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HomeMy WebLinkAbout1997/08/20 - Minutes August 20, 1997 CITY OF RANCHO CUCAMONGA CITY COUNCIL MINUTES Regular Meeting A. CALL TO ORDER A meeting of the Rancho Cucamonga City Council was held on Wednesday, August 20, 1997, in the Council Chambers of the Civic Center, located at 10500 Civic Center Drive, Rancho Cucamonga, California. The meeting was called to order at 7:13 p.m. by Mayor William J. Alexander. Present were Councilmembers: Paul Biane, James Curatalo, Rex Gutierrez, Diane Williams and Mayor William J. Alexander. Also present were: Jack Lam, City Manager; James Markman, City Attorney; Jerry B. Fulwood, Deputy City Manager; Rick Gomez, Community Development Director; Brad Buller, City Planner; Larry Henderson, Principal Planner; Tom Grahn, Associate Planner; Joe O'Neil, City Engineer; Dan James, Sr. Civil Engineer; Bill Makshanoff, Building Official; Richard Alcorn, Code Enforcement Supervisor; Jim Frost, City Treasurer; Susan Stark, Finance Officer; Deborah Clark, Library Manager; Diane O'Neal, Management Analyst II; Chief Dennis Michael, Rancho Cucamonga Fire Protection District; Ralph Crane, Battalion Chief/Fire Marshal; Sunni Hamilton, Administrative Secretary; Linda McMillen, Office Specialist I; Captain Rodney Hoops, Police Department; and Debra J. Adams, City Clerk. B. ANNOUNCEMENTSPRESENTATIONS B1. Presentation of a Proclamation commending Pomona First Federal Savings Bank for its support of National Night Out. Mayor Alexander presented the Proclamation to Jody Krieger. B2. Presentation of U.S. Department of Housing & Urban Development Awards to the City for Affordable Housing and Neighborhood Revitalization. Larry Henderson, Principal Planner, made the presentation to the City Council. Councilmember Biane thanked everyone involved with this program and recognized the amount of work that goes in to something like this. Jack Lam, City Manager, stated there was an addendum to the agenda under Council Business, which would be item 5. City Council Minutes August 20, 1997 Page 2 C. COMMUNICATIONS FROM THE PUBLIC No communications were made from the public. At this time Mayor Alexander brought up that there had been a request to continue item G1. MOTION: Moved by Williams, seconded by Biane to move item G1 to be considered at this time. Motion carried unanimously, 5-0. Mayor Alexander inquired if there was anyone who would have a hardship in coming back on September 3. Councilmember Williams suggested because of the holiday it might be difficult for some folks and suggested it come back on September 17. Councilmember Gutierrez suggested it come back on September 17. Bill Angel stated he knew that Melissa McKeith on behalf of CURE, who is opposed to the project, was requesting the continuance. James Markman, City Attorney, stated he had spoken with the attorney for the applicant who advised him he would not reject a continuance. He added the Council should also digest the amount of materials they have been presented with regarding this matter. Mayor Alexander asked if there was anyone who would be inconvenienced if this matter was continued to September 3. Tom Bradford stated Melissa McKeith is presently over at this office preparing material for this hearing. He stated she is now willing to go forward if this is acceptable to the Council. Councilmember Gutierrez stated it is unfair to the Council to expect them to read all of the last minute material they have received on this subject. He stated he is ready to go forward with it tonight. Andrew Hartzell, Hewitt & McGuire - Counsel for proponent, Lauren Development, stated they had been informed of the request for continuance. He stated they are concerned about continuing this until the September 17 meeting. He stated they are ready to move forward tonight or at the September 3 meeting. Leona Klipstein, Conservation Director of Spirit of the Sage Counsel and also on the Board of Directors for CURE, stated she was just with Ms. McKeith and that they would like to move forward with this matter tonight, but could wait until the September 3 meeting. MOTION: Moved by Biane to continue the matter to September 17. There was no second - motion failed. MOTION: Moved by Gutierrez, seconded by Williams to go back to the regular order of the agenda. Motion carried unanimously, 5-0. City Council Minutes August 20, 1997 Page 3 D. CONSENT CALENDAR D1. Approval of Minutes: July 8, 1997 D2. Approval of Warrants, Register Nos. 7/23/97, 7/30/97, and 8/6/97 and Payroll ending 7/10/97 for the total amount of $2,544,675.00. D3. Approval to receive and file current Investment Schedule as of July 31, 1997. D4. Alcoholic Beverage Application for Off-Sale Beer and Wine for Foothill Market Fresh Meat & Deli, Jamili Fawzia, 8161 VV. Foothill Blvd. D5. Alcoholic Beverage Application for On-Sale Beer and Wine for Felipe's Parrilia, Ala V. & Felipe De La Piedra, 7344 Carnelian St. D6. Alcoholic Beverage Application for Off-Sale General for Castle Liquor, Alberre Abdo, 8655 19th St. ITEM REMOVED FOR DISCUSSION BY COUNCILMEMBER GUTIERREZ. D7. Approval to authorize the advertising of the "Notice Inviting Bids" for the Amethyst Avenue Pavement Rehabilitation, from Base Line Road to 19th Street, to be funded from Engineering Prop 111 Funds, Account No. 10-4637-9605. RESOLUTION 97-107 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING PLANS AND SPECIFICATIONS FOR THE AMETHYST AVENUE PAVEMENT REHABILITATION, FROM BASE LINE ROAD TO 19TH STREET, IMPROVEMENT PROJECT IN SAID CITY AND AUTHORIZING AND DIRECTING THE CITY CLERKTO ADVERTISE TO RECEIVE BIDS D8. Approval to declare surplus miscellaneous city-owned equipment. D9. Approval to transfer two 1986 Chevrolet Celebrity vehicles to the San Bernardino County Sheriffs Phelan Substation Citizen's Patrol. D10. Approval to adopt Annual Statement of Investment Policy. Dll. Approval of Agreement (CO 97-040) with Mr. High Entertainment for Concert Entertainment and Production Services. ITEM REMOVED FOR DISCUSSION BY COUNCILMEMBER WILLIAMS, D12. Approval of an application to designate the Nesbit -McCorkle House (built in approximately 1924) a Histodc Landmark, located at 7608 Hellman Avenue - APN: 208-073-43. Related file: Mills Act Agreement 97-01. RESOLUTION NO. 97-108 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING LANDMARK DESIGNATION 97-01, DESIGNATING THE NESBIT-MCCORKLE HOUSE (BUILT IN APPROXIMATELY 1924) A HISTORIC LANDMARK, LOCATED AT 7608 HELLMAN AVENUE AND MAKING FINDINGS IN SUPPORT THEREOF -APN: 208-073-43 City Council Minutes August 20, 1997 Page 4 Approval of a request to implement the use of the Mills Act to reduce property tax (CO 97-041) on the Nesbit-McCorkle House (built in approximately 1924) a Historic Landmark, located at 7608 Hellman Avenue - APN: 208-073-43. Related file: Landmark Designation 97-01. D13. Approval of Improvement Agreement and Improvement Security for Minor Development Review 97- 11, located at 12550 Arrow Route, submitted by Air Liquide. RESOLUTION NO. 97-109 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING IMPROVEMENT AGREEMENT AND IMPROVEMENT SECURITY FOR MINOR DEVELOPMENT REVIEW 97-11 D14. Approval of an Agreement (CO 97-042) to annex property to Community Facilities District No. 85-1 between the City of Rancho Cucamonga, Rancho Cucamonga Fire District, Cornerpointe 257 LLC and Comerpointe 85 LLC. D15. Approval to award contract (CO 97-043) to Pageantry Productions for services for the 1997 Founder's Day Parade in the amount of $7,558.11. D16, Approval to accept Improvement Agreement Extension for Tract 13717, located north of Church Street, between Spruce and Elm Avenues, submitted by Lewis Development, a California General Partnership. RESOLUTION NO. 97-110 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING IMPROVEMENT AGREEMENT EXTENSION FOR TRACT 13717 D17. Approval to accept improvements, release the Faithful Performance Bond, and file a Notice of Completion for DR 89-09, located on Pullman Court, south of Arrow Route and east of Utica. Release: Faithful Performance Bond $29,810.00 RESOLUTION NO. 97-111 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR DR 89-09, LOCATED ON PULLMAN COURT, SOUTH OF ARROW ROUTE AND EAST OF UTICA, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D18. Approval to accept improvements, release the Faithful Performance Bond, accept a Maintenance Bond, and file a Notice of Completion for DR 95-30, located on the east side of Beryl, south of Hillside Road. Release: Faithful Performance Bond Accept: Maintenance Bond $72,110.00 $ 7,211.00 City Council Minutes August 20, 1997 Page 5 RESOLUTION NO. 97-112 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR DR 95-30, LOCATED ON THE EAST SIDE OF BERYL, SOUTH OF HILLSIDE ROAD, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D19. Approval to accept improvements, release the Faithful Performance Bond, and file a Notice of Completion for Parcel Map 14647, bounded on the south by Fourth Street, on the east by Milliken Avenue, on the north by the A.T. & S.F. (Metrolink) Railroad and on the west by Cleveland and Utica Avenues. Release: Faithful Performance Bond $1,145,900.00 RESOLUTION NO. 97-113 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR PARCEL MAP 14647, BOUNDED ON THE SOUTH BY FOURTH STREET, ON THE EAST BY MILLIKEN AVENUE, ON THE NORTH BY THE A.T. & S.F. (METROLINK) RAILROAD AND ON THE WEST BY CLEVELAND AND UTICA AVENUES, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D20. Approval to accept improvements, release the Faithful Performance Bond, and file a Notice of Completion for DR 94-30, located on the southeast corner of Base Line Road and Carnelian Street. Release: Faithful Performance Bond $29,351.00 RESOLUTION NO. 97-114 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR DR 94-30, LOCATED ON THE SOUTHEAST CORNER OF BASE LINE ROAD AND CARNELIAN STREET, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D21. Approval to accept improvements, release the Faithful Performance Bond, and file a Notice of Completion for Tract Map 14407, located on the southwest corner of Base Line Road and Mountain View Drive. Release: Faithful Performance Bond $205,000.00 RESOLUTION NO. 97-115 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR TRACT MAP 14407, LOCATED ON THE SOUTHWEST CORNER OF BASE LINE ROAD AND MOUNTAIN VIEW DRIVE, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D22. Approval of release of Maintenance Guarantee Bond in the amount of $26,200.00 for Tract 14365, located on the south side of Mountain View Drive, west of Milliken Avenue. City Council Minutes August 20, 1997 Page 6 D23. Approval of release of Maintenance Guarantee Bond in the amount of $16,500.00 for Tract 13303, located on the southwest corner of Mountain View Drive and Terra Vista Parkway. D24. Approval to accept improvements, release the Faithful Performance Bond, and file a Notice of Completion for Tract Map 14786, located on the east side of Elm Avenue, north of Church Street. Release: Faithful Performance Bond $88,800.00 RESOLUTION NO. 97-116 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR TRACT MAP 14786, LOCATED ON THE EAST SIDE OF ELM AVENUE, NORTH OF CHURCH STREET, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D25. Approval to accept improvements, release the Faithful Performance Bond, accept a Maintenance Bond, and file Notice of Completion for CUP 95-39, located on the south side of Arrow Route, east of I-15. Release: Faithful Performance Bond (Street) $123,245.00 Accept: Maintenance Guarantee Bond (Street)$ 12,324.50 RESOLUTION NO. 97-117 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR CUP 95- 39, LOCATED ON THE SOUTH SIDE OF ARROW ROUTE, EAST OF THE 1-15, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK D26. Approval to release the Maintenance Guarantee Bond No. 969990S in the amount of $48,200.00, for Tract 13273, located on the southeast corner of Mountain View Drive and Milliken Avenue. Release: Maintenance Guarantee Bond #969990S $48,200.00 D27. Approval to accept improvements, release the Faithful Performance Bond, accept a Maintenance Bond, and file a Notice of Completion for Tract 13566-3, located south of Twenty-Fourth Street, west of Cherry Avenue. Release: Faithful Performance Bond Accept: Maintenance Bond $166,146.00 $ 16,615.50 RESOLUTION NO. 97-118 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ACCEPTING THE IMPROVEMENTS FOR TRACT 13566-3, LOCATED SOUTH OF TWENTY-FOURTH STREET, WEST OF CHERRY AVENUE, AND AUTHORIZING THE FILING OF A NOTICE OF COMPLETION FOR THE WORK MOTION: Moved by Williams, seconded by Curatalo to approve the Consent Calendar with the exception of items 6 and 11. Motion carried unanimously, 5-0. City Council Minutes August20,1997 Page 7 DISCUSSION OF ITEM D6: Alcoholic Beverage Application for Off-Sale General for Castle Liquor, Alberre Abdo, 8655 19th St. Councilmember Gutierrez brought up businesses that have liquor licenses near residential areas. He wondered how many were in this same area. Brad Buller, City Planner, stated the City does not have a policy regulating the number of liquor license uses in the City. He stated the City does hear from ABC on the liquor license applications that are within the City. Councilmember Gutierrez wondered if the City is able to find out how many places of business have alcoholic beverage licenses for a certain area. Brad Buller, City Planner, stated this information could be obtained. Mayor Alexander asked if the staff has any concerns with this. Brad Buller, City Planner, stated no and that they are not aware of any evidence that there is a problem with the sale of alcoholic beverages for this vicinity. MOTION: Moved by Gutierrez, seconded by Curatalo to approve item 6. Motion carried unanimously, 5-0. DISCUSSION OF ITEM DI'I: Approval of Agreement (CO 97-040) with Mr. High Entertainment for Concert Entertainment and Production Services. Councilmember Williams stated she has not seen all of the numbers for this and that since the agreement is not in their agenda packets, she would like this to come back at the next meeting for consideration. Suzanne Ota, Community Services Manager, stated she did not see a problem to continue this matter to September 3. MOTION: Moved by Williams, seconded by Curatalo to continue the item to September 3, 1997. Motion carried unanimously, 5-0.. E. CONSENT ORDINANCES El. CONSIDERATION OF AN ORDINANCE AMENDING THE RANCHO CUCAMONGA MUNICIPAL CODE PERTAINING TO UTILITY USER'S FEES Debra J. Adams, City Clerk, read the title of Ordinance No. 558-A. ORDINANCE NO.558-A (second reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, AMENDING CHAPTER 3.48 OF THE RANCHO CUCAMONGA MUNICIPAL CODE PERTAINING TO UTILITY USER'S FEES City Council Minutes August 20, 1997 Page 8 MOTION: Moved by Biane, seconded by Williams to waive full reading and approve Ordinance No. 558-A. Motion carded unanimously, 4-0-1 (Curatalo absent). F. ADVERTISED PUBLIC HEARINGS Fl. CONSIDERATION OF AN ORDINANCE AMENDING THE RANCHO CUCAMONGA MUNICIPAL CODE BY REPLACING PART IV OF CHAPTER 1.08 PROVIDING FOR CITY'S ADOPTION, BY REFERENCE. OF COUNTY OF SAN BERNARDINO ORDINANCE NO. 3586. RELATING TO REFUSE ABATEMENT. INCLUDING CERTAIN AMENDMENTS, DELETIONS AND MODIFICATIONS THERETO. AND SE'I-rlNG FORTH PENALTIES Staff report presented by Richard Alcorn, Code Enforcement Supervisor, who stated the City is operating under the old County Ordinance, and that the new Ordinance has revisions that the City is presently following. Mayor Alexander opened the meeting for public hearing. Addressing the City Council was: Leona Klipstein, Spirit of the Sage, stated she does not support this because of what is being abated may be natural habitat and should not be done. There being no further response, the public hearing was closed. Councilmember Gutierrez clarified that this is vacant land or undeveloped parcels that this applies to. Richard Alcorn, Code Enforcement Supervisor, confirmed it does pertain to undeveloped and vacant property. Councilmember Gutierrez stated this is for an area that might create a fire hazard. Councilmember Williams felt the County should be notified through a letter asking them to consider areas that have natural habitat before clearing vacant or undeveloped land. Councilmember Curatalo felt the County should be asked to clarify what they mean by parcels and open range. ORDINANCE NO. 20-A (first reading) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, ADOPTING BY REFERENCE COUNTY OF SAN BERNARDINO ORDINANCE NO. 3586, RELATING TO REFUSE ABATEMENT AND WEED ABATEMENT, INCLUDING CERTAIN AMENDMENTS, DELETIONS AND MODIFICATIONS THERETO, AND SETTING FORTH PENALTIES MOTION: Moved by Williams, seconded by Biane to waive full reading and set second reading of ordinance No. 20-A for the September 3, 1997 meeting. Motion carried unanimously 5-0. City Council Minutes August 20, 1997 Page 9 G. PUBLIC HEARINGS G1. CONSIDERATION OF AN APPEAL FOR DEVELOPMENT REVIEW 97-11 - LAUREN DEVELOPMENT - An appeal of a Planning Commission decision to approve a review of the detailed site plan & building elevations for 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: 1074-351-10 and 1074-541-21. RESOLUTION NO. 97-119 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, DENYING APPEALS OF A PLANNING COMMISSION DECISION APPROVING DEVELOPMENT REVIEW 97-11 FOR TRACT 1.4771, A 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: 1074-351-10 AND 1074-541-21 PLEASE REFER TO THE TRANSCRIPT ON FILE IN THE CITY CLERK'S OFFICE AND ALSO ATrACHED TO THE APPROVED SET OF MINUTES, FOR DISCUSSION OF THIS ITEM. ITEM 12 WAS HEARD AT THIS TIME, BUT THE MINUTES WILL REMAIN IN AGENDA ORDER. No Items Submitted. H. CITY MANAGER'S STAFF REPORTS I1. CONSIDERATION REFERRALS I. COUNCIL BUSINESS OF AN ORDINANCE REFERENCING NARCOTIC OFFENDER EVICTION Items I1 was continued to the next meeting due to the late hour. 12. CONSIDERATION TO APPROVE 5-YEAR ACCORD EXTENSION FOR THE PINES MOBILE HOME PARK MOTION: Moved by Williams, seconded by Biane to approve item 12. Motion carried unanimously, 5-0 13. CONSIDERATION OF CITY COUNCIL LIBRARY BOARD SUBCOMMITTEE'S RECOMMENDATIONS FOR THE BOARD Items 13 was continued to the next meeting due to the late hour. City Council Minutes August 20, 1997 Page 10 14. PARK AND RECREATION FACILITIES UPDATE PARKS & FACILITIES UPDATE 1) Lions East 2) Lions West 3) RC Family Sports Center 4) Rancho Cucamonga Senior Center 5) Spruce Avenue Skate Park 6) Cornerpointe Development TT 15727/Future Neighborhood Park Site 7) Annual Soccer Field Renovations 8) East Beryl Park and Lions Park Tennis Courts 9) Spruce Park 10) Milliken Park 11) Civic Center COMMUNITY SERVICES UPDATE 1) Vietnam Memorial 2) I Love RC 3) Senior Transportation 4) 1997 Founders Day Parade and Celebration Item 14 was continued to the next meeting due to the late hour. 15. ADDENDUM - DISCUSSION OF CAMPAIGN LIMITATIONS RELATING TO PROPOSITION 208 Item 15 was continued to the next meeting due to the late hour. J, IDENTIFICATION OF ITEMS FOR NEXT MEETING No items were identified for the next meeting. K, COMMUNICATIONS FROM THE PUBLIC No communications were made from the public. City Council Minutes August20,1997 Page 11 L. ADJOURNMENT MOTION: Moved by Gutierrez, seconded by Biane to adjourn. Motion carried unanimously, 5-0. The meeting adjourned at 2:00 a.m. The executive session was canceled. Respectfully submitted, e b r~ s~, ~'M~-~-~'~'~-- City Clerk Approved: October 1, 1997 BEFORE THE CITY COUNCIL OF RANCHO CUCAMONGA In the Matter of: Art Appeal for Development Review 97-11 for LAUREN DEVELOPMENT. TRANSCRIPT OF PROCEEDINGS Rancho Cucamonga, California Wednesday, August 20, 1997 ORIGINAL Reported by: CONNIE MARDON Hearing Reporter JOB No. 480240 i I'1t 1'11 C. rtified Co.rt Reporters 2100 N. Broadway, Suite 205 Santa Ana, CA 92706 714.558.9400 800.729.6263 Los Angeles 213.487.9939 San Bernardino 909.888.1645 San Diego 619.238.3500 Oxnard 800.729.6263 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 BEFORE THE CITY COUNCIL OF RANCHO CUCAMONGA In the Matter of: ) ) An Appeal for Development ) Review 97-11 for ) LAUREN DEVELOPMENT. ) ) TRANSCRIPT OF PROCEEDINGS taken on behalf of the City of Rancho Cucamonga, City Hall, 10500 Civic Center Drive, Rancho Cucamonga, California, beginning at 7:20 p.m. and ending at 1:50 a.m. on Wednesday, August 20, 1997, before CONNIE MARDON, Hearing Reporter. 