media stories, and sln'xtcrjy. Various discusstorts w~th ADW, LW, RL. regarding W~J and Washington Post stories, ss wall as follow up with ether media and c}langes to baol<grounder. Various discussions with Melissa, Mark E, ADW, LW, Dill Howltins, etc, regarding Washington D.C, meeting, Also relay int'om'atlon regarding C),C. roesUng with Corps to v'~'t~Js reporters, including Daily Bullsting, LA Times, Fox, CBS, etc. Prepare memo fer raportors, etc. Wait and take ~'olk~w up ca{is ~'orn reporters, Various discussions with reporters wozldn0 on ~to~es about the D.C. meeting, including Los Angeles Times, Daily Bulletlng KNX. Also clisc~ssions with Mark Estupin an, Bill Hawtrine, Mslisse Md<eith, ADW, LW, BaGo's ofrr, e, sic. call to national pUbliC radio reporter andy bowers regarding possible story, also fo~low u with rnetetials to be sellt ate, follow up calls to dine gee at os artgates ~es and kevin smith st the d~y bulletin. Memo to Hawkins, Estupinian, Hahn and Mc, Keiih. Also discussions with LW and ADW regarding media status. Follow up calls tO reporterS. Meet wUth AOW for co~lferenc~ <-'~ll with P, rucs Hahn, Bill Hawkins, eta. 'l'eke call from Elise Gee at LA TImes, Page 4 I tours Amount 0,25 0.25 0.50 0.25 0.25 0,50 5.00 2.00 2.00 1.00 1.00 4 4,50 1.50 2.00 1.00 HAVEN VIEVV Invoice through: 12/31/99 SIT'RICK AND COMPANY INC. 12/21199 SM 12122/99 SM 1~I~9 LW 12J6/99 LW 1217199 LW 1 ~'f61cj.~ LW 12/0/90 LW 1211 7199 LW Call to Btse Gee at LA Times regurdi~g feature length story; also discussions with Mailsea McKelth and/SOW regarding same. Vadous discussions wilh LA 1lines reporter Elisa Gee regarding upconllng feature length story on rJeof Creek Levee; also discu.ssions w~th Malissa McKoith regarding same. conf. w/Anne Q. Shotsen re media coverage, research; calls wl Well 8L journal, Press Enlerpdse. LA Times. Ch 2 re story un Army Cams; c~l wt David Thompson Worn Latham on palfiScal/BOxer strategy md interview; call to Michael Jackson re issue; call to Army Corps-LA re slatUs of matter; memo to Oa~ BullsEn and WSJ wl background inf<~Tnatiorl and research on o~er Corps levee projects; call (o Matissa Mc~eith conf. wl Anne D. m WSJ and DC mtg., conf. re Senalor Boxer interview wf WSJ and political strategy; review of research and bad,~grounder re examples of other disasters, Conf. w/Anne D nd Shoreerr M re press atorit,..s end strategy for outcome of DC Am~ Corps mtg., fe~Aow research, calls wl allon(~;, calls to press (c tnfo tar s(ory review of Well ~L Journal story, celts to client, coils to media to follow tip, strategy wl Anne U and Sheteen re: more media placements, and City pressure re moratorium. Call wl Bill Hawkins calls to Elise Gee, LA Times, Tom German, clients, Mark Gslupian, conf. wl Anne Gnd Shereef1 re media strategy and polttrcal story to pursue cone w/Anne O. re media st~e~te~y SUBTOTAL: Total time charges Summary of out-of-pocket expenses FAXE$ INTERNET AND O I1 IER ACCESS PROVIDERS MILEAGE ON-LINE RESEARCH PHOTOCOPIES POSTAGE AND 13ELIvERY PUBLICITY FEES AND EXPENSES TELEPI4ONE SERVICES, CELL, ON-LINE ACCESS. ETC. TEMPORARy HELF~ 'I'RAVEL & PAP, KING Total out.-ol'. pocket expense~ Page 5 Hours Amount 1 ,OO 1' .00 5.00 2.00 4.50 4.00 2.50 (3.25 [ 82.00 21,547.50] 82.00 $21.547.50 53~J.50 59.83 78.10 156.50 29,50 75.60 55.73 66,14 351.33 80.27 65.62 $10551.72 2029 C~.Nry P~,t'k ~ Suite 1'7~0, Los Angctcs, CA 90067 (310) 788-2.850 Fnx(]tO) T88-2855 SITRICK AND COMPAlqY INC. L~35 ANGELIISZNE~N YORKANASH|N~ON OC Fcbruarf 22, 2000 Invoice submitted to; HAVEN VIE'VV ESI'ATES do Euclid Management P.O. Box 1510 Up[and CA 9178,5-1510 In Reference To: DEER CREEK LEVEE Protgssional services and expenses through: 1/3(/00 Cuffant month's professional fees Current month's expenses · Current prn~ssional fees and expenses Prevk'~ds balance $531.25 $2,042.70. A~aunf. $2,5/3.95 ~40,473.23 Balance due $43,Q47,18 *Exper~cs ~re charled wbm I~id, ~efefo~e ~cy m=y h from · prior T~: Due u~ pr~ti~ Pt~ ~ d~k ~y~b m: SI~ AND ~ANY INC. Fed¢~l Tax ~ 95-4198788 2029 Century Park Ea.~I, Suite 1750, Los A~x~lcs, CA 90067 (310) '788-Zll50 P~x (310) 788-2855 HAVEN VI~'W Invoice through: 1/'31/OO SITRICK AND COMPANY INC. Name ~-~VEIL SHOREEN MAGHAME Professi~nal Services Professional Summary P,~ge 2 CONSULTING 1/10109 SM LW 1117/00 LW Hours Rate Amount .... 1.25 Z45':00 $306.25 1,00 225.00 $225,00 review Is times story;, c.~11 to elise gee to fix error in steW. discuss{o~ with ADW and LIsa regarding moving forward, AJso return call from David Garcia. ~_dll to David Garda - Fox end pfoductlon company SUBTOTAL; · ToWel time charees Summary of out-of-pocket expenses ADMINISTRA I'IVE SUPPORT and TEMPORARY HELP INTEr, NET A~D OTHER ACCESS PROVIDERS MEALSI AHD OR LODGING ON-LINE RESEARCH PHOTOCOPIES SUPPLIES TELEPHONE SERVICES, CELL, ON-LINE ACCESS, ETC. Total out-of-packet expenses Hours Amount 1.00 1,00 0.25 2,25 531.25] 6,33 5.61 2.95 2,0t6,66 2.20 2,96 5.77 $2.042.70 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF JAMES J. SIMPSON JAMES J. SIMPSON, ESQ., BAR NO.: 17220 NEWHOPE STREET, SUITE 101 FOUNTAIN VALLEY, CA 92708 (909) 938-5467 149386 ATTORNEY FOR: PLAINTIFFS HAL HAZEGH, TONY FIORENZA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO HAL HAZEGH; TONY FIORENZA, individually and On behalf of those similarly situated, vs. BRUCE ANN HAHN: Plaintiffz, CASE NO.: [CLASS ACTION] COMPLAINT FOR DAMAGES: BREACH OF FIDUCIARY DUTY; FRAUD CONVERSION CONSTRUCTIVE TRUST MAMLON SAMPSON; KATHERINE WYANT; THOMAS BRADFORD, ESQ.; WILLIAM E. HAWKINS; DOES 1 THROUGH 20, INCLUSIVE, DefenDants. Come now, Plaintiffs RAL HAZEGH and TONY FIORENZA, and allege: 1. Plaintiffs are individuals and are now, and at all times mentioned in this complaint were, owners of lots in Haven View Estates Homeowners' Association (hereinafter "the association") located in the City of Rancho Cucamonga, San Bernardino County, CA. 2. Defendants BRUCE ANN HAHN; MAHLON SAMPSON; KATHERINE WYANT; THOMAS BRADFORD, ESQ., and WILLIAM E. HAWKINS (hereinafter "defendants") are now, and at all times mentioned in this complaint were, individuals who resided, in the City of Rancho Cucamonga, 5an Bernardino County, CA. CLASS ACTION COMPLAINT FOR DAMAGES 1 3. Plaintiffs do not know the true names or capacities of 2 defendants DOES 1 through 20, inclusive, and therefore suc them by 3 those fictitious names. Plaintiffs a~c informed and believe, and 4 on the basis of that information and belief allege, that each o= 5 those defendants was in some manner legally responsible for the 6 events, happenings, injuries and damages alleged in this complaint. 7 4. Plaintiffs are informed and believe and thereupon allege 8 that at all times mentioned in this complaint defendants BRUCE ANN 9 HAHN, FH~HLON SAMPSON, THOMAS BRADFORD, ESQ, arid WILLI;e4E. HAWKINS 10 directly or indirectly endeavored to develop, build and/or sell 11 real properties, within and/or a~jacent to the properly identified 12 herein as Haven View Estates, for personal gain. 13 5. Plaintiffs are informed and believe and based thereupon 14 allege that in conducting themselves as alleged herein each 15 defendant had, and intentionally served, personal interests and 16 motives separate from and contrary to the interests of the members 17 of the association. 18 6. Plaintiffs are informed and believe and thereupon allege 19 herein that ir~ conducting themselves as alleged in this Complaint, 20 each defendant Cngaged in a common venture according to an agreed 21 course of conduct and was the agent and co-conspirator of each 22 other defendant and each defendant is vicariously liable along with 23 his co-conspirators for the acts and injuries complained of herein. 24 7. Plaintiffs HAL HAZEGH and TONY FIORENZA bring this action 25 on their own behalf, on behalf Of all persons similarly situated 26 and on behalf of the association. 27 8. The class plaintiffs HAL HAZEGH and TONY FIORENZA 28 CLASS ACTION COMPLAINT FOR DAMAGES 1 represent consists of members of the association and all are owners 2 of real property located in the City of Rancho Cucamonga, County of 3 Los Angeles, State of Cali£ornia commonly known as Haven View 4 Estates (hereinafter "the property"). 5 9. The class plaintiffs HAL HAZEGH and TONY FIORENZA 6 represent numbers approximately 50-100 persons and is so numerous 7 that the joinder of each member of the class is Impracticable. 8 10. There is a well-defined community of interest in 9 questions of law and fact affecting the class plaintiffs HAL HAZEGM 10 and TONY FIORENZA represent. The class members' claims against 11 defendants involve questions of common or general interest, in that 12 each class member shares similar status within the class, has 13 suffered similar injury and is likely to suffer continuing similar 14 injury due to the conduct of defendants.as alleged in this 15 complaint. These questions are such that proof o£ a state of facts 16 common to the members of the class will entitle each me~er of the 17 class to the relief requested in this complaint. 18 11. The members of the class plaintiffs HAL HAZEGH and TONY 19 FIORENZA represent have no plain, speedy, or adequate remedy at law 20 against defendants, other than by maintenance of this class action, 21 because plaintiffs are informed and believe, and on the basis of 22 that information and belief allege, that the damages to each member 23 of the class is relatively small, and that it would be economically 24 infeasible to seek recovery against defendants other than by a 25 class action. 26 12. Plaintiffs HAL MAZEGH and TONY FIORENZA will fairly and 27 adequately represent the interests Of the class, because they 28 CLASS ACTION COMPLAINT FOR DAMAGES 1 are members of the class whose claims are typical of those in the class. 13. expenses 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 Plaintiffs have incurred, and will continue to incur, for coats and attorney fees necessary for the investigation and prosecution of this action. Those attorney £cus and other expenditures will result in a beneLit to all members of the class. 14. association, Defendants are current and former directors of the an association that was formed and now e~ists for the purposes set forth in the [1] Articles of incorporation of Haven View Estates Homeowners' Association (hereinafter "the articles"), [2] "Declaration of Establishment Restrictions of Haven View declaration"), and {3] "Bylaws of of Conditions, Covenants and Estates" (hereinafter "the Haven View Estates Homeowners Association" (hereinafter "the bylaws"), and said defendants are and at all times mentioned hereln were subject to the terms and requirements set forth in those documents. ]5. The express purpose of the association is the preservation and management of Common Areas and Equestrian Trails within Haven View Estates. It was organized to "manage, operate, regulate, control and regularly maintain, repair, replace, and restore in good, clean, attractive, sanitary and well-kept order,. repair, and condition the Common Area and Equestrian TraiLs or any portion thereof together with all Improvements thereon, including the private roadways, street lights, security entry gates, irrigation systems, storm drains, decorative lighting, CLASS ACTION COMPLAINT FOR DAMAGES 4 l'equestrian fences" and "maintain all landscaped areas therein in a 2 healthy and thriving condition, free from weeds, trash and debris." 3 I~ is also charged wi~h en£orc~ment of architecLural and 4 landscaping restrictions. 5 16. The association may borrow money only if more than two- 6 thirds of its mcmbcrs vote or give their written assent and only to 7 improve the Common Area or benefit the Association. 8 17. The Board of Directors of the associalion is required to 9 prepare and distribute accurate budgets and financial statcmcnts to 10 the Members. 11 18. The Declaration, Bylaws, rules and regulations, 12 membership register, books of account, financial statements, and 13 records and minutes of meetings of Lhe Members, of the Board of 14 Directors, and of its committees shall be made available for 15 inspection and copying by any Member of the associatiox~ or a 16 Member's duly authorized representative at any reasonable time and 17 for a purpose reasonably rclated to his interest as a Member. The 18 Board of Directors "shall" establish procedural rules to 19 accommodate inspection requests. 20 19. The declaration and by-laws provide that every director 21 shall have the absolute right aT any reasonable time to inspect all 22 books, records, and documents of the association and the physical 23 properties owned or controlled by the association. The right of 24 inspection by a Director includes the right to make extracts and 25 copies of documents. 26 20. $ectidn 5.1 of the Declaration authorizes assessments to 27 pay for ~the general operating and maintenance costs" of the 28 CLASS ACTION COMPLAINT FOR DAMAGES '5 1' association, "including an adequate reserve fund £or periodic 2 maintcnance, repairs, and replacements of those improvements to the 3 Common Area that the association is obligated Lo maintain", and 4 '~special assessments £or taxes, capital improvements, and other 5 purposcs as provided by the Declaration". 6 21. Section 5.2 prohibits the association from raising the 7 amount of regula~ assessments by more than 20% per year without the 8 prior written assent or vote of at least 51% of thc voting power of 9 the association (other than a Declarant). 10 22. Section 5.2(D) provides that the association shall ll maintain an adequate reserve ~und for periodic maintenance, rcpairs 12 and replacement of those Improvements to the Common Area Lhat the 13 association is obligated to maintain. 14 23. Section 6.1 of the declaration grants each Member an lb equal right and non-exclusive easement of use and enjoyment 16 appUrtenant thereto in, on, and to the Common Area and Equestrian 17 Trails. 18 24. Section 11.1 declares a nuisance the result of any and 19 every act or omission which violates, in whole or part, 20 Declaration and states every available remedy ah law or in equity 21 shall be applicable against such result and may be exercised by the 22 Association or any Owner. Remedies provided for in the Declaration 23 for breach o~ its covenants are expressly cumulative and not 24 exclusive. 25 25. Section 11.2 of the Declaration provides for reasonable 26 costs and attorneys' fees to the prevailing party(ies) in any legal 27 or equitable proceeding to enforce Or restrain the violation of any 28 CLASS ACTION COMPLAINT FOR DAMAGES 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provisions of the Declaration, including any appuals therefrom. 26. Article VI, Section l(b)(iv) of the By-laws allows board directors to borrow money and incur indebtednus~ in the name of the association only , with the approval of at least two-thirds of the membership. 27. Article VI Section 2(a)(1) of the By-Laws prohibits the Board of Directors from entering into a contract for services for a term longer than one year. 28. Article VI Section 13 of the By-Laws requires that the nature of any and all business to be co~sidered in executive session shall first be announced in open sessiun of board meetings. 29. Title 6 of the California Civil Code sets forth statutory requirements concerning common interest developmerits. 30. Section 1364(a) thereof provides that an association is for repairing, replacing, or maintaining th~ common responsible areas. 31. Section 1365.5(c)(1) thereof provides the Board Directors shall not eKpend funds designated as reserve funds any purpose other than the repair, restoration, replacement, o£ for maintenance of, or litigation involving the repair, restorationt replacement, or maintenance 0f, ma3or components which the association is obligated to repair, restore, replace, or maintain and for which the reserve fund was established. 32. Section 1365.5(C)(2) thereof provides the board may authorize a temporary transfer of money from a reserve fund to the association's general operating fund to meet short-term cash flow requirements or other expenses, provided the board has made a CLASS ACTION COMPLAINT FOR DAMAGES 1 written finding, recorded in the board's minutes, explaining the 2 reasons that the transfer is needed, and describing when and how 3 the money will be repaid to the reserve fund. The transferred 4 funds shall be restored to the reserve fund within one year o~ the 5 date of the initial transfer, except that the board may, upon 6 making a finding supported by documentation that a temporary delay 7 would be in the best interests of The common interest development, 8 temporarily delay the restoration. The board shall exercise 9 prudent fiscal management in maintaining the integrity of the 10 reserve account, and shall, if necessary, levy a special 11 assessment, subject to the limitation of Section 1366, to recover 12 the full amount of the expended funds within Lhe time limits 13 required by this section. 14 33. California Civil Code section 1365.5(d) states when the 15 decision is made to use reserve funds or to temporarily transfe~ 16 money from reserve fund to pay for litigation, Lhe association 17 shall promptly notify the members of Lhe association of that 18 decision in the next available mailing to all members pursuant to 19 section 5016 Of the corporations code, and of the availability of 20 an accounting of those expenses. Unless the governing documents 21 impose more stringent standards, the associaLion shall make an 22 accouetieg of expenses related to the litigation on at least a 23 quarterly basis. The accounting shall be mad~ available for 24 inspection by members of the association at the association's 25 office. 26 34. California Civil Code Section 1365.7(a) provides that a 27 volunteer officer or volunteer director of an association which 28 CLASS ACTION COMPLAINT FOR DAMAGES 8 1 manages a common interest development that is e~clusively 2 residential shall not be personally liable in excess of the 3 coverage of insurance specified in paragraph(4) to any person who 4 suffers injury as a result of the tortious act Or omission of the 5 volunteer officer or volunteer director if all of the following 6 criteria are met: (1) the act or omission was performed ~ithin the 7 scope of the officer's or direcLor's association duties; (2) the 8 act or omission was performed in good faith; (3) The act or 9 omission was not willful, wanton, or grossly negligent. 10 35. California Civil Code Section 1365.~(c) provides that an 11 officer or director who at ~he time of the act or omissipn was a 12 declarant, as defined in subdivision(g) Of section 1351, or who 13 received either direct or indirect compensation as an employee from 14 the declarant, is not a volunteer for the purposes of section 15 1365.7. 16 36. California Civil Code Section ]365.7(e) provides that section 1365.7 applies only 5o volunteer officers or directors who 18 are tenants of separate interests in the common interest 19 development or who own no more than two separate interests in the 20 common interest development. 21 37. California Corporations Code Section 8333 provides that 22 any member of a mutual benefit corporation may mak~ a written 23 demand on the Corporation at any reasonable time to inspect the 24 accounting books and records and minutes of proceedings of the 25 members, board, and committees of the board for a purpose 26I reasonably related to the person's interest as a member. 27 38. California Corporations Code Section 8336(a) provides if 28 CLASS ACTION COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 a lawful demand for inspection of records is refused, the Superior Court may enforce the demand or appoint one or more competent inspectors or independent accountants to audit the financial statements and investigate the property, funds, and affairs of such corporation. 39. California Corporations Code Section 833'; provides that if the court finds that the failure of the corporation to comply with a proper demand was without justification, the court may award the member reasonaDle costs and expenses, including reasonable attorneys fees. 40. Members of the Board of Directors are ~iduciaries who are required Lo exercise their powers in accordance with the duties imposed by the corporations code. Directors are thus requirud to exercise due care and undivided loyalty ior the interests Of the association and they are liable for breach of their fiduciary duties to members to maintain adequate reserves for repair and replacement. When directors are developers they must avoid making decisions for the homeowners association that benefit the developers interests and not those of the association men%bets. FIRST CAU~ OF ACTION FOR D~A~ES AC, A~NST ~T:L DEFR~D~T$ FOR BREACH OF FIDUCIARY DUTY 41. Plaintiffs reallege and incorporate paragraphs l'through 40 of this Complaint as if fully set forth herein. 42. California Corporations Code section 7236 provides that subject to the provisions of section 7231, directors of the association who make any distribution contrary to the provisions of CLASS ACTION COMPLAINT FOR DAMAGES 10 1 .section 7410 e~ seq. 2 3 S 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 articles. 24 49. 25 articles. 26 50. 27 51. 28 shall be jointly and severally liable to the association or to the creditors entlLled to institute an action under subdivision(c). 43. Section 7236 subdivision (d) provides that damages recoverable from a director under this section shall be the amount of the illegal distribution. 44. The defendants in this case created, managed, governcd, controlled and authorized distribution of funds of the assOCiation to, an entity known as CURE, for purposes of £inancing litigation about subject matter outside the scope Of said de£endants' responsibilities and duties as directors of the association and at a time when one or more such defendants were members and/or directors of CURE. 45. Said disTribution(s) did not occur in connection with dissolution of the association and therefore violated Calfironia Corporations Code sections 7410 et seq. 46. Said distributiorl(s) comprised self-dealing by said directors and was never ratified or authorized by any legitimate vote of the members of the association. 47. Said distribution(s) violated section 7236 of the California Corporations Code. 48. Said distribution(s) violated Article III of the Said distribution(s) violated Article XIII of the Said distribution(s) occurred in bad faith. Plaintiffs are informed and believe, and based thereupon CLASS ACTION COMPLAINT FOR DAMAGES 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 allege that said distribution(s) occurred from reserve funds and that such use of the reserve funda was,a violation of California Civil Code Section 1365.5(c)(1), the declaration and the bylaws. 52. Plaintiffs are informed and believe, and thereupon allege, that in transferring moneys from the reserve funds, as stated hereinabove, defendants did not comply with California Civil Code Section 1365.5(d). 53. Defendants' conduct in distributing funds to CURE was a breach of their fiduciary duty to plaintiffs as lacmbers of the ASSOCiation, 54. As a result of defendants' conduct as aforesaid plaintiffs have suffered damage in an amount to be demonstrated at trial of this action. 8=COND CAUSE OF ACTION FOR DAMAGES AGAINST A~-L DEFENDANTS FOR BP[ACH OF FIDUCIARY DUTY 55. Plaintiffs reallege and incorporate paragraphs 1 through '40 of this Complaint as if fully set forth herein. 56, Beginning at some tame during ~he last three years, in violation of the articles, declaration and bylaws of Lhe association defendants, and each of them, have improperly and illegally diverted association income/assets to finance activities in furtherance, not of the specific purposes of the Association but, instead, of their own private ambitions and profit motives. 57. During the Same three-year period Defendants have improperly raised association assessments in amounts in excess of those amounts set forth in the association's by-laws and CLASS ACTION COMPLAINT FOR DAMAGES 12 1 .declaration and in California law. 2 58. During the same three-year period Defendants have failed 3 to manage, operate, control, repair, replace and restore 4 association property as required in the articles, by-laws and 5 declaration of the association and by California law a~ld thereby 6 violated plaintiffs' rights and easements of ingress, egress, and 7 enjoyment in and to the association property. 8 59. During the same three-year period de£cndants, without 9 first making required written findings recorded in the 10 association's minutes Or properly notifying association members ll of their intention to do so, have improperly distributed the 12 association's as~cts including but not limited to its required 13 reserve funds to finance activities that were beyond the scope of 14 said defendants' duties as directors of the association. 15 Therea£tcr defendanzs failed to properly and timely restore Ehe 16 reserve funds or to justify any delay in so doing. 17 60. To enable' and assist defendants to conduct themselves as 18 set forth in this complaint, plaintiffs are informed and believe 19 and thereupon allege that defendants avoided, circumvented and 20 otherwise violated membership voting, proxy, notice, disclosure and 21 approval requirements set forth in California law. 22 61. To conceal their improper activities as alleged in this 23 complaint, and in violation of the association's articles, by-laws, 24 and declaration and of California law, plainti£fs are informed and 25 believe and thereupon allege, defendants intentionally falsified 26 association reports, misused the Executive Session Meeting process, 27 denied plaintiffs access to the books of the association and made 28 CLASS ACTION COMPLAINT FOR DAMAGES 13 1' false material representations of fact to plaintiffs. 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 62. Defendants, and each of them, withouL obtaining proper approval of a majority of the members of the association, formed contracts and used association property in payment thereof, for services unrelated to the association property and/or the duration of which were in excess of one year. 63. As a result of defendants' conduct, net earnings, income and/or assets of the Association directly or indirectly were improperly distributed to, or inured to the benefiL of, said defendants and/or other private individuals/entities, other than upon the winding up o~ the association. 64. As a direct result of this conduct of defendants the association's assets including but not limited to reserve funds were, and remain, depleted and are i~ddequate for their designated purposes. 65. Defendants violated association articles, by-laws and declaration as well as California law. 66. Defendants breachcd their fiduciary duties to plaintiffs and injured plaintiffs in an amount to be demonsCrated at trial. THIRD CAUSE OF ACTION FOR DAMAGES ~c~INST ~_t~- DEFENDA~FZS FOR FRAUD 67. Plaintiffs reallega and incorporate paragraphs 1 through 40, 42 zhrough 54 and 56 through 66 of this complaint as if fully set forth herein. 68. Defendants have a fiduciary duty, as directors of the association, to plaintiffs and are bound to act in compliance with CLASS ACTION COMPLAINT FOR DAMAGES 14 California law and with the articles, declarations and by-laws of the association. 3 4! 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 69. Defendants, in furtherance of their conduct set fort~ in this complaint, misrepresented facts, failed to disclose Erue facts, deceived and concealed material facts from plaintif£s with the intention tO thereby deprive plaintiffs of -re-art .... le"al rights or to otherwise injure "~a~-~" ........... · .......................... ~--- representations of ~efen~an~s. Plaintiffs NAt MAZEGM and TONY FIORENZA havc only very recently discovered facts demonstrating the falsity of defendants' representations. 71. The representations of defendants were in fact false. The true facts are that defendants are and were, at best, indifferent to the plaintiffs' interests as members of the association, and that defendants intentionally misled plaintiffs and otherwise conducted themselves as alleged in this complaint, and repeatedly violated the Association's articles, by-haws and declaration as well as California law, as a means to obtain personal wealth and to conceal their attempts to do so. 72. As a direct result of defendants' conduct plaintiffs have been damaged and contlnuc to be damaged in an amount to be shown at trial. ~3. Plaintiffs allege defendants were guilty of fraud as defined in Civil Code ~329~, and plaintiffs should recover, in addition to actual damages, damages to make an example of and to punish defendants. The amount of exemplary damages sought is not shown, pursuant Lo Code of Civil Procedure ~425.10. CLASS ACTXON COMPLAINT FOR DAMAGES 15 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 FOURTH CAUSE OFACTIO~AG~INST ~T.T. DEFENDANTS FOR CONVERSION 74. Plaintiffs reallege and incorporate paragraphs 1 through 40, 42 through 54 and 56 through 66 of this complaint as if fully set forth herein. 75. Defendants' knowing, intentional and wrongful use oi the association's income and assets, in excess of"thc uses for which defendants had authority to use them, actually and substantially inter=ered with plaintiffs' interesCs therein and was an unlawful conversion of the association income and assets. 76. As a result of defendants' concealment of facts indicating their conversion, plaintiffs HAL HAZEGH and TONY FIORENZA only recently learned of defendants' conversicn. 77. As a result of this conversion plalntif~ h~ve m,ffered injury and damages in an amount ~o be shown at trial. 78. Plaintiffs allege defendants were guilty of fraud as defined in Civil Code ~3294, and plaintiffs should recover, in addition to actual damages, damages to make an example of and to punish defendants. The amount of exemplary damages sought is huh shown, pursuant to Code of Civil Procedure ~425.10. FIFTH CAU~Z OF A~TI~JAGAIM~=a&L'L DEFEND/~NT8 .~OR C0MSTRUCTIVE TRUST 79. Plaintiffs reallege and incorporate paragraphs 1 through 25 40, 42 through 54 and 56 through 66 of this complaint as if fully 26! set forth herein. 27 80. At all material times herein, a fiduciary relationship 28 CLASS ACTION COMPLAINT FOR DA~RGES 16 1 existed betweun plaintiffs and defendants and defendants had a duty 2 to safeguard the income and assets of plaintiffs' association- 3 81. At all material times herein, plaintiffs believed 4 implicitly in the integrity and truthfulness of defendants and 5 placed absolute trust and confidence in defendants- 6 82. A~ set forth herein, the association's articles, 7 declarations and by-laws, as well as California law, strictly 8 governs defendants' conduct. 9 83. Plaintiffs HAL MAZEGH and TONY FIORENZA are informed and 10 believe, and based thereupon alleges, that defendants have 11 repeatedly and materially violated their duties as association 12 directors, that their violations were intentional and in bad faith, 13 and that their pattern of conduct has been motivated by desire for 14 personal profit and has resulted in a use of plaintiffs' 15 association income and assets for defendants' personal benefit. 16 84. By virtue of defendants' violation of their fiduciary 17 responsibilities to plaintiffs, defendants should be deemed to have 18 expanded, and therefore to hold for plaintiffs, association income 19 and assets in constructive trust for plaintiffs in an amount to be 20 demonstrated at trial. 21 WHEREFORE, plaintiffs demand judgment against defendants, and 22 each of them, Jointly and severally, as follows: 23 1. For Special damages in an amount to be shown at trial; 24 2. For Payment of plaintiffs' attorney fees from the amount 25 recovered for the common benefit of the class; 26 3. For pre-judgment Interest at the maximum legal rate; 27 4. For Exemplary damages; 28 CLASS ACTION COMPLAINT FOR DAMAGES 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. For a ruling that defendants arc constructive truszees for plaintiffs in an amount to be shown at trial; 6. For Costs of suit; and 7. Any other and further relief the court may deem proper. Dated: May 1, 2000 LAW OFFICES OF JAMES J. SIMPSON BY: James J. Simpson, Esq. CLASS ACTION COMPLAINT FOK DAMAGES 18 1 LAW OFFICES OF JAMES J. SIMPSON JAMES J- SIMPSON, ESQ., BAR NO.: 2 17220 NEWHOPE STREET, SUITE 101 FOUNTAIN VALLEY, CA 92708 3 (909) 938-5467 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 149386 ATTORNEY FOR: pLAINTIFFS PECK DAMIANI, MATTIE TRAINER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO PECK DAMIANI; MATTIE TRAINER, individually and on behalf of those similarly situated, plaintiffs, vs. WILLIAM E. HAWKINS; BILL ANGEL; MARK ESTUPINIAN; DANIEL TAM; MICHAEL BASSO; DOES 1 THROUGH 20, INCLUSIVE, Defendants. CASE NO.: [CIJ~SS ACTION] COMPLAINT FOR DAMAGES: BREACH OF FIDUCIARY DUTY; FRAUD CONVERS ION CONSTRUCTIVE TRUST Come now, plaintiffs PECK DAMIANI and MATTIE TRAINER, and allege: 1. plaintiffs are individuals and are now, and at all times mentioned in this complaint were, owners of lots in Rancho Cucamonga V - Haven View Estates Homeowners' AsSociation (hereinafter "the association" located in the City of Rancho 24 25 Cucamonga, Los Angeles County, California. 26 2. Defendants WILLIAM E. HAWKINS; BILL ANGEL; MARK 27 ESTUPINIAN; DANIEL TAM; and MICHAEL BASSO are now, and at all times 28 mentioned in this complaint were, individuals residing in the City CLASS ACTION COMPLAINT FOR DAMAGES 1 of Rancho Cucamonga, County of San Bernardino, CA. 2 3. Plaintiffs do not know the true names or capacities of 3 defendants DOES 1 through 20, inclusive, and therefore sue them by 4 those fictitious names. Plaintiffs are informed and believe, and 5 on the basis of that information and belief allege, that each of 6 those defendants was in some manner legally responsible .for the 7 events, happenings, injuries and damages alleged in this complaint. 8 4. Plaintiffs are informed and believe and thereupon allege 9 that at all times mentioned in this complaint each defendant, 10 directly or indirectly, endeavored to develop, build and/or sell 11 properties within and/or adjacent to the property identified herein 12 as Rancho Cucamonga V - Haven View Estates for personal gain. 13 5. Plaintiffs are informed and believe and based thereupon 14 allege that in conducting themselves as alleged herein each 15 defendant had, and intentionally served, personal interests and 16 motives separate from and contrary to the interests of the members 17 of the association. 18 6. Plaintiffs are informed and believe and thereupon allege 19 herein that in conducting themselves as alleged in this Complaint, 20 each defendant engaged in a common venture according to an agreed 21 course of conduct and was the agent and co-conspirator of each 22 other defendant and each defendant is vicariously liable along with 23 his co-conspirators for the acts and injuries complained of herein. 24 7. Plaintiffs PECK DAMIANI and MATTIE TRAINER bring this 25 action on their own behalf, on behalf of all persons similarly 26 situated and on behalf of the association. 27 28 CLASS ACTION COMPLAINT FOR DAMAGES 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 8. The class plaintiffs PECK DAMIANI and MATTIE TRAINER 2 represent consists of members of the association and all are owners 3 of real property located in the City of Rancho Cucamonga, County of 4 Los Angeles, State of California commonly known as Rancho Cucamonga 5 V-Haven View Estates (hereinafter "the property"). 9. The class plaintiffs PECK DAMIANI and MATTIE TRAINER represent numbers approximately'50 - 100 persons and is so numerous that the joinder of each member of the class is impracticable. 10. There is a well-defined community of interest in questions of law and fact affecting the class plaintiffs PECK DAMIANI and MATTIE TRAINER represent. The class members' claims against defendants involve questions of common or general interest, in that each class member shares similar status within the class, has suffered similar injury and is likely to suffer continuing similar injury due to the conduct of defendants as alleged in this complaint. These questions are such that proof of a state of facts common to the members of the class will entitle each member of the class to the relief requested in this complaint. 