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 APPEARANCES: WILLIAM J. ALEXANDER, Mayor DIANE WILLIAMS, Mayor Pro-Tem PAUL BIANE, Councilmember JAMES V. CURATALO, Councilmember REX GUTIERREZ, Councilmember For The City of Rancho Cucamonga: RICHARDS, WATSON & GERSHON BY: JAMES L. MARKMAN Attorney at Law Number One Civic Center Circle Brea, California 92822-1059 (714) 990-0901 Also Present: JACK LAM, City Manager DEBRA J. ADAMS, City Clerk 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 Rancho Cucamonga, California, Wednesday, August 20, 1997 7:20 p.m. - 1:50 a.m. MAYOR ALEXANDER: Before we move on, I would like to discuss Item 97-11. There's been a request for a continuance. we're going to do. I want to find out exactly what We have had a request by a representative of the residents in that area for at least one meeting to continue on that particular item. I don't want to continue to go through the agenda if, in fact, we do wind up continuing. The request, as I say, came from the folks that were interested in primary opposition to the development. And in order to honor that and not to take a lot of time, Mr. Markman, is it appropriate to be able to find out exactly where the council stands? MR. MARKMAN: Yes. I think it's also courteous to all the people here that if you're going to continue this, there are people here on all sides of this issue, as well as the fact that I want to point out to the council that the lady on my left is a court reporter who's here to transcribe this matter, assuming it goes forward, transcribing this part. It's a lot of expenditure involved in 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 waiting on this. And if the council is inclined to continue, it would probably be appropriate to consider that now so we could move the item up to now. MAYOR PRO-TEM WILLIAMS: Do you need council to do that? MAYOR ALEXANDER: We do. MAYOR PRO-TEM WILLIAMS: Then I would move -- COUNCILMEMBER BIANE: I'll second. MAYOR ALEXANDER: Thank you. Everybody in favor of moving this item, please make your vote. CITY CLERK ADAMS: Unanimously five to zero. MAYOR ALEXANDER: Is there anyone here this evening that would have a great hardship in coming back at the first meeting in September? MR. MARKMAN: Which is September 3rd. MAYOR PRO-TEM WILLIAMS: I'm going to have a hardship only because of the holiday. Maybe I'm wrong. COUNCILMEMBER GUTIERREZ: If we were to set another date -- which I'm not convinced that that's what we are going to do tonight -- if we were, it would need to be the second meeting in September. would be kind of soon for me. I might be gone that week also. That's a holiday week. MAYOR PRO-TEM WILLIAMS: It It's a holiday week, 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 and that's the first day of school. That's a pretty intense day for some folks. If you're going to continue it, I would say the second week. You ask the audience. MAYOR ALEXANDER: If there is anyone in the audience either in favor of or against this, please come forward. MR. ANGEL: Bill Angel. I happen to know who requested the continuance. It was Malissa McKieth, on behalf of the CURE Organization, that's opposed to the project. She's not here right now. MAYOR ALEXANDER: I think that's part of the reason why. MR. MARKMAN: In all due deference, Mr. Mayor, maybe a little guidance. We could have a two-hour hearing to continue this. This is at the council's prerogative. There is an outstanding written request to continue this matter before you. There's no written opposition to that. I, personally, was contacted by the attorney for the applicant who did not -- he's here, and he -- correct me if I'm wrong, but he indicated that he would not resist a continuance. He didn't say whether it would be for one or two meetings. one continuance might be in order. He said 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 Furthermore, the council should consider whether you've had time to digest the mountains of material, due to the fact -- I talked to the Mayor about the request for a continuance in front of him, and perhaps he didn't spend all of the hours he would have liked to spend digesting this. It's a question of the council responding to that written request for a continuance. Sure you could take input on that, if you want to have a hearing on the continuance, but you're certainly not required. MAYOR ALEXANDER: I understand. It's appropriate. We don't need to belabor it, but is there anyone here that's going to be, on either side, if we continue it -- and we may be short a quorum on the 3rd. I don't know that. MR. BRADFORD: My name is Tom Bradford. I'm a workers' compensation attorney. I have an office here within the city, probably in close walking distance. Malissa McKieth is over there. With all the preparation that had been made, she's willing to go forward and, in fact, would prefer to go forward today, if that would be acceptable to the council. COUNCILMEMBER GUTIERREZ: Is she on her way? MR. BRADFORD: No. 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 C0UNCILMEMBER CURATALO: She's the one that made the request for the continuance. MR. MARKMAN: She's over somewhere preparing written material to present this evening to council, which hasn't been distributed yet. MAYOR ALEXANDER: Right. difficult. COUNCILMEMBER GUTIERREZ: I would like to say one thing: That makes it rather With all due respect, The material that we get, whether it's from staff or whether it's from attorneys or whoever it is on either side, the material that we get in front of us, sitting up here, when we walk in this room five minutes before the meeting that we're supposed to also digest, is inappropriate, as well. So I'm a little bit confused because I got letters from the attorneys and from Mr. Cristiano and others complaining that this was going to be continued and that they thought it was unjust and unfair and blah, blah, blah. So I did as much work on this as I could to be ready tonight. I realize it's a very complex issue, probably too much to digest in one night. But I was prepared to go forward with it. And I'm disappointed that we may not. So you know how I feel on this 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 issue. MAYOR ALEXANDER: Okay. MR. HARTZELL: Mr. Chairman, I'm with Hewitt & McGuire, Counsel for Lauren Development, the proponents on the Development. Just to clarify for the councilmembers, we had an opinion and provided a copy of the letter sent in by Ms. McKieth requesting a continuance. We suspected -- she was indicating it was going to be extremely hard for her to be down here. We thought it was possible that the council would continue. It's obviously the council's prerogative. We were concerned about a continuance that would go into the second hearing in September. That's quite a bit a ways. We will be prepared to go forward tonight if the council would like to pursue the item tonight. If the council would very much prefer that it be September 3rd, and not a whole month away -- I just wanted to clarify the position. We are amenable to taking council's direction. We will present our side of things tonight if that's what the council would like. If they do extend, we request an extension be only to June 3rd (Sic.) 9 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 MAYOR ALEXANDER: Very good. MS. KLIPPSTEIN: Good evening. My name is Leeona Klippstein. And I'm the conservation director for Spirit of the Sage Council. I'm also on the board of directors for CURE. And I was with Malissa McKieth before coming here this evening. And it's our understanding that we would like to go forward and present the information tonight. However, because it is difficult to digest all of the information, perhaps -- we suggest taking the information tonight and making the decision at the September 3rd meeting, if we have it on September 3rd. We also -- for the Shoshone Gabriellino Nation, we have legal representation tonight that came here to tonight to speak on their behalf. And I'm sure that they would like to go forward, too, and at least give their perspective and their concern. MAYOR ALEXANDER: I brought this up primarily out of a request for a continuance; now it seems like there is a reversal and a desire to continue. It sure would be nice if those things could be indicated. Okay. Thank you. Anyone else? 10 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 All right. It's up to you up here. COUNCILMEMBER GUTIERREZ: I don't see what's wrong with listening to main argument; that way we can at least be prepared to or be closer to a decision at the second meeting of September when that comes around so we don't have to spend four or five hours that night, as well, taking information. So that's just my preference. But it's up to you all. COUNCILMEMBER BIANE: I disagree with you. I apologize for that, but at the same time I don't want to do this twice. COUNCILMEMBER GUTIERREZ: That's what I just said. We could take testimony. MR. MARKMAN: Could I ask the council, if anyone else speaks tonight on this matter -- I don't want to quell anybody's emotional delivery -- but if two people .speak at once, the court reporter cannot record it. And also gestures are not recorded for those who want to make those. COUNCILMEMBER CURATALO: Bill, I'm prepared to go either way. MAYOR ALEXANDER: If we do not have a motion to go ahead a~d continue it, we'll be hearing it tonight. If we are going to hear it tonight, I'm prepared to 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 make a decision tonight rather than carry this, bounce it around from time to time. I feel more comfortable in allowing -- if there's more information and documentation coming in, I think it is unfair to expect anyone to absorb and digest new information if it comes in, particularly in this form. But if it's going to be testimony and the council wants to go forward, then we'll finish it tonight. MR. MARKMAN: Is there a motion to continue this hearing, which is Item G1 at 7:00 p.m. in this room on September 17th, 19977 MAYOR ALEXANDER: Yes, there is. COUNCILMEMBER BIANE: I would like to make that motion as stated by the city attorney for a continuance to September 17th. COUNCILMEMBER CURATALO: I'll go either way. MAYOR ALEXANDER: motion? MAYOR PRO-TEM WILLIAMS: Is there a second to the I'm really confused. When I get a letter from someone asking for a continuance and then I'm told by the third party that that person really didn't want it in the first place, and if that's how the whole evening is going to 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 go, it's even more confusing. And I would like to read things separate, away. I'm perfectly willing to make a decision tonight. And I'm willing to continue it. But I guess I needed to hear from -- it's hard, like I said, with a third party. It's very difficult to, you know, for someone to come up and say she didn't mean that. And I'm just confused because I just got that tonight. That's the kind of thing that I think is causing so much confusion, because here waiting for me tonight was a letter. This is the first I've seen of this letter. And it is signed by Ms. McKieth asking for a continuance. So I just see -- I come in and it's in an envelope waiting for me tonight. COUNCILMEMBER GUTIERREZ: With all due respect, Diane, what's the date? MAYOR PRO-TEM WILLIAMS: The date it was received by the City Planning Commission was August 11th. I have just seen it tonight. COUNCILMEMBER GUTIERREZ: I don't know why we would be given this tonight. That's nine days ago. MAYOR PRO-TEM WILLIAMS: With it is a memo from the Planning Commission suggesting that there are some inaccuracies in the letter and that the staff has no 13 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 conflict with rescheduling the meeting. So like I said, it's more than confusing. And I'm not so sure that I want to be the one to decide whether to continue. COUNCILMEMBER GUTIERREZ: I don't think we should continue it. COUNCILMEMBER CURATALO: How long will it take to get down here? MAYOR PRO-TEM WILLIAMS: Why don't we work the agenda as it is. MAYOR ALEXANDER: We have brought it up. We had a motion to bring it up at this point. COUNCILMEMBER CURATALO: I know it's incumbent upon her to be here tonight. MR. ANGEL: I believe it's changed circumstances over the last week and a half. I can't address them. But I can tell you from -- I had a phone conversation. She requested that -- actually, I can back up a little bit. I believe she was scheduled to be up in San Francisco. And it was going to be inconvenient for her to attend. She changed her calendar so she could be It's under those circumstances that she wanted here. to go forward. I'll be happy to go call her if you can go in sequence. 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 MAYOR PRO-TEM WILLIAMS: Would it have been appropriate for you to have submitted a follow-up saying please rescind my first request? I mean, it just seems to me that if you made one written request, and now you've changed your mind, it would have been easier for all of us. Because in my mind -- MR. ANGEL: The request was made on the 11th. And there had been no response. There was no indication that the matter was going to be continued. MR. MARKMAN: Sir, the City Council has to act on a continuance this evening. There was no way to honestly tell anyone whether the council would or would not grant a continuance. I'm sure that she's a practitioner who understood that. CITY MANAGER LAM: Mr. Mayor, I think procedurally Mr. Markman has indicated there's a motion on the floor. If there is no second that motion is denied for a continuance. That means that the agenda proceeds then. MAYOR ALEXANDER: We have a motion to bring this to this point. Does anybody want to go ahead and put it back to -- COUNCILMEMBER GUTIERREZ: I make a motion to 15 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 assume the regular agenda item for a later time. MAYOR ALEXANDER: Is there a second? MAYOR PR0-TEM WILLIAMS: Second. CITY CLERK ADAMS: five, zero. MAYOR ALEXANDER: Motion carried unanimously, Okay. (Interruption in the proceedings.) MAYOR ALEXANDER: Item G. The following items -- this public hearing's following items have no legal publication or posting requirements. The chair will open the meeting to receive public testimony. Item 1, Consideration of an Appeal for Development Review 97-11, Lauren Development. Tom Grahn will give the staff report. MR. MARKMAN: Before you commence this hearing, and before we walk into a procedural problem, I think the Mayor should inquire whether the applicant -- or excuse me -- the appellant who asked for the continuance, and we're informed no longer wants a continuance, is here and wants to go forward. And then we know we won't have to do this over. MS. McKIETH: I'm Malissa McKieth. First, I'd like to apologize for not being here at seven o'clock. We were toward the 16 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 bottom of the agenda. 'You may have noticed from my request for the continuance on September, that it was filed with the city by fax on August the 7th; that I had a commitment for the governor's office this evening, which I tried to satisfy before getting here. I was contacted by one of the individuals who spoke this evening, and asked whether I wanted a continuance. And as I told several council people last week, if I did not get the staff to pull the agenda item and get a continuance, all the work that I and my experts and all the rescheduling that we had to do was pointless. We would be prepared to go forward this evening. I spoke to Ms. Williams about that; I spoke to Mr. Gutierrez about that. surprise. It should be no I would also like to clarify on the morning of August 7th, which is the day after I got a fax from the Richards, Watson firm finally confirming when this hearing would be, we had been told that this hearing would be in September. I called Steve Kaufman, the attorney who represents the city in the federal action. And I said, "Steve as a personal favor to me, I have a commitment for the governor's office. I need you to 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 help me get this hearing continued." That was 7:30 in the morning on August the 7th. I had faxed the request for a continuance to you. I spoke to several council people last week about the need for a continuance because of the fact that two of our principal experts on earthquakes and on debris basin damages, one of whom is the director of the Southern California Earthquake Center, who is the same expert that Lauren Development has, provided us a declaration saying this project is dangerous, is out of the country. Our second expert on debris basin failures is in Portland. He has also submitted a declaration. I knew that this was going to be a difficult hearing this evening. Nobody contacted me about a continuance. I received a fax late last night acknowledging a request for a continuance and telling me that it would be considered this evening. At that point I had spent -- and my experts had spent -- I had experts living in my house the last week working on this project. We're fully prepared to good forward. I apologize for this inconvenience to people. But I have been in good faith. I made 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 every single effort early on to contact the counsel for the other side, to contact some of you, individually, and to request that staff pull the agenda item. I also had suggested that it was appropriate, because I knew your minutes had not even been printed until August the 13th. And I know this is a big issue. I know there are a lot of materials. And I have been working 19 and 20 hours a day to get things to you in a timely fashion. I know people were critical this evening, the fact that all of a sudden we're submitting all this important information. I can assure each and every one of you that I have moved every personal and professional obligation I had since I had notice of this hearing in order to prepare for this evening. And that came as a great sacrifice to me and experts and people in our neighborhood. And that was because we were told that there was no way the City Council could possibly hear this on the 20th. We are prepared to go forward. We would like to present the evidence to you this evening. We, too, have only received documents from Lauren Development in the last couple days, including documents that came only to us for the first time this 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 afternoon. issues. But we're prepared to respond to those We would like to go forward. I was fully in accord with a request that a continuance be pulled this evening. And I hope that clarifies things. If not, I'd be happy to answer any questions that you have before you, before you proceed with the staff report on the continuance issue. MAYOR ALEXANDER: Any questions? Thank you. MR. GRAHN: This exhibit will give you an idea of the location of the approximate site. The tract, itself, Tract 14771, was initially approved by the Planning Commission back in 1990. We received an application for the development of 40 lots within that tract map. Development on the application was approved by the Planning Commission on July 9th of this year. Following the Planning Commission's approval, we received two appeals on the project. The first appeal focuses primarily on environmental concerns and safety concerns regarding the removal of the levee. The second appeal focuses on access to the project site. As I said before, the design of your 20 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 application was submitted on the development of 40 single family homes within the limits of the previously approved tract. The design, here, was prepared to address the requirements of the hillside development. The design includes split-level pads, with multilevel breaks and interior floor levels between the garage. There are six different elevations that are provided. I have posted several of them behind you. Plans 1 and 2 are size elevation; Plan 3 and 4 are sideslope and uphill elevations. Plan 1 is a single story floor plan; Plans 2, 3, 4 are two-story plans. The floor plans range in size from 3100 square feet up to 4300 square feet, and are provided in a variety of conditions. During the design and review process and the design review meeting, there was one primary concern focusing on the site-plan issue relating to this project, and that deals with that condition of approval carried over from the original tract, which addresses a number of problems in this project. The specific condition limits front garages within 33 percent of the lots within the subdivision. That would equate to approximately a maximum of 13 lots within the tract. 21 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 If you look at the floor plans closer, over to your right, Floor Plan Number 1, which is to the right of the site plan, and Plan Number 2, is directly to the south, directly below it. Plan 1, if you look at the garage orientation and the orientation of the house to the left, that is considered a site plan or the plan where the garage door fronts directly on to the street. There are a maximum of 13 lots within the tract that has that indication. Plan 2, the lot below the floor plan, below that, the garage is situated approximately up to 50 feet or even further behind the front elevation of the garage. There's an option element on that that has the ability to enhance that elevation somewhat. You can see that through the elevation that was provided behind you. It was a determination of the designer and the Planning Commission that because of the orientation on the garage, the condition in front of the house, in addition to the front of the lot to the garage door, that that would not be considered a frontal garage condition. And, therefore, the tract complies with the requirement that a maximum of 33 percent of those lots could have a frontal garage condition. 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 During the design review process, we received a number of letters of opposition to the project. Only one of them really focused on any design issues associated with the project. The letter was provided by Bill Angel on June 10th. It does not include the staff report that is before you. But I will go over the issue that it provides or addresses regarding the architecture. The primary issue that it focuses on has to do with the massing and bulk provided with the elevations. A couple of exhibits that we have from the Hillside Development Organization addresses the massing and bulking orientation of the house. Depending on the condition and the view of the house from the upslope, downslope, or adjacent to the house, you could get a different appearance. They focused on one exhibit in the ordinance that addresses effective bulking, that says if you have pad elevations on the slope, or at the rear of the lot, grading of the slope minimizes an overhang that, essentially, increases the effective bulking of the elevation. There are a couple of elevations within the project that Plan 2 and Plan 4 of the elevation -- there's a side elevation that has a portion of the 23 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 elevation that projects out, and in their position is a violation or in conflict with the objectives and the requirements of the massing of the hillside development. It was a determination of the designing committee and, ultimately, the Planning Commission that the elevation complies with the requirements of the Hillside Development Ordinance in terms of the massing and scale and proportion. And the application was subsequently approved by the Planning Commission. As I stated earlier, there were two appeals that were filed in the project. Engineering is here. They're prepared to comment on those if you have any questions for this. Other than that, that would conclude my presentation. If you have any questions, I'll try to answer them. MAYOR ALEXANDER: Questions? Thank you. Okay. We're going to go ahead and open it up for public speaking. Before we do, I would like to ask if we might ask the city attorney, please, to try to set up some ground rules. There are certain things that are appropriate and certain things that are not. 24 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 MR. MARKMAN: Before we do, let me, again, reiterate for those who are going to speak, there is a certified shorthand court reporter taking this down, so that you need to, maybe, speak a little more clearly than you normally would, a little slower, and two people can't be reported at once accurately. And, again, gestures or sounds, other than words, are not recordable. What you have is kind of an interesting proceeding. I know it's a policy of this council to take in all the information that is available to the council that the public wants to put in. I am sure you're going to hear a lot of things. Our view of this, as we have said at the Planning Commission level, we'll reiterate it here, is this is a design review process. The tentative map process occurred a very long time ago in 1990, I believe. And fortunately or unfortunately, this tentative map, which was approved, has been extended for an abnormally long period of time, in any of our experiences. But that's what the state law did with respect to a lot of developments due to the recession. What is coming before you concerns the -- I almost want to say the aesthetic nature of what you 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 see. All the conditions that have been imposed and all the considerations through design review concern what these houses look like in comparison with the neighborhood, compatibility or lack of compatibility with the neighborhood, where they sit on the lots, how the lots are graded to replace them on the lots. And, of course, we have seen hundreds, if not thousands, of design review processes in Rancho Cucamonga. And to my recollection, this was the first one where I have seen go to the council level. In fact, the development code doesn't even provide for noticed hearing on design review. Of course it does on tentative tract maps as a state law. Because the issue has been raised along the way, this is obviously a matter of grave public concern, we advised the staff to go ahead, in fact, notice a public hearing. That is notice beyond what the development code would require for a tentative map, and that has been done. So you are here, and you have a public hearing on design review. Now, I just looked at the record, and fortunately or unfortunately, I haven't sat through all the hearings. And I noticed in the record a great number of issues that don't have relationship to design review. 26 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 and 1983. think it does. disagree. And it's claimed by counsel and some of the appellants that those issues are nonetheless relevant. For example, there are circumstances which require a regeneration of an environment process, which staff and the Planning Commission has disagreed and their office has disagreed. The fact that there may not have been adequate care taken, with respect to earthquake and drainage issues, which were obviously issues which concerned the tentative map process, which our engineering department, the Planning Commission, and my office disagreed. We had, as late as this afternoon, discussions with some members of the public about compatibility with the general plan. And some issues have been raised as to whether the underlying project is compatible with the general plan. We reviewed documents going back to 1981 Some people may tell you tonight they don't The staff and my office respectfully So all of these issues are going to be presented to you. They may have something, but may not have anything to do with how these houses look or design review. I think your jurisdiction this evening under the development code of why this is in front of 27 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 you, concerns design review. And, of course, you need to decide amongst yourselves whether or not there is compatible design here with the neighborhood and whether the City Council can agree with the Planning Commission in that regard. The resolution presented to you deals with what I have just said. If you concur after all you hear with what we have said, what the staff has said, you can adopt the resolution. concur that this is a proper design, of these other issues are pertinent, If you don't or you think some or you have jurisdiction, or so-and-so advises you, after we get through this process, we can cross that bridge. But for now I think you ought to be concerned about design review because that's what is in front of you. The fullest, longest, most in-depth design review discussion I can say, authoritatively at least, since 1985. COUNCILMEMBER BIANE: I think I need further clarification, here. I think what we should discuss tonight is what is in the EIR, I guess. And I want to know whether we clearly can hear that and rule on that. MR. MARKMAN: Well, let me tell you how I see this: I think you're going to hear presentations. 28 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 You're going to hear counsel and other people argue you had to recirculate and do supplemental and environmental work. Staff and -- these issues arise and new ones on a weekly basis. And every one of them has been looked at by the staff, objectively by engineering, by planning. And we don't agree. And what is before you is a resolution that literally makes a finding that you didn't have to do further environmental work or recirculate the EIR since the time the tentative map was approved. It's over with. It has been approved for seven years. I'm telling you that is our view. But I know you're going to hear people who disagree with that. I'll be the first to advise you, if I hear something that's going to change my view or the staff does, we will tell the council. It's our interest in seeing the council's decision, whatever it is, validated, because it appears there may be litigation concerning whatever decision you make. So you do not see in the EIR in front of you, Paul -- you don't see a supplemental EIR. You don't see a subsequent EIR. We don't think design review, which is looking at the aesthetic nature of these houses, under the present circumstances on this 29 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 property, requires further environmental work. And I'll say it again: The people will disagree with me. But we have to give you our best opinion. That's what it is. So that's why you don't see that. And you're also going to hear about safety issues, which engineering didn't adhere to, the tract was not adequately conditioned as to earthquakes, as to flooding, as to who knows what else we'll hear this evening. All of those public improvement safety issues were dealt with at the tentative tract hearing seven years ago. This has all been brought up and reviewed and rereviewed by the staff and presented to the commission. They didn't think these were pertinent issues. You're to going hear these issues, unless the Mayor does something different than he's ever done, which is not to take the input, whether I think it's relevant or not, because the input is going to come in. The staff is going to -- and the developer, undoubtedly, are going to rebut it. So what I think what you're going to have is a record that is about five-percent pertinent, if I could make an estimate, based on what I have read on the Planning Commission process. 30 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 But nevertheless, I'm never going to advise the council not to take information that you want to hear. In other words, I'm not sitting here like a judge sitting here saying, "objection," "irrelevant," "strike it," "don't go on with that line of presentation." ~ Whatever they want to present, I'm sure the Mayor is going to take in, and I advise you to. That does not necessarily mean that we think it's pertinent to design review. MAYOR ALEXANDER: Before we go ahead and open this up, I would -- one thing the city attorney did say is probably also very true. We do not try to hold people necessary to that five-minute rule. Sometimes you run over; sometimes you're a little bit less in volume as far as the amount of material presented. But we would ask one thing: If you would work very hard not to be repetitive. If one person has said one thing, please do not repeat that item. MR. MARKMAN: Bill, in about half an hour, I'll ask you to take a recess for the reporter's sake. MAYOR ALEXANDER: I understand. Okay. At this time we'll open the public hearing. Is there anyone that would like to 31 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 address this issue? MR. ALLDAY: Mr. Mayor, members of the City Council, my name is a John Allday, representing Lauren Development, Cucamonga. 11030 Arrow Route, Rancho I'm going to try to be the five-percent pertinent that Mr. Markman discussed. I will do my best to limit my discussion to the items which I know are design-review related. Even I, however, because I've been approached -- we've been approached by so many issues that are nondesign review, I might be bringing them up also. I apologize for that. But my focus will be on the design review issues. I would first like to thank -- I would like to commend the professional staff of this city. And I'm not just saying this for a matter of courtesy. I have been in this business on both sides of the counter with planning. And I'm a planning commissioner in the city where I live right now. Hopefully, this won't get back to those staff. But, believe me, I have never worked with a more dedicated, professional, and quality staff than the city staff in Rancho Cucamonga. I'm talking engineering, planning, professional, clerical, legal, everybody, excellent. And I hope that's not 32 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 interpreted as being conspiratorial to commend them for how they stuck with this project. When we first came in they had many problems with what we proposed. We had a lot of meetings and showed them a lot of plans. And, believe me, the plans on the wall are not the first version that's ever come up before the Planning Commission or before the City Council. I would like to talk about just a couple of design review issues: First, compliance with the Hillside Development Ordinance. Again, our plans evolved. They went through many changes. The first plan we submitted, if I could say, staff was -- they liked the contour grading that we were proposing, but they felt that our homes did not have enough adequate splits in the houses. We went back, literally back, to the drawing board. We have plans, here, that are now consistent with the tentative map that was approved in 1990, consistent with the conceptual grading plan that was approved in 1990. We have minimized the two-to-one slopes. We have homes that are in-step with the slope, ranging from three to six and a half feet within the houses. Three to six and a half feet. 33 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 Our houses, despite what you may hear, are, as staff has indicated, in complete compliance with the Hillside Development Ordinance as far as the windows and the graph that Tom Grahn presented to you today. All of the above measures that are required, the sloping, the stepping, contour grading, have been incorporated into our plans, which were unanimously approved by the Design Review Committee and by the Planning Commission. The next issue I would like to address relating to design review is the compatibility with the community. And coupled with that, tied to that, is the amount of community input and knowledge that has been shared with them, by them, on this project. Before we even started, we checked out all the ordinances imposed and regulations, deed restrictions. We inventoried every house in Haven View Estates. We photographed them. We went to the building department, looked at the building permit dates and sizes of every house in Haven View Estates. And we reviewed all the design review applications that have ever been approved in Haven View Estates. We wanted to have plans that were compatible and consistent with Haven View Estates, and 34 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 that's what we have here. I have distributed to the Planning Commission a chart -- two charts, which, I believe, are in your package. I'm not going to redistribute them. I believe they are in your package. And what these charts show is the square footage of every house in Haven View Estates, compared to the square footage in the homes we are building. In deference to respecting Councilmember Gutierrez's comment about getting more material, we have these if you would like them. I'm pretty sure they have been in your package before. What they show is of the 243 lots -- I see a lot of people saying -- COUNCILMEMBER GUTIERREZ: Could you pass them around? MR. ALLDAY: They were distributed at both June 12th and July 9th -- pardon me if my dates are wrong -- the two previous Planning Commission meetings. What those charts do is they compare all the existing homes in Haven View Estates with the homes that we are proposing to construct in Haven View Estates. This is based on the building permit information of your city records. I would just summarize them. 