11. The members of the class plaintiffs PECK DAMIANI and MATTIE TRAINER represent have no plain, speedy, or adequate remedy at law against defendants, other than by maintenance of this class action, because plaintiff is informed and believes, and on the basis of that information and belief alleges, that the damages to each member of the class is relatively small, and that it would be economically infeasible to seek recovery against defendants other than by a class action. CLASS ACTION COMPLAINT FOR DAMAGES 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Plaintiffs PECK DAMIANI and MATTIE TRAINER will fairly and adequately represent the interests of the class, because they are members of the class and their claims are typical of those in the class. 13. Plaintiffs PECK DAMIANI and MATTIE TRAINER have incurred, and will continue to incur, expenses for costs and attorney fees necessary for the investigation and prosecution of this action. Those attorney fees and other expenditures will result in a benefit to all members of the class. 14. Defendants WILLIAM E. HAWKINS; BILL ANGEL; MARK ESTUPINIAN; DANIEL TAM; MICHAEL BASSO and DOES 1 to 20 are current and former directors of the association, an association that was formed and now exists for the purposes set forth in those certain documents entitled [1] Articles of Incorporation of Brock Homes Cucamonga .V - Haven View Estates Homeowners' Association (hereinafter "the articles"), [2] "Declaration of Establishment of Conditions, Covenants Haven View Estates" "Bylaws of the Rancho and Restrictions for Rancho Cucamonga V (hereinafter "the declaration"), and [3] Cucamonga V - Haven View Estates Homeowners' Association" (hereinafter "the bylaws"), and said defendants are and at all times mentioned herein were subject to the terms and requirements set forth in those documents including the following provisions: 15. Article III of the articles sets forth the specific purpose of the Corporation as follows: to provide for the administration, maintenance, preservation of the common areas within the property. That article also specifically provides that CLASS ACTION COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the association shall not engage in any activities or exercise any powers that are not in furtherance of the specific purpose of the association. 16. Article XIII of the articles state the association is intended to qualify as a homeowners association under applicable Internal Revenue Service sections, that it is organized solely for nonprofit purposes, and that none of the net earnings, income or assets of the association shall be distributed to, or inure to the benefit of, any member, director or officer of the association or other private individual either directly, or indirectly, except upon winding up and dissolution. 17. Article II of the declaration provides for association members' property rights in association property including the following: 18. Section 2.2 grants every owner of a lot a right and easement of ingress, egress, and of enjoyment in and to the association property which shall be appurtenant to and shall pass with the title to every such lot. 19. Article IV of the declaration sets forth the powers of the association including the following: 20. Section 4.1.1 provides the association shall have the sole and exclusive right and duty to manage, operate, control, repair, replace, or restore the association property including, but not limited to, all the improvements, trees, shrubbery, plants and grass, private streets, drainage facilities, drive approaches and sidewalks within or appurtenant to the association property of the project and that the association property shall be maintained to CLASS ACTION COMPLAINT FOR DAMAGES 1 the standards set forth in all applicable codes, resolutions and 2 statutes of the City of Rancho Cucamonga. 3 21. Article V of the declaration provides for assessments. 4 Section 5.2 provides that assessments levied by the association 5 shall be used exclusively to promote the recreation, health, 6 safety, and welfare of the residents in the property, for the 7 improvement and maintenance of the association property and the 8 homes situated upon the lots, and such other purposes as set forth 9 in the declaration and the bylaws. 10 22. Section 5.3 provides that the association shall maintain 11 an adequate reserve fund for maintenance, repairs and replacement 12 of those elements of the association property that must be replaced 13 on a periodic basis, and such reserve shall be funded by annual 14 assessments. Subparagraph (a} through (c) of section 5.3 limit 15 increases in annual general assessments to 20 percent of the 16 previous year's assessment. 17 23. Section 5.4 of the declaration provides for special 18 assessments as follows: in addition to the annual assessments, the 19 association may levy, in any assessment year, a special assessment 20 applicable to that year only for the purpose of defraying, in whole 21 or in part, the cost of any construction, reconstruction, repair or 22 replacement to capital improvements upon the association property, 23 including fixtures and personal property related thereto, or 24 otherwise, provided that any such assessment for capital 25 improvements to the association property which total more hhan five 26 percent of the budgeted gross expenses of the association for that 27 fiscal year shall have the vote or written assent of a majority of 28 CLASS ACTION COMPLAINT FOR DAMAGES 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16: 17 18 19 20 21 22 23 24 25 26 27 28 the owners constituting a quorum. 24. Section 5.5 of the declaration provides that authorized under section 5.3 or 5.4 shall be taken at any action a meeting called for that purpose, written notice of which shall be sent to all members not less than 10 or more than 90 days in advance of the meeting. A quorum for such meeting shall be 51 percent of each class of members entitled to vote on such action. If the_required quorum is not present, another meeting may be called subject to the same notice requirement and the required quorum at the subsequent shall be ~ of the required quorum for the preceding meeting meeting. 25. Article VI of the declaration provides for accounting of the association as follows: 26. Section 6.1 concerns books and records and provides that the association shall maintain books of account of all its receipts and expenditures; that each owner shall be entitled at reasonable times to inspect the books of the association and to have such books examined at such owner's expense by an attorney or an accountant representing such owner, and may make excerpts or copies of such books or portions thereof, expense, shall have the right to audited by an accountant. 27. Article IX of and each such owner, at his own have such books independently the declaration concerns the nature and scope of enforcement rights and duties and provides as follows: 28. Section 9.1 of the declaration provides that any owner shall have the right to enforce by any proceeding at law or in /// CLASS ACTION COMPLAINT FOR DAMAGES 1 equity, all restrictions, conditions, covenants and reservations 2 now or hereafter imposed by the provisions of the declaration, and 3 that any failure by such owner to enforce any covenants or 4 restrictions in the declaration shall, in no event, be deemed a 5 waiver of the right to do so thereafter. That section also 6 provides that the limitations, restrictions, conditions and 7 covenants set forth in the declaration constitute a general scheme 8 for the maintenance, protection, and enhancement of the value of 9 the project and the benefit of all owners, and that said 10 limitations, restrictions, conditions and covenants all are and 11 shall be covenants running with the land or equitable servitudes as 12 the case may be. Section 9.1 also provides that in the event the 13 association or any owner should commence litigation to enforce any 14 of the provisions of the declaration that party, if he should 15 prevail, shall be entitled to have judgment against and recover 16 from any defendant in such litigation, such attorneys' fees as the 17 court may adjudge reasonable and proper, and that each owner shall 18 have a right of action against the association for any failure of 19 the association to comply with the provisions of the declaration, 20 articles of incorporation, bylaws, or rules and regulations of the 21 association. 22 29. Article XIII of the declaration is entitled Mortgagee 23 Protection and provides as follows: 24 30. Section 13.1 state that in order to induce FHLMC and 25 FNMA/GNMA (and other lenders and investors) to participate in the 26 financing of the sale of lots in the project to an owner other than 27 a participating builder, the following provisions apply: 28 CLASS ACTION COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31. Section 13.1.7 provides that the annual assessments shall include an adequate reserve fund for maintenance, repair and replacement of the improvements to the association property and those portions thereof that must be replaced on a periodic basis, and shall be payable in annual assessments rather than by special assessments. 32. Article IV of the bylaws provides for membership assessments and lien rights. The provisions of that article include the following: 33. Section 4.1 requires the Board of Directors of Rancho Cucamonga V - Haven View Homeowners' Association to fix and determine from time to time annual assessments to be paid by each owner for the purpose of operating, maintaining and repairing the Association property, and for paying the necessary expenditures of the Association as provided in the Bylaws and the Declaration, which annual assessments shall include an adequate reserve fund for the periodic maintenance, repair and replacement of the Association Property as set forth in the Declaration. 34. Article VII of the bylaws concerns the powers and duties of the Members of the Board including the following: 35. Section 7.9 provides of Directors of the association that neither the directors nor the officers of the association shall receive any monetary compensation for their services performed in the conduct of business of the Association. 36. Section 7.10 provides that regular and special meetings of the board of directors shall be open to all members of the CLASS ACTION COMPLAINT FOR DAMAGES 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 association and that the Board of Directors, prior to adjourning to executive sessions, must first announce in open session the nature of any and all business to be considered in executive session. 37° Article 9 of the By-Laws is entitled "Powers and Duties of the Association" and sets forth the powers and duties of the Board of Directors as follows: 38. Section 9.1 charges the Board of Directors with the obligati'on to select, supervise, and remove all the officers, agents and employees of the Association, prescribe such powers and duties for them as may not be inconsistent-with law, the Articles of Incorporation, the Bylaws or the Declaration, and, subject to the provisions of Section 7.9 of the Bylaws, to fix their compensation. 39. Section 9.2 charges the Board of Directors .with the obligation to conduct, manage, and control the affairs and business of the Association, and to make such reasonable Rules and Regulations therefor not inconsistent with Law, the Articles of Incorporation, the Bylaws or the Declaration as they deem best, including Rules and Regulations for the operation of the Association property and the recreational facilities located therein, and requires that the rules and regulations as adopted, amended or repealed by the Board of Directors shall be mailed to each Member and posted at a conspicuous location in the common area. 40. Section 9.5 charges the Board of Directors with the obligation to manage, operate, maintain and repair the association property and all improvements located thereupon, and to make CLASS ACTION COMPLAINT FOR DAMAGES 1 capital expenditures for and on behalf of the association with the 2 vote or written assent of a majority of the voting power of each 3 class of members of the association. 4 41. Section 9.6 obligates the Board of Directors to contract 5 and pay for goods and services relating to the association 6 property, and to employ personnel necessary for the operation and 7 maintenance of the same, including legal and accounting services; 8 provided, however, that the term of any contract with a third 9 person supplying goods or services to the association property or 10 for the association shall not exceed a term of one-year unless a 11 longer-term is approved by a majority of the voting power of each 12 class of members of the association. 13 42. Section 9.15 obligates the Board of Directors to make 14 available to any owner of a lot within the property current copies 15 of the declaration, the articles, the bylaws, the rules and 16 regulations governing the project and all other books, records and 17 financial statements of the association. 18 43. Section 9.18 obligates the Board of Directors to keep in 19 its principal office for the transaction of business or at such 20 place within the properties as the Board shall prescribe, the 21 original or copy of the bylaws as amended or otherwise altered to 22 date, certified by the Secretary, a membership register, including 23 mailing addresses and telephone number, books of accounts and 24 copies of minutes of all membership, board and committee meetings, 25 all of which shall be made available for inspection and copying by 26 any member of the association, or by any members to duly Sppointed 27 representative at any reasonable time and for a purpose reasonably 28 CLASS ACTION COMPLAINT FOR DAMAGES 11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 related to his interest as a member. 44. Title 6 of the California Civil Code sets forth statutory requirements concerning common interest developments. 45. Section 1364(a) thereof provides that an association is responsible for repairing, replacing, or maintaining the common areas. 46. Section 1365.5(c)(1) thereof provides the Board of Directors shall not expend funds designated as reserve funds for any purpose other than the repair, restoration, replacement, or maintenance of, or litigation involving the repair, restoration, replacement, or maintenance of, major components which the association is obligated to repair, restore, replaced, or maintaining and 'for which the reserve fund was established. 47. Section 1365.5(c)(2) thereof provides the board may authorize a temporary transfer of money from a reserve fund to the association's general operating fund to meet short-term cash flow requirements or other expenses, provided the board has made a written finding, recorded reasons that the transfer the money will be repaid in the board's minutes, explaining the is needed, and describing when and how to the reserve fund. The transferred funds shall be restored to the reserve fund within one year of the date of the initial transfer, except that the board may, upon making a finding supported by documentation that a temporary delay would be in the best interests of the common interest development, temporarily delay the restoration. The board shall exercise prudent fiscal management in maintaining the integrity of the reserve account, and shall, if necessary, levy a special CLASS ACTION COMPLAINT FOR DAMAGES 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assessment, subject to the limitation of Section 1366, to recover the full amount of the expended funds within the time limits required by this section. 48. California Civil Code section 1365.5(d) states when the decision is made to use reserve funds or to temporarily transfer money from reserve fund to pay for litigation, the association shall promptly notify the members of the association of that decision in the next available mailing to all members pursuant to section 5016 of the corporations code, and of the availability of an accounting of those expenses. Unless the governing documents impose more stringent standards, the association shall make an accounting of expenses related to the litigation on at least a quarterly basis. The accounting shall be made available for inspection by members of the association at the association's office. 49. California Civil Code Section 1365.7(a) provides that a volunteer officer or volunteer director of an association which manages a common interest d~velopment that is exclusively residential shall not be personally liable in excess of the coverage of insurance specified in paragraph(4) to any person who suffers injury as a result of the tortious act or omission of the volunteer officer or volunteer director if all of the following criteria are met: (1) the act or omission was performed within the scope of the officer's or director's association duties; (2) the act or omission was performed in good faith; (3) the act or omission was not willful, wanton, or grossly negligent. 50. California Civil Code Section 1365.7(c) provides that an CLASS ACTION COMPLAINT FOR DAMAGES 13 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 officer or director who at the time of the act or omission was a declarant, as defined in subdivision(g) of section 1351, or who received either direct or indirect compensation as an employee from the declarant, is not a volunteer for the purposes of section 1365.7. 51. California Civil Code Section 1365.7(e) provides that section 1365.7 applies only to volunteer officers or directors who are tenants of separate interests in the common interest development or who own no more than two separate interests in the common interest development. 52. California Corporations Code Section 8333 provides that any member of a mutual benefit corporation may make a written demand on the Corporation at any reasonable time to inspect the accounting books and records and minutes of proceedings of the members, board, and committees of the board for a purpose reasonably related to the person's interest as a member. 53. California Corporations Code Section 8336(a) provides if a lawful demand for inspection of records is refused, the Superior Court may enforce the demand or appoint one or more competent inspectors or independent accountants to audit the financial statements and investigate the property, funds, and affairs of such corporation. 54. California Corporations Code Section 8337 provides that if the court finds that the failure of the corporation to comply with a proper demand was without justification, the court may award the member reasonable costs and expenses, including reasonable attorneys fees. CLASS ACTION COMPLAINT FOR DAMAGES 14 1 55. Members of the Board of Directors are fiduciaries who are 2 required to exercise their powers in accordance with the duties 3 imposed by the corporations code. Directors are thus required to 4 exercise due care and undivided loyalty for the interests of the 5 association and they are liable for breach of their fiduciary 6 duties to members to maintain adequate reserves for repair and 7 replacement. When directors are developers they must avoid making 8 decisions for the homeowners association that benefit the developers interests and not those of the association members. 9 10 11 FIRST CAUSE OF ACTION FOR DAMAGES AGAINST kLL DEFENDANTS 12 FOR BP~F_J~CH OF FIDUCIARY DUTY 13 56. Plaintiffs reallege and incorporate paragraphs 1 through 14 55 of this Complaint as if fully set forth herein. 15 57. California Corporations Code section 7236 provides that 16 subject to the provisions of section 7231, directors of the 17 Corporation who make any distribution contrary to the provisions of 18 section 7410 et seq. shall be jointly and severally liable to the 19 corporation or to the creditors entitled to institute an action 20 under subdivision(c). 21 58. Section 7236 subdivision (d) provides that damages 22 recoverable from a director under this section shall be the amount 23 of the illegal distribution. 24 59. The defendants in this case created, managed, governed, 25 controlled and authorized distribution of funds of the association 26 to, an entity known as CURE, for purposes of financing litigation 27 about subject matter outside the scope of said defendants' 28 CLASS ACTION COMPLAINT FOR DAMAGES 15 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 responsibilities and duties as directors of the association and at 2 a time when one or more such defendants were members and/or 3 directors of CURE. 4 60. Said distribution(s) did not occur in connection with 5 dissolution of the association and therefore was in violation of corporation code sections 7410 et seq. 61. Said distribution(s) comprised self-dealing by said directors and was never ratified or authorized by any vote of the members of the association 62. Said distribution(s) violated section 7236 of the California Corporations code. 63. Said distribution(s) violated Article III of the articles. 64. Said distribution(s) violated Article XIII of the articles. 65. Said distribution(s) occurred in bad faith. 66. Plaintiff is informed and believes, and based thereupon alleges that said distribution(s) occurred from reserve funds and that such use of the reserve funds was a violation of California Civil Code Section 1365.5(c)(1), the declaration and the bylaws. 67. Plaintiff is informed and believes, and thereupon alleges, that in transferring moneys from the reserve funds, as stated hereinabove, defendants did not comply with California Civil Code Section 1365.5(d). 68. Defendants' conduct in distributing funds to CURE was a breach of their fiduciary duty to plaintiffs as members of the Association. CLASS ACTION COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 69. As a result of defendants' conduct as aforesaid plaintiffs have suffered damage in an amount to be demonstrated at trial of this action. SECOND CAUSE OF ACTION FOR DAMAGES AGAINST ALL DEFENDANTS FOR BREACH OF FIDUCIARY DUTY 70. Plaintiffs reallege and incorporate paragraphs 1 through 55 of this Complaint as if fully set forth herein. 9 71. Beginning at some time during the 10 violation' of the articles, declaration 11 association defendants, and each of them, 12 13 14 15 16 17 18 19 20 to manage, 21. association 22 23 24 25 26 27 28 last three years, in and bylaws of the have improperly and illegally diverted association income/assets to finance litigation in furtherance, not of the specific purposes of the Association but, instead, of their own private ambitions and profit motives. 72. During the same three-year period Defendants have improperly raised association assessments in amounts in excess of those amounts set forth in the association's by-laws and declaration and in California law. 73. During the same three-year period Defendants have failed operate, control, repair, replace and restore property as required in the articles, by-laws and declaration of the association and by California law and thereby violated plaintiffs' rights and easements of ingress, egress, and enjoyment in and to the association property. 74. During the same three-year period defendants, and each of them, without first making required written findings recorded in the association's minutes or properly notifying association members CLASS ACTION COMPLAINT FOR DAMAGES 17 1 of their intention to do so, have improperly diverted plaintiffs' 2 required reserve funds from their designated uses. Defendants have 3 further used those reserve funds to finance activities that were 4 beyond the scope of said defendants' duties as directors of the 5 association. Thereafter defendants have failed to properly restore 6 the reserve funds or to justify any delay in so doing. 7 75. To enable and assist defendants to conduct themselves as 8 set forth in this complaint, plaintiffs PECK DAMIANI and MATTIE 9 TRAINER are informed and believe and thereupon allege that 10 defendants avoided, circumvented and otherwise violated membership 11 voting, proxy, notice and approval requirements set forth in 12 California law. 13 76. To conceal their improper activities as alleged in this 14 complaint, and in violation of the association's articles, by-laws, 15 and declaration and of California law, plaintiffs PECK DAMIANI and 16 MATTIE TRAINER are informed and believe and thereupon allege, 17 defendants have knowingly: falsified association reports, misused 18 the Executive Session Meeting process, and failed and refused to 19 allow plaintiff and others to have access to inspect, at reasonable 20 times, the books of the association. 21 77. Defendants, and each of them, without obtaining proper 22 approval of a majority of the members of the association, formed 23 contracts, and used association property in payment thereof, for 24 services unrelated to the association property and the duration of 25 which were in excess of one year. 26 78. As a direct result of this conduct of defendants, and each 27 of them, net earnings, income and/or assets of the Association 28 CLASS ACTION COMPLAINT FOR DAMAGES 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 directly or indirectly were distributed to, or inured to the benefit of, said defendants and/or other private individuals, other than upon the winding up of the association. 79. As a direct result of this conduct of defendants, and each of them, the association's reserve funds were, and remain, severely depleted and are inadequate for their designated purposes. 80. The conduct of the defendants, as set forth in this cause of action, violated association articles, by-laws and declaration as well as California law. 81. The conduct of defendants, as set forth in this cause of action, breached their fiduciary duties to plaintiffs and injured plaintiffs in an amount to be demonstrated at trial. THIRD CAUSE OF ACTION FOR DAMAGES AGAINST ALL DEFENDANTS FOR FRAUD 82. Plaintiffs reallege and incorporate paragraphs 1 through 55, 57 through 69 and 71 through 81 of this complaint as if fully set forth herein. 83. Defendants have a fiduciary duty, as directors of the association, to plaintiffs and are bound to act in compliance with California law and with the articles, declarations and by-laws of the association. 84. Defendants, in furtherance of their conduct set forth in this complaint, misrepresented facts, failed to disclose true facts, deceived and concealed material facts from plaintiffs with the intention to thereby deprive plaintiffs of property or legal rights or to otherwise injure plaintiffs. CLASS ACTION COMPLAINT FOR DAMAGES 19 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 85. Plaintiffs justifiably believed, and relied upon, the 2 representations of defendants. Plaintiffs PECK DAMIANI and MATTIE 3 TRAINER have only very recently discovered facts demonstrating the 4 falsity of defendants' representations. 5 86. The representations of defendants were in fact false. 6 The true facts and were, at best, 7 indifferent to as members of the association, and intentionally misled plaintiffs and otherwise conducted themselves as alleged in this complaint, are that defendants are the plaintiffs' interests that defendants and repeatedly violated the Association's articles, by-laws and declaration as well as California law, as a means to obtain personal wealth. 87. As a direct result of defendants' conduct plaintiffs have been damaged and continue to be damaged in an amount to be shown at trial. 88. Plaintiffs allege defendants were guilty of fraud as defined in Civil Code §3294, and plaintiffs should recover, in addition to actual damages, damages to make an example of and to punish defendants. The amount of exemplary damages sought is not shown, pursuant to Code of Civil Procedure §425.10. set FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR CONVERSION 89. Plaintiffs reallege and incorporate paragraphs 1 through 57 through 69 and 71 through 81 of this complaint as if fully forth herein. 90. Defendants' knowing, intentional and wrongful use of CLASS ACTION COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the association's income and assets, in excess of the uses for which defendants had authority to use them, actually and substantially interfered with plaintiffs' interests therein and was an unlawful conversion of the association income and assatS. 91. As a result of defendants' concealment of facts indicating their conversion, plaintiffs PECK DAMIANI and MATTIE TRAINER only recently learned of defendants' conversion. 92. As a result of this conversion plaintiffs have suffered injury and damages in an amount to be shown at trial. 93. Plaintiffs allege defendants were guilty of fraud as defined in Civil Code §3294, and plaintiffs should recover, in addition to actual damages, damages to make an example of and to punish defendants. The amount of exemplary damages sought is not shown, pursuant to Code of Civil Procedure ~425.10. FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR CONSTRUCTIVE TRUST 94. Plaintiffs reallege and incorporate paragraphs 1 through 55, 57 through 69 and 71 through 81 of this complaint as if fully set forth herein. 95. At all material times herein, a fiduciary relationship existed between plaintiffs and defendants and defendants had a duty to safeguard the income and assets of plaintiffs' association. 96. At all material times herein, plaintiffs believed implicitly in the integrity and truthfulness of. defendants and placed absolute trust and confidence in defendants. 97. As set forth herein, the association's articles, CLASS ACTION COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 declarations and by-laws, as well as California law, strictly governs defendants' conduct. 98. Plaintiffs PECK DAMIANI and MATTIE TRAINER are informed and believe, and based thereupon alleges, that defendants have repeatedly and materially violated their duties as association directors, and that their pattern of conduct has been motivated by desire for personal profit and has resulted in a use of plaintiffs' association income and assets for defendants' personal benefit. 99. By virtue of defendants' violation of their fiduciary responsibilities to plaintiffs, defendants should be deemed to have expended, and therefore to hold for plaintiffs, association income and assets in constructive trust for plaintiffs in an amount to be demonstrated at trial. WHEREFORE, plaintiffs demand judgment against defendants, and each of them, jointly and severally, as follows: 1. For Special damages in an amount to be shown at. trial; 2. For Payment of plaintiffs' attorney fees from the amount recovered for the common benefit of the class; 3. For pre-judgment Interest at the maximumlegal rate; 4. For Exemplary damages; 5. For a ruling that defendants are constructive trustees for plaintiffs in an amount to be shown at trial; 6. For Costs of suit; and 7. Any other and further relief the court may deem proper. Dated: May 1, 2000 LAW OFFICES OF JAMES J. SIMPSON BY: James J. Simpson, Esq. CLASS ACTION COMPLAINT FOR DAMAGES 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF JAMES J. SIMPSON JAMES J. SIMPSON, ESQ., BAR NO.: 149386 17220 NEWHOPE STREET, SUITE 101 FOUNTAIN VALLEY, CA 92708 (714) 434-7091 ATTORNEY FOR: PETITIONERS PECK DAMIANI and MATTIE TRAINER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO, RANCHO CUCAMONGA DIVISION PECK DAMIANI, MATTIE TRAINER, as individuals and on behalf of those similarly situated, Petitioners, vs. WILLIAM E. HAWKINS; BILL ANGEL; MARK ESTUPINNIAN; DANIEL TAM; MICHAEL BASSO, and DOES 1 through 20, Volunteer Directors of Non-Profit Corporation, ResDondents. CASE NO.: PETITION FOR ORDER ALLOWING FILING OF COMPLAINT AGAINST VOLUNTEER DIRECTORS OF NONPROFIT CORPORATION, AND SUPPORTING DECLARATION OF PECK DAMIANI; MEMORANDUM OF POINTS AND .AUTHORITIES Petitioners, PECK DAMIANI and MATTIE TRAINER, allege: 1. Petitioners expect to be plaintiffs in their own right and on behalf of the members of Rancho Cucamonga V-Haven View Estates Homeowners Association in the proposed complaint attached hereto and filed herewith. 2. The proposed complaint names William E. Hawkins, Bill Angel, Mark Estupinian, Daniel Tam, Michael Basso and DOES 1 through 20 (hereinafter "defendants"), current and former directors of Rancho Cucamonga V-Haven View Estates Homeowners Association, as defendants. PETITION FOR Oi~DERkLLOWING FILING OF COMPLAINT 1 3. Petitioners are informed and believe, and thereupon allege 2 that Rancho Cucamonga V-Haven View Estates Homeowners Association 3 is a nonprofit corporation organized under California's Nonprofit 4 Mutual Benefit Corporation Law and bases its federal income tax 5 exemption on Internal Revenue Code ~501(e)(7). 6 4. The proposed complaint alleges causes of action against 7 defendants for money damages based on causes of action for breach 8 of fiduciary duty, fraud, conversion and constructive trust. 9 5. Although defendants are and were, at the time of the acts 10 of omissions complained of, members of the board of directors of 11 Rancho Cucamonga V-Haven View Estates Homeowners' Association, 12 their acts and omissions complained of herein are outside the scope 13 of their duties as members of the board of directors and 14 petitioners are informed and believe and thereupon allege the 15 conduct was (1) in bad faith and willful, wanton or. grossly 16 negligent; and (2) for reasons that are set forth in the proposed 17 complaint in Paragraphs 56-99 on pages 15-22, and in the 18 accompanying declaration in Paragraphs 2-9. 19 6. Petitioners therefore believe the immunity afforded by 20 Code of Civil Procedure Section 425.15 is not applicable to provide 21 a defense to defendants for the acts complained of in the proposed 22 complaint. 23 WHEREFORE, petitioners pray for an Order authorizing them to 24 file a complaint, in the form of the proposed complaint, including 25 26 27 28 PETITION FOR ORDER i~LLOWING FILING OF COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 causes of action for money damages against defendants, and for all other proper orders. Date: May , 2000 LAW OFFICES OF JAMES J. SIMPSON By: James J. Simpson, Esq. PETITION FOR ORDER ALLOWING FILING OF COMPLAINT 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 VERIFICATION 2 I, the undersigned, Peck Damiani, am a petitioner in the 3 above-entitled proceeding and at all relevant times referenced 4 herein have been a member of Rancho Cucamonga V-Haven View 5 Estates Homeowners Association. I have read the foregoing 6 petition and know the contents thereof. The same is true of my 7 own knowledge, except as to those matters which are therein set 8 forth on information and belief, and as to those matters, I believe them to be true. I declare under penalty of perjury under the laws o£ the State of California that the foregoing is true and correct. Dated: May , 2000 By: Peck Damiani PETITION FOR ORDER ALLOWING FILING OF COMPLAINT 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, the undersigned, Mattie Trainer, am a petitioner in the above-entitled proceeding and at all relevant times referenced herein have been a member of Rancho Cucamonga V-Haven View Estates Homeowners Association. I have read the foregoing petition and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein set forth on information and belief, and as to those matters, I believe them to be true. I declare under penalty of perjury under the laws of the that the foregoing is true and correct. State of California Dated: May , 2000 By: Mattie Trainer PETITION FOR ORDER ALLOWING FILING OF COI~PLAINT 1 SUPPORTING DECLARATION OF PECK DAMIANI 2 I, Peck Damiani, declare: 3 1. I am a plaintiff in the proposed complaint attached 4 hereto and served and filed herewith, and I am and at all 5 relevant times referenced herein have been a member of RAncho 6 Cucamonga V-Haven View Estates Homeowners Association. 