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 AS you can see on the written chart, there's five homes smaller than 3,000 square feet in Haven View Estates; one home over 6,000 square feet. The biggest grouping of existing homes is from 3- to 4,000 square feet. The medium home size of those homes is 4,086 square feet. I bring this up because people have said that our houses are incompatible by size with the homes that are already existing in Haven View Estates. On the graph in the chart you will also see our homes plotted and bracketed. This shows our homes in both the expanded and unexpanded state. I will get to that in a second. Our Homes range from 3,143 square feet -- and I only have four of those -- to 4,942 square feet. The average size of our homes is 4,152 square feet. 60 percent of the existing homes in Haven View Estates -- 60 percent of the existing homes in Haven View Estates are equal to or smaller than the homes which we are proposing. I'm sorry. I'm being so careful and deliberate with my words, but this has been a very important issue to us because people have said that we're not compatible. We have checked 19 design review 36 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 applications that have been approved by this city in Haven View Estates. They range from 3900 -- or excuse me -- 3400 square feet to 4200 square feet. In the last year -- in the last year there have been design review applications approved for 3900 to 4200 square feet. And I understand one of the appellants, in fact, has an application before the city for a 3800 square foot house to be built in Haven View Estates. Another aspect that I would like to get into dealing with community compatibility is the impact on the market, the economic impact of these homes which we're proposing. I bring this up because some of the handouts which have been distributed indicate that our homes are going to ruin the value of the existing homes in Haven View Estates. One of the handouts that's distributed says that our houses are going to sell for $270,000. This is our second project in Rancho Cucamonga. Our lowest priced home in our other project, I believe, was around $270,000. So, therefore, our new project will start at that. I say that facetiously because that's the logic that's been stated. Our previous project was at 270,000. We appreciate greatly the concerns that many people have 37 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 about the cost of their homes, the price of their homes. But all over Southern California they have fallen in the last ten years. That's not the fault of Lauren Development or having anything to do with the homes being built. The other aspect of community compatibility deals with neighborhood awareness of this project. Many people have testified, and may testify tonight, that, "If I knew what was going in" -- "If I knew that site was going to be developed, it would be incompatible with my desires to live here, and I never knew about it." What we have found in our extensive research about all of the discussions and everything that's gone on with this project, way back in 1983, when all of Haven View Estates was first discussed, this site was recognized as future development. When the tentative tract map in 1990 was approved, the Homeowners Association endorsed it. Some people who are appealing tonight wrote letters to the city, attended various design review and neighborhood meetings, the Planning Commission public hearing back in 1990, and endorsed the project, wrote letters endorsing it. I would like -- it's very important -- 1 38 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 wouldn't distribute this at this time because of the fact of its late notice. If we had known that this item would be considered tonight rather than in two weeks, I would have distributed this early on. And I apologize, but the issue of prior knowledge is something that I do want to place in the record. We do not -- I'm not going to go through each and every one of these items having to do with prior knowledge. I would like to draw your attention to items on page 3 of this handout; items H, I, and J. Ms. McKieth testified at the Planning Commission meeting that there were only ten homes existing in Haven View Estates in 1990 when this project was approved. Totally untrue. There were 31 homes in Haven View Estates at the time this project was approved; plus there were an additional nine homes under construction, which is more than half of the number of homes that are currently in Haven View More than half of the homes today were And of the 31 nontract homes existing in 1990, 15 of them are still owned -- still owned by the same people who owned them at that time. Since 1990 over 60 percent of the -- I'm on item I now -- 60 percent of the lots in Haven View 39 Estates today. there then. 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 Estates are in 1997 owned by the same people who owned them in 1990. 60 percent. And on item J, over 60 percent of those who attended the 1990 City Planning Commission and design review meetings still own homes or lots in Haven View Estates. The point of this is there is no opportunity, I believe, for people to say they didn't know. There are legally recorded documents that the homeowners are aware of, public reports, CC&Rs, all refer to development on this site. Some refer to 42 additional lots; some refer to 45 additional lots. The CC&R has maps of this property being developed. It's -- no one should be surprised. No one should be surprised at the pending grading of this property or the construction of the 40 homes on the lots. The grading that we're proposing tonight is merely precise fine grading, based on the overall grading plan that was approved in 1990, the grading of this entire site. We wrote a letter to increase awareness of this project. We wrote a letter individually to every property owner in Haven View Estates after the first Planning Commission meeting, inviting them to come and testify -- or excuse me -- to come and meet 40 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 with us. We would show them the plans, answer any questions. Three people -- three people responded to our invitation. COUNCILMEMBER CURATALO: What date was that? MR. ALLDAY: The letter was -- the June 11th meeting -- I'm sorry. I can't answer exactly. June 11th was the day of the meeting. I believe the letter went out about -- the meeting was continued for four weeks. About two weeks later we wrote a letter. Two people came the day before the second Planning Commission meeting. One person came the weekend -- the Saturday after that. So it would be late July is when the people showed up. COUNCILMEMBER CURATALO: July '96? MR. ALLDAY: Of this year. COUNCILMEMBER CURATALO: I was at the July 9th meeting. There was more than two people. MR. ALLDAY: I am sorry. We wrote a letter to every property owner in Haven View Estates inviting them to come to our office or to call us and we would go over all the plans with them. There was more than that. I didn't mean to imply that. Traffic is related to design review only in that some people have alleged that these homes were going to cause undue impacts on them, due to the 41 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 traffic. All I would like to say in that regard is in 1990, when this tentative tract map was approved, traffic studies were submitted. These traffic studies analyzed the 203 existing lots in Haven View Estates, plus the 40 lots on this property, plus the potential of 53 lots to the east of this property. As you can see on our map on the right corner, a street stubs the property to the east. In existing Haven View Estates, there's another street that stubs to that. So the traffic analysis that was prepared analyzed the impacts of all these cars. They came up with approximately 3,110 daily trips on the rim's stem. The traffic engineering individuals indicated that over 10,000 cars' daily trips could be handled. And the streets here were over three times the capacity of what they needed to be. We have -- during the course of our efforts with the staff and with the Planning Commission, we have made a number of changes to the project, improved upon them, made items that we had once thought would be optional, made them mandatory. We have changed our mix to increase a number of larger sized homes. We have done a number of items where we 42 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 are very, very proud of these homes. I'm sorry. We have been so caught up in all of these items that have nothing to do with design review. We're confident that when they are built, and our neighbors in Haven View Estates see them, they will be as proud of them as we are. We are confident. They are consistent with this community, compatible with the community, and should be approved by your honorable council. That's all I have at this point. COUNCILMEMBER GUTIERREZ: Where is the levee that you're going to remove? Is it right here? MR. ALLDAY: Where is it on this map? It runs north of the border. Approximately where you put it, however, is north of those two streets. On the inside, on our property, it parallels that. The reason why is that when Haven View Estates -- the balance of Haven View Estates was approved, there was a easement over that property there, because of the existence of the levee. The Flood Control -- County Flood Control District had an easement which prohibited development of it because it was serving a purpose at the time. However, after the overall tentative was approved, the Corps of Engineers constructed Deer 43 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 Creek Channel and Deer Creek Debris Basin. And the Flood Control District determined that the easement prohibiting development was no longer required. And so the site became developable. And that's why you have this. The levee is basically along that corner. Are there any questions? I would like the opportunity to rebut any issues that are brought up later on. MAYOR ALEXANDER: Any questions from councilmembers? COUNCILMEMBER BIANE: I have one question, just for clarification. I want to talk about the prices a little bit of the homes. I wasn't clear as you stated it. Will there be homes at $270,000 or not? MR. ALLDAY: No, sir. MAYOR ALEXANDER: Jim, let me ask you, is the reporter ready for a break time? MR. MARKMAN: Maybe for the counsel and the reporter. I see counsel for the appellant coming up. COUNCILMEMBER GUTIERREZ: One really quick question. How many models do you have in this plan? MR. ALLDAY: We have six floor plans. MAYOR ALEXANDER: Is 10 minutes enough of a break? 44 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 MR. MARKMAN: Oh, yeah. (Recess.) MAYOR ALEXANDER: Okay. We'll go ahead. 10 minutes went into about 17. Go ahead and continue. expect we'll be here for a while this evening. But we're ready for our next speaker on the item. MR. ESTUPINIAN: Hello. My name is Mark Estupinian, and I'm a resident of Haven View Estates. I currently live at 11045 Ranch Drive. I've been a resident for eight years. And I'm a board member for CURE, Cucamongins United for Reasonable Expansion. I'm a custom home builder and designer and build laboratories for pharmaceutical environments. And I've not built any other custom homes in Rancho Cucamonga, other than my own. But I have built many custom homes in Claremont, Arcadia, and Glendora areas. We decided to build our custom home in Rancho Cucamonga because we like the rural feel and the history of the wine vineyards. And in keeping with the theme, our home is constructed with wine and vinegar barrels presiding in indigenous stone. Mr. Gutierrez actually came to my home and looked at my home. I wanted to point out that we're not talking about apples for apples when we're 45 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 talking about homes here. When Lauren Development tries to associate the, quote, "semicustom homes" with our community, a term used by tract builders to describe something that isn't, they fail to compare their homes with the majority of the homes in our community, like my own. This was my primary issue until I was informed that they were going to remove the levee, the levee that protects our community from disasters, from the '69 flood, a proven resource, unlike the debris basin that has never been through a flood at this magnitude. Prior to living in Rancho Cucamonga, I lived in a small cabin in Mount Baldy by a stream bed, and witnessed a flashflood first-handed. In our canyon we lost a truck in our neighborhood's port. I'm also director for ski patrol for Mount Baldy, and have seen firsthand the effects of a large snow pack and a warm rain in our local mountains and destruction that hundred-year-old trees from rocks the size of buses loosened by landslides; a scenario not to be taken lightly in a canyon as large as Deer Creek Canyon. I went to the site to videotape the levee 46 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 for those that have not seen the size and the amount of earth that they will have to remove for this levee, and to get a feel for the natural beauty of the area. May I show it to you? MAYOR ALEXANDER: How long is it? MR. ESTUPINIAN: I never timed it. it's within eight to ten minutes. MAYOR ALEXANDER: MR. ESTUPINIAN: MAYOR ALEXANDER: I imagine MR. MARKMAN: I want to remind anybody that puts in -- somebody who puts in an exhibit like this is giving it up to the city clerk. MR. ESTUPINIAN: That's fine, if I can make a copy of our vacation at the end of it. MR. MARKMAN: I have to tell you what -- seriously, this could present a problem. I don't know what the relevancy of the video is, but you obviously think it's relevant. clear. MS. McKIETH: We want to keep the record We would be happy to tape a copy and have it to the city clerk before ten o'clock tomorrow morning. If you must have the original, we'll just copy it from you, just as a practical matter. 47 You'll certainly get a view. It's taped. So it's not -- I'm sure it's very good 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 MR. MARKMAN: Let's do this: We'll keep what the gentleman uses tonight, and if the city clerk can copy it, so that there is a specific -- an exact tape, he can get his vacation back. an objection to that. vacation. I don't think we have But for tonight we get to keep your (A videotape was shown. ) MR. ESTUPINIAN: Sorry it took so long. MR. MARKMAN: Do you have a way to mark that, please, so you don't lose track of it? CITY CLERK ADAMS: Okay. MR. MARKMAN: transfer it. MR. ESTUPINIAN: And then we'll see if we can Well, in closing, I would also like to state that we never did -- when we received our notice, we were coming back from vacation on Memorial Weekend. That's the first notice that we ever knew of anything that was going on with the project. In actuality, we only had less than two months to prepare. And this is the first I've heard of it since that time. So I hope that your decision will be to protect my family and our community and lastly our 48 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 open, last natural area that we have. So thank you very much. MAYOR ALEXANDER: Thank you. MS. WILLIAMS: I'm Liz Williams with the Euclid Management Company. We manage the homeowners association. I'm the director of property management at Euclid. The purpose for my being up here is kind of to go in with what Mr. Estupinian just stated about the notice for the development of the association above Rancho Cucamonga. In January of 1997 I contacted Bob Cristiano, who at that time, and to my knowledge, still is the owner of the parcel that we're referring to. I contacted him at that time because there were industry rumors that the parcel was going to be developed. There was no initial contact from Cristiano to our management company. During that conversation with Bob, he stated that he felt that any correspondence from our management company was premature, and that he was kind of in a negotiating stage with Lauren Development. The first correspondence that we received from Lauren Development regarding this project was dated March 26, 1997. The letter that I'm reading 49 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 from was submitted to the City of Rancho Cucamonga on June 26th of this year. Lauren Development was then invited to attend the Rancho Cucamonga meeting on April 4th. At that time Lauren Development had stipulated, I guess, repeatedly, that there was notification to both the association regarding the project's development. At that time when I spoke with them, inviting them to attend the April 4th board meeting, I said that it would be a board meeting of the Rancho Cucamonga Board Homeowners Association. I notified John Allday on April 3rd that the meeting was going to be cancelled due to a lack of quorum. On May 16th we had a Rancho Cucamonga Board Meeting, at which time Lauren Development was, again, invited to attend the meeting. At the advice of the association's counsel, the interaction with Lauren Development at the meeting was strictly to attain information. It was not, nor ever meant to be, the neighborhood meeting. Homeowners were not notified of the meeting. At attorney -- our counsel's recommendation, we were just as a fact-finding mission. We weren't there to establish the board's position, nor to inform the homeowners what was going 50 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 on. At that point it was our first official contact with Lauren Development. During this meeting, Lauren Development handed out what they called a sign-in sheet that stated that it was a joint meeting of the homeowners association. I recommended to the board that they not sign that sign-up sheet, as that's not what it was, nor what it ever intended to be. I wanted to make sure that it was stipulated right from the very beginning that I did try to make contact to determine what was going on within that project January of this year. And I didn't get any notification from Lauren Development until the end of March. There was a letter that was submitted to the city dated May 16th. It was submitted to Tom Grahn from Lauren Development outlining all the different ways that they notified the homeowners. As I see it, I've been with the association for more than five years, and much of what was in this letter I did address to the city as being contrary to what I recollect. Finally, the last statement that Lauren Development stated was that in this meeting, 49 percent of all the lot owners were present, as well 51 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 as -- I'm sorry -- in addition to representing 100 of the lot owners and board members. I think there was four board members there. One of my board members owns 46 lots. Therefore, you have your 39 percent of all lot owners that were represented. So I did want to clarify that at no time were we ever asked to notify the homeowners, were we ever asked to or requested to have a homeowner association meeting or a neighborhood meeting to discuss this project. Thank you. MAYOR ALEXANDER: Thank you. MR. BRADFORD: My name is Tom Bradford with the firm of Bradford and Barthel. As I indicated earlier, I'm a workers' compensation attorney. Some of this stuff that I found so far is legal -- is a liability of legal fees that would be significant. And if a lawsuit goes forward, the city could be obligated to pay the victor if CURE prevails. Also, in terms of what we can listen to today -- I do have in front of me a transcript from the City of Orange City Council Public Hearing on August 13th, 1996, where Mr. Markman's firm was present. 