7 2. This declaration is in support of the proposed complaint 8 attached hereto which includes causes of action against William 9 E. Hawkins, Bill Angel, Mark Estupinian, Daniel Tam, Michael 10 Basso and DOES 1 through 20 (hereinafter "defendants") for breach 11 of fiduciary duty, fraud, conversion and constructive trust. 12 3. Defendants have, Since 1997~ without proper 13 authorization by members of the Association, spent the 14 Association's money to prevent development of adjoining property. 15 4. Defendants' anti-development litigation is and was not 16 in the best interest of the Association's members and was 17 undertaken in bad faith. 18 5. To finance the litigation defendants distributed money 19 from Rancho Cucamonga V-Haven View Homeowners' Association assets 20 including its reserve funds. 21 6. Each of defendants' several lawsuits were deemed without 22 merit and terminated adversely to the Association. Moreover, the 23 Association may be held liable for the neighboring landowners' 24 attorney fees incurred in defense of those lawsuits. 25 7. Defendants also paid the Association's money to an 26 outside entity known as CURE to finance CURE's litigation to 27 prevent neighboring landowners from developing their property. 28 PETITION FOR ORDER ALLOWING FILING OF COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. When defendants made such distributions from the Association's assets to CURE, several such defendants were current and former member(s) of CURE or acted in conspiracy with current and former member(s) of said CURE in violation of their fiduciary duties to plaintiffs. 9. I and other members of the Association, have repeatedly submitted written demands for access to the books and records of the Association but defendants will not let us review them. 10. I believe the facts stated in Paragraphs 2-9 of this Declaration, in the accompanying Petition and in the proposed Complaint establish that in doing the things complained of defendants were not acting outside the scope of their powers and duties according to the governing documents of the Association, that defendants' conduct was in bad faith and was willful, wanton or grossly negligent and that therefore they should not be afforded the limited immunity from individual liability provided for by Civil Code Section 1365.7(a). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed May , 2000 at Rancho Cucamonga, California. By: Peck Damiani PETITION FOR ORDER ~LT-OWING FILING OF CO~fPLAINT 7 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES "a) No cause of action against a person serving without compensation as a director or officer of a nonprofit corporation described in this section, on account of any negligent act or omission by the person within the scope of that person's duties as a director acting in the capacity of a board m~mher, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes that claim to be filed after the court determines that the party seeking to file the pleading has established evidence that substantiates the claim. The court may allow the filing of a pleading that includes that claim following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based." [CCP §425.15., emphasis added.] Volunteer officers or volunteer directors of an association which manages a common interest development that is exclusively residential shall not be personally liable to any person who suffers injury as a result of the tortious act or omission of the volunteer officer or volunteer director only if all of the following criteria are met: (1) the act or omission was performed within the scope of the officer's or director's association duties; (2) the act or omission was performed in good faith; (3) the act or omission was not willful, wanton, or grossly negligent. California Civil Code Section 1365.7(a). In this case petitioners present a verified petition and a proposed complaint setting forth facts showing that the defendants, in performing the acts complained of, (1) were not acting within the scope of their association duties; (2) were not in good faith; and (3) were willful, wanton or grossly negligent. Thus, the defendants are not insulated from personal liability for their acts and therefore the Court should grant the petition III PETITION FOR ORDER ALLOWING FILING OF COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and accept for filing the proposed Complaint lodged herewith. DATE: May , 2000 LAW OFFICES OF JAMES J. SIMPSON By: James J. Simpson, Esq. PETITION FOR ORDER ALLOWING FILING OF COMPLAINT 9 06/09/00 FRI 14:00 FAX 9094831202 U S FRIhTiNG - R C-CAll5 ORIGINAl_ "~1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 Gordon E. Bosscrma¼, Es . (State Bar No. 65259) STEPHA_N, ORINGI-iER, 3iJCt-EvL~N & TSODO~, P.C. 2029 C~ P~k Ea~ 6~ Floor Los ~gelcs, C~]wo~a 90067-2907 Ax~meys for PlabHq~s FILED-Central District MAY 22 21 Jg SUPERIOR COURT OF Tw!?. STATE OF CALIFORNIA. FOR T}I]E COUNTY OF SAN BERNARBI1NO Honorable Date: Time: D~pt: Dais Action Filed: Trial Date: /// /// CObLP_ L,~j?vT 06/09/00 FRI 14:01 FAX 9094831202 U S PRI~ING - R C-CAllS ~003 "1 Plaintiffs ~llege: ' 2 1. Plaintiffs Joseph H. Stephens, Maxice' Stephenf, Leo Orvananos, Shirley 3 Orv~uanos, V~aync Hoover, Kathteen Hoover, Marylinda McKeith 4 residents to the Cmmty of San Bernardino. At all times relevant to the fa~ alleged heroin, 5 the foregoing described plsintiffs were cuncnt residents of Havenview Esta~s and were 6 members in good standing of the Hav~nview Homeowners Association or their membership 7 in this association dtwolved on him/her by operation of law from the persons who sgld them S their properties, each of whom was a member of the association at the time of the matters 9 complained of heroin (the ~Plaintiffs"). 10 2. On information and belj:f~ Ptaintiff~ altegc, that D=fenH~nt Euslid 11 Management Company is a California Borpara~on doing busincss in the County of San 12 Bernardins. 1] B. Defendant Hav=n~4cw Homeowners Association C'Havenvi~w") 14 incorporamd ~ss ciation under the laws of the State of California with it~ principal place sf 15 business in the City of lancho Cucamong~ County of San Bt~rdino. 16 4. Dcftmfiant Rmncho Cu~znonga 5 Homeown~s A~socia~on ("RC 5") is an 17 incorporated association tmd~r the laws of the State of CaLifornia with its principal piece of 18 business in the Ciiy o~Rmacho Cucamonga, County of San Bt~mardino. 1 ~ 5. De£~ndant Wiltiaxn Angel ("Angel") is a ~esidem of San Bmmardino 20 County. At all times mstt'fial hereL~ Angel wss a member 'of the Bo~d of Directors of R C 21 5 and at fim~s was a member of th~ boexd of dSxecto~s of Harmview. Angel 22 d~velopcr who has built many of the custom homes in K C 5. 23 6. Defendani Bruce Ann Hshn (~Hahn") is a resident of San Bcmsrdino 2~ County. At all times mat!rial heroin, Ha was the President of Hav~nview. Hahn is a real ~ estate broker and an employee of Rancho Pacific, a company owned by Mr. Angel. 26 7. Plaintiffs arc unaware of the identities or capacities of DOES i tkrough ]00, 27 inslusive. Plaintiffs will amend ibis Complaint to ellego their mac comes and capacities when 28 asscrtaLn:d. On information and belief, Plaintiffs al/ege that each of the :~c~liousty named 2 CDMPMINT 06/09/00 FRI 14:01 FA_t 9094851202 U S PRI57ING - R C-CAllS ~004 2 3 4 6 7 9 10 11 12 13 14 16 17 lg 19 20 21 22 23 24 25 26 27 28 ~cfcndanm is ~cspon~ible in sores m~nncr for the occurrences heroin alleged, and that the hmnn to the Plaintiffs and to the defendant ~ssociaIion~ was pro~'~m~tely cau~ed or contributed to by the sondust of the deftmdants. B. At all times material herein~ except as noted, each of the dcfcaa~ts ~-cd heroin, w~ and now is, the agent and employee of the other defendants, and of the dsfcndant associations, an~ ethe~ ~n as nobmd~ cash ~Uch dsfcndant was a~HnE within ths scope of such agency. FACTS COMMON TO AI,L CAUSES OF ACTION. 9. Plaintiffs zre residents of Havenview Estates ("Estates"), a_privat~ community' in Rancho Cusamonga, California. Defendants F, C 5 and Havenv{ew (col/actively, the "A.ssociadons") are the entities responsible for ths business of operating the Estates, inc]uH~ng ths maintenzncs, safs~y, upkemp, and enforcement ofths Covenants, Conditions and Rsstdctions CCCAth"). Thcss ob]/gations includs, but arc not Hm{tcd m, ths bringing and defending of tawsuits. tn mOSt Inatt-~a] Icspcc3Ls, ths two associations Operat~ as oils · puisuant to an agreemeant cnT.~fed into between thorn conzcrn~n8 the sharing of costS, and through custom and pracdss over te past decade. Members of the board of directors of one association sit enthc board of the other, and the decisions of one board affect the r]ghts and property va/u=s of the r=sidcnts of the 10. DcfcndantEuctidM~n~gcm~ntisthcm~nagcmcntcompanyforboth association~ pursuani m a vail_an a~eement Plaintiffs are third party benefciariss of that agreement PlaimHfFs requested a wflt~n copy of those contrasts to attach to Complaint Defendants refused to produce it On information and bcti=i~ P]~mtiffs allege, that the Euclid Agreement provides broad authority 1o ths management company to implement the day-to-day management of the Esmms, msludiug, but not l~m~cd to, rctt-ntion of outside vendors, msluding altomcys; inspection of association grounds for safety violztions and violations of the CC~zRs; repair of damages to association propcrty~ and communications with third parties (including attorneys) as an agent of the Associations. l l. This suit arises out of the failu~s of defendants m properly investigals, disclose 3 CO.~L4FN7 06/09/00 FRI 14:01 F.4_I 9094831202 U S PRINTING - R C-CAllS ~005 · 1 ~ud challenge the removal of the Deer Creek Retention Levee. 'The Deer Creek Levee was 2 constructed by the United States Government and ~a~ certified by the Federal Emergeracy 3 Management Agency C'FEMA") in 1984 to withstand the 100-year flood. It is a massiv~ 4 structtlre Spann~n oa approximately 2,000 feet at the north end of the Estates. AbSent the levee, 5 PIa~nt~ff~' homes will be direcdy beneath a jurisdiction darn of the State of Czlifornh known 6 as the Deer Creek Debris Basin. Properties located immediately beneath jurisdictional dams 7 a~e considered by law to be pen of a flood ~nundat~on area which requires that 8 notify pro spcu ti ve purchasers and lenders of the potential for fto oding in the event the dam 9 fails. Rcmoval ofthe lev~e places plziutLffs' properties zad families in significant risk 10 because of ~n~rmities in the Debris Bssin. The Los Angeles County Flood Control District 11 and numerous experts have concluded flint the upslope debris basis ~ not built to its 12 ofi~ns l design specL~ca~ons and was undersigned hi ~he first instance such ~.,, at bc~ the 13 basis holds 1/10th of its intended flood protection capabilities or ~pprox~nat. dy a 20-year I4 floor. Since 1997, numerous experts have stated that Pjn~nfi~s' homes cou/d bc destroyed 15 ~ad fzm~] ies coald be injured or ldllcd if the levee is removed and the debris basin falls. 16 12. In 1990, developer Brock Homes,/n ~onjun~on with property owner Rober~ 17 Otistithe, began processing a tentative map for the construction of 40 homes on the property 18 where the l~vee is located, ~ommon/y hewn as Trazt 14771. The Associations, including 19 defendants Angel ~ud Hahn, received written notice of the development and hew or should 20 h~ve known that the lcvee would be removed as part ofthe devclopment The Associations 21 rcTsa ncd no experts or attom~-ys to cva/tmte ths s~ety risks or property dev~/uafion relatin~ to the removal of the tt'vee even though the lev~ was the southern boundary of the FEMA 23 flood plsiu at that ~n e. Defendants submitt~ no comments ~o the City of Paucho Cuz~mong% the County of San Bern~rdiuc or the Feder~/~mergency Management Agency 25 abou~thefis'ksasso~iatedw~thremovmgthetevee. Defendzats~/sofaitedtoraisezny objection to the fact that the developer was building homes on prope:n~ zoned as "open 27 space" pursu~nl to th~ City of Ranzho Cucamonga General Phn. On inforn~tion and belief, 28 Pia/nfi~ allege that ~n 1990, members of the boaxd of directors of the Assoc{afions, 06/09/00 FRI 14:02 F.~ 9094831202 U S PRINTING - R C-CAll5 ~006 "1 including Angel and i-i~h~. were sophis~ca~e d in the area of real estate development and 2 f~m~llar With the Cilfs G~'m~al Plan. Plaintiffs further allege that Hahn sent correspondence 3 to the City of Rancho Cucamonga stating that the Associations approvnd of the developmen~ 4 on Tract No. 14771 without first ob4~inln g approval ~rom the Boaxds. 5 13. Tract No. 14771 reverted to its current owner, Robert Cristiano 6 in appro>d~n atety t992. At that time, the Ass ociafioni ~temande d that Cristiano construct a 7 fire road to ensure s~i cient emergency ingress and egress into the Estates. Cristiano 8 proceeded to cdnswact the road by uulawfulty breaching the levee instead of building the 9 road around the levee as required by the City of Rancho Cucamonga. Defendants knew, or 10 should have known, ~hat an express condition of the Tentative Map for Tract No. t4771 11 ?p ecilied thzt the levee could not be graded and/or removed until such time as alternative 12 flood infrastmcmxe was constructed. This information was readily available in the very City 13 files that defendants would have reviewed in connection with requesting a fire road. 14 Defendants took no action Io dern,n d the repair of the levee nor did they themselves repaired I5 'the levee despite the potential damage to downslope property owners, particulaxly the 16 properties of the Orvananos and the Hoovers.. 17 14. Plaintiffs moved to Havenview at ~rious times between 1992 and 1996. At the 18 time they purchased their prop~'xties, defendants did not inform them that the levee would be 19 removed, and there was no indication in the CC&ks that flood infrastructure protecting 20 plaintiffs homes would be altered. 21 15. In approximately 1996, Cristiano began processing his final appr6val for 22 construction of the homes. A~ that nine, Euclid Management was contacted by his agent, 23 Lauren Development, and advised that final p~its would be processed and the 24 development would proceed. On infon~ation and belief, Plaintiffs allege, that Euclid 25 Management, Hahn and Angel were aware that the development would move forward but 26 failed to disclose ts fact to other board members and/or Plaintiffs. On infommtio'n end 27 belief, Plain:Sffs further a]lege, that Hahn commenced negotiations with Crisdano ~md/or his 28 agents for a listing ~greement to sel/the homes to be conshunted on T~azt No. 14771. On 5 COMPL4LVr 06/09/00 FRI 14:02 FAI 9094831202 U S PRIhTING - R C-CAllS ~ 0o7 · '1 iifformation and belii:f, Plaintiffs furl:bet allege, that Euclid Management begax~ negotiatmg 2 an agreement with Crisljano m ser~e as the management company for the proposed new 3 ~ssociation on Tract No. 14771. These con~q~cts of interests were never disclosed m 4 Plain~'~, 5 16. On May 23,1997, Eucl{dsent'writtennoticetoPlain~ofaso-called 6 "neighborhood meeting" to discuss the archi~ec~uro] design of Lhe Tract No. 14771 7 homes. That notice did nol mention thai the levee would be removed. SubsequenTly, g P]~n~ffs learned for the firm time thai the development of Tract No. 14771 would insiude 9 reeloval of~he Deer Creek Levee. Prior to ta~ ~qrne, Plaintiffs had no knowledge that suEh ' 10 removal would oscLtr. 11 17. On information and belief, Plzinti.ffsallege. that defendants' actions in faH~ng 12 to challenge the Cris~iano Project in 1990, 1992 1996, and their inadequate subsequent 13 challenge io the Projest, have resulted in Plainfi ffq inflividualiy and as members of the 14 ~ssosiati on having to pay si.gn~fi cant n~iom~/s' fccs and costs in connesdon with challem~n g 15 the Cris~ano project ~lrougk variou~ litigations. Plaintiffs also have spc-nt considerable smrns I6 in exper~ and attorney fees to investigate ~j2e ~nfirm/~es of the Debris Basis and to ensure 17 tha~ regu]atory agencies a~t ~o corfe~ those in{irn~ties - all cos~s Ihzt should have been 18 borne by the Associaxions. These efforts have been l~rgely haxnpered and the litigation has 19 beemunsuccessfulinpaxibesanseofthefaitLLrcofdefcadantstoa~tresponsibiya/the 20 appropriate ime in 1990, 1992 nnd 1996. ~or purposes of example only, Cristiano routinely 21 references Ms. H~h~s' letter approving the deveiopmen~, the Associations' demands for a 22 iLre road, the Associations' f~/Jure to challenge the location of the ie road, and Ms. HahnS' 23 and Angel's conflicts of interests in defending his developm~-nt fights. 2z~ 18. Althoughi~stheirresponsibitity, Defendan~sha~,zbccnLtnw~lHngtopaythe 25 majority of teshnir_.al and legal fees 8sso ciaLed ~-ith txm]ua~ing the snfcty rish of removing 26 the levee; have failed ~o raise ass ociaIion dues to rep]cnlsh reserves necessary to challenge 27 the Crisdano develolnnen~ have failed ~o disclose =onilicts of interest of various board' 2g members thai have' and may continue to ~n~quense decision making concerning challenges lo 6 COMFLtd'NT .06/0g/00 FRI 14:02 F,%/9094831202 U S PRLVYING - R C-CAllS ' "1 the cris~Mn0 project;' ~ud indi~ddual board members have setfled litigation ~dth Cfisti~o 2 ~nat ncgativcly impacted the Associations v, dthout fuli~ djsclosing such sctdcmcnts and 3 conflicts of interest to the Associations. 4 19. On reformation and belief, PlainH~ further allege that employees of Euclid 5 Management have d~sclosed con~identiaJ information to t~d pardes concerning the 6 Associations' challenge to the Crisdano de~clapmcnt to the prejudice of the Assodadons 7 and pJ~ntiffs. 8 20. Pjahnliffs have bccn da~naged by thc conduct of each d=fcndant in that 9 (1) plaintiffs were precluded from timely asscr~ug their |egal rjgjnts agaiust the Crjsdano ' 10 development; (2) plain~f~s have be~n mzdc to pay legal fees and costs that ~ould hav~ bccn 11 avojdedifdefendantsh~d5fi~]ledtheirSducjaryobtjgadonsandlimc]yiuv~stigatedand' 12 cb~H cngcd the projc~ and ~'cre the obljgadon of defendants to pay; (B) pi~ntlffs have been magic to pay substantinl legal fccs and costs to properly challenge the safety risks associated t4 with thc projecL based upon dcfcudants' faihrc and un~v~llingncss to do so in order to 15 'protect the value of their property and avoid serious property d~rnage and personal ~njury to 16 their f~m~Hcs. 17 2 i. Piainti~fs tcnd~cd a tolling agret~ment to a]l pardes approximately 30 days 1 ~ prior to filing this litigation, and endeavored to avoid ]jtjgnt~on through the sjLJn~ng of that 19 sgccmcnt. Althou~__h the respective Boards of Directors wcrc in favor of sj~n~ng the 20 agrecmczlt~ counscI for the Boards advised them that no insuransc defense ~voLlld be 21 available if the to] Hng agreement v~as signed. Ba~ed upon the rcf~al to sign the' a~jeeTncmt, 22 this lawsuit ~vzs necessary to pres c~fvc the ri~hts of plaintL~Ts. 23 22. Plaints didnotmake any sffortto secure action f:rom the boards ?f directors 24 of the Associations or from the Associa~ons, smcc such effort v~ouJd h~ve bccn futUe in that 25 by refusing to triter into the tolling agreements, the boards of directors of the Associations 26 and the Associations have cvidensed an unwillingness to act on these matters in thnc to 27 prevent the loss of the cla~m q ~jJcgcd heroin. 28 /// ? CO.~j~DLFf~ O6/Og/O0 FRI 14:03 F.4/9094831202 U S PRINTING - R C-CAllS ~009 2 3 4 5 6 7 8 9 10 12 13 23. The tolling agreements delivered to *,he Associations described the basis for fie present action. NeverLhetess, the Associations refiised to enter into fie tolling agreements thereby making this artion necessary and thereby evidencing fie Associations' refusal to prosesut~ the present action, 24. tf Ptaim~ffs ~xe successful in this action, a substantial benefit wi]] result to the A~sosiations on whose behat~ m par~ ~his action is prosesuted, in thzt the Associations will b~ endfled to some part of the sompensation for the injuries described in paragraph 19, above. FIRST CAUSE OF ACTION (Brou,~h~ by Plaj~-~fiffs Stevens, Orvananos, McKdths, and Hoovers, individually and on behalcf of the Associations) ('Breash of Contrast Ag'~nst Euclid Managmcnt) 25L Plaintiffs incorpomt~ paragraphs I through 24 ~ set forth fully. 14 26. On information and belie~ Plaintiffs allege that a written contms~ exists 15 .between Euclid Management emd the Associations under which Euclid is obliga~d to take i 6 actions to protest the value of Plaintiffs' properties ~ncluding, but not limited 17 investigating and chalten~ing the Oristiano ~oject, Euclid Management further is obligated 18 to disciose conflicts of interest and to serve in the best interest of the Associations at 19 times. 20 27. EucLid Management has breached its duties to the Associations and to 21 plaintiffs. Sush bzeash has resukcd in Pjaiu~iffs =x.ucndin~ substantial swms to ensure that 22 the flood infrash usture ~s safe, and otherwise ~aldng all steps necessary to protest their 23 properdes and families. ~ SECOND CAUSE OF ACTION 25 (Negligence Against all Dt-fcndznts) 26 ' 28. Plaintiffs mcorporate p~zagraphs I thxouE_zh,24 as set forth 27 29. Defendants, and cash of then~ had a du~ to Plaintiffs and/or the Associations 2~ to protect Plain~iff~' pzoperty from devalua~on and safety risks, audtoinvesdgateand 8 06/0~/00 FRI 14:03 FiX 9094831202 U S PRINTING - R C-CAll5 ~010 · 1 challenge actigns tha~ place Plaintiffs' property in danger of destruction, d~m~ge and 2 dcvaluation. 3 30. Defendants hay= breached their dul:ies concerning the above, which has devalued 4 Plaintiffs' pzoperty and has ~esulted in the Plaintiffq, individually and as members of the 5 Associations, incurring siE-ni~cant legal and expert costs to protest their properties. 6 THIRDD CAUSE OF ACTION 7 (Bleach of Fiduciary Obligation 8 Against the Boards of Directors of the Associadsns, H~hn and Angel) 9 31. Plaintiffs insorpomtc paragraphs l through 23 as set forth fulty. 10 32. At a]J times material heroin, the Board of Directors of the Associations and 11 individual board me_mb~s had a fiduciary obligation to Plaintiffs and/or fat Associations to 12 act in Plaintifzi%' best intr-rcsL including the invn~stigation and challenge of actions That were 13 dctrimentaI to the property value of plaintiffs. Members of the Board of Directors further 14 had obligations to disclose conflicts of interest that might impact their decision making 15 'including, but not limited to, dealings with developer Cristiano, dealings with the City of I6 Rancho Cuczmonga, Or investment in other areas potentia]jy impacted if the debris basins 17 were prov:rn to be dangeron.s. 18 ~ 33. The Boards also ~vcre obligated to/ake all actions necessary to prevent the ! 9 removal of the levee, to repair any breach in Ihe iev~ and to prevent any of the resulting 20 impact to PlaintiEs' propml-y x~lucs and homes including, but not limited to, raising 21 association dues to replenish res.-Tces necessary to fund experts and attorneys to' do so. The 22 Boards have failed to do so. 23 34. In failing to take the above actions, the Boards did not act ieasonab}y given the 24 overwhelming evidence of a dangerous condition that has substantially alevalued plaintiffs' 25 property and could result in significant damage to plaintiffs' propcity and families in the 2~ event of flooding. 27 /// 28 /// 9 COMPL4Z?,~ 08/09/00 FRI 14:0~ F.~I 9094831202 U S PRI~7ING - R C-CAllS -1 2 3 5 6 7 8 9 10 11 12 15 16 17 lg 19 20 21 22 23 25 26 27 28 35. Based ~pon the Boards' breazh of fiduciary obligations, pl~int~% have suffered damages including, but not ]imimd to, the pa~gnent of attomzys' fees a_ud costs conduct work otherwise appropriate for the Associations. WHEREFORE, Plaintiffs pray as follows: 1. On the first cause of action, for compensatory and consequential d~m~ges accorHing fo proof. 2. On the second cause of act[on. far compensatory and conscque~t[al damages accorcSmg lo proof. 3. On the ~Mrd cause of acSon, for compensatory and consequential damages . according to proof. 4. For attorneys fees and costs on P.1l causes Of action. DATBD: May ~,,2000 Respecfful;ty submitled, SZn~PHA_N, OR.TNGlgSPs PdCH'MAN & ODOtL~ ~~S, ~E S~P~S, LEO ORVLN.&NOS, S~EY ORVggOS, WA~Z HO0~t ggEEN H00~ g%DA MCEI glSSA MC~I~, 10 CoM?L,terf We have finally reached closure on the "safety issue" that starbed this whole mass, Earlier this year, Malie~e M~Keith hired Exponent Failure Analysis Associates to prepare a study of the Deer Creek Dab, is Basin. McKeiffi claimed the Debris Basin wa~ unsafe and would fail. McKeith's 'experts" claimed the Debris Basin would only hold a 204/ear storm 6vent and not aIOC~year flood as the Army Corp. of Engineers testified to Senators Boxer and Felnstein. and the U.S. Government [I~MA] guaranteed. Of course. HewIdes end Fi~hn iumped all over the "exper~'s' clalms as support for their private agerids against Cristlano and Lauren DevoiDpreens- McKeith and our direc~rs demanded an independent "saL~ ~tudy" as the only way to resolvs the issue. They got what they wanted. The independent safeDJ stody McKeith, Hawkins and Hahn demanded has now been completed. The Debris Basin is safe and the FEMA guarantee of 1Oilyear flood protectjoe Is valid. Mr. Hawkin's prediction on August 10' that the Debris Basin would be dece~jfied proved, once again, to be just as inaccurate as his falsehood that the city was removing the rest of the levee. Here is the ax~ct lan~]uags from the USACOE report SurnmamJ and Conclusions "1 B. In summary, l~ne information p~Nided in the Exponent. Inc. repo~t. LACI3PW [Los Angele~ County Depa~;~.i,ent of Public Wo~ka] let;~eP. and Mr. Kid~y's declaration are insufficient for tha Corps of Engineers ~o deoe~i~/the Deer Creek Debris Basin and Channel Project as providing pPccectian from the FEMA Base Rood [1-percent chance}. The assertion by -Exponent Inc theft =he flood inflow and debris can only am:or the basin In the currently active channel is inconsistent with clear physical evidence that flood and debris flows have occurred on ~he west side of the alluvial fair Exponen~ |nee report conclusions regarding the extant of the floodplain downstream of the Deer C_.~eek ElebHs Basin du~ing a Base Flood event are largeh/cunjooture unsupported by engineering analysis. B~d an the information provided heroin the C~rp~ of Engineers cel~;ificetlon FEMA that the Deer Creek Debris Basin and Channel Project affords protection from the Base Flood Is b-till valid" What about the Deer Cr~k Reception lzvca an Cri~-rjano's property and McKeith's axpert~ Mr. Kidly, who said it should not be removed?. Hers te what the independent safety sl;udy had Co say. "It is apparent that iMP. Kirby] is unfamiliar with the Corps debris depsait~on deeiOn." 'Wiffi regard t~ Mr. Kj~t's dac[aratian_.the ex/sting Deer Creek Reception Levee would net. meet current EMA requirements to be recognized on NRP maps as providing protection from the Boca Flood....Hence, Mr. Kirby'5 Pellenc~ on the I:)f;er Creek Reception Levee as a viable flood control feature that meets FEMA t~egula~ions as an official flood control feature is misplaced." Once again. the unaubctant;iated accusations of McKeltE end our directors hsv~ been p~oven false. Firet~ il; was endangered species. None were found. Then they said LeuFBR'S $200,000 cheap 1el'act home~ would devalua our property. Another lie. Next; cerne the ~OC high levee that; was vital to our safety. It tumor out to be 1 (3 feet high and never pa~ of the flood control system. The nexS manufactured crisis was the Debris Basin thaC was poised tu roll arid Gend large bouIder~ into our homes according I:o Mr. Hawkins. Who can fonDtic their home video on cable ]V? Wrong yet again. And remember all those Isw=ult~? They every one, Will this independent safety s~udy satisfy McKaiffi, Hawkins end Hahn? We are confident they will reject the very safety study they demanded. They will no doubt demand a higher authority evaluate the "safeLy problem" at Haven View Estates. Well. we have learned our lesson. The only sef~y problem here F~ letIcing these p¢~ple anywhere near our money. Speaking of our money. wilt we be loft holding the bag once again? VVho will pay for the Exponent study that is 'conjecture" and "unsupported by engineering analysis"? We wi[l if McKeith has her way. McKeith has sued both of our associations, 'Fhose lawsuits e~e alive and well. Here is what she said in her lawsuit against us, %..Defendants [which means us] have been unwilling to pay the majority of technical and legal fees associated with evaluating the safety risl~ of removing the levee, have failed raise association dues t~ replenish reserves neces.~en]te challenge ~he [:fistlane development, have failed to disclose conflicts of interest,.." McKeith has asked for at~3rne~/s fees end costs in her complaint, Now them is a big curpries. If McKeith is successful. she can co[lec~ all the "probate" fees she so generously donated to us. According to our directors. that is over $350,QQ{3. She can also collect the $7P.0OO she ran up at Latham ~ Watkins and Is now asking Us to pay. And she can sis0 collect the $20,000 fur the Exponent S~jdy that turned out to be nothing but conjecture. Who is defending us in that lawsui~? What is our defense? Why aren't we ellowed to know what is going on9 Are we going to let the same crack team tha~ lost every single lagaJ action to date defend us agains: the slick lawyer who engineered this me~s? Who is this crack Warn that want~ to defend us? Dill Hawkins, Bruce Ann HeM, Bill Angel, Mark Es~pinlan, Michael Basso, Daniel Tam, Mahlon Sampson, and Tom Bradford. Remember those names before you vote in ~he next election_ These are the people who exhausted our reserves and lost every lawsuit only to learn that there NEVER was a safety i~ue at Haven View Estates That is the only logical conclusion one can reach after all these studies showing the same exact results. The safety issue they have been screaming about never existed. Do ~u trust these people? Do ~u trus~ ~heir decisions to date? Have they spent our money wisely. Have they done e good job as our director~? These people, who claim the support of 100% of the cornmunlt"y, ere being] sued by no less th~n eight residerills separate lawsuits for fraud end breach of fiduciary duty. Do you have confidence in ~heir ability to separate their personal agerides from their responsibili~jes to our association and ourselves? You better have a great deal of confidence in them, because they ere a%l that stands between liens on our homes and McKeith's claim of money damages. VVhet type of defense will Hawkins and Hahn pLrc up for MsKeith's lawsuM2 After all, the directors are the ones who took her advice to begin with, How will they defend themselves against that? Our former lawyer told our directors giving our money to CURE [$30,000] and Spirit of the Sage [$8,000] was illegal. McKei~h told them it Was OK. They relied on McKeith, Now she is suing them fi3r breach of fiduciary du~y. VVhet is their defense? Will our directors simply roll over and offer no defense as a favor to their teamrnata? Is this the pro-agreed plan? If so, we c~n be assessed $2,300 par Iol; to pay McKeith's bills. [Plus $3,000 each to restore our reserves.] Our own assadation lawyer, Luls Venture, said e judgment forces an assessment, end an unpaid assessment legally puts a lien on our homes. The good new~ is that we do not have e safer/issue. The bad news is thor. we sl~ll have our directors and that may be a bigger saf~y issue to our wallets. You betacar have ~ lot of confidence tn Hawidns. Hahn. Ange], Estupinian, Bes_~, Tam, Sampr~n and Bradford before y~J ~ for them in the ne2d; elation. They ~dll centhal our- a~sciation checkbook and they alone decide haw much of our money McKeith wil[ get~ Think about DEPARTI~ZENT OF JU.$TICE Au~n~.s~ 18, 2'000 NOTICE OF COMPLAINT Cenpez=dj. oz~ Cede Sec'~on 8216 Dcax .qirl~,l.,darn: Enclosnxt i~ a copy of a mcrabcr's complaint a2|cging xim~ ~NC~O CUCAMONGA V- VIEW ESTATES HOMEO~R'S ASSO~A~ON / HA~N ~ ESTATKS ASSOrTION ~ f~ ~ ~plV ~ ~ Co~ions Code ~on or Culp. C,~d~, § 7512 Corp. Code. § 8321 (e,) t-'~lure to prepare an ~-xrmal report. Corp_. Code, ~ 8321(a) Failure to _rmev~d¢ annua/p,-.~ort nn tnexnber upon ~firten req~e_ct. Corp. C3.d~, § 8333 Corp. Code ~ 8215 F.~La,.~ da,~ ui' v, ~,,,~ p~: L~ ~rl -l~c~oa cepc, rL. ut Rancho Cxacamoaga V-lrI~vcn Vice- ts Homcowla~r' s Ag, ociauoiz August 18, 2000 Page 2 In the evmlt your or ~t~cne h~ s~h s~t~ ~ons, or pr~e~iags of~)- type co~n~t~tjuri~icdon or ~fo~ prefiX, ~xdsio~ or hl ~,~ies t~ may ~ approve mcm~ ~m ~v~e ~ ~mcaB. In ~)' sa ~o~ a c~fi~ involved, or Thank you for =xpcdkioasly r~sponding m this m~-~-~_ Sincerely, C. Casillas, Analyst Public inquiry Unit BTr.T. LOIL'i'CfEK AIIu~ ncy Gcncl a I cc,.j~ Enc losarc Mr. James J..~impson. Esq. 2834 t~mner Avenue Norco, CA 92860 8, ooo Have depths wil[ SeptembeP they no shame? To what our directors stoop? On 6', Haven View Estates Homeowners Association held an OPEN monthly board meeting. This meeting was OPEN to the members. Mr. James Simpson attended the meeting with a proxy to represent homeowners Hazegh and Rorenza who were unable to attend. Directors Hahn, Hawkins and Bradford asked him to leave the OPEN meeting. When he refused to leave,' Director Bradford called the police and attempted a cidzen's arres~J The police arrived and informed Hahn, Hawkins and Bradford that Mr. Simpson had EVERY fight to be there. So, they ended the meeting and everyone left. Remember the names Hahn, Hawkins and Bradford before you cast your. next vote. These people do net believe we have a fight to know what they are up And, if we ask, they will attempt to arrest us! What arrogance! Our directors ended the meeting rather than have Mr. Simpson see what they want to do next, Who knows what mischief is planned now for our We have had several requests for the Independent Safety Study that verities there is no safety problem at Haven View Estates. We mentioned the study in our last newsletter. The independent safety study that our directors demanded verities that Cfistiano can safety remove his levee AND the debris basin remains certified to hold a 10E~ year flood. We are safe. We can only imagine what a great disappointment this was to Director Hawkins in particular as he predicted the debris basin would be de-certified at the August 10~ informational meeting. Wrong again, Bill. You can try to get the safety study from our directors, as we did. They denied having a copy. After spending over $500,000 of our money on this safety issue, they do not have a copy. Go figure. You can try to get it from Euclid Management, as we did. But, you will learn that they never heard of ~ Amazing. For people so concerned about our safety, you would think they would have the very document that proves we are safe. Of course they have the report. Just like the audit But, they will not show it to us. They are too embarrassed to let us see this stuff. It proves that this entire safety issue was trumped up. This report is pretty embarrassing to McKeith and Hawkins. It appears the "experts" they hired with our money were not very expert after all Fortunately someone does want us to see the independent safety study. His name is Bob Cfisdano. if you want a copy, he will mail or fax you one. Call him at 949-476-0101. He will even explain it to you, which is more than what our own directors will do. Last 'newsletter, we told you what McKeith is tryin9 to collect from us with her lawsuit. This newsletter we will bring you up to date on what is happening with the class arden lawsuit flied by Mr. Simpson on behalf of homeowners Damiani, Trainer, Hazegh and Fiorenza. The original lawsuit was filed as a class arden suit That means each of us wouId be protected atr~matjcally. Our directors obiected to the class action lawsuit So, the judge asked Mr. Simpson to change it to a shareholders derivative lawsuit That means in order to be protected you must join in the lawsuit You are no longer automatically protected. Let's look at what is at stake here. The lawsuit claims the directors went beyond their authority when they spent our money. The lawsuit claims the directors did net.have the right to spend. our money without our approval. The lawsuit claims they spent our money iliegally. For example, they gave $30,000 to McKeith (CURE) and $8,000 to the Spirit of the Sage. This is against the law in California. That is why the Atb3rney Genera~ has sent our associations a NOTICE OF COMPLAINT. Our directors gave $10.000 to Bill Hawkins [according to their own audit) for "other legal fees". Hawkins is not a lawyer. The lawsuit claims the $10.000 was to pay for Hawkin's trips to lobby Boxer and Feinstein, which is illegal. If the directors lose the shareholders lawsuK they could be forced to pay back all the money they spent illegally. This is very serious as they spent over $500,000 of our 8ssociation's money and ewe over $200,1~00 to two big law firms. Further, if they loot McKeith's lawsuit as well, our associations could be forced to pay over $400,000 for her legal fees and so-called experts. If you participate in the shareholders lawsu~ it could protect you againot illegal assessments planned by our directors by forcing them to pay these bills themselves. Hers is what our directors, by law, must do. Rrst they muot restore the reserves. Since they spent over $500,000 from our reserve accounts. they must restore it They may do it over time, but it muot be dane. That is $2,500 per home or lot Then they must pay the bills owed to the big law firms. We owe over $234,000 as of April 1. 2000 and it is higher today. Even at $250,000, that is another $1,250 per home or lot. These are bills that must be paid or we will be sued· If we lose the McKeith lawsuit that may require another $2,250 per home or lot And then there is the appeal that Mr. Hawkins said he would not file and Mr. Bradford said we would not pay for. Both statements turned out to be lies. That can cost another $100,000 or $500 per home or lot Lastly, when our directors lost the open space lawsuit, the city and Cristiano were awarded costs. We have no way of knowing what those costs will be but they could be as high as $200,000 or another $1,0O0 per home or lot So, Iot's add it up. This is what it could cost each of us: 1. $2,500 to restore reserves 2. $1,250 to pay existing legal bills 3. $1,000 for the current appeal $4,750 per home or lot And if it could get worse: 4. $2250 for McKeith 5. $1,000 for costs Total $8.000 per home or tot~ Or, as Mr. Hawkins would prebabty say, "Just $21.92 per home per day.' If taking the risk of an assessment of $8,000 is acceptable to you, do nothing. Back these directors and take your chances. If you are unwilling to take that risk and do not want to pay a large assessment you must join in the shareholders lawsuit t~a protect yourself. There will be no innocent bystanders. This in no longer a class action lawsuit that automatically protects you. The decision is pret:y simple. We owe this money· It must be paid. Who should pay for it? Who will pay for it? The people that created this mess or you? It is that simple. If you want more information on how the shareholders lawsuit works, how it can protect you, or how to join, you can call Mr. James Simpson at 90~898-9664 for information. He is the lawyer representing Haven View homeowners in the shareholders lawsuit. ~'gI~I~UARy :18. :2fi0~ STATUS OF LITIGATION SO l~q~fv~_ W t · Feb-22-O0 04: 14P Zaphy~ Pa~tngrs LLC 949 752-0667 P, 03 STATUS 01' OVa a~SERV~ ACCOUA~T f°~mrdmsee~n2y~xxtouf,-,~;,~enFcbxxmn-22, ' Very uuly you~ Rauc~ Ctmmonp V Haven View ~qd 972S:S :eLUL OOf~i~O :e~O lp,,-lmH t~mj.~ :oI px?d 1I!-3 P.O. Box 72~, ~-~,--2Og Rancho Cuc~manOe Ca ~172g Notice of Flood Hazerd elYeul/ng Cfi'y of Rancfio Cuc~monga, California Loan Portfolios Deer Mr. TaU:x~l: 1he City cff Ran~-fio ~;mo~ ~p~ ~e ~ufcn Devetspmcnt Pm{e~ ~i~ Deer C~k ~ee ~ ~ih~ Co~ of ~in~a~ as pa~ 01~fie 19~0~ Oee~ ~, ~ of d~ ~ ~II ~ tn ~h~ aa~ plain sad a[ ~k ~f . ~ , , , , ~ ~ 100 .Y~T ~ ~ ~e ~c~ ~ 7,~' of ~aH. T~ ~y ~ ~n o~ ~o ~o~ the 310 a~ f~et of deb~ geac~(~ ~y a 3~ ~e-Haur ~o~, OdDbet 15, (6S9 P.O. Box 72B~C-209 Ranci'qo Cuc~mon_~a CA 91729 [ Dear [al;]ent or seller]: in November o~ 21SPB, the C~3' of Rancho Cusam~nga appnaved ~e Lauren T~ t4~18nd as of today. ~r 15, t999. ~ ~ ~sued ~u~n's ~ding ~ The developer steed ~a~ ~omo~w he {ateads 9~ng ~ ~ ~mugh ~e ~er Creek Le~. Re~l ~ ~ Levee p~ d~ope homes ba~ ' ¢otenilai(y be ~b~e~ ~ severn, high speed debds or '~ud' fi~s; Su~ d~ds fio~ present a ~sk to ' ' p~pe~ and a dsk ~ pemonal tn~ or dea~. N~e ~ ~e ms~od~ of ~e 600 poDpie ~o died ~e~s fioo~ died ~m deeds fi~ ~hef ~n ~e flood The Deer Creek D~bds Basin ~as designed to a 3.27' Throe Hour S~. The C~ and ~umn Oe~osment main~in ~h~ 327" i~ a 200 Y~r S~ lnfa - cn o~ined from bo~ ~e A~y ~s INFOR~TIDN ~1CH DISCU%ES THESE FLOOD AND DBBRIS FLOW DANGERS 1N D~AIL Settern and binkern of real prsperty are now mqulred under Cztff, omja law ~ pm~de ~en d~dosums tQ p~ge~i~e buyera ~min~ h~aus ~nd~ns ~nduding flooding. The ~nd~ed ~afo~on f~a~ing ~e h~ous ~ndi~o~ ~ul~ng ~m ~e ~vee's f~md~al may ass~ you ~ preparing the ~qui~d 'Disclosures ' for your ~ten~l ho~e ~u~esem Them {s ~n~m ~ pm~a~e buyera of ' yo~ ~es ~y ~Q~ ~e m~Wed any in~a~a~ m~n~ One po~al ~nger ~fi~ding a~d debds flow nor ~e ~nnunda~on Disdozu~s ~qai~d for a ~ud~d{~pnal d~m 5y ~ie law. Complete d{sd~u~ of ~e poten~o l ds~ ~nl] p~ie~ ~ ag~t~ d8{~ f~ dodges from fieargO- and dehds ~ or ~or dai~ f~ d{m{n~ion in va~. I unde~nd ~ ~e legal opinion (~m Ra~o ~mo~a V {a~e~ ~s ~ sel{~ ~u~ ~ he~ ~t{y (iab4e for all damages un{ess ~ey pm~ed su~ disdo~ams. included a~ ~pies of e~ d~amSo~ and supporing d~m~S regaling the ~ng~. Y~ should ginvide ~s {~o~on ~ ~ur a~m~ foran in~dent option bemuse la~ m~ ~ flied to ~er Yo~ 'dim~an ~ vaiue' and pun~e damages for failu~ ~ d~do~, ~ may tm~ any home s~ies m~de after Nobemir 1 B, 19~e, even prior ~ a~l ~ood ds~ge~. Cc~in~y ~ ~amn's g~din~ pe~ siready issu~ ~ou shou{d begin making ~e ~{e~ant di~dos~ s immediately to ev~id {n~ng add~ona( tiab~l~/. '7 Mu~ ~u ~ ~9t t ...... . .... . , ' u~ cve~ amae~ value~ c;m msn~ 5v for damages ~m ~ding ~nd debris ~ b~ a~sa agmns, Ja~' , , . I fhe ~f such I unde~nd ~ne 4e~al opinion ~m Rzncho Cu~mong~ V l~e~ ~s I~[ ~e~e~ sh~e{d h{~cfff~m Uabi[~ ~h~ugh = scans ~ {imk~ iiabili~ ~a~t[o~ & pa~csh{ps..~ patend.s[ d~d ~uld ~n up lo thc hund~ds afailEons ~lIa~', ~,{~{ms will be s~a~{ng ~ra~so[v~nt . . and s~r~fic ~t ~u~(e sf weeks after a di~ter. Ha~vcr, lh~ is a one time ' ' ~h lh~sa' {~=m FE~ has p~ ~6~j~ ~he ~omd 9~6{n ~b~m~. F~ {~d~tcs ~t Cd~iana'~ ~nsafianL P~ul The e~ens{vc nt~paper ~nd ~d~v~{on ~ve~e sflhe ~u~n ~%-c[:pmen~ m~ke~ ~r C~fj~n3'5 ~clc~cd ~mmen~ ~h~t dher em~ de i~c~!={y fa~ling to mro~de ~hcse rdevant d~o~u~s ~t~s cv~ more of a amb~em. ~m ~U sa~ ~r ~m=~e~ ~n~ ~m~o~, ~u may be ~ed .3, lh~ ~du~,,on ~h flames ionted ~n ha~=~ a~as. Furj~er. lh~ Nai{o~l ~Wealhcr Semite a/~ N~nr~l O~an{c and Rim=sPhe~c Adm{n~i~i{an maps lh~ wale~hed ~ lhe hi~he~ ~[I in ~c eni{~ ~te, ~em~s~ Ibis ~ msdi~f a~iiab{e 9ubi i~o~{an, ~ou may ~eI{ be hdd to a ~{~h~ ~a~a~ m~a~ing ~ur ob{{~lion 1111~'98 OaiiV Bui~iin ~ood n~{~ ~p ~ b~ used to idg~r d~ims <or punkiv~ damages ~d~e~). You ~hoaid here lh~e {=su~= m~d by ~ur o~ ~am~- is ~ ~nou~h of~ ri~k ~ ~ue liyju~y my didciting ~e flood h~ze~. ~e~ {{nbii~ ~of ~ou. ~tno~ lh~ {eve= ~e f~d risk iS ~c~ h{~h and ~ e~mated ae~bd ~hich ~s f~ss ~han a 25 ~ar ~D~ a~ ~e 'median"ele~fi'o~ of ~OO'. ~ ~ ~d/n~ ~o b: f~ dd 1972 end n~/f~ffsn~/Decants & ntm~sp~en~ ~-mtR~4fo~ ~om5 of Engineera excluded all sto~s ~ihin ~e yea~ of a bum b lhe ~leTshed ~en de~iSning than 3 .ODD a~ feet or 7,255,5D0 inns of de~ o~e~opP{ng lhe debds basin. This info~s~an C~'s ~5 and a{5o is a~chad. deciding ~ ~ dl~ci~u~? ~e Ci~ of Ran~,o Cu~n~a refused ~ ~ndu~ an independent ~udy or ~o h~e ~he S~ta cf ~li~mla pm~id~ ~ independen[ ~p~nion abD~ ~he ~fe~ of ~u~n ~velopment and i~ de~Jdion of the Lev~. ~is 40' high L~vee ~as ~r~md~ by the ~ ~a~ of ~e ~ C~ek Pmje~. At ~e ~m~ of ~ Creek Pmj~ d~s[gn the ~s h~d b~n ~s~d lhem ~uid be no development on ~h~ a~j~e ~tlu~{~ fan ~bov~ Bas~lin~ and ~t 9mp~ (Canal Pa~) and BartOn would b~ u~i~ ~ a se~nda~ be=Ins. Pm~iou~ ~o ~is (9~'s ~ns~jon other tepees had been {n pZa~. tn 1934 C~e u.s.F.s~.c.c. ~ns~ a 9~ high levee, in 1971 ~e Co~s buiR the te~e ~ a height of 15'. ~m~cd ~ 7 cr Eme~ cn~ W~e~hed Bum~) Then t"~ A~y Co~s ~sa d ~e Levee ~ t~ p~sent 40' height in ~SBGIGB2 ~n~nt ~n ~e ~er P~je~ ~en toni d~z:na obj~ed ~o L~umn D~veiaFmenk C~ ~nGineer O'Neill te~fied ~a~dy 'ae o~ain or pu?ose of ~is 'mound of di~ (~he ~,ee). 7n~s false ta~mony enabled Lauren to ~n" ~e previous lawsuit bemuse the ~a~al test ~s not ~e~er ~e ~umn Paf~d ~ ~fa or ~e cerements ~e bu~ on{y whe~er ~ne E~/Ceund~ had ~ny eviden~ ~o mty upon· %fs · · ~e~nial~ as ff {s based not on fie ~h of ~a ac~l e~iden~ bu~ ~e~er any evide~ (e~en d~a~y ~tse e~lden~)ex~cd. For e~mple, desp~ O'Ne~t's sfatem~nt~at 'no one ~f 8bab1~e Levee, Dan Ja~es had m~{ved A~y Co?s dsDm~n% ~n~ming i~ ~ns~jo~ ~e Asy ~e Deer C~k Love and aftDated federal flood ~n~[ funds ~ b~id ft. Sim~ady, me jud~e's s~ad lh~ fie d~annel ~aasfty ~s 15,000 ~bic fe~t per second. The A~y ~?s' design memoendure s~es ~at (~e channel apa5~ is 5,480 ~bic ~eeL 'Ob~{oc~iy no ma~er iudge's rdlfn~ s~ys, ~e ~e of ~e ~annel does not chang~ ms~r ~at i~sl ~e~ni~Pjes i~m empi~ to ~n ...~he ~ann~l ~118~fiy ~11 ~aid only 5,400 ~bic l~n~ ~G de~foaer building ~ flood channel ~ ~ece ~h~ Le~? ~e developers A~a~a~d Ena{~m gives Lhe aaa~ of ~umn's mp[a~meat ~annel as 474 01 ~emus e~5~le ~ ~e~a~, of %he Lcve~ ~ 72,00C~ =~. ~r.h les~ ann 1% of the ~9~ ~ so ~l~ed ONLY %~i~EN CERTIFICATION FRO~I ~HE ARf,~Y CO~nS OF ~GIN~ STA~NG SPECI~C ~R~S THAT ~E OER CREEK D~S BASIN BY ITSEL: ~E HO~ O~R~S G~E~D BY IE 10O Y~R STOR~" would allow ~ou ~ ~ d~clo~. DNLY ~hie ~ {anguage ~h(elds y~u from fu~heT fia~il~. ~y ¢~er lsngu~e or any massu~nces am ~tuei~s given ~e known e~{dence. A stabmen ~al ~ Pfoj~ ~o ~ S~nda~ ~mjed or 208 Year Flood {~ not ~cien~ Bemuse ~he ~ ~ bui~ the Pf~/e~ and that statement ~auld a~sume ~e Levee remains in piece. P~SE OBTAIN A SEPA~TE ~GAL OPINION CONCERNING THIS ~ER BY TH~S tNFOR~tATION AND ~PERT DECiSiONS TO YOUR A~ORN~S. S~uld you ~sh ob~in dadflagon regaling %his ma~er, ~r. Ea~ Eiker, B~nch Chief, CECW-EH, U.S. A~ ~s ~gineers. 20 Massachusc~ A~n.e, N.W., Washington. O.C. 203t~d000 shou{d be able ~ou. Eafi. E.Sker~h~02.usase.a~y.m[t. Analysis 3 Firour 8tQm in De r ClmyQn ~.; p Ixt,~ EICT MAP SIdtv lrch~ RI'-~ .HI' IO RP I~ RP l~ .34.1'3.I -117.5~ -II7.4,-TI 13~11· T/3O l~m5 27.46 046 O38 1.03 1.57 IA7 1.78 :3-16 3.40 3,44 3.70 4 3.96 4.66 3.19 3.I5 5.59 437 6.~ -I I~-~ -I 1~1-117.6~ -11~-~ -{116~ -11~0 . I ~3 ~ ~C~ 6~5 4775 18.~ 17.33 16.~7 H.W ~ I.~ 0.~ 131 (.N 1.74 0.~ 1.16 039 0.4] ~ ~ I~ }7 ~ 17 ~7 1.48 1.0.5 1.19 {.OIl 1.39 · 0.79 %{9 ]._~5 1.76 IX/ 234 1.17 ~-65 1.~ ~-. 13 1.1~ 7.83 1,4l 3.~ Z~ ~9 ~.~ 3.'iq I.~ 4.~ Z~ 3.24 4.41 3.14 3.55 . 3.~ 4.~ 4.~ 3~ 4.~ 3.~ l~ ~-6~ i~ 3.76 4.~6 3.~ ~ 2.kq 0.f~q -. 0. c6 0.07 0.0V 0.C13 Q,~ 0.12 0.C9 0.1l 0-10 tlC8 0.09 0.15 0.{I. 0.13 0.17 []-10 0.13 0.18 OZI3 0.16 0.1] 0.1] O.14 0.213 0.15 0.1g 1117 0. L3 0.16 0. T~ 0.17 0~34. 0-18 0-13 O-:K) 0.16 0-19 0.3/ (~l 0JJ 0-~ 0.18 0-31 0_?9 0~.3 0,76 ell5 · 0.19 0-~ &3~ 0.17 03l 0.30 0.~4 O.~ 0.~ 33 .X~. C~07 0.~1 O~t &07 O.Oi 0./TX 0.1D 007 0.C6 fi-ll 0.05 0.089 0.13 O.~ O.O8 0.13 0.if/ 0.109 0.16 0-{O 0.1O 0-16 O-{~ 0.133 0.18 0.13 O.II 0.19 0.11 0.1~{ 0.33 0. D 0. l( 0-~ 0.13 D-~ 0.16 0,1~ !l~ 0.15 0.38 0-18 0.17 025 0.16 03~ 042 n]l B3-~ · 0.~ 0.(~9 · 1.11 I.(I 0.83 1.38 1.162 I.P,~ 1.67 1-13 1.23 129 '~-~ :/-61 I-~ I,~ l.~7 3,~ l.~ ].ll I.~ 3~ 3.74 ~17 3.~ ZD5 3~ 4.~ ~ 4.11 ~]7 3 .(~ 4.65 3-CD 4 .~5 ]~ 4.10 ].~ 3,~ ill l.~ 4A~ ~.~ 3.~ 3A9 l~ 7.12 4-13 6~ 537e 1~1 RRICK, HERRINGTON &: SUTCLIFFE LLP gc~alcfr~or~ck-c~m November 5, 1999 ('213) 612-2494 James Marianan, Esq. Richads Watson & Gershon 1 Civic Center Circle, 2M Floor Brea, California 92821 Marylinda H. McKeith Incident of October 21, 1999 I,aurcn Developmex~t Dear Mr. Markman: Please be advised that this office represents Ms. Marylinda I--l. McKeith in the above-captioned incident. lfyou wish to speak to Ms. McKeith conccm'aing the incident, please do not speak with her directly, please contact me. ' If you have any questions, please do not hesitate to contac~ me. Sincerely, GLC:mts The Hononxblc David IvL Walker Uni~l Sus~s Cx,,'~puallcr ~ G:ncd Ax:x:oun,~ng Office Fax~n 7125 441 G Su'cc~ N.'W. W-,~h~n~on, D.C. 2DS48 Mr. Wnlker: S/uc--~dy Uuit~dSxat~S~n,~c~ Uni~StaxuSemu~ BACK TO FRONT PAGE Friday, September 1, 2000 Corps bac'ks up safety of basin · Latest r~port includes consul 'tant's study, negates another firm's conclusion that Deer Creek could not withstand 100-year flood. By SELICI/I F~ENNEDY-ROSS RANCHO CUCAMONGA -- The U.S. Army Corps of Engineers has released a report reafftrming certification of the Deer Creek Basin and including a safety study conducted by an independent consultant concluding that the basin is safe. The curps, which designed the basin, includes in its Aug. 4 report a safety study conducted by Mussetter Engineering Inc., of Fort Collins, Colo., wl~ch concurs witix tile corps' fnldings Illat the debris basin will withstand a 100-year flood. The report, released last week, counters a study released earlier this year conducted by Exponent Inc., an independent analysis finn in Cosrta Mesa. The Exponent .qmdy concluded that the debris basin would not withstand a 100-year flood and that the basin woo ld not hold 310 acre-feet of water as it was designed to do. The corps' report dismisses the Exponent report as "largely conjecture unsupported by engineering analysis." According to the corps' report, the debris basin will hold enough flood debris to withstand a 100-year flood and will now h01d 298 acre-feet of flow. It also outlines specific measures to restore its original 3 10-acre-feet capacity, including regular excavation oFthe basin to clean out silt and deposiks. The corps' report also addresses the issue of a nearby levee, stating: "The existing Deer Creek Reception Levee does not meet current Federal Emergency Management Agency requirements ... to be recognized on National Flood Insurance Program maps as providing protection ~rom the base flood." The levee is privately owned by developer Bob Cristiano, who plans to remove part of it to make way for a 40-unit planned residential development known as the Heights. Cris~iano said construction would start within the monlh. The new report con~cs as a setback to critics of the Army http://www. ourtimes.com/ten/ontario/news/2OOOO9O l/fivOOOSO41.html 09/01/00 Corps of Engineers, some of whom also ~ippose the Iteights development slated to be built on property adjacent to the Haven Vic~v Esnmtes where they live. They had hailed the Exponent study as reason not to remove the levee and called for a full safety review by the corps. The corps report states that the conclusion of the Exponent study, which holds that the Deer Creek Levee is a viable flood control measure, "is misplaced." Malissa MeKeith, a resident of Haven View and attorney for the environmental group CURE - Cuenmongans United for Reasonable Expansion - has been a vocal critic of the city and the corps, contending that the levee wv, s necessary because the debris basin would fail in the event ofa lO0-year flood. "I've seen lot~ of certifications finam the Army corps," McKeith said. "It's not a final document, it hasn~ been approved by the Pentagon." In the past three years, elected officials and other government agencies, including the Federal Emergency Management Agency and CaliFomia's two U.S. senators, Barbara Boxer and Dianne Feinstein, have become involved end also called for an independent safety study of the basin. McKeith said Boxer and Feinstein were set to meet with the corps to discuss the debris basin. The corps and Rancho Cucamonga expressed confidence in the recent findings. "Neither the corps nor the other firm found any reason to decertify ttmt basin," said I Ierb Nesmith, spokesman for the corps. Nesmith said the removal of the levee was not an issue either. "We don't see that it is a flood-control measure," Nesmith said. "The levee is not needed for a flood safety project." "~le're well within the FEMA requirements and really happy it c,'une out this way," said city engineer Joe O'Neil. "This arewets the opponents' contention that there is something wrong wilh the darn and flood-control channel." "It caused a lot of concern in the community and it will serve to reassure and put a lot ofpeople's minds at ease," O'Neil said. "The corps has gone to great lengths - even gone a step failher - hiring an independent engineering fuTn to evaluate the basin reaffirming what they have said all along that it meets the FEMA rcquircrnen~. Now an independent firm has agreed with them." The corps has again certilied that the debris basin, the flood channel and the dam meets the criteria it's designed for, Oqq'eil said. San Bemardino County Flood Control District officials did not return calls for comment. The corps' report vindicates the amount of effort Rencho Cucamonga has put into protecting the community, Mayor Bill Alexander said. "It's something we have said all along" Alexander said. "We have consistently taken the advice of experts on this matter." htlp://www.ourtimes.com/tcn/ontarioMews/2OOOO9O l,~ivOOOSO41.html 09/01/00 Feedback to lnlandValleV(~,latimes.com Copyri~t 2000 Times Community News http://www. ourtimes.com/ten/ontario/news/2000090 i/fir0008041 .html 09/01/00 age2ot3 Our Times Page I of 2 BACK TO FRONI' Thursday, January 13, 2000 Residents rebuke board over legal fees · Haven View homeowners express anger about expenditure of $350,000 to fight levee removal. By EL1SE GEE RANCHO CUCAMONGA - Residents of Haven View Estates put some of their homeowners association's board members on the hot seat Wednesday over mounting legal bills. One resident called for the ouster of the board of directors, while another angrily demanded an explanation for $350,009 or' homeowner's dues spent on lawsuits. Haven View Estates' two homeowners associations have come under fire in recent weeks after property owners began to scrutinize the groups' expense and budget sheets. The R.C. V homeowners association shows a negative net income of more than $265,000 for the last two years. Much of the deficit was due to unbudgeted legal expenses for lawsuits against developer Bob Cristiano and the Lauren Development Co. Haven View Estates has fought Cristiano's development of 40 semi-custom homes because they want to preserve a levee -- which they believe provides flood protection -- that Cristiano would remove. It's a fight that Haven View property owner Peck Damiani does not buy into. She wrote a letter to residents in the gored custom-home community last week, asking them to attend R.C. V's annual homeowners association meeting. About 30 residents turned up Wednesday. "We don't want any more lawsuits," Damiani said. "We don't want to spend any more money." R.C. V's roserye fundks have been sapped to pay for the lawsuits. Services such as landscaping and patrol have suffered for it, Damiani said. Homeowners association reserves aren't usually put away to pay for litigation, said Joel Kriger, an attorney who has represented community associations since 1991. Reserve funds Our 'rimes usually pay for major repairs, such as replacing a roof on a commons area, he said. Other residents at Wednesday's meeting were fueled by a letter Cristiano wrote to Haven View Estates homeowners informing them about the expenditures. R.C. V board president Bill Hawkins said he thanks Cristiano for that move. "It raised community awareness," Hawkins said. "It was the first time some of them really came forward and expressed their concerns." Resident Hal Hazegh, a member of Haven View's other homeowners association, said he wished he hadn't waited so long. Hazegh also sent a letter and a survey to his neighbors about the expenditures. "1 personalty blame myself and my other neighbors that we didn't know what was going on earlier," Hazegh said. "We have given them a blank check and they have turned iuto a loose cannon." Ha.7.egh said he hopes to remove the current board of directors by proxy. The survey he sent out solicits candidates. Hawkins said all expenditures for legal fees were approved by unanimous vote of both homeowners association boards. Hawkins said the homeowners associations consulted attorneys before suing and were told they could approve money for the lawsuits by board votes. Hawkins said he expects the associations' reserve budgets should be replenished soon. The association had paid an $80,000 settlement when board member Bill Angel was sued by Cristiano for illegally dumping dirt to fill up c, breech in the levee. A reimbursement i,~ expected from the association's insurance company shortly. Also, legal fees are going to be recalcutated to the association's benefit, Hawkins said, and they'll see some money refunded. Page 2 of 2 ;30f3 Feedback 19 !!'¢aBdyalley~llg_i!B.q.s.com Daily Bulletin Online Page 1 of 2 Cop!fdgh ~1999 Day. {~vlll~iffi All f gh s f~e~ved P_6vacy pQlj~y, II Back to 5c;~rCh {1 Levee fight costs decried Published Thursday, January 13, 2000 By K__eyi.n Smith Staff Writer RANCHO CUCAMONGA -- Angry Haven View Estates residents have demanded to know why $300,000 of their money was used to preserve a levee that flood control experts say has no practical More than 20 residents converged on a homeowners association meeting Wednesday for answers, but came away unsatisfled. "[ issued a letter from my lawyer that asks where all the money has gone," said Peck Damiani, who is building a custom home on Luppizan Place in the Haven View community. "They said we'd get a response within two weeks." Damiani said her association - RC-5 - should have $356,712 in reserve funds. but has only $36,005. The association's board of directors has budgeted $5,000 a month for litigation, she said. "Enough is enough," Damiani said. "I do not want the association fees to be increased 20 percent every year. I do not want to spend a penny on more legal fees." Resident Hal Hazegh said his homeowners dues have jumped from $70 a month to $120 a month because of the fuss over the levee. "I believe this is bordering on a criminal act," Hazegh said. "They arc violating their fiduciary responsibility." A core group of Haven View residents has waged an ongoing battle to block Lauren Dcvelopment's proposed 40-home housing tract to the north. claiming the project would put their neighborhood and others at risk of flooding because it would remove part of an earthen levee. In recent weeks, howcvcr, U.S. Army Corps of Engineers officials in Washington and Los Angeles have assured the city that its adjacent flood control system is safe and that the levee is not even a permanent functional part of that system. Attorney Dean Dunlavey, who is representing the residents who want to kcep the levee, maintained Wednesday that recent safety evaluations were inadequate and said residents will continue to press for a more comprehensive safety study. J Daily Bulletin Online Page 2 of 2 "The Army Corps of Engineers did nothing with regard to a comprehensive, unbiased review," he said. "They have a vested interest in making sure no one criticizes the design they did." RC-5 President William Hawkins said his association, along with the Haven View Estates association, has spent about $300,000 on lawsuits and advertisements aimed at protecting the levee. The money was drawn from association reserves, Hawkins said. Another $350,0D0 in legal services has been provided in kind by the Los Angeles law firm of Loeb & Loeb, of which Haven View resident Malissa McKeith is a partner. The association money was spent for good reason, Hawkins said. "It's a reserve fund, and it's only to be used for certain purposes," he said. "In this case, litigation was the purpose." Some Haven View residents say they were not informed of the spending, but Hawkins said that is their own fault. "Every meeting we hold is noticed," he said. "If they are not aware of it, dlat's because they are not paying attention." The reserve funds will be replaced from dues over time, Hawkins said, and the association will be reimbursed if any government agency declares the flood control system unsafe. Shelley Johnson, who moved into Haven View Estates nine years ago, said the money would have been better spent elsewhere. "We've been trying forever to get a guard posted at the front entrance, but they've always said wc couldn't afford it," Johnson said. "They said that wasn't within our budget, yet we've got the money for all of these legaiities." II Top of page II II Back Io Search II Copyfight 01099 I)a y gull~ in. An ~llhts reserved p. ivacy pot~-f, Chino- Chino Hills · Claremont - Diamond Bar. Fontaria · La Veme · Montclair · Ontario · Pomona. Rancho Cucamonga · San Dimas · Upland ZNLAND x, LLEY Weekend [~TiLi.-~"CTii,T:i~ JANUARY 8-9, 2000 Residents promise to press levee fight · Although dry, county end federa/offida/s say the barrier isn't needed, Havem View residents maintain that their property would be threatened if it is removed for a new development. CiW officials say go ahead ~nd flatten the levee. Toe county declared it surplus property and Creek levee, residents like Bill are convinced their property _ your neighbors.' Hawkins wrote ing about here.' Residents in Q~e gated custom home cornmumW ~re willing to SEE LEVEE PAGE A5 DEER CREEK LEVEE PAST & PRESENT 193Os · Deer Creek reception levee is built to nine feet, possibly by the Civilian Conservation Corps. 1971 · The levee is builtto 15 feet by the San 8ernardino County Flood Control DistricI as pare of its Watershed Burns Project. Three other diver- sion levees are built to the north of the recep- tion levee as well. to sell its interest in land that indude~ the levee. · City of Rancho Cucamonga places a con- dition of approval on Haven View Estates pro- ject and by requiring that a fire road be cut into the levee, breeching it at its southern tip. · Bob Cdstiano purchases the land north of Haven View Estates for $4 mil- lion. 1983 · The $170 million Army Corps Cucamonga Flood Control Project is built. This includes the Deer Creek Basin, concrete channel and a larger levee east of the recep- tion levee called the Deer- Day Separation levee. 1986 · San 8ernardino County Board of Supervisors votes 1990 · The fire road is cut into the levee. 1991 · The HeighI~ at Haven View -- a development of 40 semi-custom homes -- is approved. 1999 · Subcontractors begin leveling the land for the Heights. . directly between extsttag houses ~nd a bad of cleared on which developers want to buff& Carps. of ...Ez~,,,-..q; and, Federal ~: , · '. .. ,. :. · Father of baby who died in car held on drug charges POMONA -- Dylan Cuffilo, who dodgea cha~es in the second-degree Cut/no attends a sentencing hearing agaiast his g~m~eod Fudge. The who might bi~ MI. sac .,it opening of Cha~ey communi~ center See story, PAGE B5 Inside TODAY The ultimate freedom Pomona Valley A jr Fair at Upland's Cable Airbert set to thrill and amaze crowds this weekend. See story, PAGE BS WEAmER QUICK FORE~ Blustery winds may intrude on an otherwise nice weekend. Inland Valley Our Times Weekend, January 8-9, 2000 .,~ ARREST CONTINUED FROM A1 LEVEE CONTINUED FROM A1 conducted a probation search at Cufillo's house in the 300 block of West 2nd Street on Tuesday night. investigators said they found approximately two ounces o[ methamphetanffue in CutiLlo's house. They also found $1,OOO, a cell. phone and a pager. which they said was consistent with the sale of methamphetamme. Glassware, tubing, cheni* cals and a heating device also were seized, but the drug lab was not [unctionthg at the time it was discovered, sherdFs detectives said. CurlliB, 30, and 28-year- aid Nancy JeaneRe Pore of Pomona were arrested on suspicion oi manufactunng methamphetamme and pos- session of methamphetamlne for sale. Shetiff's spokesman Chip Patterson said inveshgators are not sure what relahon- ship Pore and Cutillo have, but she is suspected of being an associate of his in drug sales. 'We don't know if she's his new girUriend,' Patterson said. Last June, prosecutors decided not to file second- degree murder charges against CutLllo because they could not prove he knew 5- month-old CaLlan Cutfilo was alone in Fudge's car. '[ did look at Dylan in the death of that infant back in June." said Claremont police Det. Lawrence Horowitz. "There was/nsufficient evi- dence that he did something that kept the mother from going out and getting the baby.' Fudge had methan~pheta- mine th her blood the day her baby died from hyperther- mia. She went to the Claremont Howard Johnson Motor Lodge on June 14 to make up with Cutillo about a prior argument.. The couple slept together in the room for six hours while the tempera- ture inside Fudge's Buick reacheli 118 degrees. Horowitz said he would have considered Cutillo's drug use at the time of Fudge's arrest if be had known that Cutillo was involved in manufacturing the drug she was taking. 'At the ~ne it would have linked him to the death.' he said. 'But his behavior the other day may not have had any bearing back on the case in June.' Fudge was sentenced Thursday to 15 years to life with the possibility of parole for Cailan's death. Cutillo was formally charged with the drug offenses by the Los Angeles County district atthrney's office the same day. 'I'm not shocked by this. [t's just kind of an unusual occurrence that the morn gets sentenced the day after the dad gets arrested thr drugs.' Horowitz said. 'That chlld's 151 days of existence must have been difficult." Using an updated method to calculate the capRally of the debtis basin. the Army Corps found that the basin has a smaller capacity than odgmal- ly thought. However, a 1991 finding, wfilch shows the basin can handle a 100-year flo~d, still stands and the Deer Creek reception levee is not needed for supplemental protection, according to the corps' letter. 'We have been sa,/ing from day one that it's not a corps project.' said Herb Nesmith, spokesman for the Los Angeles office. 'As far as we're concerned, it's not nec- essary for flood controL* WHAT IS THE LEVEE? The beginnings of the levee may be lost to history. The earliest documents on file show that the U.S. Forest Service helped design it th 1934 with a loc~ 9roup cched the Deer Creek Flood Control Assn. Some beheve the levee was acm~y comnussioned by the Civilian Consewafion Corps and that the Forest Service was merely the technical agency in charge of the work. Though there axe no readily avadable Civilian Conservation Corps docu- ments that make specffic rafer- ence [o the levee, there is some evidence to support that theolT. National Archives docu- ments show that in Augnst 1937, Congress approved a flood control project for Deer Creek, They also show that a conservation corps camp at Cucamonga constracted numerous levees th the area berweer[ 1937 and 1940. A conservation corps yeaxbook also makes reference to a 33,000-cubic-yard earth-fill retention dora bulh someme alter 1937. The next time the levee shows up in construction docu- ments was after it was breached in the floods of 1969 and after a series of fires in the foothills in 1970. About $4 million in federal emergency money was used to raise the levee from 9 to 15 feet ~s part o[ the Watershed Burns Project ol 1971. That project also included the construction of three levees north of the Deer Creek levee, which are this aerial photograph At left is a drainage area designed to prevent ~oo~Ls. Residents clal~n that the drainage area the levee is 40 feet hAgh. "When people talk about a 40-foot-filgh levee, they thjrac it's the Great Wall of China,' Du~ng constraction of the Cucamonga Flood Control Project, the levee was used as an opdonal disposal site for d/n, according to Army Corps A year after the Cucamonga Flood Control Project was completed, the voted to seU its interest m the land, which thduded the Deer because it had been declared In 1986, Cfisdano received approval lot a tract map ol part the city. As a condition of required to be cut into the southern tip o[ the levee and that was done in 1990. Cristiano acquired 100 ages o[ properw north of Haven View EStates that year for $4 m~lion. His pro)ect of 40 approved by the city eight The latest topographicai maps on file at the county Flood Control Dislnct show that the levee is 6,340 fee~ long and between 12 and 18 feet high -- Although Cr~stiano the levee is 3 feet high. sured from the downhill side, and the county Flood Control the $ITO-m/tt/on Cucamonga Creek Flood Control Project. The project includes a debris 2000 ML320 · On one hand you have people who feel tbxeatened and on another hand you have a deveinper with property Lewis (R-Redlands), the Baldy View chapter ol the Building Industry Assn. accuses Haven View residents of using the members of the building the building assodadon ~ccus- ee~ built by the county flood- cbsu~ct in the 1970s would pro-. vide supplemental protection 'It's over. The only people who 2000 C230' LEASE + .3 1 ¢ ~ tax. BO robs c3osed ead lease on approved credit. $1800 ca~ reduc. + drive offs. Residua[ $17,383.35, Based on 1OK mi/yr. (#825355) · ~r 't'AT~~'~'~"F~'~"~jo~O~,S~c~' LEASEI er mo FREE CONSUaTION FOR $4 7 -.. . . MIS TCN .' u "- "' .; $ ~ .,, ~ .... r__~ ...... . .... ~' '~ $600 cap reduc. + drive o~s. Rssidual $26,1 ' ' ' ' ~ ~ Based on 10K m~r. (~4970) ....,- Inland Valley PROUDLY SERVING OUR COMMUNITIES FOR Vg" ~ TUESDAY, JANUARY 4, 2000 .. .... : ........... CLAREMONT · DIAMOND BAR * LA VERNE · POMONA · SAN DIMAS t CHINe ·CHtNO HILLS · FONTANA , MONTCtAIR ·ONTAR[O , RANCHO CUCAMONGA · RIALTO · UPLAND Engineers reevaluate disputed levee and deem it safe. By Kevin Smith P~NCHO CUCAMONGA -- A Engineers' Los Angeles district of the ageney's Washington, D.C., headquarters. spokesman Herb Nesmith said Monday. ffon~Co[.JohnP. Carroil. district responsetotheissuesral~,and engineer with the Army Corps of this letter does,' he said. "Wash- ington asked us to handle it, and The basin is designed to catch we did.' roelu, wood and other debris, but Residents of the up/ante cam- still allow water to flow into flood munity say they fear a proposed control channels north a~d east of 40-home housing project will put the existing houses. their neighbarhc~d and other~ at In his [otter, Carroll dispelled ~k of flooding because it would both concerns. removepartofanenrthenleveeto 'Current estimates show that the north. the Deer Creek Debris Basin TheyaisohaveaHegedthatthe capacityisadequatetohandlethe Deer Creek Debris Basin. aquar- estimated lO0-yeaz debris yield,' {or of a mite north. is inadequate. he wrote. The levee, he said, is 'not even a permanent functional part of the ,. Cucamonga Creek project.' in recent months, Haven View residenl3 and their attorneys met with the Army Corps of E n gineers in San Francisco and Washing- ton, D.C. in an effort to get a new safety study done. 