52 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 At that time what would be discussed -- one of the items that was going to be discussed was whether the environment could be protected. MR. MARKMAN: Excuse me. Was that the City of Orange? MR. BRADFORD: Exactly; City of Orange City Counsel Public Hearing, August 13th, 1996, regarding the Wal-Mart hearing. MR. MARKMAN: So it's not regarding this project? MR. BRADFORD: No, it's not. My point, though, was whoever it was, indicated that this is very narrow. All you can listen to is whether this could be approved. From a similar meeting one of the things to be considered was whether or not the environment would be protected. I have a few problems with that. The other issue to be discussed is whether there was any environmental impact. We're asking for the same thing, same rights. I don't know, again, if there's been any conflict of interest in this file of Mr. Markman's firm. My understanding is that they represent the city. If litigation goes forward, potentially there could be significant fees for the firm. 53 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 It would seem as if it would be worthwhile to get a second opinion regarding what could be discussed at these meetings and what could transpire. The general plan, suffice it to say, at the present time, I think, is designated for open space from the rim stem up. So what we see here is not zoned for development. But, again, that would be discussed by people who are more knowledgeable. The environmental impact -- I already discussed -- that was something that had been brought up earlier. Another case that was brought up to my attention was Laurel Heights by their city council a while back indicating that there's an obligation by the city council to have substantial evidence and changed circumstances that has to be reviewed. The Supreme Court has indicated it has to be mentioned to the Planning Commission Board. Again, that concerns me. And also as a homeowner, I did want to state I did not receive notice of this project until after. All this had been prepared on short notice. It was done in little less than three months, because that's all the time that we had. There was no more time to prepare. 54 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 Thank you. MAYOR ALEXANDER: Thank you. MS. McKIETH: Good evening. I'm Malissa McKieth with Loeb & Loeb. I'm a resident of Rancho Cucamonga, 4993 Ginger Court. My home is, fortunately, just west of where the levee ends. So that when -- and if the levee were ever to go down, I always told everybody that I won't be impacted by flooding and debris, unlike my neighbor, Mark. I guess I would like to say that one of the very positive side effects from this matter coming up is that prior to the time that I got notice on May 23rd about the project, which like many of my neighbors tonight for the first time regarding Lauren Development -- we don't read the CC&Rs as closely as we should -- I really didn't know people in my neighborhood. I work in Los Angeles. I think I was a little embarrassed about living in Rancho Cucamonga because everybody I work with lives in the Palisades, and I mostly hung out on the west side of L.A. or San Francisco, or somewhere else. I didn't know my community. I didn't know very many of my neighbors. One of the very, very positive side effects has been that I have really gotten to know my 55 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 neighbors. And now everyone in the State of California knows that I live in Rancho Cucamonga. And now I tell them that there's these great deer that live in my backyard. I have gotten to know people on the City Council. I want to thank the councilmembers who have taken the time to visit the levee, to meet with us. I always thought I was going to get up here and complain about Mark's Cable Vision and the fact that there's not automated trash. But as you will see this evening, I'm going to be talking about a much, much more significant issue. And that's the obligation of the City Council to, in fact, look at changed circumstances, new information, that was not available in 1990 at the time that you originally approved the tentative map and you originally approved the Negative Declaration. That Negative Declaration, by some of the same Planning Commissioners who were here on July 9th and June 11th, said there was no significant environmental impact. Now, you saw that video. And it's very difficult for me to understand how anyone could have decided there was no significant environmental impact to biological or habitat resources, safety, geology. 56 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 If you look at the Negative Declaration, which is in the record -- I didn't rexerox it again tonight -- all of these boxes were checked "no." There weren't any mitigation measures. It was a pathetic showing. Now, I'm not challenging that Negative Declaration. I just want to get that straight right now. I know -- Mr. Markman has told me -- he said my time has long passed. My focus for you this evening is going to be what has changed since 1990. What substantial evidence of changed circumstances is there that requires you, as the City Council, to take a look at whether or not we need to go back and reconsider this particular project, the Brock Project? Lauren wasn't the folks spending all the money back in 1989 or '90. And it is true that Lauren has had to expend monies now. That's a difficult position for Lauren to be in. But the reality is we're all going to spend a whole lot of money, because I am submitting this evening, as I have submitted before, substantial evidence of serious changed circumstances that go to the health and safety of these residents that relate to the Hillside Ordinance; that fall within the 57 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 pathetic little narrow exception that everybody wants to review. You can't look at anything else. It doesn't matter how dangerous it is. We have to close our eyes, because we approved it seven years ago. Neither the law or logic requires that you do that. Now, I'm going to go through some overheads, and I would like to get some help from somebody on doing the overheads. I would like to take some time. I really feel it is an important decision for the city. As you know, this case has gotten a lot of publicity. I can tell you ~hat the Hewitt Law Firm and my firm have been neck-in-neck in Sacramento all this week. We're all writing to our legislatures; we're all writing to the governor's office. It's a big important decision. There's a lot of media who are watching the case. It deserves more than a short time. I would have had materials to you sooner if it were physically possible. I was on the phone with FEMA at three o'clock in the morning. If you take all the evidence in this evening and you decide it is impossible for you to make a decision because of all the evidence we're presenting, close the record. Take the case under submission, and come back and make a decision, if that's necessary. 58 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 But if you don't close the record, we're all going to be going back and submitting more stuff, and submitting more stuff, and both sides are in a position to continue supplementing and supplementing. I would have loved to have had the individuals that are providing written testimony to you this evening here to answer your questions. They're leading experts. We have not spared a nickel in this case. Either my law firm or the other law firms involved or the people that we have hired -- we have hired the very best people, because we think it's a safety issue. And I can assure you that whatever happens here this evening, we will file for an injunction. We will go to the court of appeal. And what Tom was saying about the amount of attorney's fees involved, it's significant. I told my firm we could end up spending a million dollars on this case. And I'm serious about that. I have had to put aside a lot of other matters. I represent the CRA in Los Angeles. I represent a lot of other clients. And I told people, "I'm working on CURE." Because CURE is about Mark Estupinian's children. It is about the people who live beneath the levee. It's about the homes that Lauren builds on that levee and swale 59 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 system. These people who buy those homes, are going to be the people who are in the most danger. They're going to be the first line of, you know, attack if there is, in fact, a problem with the Deer Creek Debris Basin. So I want everybody to realize this is not a joke. This is not about, oh, well, we just don't want little houses. I have to tell you something: I agree. We're a beautiful neighborhood. We would like to stay a custom home neighborhood. We would like to keep the property value up in our neighborhood. Those homes are not compatible with what we have, no matter how much Mr. Allday wants to dress it up. And I don't like a lot of additional traffic in my neighborhood. That's what motivated me in the first place. But I'll tell you what keeps me up and makes me spend money and work hard is taking out that levee. So I -- Bill, can you help, or do you want to help with the slides? In addition to not seeing, I didn't remember my glasses. This is pretty easy. I was at a CRA meeting in L.A., and they let people talk two minutes, which is very bad. 60 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 That's us, CURE. I want to start with the Laurel Heights decision. The Laurel Heights decision is the Supreme Court decision. It deals with the issue of changed circumstances after you have had a final EIR. Let's imagine this Negative Declaration is our final EIR. What the court said in this particular decision is that the CEQA process is not designed to free the ultimate proposal in the precise mold of the additional project. Indeed, new and unforseen insights may emerge during investigation in revision of the original proposal. There is -- and I can't believe your city attorney hasn't told you -- statutes that we have under both CEQA and under -- under the CEQA guidelines that talk about the fact that when you have new information and changed circumstances, it must be considered. Section 21166, "A supplemental or subsequent EIR must be conducted if one of the following events occur: New information, which was not known and could not have been known at the time the environmental impact report was certified as complete." The CEQA guidelines provide additional 61 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 guidance to agencies when considering to hear or prepare a supplemental environmental document. Section 15162 of the CEQA guidelines provide the supplemental EIR. "It is required where the lead agencies determine on the basis of substantial evidence, in light of the whole record, one or more of the following: New information of substantial importance, which was not known or could not have been known with the exercise of reasonable diligence at the time the previously EIR was certified and complete or the negative declaration that was adopted." The project will have one or more significant effects not discussed in the previous EIR or Negative Declaration. Significant effects previously damaged will be substantially known or shown in the previous EIR. "If changes to a project or circumstances occur or new information becomes available after adoption of a negative declaration, that lead agency shall prepare a subsequent EIR if required, under Subsection A." Now, what are we talking about here? I'm going to go into what kinds of evidence or changed circumstances we have, because there is a great deal 62 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 of changed circumstances that we need to focus on. I'm going to start out -- you have in your white folders three declarations. You have the declarations of Tom Henyey. Tom Henyey is the Director of the Southern California Earthquake Center. He is Jim Dolan's supervisor. Jim Dolan is the person who trenched the Cucamonga fault in 1996; couldn't have known in 1990 what we were going to find in 1996. Contrary to all the materials that Lauren has put in -- and we have written responses to all of their factual allegations -- about how we lied about what Jim Dolan did and that Jim Dolan really didn't go out and trench. The declaration that you have from Tom Henyey discusses not only Mr. Dolan's trenching, but the conclusions that were reached in that trenching. Let me pull out what he has to say in the Declaration. The slides are all screwed up. The first study that he talks about -- this is sort of a key. This is the linchpin in our case. In 1980 when the Army Corps of Engineers built the debris basin, they built it to a 5.0 magnitude quake. We have a lot of evidence in the record. We had the Army Corps' original design specifications in 63 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 1980. In 1990 when you approved the Negative Declaration, and when the Army Corps of Engineers certified FEMA, the debris basin that was going to hold everything, and when the Flood Control District, who really desperately wanted its golf course there, decided that they were going to tell FEMA that everything was safe and wonderful, everybody thought that we were not dealing with a really significant earthquake fault. What we have now is the Southern California Earthquake Center, as of 1996, testifying to the fact that the Cucamonga fault runs directly underneath the spillway debris basin, estimated magnitude of a 7.5 range. Attached to Exhibit A shows that the map fault may pass through or very close to the debris basin in the spillway. An earthquake of a magnitude of the 4 or 5 range would not be expected to break the earth's surface and cause damage to the dam; whereas earthquakes greater in magnitude of 6, 6.5, will almost always break surface, and likely break force its way to the dam. Also the ground shaking with a larger event will be considerably greater. And he has a lot of maps attached that I didn't have for our 64 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 overheads. He talked about the fact if an offset takes place currently on more than one strand during an earthquake. And the total offset could be considerably larger than estimated from the June 1996 trench alone, and, thus, the magnitude could be greater that 7.0. I understand the Army Corps of Engineers sent a letter on the 11th telling you that the debris basin is all fine and dandy. They talk about a 6.4 quake magnitude. Henyey is talking about paragraph 7. It's been a long time since we have had a big quake on the Cucamonga fault. And, therefore, if you take a look at what these seismologists talk about together and figure out probability, he thinks we're ready for another quake. I got to tell you, I live in Cucamonga, and I have not been particularly happy about what people have been telling me from FEMA and from Southern California Earthquake Center about what a wonderfully safe area I don't live in. I bought my house thinking it was on bedrock because I had all that ruble, all those big rocks in our backyard. I don't know how many people 65 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 live up in the hillside. Where do you think those rocks came from? I used to think it must have been from Jurassic Park. Now I realize it's debris flow. If I were to sell my house, I got some real serious disclosure obligations that aren't making me particularly excited about where I live. And I'm complaining about Mark's Cable. Does anybody like Mark's Cable? We don't like Mark's. It went blank during Shindler's List. That was the end. This is the most important conclusion in Henyey's Declaration. Again, these are the experts that Lauren relies on, too. It's going to be the battle of the experts. It's like 0.J.; they had theirs; we had ours; they had that DNA that the jury didn't care about either. These are the folks that Lauren thought were the experts. saying. This is what they're I understand that the City of Rancho Cucamonga tentatively approved the Lauren Development Project in 1990. It is important that the city consider the new earthquake information in determining the safety of the Deer Creek Debris Basin and the safety of the homes located in such proximity to a known fault, particularly in light of the new 66 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 magnitude estimates discussed above. Now, if that isn't substantial evidence of a changed circumstance, I don't know what is. Mr. Markman, I would love to hear what you have to say in rebuttal. you something: This was 1996. that was not available in 1990. But I have got to tell It's new information The integrity of the debris basin is the key issue here. If the debris basin for any reason fails -- and I'm going to go next to the Williams' Declaration and talk about what David Williams, who is a leading debris basin expert, says about that debris basin and about FEMA remapping. You're going to see that we have got an issue about whether or not our secondary levee, that we have come to know and love, is something that should be removed. And then, of course, you have to go to the next analysis about