'This can't be the study that we've asked them to do," Haven View homeowner William Hawkins complained. "All they did was restate their opinion ... li.. CAL POLY RENOVATIONS \".' School construction is heaviest since '38 BIG PICTURE Four principles were adhered to when developing the master plan: · Create a communiW where students and professors interact outside classes. · Create neighborhoods Centered on the colleges. · Create a pedestrian campus By Hob Page When Cad Poly Pomona students returned to campus Monday frum winter break they were greeted with dust from construction work. simi[ar to the various obstacles that forced The state university campus is in the middle of schco[ was first conceived, said Gad Pigai, diree'er offertittles planning. Going up is an endnearing building. ARer Ditches have periodically closed roads to traffi'e, City issues apology on Landrum Claremont officials urge community to reconcile By David Allen and Susan McCormack S~afiWnmrs CLAREMONT'S RESPONSE The entire text o~ the statement made by the Claremont City Council concerning the shooting death of Irvin Landrum Jr, This ha~ been a difficult year for the family of Irvin Paul Landrum Jr. and for Agent Kent Jacks, Officer Hany Hanna and their families. All Of them are in our thoughts dudng this holiday season. We regret that some ac~ons of the city taken over the past several months have been dMsive. Trm city council and city manager should a;olo~ize for this. The city council and Staff will work · eszablish and implement a process of healing and reconciliation beginning They dry council and city managerare commitled to wori<ing mmmuniW toward the goal of promoting sensitive to different views, We support the ecumenical community who recently challenged Weather 9695~ 00023 Index A~n Lenders 04 Lotlevy A4 Phone numbers Agencies that help poor can use Y2K stockpiles Staff and wire reports Ther~'s a feel*good solution for those who prepared for the Y2K worst and are rmw s.uck with stockpiles ofgpam, canned s~ups, cereal LOTS OF GOODIES: Amar~a Marsek. A6 Construction: Story continued from A1 building, their activities inside hidden from view. The expansion of the campus, however, won't stop there as cent increase in student enroll- Cat Paly. which is about 18,000 this year, is projected to surpass 28.000 by fall 2008. ~he bottom line is we*re got to build buildings, renovate build- said Bob Charles. interim associ- ate vice president tbr academic rosere'cos, planning and edminis- The university also plans to hire increase the administrative and support staff by 51 percent. This spring, work is scheduled Io be~n on an addition to the stu- dent union, which wift double in Currently in the planning or d~.sign stages are a building for the Corms Scinml of Hospitality Man- parking structure. Plpal said. years wftt more allan double the look kind uf ug[) Z said Joanna Sensqson, 22. of Azusa. She's a ftffi~-year student majoring in biol- Cal Poly undergoing renovations and additions WALK O N BY: Nell Levers waits for his lab class to Open while foot traffic in the hallways of the science building continues after detours from ongoing eats were in college, Spencer said. The expansion an<[ renovation is welcomed by three hotel restgu- rewarded tomorrow for their our- much of it uphd I. And during some blocked by construction. Senior Donna Vine, 40. of Pasadena said on sore6 days she has risked parking tickets by leav- ing structures will altoiv Collins Kinxberiy PonemareS: a 22-year- aid sophomore from Pasadena. 'But like everything, we're going to pay the price," added junior Sylvia Solo, 92. d Hunt- ington Park. It should be gov- ernment funded. but it's going to be student funded - increased parking fees, it will affect tuition." Pipe[ said university leaders have not placed a price tag on the construction at this point in the planning process. Esteban Sofiano, vice presi- dent ofuniveralty advancement, said Solo is portinHy correct in predicting that the building will not be I00 poreant financed by the state. 'Jiake no mistake, the state and the citizens of California are our largest donors, but they can't give you 100 percent anymore7 Soriano said. About one-third of the cost has to be covered by private sources, either through donations. such as the $10 million Jim Collins gave earlier this year, or a busi- Renovations -~ -.', ~'~, -: .-.. ,.... . proposed for the development of expansion, Sofiano said. The constriction projects have lion projects h~n't reeeiv~ final Y2R: Food agencies seeking stockpiles of unneeded goods Story continued from A1 packaged foods. Helped by a $50,000 gent from [<el Ingg Co. the ~,~ant cereal maker, Scored Hat~est tb~d banks across the country wift be tend ucting dri- ves from dan. 15 through Feb. 15. Leftsaid. Second Hart'eat of San Sernardino and Riverside Coun- maybe water," Vincent is working to set u p d is- tribution sites throughout the two counties that will start taking donations on Jan. i5. Those who can't wait that long can drop dona- tions off at the Second Harvest off, ce, located in Riverside at 2950- B Jefferson St; or call 1909) 359- 4757. Ronald HoningbarS. warehouse holiday season. qt's a pretty good time ri~t now, but being that we are getting back to normal, we could use fie dona- tions.' said Heningbu~. He urged anyone wishing.to make a donation to ca]! the food bank at t909) 3864011. Officials at several food hanks across the country said Monday thattheybadnotseenanyinerease Levee: Engineers say it's safe Story continued from A1 Proposed lauren tract wouldmakeite~e.t~,,,'he,~d.. CarrolFs letter. Some residents on north Haven Avenue say the levee issue has been overblown. John Lee, who lives in the Deer Creek neighbor- h~xt so uth of Haven View E~tates, ha~ strong feehags on the subject. "It:s all a bunch of crop,' he said. "Those g~ys are just a bunch of agitators. They just don't want housing up there." Haven View resident Dolly Bhatia agreed the concerns run well beyond matters of safety. '~hey don't want the houses up there,~ she said. "If they put them up our property values will go down ... that's my concern.' Hawkins, president of one of two 'Haven View Estates home- owners associations, said the associations have collectively spent around $300,000 fighting the battle through lawsuits and advertisementa. The money was raised by draw- ing upon ~Bsociation resen'es, he :-'RANCHO ;CUCAMONGAL':-i' ' officials in Washington said they would consider doing a new safety study - if the funding became available. Mayor Bill Alexander said the city would halt all development in the area if that happone& But the city feels the eaisting flood- control project is safe, he said. ~I feel there axe a lot of Haven View Estates homeowners up there who don't even know what's going on,' A]exander said. 'Fve taken calls from people whb didn't want to be identified. They were fearful of the current (homeowners) association." Hawkins said the Haven View homeowners fully expect the Washington ot]~ce o fAnny Corps of Engineers to do a new safety study and wil~ keep fighting anti[ one is done. Rober~ Chfistiano, who owns the land where the homes will be built, said the hivee is not 40 feet high, as the Haven View homeowners have claimed. but 15 feet tail at iu highest point and 3 to 4 feet tall at other points. 'These doomsday ads have fHghtened poepie in the commu- nity," he said. 'But this levee does not bald water." r,o t HEWS. Local sports. entertainment. oc ibusiness. =o.~,i.. 7't ues, which represents 752 chari- ties. is out of fanny participating l;~d banks around d~e country hop- ing to score bigwith the food drive. -\Vc rt'ally ser~e a lot of people .and could use the donations,~ said Pat Vincent, marketing director Ibr the orgoadzation. 'I don't know how man>' donations to expect from this, I ha~,e not heard ofanymxe who stockpiled anything exc~pt Bernardlap County Food Sank. said his organization would be The food bank, whigh sen'co influx of donations during the Caroline Frengle, executive director of F~xt for Lane County in Eugene. Ore., spoculated that peo- Y2K threat has truly passed. in Columbus, Ohio. food bank officials said it could be days or weeks before people decide what to do with t~e egos of Spare and beef stew filling their cupboards, Apology: Council urges healing, Story continued from A1 Landram. an I8-year-ald black motorist. was fatally shot by cers Ha ny Hanna and Kent Jacks on Jan. 11, 1999, after being s topped for speeding, The officers say Landram pulled a reval~er, but critics question the official story and say the shooting was racially motivated and an overre- mont's chief spokesman on the issue and has been widely blamed 'This council has not taken woolen Claire McDonald. who Landngn's uncle, protest leader Obae Landrum, and for naming heightened tensions. Sourhard, in a Daily Bulletin FREE TRIP EVERY Goldstdke. Ra~. ~/ p,c~0, c~,, _ FREE un ~ ~. & ~. WHIgKFY reconciliation' profile published Monday, explained that he had simply endorsed the overwhelming pick of employees. And he said LOn- drum's record, which included two stints in prison for burglary and grand theft. made him a threat, Landrum, however. reacted angel ly Monday to Southard's pub- lished comment that he is 'a career criminal,' noting that his last conviction was in 1982. tbr burglary. 'Am I supposed to believe this is a sincere effort .,. when the mayor endorses ~Southard) toaay?" Landrum asked. He com- plained about 'a lack of action to restrain this man's activities.' Councilman Held. however. hinted in his remarks that he believes the council should do just that. Held singled out the council and city manager for the pereeived 'lack of sensitivity,' said defen- siveness and explanations of past actions should be avoided and asked that officials 'carefully con- older~ actions and statements beforehand. An ad hoe council committee should evaluate actions on sensi- tive issues beforehand to 'avoid another stumble," HeM said. He also suggested that a retreat by city o~cinis later in January should be used to clarify the rela- tionships and responsibilities of staff members and the council. The council did not formally act on Hald's suggestions. Sourhard sat through the meeting in silence. In related news, a federal wrongful-death lawsuit by Lan- drum's mother against the city will proceed, a U.S. District Court judge in Los A~geiss has decided. The city filed a motion to throw out the case because Landrum's father was not a party to the suit. an argent the judge decla~-d friv- olous, The next hearing on the case is schedu/ed for Monday. Well C 3 'g ted The Community Health E~ucation Program, knowq a~ Wel~ Connected, is your t~urce for ~nhirmation on ~[[ 9~-g ~d d~ver how to ~t wi~ a world of :'::,Introducing one ofthe' "biggest CD rates a'round{_ Annual Percentage Yield 24-month CD' Stop searching for a great CD rate. [t's here! Plus, you can also get: · A Downey Regular Checking account FREE of monthly service charges for two years' · FREE unlimited check writing · FREE ATM card with free transactions at any of Our 300+ statewide ATMs · Your Choice of overdraft protection plansf · FREE first order of persqnalized DoWney Savings checks (up to 200) 104 locations throughout California. For the branch near you, call: 1-800-9DOWNEY (1-8007936-9639 ,QDOW , yINGS Residents vow to press levee fight Page 2 or 7 Page I of 6 "News., Busi'neis Politics Travel Entertainment Glassifieds t 'Spods Saturday. January 8. 2000 I ~ Prinl this story Residents vow to press levee MORE Breaking Health Orange News Highway 1 County Nation & Science Valley ,World ~ Vantufa State &Local County , Politics Clfissiheds F,nd a home. car. rental. job.;pet. merchandise. BUY MOVIES AT REFL.COM barrier isn't needed, Haven View residents maintain that their property would be threatened if the barrier is removed for a new development. By ELISE GEE RANCHO CUCAMONGA -- City officials say go ahead and flatten the icvee. The county declared it surplus property and sold its interest in it. The Army Corps of Engineers is adamant that it's not a permanent, or even ft~nctional, part of the flood control system in the upstale foothills. But in the face of all these official evaluations about the Deer Creek levee, residents like Bill Hawkins in the Haven View Estates are convinced their property -- even their lives -- are at stake without it. '- "If the levee is removed, there will be nothing to protect you or your neighbors," Hawkins wrote Thursday in a letter to a resident in favor of razing the levee. "1 would hope that you are not interested in subjecting you or your family to the type of debris slides that we saw in Venezuela last month. That is what we are talking about here." Residents in the gatcd custom home community are willing to back up that claim with their pocketbooks. Homeowners and the two associations representing them have spent a fortune on lawsuits against the city, landowner Bob Cristiano and his panner Lauren Development. Gristlane and Lauren plan to build 40 semicustom homes, priced at about $700,000 each, on property abov.¢ Raven View Estates. A grading permit from the city allows developers to flatten the levee-which extends south from the San Gabriel Mountains and curves east just above Haven View Estates--onc~ an altemate channel is built. Palm Pilot Edition TOP STORIES · Larna's Flighl Dashes Hope for Tibet Beijing Accord · Record Dew Leans World Markets in Rebound · Japanese Retailer Bucks a Trend by Selling Cheap · Although city, county and federal officials say the Residents vow to press levee fight Date: 1/1 O/CO Time: 8:37:30 AM Pege 3 ot 7 Page 2 of 6 The high-stakes battle heated up last October after subcontractors began leveling the land for the development, kno,.wn as the Heights at Haven..View. Residents launched a media campaign and secured the support of Sens. Barbara Boxer and Diarme FeinStein and Rcp. Joe Baca (D-Rialto). all of whom sent letters to the assistant secretary for the Army's civil works division, asking that a new safety study be done on the Deer Creek Basin. Residents believe the levee is necessary in case the basin fails. The latest development involves a letter released by the Army Corps' Los Angeles District office last week regarding a rccvaluatlon of the basin. Using an updated method to calculate the capacity of the debris basin, the Army Corps found that the basin has a smaller capacity than originally thought. However, a 1991 finding, which shows the basin can handle a 100-year flood, still stands and the Deer Creek reception levee is not needed for supplemental protectic;n, according to the corpsi letter. "We have been sa31ing from day' 6ne that 'ii's'not a corps project," said Herb Nesmith, spokesman for the Los Angeles office. "As far as we're concemed, it's not necessary for flood control." WHAT IS THE LEVEE The beginnings of the levee may be lost to history. The earliest documents on file show thal the U.S. Forest Service helped design it in 1934 with a local group called the Deer Creek Flood Control Assn. S~me believe the levee was actually commissioned by the Civilian Conservation Corps and that the Forest Service was merely the technical agency in charge of the work. Though there are no readily available Civilian Conservation Corps documents that make specific reference to the levee, there is some evidence to support that theory. National Archives documents Showy that in August i937, Codgress approved a ~ood'conti'i31 project for Deer Creek. They also show that a conservation corps camp at Cucamonga constructed numerous levees in the area between 1937 and 1940. A conservation corps yearbook also makes reference to a 33,000-cubic-yard earth-fill retention dam built sometime after 1937. The next time the levee shows up in construction Residents vow to press levee fight Date: 1/10/00 Time: 8:37:30 AM Page 4 of 7 Page 3 of 6 documents was after it was breached in the floods of 1969 and after a series of fires in the foothills in 1970. About $4 million in federal emergency money was used to raise the levee from 9 to 15 feet as part of the Watershed Bums Project of 1971. That project also included the construction of three levees north of the Deer Creek levee, which are still maintained by the district. More than a dccadc later, the Army Corps of Engineers and the county Flood Control District collaborated on the $1 70-million Cucamonga Creek Flood Control Project. The project includes a debris basin at the mouth of Deer Creek and an 8-mile- long concrete channel. The Army Corps also constructed what is known as the Deer-Day Separation levee, whic, h is sometimes confused with the smaller Deer Creek retention levee. The basin holds 3 10 acre feet of sediment and debris. That is roughly equivalent to filling ub Dodger Stadium and its surrounding parking lots with sediment one foot deep. During construction of the Cucamonga Flood Control Project, the levee was used as an optional disposal site for dirt, according to Army Corps documents. A year after the Cucamonga Flood Control Project was completed, the county board of supervisors voted to sell its interest in the land, which included the Deer Creek Levee, to a developer because it had been declared surplus by the flood control district. In 1986, Gristjuno received approval for a tract map of part of Haven View Estates from the city. As a condition of approval, a fire road was required to be cut into the southern tip of the levee and that was done in 1990. Cristiano acquired 100 acres of property north of Haven View Estates that year for $4 million..His project of 40 semlcustom honms was approved by the city eight years ago. The latest topographical maps.on file at the county Flood Control District show that the levee is 6,340 feet long and between 12 and 18 feet high-- Although Gristjuno argues that at its lowest point the levee is 3 feet high. Residents argue that measured from the downhill side, the levee is 40 feet high. "When people talk about a 404oot-high levee, they think it's the Great Wall of China." Cristiano Residehis vow to press levee ~gh~ Date: 1/10/(X) ~me: 8:37:30 AM Page5ot7 Page 4 of 6 said. "This thing isn't going to hold anything." WHAT'S AT STAKE Cristiano's and residents' perspectives on the issue differ as widely as their height calculations for the levee. They havc bccn fighting for 2 1/2 years over the fate of the levee, although a lawsuit was filed as early as 1987 by Cristiano because residents had denied him access to his land at that time. The campaign launched by residents against the removal of the levee has cost them about $300,000 in legal and consultants' fees. Haven View resident Malissa McKeith, a development lawyer for the Los Angeles firm Loeb & Loeb, estimates her,pro bono work, along with that of other fim~s, at another $350.000. The city of Rancho .Cucamonga has spent about $350,000 · defending itself irl court -- most of which Cri~tiano will have to pay, City Arty. Jim Markman has said. This would be on top of Cristiano's initial $4 million investment when he bought the land. "On one hand you have people who feel threatened and on another hand you have a developer with property fights," Markman said, summing up the conflict. In a letter to U.S. Rep. Jerry Lewis (R- Redlands), the Baldy V jew chapter of the Building Industry Assn. accuses Haven View residents oF using the issue of public safety as a veil for their real agenda, which is opposition to Cristiano's development. "The situation not only affects the development and builder in that area but it has the potential to affect all the members of the building industry," said Frank Willtams, executive officer of the local building association. In the same let.tot to Lewis, the building" association accuses Boxer and Feinstein of improperly interfering in local matters. Thc association also asks for Lewis' help to ensure that the Army Coi~ps is not politically influenced on the issue. Hawkins said the only reason residents went to Boxer, Feinstein and Baca is because their own local residents were turning a deaf ear. "The city looks ridiculous when we had to go to two U.S. senators because our own local officials would not help," he said. Mayor William J. Alexander stresses the fact that more than $1 70-million worth of flood control projects protect residents and that the levee Residents vow to press levee fight Date: 1/10/00 Time: 8:37:30 AM Page 6 of 7 Page 5 of 6 residents want preserved has already been breached. "I'm a little taken aback that there is so much distrust with what the city has done up to this point," Alexander said. WHAT'S NEXT In the letter issued by the L.A. Corps office last week, hydrologists state that their roevaluation found that the basin could handle up to a 11 l-year flood rather than the 200~year flood as originally thought. That is still more than the 100-year event the basin is certified for. The letter also States that the three otfier levee~'buih by the county flood di~strict in the 70s would provide supplemental protection if the basin does fail. For Cristiano, the issue was resolved with that letter. "lt's dead," Cristiano said. "It's over. The only people who don't know that are Bill Hawkins and Malissa McKeith." Hawkins and McKeith contend that the hydrologists did not use the right rainPall data when they made their calculations. David Sandretti, Boxer's communications director, said that the corps' Los Angeles district office letter does not change the scnator's position. "There are serious concerns about safety from removing this levee," Sandretti said. "That continues to be the senators position." Hc added that Box& will coutinue to ask for'a new safety study. Before the corps' letter came out, representatives at.the Army Civil Works Divfsion in Washington, D.C., said they were open to doing a new study if$125,000 to $250,000 in funding could be fou.n.d. No one in Fcinstein's office was available for comment Friday and Joseph Westphal, assistant secretary of the Army's Civil Works Division failed to return numerous phone calls over the last month. Cristiano scoffs at the idea that there is any real commitment to do a new safety study. Political support from senators is different from any financial commitment, lie said. Even ira new study is done, what the Army Corps says may be a moot point if residents have the will, cash and clout to keep the issue bottled up in court. One thing is certain. The residents won't give up. Residents vow to press levee fight Date: 1/10/00 Time: 8:37:~0 AM Page 7 of 7 Page 6 of 6 , HeWst., . Business~ Politics ' Travel Entertainment Classifieds Spoas ICommenta~ Shopping "There are a lot of individuals with very deep pockets who have the ability to fight Cristiano," Hawkins said. "The levee will never go down. It's not going to happen." .1., Search the archives of the Los Angeles Times for similar stories. You will not be charg~:d to look for stories, only to retrieve one, Copyright 2000 Los Angeles Times ;.'00 07:57 FAX 949 7520667 ,~A'I' ~o:3~ F..LI 909 9029916. ZPLL¢ Page 4 of 4 ~oo~. feud saps- . group's .,. Daily Bulletin Online Page I of 3 II Back to Scorch II Experts support removal of levee Published Saturday, November 27 1999 By Kevin Smith Staff Writer RANCHO CUCAMONGA -- Haven View Estates will not be at risk of flooding when part of a levee north of the neighborhood is removed for a housing tract, flood control experts said this week. Residents of the upscale communily have argued that the city is acting irresponsibly by allowing a large section of the 40-foot-high, earthen berm to be removed. Ken Guidry, chief of planning for the San Bcmardino County Flood Control District, said that's not true. The 40-home tract, he said, will include a drainage system that could easily handle heavy rains. "It's even been bulked up to handle debris," Guidry said. "lt's designed and engineered properly It's ~afe." The 7,000-foot-long levee runs along Deer Creek at the base of the mountains north of Haven Avenue and lies a quarter mite south of the Deer Creek debris basin. The basin is designed to catch rocks, wood and other debris, but still allow water to flow into the flood channel. Guidry said the catch basin could handle more water than would be produced hy a 200-year flood. which has less than one percent of a chance of occumng in any given year. "The levee used to have a much greater purpose," he said. "Now it just handles (rain) water from the 125 acres of land between the levee and the basin." Flood waters from the mountains north of the basin arc directed into the flood control channel and don't affect the levee, Guidry said. Frank Rezac, a spokesman for the IJ.S. Army Corps of Engineers, said the corps stands by the existing flood-control system. "It's our contention that the flood-control project provides the level of protection for which it was designed," he said. "A 100-yearflood is rare, but a 200-year flood is even more rare." Daily Bulletin Online Page 2 of 3 Rczac said the levee is not even a "permanent or required component" of the Cucamonga flood- control project. Guidry said the debris basin and flood channel are inspected each year by the Flood Control District and by the state. The system is checked after heavy rains and cleaned out as needed, he said. Those assurances, however, have not been enough for neighbors. Several Haven View Estates homeowners have filed a lawsuit claiming the housing project is in violation of the city's general plan since the area was designated as open space. The action also states that removal of the levee and a series of swales (betins and ditches) behind it will endanger people and property to the south. "This isjust ludicrous," said Haven View resident William Hawkins. "That debris basin was built to handle (a maximum of') 3.27 inches of rainfall over a one-hour period tg that's not even a 10-year flood." Hawkius said the debris basin is near an earthquake fault and was built using outdated standards for measuring rainfall and debris Ilow. Hawkins said his information comes from several sources, including a former state climatologist and David T. Willtams, president of WEST Consultants Inc., a San Diego-based water-resources engineering firm. Willtams said removal of the levee and swale system will place residents to the south "in substantially greater risk of flooding and debris flow." Guidry said the earlhquake fault is not an issue. "The corps doesn't feel it's close enough to create a catastrophic occurrence," he said. The homeowners' complaints have gotten the attention of U.S. Sens. Barbara Boxer and Dianne Feinstein. In a Nov. 16 letter to Joseph W. WcstphaI, assistant secretary of civil works for the Deparlment of the Army, the senators urged Westphal to "fully re-evaluate the debris basin in a fair and unbiased manner in light of the currently known scientific and engineering data." The levee was built in the 1930s by the California Conservation Corps and improved in the early 1970s by the county Flood Control District. The Army Corps of Engineers built the Deer Creek debris basin in the early 1980s and turned it over Io the county Flood Control District, which maintains it. II Top 9f page II II Back to Search II Lauren Develo;~men~ P.03 R-539 Job-073 O~te: 1119/99 Time: 10:28:~6AM :. R.C. residentS.., state ' at odds over.' levy day i~ San Fras~cisc6 see,king to halt the remov~ alpart of a levee near ~eir hom~. B~aw~/, a r~slden~ ~d the a~ a~d to r~a~ne rem~ of~ of~e levee for Haw~ns. who lives in 7,600-f~t long levee ~o The ~nval. he said. ~H *I ne,~ saw a ~or~ bht~t ~s- review~ ha~ be~n done t~ assure residents that the flood-control new store ~a~ ~1 ~ i~lcd .by lhe Co~ dEn~n~ ~n ae · ~e d~t&ea nebr. ~i s~ ~e ~ty cle~s ~¢ d~ ~u i ~y the ~ly of ~e dam ~d C, ounciJjaahBobDuttooshidth;o .: ~ly. evelostm~' ~.. '~e haye.~s from the · T~ r~mg Order to h~ L k~e ' -~y ~ ofE~e~'who ~y ;- Hawh siid s6'ere fl~n- j(resid~) bye e~ h ~ ::Boa ~ed i ~¢ ~ea ~fore~ ' fieldwho~yit~otie. rmc~ ~.~mo~g a ~on ~f~e lev~ .:. ty n~ ~ ~ but ~e~ · he aai~ will o~F ~cre~ the · -~e ~ ~i~g~ i~ ~i~,'I ~aa~ for fu~-e floig ~d ". ~n't ~U ~gr¢~ ~ ~e ~put ~ovte~ li4~ ~ Iger ' ' :' ~d~ ~ ledally do.* ' -:" ': ' FROM THE ALLDAY COMPAH[ES TO R-539 Job-Or3 P~ge 3 of 5 18185759987 P. ~2 HAVEN. CONIINUED FROM 'A1 assocation boaz~, said he e~i- males fi~ey bare ~u~d~t~a ~y for t~p~ ~d '~C~k. ~ ~e ~d her n~h~ ~ n~ ~y Co~s ~e~ by me . Feder~ A~q ~d ~e ~' ~ . d~t for : . ~ ~t ~m ~ d~ H~,. . ~ ~ · , :. - . ... Wa~er ~md pow~ won'~ a]low it~ worker~ ~n ~e p,~ ~ a ~omple~ed. ~ dem~d~ by adja~nt to D~? l~d ~at ~ to ~d ~e ~¢ate ~g on D~ pro~,' ~v~o~ ~ve ~d D~ but ~e u~W ~P~Y ~ ~ng wheat ~ ~ ~at to hap~n. s~d~ Jo~' ~d~y, a ~d~ ~'~ ~ a he~d ~ ~ ago when o~ent ~y - bl~ weter do~ ~e ~e ~fom' ~k~ ~ ~ b~ ~ 21, ~ of ~- ' But M~yor B~ .~d~ ~n~t~ ~ ~e ~d ~ ~ ~e c~e te~ ~der ,. ~e b~d~ ~l~ ws .~ ~ ~g ~on. wo~d not ha~ had ~ ~ ~e ~ wh~ ~e ~ ~ ~d. R~den~ ~ ~ve ~ Su~or C~ j~ ~ ~P ~day. A ju~ ~ himself Monday. 'we encourage. him to come,' ALldaf ~ 'We bare no*~*~ng to The dry has .spent abeuf' S350,000 in legal - fe~, Ni~zk:rnan ~ As a condition of h'-~4Y' development aPPac~'' fion, Laumn Deelopment pay the dW'~ legal fees, he added. The ~ty a~ th~ dewbp~r:' accu~ ~r~dents of exploiting: fea~ of flooding to hide another'. ag~nd¢ preventing the open spac~ in ~he~r .a~ ~com being die ground end no trust between tl~' homeewners the a.W. · · 'We d~T really expect to get e~ywhere-~dth our public off~^l~' Wy~nt said. TOTAL P.82 THE DANGER iS REAL! danger,' If the levee Is remove~ your home will ~e /n a FLOOD INUNDATION ZONE, This means: lower property values disclosure requirements expensive flood Insurance ATTEND the City Council Meeting. on Wednesday, December 1 at 7:00 P.M. 10500 East CIvic Center Drive East of Haven between Foothill and Arrow DEMAND the City review the safety of the "replacement channel- at an open public* City Council Meeting rather than "behind closed doors". Call 909-635-2003 for more information. SAVE THE LEVEE .' Who built the Deer Creek Levee? The Army Corps of Engineers buil~ the Levee with federal funds;- Ftrs'~ they rebuilt it to a height of 15' in 1971 end then tn 1981 the Corps raised The height of the Levee to 44:)' end erreDred ft with riprap st the same time they constructed the Debris Basin. Was tie Deer Creek ~:evee p.trt of L/m Cm~' Project? The Corps' Design Memorandum deseWes fie Levee as per~ of the Project. However, both the Army Corps end San Bemardlno COunty have 'lost" all copies of any of the other documents which describe the ProJeot The Corps now says they 'think" the Levee wee only an 'optional' pert-of the Project. Way would the Deer Creek levee be needed? The Levee would be needed to protec~ downslope harne6 tf the debris basin fells. The Levee design would hold as much debris as the debris begin end w~uld slow the debris flow down. Debrl= can come dov~n err flow Speeds higher Then 50 mph, Wfim;' WOUld m,e, ke ~ ~ basin free? The debds begin c~uld raft after a fire In Deer Canyon or tn s(or~ ~ere ~ere was mrs then 3. 1/4 ' of rain tn Three ~urs or ff There was a storm when the ~ak alre~y ~d snow on h. ttow many.~tonnx lmave them bee~ with mum ¢fMm 3 1/4" of rlln ln ~ree hourl or tba~ would have made zY, e basin/'mtr2 Los Angeles Flood Confrog provided Information T. herc listed 17 such storms in the Is. st 70+ y~ers end noted that' several ~(rnes The CucemonGa area had hod more 1:hen 3 1/2' of rein in les~s than an hour. The state cilmetologlst calcuietes th8~ the 1 O0 Year Three-Hour Storm Is 7" Instead of 3-1/4 end that ~he 100 Year Storm wouid drop about 21 ' of rein per day. Cucernonga has had the htghe~ rainrafts {n the entire state. How Often wodd tiNtre tm I~e= In O~e canyon7 Hislortcafiy there hove b~n fires a~ut every 20 yearn in Deer and Day ~nyone, ~e forffi M~;ce esd~:es the ~c{e Is e 10 ~ ~ yuf one. Rece~ aredies ~om Berkeley also indicts that over The las~ 6~ years fires hove occurr~ on an everage Of ev~ 20 years. flow/bad would tt~ ffo~ltng I~e? With thousands of homes in Deer Creek, Tetra Vimte, Havenview, Compares Rose end Vlatorle now bul~ below the Levee, de~gea from debris flow end finding could approach e b(lfion doiler$, pa~lculerl/iy if them am injuries or deaths. PLEASE HELP .~A VE' THE LEVEE I,g AT ,,~TAICE, r YOUR FAMIL ins SAFETY DON'T BELIEVE CRISTIANO'S LIES NO MA TIER WHO IS TELLING THEM/ LIE NO. 1: The Associations have spent $800,0000. FALSE: The As,~i~d,~ h~ wpcnt.~j~pm~dm~tty $350,000 or less i :~1.50 per property per d~ry. Loeb & Loeb, the C~if0mia Envirc~nnenml Dtw Project, the Berliner L~w Offices, the Spirit of the Sage Cramell, and the Law Offices of Craig ~ hgve ftmd~ ~e re~_ Cr/ti~n-o is dest't:rae. He tins ~o pay all of the al'tt~e:ys fees fithe Detxi~ Basin is fsFand Io be unsafe. LIE NO. 2: The Cristmno Project is Safe. FALSE: The Army Cor~' 12/16r09k-ttt:r~al~tt~tlhedcbds baxln is aknost 50 percent sinalice thtm originally inte~dnl; that it will tidl ~vithin five years of a burn and th~t it x, dll be destroyed in a quake cxcx~ding Magnitude 6.5. The lgm:r i~ Rll cmT~nt r~inr~,~ inform~on. Oar mtim Cc.:tS,,rc~io~tl dcle~,~,~ion, i~:luding Sctmlors Bo~er, F~, ~nd Ctml~--s,sanan Btma, m'~ comn~4tted to a complet~ ~fetv st-adv. The study ,~51~ be paid for by the Army C~rps or FEMA-NOT YOU! LIE NO. 3: YOUR property value is not affected FALSE: ~.~ hou~ airecay affect ti ~ of YoUR m a~i the q~W of l~e of YO~ F~Y. h ~ ~ ~e ~ ~ ~ ~ ~s ~, yo~ ~ ~H ~ a ~ ~. f~ less. " LIE NO. 4: The Fire was Someone Else's Fault. FALSE: cri~ano's h~Udoz~ opeaU0r ~ a ~e d~ S~m ~ ~ ~i~s ~ 3~ f~ of Vo~ ~ A~d~ ~ ~ ~s Angeks Times. g~ is ~ble ~ c~s ~d C~ ~i ~ to ~y f~ d~e~. C~ef ~ ~n of ~e S~ F~ ~ ~o;a~ ~ Times C~S~O'S WAT~ ~UCK WAS ~T O~ON~ ~ ~ if uyo~ ~ bl~g ~ ~, it wo~d ~ 'A M~T ~." LIE NO. 5: Homeowners Wanteda Breach in the Levee. FALSE: h 1988,thehomcownemrequ~xluncmcrgc~cyacceisrotd. The Ci~ ap~o~ a ~d SO~H of~e 1~ NOT ~ ik ~s~o ~ola~ ~e Ci~'s mq~ ~ hc ~ch~ ~ 1~. ~ b~ ~ ~e~i~ m fix. LIE NO. 6: Cristiano has Won all the Lit~atior~ FALSE: Four hwsuits tm pcnain~ ~ C6stla~'s ~jcct including ~ ~B ~t ~i~ ~ Ci~ m a j~ ~y ~ ~fi~ d~. he f~ m~ d~ ~ ~w it ~ ~y O~ h~ ~ a 1 ~ ~ ~ l~t on a stubfie ofi~ i~. Cribo's h~t ~ai.~ ~;m~, Say ~ ~gel LIE NO. 7: No One Offered to Buy Cris~hno ~ J~roperty. FALSE: Every effort was made to avoid li6o~,;on by,offering to buy the properly LAUREN DEVELOPMENT INC. August 15, 2000 The Honorable Mary D. Nichols Secretary of Resources The Resources Agency State of California 1416 Ninth Street, Suite 1311 Sacramento CA 95814 VIA FACSIMILE AND US MAIL Re: Dee Creek Deb..-is Basin, My letter to You Dated July 19, 2000 Dear Secretspy Nichols: In my attached letter to you I predicted that your intervention on behalf of Colorado River Board member, Ms. McKeith, to support her unfounded concern over the safety of the DeedDay Creek Debris Basins would be used to further Ms. McKeith's true agenda: litigation waged by her to stop the development of my property, which is near her personal residence. You may recall that Ms. McKeith just does net want any new homes built ueax her house, and she has filed numerous legal actions in her four-ye~ a.n.m:k against my fully-entitled home development. As you know, Ms. McKeiLh armaged for an expert to write a highly technical hydrology report used to question how the Deer Creek Debris Basin would perform under catastrophic conditions. This cume only after two previous reviews she pressed the ACOE into performing, but these reports found the Deer Creek Basin to bc properly designed. Once having created the "safety issue", her strategy has be,.'m to then badger elated imporlant public officials, who know nothing of her p.-~vatc property baffle or the lcgitirnacy of her claim, to write -ddidon$1 letters expressing their concerns of impending safety issues. These letters are then used by McKeith to bolster and "prove" that her safety issue is fact, and to pressure other authorities into acting precipitously. TaLc for cxzanplc the halting of the development of the needed Los Osos High School in Rancho Cucamonga. Unfortunately this is what has happened once again. Ms. McKeith has now filed yet another legal action, this time using. in part, your June 22, 2000 lelter to Dr. Westphal of the Army Corps of Enginee~ ,qs supperling '"proof of new arguments" against the development of my property based on th~ safety of an unrelated facility. And now another legal action must bc defended by the City of Rancho C'ucamonga and my company, it must heard by the courts, and various other public agencies will now have spend limited resources to respond, all for her personal agcnd~. P.O. Box790.Agour~I CA 91370 818575,gg83 FAX818575.,~67 I would be happy to provide a complete copy of the legal action in which your lelter is used against the development of my property or any of the other 12 legal actiotas you may wish to review. Ple.~¢ ~.tso rake a moment to contact City ofRancho Cucamonga officials if you would t~ke additional insight into the histoD, of this issue. Once you know the facts, I hop~ you will object to the use of your concerns and your letter for Ms. McKcith's personal prop~-ty battle. W' ord / cc: The Honorable Dianc Fcinsteln The Honorable Barbara Boxer The Honorable Joseph Baca The Honorable Gray Davis Dr. Joseph Westphal, Assistant Secretary of the Army (Civil Works) Colonel John P. Carroll, Commander, Los Angeles Disuict; U.S. Army Corps of Englnecrs FIonomblo Wi!llmm Alexander, Mayor, City ofRanoho Cuc:araonga Mr, Dennis Jones, Director, C,a/ifomia Office of Emergency Services Ms. Dclaine ~Eeston, Superintendent of Schools Mr. Ken Miller, Director, DepL ofTransportatlon/Flood ControI, County of Sau Bcrnardino Andrew Hagell, Esq., Hewitt & McGuire P.O. Box790 .~Ftr~ CA 91376 LAUREN DEVELOPMENT INC. July 19, 2000 The Honorable Mary D. Nichols Secretary of Resources The Resources Agency State of Califomi~ 1416 Ninth Street, Suite 1311 Sacramento CA 95o°14 VIA FACSIMILE AND US MAIL Re: Deer Creek Debris Basin, Your Letter of June 22, 2000 Dear Secretary Nichols: I thought it important to respond to you, as I am one of the "representatives of the affected community" you refer to in your June 22, 2000 letter to Dr. Westphal of the Army Corps of Engineers. Unfortu_nately, your intervention in thi~ inaltcT appears to t~ve been prompted and orchestrated by Colorado River Board member Ms. Malissa McKeith. If this is true, and before you get in too ~ar -- as others have before you to theLr chagrin -- I thought it would be pradent to give you some background, in addition to the other side of the issue at hand. I am the owner of approximately 25 acres of property directly below the Deer Creek Debris Basin and within the community of Haven View Estates, in which Ms. McKeith owns her principal residence. For the past four years, I have been under siege by Ms. McKeith, in a broad~ based, all-out effort to stop the development of my property, for which I have received all required entitlemeats. She just do~s not want my homes near hc'-r house. She has publicly claimed that she will go to any lengths to stop my development and has, rci~-ctmbly, demonstrated her willingness to follow through on her claim (see, for example, a copy of the police rcport attached). As you may know, Ms. McKeith often prefers to speak on behalf of her organization, CURE. CURE and Ms. McKeith arc a difference without distinction; it is my traderstanding that they are essentially one and the same. She is its attorney and almost the only pe~on who ever speaks on its behalf or has claimed to be a member on the r~cord. It is instructive to note that her personal phone number is used as a anntact number for this orga~tization. Initially her (CURE's) claims were that my plans for d~vclopment were deficient. When that failed, she proffered a wild accusation that that the city planner, and other City employees in charge of processing my dcvclopment plans, conspired to defraud her of her civil fights in order to obtain a personal financial gain. This was adjudicated in Federal Court where she promptly lost and lost again on appeal. She even went so far as to appeal to the U.S. Sup~ciiie Court, but her appeal was recently denied as wcll. Furthermore, she simultancoasly claimed a kitchen-sink list of environmental issues, even going so far as to claim that my devclopment should be P.O. BOX7~O Aga~HI~ CA 9137~ 618575,a9~ F/~.XB185'F--J.~87 stopped due to its proximity to power lines and the electxo-magnedc pulse they emit, which she stated would cause c~.acer in the p~trehasers of the homes in my development (remember she lives in the very same neighborhood). All of these environmental claims also failed and were also adjudicated, this time in state court, where, aga~ she lost and, again lost on appeal. To assist with her environmental claims, CURE now turned its attention to the Department of Fish and Game, badgering them to intervene on her behalf. Laitially they agreed, accepting her arguments, but once ~e facts were determined and they revised their assessment of the merits of her claims, CURE turned and bit them by filing a lawsuit against the DcpartmenL This was summarily dismissed and sanctions were considered against her tirm, but true to form Ms. McKeith has since filed an appeal. On and on this has gone, for four long years, 12 legal actions ~ of which have been decided against her claims) and az a cost of enormous sums of both private and public money. Along the way Ms, McKeith struck upon another idea Ci have begun calling her dally claims the cause dujour) of how she could, if not stop me, at least slow me down. After all, what public official can turn from a call to arms when the issue of public safety is raised, even if that call is nothing more tha. tl someone falsely crying fire in a crowded theater. Initially, the issue of safety concerned the removal of axl old, abandoned 8-fool high earth~ levee that is pro'flatly located on my property, and which she claimed was the last line of defcrtse, should the Deer Creek Debris Basin fail a~er a cataclysmic earthquake which would be followed by a devastating forest fire, subsequent to a cata_strophic E1 Niito rainfall. Imagine, an un- engineered, non-mah~mined, earthen mound of dirt, constructed circa 1930 more likely to save her in the event of these simultaneous multiple disasters than the $170,000,000 Federally Funded Deer/Day Creek Debris Basins and Flood Control Channels. In any event, the Army Corps of Engineers, L.A. OK'ice, undertook a review of her initial claims and found 1) that the Deer Creek Basin was sound, and 2) that the old levee on my property is not considered to have any significance for flood control purposes. In response, CURE immediately claimed that the L.A. office of the ACOE was in conspiracy with the County of Sar~ Bernardino (sound familiar'?). Citing "public safety", she then asked the Washington D.C. Offices to step in, stating, in tuna, that only they could be imp,'~-tial. They agree~ and again confirmed the Basin's conformance with the original design specification. Not content and in the hopes of finding some design flaw, Ms. MeKeith insisted that the ACOE re-evaluate the safety of the Debris Basin using ctm-c~t design methodology. They accommodated he'r, and again determined the Basin to bc sound. In response, CUP,.E promptly claimed that the ACOE was unwilling to properly conduct an "impartial" review. So she packed her "safety issues" and went to Washington to meet with Senator Boxer and Senator Feinstein. Along the way, her organization urnraged for a study by Exponent Failtire, Inc. to give credence to her cries that the Basin was never-the-less defective, as well as to cast doubt on the integrity of the entire Cucaraonga Creek Flood Control system (comprised of two debris basins, and several channels). To ~¢,ive authority to this report, and once again using the shield of CUPjE, she solicited, not the County of San Bernardino who has jurisdiction over the Basin, but an employee of the L.A. County Dgpartmcnt of Public Works, to write a "letter of consensus", wh/ch I no{e found a way into your letter to Dr. Westphal. Were you aware that the Deputy Director of the L.A. County Depotmerit of public Works apologized and withdrew this letter'?. Probably not, so I have attached a copy of the withdrawal for your review. Once brought into this quagmire, it is not easy to get out (just ask the City of Rancho Cucamonga, the County of San Bemardino, the Los Angeles Department of Water and Power, the Los Angeles Department of Public Works, the Regional Water Quality Control Board, the Depmtment of Fish and Game, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers and the Federal Emergency Management Agency, to name a few). My only request is that you will make a good faith effort to at least gather information on BOTH sides of the issue before you act precipitously, spend any additional tax dollars, or form any task force to study an issue that has al.~eady been exhaustively studied by the experts. I have enclosed some information (believe me them sm volumes more), which I am sure was inadvertently left out of the package which prompted your June 22 letter to Dr. Westphal. I particularly draw your attention to the June 20, 2000 letter to Senator Boxer from Colonel Carroll, of the Army Corps of Engineers wherein he states, "the deficiencies cited in the Exponent Inc. wport, if valid, ar~ readily corrected through simple excavation of additional sediment from the existing debris basin. The funding that would be cxpended on an additional study would bc better spent on the removal of additional sediment so as to enhance the flood control capability of the existing debris basin." I hope these documents are helpful and I am prepared to submit any infornmtion that substantiates what I have discussed above. Thank you for your kind consideration of, and attention to, this matter. Sincerely, William D. Ford President cc with attaghrnents: Dr. Joseph Westphal, Assistant Secretary of the Army (Civil Works) Honorable William Alexander, Mayor, City ofRancho Cucamonga Colonel John P. Carroll, Commander, Los Angeles District. U.S. Army Corps of Engineem Mr. Kcn Miller, Director, Dept. of TransportationfFlood Control, County of San Bcrnardino Andrew Hart. zell, Esq., Hewill & McGuire p.O. 53XYBO a~otireHls, CA 91376 STATE OF CALIFORNIA GRAY DAVIS. GOVERNOR Governor's Office of Emergency Services P.O. Box 419047 Rancho Cordova, California 95741~9047 916-262-1816 Fax 916-262-1677 OES July 24, 2000 Mr. Kenneth Guidry, Chief Flood Control Planning Division San Bernardtrio County Department of Public Works 825 East Third Street San Bernardtrio, CA 92415-0835 ..'/5¢,, 7 FLOQ~ ';" ,:T,:n l 7JI,3T,P, IC'I - Dear Mr. Guidry: RE: DEER CREEK DEBRXS BASIN (DWR #87-011) INUNDATION STUDY AND MAP This letter shall serve to confirm receipt of the inundation map and study for the Deer Creek Debris Basin submitted in compliance to Government Code Section 8589.5. This office will review the map for conformance to program guidelines and contact you within 30 day of the date of this letter if additional information is required prior to the engineering review. If it is determined that the map submitted meets the standard for an inundation map pursuant to Government Code Section 8589.5, it will be forwarded for engineering review. The map or study may, dependent on these revie~vs, require modification prior to final approval. If you have any questions or comments, please contact me at (916) 464-3285. Sincerely, ROBERT MEAD Associate Governmental Program Analyst Plans Unit c: Duwayne Brooks, Director, Department of Education School Facilities Planning Division Deborah Steffen, Regional Administrator, OES Southern Region the Rancho city of Cucamonga s Repo DATE: November 15, 2000 TO: Mayor and Membem of the City Council Jack Lam, AICP, City Manager FROM: Brad Buller, City Planner BY: Shonda Bello, Planning Aide SUBJECT: HISTORIC LANDMARK DESIGNATION 00-02 - KIMBERLY AND JAY POCOCK - An application to designate the Grandma Issak House and property as an Histodc Landmark, located at 9611 Hillside Road -APN: 1061-571-01. Related File: Mills Act Agreement 00-01. MILLS ACT AGREEMENT 00-01 - KIMBERLY AND JAY POCOCK - A request to implement the use of the Mills Act to reduce property tax on the Grandma tssak House located at 9611 Hillside Road - APN: 1061-571-01. Related File: Landmark Designation 00-02. RECOMMENDATION: Approval of Landmark Designation 00-02 by adoption of the attached Resolution and authorize the Mayor to sign the Historic Property Preservation Agreement as unanimously recommended by the Historic Preservation Commission and staff. BACKGROUND/ANALYSIS; The Grandma Issak House is built on a large parcel of land originally owned by Captain Peter Demens and James Haag. About 1910, Abraham K. Toews and his family moved to the area, buying part of this large parcel from Captain Demens. Grandma Issak, the mother of Mrs. Toews, purchased 11 acres directly to the west of her family, where she lived for many years. The Toews family contributed greatly to the neighborhood of primarily Russian Immigrants and prominent citizens. (The Thorpes to the west, Captain Demens to the north, the Toews and Cherbaks to the east and the Krystos to the south). The subject site and structure certainly qualify for landmark designation based upon much of the criteria from the City's Historic Preservation Ordinance, including such significant areas as historical, cultural, architectural, and neighborhood and geographic setting. Details concerning CITY COUNCIL STAFF REPORT LD 00-02 - KIMBERLY AND JAY POCOCK November 15, 2000 Page 2 these areas of significance are contained in the "Facts for Finding" section of the attached Staff Report and Resolution dated October 11,2000 (See Exhibit "A"). Brad Buller City Planner BB:SB\ma Attachments: Exhibit "A" - Historic Preservation Commission Staff Report dated October 11, 2000 Exhibit "B" - Historic Preservation Commission Minutes dated October 11, 2000 Exhibit "C" - Site Plan Resolution Recommending Approval of Landmark Designation 00-02 THE CITY OF '~ANC~O CUCAMONGA DATE: October 11,2000 Chairman and Members of the Historic Preservation Commission Brad Buller, City Planner Shonda Bello, City Planning Aide HISTORIC LANDMARK DESIGNATION 00-02 - KIMBERLY AND JAY POCOCK - An application to designate the Grandma Isaak House and property as a Historic Landmark, located at 9611 Hillside Road. - APN: 1061-571-01. Related File: Mills Act Agreement 00-01. MILLS ACT AGREEMENT 00-01 - KIMBERLY AND JAY POCOCK - A request to implement the use of the Mills Act to reduce property tax on the Grandma Isaak house, a historic landmark located at 9611 Hillside Road. - APN: 1061-571-01, Related File: Landmark Designation 00-02. BACKGROUND Historical Sianificance: The land and structure at 9611 Hillside Road, known as "Grandma Isaak's House" has been connected with some of the great pioneers of the Iomosa /Alta Loma community (Exhibit "A") Captain Peter Demens owned the property from 1901-1910. He was a prominent member of the Iomosa community, as he was extremely influential in bringing the Pacific Electric Railway farther north through the community. He was a Russian nobleman, who with his family, emigrated from Russia because of the unstable Russian government. Captain Demens was also influential in encouraging other Russian immigrants, such as the Cherbaks, and the Krystos to settle in Iomosa. James Haag owned the property with Captain Demens from 1902-1910. He was a member of the school board in the early 1900s and one of the first settlers in the Iowa Tract. His ranch, which consisted of 10 acres was sold to Abraham K. Towes (pronounced 'q'ayes"). In 1910, Abraham K. Toews bought the 10-acre piece of land from Mr. Haag. The Toews family was one of many influenced by Captain Demens to settle in Iomosa. The Toews family was part of the large group of Mennonite settlers who came to the area in HISTORIC PRESERVATION COMMISSION STAFF REPORT LD 00-02, MA 00-01 - POCOCK October 11, 2000 Page 2 search of religious freedom. Mr. Toews gradually increased his small 10-acre ranch to 90 acres. He is also known for being one of the first ranchers to purchase an automobile, a 1913 Studebaker. Finally, Grandma Isaak, for whom the house is named (the mother of Mrs. Toews) moved from Upland to Iomosa to be closer to her family. She purchased the 11 acres of land directly adjoining the West Side of the Toews family ranch. Her presence added to the neighborhood of primarily Russian immigrants and prominent citizens; Captain Peter Demens to the north, the Toews and Cherbaks to the east, the Thorpes to the west, and the Krystos to the south. After Grandma Isaak's passing, members of the Toews family continued to live in the house until 1944 when it was sold to Carlton and Bernice Grover. Carlton is remembered as a rancher, and Bernice is remembered as giving the children in the neighborhood piano and ballet lessons. The property is also bordered to the south and to the west with windrows of Eucalyptus Trees used for protection from the wind. These trees served as windbreaks, protecting the structure and citrus during windstorms as well as providing a property boundary. In conclusion, the house at 9611 Hillside is significant to the City of Rancho Cucamonga because it has witnessed the growth and changes from a small agricultural community to a blossoming civic center, as well as the great number of contributions made by its residents. Site Characteristics: The site follows a 7-8% grade. It is comprised of only 3 acres of the original 11-acre site. It is immediately surrounded by Very-Low density residential (2 dwelling per acre). The home retains its setting because of the large set back from Hillside Road to the north. A unique feature associated with the site is the Eucalyptus windbreak, which borders the house to the west, and to the south (Exhibit "B"). ANALYSIS General: A one and one half story structure resting on a raised basement, the house at 9611 Hillside Road is square in plan with an addition to the north-west side. The roof has a high gable. A dormer unit with gable overhang is visible from the south side. A composite shingle roof caps the main portion of the house as well as the addition. Wide shiplap siding sheaths a wood frame structural system. End boards are visible at the building corners. The room addition on the northwest side is board and batton exterior. An open veranda extends across the front (south side) of the structure. The raised basement is faced with fieldstone to the south (it is not visible to the north due to the slope of the site), and bound with a cement mortar. The home is representative of several architectural trends. It incorporates prominent details from the Colonial Revival, as well as masonry construction that were popular around 1905. Most notable among its design accents is the open veranda. The veranda column bases are fieldstone with squared posts supporting the roof. The flooring material is 24-inch by 24-inch concrete tiles. The steps up to the veranda are concrete. The front windows are large Conrail HISTORIC PRESERVATION COMMISSION STAFF REPORT LD 00-02, MA 00-01 - POCOCK October 11,2000 Page 3 panes with transom, wood lintel, molding and lugsill. The front door is wood with an oval glass panel and ornate carving. The gabled roof is constructed with knee braces and decorated verge board consisting of a wooden amh. Concrete finished chimney on the south- West Side of the main unit has been finished to look like adobe. Weathered brick is embedded in the chimney in the form of a q". Weathered brick is also present on the shoulders of the chimney. There are no secondary structures. The property surrounding the home is in the process of being landscaped. Eucalyptus trees border the property on the south and west property line. These trees served as windbreaks, which protected the structure and citrus during windstorms as well as providing natural properly boundaries. It contributes to the history of the local area as a reminder of the many Russian immigrants who inhabited the area at the turn of the 19th century. The integrity of the house is intact with the only (recent) alteration being the board and batton room addition to the north west side of the structure (circa est. 1950-1960). Landmark Desianation: The subject site and structure certainly qualify for landmark designation based upon much of the criteria from the City's Historic Preservation Ordinance including such significant areas as; historical, cultural, architectural, and neighborhood and geographic setting. Details concerning these areas of significance are contained in the Facts for Finding section. The requested designation area includes the subject lot, residence, and rows of Eucalyptus trees used for protection from the wind. Mills Act Aareement: In accordance with City policy, the owner has requested a Mills Act Agreement. The Agreement Schedule List of Improvements has been drafted and reviewed and is attached for reference. The concept of the Mills Act program is to provide an incentive for the property owner to protect and preserve the property by retaining its characteristics of historical significance. This intent is encouraged through the reduction of property taxes, thus enabling the property owner to reinvest the money saved from the reduced property tax on improvements. The properties that enter into the agreement are to be inspected by City staff on an annual basis to determine whether notable progress has been made in rehabilitating the property. Staff estimates the property tax savings to the owner could be as much as $2,203.21. The exact amounts are dependent upon the county Assessors property valuation, which is based on income potential and capitalization rate at the time of assessment (Exhibit "C'). Environmental Assessment: The project is categorically exempt under Class 1 .d of the guidelines for the California Environmental Quality Act. FACTS FOR FINDING: A. Historical and Cultural Significance: Findinql: The proposed landmark is particularly representative of an historical period, type, style, region, or way of life. HISTORIC PRESERVATION COMMISSION STAFF REPORT LD 00-02, MA 00-01 - POCOCK October 11, 2000 Page 4 Fact/s: The property identifies a historic period of the early 1900s when a large number of Russians emigrated from Russia due to religious persecution. F ndin,q2: The proposed landmark is an example of a type of building, which was once common but is now rare. Fac~s: The residence retains the architectural character of the Colonial Revival period, and exhibits evidence of masonry construction that was popular circa 1905. Findin~3: The proposed landmark is of greater age than most of its kind. Fac~s: The landmark eligible property is approximately 100 years old. The structure is approximately 85 years old. Findinq4: The proposed landmark was connected with someone renowned or important or a local personality. Fact/s: The properly was owned by Katharina Issak, mother of Mrs. Abraham K. Toews. The Toews family was Russian immigrants who contributed greatly to the Russian and Mennonite communities. Findin,q5: The proposed landmark is connected with a business or use, which was once common but is now rare. Fac~s: The residence, and rows of Eucalyptus trees are reminiscent of the citrus industry, and ranching that was once a common business and land use in the Rancho Cucamonga area. Historic Architectural and Engineering Significance. Findinql: The construction materials or engineering methods used in the proposed landmark are unusual, significant, or uniquely effective. Fac~s: The engineering methods such as the open veranda, and the decorated verge board consisting of a wooden arch are unusual and uniquely effective in keeping the character of the structure. The fieldstone facing is a unique material and is not usually found in architecture and engineering in the homes of today. F nd n,q 2: The overall effect of the design of the proposed landmark is beautiful, or its details and materials are beautiful or unusual. Fact/s: The open veranda, decorated verge board consisting of a wooden arch, and fieldstone facing reinforce the style commonly found in grove houses of the early 1900s. HISTORIC PRESERVATION COMMISSION STAFF REPORT LD 00-02, MA 00-01 - POCOCK October 11,2000 Page 5 Fact/s: Site orientation (to the south) adds to the rarity of the proposed landmark. C. Neighborhood and Geographic Setting. Findin.q 1: The proposed landmark materially benefits the historic character of the neighborhood. Fac~s: The immediate vicinity of Archibald Avenue and Hillside Road exhibits two other historical resources, the Demens Tolstoy House and the Toews House. The proposed landmark contributes to the variety of architectural trends throughout the Rancho Cucamonga area from the early 1900s and historical continuity of the neighborhood. CORRESPONDENCE: The Historic Landmark designation was advertised as a public hearing in the inland Valley Daily Bulletin newspaper, the property was posted, and notices were sent to all property owners within 300 feet of the project site. RECOMMENDATION: Staff recommends that the Historic Preservation Commission adopt the attached Resolution recommending approval of Historic Landmark Designation 00-02 and Mills Act Agreement 00-01. Respectfully submitted, City Planner BB:SB/Is Attachments: Exhibit "A" - Photograph of Residence Exhibit "B" - Photograph of Eucalyptus Trees Exhibit "C" - Agreement Schedule, List of Improvements Resolution Recommending Approval for Landmark Designation 00-02 City ofRancho Cucamonga Historic Preservation Commission MILLS ACT AGREEN4ENT SUPPLEMENTAl ,: (To be completed by the Applicant) Potential Structure / Property Improvement Time - Line Please list the improvements which ar~ intended to take place over the next 10 years. List them in order of owner's priority. IYEAR'i -IMPROVEMENT 2000 Remodel Downstairs Bathroom 2001 Remodel / Repair Upstairs Bathroom 2002 Paint Entire Downstairs Area 2003 Add 3,000-4,000 Sq. Ft. to Existing Structure 2003 New Roof 2005 Install Central Heating and Air Conditioning 2006 Paint Exterior 2007 Repair Structural Support of Upstairs Floor 2008 Remodel Master Bedroom and Bath 2009 Plant Vineyards (1 acre) O~'NER CISRTIFICATION . .. ' [ ....... certi~ that I am presently ~e legal owner of Meet property. Furth owledge ~e RESOLUTION NO. 00-02 A RESOLUTION OF THE HISTORIC PRESERVATION COMMISSION OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, RECOMMENDING APPROVAL OF HISTORIC LANDMARK 00-02 TO DESIGNATE THE GRANDMA ISAAK HOUSE AS A LANDMARK, LOCATED AT 9611 HILLSIDE ROAD, AND MAKING FINDINGS IN SUPPORT THERE OF - APN: 1061-157-01. A. Recitals. 1. Kjmbedy and Jay Pocock filed an application for a Landmark, as described in the title of this Resolution. Heroinafter in this Resolution, the subject Landmark Designation request is referred to as "the application." 2. On October 11, 2000, the Historic Preservation Commission of the City of Rancho Cucamonga conducted a duly noticed public headng on the application. 3. All legal prerequisites to the adoption of this Resolution have occurred. B. Resolution. NOW THEREFORE, it is here by found, detem~ined, and resolved by the Histodc Preservation Commission of the City of Rancho Cucamonga as follows: 1. This commission here by specifically finds that all of the facts set forth in the Recitals, Part "A" of this Resolution are true and correct. 2. The application applies to approximately 3 acres of land, a rectangular configuration located at 9611 Hillside Road. 3. Based upon substantial evidence presented to this Commission dudng the above- referenced public headng on October 11,2000, including wdtten and oral staff reports, togetherwith public testimony, and pursuant to Section 2.24.090 of the Rancho Cucamonga Municipal Code, this Commission hereby makes the following findings and facts. a. Historical and Cultural Significance: Findin~ 1 The proposed landmark is particularfy representative of an historical pedod, type, style, region, or way of life. Fact/s: The property identifies a histodc pedod of the early 1900s when a number of Russians emigrated from Russia due to religious persecution. Findin~2: The proposed landmark is an example of a type of building, which was once common but is now rare. Fact/s: The residence retains the architectural character of the Colonial Revival pedod and exhibits evidence of the masonn/construction that was popular circa 1905. HISTORIC PRESERVATION RESOLUTION NO. 00-02 LD 00.02 - POCOCK October 11, 2000 Page 2 Findingq 3: The proposed landmark is of greater age than most of its kind. Fact/s: The landmark eligible property is approximately 100 years old. The structure is approximately 85 years old. Finding 4: The proposed landmark was connected with someone renowned or important or a local personality. Fact/s: The properly was owned by Kathadna Issak, mother of Mrs. Abraham K. Toews. The Toews family was Russian immigrants who contributed greatly to the Russian and Mennonite communities. Findin.q5: The proposed landmark is connected with a business or use, which was once common but is now rare. Fact/s: The residence, and rows of Eucalyptus trees are reminiscent of the citrus industry and ranching that was once a common business and use for land in the Rancho Cucamonga area. b. Historic Architectural and Engineedng Significance. Finding 1: The construction matedais or engineedng methods used in the proposed landmark are unusual, significant, or uniquely effective. Fact/s: The engineering methods such as the open veranda, and the decorated verge board consisting of a wooden arch, are unusual and uniquely effective in keeping the character of the structure. The fieldstone facing is a unique matedal and is not usually found in architecture and engineedng in the homes of today. Finding 2: The overall effect of the design of the proposed landmark is beautiful, or its details and matedais are beautiful or unusual. Fact/s: Fact/s: The open veranda, decorated verge board consisting of a wooden arch, and fieldstone facing reinforce the style commonly found in grove houses of the early 1900s. Site orientation (to the south) adds to the radty of the proposed landmark. c. Neighborhood and Geographic Setting Findin.q1: The proposed landmark matedally benefits the histodc characterofthe neighborhood. Fact/s: The immediate vicinity of Archibald Avenue and Hillside exhibits two other historical resources, the Demens Tolstoy House and the Toews House. The proposed landmark contributes to the variety of architectural trends throughout the Rancho Cucamonga area from the eady 1900s and historical continuity of the neighborhood. HISTORIC PRESERVATION RESOLUTION NO. 00.02 LD 00-02 - POCOCK October 11, 2000 Page 3 4. This Commission hereby finds that the project has been reviewed and considered in compliance with the California Environmental Quality Act of 1970, as Landmark Designations are exempt under CECil,, per Article 19, Section 15308. 5. Based upon the findings and conclusions set forth in paragraph 1, 2, 3, and 4 above, this Commission hereby resolves that pursuant to Chapter 2.24 of the Rancho Cucamonga Municipal Code, the Histodc Preservation Commission of the City of Rancho Cucamonga hereby recommends approval to the City Council on the 1 lth day of October 2000, of the Landmark Application. 6. The Chairman of this Commission shall certify to the adoption of this Resolution. APPROVED AND ADOPTED THIS 11TH DAY OF OCTOBER 2000. HISTORIC PRESERVATION COMMISSION OF THE CITY OF RANCHO CUCAMONGA. BY:~cN~iel, Ch/~ain~n~ I, Brad Buller, Secretan/of the Histodc Preservation Commission of the City of Rancho Cucamonga, do heraby certify that the forgoing Resolution was duly and regularly introduced, passed, and adopted by the Histodc Preservation Commission of the City of Rancho Cucamonga, at a regular meeting of the Historic Preservation Commission held on the 11th day of October 2000, by the following vote-to-wit: AYES: COMMISSIONERS: MACIAS, NANNERIN0, MCNIEL, STEWART, TOLSTOY NOES: COMMISSIONERS: NONE ABSENT: COMMISSIONERS: NONE DRAFT - FOR DISCUSSION ONLY City Of RANCHO CUCAMONGA HISTORIC PRESERVATION COMMISSION MINUTES Regular Meeting October 11, 2000 Chairman McNiel called the Regular Meeting of the City of Rancho Cucamonga Histodc Preservation Commission to order at 7:00 p.m. The meeting was held in the Council Chamber at Rancho Cucamonga Civic Center, 10500 Civic Center Ddve, Rancho Cucamonga, Califomia. Chairman McNiel then led in the pledge of allegiance. ROLL CALL COMMISSIONERS: PRESENT: Rich Macias, John Mannedno, Larry McNiel, Pam Stewart, Peter Tolstoy ABSENT: None STAFF PRESENT: Shonda Bello, Planning Aide; Brad Buller, City Planner; Dan Coleman, Principal Planner;, Kirt Coury, Associate Planner; Kevin Ennis, Assistant City Attorney; Nancy Fong, Senior Planner; Dan James, Senior Civil Engineer;, Brant Le Count, Associate Planner;, Gall Sanchez, Planning Commission Secretary; Alan Warren, Associate Planner ANNOUNCEMENTS Them wem rioannouncements. APPROVAL OF MINUTES Motion: Moved by Mannedno, seconded by Macias, carried 4-0-1 (Tolstoy abstain), to approve the minutes of August 23, 2000. CONSENT CALENDAR MILLS ACT AGREEMENT 00-01 - KIMBERLY AND JAY POCOCK - A request to implement the use of the Mills Act to reduce property tax on the Grandma Isaak House, a Designated Histodc Landmark located at 9611 Hillside Drive - APN: 1061-571-01. Related File: Landmark Designation 00-02. PUBLIC HEARINGS B. HISTORIC LANDMARK DESIGNATION 00-02 - KIMBERLY AND JAY POCOCK- An application to designate the Grandma Isaak House and property as an Historic Landmark, located at 9611 Hillside Drive -APN: 1061-571-01. Related File: Mills Act Agreement 00-01. DRAFT - FOR DISCUSSION ONLY Shonda Bello, Planning Aide, presented the staff report. Commissioner Tolstoy congratulated Ms. Bello on the historical research for the report. Chairman McNiel opened the public headng, but there was no testimony. Motion: Moved by Tolstoy, seconded by Mannedno, to recommend approval of Mills Act Agreement 00-01 and adopt the resolution recommending approval of Histodc Landmark Designation 00-02. Motion carded by the following vote: AYES: MACIAS, MANNERINO, MCNIEL, STEWART, TOLSTOY NOES: NONE ABSENT: NONE - carded PUBLIC COMMENTS Artwar Shah, 7050 Newton Place, Rancho Cucamonga, congratulated the Histodc Preservation Commission on its decision. COMMISSION BUSINESS There was no additional Commission business. ADJOURNMENT Motion: Moved by Stewart, seconded by Mannedno, carded 5-0, to adjourn. The Planning Commission adjourned at 7:06 p.m. Respectfully submitted, Brad Bullet Secretary Historic Preservation Commission Minutes -2- October 11, 2000 151 Hillside LD 00-02 MA 00-01 EXHIBIT C n SOLUt O. NO. +'Z a RESOLUTION OF THE CITY COUNCIL Of THE CITY Of RANCHO CUCAMONGA, CALIFORNIA, APPROVING HISTORICAL LANDMARK 00-02 DESIGNATING THE GRANDMA ISSAK HOUSE, LOCATED AT 9611 HILLSIDE ROAD, AS AN HISTORICAL LANDMARK AND MAKING FINDINGS IN SUPPORT THEREOF. APN: 1061-571-01. A. Recitals. 1. Kimberly and Jay Pocock have filed an application for an Historic Landmark Designation as described in the title of this Resolution. Hereinafter in this Resolution, the subject Landmark is referred to as "the application." 2. On October 11, 2000, the Historic Preservation Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and recommended approval. 3. On November 15, 2000, the City Council of the City of Rancho Cucamonga considered said application. 4. All legal prerequisites to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the City Council of the City of Rancho Cucamonga as follows: 1. This Council hereby specifically finds that all of the facts set forth in the Recitals, Part "A" of this Resolution are true and correct. 2. The application applies to approximately 2 acres of land, a square configuration, located at 9611 Hillside Road. 3. Based upon substantial evidence presented to this council on November 15, 2000, including written and oral staff reports, together with any public testimony, and pursuant to Section 2.24.090 of the Rancho Cucamonga Municipal Code, this Council hereby makes the following findings and facts: a. Historical and Cultural Significance: F ndin.q 1: The proposed landmark is particularly representative of a historical period, type, style, region, or way of life. Fac~s: The property identifies a historic period of the early 1900s when a large number of Russians emigrated from Russia due to religious persecution, Findinq 2: The proposed landmark is an example of a type of building, which was once common, but is now rare. CITY COUNCIL RESOLUTION NO. LD 00-02 - KIMBERLY AND JAY POCOCK November 15, 2000 Page 2 Fact/s: F nding 3: Fact/s: The residence retains the architectural character of the colonial Revival period, and exhibits evidence of masonry construction that was popular circa 1905. The proposed landmark is of greater age than most of its kind. The landmark eligible property is approximately 100 years old. The structure is approximately 85 years old. F nd n.q 4: Fact/s: The proposed landmark was connected with someone renowned or important or a local personality. The property was owned by Katharina Issak, mother of Mrs. Abraham K. Toews. The Toews family was Russian immigrants who contributed greatly to the Russian and Mennonite communities. Findinq 5: The proposed landmark is connected with a business or use, which was once common, but is now rare. Fact/s: The residence, and rows of Eucalyptus trees are reminiscent of the citrus industry, and ranching that was once a common business and land use in the Rancho Cucamonga area. b. Historic, Architectural, and Engineering Significance Fndn.ql: .Fact/s: The construction materials or engineering methods used in the Proposed landmark is unusual, significant, or uniquely effective. The engineering methods such as the open veranda and the decorated verge board consisting of a wooden arch are unusual and uniquely effective in keeping the character of the structure. The fieldstone facing is a unique material and is not usually found in architecture and engineering in the homes of today. F nding 2: The overall effect of the design of the proposed landmark is beautiful, or its details and materials are beautiful or unusual. Fact/s: Fact/s: The open veranda, decorated verge board consisting of a wooden arch, and fieldstone facing reinforce the style commonly found in grove houses of the early 1900s. Site orientation (to the south) adds to the rarity of the proposed landmark. c. Neighborhood and Geographic Setting CITY COUNCIL RESOLUTION NO. LD00 - 02 - KIMBERLY AND JAY POCOCK November 15, 2000 Page 3 Finding 1: The proposed landmark materially benefits the historic character of the neighborhood. Fact/s: The immediate vicinity of Amhibald Avenue and Hillside Road exhibits two other historical resources, the Demens-Tolstoy House and the Toews House. The proposed landmark contributes to the variety of architectural trends throughout the Rancho Cucarnonga area from the early 1900s and historical continuity of the neighborhood. 