whether or not they're replacing the channel. It's really an equivalent replacement to the levee. You have heard a lot about how it's adequate. I think these are the reasons why people do big EIRs after there are changed circumstances. David Williams -- your declaration is 67 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 there -- works for the Army Corps of Engineers and worked on the hydrologic models for the debris basin. Originally, he worked on the Harrow Debris Basin. He's out teaching courses on remapping. And in his declaration, and attached to his declaration, are some very key documents for you to consider this evening. One is CURE's request to FEMA to remap this area, at minimum, the mapping designation that was removed in 1991, FEMA's letter back to the city acknowledging receipt of our application for remapping. And we will be moving to remap. This project is not getting built any time soon, no matter what happens here. It's going to be a long time before anybody does anything on that property. And before that happens, we will have done the hydrologic studies to go through the issues of remapping, based upon the fact FEMA didn't look at the earthquake issues; FEMA did not consider the landslide issues. What they looked at was the Army Corps of Engineers' certification. And that certification, we believe, is no longer valid, based upon the earthquake. I will be honest. If this hearing had been in September, I would have had time to beat up 68 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 the Army Corps of Engineers, too, on these issues. I had to fight with every agency to move them off the dime. I can tell you how to reorganize. FEMA, the Department of Fish and Game, the Park of Fish and Wildlife Services, and every bureaucrat I have spoken to says, "Oh, we can't write a letter fast enough. There's just no way we can get a letter out in a day." Well, I got the documents from FEMA on Thursday morning, because I'll tell you, the engineering staff over here at the city has never produced engineering plans. This is a big major criticism that CURE has. We've never seen the traffic study that was read earlier. It's not in the file. So everybody relies on this stuff. We had to subpoena all of the developer's consultant records, subpoena them in a federal court action, before anybody would produce them voluntarily. Well, I wrote to the developer's consultants and I said, plans?" "Can we get the engineering They wrote back and they said, "Have the city give them to you." Well, we had been that route. This has been a lot of b.s., the situation over documents. So I finally got the documents from FEMA 69 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 on Thursday morning, and I got this expert to give me declarations over the weekend. And I have a letter from FEMA saying these people at CURE are going to be seeking remapping. That's important for you. But here is Dr. Williams, a leading expert in the area: "Removal of the swale and levee would weaken the protective nature of the basin project. I also understand that the developer claims that the levee is no longer effective at approximately the 200 feet breach on the top of Haddoc Road. "This is a small fraction of the overall levee, and can easily be prepared and has minimal bearing upon the overall structural integrity of the levee and the swale system to provide secondary protection to the downslope residents." At the front of the materials I have passed out in the blue book you have, are aerial photographs of 1969 that shows how the levee protected people from the 1969 -- our largest flooding event. I have heard some static about how the little eastern side of the levee failed a little bit in terms of water. You can see in that document -- blue and white document, the very front of the your folders -- you can see how that levee and that swale system -- that tired, little pathetic levee kept back 70 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 all of the debris and the water'in 1969. Williams goes on to state, "In my professional opinion, I have concluded that removal of the levee and swale system and the construction of a residential development, will place both the new residents and the existing residents downslope of the levee at a substantially greater risk of flooding at the debris slopes that currently exists; notwithstanding the existence of the Deer Creek Basin upslope." MAYOR ALEXANDER: How much longer do you think you're going to MS. McKIETH: I'm going to go, I would hope, as long as I need to get to the end of my argument. MAYOR ALEXANDER: Can you kind of -- MS. McKIETH: I will speed it up. Let me just talk about some of the other changed circumstances in the Williams' Declaration post 1990. The Army Corps has changed its methods for calculating debris flow. After 1990 -- so this is a changed circumstance -- Williams, who is familiar with the old method and the new method, because he's worked on the Harrow Debris Basin since 1990, has concluded that under the new method, the debris basin is undersod, which means that it could overtop. It 71 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 also could overtop because of the landslides. Tom Sheahan is going to be able to talk about the landslide issues in more detail. The other important issue that you need to understand is that the Army Corps -- there's plenty of evidence in the FEMA documents -- the Army Corps of Engineers anticipated that the levee was to remain intact. And there are recommendations that the debris that's removed from the debris basin be used to fortify the levee. That cleans it all the time. In fact, it was integral to the overall project. You have plenty of testimony on the record on those issues. I would like to speak just shortly on open space and general plan considerations. Bill Angel who, as you know, has been here 13 years developing -- I keep trying to convince him that he knows more than any lawyer -- is going to talk about the fact that this is zoned for open space, and it is also zoned for recharge. In your packet this evening under recharge, there's a letter from the Regional Water Quality Control Board to the city, advising them that the board is of the opinion that this is reducing a valuable recharge area, and that they're asking that 72 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 you take those issues into consideration. We have a lot less recharge now than we did in 1990. We have a lot less alluvial sage scrub than we had in 1990. These are changed circumstances that have to be considered. I also note that the city has not contacted the water agencies in terms of their obligations, under SB-901, nor has the developer. The general plan -- I respectfully disagree with Mr. Markman on his interpretation of the meaning of the general plan. Your own resolution here this evening -- which by the way, Page 3 was for some totally different development. So I have never seen the actual resolution you're voting on this evening. You have to find consistency with the general plan. My understanding of the general plan is that it requires an EIR. They require public a notice. And they don't just happen because somebody passes some zoning in 1983. That would be easy. We could do that without any difficulty. You could change your general plan like that. You got a serious defect on your general plan again. I would urge the City Council, if you think we're just all out to lunch on these issues, to get a second opinion on these things. These are 73 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 important issues that you are looking at. I would like five more minutes, please. MR. MARKMAN: Why don't we take a break. I~AYOR ALEXANDER: (Recess.) MAYOR ALEXANDER: continue? down? Ten-minute recess. Do you want to go ahead and Debbie, is there a way of turning that MS. McKIETH: We tried to put the materials together in a way where you have tabs for the individual topics so you could find them easily. If you turn under the first tab in the blue book under CEQA authority, this goes through many of the overheads that we have. If you turned to the third page, there is a list of what we consider to be substantial evidence of changed circumstances in the record that the developer has not provided contrary substantial evidence on it. The first thing I would like to point to is the traffic impact. A lot has changed in seven years in Haven View Estates. And notwithstanding Mr. Allday's presentation about how many homes were there at the time, there are substantially more residents and children living in the area. 74 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 Because the economy changed, a lot of us were able to afford homes when they were going into foreclosure. You have many more people with young children who otherwise have not been able to buy homes. We have a traffic engineer, Crane and Associates (phonetic), who was one of the largest traffic engineers in California, submit information before the Planning Commission about how there is no traffic study dealing with particular impacts on children during the grading, how there is no traffic study as to mitigating environmental impacts, both air and traffic, during construction. Mr. Allday at the last hearing said, "We signed some easement agreement, which means that we gave them permission to have access across the property." I don't believe that the person who signed those easement agreements had authority to do so, and that there will be a legal basis for challenging the easement on several different points. But more importantly, the easement agreement does not permit Lauren to get out of doing air quality or traffic studies. They have not done so. I keep hearing about this mysterious traffic study in 1983. 75 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 I was graduating from law school in 1983. Times have changed. There are substantial evidence of traffic impacts that have not been addressed by the developer. Then we have the earthquake situation. We have the U.S. -- not the U.S. -- the U.S. Fish and Game Wildlife Services. I'm not going to spend a lot of time on that. You have information in your record, whereby the developer has not completed the gnatcatcher survey. He claims he doesn't have to. The U.S. Fish and Wildlife Services says he does. It's your choice as to who you want to choose on that side of the battle. Another changed circumstance, the California Department of Fish and Game -- two important letters that you have before you under the and Fish and Game tab. First, on June 23rd of this year, they requested that City Council recirculate the Negative Declaration based upon changed circumstances. They have not rescinded that letter. And I was told by the general counsel this afternoon of the Fish and Game that they are not intending to rescind the June 23rd letter; although, they are going to make some clarifications about the memorandum of understanding. 76 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 When and how they have not made a determination. In fact, one of the issues they raised with us was just the timing of having to make a decision. What they are absolutely not rescinding, though, is the August 5, 1996, letter requiring blue line stream alteration agreements. When the developer, apparently, took the Department of Fish and Game to the site in November of last year, the entire site was not shown to the department. When the department went back and saw the entire site, they concluded that alteration agreements were required. The developer is not in compliance with their regulations. That is not a letter that the department is going to be rescinding. With respect to easement and grading and dirt, there has been a lot of rumors floating around that Lauren has to place grading debris on the Department of Water and Power easement. That is the easement that is to the north of their parcel under the power lines. Department of Water and Power -- there is a letter dated yesterday or the day before rescinding or terminating any agreements with or any negotiations with Lauren Development. They did not have a permanent place. And many of the areas that Mark 77 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 showed you on the video are actually the DWP easement. If the DWP is going to allow grading or fill on their easements, they have to comply with people like everybody else. And nothing happened in 1990, Mr. Markman, that gets the DWP out of being a lead agency for purposes of allowing any sort of disturbance of habitat from their parcels. We have told the DWP that. It is our interpretation of law, and they make their legal decision based upon the city attorney of Los Angeles, accordingly. Like I mentioned previously, the Regional Water Quality Board has sent correspondence. Today Mr. Hartzell had plenty of opportunities to speak to the attorneys and staff of the regional board prior to today on his arguments as to why the recharge issue was not something that should be raised. And they have sent a letter advising the city that they believe recharging needs to be considered. I would like to say a word about Mr. Cristiano. In your packet in the staff reports, correspondence from me to Mr. Cristiano was very early on in this process. When I had full understanding of this property, I decided that this is not a parcel that is ever going to be constructed safely. It is a 78 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 rare and beautiful parcel in addition to the safety issues. I approached Mr. Cristiano, because as a property owner, he is entitled to the fair market value of his investment. I represent developers. That is what my claim to fame is; not being on the other side of cases; although, I have had a big education in the last couple of months about issues that I used to think were not particularly significant. Mr. Cristiano was offered a sum of money that he will never see again at this point in time. Because for every dollar that we spend on legal fees is another dollar that we do not have to purchase that property and put it in the State Wildlife Conservation fund. I have been very frank and open about trying to reach a settlement with Mr. Cristiano early on, trying to make Lauren -- trying to avoid the litigation with the city. I recently spoke to the city attorney who represents the city on the federal action. I said, "Listen this is something where if people sat down and worked together, we could theoretically work it out," because I kid you not, I will not stop litigating in this case. 79 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 We have one lawsuit filed in federal court; we will file another state action, and this case will go on and on and on. We will all spend a lot of money, when we could sit down and try to work things out. When I make these overtures, everybody thinks this is a sign of weakness. It is not a sign of weakness. I am operating in this game from a sign of strength. I have a lot of substantial evidence in the record. I have a major law firm behind me. And we aren't going anyplace. And maybe the lawyers will make a lot of money on the fact that clients don't sit down and figure how to work things out. You have that choice. The correspondence of Mr. Cristiano is very, very clear in the record, and I would urge you to read that, because his impression was created that we were somehow trying to rip his property off for 100 thousand dollars. That was not the case. His tentative map is stuck, though. He's going to have a lot of trouble selling that property, because I'll tell you, there is nobody that is going to come along and develop that property that doesn't know they have to deal with us. This time we will know what's going on. 80 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 We didn't know. If I had known before May 23rd, I 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 that 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 hearing. I would urge you to do the following: Close the record. Take the evidence this evening. If you do not close the record, we will be out there 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. You were the ones that wanted the hearing on August the 20th. We prepared for this hearing. We would like to close the record. If you need to take it under submission, if you need to get a second opinion -- I would urge you to get a second opinion. This is an important decision for the city, not only in terms of the legal fees, which your city attorney will tell you, work my way, not his way, in the event I prevail on the civil rights action on the environmental case, but it's a liability issue. 81 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 You're going to be the one -- if we're right and you're not and the levee goes down and these houses come up -- which I've got to tell you it's almost hypothetical at this time -- if it were to happen, you're the ones that get sued. We, the taxpayers, are the ones who end up having to pay these costs. It's worth spending some money to get a second opinion. It is a big issue. These tentative maps, the impact of CEQA on these tentative maps -- you're not the only city in the state that's dealing with it. Redlands has old tentative maps. They don't have sewer hookups any longer. Cities in Northern California, a big issue. Just like when you get cancer, you have to go to a second doctor to make sure you're making the right decision before you go into surgery. You can close the record this evening and you can decide and call another hearing where you discuss the issues and make your ruling, but you can get more input before you make your decision. It's the best thing for you politically. These are the people who vote in your city. They have stood up and said this is a project that has trouble. They have stood up and said we will stand behind the people who are opposing this project. 82 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 Our citizens deserve that. And it's not asking a lot. And I'm sorry, with all due respect to your lawyer, I would say it if it were anybody else sitting up there, take a look at the issues. Mr. Markman knows that the design review hearing that was before the City of Orange on Wal-Mart was couched almost identically to this. In that instance the city council sort of wanted to hear a lot of additional stuff. They didn't limit it to design review. I got to tell you, I have the transcript, and, you know, it's easy to give advice, depending on what you think people want to hear. I do it a lot myself. Get a second opinion. So in closing I want to say the law requires you to look at the substantial evidence. There's all the statutes in case law out there for you to look at the changed circumstances. Nobody can get around that 7.5 changed circumstance. The experts, the people Lauren thought were good, you just can't do it. It's a real issue. It's not something we're making up because we're worried about the $270,000 homes, or however much Mr. Allday can get for this today or tomorrow. It is the key issue that the debris basin and whether that debris basin is safe. I know Leeona Klippstein from the Spirit 83 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 of the Sage will testify about a lot of the environmental issues. They are the key issues for her. For most of the people on the CURE -- and Leeona is on our board -- the issue is the levee. Somebody told me to say -- I have to say it in the immortal words of Laurence Olivia in "Marathon Man," "You have to ask yourself is it safe?" And if you want to. live beneath the levee and you want your children to live beneath that levee when it's gone, then you make the decision. If you think about it and think about the risk, what it would mean to your family in an earthquake, what it would mean to you living on that development, if that development is built, given the fact that it's so close to the earthquake fault -- and let me tell you, Rancho Cucamonga has allowed a lot of developments on the earthquake fault, which we have now discovered because we have had to spend so much time -- I think the city needs to really start thinking about its planning issues. All that land up there is very, very dangerous land to be building on. If you don't start taking a really close look -- we have opened up a big can of worms here. The next development that comes into the city, you're going to have people who are a 84 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 lot wiser about the hydrology and the earthquake issues, and you really have to start taking a look at things. I would be happy to answer questions. It's too bad it can't be like federal court, where I make an argument, and you turn to the other lawyer and you say what does he think about it? I would love to hear what Mr. Lauren thinks about the changed circumstances, because I've been hearing, "You can't listen to that. This is design review." The example I gave -- and I'll use it in closing, if you had approved Chernobyl in 1990, and it didn't get built in 1995 or '96 -- that big earthquake fault underneath Chernobyl -- and you say, well I could only decide whether it was going to be pink or blue or how tall it's going to be, that is ridiculous. Your own general Health and Safety Ordinance, which requires that you protect your citizens, CEQA requires of you, the changed circumstances. You have all of the authority in the world to step back and say, wait a second. There's something new here. We cannot approve a substantially dangerous project without taking a closer look. We're not asking you to disapprove the project. We're asking you to review an environmental 85 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impact report. It should have been done in 1990. The planning staff should be embarrassed about that Negative Declaration. There is no way in the world this project deserves the Negative Declaration. I can't challenge that now, but I can ask you to look at those changed circumstances and consider them and consider them carefully. Thank you very much. MAYOR ALEXANDER: I would ask -- since she has covered a lot of information, I will say it again, can we attempt to refrain from repetition on what has been stated already? MR. SHEAHAN: Good evening. My name is Tom Sheahan. I'm the principal hydrogeologist for Dames and Moore in Ontario, California. Some things I'm not. I'm not a resident in this area. I'm not a party to this action in any way, and I have no interest in this. I have been asked on behalf of CURE to evaluate some data and to provide some professional opinions. The basis for my being able to do that, I'm a licensed professional in California. I'm a registered geologist, a registered geophysicist, among other things. This is the kind of work I do in evaluating these kinds of projects. I reviewed 86 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 documents. I've talked with people. familiarized myself with the site. levee, and I have walked the area. opinions. I have I have walked the I have formed some And I'm going to make this as brief as I can, but I think it's important to state my opinion. You'll find my declaration, I believe, attached to one of the back of the documents that you have. I'm going to do this as quickly as I can, but there are some important points I would like to bring out. I would like to have you hear it from me in person. First, removal of this levee provides a significant reduction in the safety of the property and the residents that have been below that levee. That's an important point. The levee and the swale are an effective device, an existing effective device, for controlling flood and debris in the area. They have withstood floods in the past. I don't know if you can see this easily. It is -- here's the levee. This is the area of proposed development. You can see traces on here where the 1969 flood came down. And you can see that they stop at the levee. All the water, all the debris, all the boulders, and we're talking about large amounts of debris, were stopped by this levee. 87 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 This small trace of water that came through here is a little part that came through the breach. And on that point, I think, this demonstrates, as well anything, the fact that the argument that there's a 200-foot breach in a several thousand foot-long levee is of little or no consequence. Now, I think the removal is particularly not warranted because of changed conditions. You have heard many of them already. I'm going to talk about a few of them. I'm not going to reiterate them. I'm going to try to elaborate a little on some of these. During some mapping that my firm did in 1987 -- I believe this was 1987 data -- this is the area. Again, here's the levee, here's the debris basin in this area. They identified two landslides. I didn't go up and do this. Other geologists went up and found these landslides. This is showing the red as granite; the blue is medisediments -- they're heavy, hard rocks, but are medisediments; the yellow shades are alluvium up in the area. I have tried to summarize the information on another sheet -- this is black and white. It comes up in color up there -- to show, in my opinion, the potential for landslide movement in 88 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 the area, if landslides move. After some discussions I had this afternoon with Mr. James at your office, I realize it is important for you to not think in terms of landslides as water flows. Landslides are not water flows; they are material flows. You have seen the volcano flows that have come down and wiped out entire communities. It's that type of flow that we're talking about from landslides. Landslides are materials. They are sitting up on steep slopes right now and they're loose. They are separated from the native rock and they're hanging, if you will, on the side of the hill. Potential damage is tremendous from these. The smaller one of these, estimated being at only ten feet deep, which is probably about one-fifth of its maximum depth, turns out to be close to a 100 thousand cubic yards of material. The landslide will sit there until something shakes it loose, either an earthquake or a rainstorm -- not a flood event -- but a rainstorm, a nice soaking rain that builds up pressure inside the landslide material that allows the landslide to slide down. We're not talking about a flood event. We're talking about a material movement. What this 89 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 shows is my rough estimate, at this point, the direction of migration of a landslide. It would come directly down the slope picking up energy, and by the time it hits the bottom, it wouldn't care what was in front of it. It would continue to move, generally, in this direction. What it would encounter first is the spillway coming from the debris basin. If we have 90,000 yards of material coming from the hill, and if it hits the spillway, even over this zone, which is about 1,000 feet, that spillway will only take about 5,000 yards. That leaves about 85,000 cubic yards of material that's going to come over that spillway. Secondly, if this happens during a rainstorm, water coming down the spillway, that spillway is no longer going to be able to take that rain water and carry it down through the channel. The rain water is going to come directly down through this area. The only protection that the residents below this levee have is the levee. As I mentioned, the levee is a viable, working, protective flood control device right now. Incidentally, I was pleased in reading Dr. David Williams' declaration that he concurs in my 90 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 assessment of the landslide issue. You heard Malissa talk about earthquakes. Well, first of all, the landslide issue is a changed condition. These -- although Dames and Moore knew about them, they were not taking them into consideration in 1990 when this project was originally looked at. A second changed condition is the earthquake magnitude. This line on this map shows the location of the Cucamonga fault. You can see that it goes almost directly under the existing debris basin. More recent studies also confirmed in the declaration that you have from Dr. Henyey indicates that the potential earthquake on this fault is about 7.5 magnitude. That's based on recent information developed in 1996. New information; information that was not available in 1990. Another -- I think you'll see this better in Dr. Williams' declaration -- the design criteria for debris basins is different today than it was at the time that this debris basin was put in. It came about as a result of experience. In Glendora there were debris basins that failed. I can't recall exactly the year, but I know in 1990 they changed the criteria, made the criteria more stringent. 91 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 Based on that, if you were to build a debris basin here today, you would not build that one. You would build one that is more capable than the one we have. So to assume that the debris basin is there and that it provides adequate protection is incorrect. And we know that now. We did not know that in 1990. That's a changed condition. On a separate issue, I reviewed some of the work by a group called the RMA Group, consultants to Lauren Development, that did an evaluation, a so-called evaluation of comparison between the proposed birm and trapezoidal channel that is to be proposed to be put in at the north end of the property, a substitute for the existing levee and swale. I found many discrepancies. It's an apple-to-oranges comparison. I discussed some of these in my declaration. I won't dwell on them now. What that comparison does is to make the safety factor for the levee go down, and make the safety factor for the proposed structure go up. What's more important, though, just in considering the safety factor proposed for this proposed trapezoidal channel and the small birm that goes with it, the best safety factor, the most critical failure safety factor is 1.4. I believe 1.5 is the minimum. I don't know 92 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 what the city uses for that, but 1.5 is what our company, our geotechnical engineers, considers as a minimum safety factor. I'm concerned that even at best what is being proposed has technical problems and has not been reviewed or considered. Secondly, the idea of this trapezoidal channel being proposed at the north end of this property being a replacement for the levee, I find ludicrous. I couldn't believe the dimensions of the trapezoidal channel had been reported. I had not seen the diagram. I went by the city's office today to look at them, and sure enough -- I just sketched this out -- you can see on my diagram what ten feet looks like in horizontal and ten feet in vertical view. This is my rendition of myself. I'm a lot thinner in the diagram than I'm here. I am six-feet tall. This trapezoidal channel is not a major structure. It's a 3-foot-deep, by 6-foot-wide-at-the-bottom concrete channel. And to claim that it is going to replace a 30 foot high levee -- my paper wasn't big enough to draw the cross section of the levee. It would go off this page. A 30 foot high levee is what we have right now. To replace it with a 3-foot deep channel, I find 93 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 ludicrous. I asked Mr. James today if he saw this to be equivalent to the existing levee, and he said no. It's not an equivalent thing. One other point. This area up in this zone, above the levee, below the debris basin, is some of the most permeable material known to man; course gravel, sand, boulders, cobbles, water in that area percolates immediately into the groundwater basin. The water that normally comes down Deer Creek is the best quality water in the world, mountain streamwater, excellent quality. You can buy it at $2.50 in the store. This is the kind of water that would normally recharge this area. My understanding is that if the levee is removed and if this project goes in, they will no longer be able to release water for recharge in that area. This is not an insignificant recharge area. This is a little difficult to see. Here's approximately where the levee is. Here's approximately where the debris basin is. These shaded areas are not just recharge areas, but according to the legend, these are recharge areas with the capacity greater than 50 cubic feet per second. major recharge areas in this land. These are 94 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 Now, if recharge doesn't occur here, with the reduction in Colorado River water being made available in California, the water users in this area are going to end up having to pay more for water and will be getting a poorer quality water as a result. It's a problem. It is also a changed condition. Let me just say that because of the changed conditions, in a nutshell, landslides, earthquakes, the design criteria for the debris basin, the lack of recharge in the future, and what I would call incomplete, if not erroneous engineering analysis, the ones that I have seen, I would strongly encourage you to consider looking at a full environmental impact report before going forward with this project. That is my professional opinion. And if you have questions, I'll be happy to answer them. MAYOR ALEXANDER: Questions? Is there anybody else that would like MR. ANGEL: Good evening, Mr. Mayor and members of the council. My name is Bill Angel. I live in Rancho Cucamonga. I am also a custom home builder. I pretty much make my living engaged in this. I have been building in the City of Rancho 95 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 Cucamonga since 1984. I build, basically, custom homes. And I have processed many plans through the City of Rancho Cucamonga. In fact, I have processed more single family custom homes through the city's design review process and specifically the Hillside Ordinance, since it was adopted in 1990, than any other builder. I'm referring to custom homes. I came here, specifically, as Tom mentioned, to talk about the problems I have where the designs are inconsistent with the Hillside Ordinance, which is the design review, the matter you have before you. However, Malissa has asked me to speak a little bit about the general plan issues. Back in 1990 when the tract was approved, I went through the files, and I could not find any specific reference to the city's general plan. In the back of the folders that you have, there are five maps. And I'll show you the -- these are the city's general plans. This is the City of Rancho Cucamonga's open space plan. This is Haven Avenue right here. This shape of the property, right here, is Haven RC-5; the colored area is the proposed project. You can see, probably, a little bit on 96 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your close-up maps that this squiggly line, up here, this hatched line, runs in this whole area, is the designated Flood Control Land and Utility Transportation Manual. In addition to this designation on that property, this designation here is called the streamside woodland and water recharge area. I had a local company, Riverside Blueprint, take this map which is drawn at this scale down here, and correspond that with the existing -- this is that section of the map. This is Haven Avenue. This is the city limit boundary. This is the existing project. This is the proposed project that's going to be going along the project. The scales on both these maps have been matched. And you can see that the squiggly lines -- although it doesn't follow exactly -- again, the general plan is more of a general area. You can clearly see that this northern section, because the levee was there, and this is where the levee runs, was denoted streams and woodland for that particular purpose. You can see the flood control channel coming here. This isn't exactly to scale, but you can see the intent. In addition, the other maps that you 97 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 have, which include the water recharge map, which Mr. Sheahan just showed you a portion of, this is the City of Rancho Cucamonga's Natural Resources Map. This is the lower portion of that page. The project on top of that -- you can see that it was clear by these dotted lines that this was intended to be a major recharge area, as Mr. Sheahan pointed out. In addition, the city's general plan also has had a Flood Control Map, which is provided for you. On top of the Flood Control Map, you can see that this is the existing levee. This is the approximate locations of the different channels that are serving us right now. This is the levee they're proposing to remove. This is the city's General Plan Land Use Map, figure 31. You can see that back when this plan was adopted, they showed the provision for this border and the curve, right here, where the levee would be. So the maps are all consistent. It's very clear, in my opinion, that this property in the general plan was supposed to be open space. Now, the City of Rancho Cucamonga, since the adoption of the general plan, has made four general plan amendments to the general plan. This is 98 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 from the city's log, copy 8902, I believe it is, flood control to medium density; 8902 flood control to civic community. 