4. This council hereby finds that the project has been reviewed and considered in compliance with the California Environmental Quality Act of 1970 as landmark designations are exempt under CEQUA, per Article 19, Section 15308. 5. Based upon the findings and conclusions set fort in paragraphs 1,2, 3, and 4 above, this Council hereby resolves that pursuant to Chapter 2.24 of the Raneho Cucamonga Municipal Code, that the City Council of the City of Rancho Cucamonga hereby approves Landmark Designation 00-02 on the 15th day of November 2000. 6. The Mayor of this City Council shall certify to the adoption of this Resolution. RANCHO CUCAMONGA DATE: TO: FROM: BY: SUBJECT: November 15, 2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager William J. O'Neil, City Engineer Jon A. Gillespie, Traffic Engineer CONSIDERATION OF AN ORDINANCE TO ESTABLISH A PRIMA FACIE SPEED LIMIT OF 30 MPH ON SUGAR GUM WAY BETWEEN DAY CREEK BOULEVARD AND VICTORIA WINDROWS LOOP RECOMMENDATION: Approve staffs recommendation to amend Section 10.20.020 of the Municipal Code in order to establish a prima facie speed limit of 30 mph on Sugar Gum Way between Day Creek Boulevard and Victoria Windrows Loop. BACKGROUND ANALYSIS: On October 5, 2000, City staff received a request from a resident to install speed limit signs on Sugar Gum Way between Day Creek Boulevard and Victoria Windrows Loop. City staff investigated, and discovered that Sugar Gum Way does not have a posted speed limit. Sugar Gum Way is 36 feet in width and 800 feet in length, Five (5) homes front onto Sugar Gum Way. According to the California Vehicle Code, a local street must have at least 13 homes to qualify as a Residence District. Therefore, Sugar Gum Way does not qualify for a prima facie speed limit of 25 mph. City staff conducted an Engineering and Traffic Survey, and determined that the 85th percentlie speed on Sugar Gum Way is 30 mph. Therefore, City staff is recommending that a prima facie speed limit of 30 mph be established for Sugar Gum Way. CITY COUNCIL STAFF REPORT RE: Ordinance to Establish a Prima Facie Speed Limit November 15, 2000 Page 2 City staff checked the accident records, and there were no reported accidents on Sugar Gum Way between Day Creek Boulevard and Victoria Windrows Loop during the last 2 years. City staff did not identify any "not readily apparent" conditions that would justify any further reduction in the posted speed limit, Respectfully submitted, City Engineer WJO:JAG:Is Attachment "A" - Vicinity Map Attachment "B" - Engineering and Traffic Survey VICINITY MAP Sugar Gum Day Creek Bivd to Victoria Windrows Loop (south) Figure "A" TRAFFIC AND ENGINEERING SURVEY City of Rancho Cucamonga, Engineering Department Street: SUGAR GUM STREET By: ludv Acosta From: Date: 10/19/00 Area Descrintion Tvoe of Street Distnnce Vertical Alignment Parkin~ Restrictions Street Width No. ofT.anes & Median Frontin~ Develonment Average Daily Traffic Speed Check Date Average Sneed 85% Percentlie Speed 10 Mile Pace Accident Records Time Period Intersection Accidents Midblock Accidents Accident Rate Exnected Accident Rate Calculated Conditions Not Readily Annarent Existlint Sneed Zone Pronosed Sneed Zone Collector 880 feet (. 17 mfJ [ ,evel None 36 feet 1 lane each direction with no saiDin. Residential with side slxeet access extent for 3 homes 1.094 I 0/19/00 EB: 28 nmh WB: 28 rrmh 30nmh 30 nmh 25 - 34 mnh 25 - 34 mnh 1998 & 1999 (2 vears~ 0.25 0.00 1.90 0.18 None Not Posted 30 nmh I, DEBRA J. ADAMS, City Clerk of the City of Rancho Cucamonga, hereby certify that the above Traffic and Engineering Study was approved and adopted by the City Council. Debra J. Adams, City Clerk The Traffic and Engineering Survey prepared under the supervision of: .C~ Date tOAD: SUGAR GUM STREET ::ROM: Day Creek BIvd .OCATION: ~ Crocus VEATHER/ROAD COND.: TO: S. Victoria Windrows Lp foggy I drizzly [ )IRECTION: ~PH 5 h5 10 Eastbound NUMBER OF VEHICLES 15 20 25 30 fin 511 411 15 Tt')TAL NUMR;P t~F 'il:p ICLFS RANCHOCUCAMONGA RADAR SURVEY SHEET DATE: 10119100 BEGIN: 7:30 POSTED SPEED: 31 # DIRECTION: CUM. I % MPH 5 hh Westbound NUMBER OF VEHI 10 15 20 55 511 4(1 50 15 TOTA_ N JI.qBFP i END: 8:45 NP ,ES CUM. 25 30 3~ # % '15 PERCENTILE SPEED i 50 PERCENTILE SPEED I El5 PERCENTILE SPEED 25 10 MPH PACE: 25 - 34 28 # OF VEHICLES IN PACE: 48 30 % OF VEHICLES IN PACE: 96 15 PERCENT|LE SPEED 50 PERCENTILE SPEED 85 PERCENTILE SPEED 25 28 30 10 MPH PACE: 25 - 34 # OF VEHICLES IN PACE: 49 % OF VEHICLES IN PACE: 98 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AMENDING SECTION 10.20.020 OF THE RANCHO CUCAMONGA CITY CODE TO ESTABLISH A PRIMA FACIE SPEED LIMIT OF 30 MPH ON SUGAR GUM WAY BETWEEN DAY CREEK BOULEVARD AND VICTORIA WINDROWS LOOP A. Recitals (i) Califomia Vehicle Code Section 22357 Provides that this City Council may, by ordinance, set prima facie speed limits upon any portion of any street not a state highway. (ii) The City Traffic Engineer has conducted an engineering and traffic survey, of certain streets within the City of Rancho Cucamonga which streets as specified in Part B of this Ordinance. (iii) The determinations concerning prima facie speed limits set forth in Part B, below, are based upon the engineering and traffic survey identified in Section A (ii), above. B. Ordinance NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA DOES HEREBY ORDAIN AS FOLLOWS: Section 1 Section 10.20.020 hereby is amended to the Rancho Cucamonga City Code to read, in words and figures, as follows: 10.20.020 Decrease of state law maximum speed. It is determined by City Council resolution and upon the basis of an engineering and traffic investigation that the speed permitted by state law is greater than is reasonable or safe under the conditions found to exist upon such streets, and it is declared the prima facie speed limit shall be as set forth in this section on those streets or parts of streets designated in this section when signs are erected giving notice hereof: (Ord. 169 Section I (part), 1982; Ord. 39 Section 5.1, (1978). Rancho Cucamonga 5/82 124 Name of Street and Limits Existing Posted Proposed Prima Facie Speed Limit (mph) Speed Limit (mph) 1. Sugar Gum Way - Day Creek Boulevard NP 30 to Victoria Windrows Loop (i) Both sixty-five (65) miles per hour and fifty-five (55) miles per hour are speeds which are more than are reasonable or safe; and SPEED LIMIT ORDiNANCE Page 2 (ii) The miles per hour as stated are the prima facie speeds which are most appropriate to facilitate the orderly movement of traffic and are speed limits which are reasonable and safe on said streets or portions thereof; and (iii) The miles per hour stated are hereby declared to be the prima facie speed limits on said streets; and (iv) The Traffic Engineer is hereby authorized and directed to install appropriate signs upon said streets giving notice of the prima facie speed limit declared herein. Section 2 The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be published as required by law. Section 3 The Mayor shall sign this Ordinance and the City Clerk shall cause the same to be published within fifteen (15) days after its passage at least once in The Inland Daily Bulletin, a newspaper of general circulation published in the City of Ontario, Califomia, and circulated in the City of Rancho Cucamonga. PASSED, APPROVED, and ADOPTED this AYES: NOES: ABSENT: ATTEST: William J. Alexander Debra J. Adams, City Clerk I, DEBRA J. ADAMS, CITY CLERK of the City of Rancho Cucamonga, Califomia, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the Council of the City ofRancho Cucamonga held on the and was passed at a regular meeting of the City Council of the City of Rancho Cucamonga held on the Executed this , at Rancho Cucamonga, California. Debra J. Adams, City Clerk RANCHO CUCAMONGA COMMUNITY' TO: Mayor and Members of the City Council Jack Lam, AICP, City Manager FROM: BY: DATE: SUBJECT: Kevin McArdle, Community Services Director Paula Pachon, Management Analyst Ill November 15, 2000 REQUEST FOR APPROVAL TO APPROPRIATE FUNDS RECEIVED FROM THE CHILDREN AND FAMILIES COMMISSION FOR SAN BERNARDINO COUNTY FOR A GRANT FOR YEAR ONE FUNDING IN THE AMOUNT OF $162,585 TO DEVELOP AND IMPLEMENT A YOUTH ENRICHMENT SERVICES PROGRAM (FISCAL YEAR 2000-200t) RECOMMENDATION: It is recommended that the City Council appropriate funds received from the Children and Families Commission for San Bernardino County for a grant for year one funding in the amount of $162,585 to develop and implement a Youth Enrichment Services (YES) program. BACKGROUND/ANALYSIS: Proposition 10 was passed by California voters in November 1998 and became the Children and Families Act of 1998. It provides for additional taxes on tobacco products that create a revenue stream directed to promoting, supporting and improving the early development of children from the prenatal stage to five years of age. The Children and Families Commission of San Bernardino County was created in December 1998 in order to realize the benefits of the Act for the County's youngest residents and their families. The Commission developed a Strategic Plan for the distribution of their funds in April of 2000. The plan established priorities and an allocation plan for $25-$30 million dollars that the San Bernardino County anticipates receiving from the revenue received through Proposition 10. In May 2000, the Commission released a Request for Proposal for planning and/or operational grants with services that could span one to three years in length. In June 2000, the Community Services Department submitted an application for a Youth Enrichment Services (YES) program for approximately $700,000 to fund a three-year operational grant that would expand existing youth services the City and the Superintendent of Schools Office of San Bernardino County provide through our Playschool Program at the Mulberry Learning Center site which focuses on integration of special needs children into the City's playschool classes. In addition, our grant proposal included numerous new partners to the coalition to create new services and opportunities for the community. Specially, the Rancho Cucamonga Public Library will provide the Families for Literacy Program aimed at increasing literacy and providing needed library services outside the main library. The Risk Watch curTiculum, which is supported by a local Risk Watch Coalition, includes a program of comprehensive training for preschool children and their families. The City's grant will focus on four main service enhancements to our existing Playschool program and will add services at three new locations throughout the three-year grant cycle. Year One will focus on the Mulberry Learning Center, Year Two - Lions East Community Center and Year Three - the proposed Etiwanda Learning Center. Service enhancements include: (1) Playschool Program Enhancements - including increase of the instructo~student ratio in integrated classes; individual assistance for special needs children; the addition of an early childhood safety series; additional equipment and furnishings; and joint staff training and development with the City and the Superintendent of Schools staff. (2) Family Education, Technology, Information and Referral Center- parent/family educational classes; public access technology center; parent/family library; and an information and referral center. (3) Leaming Center Web Site - the establishment of a YES website with links to a variety of family odented parent education sites. (4) Families for Literacy Program - Story times, book mobile visits, adult literacy services all provided by the Rancho Cucamonga Public Library. Staff looks forward to the opportunities this grant provides to endch the lives of our community's youth and their families. Therefore, it is recommended that the City Council appropriate the year one funding of $162,585 received through the award of the Youth Enrichment Program grant through the Children and Families Commission for San Bemardino County. Res ully u ' d, Kevin McArdle R:CvsinMomun~~~Director I:lCOMMSERV~Council&BoardstCityC~unciAStaffReports~2YESgrantl 1.15.00.cloc -2- C ITY OF I~ANCHO CUCAHONGA Staff Report DATE: TO: FROM: SUBJECT: November 15 2000 Mayor and Members of the City Council Jack Lain, AICP, City Manager Duane A. Baker, Assistant to the City Manager CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT RecommendaUon It is recommended that the City approve the attached ordinance and set the matter for second reading at the next City Council meeting. This ordinance is the formal action required to levy the tax in Community Facilities District (CFD) 2000-01 (South Etiwanda). The only voter and property owner in the CFD approved this tax, This ordinance will carry out the action approved by the special election held in CFD 2000-01 on November 7, 2000. Backqround On November 1, 2000, the City Council approved the formation of CFD 2000-01 and authorized the levy of a special tax pursuant to an election of the qualified electors in the CFD. That election was held on November 7, 2000 and was unanimous in approving the levy of the special tax. The special tax will be used to pay the debt service for bonds that will be sold to finance drainage, street, water and sewer improvements within the CFD. Attached to this report is the ordinance along with a copy of the Rate and Method of Apportionment for the special tax. It should be noted that the special tax is consistent with City policy in keeping the overall taxes on any property below 2%. Also, these special taxes were reviewed, approved and subsequently voted on by the property owner. This special tax affects the property within the boundaries of this CFD only (see attached boundary map). The facilities special tax is based on Page 2 November 15 2000 CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT the square footage of the home for residential properties and is based on acreage for non-residential property. The facilities tax rates are listed in Table I below. TABLE Land Use Class Residential Floor Area Assigned Facilities Special Tax 1 2,301 Sq. Ft or greater $500.00 per unit 2 1,801-2,300 Sq. Ft 475.00 per unit 3 1,800 Sq. Ft or less 425.00 per unit 4 Non-Residential Property $3,700.00 per Acre Because this special tax will fund the construction of much needed facilities in this region of the community without an impact to the general fund and other residents or property owners outside of the CFD, your approval is recommended. Respectfully submitted, Duane A. Baker Assistant to the City Manager AMENDED BOUNDARY MAP COMMUNITY FACILITIES DISTRICT NO.2000-01 (ETIWANDA) CITY OF RANCHO CUCAMONGA COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA UPLAN/~ RANCHO II ~ i ~ FONTANA ,~ ~ ~UCAMONGA . .. INTERSTATE10 INDEX MAP _1 LI 1 I -) AMENDED BOUNDARY MAP COMMUNITY FACILITIES DISTRICT NO.2000-01 (ETIWANDA) CITY OF RANCHO CUCAMONGA COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA 'l ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the "Act"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) (the "District"). The City Council of the City of Rancho Cucamonga, California, acting as the legislative body of Community Facilities District No. 2000-01 (South Etiwanda), does hereby ordain as follows: SECTION 1. This City Council does, by the passage of this ordinance, authorize the levy of special taxes pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto (the "Rate and Method") and incorporated herein by this reference. SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special tax to be levied for the then current tax year or future tax years, except that the special tax to be levied shall not exceed the maximum special tax calculated pursuant to the Rate and Method, but the special tax may be levied at a lower rate. SECTION 3. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorera property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorera taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. SECTION 4. The special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the City Council in the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. Introduced at a regular meeting of the City Council of the City of Rancho Cucamonga, California, on ,2000; Enacted at a regular meeting of the City Council of the City of Rancho Cucamonga, California, held on the day of ,2000, by the following vote: AYES: NOES: ABSENT: ATTEST: William J. Alexander, Mayor Debra J. Adams, CMC, City Clerk 2 EXHIBIT A CITY OF RANCHO CUCAMONGA COMMUNITY FACILITIES DISTRICT NO. 2000-01 (SOUTH ETIWANDA) RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX A Special Tax shall be applicable to each Parcel of Taxable Property located within the boundaries of Community Facilities District No. 2000-01 ("CFD"). The amount of Special Tax to be levied each Fiscal Year, commencing in Fiscal Year 2001-2002 on a Parcel shall be determined by the City Council of the City of Rancho Cucamonga, acting in its capacity as the legislative body of the CFD by applying the appropriate Special Tax for "Developed Property" and "Undeveloped Property' as set forth in Sections B, C, and D below. All of the real property within the CFD, unless exempted by law or by the provisions hereof in Section E., shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meanings: "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1 of Division 2 of Title 5 of the California Government Code of the State of California. "Administrative Expenses" means all actual or reasonably estimated costs and expenses of the City to carry out its duties as the administrator of the CFD as allowed by the Act, which shall include without limitation, all costs and expenses arising out of or resulting from the annual levy and collection of the Special Tax, any litigation involving the CFD, continuing disclosure undertakings of the City as imposed by applicable laws and regulations, communication with bondholders and administrative expenses. "Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "Assessor's Parcel Map" means an official map of the Assessor of the County of San Bernardino designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property, as determined in accordance with Section C.1 .a. below. A-1 "Assigned Special Tax Revenue" means the sum of the Assigned Special Tax for all Developed Property projected at buildout of the CFD, as determined in accordance with Section C, Table 1. "Backup Special Tax" means the Special Tax amount set forth in Section C.1 .b. below. "Backup Special Tax Revenue" means the sum of the Backup Special Tax for all Developed Property projected at buildout of the CFD, as determined in accordance with Section C below. "Bonds" means any bonds or other indebtedness (as defined in the Act) issued by the CFD and secured by the levy of Special Taxes. "Bond Share" means the share of Bonds assigned to a Payoff Parcel as specified in Section G below. "CFD" means Community Facilities District No. 2000-01 (South Etiwanda) of the City established pursuant to the Act. "City" means the City of Rancho Cucamonga, California. "Debt Service" means for each calendar year, the total scheduled amount of principal and interest payable on any Outstanding Bonds during the calendar year commencing on January 1 of such Fiscal Year. "Developed Property" means all Parcels of Taxable Property for which a building permit has been issued prior to March 1st preceding the Fiscal Year for which the Special Tax is being levied. "Exempt Property" means any Parcel or portion of a Parcel, which is exempt from Special Taxes pursuant to Section E. below. "Final Map" means the subdivision of property resulting from the recordation of a final map, parcel map, or lot line adjustment, pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or the recordation of a condominium plan pursuant to California Civil Code 1352 that creates individual lots for which building permits may be issued without further subdivision. "Fiscal Year" means the period starting on July 1 and ending on the following June 30. "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. A-2 l?z- "Land Use Category" means any of the categories listed in Table 1. "Maximum Annual Special Tax" means the maximum Special Tax, determined in accordance with Section C, which can be levied in any Fiscal Year on any Parcel of Taxable Property. "Net Taxable Acre" means the acreage of a Parcel of Taxable Property as indicated on the most recent Assessor's Parcel Map, or if the land area is not shown on the Assessor's Parcel Map, the land area shown on the applicable Final Map, or other recorded City parcel map. "Non-Residential Property" means all Parcels of Developed Property for which a building permit was issued for any type of non-residential use. "Outstanding Bonds" means the total principal amount of Bonds that have been issued and not retired or defeased. "Parcel(s)" means a lot or parcel shown on an Assessor's Parcel Map with an assigned parcel number as of January 1 preceding the Fiscal Year for which the Special Tax is being levied. "Parcel's Allocated Share" means the amount calculated in Step 2 of Section G. "Payoff Parcel" means any Parcel of Taxable Property for which a prepayment of the Special Tax Obligation is being calculated pursuant to Section G. "Property Owner's Association Property" means any property within the boundary of the CFD which, as of January 1 of the preceding Fiscal Year for which the Special Tax is being levied, has been conveyed, dedicated to, or irrevocably dedicated to a property owner association, including any master or sub-association. "Public Property" means any Pamel within the boundary of the CFD which, as of January 1 of the preceding Fiscal Year for which the Special Tax is being levied, is used for rights-of-way or any other purpose and is owned by, dedicated to, or irrevocably offered for dedication to the federal government, the State of California, the county, City, or any other local jurisdiction, provided, however, that any property leased by a public agency to a private entity and subject to taxation under Section 53340.1 of the Act shall be taxed and classified according to its use. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Special Tax is the same for all Parcels of Developed Property. For Undeveloped Property, Public Property and/or Property Owners Association Property that is not Exempt Property pursuant to Section E., "Proportionately" means that the ratio of the actual Special Tax levy per acre to the Maximum Special Tax per acre is the same for all such Parcels. A-3 "Reserve Fund" means the total amount held in any bond reserve fund established pursuant to the provisions of the Indenture for the Outstanding Bonds of the CFD. "Reserve Fund Share" is equal to the lesser of the Reserve Requirement or existing monies in the Reserve Fund, if any, for the Outstanding Bonds multiplied by the Parcel's Allocated Share. "Reserve Requirement" shall have the meaning given such term in the Indenture. "Residential Floor Area" means all of the square footage of living area of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio or similar area, on a Parcel. The determination of Residential Floor Area shall be made by reference to the building permit(s) for the Parcel. "Residential Property" means all Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Special Tax(es)" means the special tax to be levied in each Fiscal Year on each Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Obligation" means the total obligation of a Parcel of Taxable Property to pay the Special Tax for the remaining life of the CFD. "Special Tax Requirement" means that amount required in any Fiscal Year by the CFD to pay: (i) Debt Service on all Outstanding Bonds; (ii) periodic costs on the Bonds, including but not limited to, credit enhancement and rebate payments on the Bonds; (iii) Administrative Expenses; and (iv) any amounts required to establish or replenish any Reserve Fund to the Reserve Requirement for the Outstanding Bonds; less (v) a credit for funds available to reduce the annual Special Tax levy as determined pursuant to the Indenture. "Taxable Property" means all Parcels in the CFD, which are not exempt from the Special Tax pursuant to law or Section E below. "Undeveloped Property" means all Parcels of Taxable Property not classified as Developed Property, Public Property and/or Property Owner's Association Property that are not Exempt Property pursuant to the provisions of Section E. A-4 B. ASSIGNMENT TO LAND USE CATEGORY Each Fiscal Year, commencing with the 2001-2002 Fiscal Year, all Pamels of Taxable Property within the CFD shall be classified as either Developed Property, Undeveloped Property, Public Property and/or Property Owner's Association Property that are not Exempt Property pursuant to the provisions in Section E., and shall be subject to the levy of Special Taxes in accordance with this Rate and Method of Apportionment as determined pursuant to Sections C., D., and E. below. Parcels of Developed Property shall further be classified as Residential Property or Non-Residential Property. A Parcel of Residential Property shall further be classified to its appropriate Land Use Category based on the Residential Floor Area of such Parcel. C. MAXIMUM SPECIAL TAX RATE 1. Developed Property The Maximum Special Tax for each Parcel classified as Developed Property shall be the greater of (i) the applicable Assigned Special Tax set forth in Table 1 below or (ii) the amount derived by application of the Backup Special Tax. a. Assiqned Special Tax The Assigned Special Tax for each Pamel of Developed Property is shown in Table 1 below. TABLE I Assigned Special Taxes for Developed Property Community Facilities District No. 2000-01 Land Use Category 1 - Residential Property 2 - Residential Property 3 - Residential Property 4 o Non - Residential Property Taxabl e Unit Residential Floor Area D/U 2,301 sq. ft. or greater D/U 1,801 sq. ft. to 2,300 sq. ft. D/U 1,800 sq. ft. or less Acre N/A Assigned Special Tax Per Taxable Unit $500 $475 $425 $3,700 A-5 b. Backup Special Tax When a Final Map is recorded the Backup Special Tax for the Pamels of Taxable Property within such Final Map area shall be determined by multiplying $3,700 by the total Net Taxable Acreage in such Final Map and dividing such amount by the number of Parcels of Taxable Property (i.e., the number of residential lots) within such Final Map. If a Final Map within the CFD includes Pamels of Taxable Property for which building permits for both residential and non-residential construction may be issued, then the Backup Special Tax for each Pamel of Residential Property within the CFD shall be computed by the Administrator exclusive of the allocable portion of total Net Taxable Acreage attributable to Pamels of Taxable Property for which building permits for non- residential construction may be issued. 2. Undeveloped Property The Maximum Special Tax for each Parcel of Undeveloped Property shall be $3,700 per Net Taxable Acre. 3. Public Property and/or Property Owners Association Property that is not Exempt Property pursuant to the provisions of Section E. The Maximum Special Tax for each Parcel of Public Property and/or Property Owners Association Property that is not Exempt Property pursuant to the provisions of Section E., shall be $3,700 per Net Taxable Acre. D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2001-2002 and for each following Fiscal Year, the City Council shall determine the Special Tax Requirement and shall levy the Special Tax on all Taxable Property in the CFD until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Parcel of Developed Property at up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement; Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Parcel of Undeveloped Property at up to 100% of the Maximum Special Tax for Undeveloped Property; A-6 Third: If additional moneys are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Parcel of Developed Property whose Maximum Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Special Tax for each such Parcel; Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, the Special Tax shall be levied Proportionately on each Parcel of Public Property and/or Property Owner's Association Property that is not Exempt Property pursuant to the provisions of Section E. at up to 100% of the Maximum Special Tax. Notwithstanding the above, under no circumstances will the Special Taxes levied against any Parcel of Residential Property be increased by more than ten percent (10%) per Fiscal year as a consequence of delinquency or default by the owner of any other Parcel of Taxable Property within the CFD. E. EXEMPTIONS The City Council shall not levy Special Taxes on up to 26.04 Net Taxable Acres of Public Property and Property Owner's Association Property within the CFD. Exempt Property status will be assigned by the Administrator in the chronological order in which property becomes Public Property and Property Owner's Association Property. After the limit of 26.04 Net Taxable Acres within the CFD has been reached, the Maximum Special Tax obligation for any additional Public Property and/or Property Owner's Association Property within the CFD shall be subject to the levy of the Special Tax as provided for in the fourth step in Section D. F. MANNER OF COLLECTION The Special Tax shall be collected in the same manner and at the same time as ordinary Ad valorem property taxes and shall be subject to the same penalties, the same procedure, sale and lien priority in the case of delinquency; provided, however, that the City may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose as permitted by the Act on Parcels of Taxable Property for which the payment of Special Taxes are delinquent. G. PREPAYMENT OF SPECIAL TAX Property owners may prepay and permanently satisfy the Special Tax Obligation on Developed Property ("Special Tax Prepayment") by a cash settlement with the City A-7 /77 as permitted under Government Code Section 53344. Prepayment is permitted only under the following conditions: The City determines that the prepayment of the Special Tax Obligation does not jeopardize its ability to make timely payments of Debt Service on Outstanding Bonds. No Special Tax Prepayment shall be allowed unless the Maximum Special Tax that may be levied on all Taxable Property other than the Parcel for which the Special Tax Obligation is being prepaid is at least 110% of the maximum annual Debt Service on the Outstanding Bonds. Any property owner prepaying the Special Tax Obligation must pay any and all delinquent Special Taxes and penalties for the Payoff Parcel prior to prepayment. The amount of the Special Tax Prepayment shall be established by the following steps: Step 1: Determine the Assigned Special Tax and the Backup Special Tax for the Payoff Parcel based on the assignment of the Maximum Special Tax described in Section C above. Step 2: Divide the Assigned Special Tax for the Payoff Parcel from Step I by the Assigned Special Tax Revenue. Divide the Backup Special Tax for the Payoff Parcel by the Backup Special Tax Revenue. The greater amount calculated in this step shall be the Payoff Parcel's Allocated Share. Step 3: Determine the Bond Share for the Payoff Parcel by multiplying the Parcel's Allocated Share from Step 2 by the total amount of Outstanding Bonds issued by the CFD. Step 4: Determine the Reserve Fund Share associated with the Bond Share determined in Step 3. The Reserve Fund Share is equal to the lesser of the Reserve Requirement or existing monies in the Reserve Fund, if any, for the Outstanding Bonds multiplied by the Parcel's Allocated Share. Step 5: Calculate the amount needed to pay interest on Bond Share from the first Bond interest and/or principal payment date established pursuant to the Indenture following the current Fiscal Year until the earliest redemption date for the Bonds on which Bonds may be redeemed from the proceeds of a Special Tax Prepayment. Subtract from this amount, the amount of interest that is reasonably expected to be earned A-8 Step 6: from the reinvestment of the Special Tax Prepayment less money kept by the City to cover costs from the date of the prepayment until the first redemption date for the Bonds. Determine the total Special Tax Prepayment amount by subtracting the Reserve Fund Share calculated in Step 4 from the Bond Share calculated in Step 3, adding the interest amount calculated in Step 5 and by adding all fees, call premiums, and expenses incurred by the City in connection with the prepayment calculation or with the application of the proceeds of the Special Tax Prepayment. H. TERM OFTHE SPECIALTAX For each year that any Bonds are outstanding the Special Tax shall be levied on all Parcels subject to the Special Tax. If any delinquent Special Taxes remain uncollected prior to o~ after all Bonds are retired, the Special Tax may be levied to the extent necessary to reimburse the CFD for uncollected Special Taxes associated with the levy of such Special Taxes, but not later than the 2031-32 Fiscal Year. A-9 THE CITY OF I~ANCHO CUCAMONGA StaffR DATE: TO: FROM: SUBJECT: November 15,2000 Mayor and Members of the City Council Jack Lam, AICP, City Manager Duane A. Baker, Assistant to the City Manager CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT Recommendaeon It is recommended that the City approve the attached ordinance and set the matter for second reading at the next City Council meeting. This ordinance is the formal action required to levy the tax in Community Facilities District (CFD) 2000-02 (Rancho Cucamonga Corporate Park). The only voter and property owner in the CFD approved this tax. This ordinance will carry out the action approved by the special election held in CFD 2000-02 on November 7, 2000. Backqround On November 1, 2000, the City Council approved the formation of CFD 2000-02 and authorized the levy of a special tax pursuant to an election of the qualified electors in the CFD. That election was held on November 7, 2000 and was unanimous in approving the levy of the special tax. The special tax will be used to pay the debt service for bonds that will be sold to finance drainage, street, landscaping, water and sewer improvements within the CFD. Attached to this report is the ordinance along with a copy of the Rate and Method of Apportionment for the special tax. It should be noted that the special tax is consistent with City policy in keeping the overall taxes on any property below 2%. Also, these special taxes were reviewed, approved and subsequently voted on by the property owner. This special tax affects the property within the boundaries of Page 2 November 15 2000 CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL ACTING AS THE LEGISLATIVE BODY FOR COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT this CFD only (see attached boundary map). The facilities special tax is based on the acreage of the property. The facilities tax rate will be $3,896 per taxable acre. Because this special tax will fund the construction of much needed facilities in this region of the community without an impact to the general fund and other residents or property owners outside of the CFD, your approval is recommended. Respectfully submitted, Duane A. Baker Assistant to the City Manager PROPOSED BOUNDARIES COMMUNITY FACILITIES DISTRICT NO.2000-02 (RANCHO CUCAMONGA CORPORATE PARK) CITY OF RANCHO CUCAMONGA COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA oF UPLAN~vj~ ~ mIll ~ R~,NCHO CUCAMONGA FONTANA --PR~E~ LOCATION INTERSTATE 10 INDEX MAP PROPOSED BOUNDARIES COMMUNITY FACILITIES DISTRICT NO.2000-02 (RANCHO CUCAMONGA CORPORATE PARK) CITY OF RANCHO CUCAMONGA COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA FOOTHILL BLVD. (STATE HIGHWAY) t.U ROUTE PROPOSED COMMUNITY FACIUT1E8 DISI~RICT NO. 2000~2 (RANCHO CUCAMOGA CORPORATP PARK) BOUNDARY SO,/d, EINFtSET LEGAL DESCRIPTION THE FRACTIONAL NORTH ~/EST QUARTER OF SECTION 7`' Tn%,/NSHIP 1 SOUTH, RANGE 6 ~/EST, SAN 9ERNARDIN0 HER[DIAN, IN THE CITY OF RANCHO CUCAHONGA, COUNTY OF SAN ]JERNARDINO., STATE OF CALIFORNIA., ACCORDING TO OFFICIAL PLAT THEREOF. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF RANCHO CUCAMONGA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the "Act"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 2000-02 (RANCHO CUCAMONGA CORPORATE PARK) (the "District"). The City Council of the City of Rancho Cucamonga, California, acting as the legislative body of Community Facilities District No. 2000-02 (Rancho Cucamonga Corporate Park), does hereby ordain as follows: SECTION 1. This City Council does, by the passage of this ordinance, authorize the levy of special taxes pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto (the "Rate and Method") and incorporated herein by this reference. SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special tax to be levied for the then current tax year or future tax years, except that the special tax to be levied shall not exceed the maximum special tax calculated pursuant to the Rate and Method, but the special tax may be levied at a lower rate. SECTION 3. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. SECTION 4. The special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the City Council in the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. Introduced at a regular meeting of the City Council of the City of Rancho Cucamonga, California, on ,2000; Enacted at a regular meeting of the City Council of the City of Rancho Cucamonga, California, held on the day of ,2000, by the following vote: AYES: NOES: ABSENT: ATTEST: William J. Alexander, Mayor Debra J. Adams, CMC, City Clerk 2 EXHIBIT A CITY OF RANCHO CUCAMONGA COMMUNITY FACILITIES DISTRICT NO. 2000-02 (Rancho Cucamonga Corporate Park) RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX A Special Tax applicable to each assessor's parcel or portion thereof in the CFD shall be levied and collected according to the tax liability determined by the Council, through the application of the rate and method of apportionment of the Special Tax set forth below. All of the property in the CFD, unless exempted by law or by the provisions of this Rate and Method of Apportionment of Special Tax, shall be taxed to the extent and in the manner herein provided. I. DEFINITIONS "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part I of Division 2 of Title 5 of the Government Code of the State of California. "Acre or Acreage" means the land area of a Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable final map, parcel map, condominium plan, or other map or plan recorded with the County. "Administrative Fees or Expenses" means the actual or estimated costs incurred by the City as administrator of the CFD to determine, levy and collect the Special Taxes, including salaries of City employees and the fees of consultants, legal counsel, corporate paying agents, fiscal agents, and trustees; the costs of collecting installments of the Special Taxes upon the general tax rolls; cost of arbitrage calculation and arbitrage rebates, preparation of required reports; and any other costs required to administer the CFD as determined by the City. "Administrative Services Director" means the Administrative Services Director of the City or his or her designee. "Assessor" means the Assessor of the County. "Bond Share" means the share of Bonds assigned to a Taxable Parcel as specified in Section VI. A-1 City of Rancho Cucamonga "Bonds" mean any bonds issued by the CFD or other debt as defined in Section 53317 (d) of the Act incurred by the CFD. "CFD" means the City of Rancho Cucamonga Community Facilities District No. 2000-02 (Rancho Cucamonga Corporate Park). "City" means the City of Rancho Cucamonga, California. "Council" means the City Council of the City of Rancho Cucamonga acting as the legislative body of the CFD under the Act. "County" means the County of San Bernardino, California. "Debt Service" means for each Fiscal Year, the total scheduled amount of principal and interest payable on any Outstanding Bonds during the calendar year commencing on January I of such Fiscal Year. "Fiscal Year" means the period starting on July I and ending the following June 30. "Indenture" means the bond indenture, fiscal agent agreement, indenture of trust, trust agreement, resolution of issuance of other instrument pursuant to which the Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Maximum Annual Special Tax" means the greatest amount of Special Tax, determined in accordance with Section III, that may be levied in any Fiscal Year on any Parcel. "Maximum Special Tax Revenue" means the sum of the Maximum Annual Special Tax for all of the Taxable Parcels in the CFD. "Outstanding Bonds" means the total principal amount of Bonds that have been issued and not retired or defeased. "Parcel" means any County assessor's parcel that is within the boundaries of the CFD, based on the equalized tax rolls of the County as of January I in the prior Fiscal Year. "Parcel's Allocated Share" means the Maximum Annual Special Tax for a Parcel divided by the Maximum Annual Special Tax Revenue. "Payoff Parcel" means any Taxable Parcel for which a prepayment of the Special Tax Obligation is being calculated pursuant to Section VI. "Reserve Fund" means any reserve fund established pursuant to the provisions of the Indenture for the Outstanding Bonds of the CFD. A-2 City of Rancho Cucamonga "Reserve Fund Share" is equal to the lesser of the Reserve Requirement or existing monies in the Reserve Fund, if any, for the Outstanding Bonds multiplied by the Parcers Allocated Share. "Reserve Requirement" shall have the meaning given such term in the Indenture. "Special Tax" means any special tax levied within CFD pursuant to the Act and this Rate and Method of Apportionment of Special Tax. "Special Tax Obligation" means the total obligation of a Taxable Parcel to pay the Special Tax for the remaining life of the CFD. "Special Tax Requirement" means for any Fiscal Year, the total of (i) Debt Service for such Fiscal Year; (ii) related Administrative Expenses for such Fiscal Year; (iii) any amounts needed to replenish the Reserve Fund to the Reserve Requirement and (iv) the amount, if any, equal to reasonably anticipated Special Tax delinquencies for the current Fiscal Year [subject to the limitations of Government Code Section 53321 (d)], less a credit for funds available to reduce the annual Special Tax levy as determined pursuant to the Indenture. "Taxable Acreage" or "Taxable Acre" is the area within each Taxable Parcel that is suitable for commercial or other improvements when considering existing easements for streets. The minimum Taxable Acreage in this CFD is 137.38 acres. If the total Acreage of all Taxable Parcels falls below the minimum Taxable Acreage of 137.38 acres, the Taxable Acreage for each Taxable Parcel shall be increased proportionally based on the Acreage of such Taxable Parcel until the minimum Taxable Acreage is reached. "Taxable Parcel" means any Parcel that is not a Tax-Exempt Parcel. "Tax-Exempt Parcel" means, as of January 1st of each year, (i) any Parcel owned by a governmental entity, or irrevocably offered for dedication to a governmental entity, (ii) any Parcel which constitutes public right-of-way or which is encumbered by an unmanned utility easement, making impractical its utilization for other than the purpose set forth in the easement, or (iii) any Parcel assigned a zero value by the Assessor. Notwithstanding the foregoing, (i) a Taxable Parcel acquired by a public entity after formation of the CFD by means of negotiated transaction, or by gift or devise, or by eminent domain proceedings, shall remain a Taxable Parcel, and (ii) if a public agency owning a Tax-Exempt Parcel, including a Tax-Exempt Parcel held in trust for any beneficiary, grants a leasehold or other possessory interest in the parcel to a non-exempt person or entity, the Special Tax shall be levied on the leasehold or possessory interest and shall be payable by the owner of the leasehold or possessory interest. A-3 City of Rancho Cucamonga II. III. IV. Vm VI. CLASSIFICATION OF PARCELS At the beginning of each Fiscal Year, using the definitions above, the Council shall cause each Parcel to be classified as a Tax-Exempt Parcel or a Taxable Parcel. MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax is $3,896 per Taxable Acre. On each July 1, commencing on July 1, 2002, the Maximum Annual Special Tax shall be increased by two percent (2%) of the amount in effect for the previous Fiscal Year. APPORTIONMENT OF SPECIAL TAX Commencing with the first Fiscal Year for which the Special Tax is levied and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and levy the Special Tax until the amount of Special Taxes levied equals the Special Tax Requirement. The Special Taxes shall be levied each Fiscal Year as follows: (1) The Special Tax shall be levied on each Taxable Parcel in an amount equal to 100% of the applicable Maximum Annual Special Tax; or (2) If less monies are needed to satisfy the Special Tax Requirement, the Special Tax shall be levied proportionally on each Taxable Parcel at less than 100% of the Maximum Annual Special Tax. MANNER OF COLLECTION Collection of the Special Tax shall be by the County in the same manner as ordinary ad valorem property taxes are collected and the Special Tax shall be subject to the same penalties and the same lien priority in the case of delinquency as ad valorem taxes; provided, however, that the City may provide by Resolution for (i) other means of collecting the Special Tax, including direct billings thereof to the property owners and (ii) judicial foreclosure of delinquent Special Taxes. SATISFACTION OF SPECIALTAX OBLIGATION Property owners may prepay and permanently satisfy the Special Tax Obligation ("Special Tax Prepayment") by a cash settlement with the CFD as permitted under Government Code Section 53344. Prepayment is permitted only under the following conditions: The CFD determines that the prepayment of the Special Tax Obligation does not jeopardize its ability to make timely payments of Debt Service on A-4 City of Rancho Cucamonga /~ the Outstanding Bonds. No Special Tax prepayment shall be allowed unless the Maximum Annual Special Tax that may be levied on all Taxable Parcels other than the Payoff Parcel is at least 110% of the maximum annual Debt Service on the Outstanding Bonds. Any property owner prepaying the Special Tax Obligation must pay any and all delinquent Special Taxes and penalties for the Payoff Parcel prior to prepayment. The amount of the Special Tax Prepayment shall be established by the following steps: Step 1: Determine the Maximum Annual Special Tax for the Payoff Parcel based on the assignment of the Maximum Annual Special Tax described in Section III above. Step 2: Divide the Maximum Annual Special Tax for the Payoff Parcel from Step 1 by the Maximum Special Tax Revenue to arrive at the Parcel's Allocated Share. Step 3: Determine the Bond Share for the Payoff Parcel by multiplying the Parcel's Allocated Share from Step 2 by the total amount of Outstanding Bonds issued by the CFD. Step 4: Determine the Reserve Fund Share associated with the Bond Share determined in Step 3. Step 5: Calculate the amount needed to pay interest on the Bond Share from the first Bond interest and/or principal payment date established pursuant to the Indenture following the current Fiscal Year until the earliest redemption date for the Bonds on which Bonds may be redeemed from the proceeds of a Special Tax Prepayment. Subtract from this amount, the amount of interest that is reasonably expected to be earned from the reinvestment of the Special Tax Prepayment less money kept by the CFD to cover costs from the date of the prepayment until the first redemption date for the Bonds. Step 6: Determine the Special Tax Prepayment by subtracting the Reserve Fund Share calculated in Step 4 from the Bond Share calculated in Step 3, adding the interest amount calculated in Step A.5 and by adding Debt Service not yet paid for the current calendar year to the date of Bond redemption and all fees, call premiums, and expenses incurred by the City in connection with the prepayment A-5 City of Rancho Cucamonga VII. calculation or with the application of the proceeds of the Special Tax Prepayment. TERM OF "SPECIAL TAX" The Special Tax shall be collected only so long as required to make payments on the Bonds, but in no event shall it be levied after Fiscal Year 2035-2036. A-6 City of Rancho Cucamonga lql RAN CHO CUCAM ONGA COMMUNITY ~ERVICE~ Staff Report TO: Mayor and Members of the City Council Jack Lam, AICP, City Manager FROM: Rick Gomez, Community Development Director Kevin McArdle, Community Services Director BY: Karen McGuire-Emery, Senior Park Planner Paula Pachon, Management Analyst Ill DATE: November 15, 2000 SUBJECT: PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE BACKGROUND In accordance with the City Council's request to become more informed of park and recreation facility issues, programs, projects and events, this report is provided to highlight pertinent issues, projects and programs occurring in both the Community Services Department and the Park Design/Development and Maintenance Sections of Engineering. A. Parks and Facilities Update Golden Oak Park: · The park improvements were accepted by City Council on November 1st and a dedication celebration is scheduled for November 19, 2000. La Mission Park: · Lewis Homes is currently grading the park site. Construction of the park improvements will soon follow barring inclement weather. Epicenter: · Ladner Coatings will be painting both locker rooms. · The "Annual Von's Softball Tournament" for the west coast region took place at the Stadium during the weekend of November 3rd -- 5th· CITY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE NOVEMBER 15, 2000 B. Community Services Update Seniors: A very special Veteran's Day Tribute was offered at the Senior Center on Thursday, November 9t", at 10:00 a.m. This event, co-sponsored by the Elks Club, honored those brave men and women who have served in our country's armed forces. The event included special entertainment from the local high schools, including an ROTC Color Guard and Jazz band. The Crafty Seniors Craft Show will be held at the Senior Center on Thursday, November 16t~, from 9:00 a.m. to 11:30 a.m. This annual event is a special opportunity to purchase beautiful and creative crafts made by our own seniors. Their creations make wonderful holiday gifts at affordable prices. The Senior Advisory Committee will meet on Monday, November 27, 2000, at 9:00 a.m. at the Senior Center. The Committee will address the item of advocacy for a new Senior Center. Representatives from Sunrise Assisted Living will also discuss their new facility development in Rancho Cucamonga. We are currently in the process of recruiting for vacant positions on the committee. The Senior Center will host a free festive Holiday Party on Wednesday, December 20% Elaborate decorations, refreshments and special holiday entertainment featuring the fabulous Carrs performing a spectacular Broadway Review will highlight the program. A New Year's Bash will be presented by the Senior Center on Wednesday, December 27u~ at the Senior Center. This celebration will offer festive decorations, plenty of refreshments and end with a sensational Vaudeville Show with the popular Adene and Berks Baker. We will have balloons, hats, music and noisemakers to go with the cheer. Tole Painting Workshop - Joann Witter will offer a special one-day free Santa's Tole Painting workshop for seniors at the Senior Center in December (date yet to be determined). This 5- hour program, thereed for the holiday season, is to prepare those last minute homemade gifts. We are looking forward to seeing Joann and the rest of her class with all their beautiful creations. Trips and Tours: · Lights and Sounds of Christmas - December 13th. We will visit Old Town Pasadena to browse and have dinner on your own. As dark approaches, we will move up to the hill to view the Hastings Ranch area with all its many blocks of Christmas lights and ornaments. Next we'll visit Balin's Mansion, where just about every leaf has a light on it. Then we'll finish up with a drive down Christmas Tree Lane. Don't miss this special holiday trip. · Rose Parade - January 1, 2001. Enjoy the world famous Rose Parade from the grandstand seats along Colorado Blvd. Price includes bus, grandstand seating and a box lunch. Cost is $75 per person. -2- CITY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE NOVEMBER 15, 2000 Getty Center - February 15, 2001. Visit this world famous museum and gardens featuring spectacular architecture and view of the historic Sepulveda Pass. At the museum you'll see paintings by many of the most familiar masters - Rembrandt, Goya, Monet, and Cezanne, to name a few. A very special day to remember. Human Services: · EIder Law Attorney Gregory Wood offers free private counseling to seniors on the second Friday of each month from 12:00 - 2:00 p.m. A Flu Clinic was held on Tuesday, November 7, 2000, from 9:00 a.m. to 11:00 a.m. at the Senior Center. The San Bernardino County Department of Public Health provided flu shots for seniors and those at high risk. Commodities Distribution is offered on the first Monday of the month from 1:30 until 3:30 p.m. or until the food items run out. Participants must be residents of Rancho Cucamonga and meet income requirements. November's distribution date was on the 6th and Decembers will be on the 4th. · Health Nurse Screening, provided by the San Bernardino County Department of Public Health offers free health screenings on the second Tuesday of the month from 9:00 a.m. to 12:00 p.m. · Notary Service will be offered at the Senior Center on the 4th Thursday of the month from 10:30 until 11:30 a.m. The cost is $6.00. · Prevention Plus will be offering affordable precise and painless ultrasound testing for stroke, vascular disease and osteoporosis, on December 1't, from 9:00 a.m. until 4:00 p.m. Agewise Lecture on what people over 50 need to know about HIV and AIDS, to be held December 7th, at 1:00 p.m. The lecture will be sponsored by the San Bernardino County Agewise Program. HiCAP, Health Insurance Counseling and Advocacy Program provides assistance with Medicare and senior health insurance at no cost. Counseling is offered on the 1st and 3rd Thursday of the month. · The Doctor is In series featuring Dr. Harvey Cohen will present a free lecture on Stress and Your Body on December 20th, at 7:00 p.m. Better Breathers, sponsored by the American Lung Association, provides a support group for those suffering from respiratory problems. This group meets on the 4th Wednesday of the month at 1:00 p.m. -3- CITY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE NOVEMBER 15, 2000 Volunteer Services: · The table below summarizes department usage of volunteers for the month of September as well as year to date information: MONTH: September 2000 YEARTO DATE # of # of Volunteers # of Hours $ Value Volunteers # of Hours $ Value Ad min 5 10 $140 52 178 $2,492 Sports 77 305 $4,270 1,164 7,861 $110,054 Senior & Human Services 44 161 $2,254 432 1,767 $24,738 Special 7 14 $196 189 865 $12, 110 Events Youth 18 108 $1,512 288 2,454 $34,356 Programs 151 598 $8,372 2,125 13,125 $183,750 * Dollar value based on $14.00 per hour. Teens: The Teen Center' is reporting record fall attendance with more than 30 attending Mondays through Thursdays and 80 - 100 on Fridays. The October Halloween Dance attracted over 150 teens. The Center is gearing up for the busy winter break and a Magic Mountain trip in December. The Teen Recreation Activity Club's (TRAC) twice-monthly babysitting service Night on the Town roaches maximum enrollment on most nights. Up to 40 children are involved in activities supervised by staff and teen volunteers. TRAC will have two snack bars at Founders Day Celebration and will provide volunteers to carry the banner at the front of the parade, The College Fair was held on October 19th at the Rancho Cucamonga Family Sports Center. Up to 60 colleges and 2,500 teens and their parents participated. This program is a collaborative effort between the City and our three local high schools. · The Community Services and Police Department as well as the community group ,~.C. CASA co-sponsored a special Red Ribbon Week presentation on October 23 to -4- CITY COUNCIL PARKS, RECREATION FACiLITiES AND COMMUNITY SERVICES UPDATE NOVEMBB~ 15, 2000 commemorate Red Ribbon Week. The Legacy of Hope program this year was held at Alta Loma High School and was well received. With continued funding, staff anticipates that the program will travel to a different high school each year. The Teen Workshop Series presented Education Funding 101 on Saturday November 4t". The workshop covered grants, student loans, scholarships and other sources of college funding. A Skate Park Demonstration and Safety Clinic was held on Saturday, October 21st at the Spruce Park Skate Facility. This quarterly program featured equipment give-a-ways and a program provided by professional skaters that included a safety clinic and skills demonstration. Youth Activities: Playschool is gearing up to offer their popular Letter Learners and Ready Readers classes. Our new Proposition 10 grant (see additional information noted below) will mean additional aides, scholarship funds and equipment for the program. · The annual Pumpkin Carving Workshop was held on October 27th at Red Hill Community Park. Fifty (50) youngsters and their parents attended. Staff is in the process of planning the popular Breakfast with Santa program, to be held on Saturday, December 9th at the Senior Center. This program attracts 300 youngsters and their parents for breakfast, crafts, entertainment and a visit with Santa. Breakfast is generously donated and prepared by the Rancho Grande Kiwanis Club. Staff is working on the exciting new Mobile Recreation Program. The customized 18-foot trailer has been ordered and should be delivered by the first of the year. Staff is also working on an initial implementation plan to include visits to schools and parks. Once the Library Bookmobile is ready for service, the Mobile Recreation Program will join the Library in bringing exciting new programs to the community. Grants: Kids Plate Grant - staff is working to implement the elements of the Kids Plate Grant. $6,000 was awarded to the City for skate demonstrations, educational materials and safety equipment. In addition, staff attended the California Injury Control Conference in Sacramento to attend educational sessions and gather important safety related materials On October 30th, the City was awarded a Proposition 10 Grant from the Children and Families Commission of San Bernardino County to fund the new Youth Enrichment Services (YES) Program. The contract is due to be ratified by the City Council on November 15th. The first year grant award is for $162,000. Upon successful completion of the first year, two more contract extensions would be awarded (totaling approximately $650,000 over the three years). The YES program will fund a variety of programs and services aimed at fostering family wellness. -5- CITY COUNCIL PARKS, J~ECREATION FACILITIES AND COMMUNITY SERVICES UPDATE NOVEMBER 15, 2000 Youth Sports: · The table below summarizes youth sports activities for the reporting period: 33 12 ~lg · The Sports Advisory Commi~ee met on November 8th at the Civic Center. At this meeting staff presented the 200'1 spring/summer field alloeation proposal that covers the time frame of February '1,200'1 through duly 3'1, 2001. R.C. Family Sports Center: · Activities at the Sports Center for the reporting period are summarized in the table below: Basketball Full 80 AdultJMales 8 Teams Court-Leagues Three-on-Three 40 Adult/Males 8 Teams Basketball Leagues Racquetball 8 Adult/Males Singles Singles League Youth Volleyball 60 8-13/Girls 6 Teams Organized Play 64 6-12/Boys & Girls N/A Classes · The table below provides drop-in/open play participation at the R.C. Family Sports Center for the reporting period: Adult Basketball 512 Youth Basketball 500 Adult Racquetball 430 Youth Racquetball 15 Adult Volleyball 70 Youth Volleyball 275 Jazzercise 811 Adult Sports: · The table below summarizes adult sports activities for the reporting period: Adult S0ftball I 2,272 J Adult/Male &Female J 142 teams -6- CiTY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE NOVEMBER 15, 2000 ~" Activity Adult Flag Football Adult Tennis .,..~ ~'jjJjjJjJjjjJJJ~.'.e..ams/Leagues/Classes Rancho Cucamonga Performing Arts Workshops: The City's performing art classes are still going strong. Each 5-week session gives our residents a way of expanding on their talents that enriches their lives. Vocal Expression and Performance has been a continued success with both new and returning students. At the end of each session students put on a performance for over 75 friends and family. Television Commercial Workshop has given many students the opportunity to learn and expand the skills they need to break into show business. Attendance has been increasing for all of our classes and workshops and interest continues to grow with each new session. The performing art classes are being offered at the Lions Community Center West until a permanent site is found. Parks and Facilities: Having park monitors on duty has added a new level of customer service for our park users, Our monitors are focused on making our parks the safest and cleanest parks in the region. The park monitors are on duty Monday through Friday from 5:00 until 9:00 p.m. and on Saturdays and Sundays from 7:00 a.m. until dusk. · Park reservations for the month of October 2000 are listed below: Red Hill 2,989 41 Resident 46 221.50 $1,978.00 5 Non Resident Heritage 775 17 Resident 18 76.50 $ 621.00 1 Non Resident Hermosa 365 10 Resident 11 47.50 $ 238.50 I Non Resident Coyote Canyo 340 7 Resident 9 31.00 $ 189.00 2 Non Resident Civic Courtyar, 30 1Resident 1 1.00 $ 10.00 0 Non Resident Amphitheater 367 3 Resident 4 13.00 $1,060.00 I Non Resident Total 4,866 79 Resident 89 390.50 $4,096.50 10 Non Resident Heritage Equestrian Center: · Equestrian Center usage for the month of November 2000 is outlined in the table on the following page: -7- CITY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNITY SERVICES UPDATE NOVEMBER 15, 2000 Group IAIta Loma Riding Club 4-H Club 4-H Club Date IT :::'~:T ":"~":~':!2'~ 'T? EVent/Time Frame .................... :!, - ..,.,,.: ~...,~._,..:;~:; ..... November 1st Board Meeting / 7:~opm- 9 p~ ....... November 20th Community Wide Special Events: · Boyz II Men Concert - The Boyz II Men Concert produced and promoted by DGU Productions was held at the Epicenter on Sunday, October 8, 2000. O-Town, the newly formed group from the made for TV's show "Making of the Band", opened the concert and featured our very own Trevor former Community Services Department scorekeeper and former Mr. Trash at the Quakes baseball games. Boyz II Men performed a variety of wonderful new and old songs. Nearly 4,300 fans enjoyed the pedormances. Both groups had audience members up on their feet singing and dancing in the aisles. · The BUY. COM Inland Empire Open Golf Tournament took place October 9th-15th at the Empire Lakes Golf Course. This tournament was the final stop on the BUY.COM Tour, making it the last opportunity for golfers on the tour to qualify for the tour championships and possible PGA tour status. As a sponsor of the event, the City of Rancho Cucamonga had a very visible role in the event. The City hosted a skybox on the 18th green for dignitaries to watch the event; staffed a booth in the Expo Village promoting both the Community Foundation and the Library Foundation; hosted the media tent for reporters covering the event; and participated in several golf-related activities during the week. Rancho Cucamonga Community Foundation Founder's Night Gala - An Evening of Elegance - The Community Foundation hosted their first major event, the Founders Night Gala "An Evening of Elegance" on Saturday, November 4, 2000, from 6:00 p.m. until 12:00 a.m. This exciting event left nearly 220 individuals attending in awe. The 20,000 square foot storefront located in the Terra Vista Town Center was generously donated by Lewis Retail Centers and was magically turned into a New York City Premier. Everyone, including celebrity guests Tracy Scoggins, Raye "Zap" Hollitt, Garrett Morris and Dick Van Patton, were given the red carpet treatment. A small ensemble of entertainers from Citrus College played background music during the reception, hors d'oeuvres were served and guest were able to bid on a wide variety of silent auction items. The items from the auction brought in a net profit of $10,300 for the Foundation. A trumpet fanfare lead guests into the ballroom 7:00 p.m. Five Star Catering served a scrumptious dinner and the entertainment continued with the fabulous sounds of the Citrus College Jazz Ensemble. An incredible light show, a colorful New York City backdrop, the Statue of Liberty, old-fashioned street lights, a beautiful fountain, newspaper vendors, statues, park benches, and gorgeous centerpieces created an atmosphere that was comparable to the Academy Awards. Humphries Photography and Charter Communication captured the most memorable event of the year on film and video. The estimated $30,000 raised from this dazzling event will be used for future performing arts programs. -8- CIIY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNIIY SERVICES UPDATE NOVEMBER 15, 2000 Founder's Day Parade and Celebration - The Annual Founder's Day Parade and Celebration took place on Saturday, November 11, 2000. This year the theme for the parade was American Heroes. The parade began at 9:30 a.m. and included a variety of floats, bands, novelty acts and equestrian units. Bugs Bunny and Daffy Duck, everyone's favorite heroes, were among some of the special guests leading off the festivities. The Celebration was held at Red Hill Community Park from 10:00 a.m. until 3:00 p.m. The festivities at the park started off with a Pancake Breakfast hosted by the Rancho Grande Kiwanis Club. The main stage featured the popular classic rock group Head First, D.J. and Karaoke King Jesse Castillo, family games and parade awards. The Community Stage was held near the Imagination Station and featured local dance groups, martial art students and a variety of professional puppeteers, magicians, jugglers, interactive musical shows and other entertainment for kids of all ages. The Imagination Station provided free hands on crafts for youngsters who like to express themselves creatively. Huge Inflatable bounces, gladiator jousting, tug o' war, giant slides and monster trike racing were among the many activities in the Fun Zone. A $5.00 ticket to the Fun Zone provided community members an afternoon of unlimited good times. The Chamber of Commerce hosted their annual Business Expo and several City booths provided information throughout the day. It is estimated that nearly 5,000 people artended this fun filled community event. Golden Oak Park Grand Opening - The City of Rancho Cucamonga will be opening another neighborhood park at Golden Oak Park on Sunday, November 19, 2000 from 1:00 p.m. until 4:00 p.m. The event will include a Ribbon Cutting Ceremony at 1:30 p.m. and a variety of bounces, free food, games and activities for families who live in the area. Golden Oak Park is a development of Griffin Industries and LANTEX. Second Annual Holiday Craft Fair and Tree Lightina Extravaganza - The Tree Lighting Extravaganza will be held on Thursday, December 7th in the Terra Vista Food Court from 5:30 p.m. until 7:00 p.m. The entertainment will featur6 a variety of local choirs, bands, strolling musicians, carolers and Santa. Everyone will be invited to the Craft Fair from 7:00 p.m. until 9:00 p.m. for refreshments and photo opportunities with Santa. The Craft Fair will be open on Friday, December 8th and Saturday, December 9tn from 10:00 a.m. until 9:00 p.m. Shoppers can join us for a Taste of the Town featuring foods from some of the City's most popular restaurants on Friday from 6:00 until 8:00 p.m. A Kids Kraft Kornerwill give parents an opportunity to look at all the creative merchandise while their child enjoys a holiday movie and their very own crafts. Pictures with Santa will be available on Friday from 6:00 until 9:00 p.m. and Saturday from 11:00 a.m. until 2:00 p.m. Local entertainers will be showcasing their talents throughout the 3-day event. Everyone is invited to join the festivities and bring in the holiday season. Park and Recreation Commission: · The following items were discussed/acted upon at the Commission's October 19th meeting: Update and establishment of future agenda items for the Senior Advisory Committee. Update and establishment of future agenda items for the Sports Advisory Committee. Updates on Victoria Arbors. -9- CITY COUNCIL PARKS, RECREATION FACILITIES AND COMMUNIIY SERVICES UPDATE NOVEMBER 15, 2000 ~. Update on participation of the Commission in the Founder's Day Parade. ~ Discussion regarding impacts to parks due to Route 30 construction. ~ Discussion regarding the 2000 National Parks end Recreation Congress. >. General Plan update. > Community Foundation update. ~ Trails, Sports and Senior Advisory Committees updates. Rancho Cucamonga Community Foundation: · The following items were discussed/acted upon at the Foundation's October 17th meeting: >. Authorization for disbursement of funds in the amount of $1,000 from the Off-Leash Dog Park fund as requested by Paul Hood, Co-President of R.C. SPOT. > Sub-committee update reports and discussion regarding the Founder's Night Gala - An Evening of Elegance. Rancho Cucamonga Epicenter: · Staff is working with representatives of the following organizations for future bookings at the Epicenter: ~j, tJ~.~h,~l~';~i~,~: :".'~'~.!!~::'.!~.":,'.'~E~'~ FD~.:':~':"':'~!Zi~ Facilities HS.I. Productions Inc. Bank of America November 28-30, Stadium California Association of School Transportation Officials Etiwanda High School Rancho Cucamonga High School Inland Empire Colts Commercial Filming School Bus Roadeo Graduation Graduation Semi- Professional Football 2000 March 23-23, 2001 Expanded Parking Lot June 2001 Stadium June 2001 Stadium Fall 2001 Stadium Community Development Director i:lCOMMSERV~Council&eoardslOityCounciltStaffRePortslUPdateNovember15'OO'doc Community Services Director -10- ,I \ / GENERAL PLAN DATI / I C VALUE ENGINEERING PAYS N. ?'e,y,, % \ .i t ./ I J \ _'=j_T_Ij_.O_~,J, Sj.D)__ __ sTA. 14+41 ...... ~'.~ '?"'~'"~' ,_. ,o,- ,,,,*,,.,-- - -'T~.,,,o... · . , ....,.:% . ~ "' "~' "':" "~':~:' ~ .u c~YoN ~ .: '"; -'::~'Lh.?':,. · · . ,' i,~,,~J,~ %, .me~lk EMBANKMENT PROFIL~ -~s"r.l'"mt:]5.7(p:i' - · j ICAL,",~ _'~.t . Le 4p~ e_[K>enc ~ BASIN SECTION AND 14LSCF'LLANEOI.I8 OLrTAlr~ '('egXl. Eln r ,NC~ ~ il~ SAFETY PAYS ~(;ALIJ'ffi s'Jii H ~t:n. ~ &P" -Jr210 I ,,