8704 was flood control to low-medium. This was the southwest corner of Banyon and Milliken. These properties all have the same general plan designation, and those designations were removed by a general plan amendment. The resolution numbers are in the record. And I think back in 1990 when this project was originally approved, due to an oversight, I believe that the staff may have not turned to the general plan and seen that this property was located in a sensitive area. When I reviewed the file, I didn't see any mention that the property would even be close to it. But there's no mention, whatsoever, in the general plan. All the resolutions, as you know, say that the plan is consistent with the general plan. And, again, I'm not an attorney. I had a short meeting with Mr. Markman today. And, again, entitled to his opinion. I think Mr. Markman is And, again, I'm not an attorney, but he was there when this project was approved in 1990. I can see why he would back it. But I think that the city should maybe get a second 99 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 opinion on that, because I think a general plan amendment is required. In fact, one of the general plan amendments that was done, 8902, was the Rancho Cucamonga Fire Station on Banyon, right there near Milliken, on the north side of the street. That had the same general plan designation of this property. And a general plan amendment was done. One of the things Mr. Allday had mentioned back in 1990 -- and, again, I've been involved since the project was built in '84 and '85, and I remember when this tract came before the Planning Commission to get approved. The residents opposed the project, and there was litigation and there was a settlement. However, we always assumed that the general plan for this property was for two homes to the acre. So we did our best to create a design that would be compatible with our neighborhood. At that time Brock Homes was processing the map. We didn't know that this property had a general plan designation of open space. And we would not have given support to the project had we known that. That's a very big changed circumstance that the City Council should take into effect. 100 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 But what I mainly came here to talk about, what my field of so-called expertise is, is the design issues, which I have a few of them, but I'll make them really brief. Since 1984 I have worked with the City of Rancho Cucamonga and on many, many projects, and the staff is excellent. And I concur as far as that goes. The design review issue, which is really the issue that's before you, is the hillside, number one. This ties into what I was just talking about. The first page of the Hillside Ordinance -- I brought this with me, the first statement, right here. I'll read it to you quickly. "Provide guidelines and standards for developing hillside areas to minimize the adverse impacts on grading and to promote the goals, objectives of the City of Rancho Cucamonga's general plan of open space." That's very important. It's to promote the City of Rancho Cucamonga's goals and objectives to the general plan of open space conservation. It continues on with the environment and being consistent with existing vegetation. Existing vegetation, wildlife, swales and slopes. Those slopes on the levee are existing. And to preserve natural 101 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 topography. The action that's before you is design review, which relates specifically to the Hillside Ordinance, as Mr. Allday said. The Hillside Ordinance refers you back to the general planning that says that you must find existence between that and open space vegetation. In the open space plan in the second paragraph -- it says flood control land, which is part of in addition to the streamside woodland; unlike agriculture and private land, these will not be developed. So the general plan is definitely required in this instance. The other design review technical issue I would like to bring up is Section 17.24030. It's a section in the Hillside Ordinance that requires that the developer provide a natural features map, so that the staff can readily see the location of federally recognized blue line and streams, existing vegetation. The staff can make a decision based on those things. When I reviewed the file, I did not see that. Also Section 17.24050 of the Hillside Ordinance, again, relating directly to design review says that the developer must show existing slopes on the property that exceeds 30 percent. There are 102 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 specific guidelines in the Hillside Ordinance that say if the existing slopes exceed 30 percent, you must do mitigating measures. These are things that I have to deal with on every project that I process in the City of Rancho Cucamonga. In fact, I'm building a home right now on Hillside Avenue that has this condition on it. I think it came before you, maybe to the Planning Commission, where there were existing slopes exceeding 30 percent. According to the Hillside Ordinance, those slopes are not allowed to be developed. In addition to the slopes that exceed 30 percent, there are also natural contours on the property that exceed 30 percent. I was in Dan James's office today, and we looked at the maps that were done in 1987 and in 1989. And we did verify that there are existing isolated sections, especially along those blue line streams that we were referring to before that exceeded 30 percent. Developers do mitigating measures in the detailed site plan to address these issues. Existing water courses on the site, Section 17.24060 on Number 2. Again, this is information that you may want to review later. It 103 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 says they must be mitigated against. In fact, the Hillside Ordinance shows this picture. It shows the stream bed and natural walks and things like that. According to the Hillside Ordinance, all lots shall have the building individually processed. Every one of my custom homes, each home, each lot, I show how it fits within that envelope. The building envelope I'm referring to, Tom touched on it slightly. This is the Hillside Ordinance, the developer. As you can see, this is supposed to be showing a line like this. The house is supposed to fit within this envelope. And the intent of the 45-degree angle slope is to get some terracing to the house to conform to the hillside. The plans the developer has proposed -- and, again, Tom mentioned it earlier -- the top floors hang over, there's vertical massing. This is on Page 24. See, it's up here, it says, "Do this: Stagar the house with the hill like this, not this." Two of the applicant's floor plans do that. Vertical elements -- Tom touched a little bit on it. I just want to elaborate a little more, because this is a design review issue. MAYOR ALEXANDER: While you're looking at it, may I ask if the design review that when through the 104 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 commission -- did it go through? MR. ANGEL: Yes, it did. I would like to point out that there was so much testimony. And like tonight, I didn't bring up these issues. But they were really bombarded with everything, and I don't think they were really -- because it really -- you know how everybody starts talking about things, design wasn't even brought up. These issues that I brought up, they didn't really ask about it. As you know there's so much controversy on this issue. It was sort of overpowering, the whole thing. They said, well, you know, this is going to be approved anyway. I think they sort of had their minds made up. I'm not sure. I'm just guessing. This is the elevation right there. It's kind of important. up to the cable end. This is a vertical line straight Even though their floors are in-step with the land, the basic house, itself, doesn't. This area that you see back here is the garage. You see on that floor plan right there? It's in the lower right-hand corner. The garage sits way in the back, like 60, 70 feet. It's depressed way back. The front of the house that you see, where I'm 105 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 showing right here, you're seeing basically the box. The intent of the Hillside Ordinance was to get the houses squared out, not to create boxes. This is almost like a townhome. It's just straight up, down, across. These were issues that I've dealt with in the past. This floor plan is the same way. I can see where this would sometime be a necessary floor plan. But they should maybe bring this garage out further to hide that, get the house to flow with the land a little more. That's what all my customers who have had to build homes up there have had to contend with and go through this long design review process in the past. The only other issue that I have -- that's the end of my presentation on the Hillside Ordinance -- but the only other issue that I thought might be pertinent, when you're looking at this general plan issue, the -- I'm sorry. My understanding is that the property is zoned VL, the overlay. But the state law requires -- I don't know if it's a statute or whatever -- but it's in the general plan, and I marked it. It's right here, Section 66567. I guess it's the Subdivision Map Act requires that a subdivision map may not be approved 106 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 unless it is consistent with the open space plan. This is coming from the City of Rancho Cucamonga's general plan. So I think a general plan amendment is definitely warranted in this case, if nothing else. And that can be related to the design review issue, because in the Hillside Ordinance it specifically refers to the general plan. Thank you very much. MAYOR ALEXANDER: How many more people wish to provide testimony tonight? five, six. One, two, three, four, Out of courtesy to everybody here, can we try to roll this along? We're going to be here until one o'clock in the morning. MS. KLIPPSTEIN: My name is Leeona Klippstein. I'm conservation director of the Spirit of the Sage Council and a board member of CURE. And I'm also a cofounder of the Natural Endangered Species Network. And some of us know each other. There are some of the same city councilmembers since we began our Council for Spirit of the Sage in 1990, seven years' now. And to begin with I'd like to say what is to acknowledge in this community. As I look back at 1990, I sure wish Malissa McKieth was around then in 107 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 this community. She could have come forward with many of the same concerns that we expressed back then and brought up this research to bring forth this new information that is of significance. It's really -- one of the benefits that I found working as an organizer and an activist in protecting our state's natural heritage is meeting so many great citizens that come forward and become part of the government process. And that's really happened here in this community. The Sage Council -- has the City Council been able to review the documents from the earlier Planning Commission meetings so I don't have to reiterate? MAYOR ALEXANDER: I think we probably reviewed as much as we got early on. MS. KLIPPSTEIN: All right. So I won't go over things that have been submitted. But I would like to bring some attention to some other information. First of all, we believe that the biological significance of the project site was misrepresented in 1990, along with the cultural significance. That misrepresentation is fraudulent, because if the project proponent, Brock Homes, had 108 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 looked into the California natural diversity database, they would have seen that this planned community was the high priority, and they wouldn't have marked that little box that said "no," as far as significant impacts to biological resources. The same as if they had checked the archives at the county museum and U.C. Riverside. They would have found that there is cultural significance in the area of Cucamonga as being the village of the Gabriellino Shoshone Nation. I have to say, too, that with Malissa McKieth and at the other offices there was a list of our comments that we were going to submit that got lost. So during the hearings, I have had to try to remember what we were going to submit. And tonight we're going to be submitting it in handwriting. Please forgive us. We usually like to be much more professional than this. We believe that the design of the project and the design is not compatible with the surrounding environment or the city's general plan. We also believe that the city will be in violation of the Natural Community's Conservation Plan Act and the San Bernardino Valleywide Habitat Conservation Planning Memorandum of Understanding, CEQA, CESA, and 109 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 the Plan Protection Map and other applicable public resources code. We believe that the city does not have to consider whether the project and design are in compliance -- does have to consider. I'm sorry. And more significantly it's not in compliance with Sections 2.4, 2.5, ~.7, 2.8, and 379. To go over that more significantly, Section 24, Public Facilities, says that project and design should be consistent with the general plan. Quote, "Set aside sufficient natural and historic areas for purposes of teaching environmental and historic value and provide equipment and facilities to support these programs," end of quote. I don't know. I've never even heard of the city even having an environmental program or any type of a cultural program. So I didn't think that this project design even fits in with such a type of program with the general plan that the city is supposed to have. But in Section 25, Community Design, quote, "Develop elements of form and landscape in a manner that is harmonious with elements visually." In particular, "Provide an open space network that relates to the natural context." 110 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Well, looking at the project design, it does not fit into the natural landscape. It cuts into the natural landscape. From the video that was shown, it was quite obvious that removing the levee really shows that this project or the project design is inconsistent with what it says here of the landscape, of the surrounding area and physical contacts. And also the information that was brought forward about the open space and the riparian woodland areas. Section 2.5 then continues, quote, "Protect views of the mountains and valleys to enhance their role as a reference point," end of quote. Again, if this project design goes through, it wouldn't be consistent with this goal and objective of the general plan. Continue, quote, "Protect and enhance the character of creeks and channels," end of quote. I don't see how this project or the project plan protects or enhances the character. It does quite the opposite from what we've been shown here tonight. Another quote, "Maintain and reestablish, where feasible, natural vegetation in the community in the landscape." Even looking at these drawings, the drawings up here, the projects don't show any natural 111 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 vegetation from the surrounding area that would blend in. So, again, the project and the project design is not consistent with the general plan. In Section 2.7, Natural Resources Open Space. I didn't even bother to get the quotes of the various goals and objectives because it doesn't meet any of them. We believe that this project is actually within an area that is designated open space. Because the City Council asked for us not to be repetitive, I'm going to skip this section. The speaker before me quite eloquently explained this. We also believe that the City is deficient in open space currently. The jurisdiction may be utilized to fulfill the city's needed open space requirement. Furthermore, the city fails to recognize that the currently undeveloped land may be developed in the future, which you have right now in your general plan. Section 2.8 has -- again, I believe that that has already been outlined very well. And Section 379, Creeks and Channels. As the previous speaker did show, the city has identified that this is a riparian and a woodland area; obviously, right in the middle of Deer Creek with the 112 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 channels around it too, that it's not consistent with the general plan either. Quote, "To provide visual consistent with the surrounding environment. Creeks and open spaces should be landscaped to represent the natural riparian character of the foothills and canyons where feasible. Modifications for the climate differences between city channels and foothill canyons should be made." Again, this project and the project design does not fulfill the general plan requirements here. I was going to discuss in more detail cultural resources and concerns over the past seven years, whether in this city or in the county, more in the local newspaper. I think it's well-known of the cultural significance of Cucamonga, and also of the sage community, that it's a sacred and medicinal plant; that the state has recognized it as the habitat of the indigenous people in the area. Lisa, from the California Indian Legal Services, will be speaking more specifically on the concerns of the Shoshone Gabriellino Nation. We ask that the city review the conservation guidelines for the Natural Community Conservation Program, the NCCP Act, Section 4-D, 113 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 special rules of the California gnatcatchers, the Endangered Species Act. MAYOR ALEXANDER: I'm sorry. I really need to ask this: We have gotten so far off the design review right now. How close are we to -- MR. MARKMAN: As I informed the Mayor, I think we should take the input. Actually, I agree with counsel who has the two-step process here. And one is identifying whether there is substantial evidence to support the CEQA review. Because of the changed circumstance issue, I think you need to hear all of the process, all of the material coming in. And you will hear rebuttals to it, and you will hear the city's technical staff's position on that. And after you get past that point, the next question is design review. MAYOR ALEXANDER: The reason I asked that is we were informed early on -- we were told that, essentially, we're looking at design review. MR. MARKMAN: You are. They are presenting the argument. I would not suggest you cut off the input. I think all the input should come in. I'm not suggesting by saying that you will end up judging it to be relevant and necessarily 114 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 decide that you ought to send this out for CEQA review. But if you don't hear it, you can't make the initial decision. MAYOR ALEXANDER: MS. KLIPPSTEIN: Okay. Thank you. I think that's a good point, because I would like to clarify the reason why I'm bringing up these issues is because, although we have made some comments here that are very relevant to the project design, we feel that these others are also in the process and the decision making that may go on here tonight. I think that the city should consider it may be opening itself up to a legal challenge to the general plan, or to the MSHCPMOU that was signed by the county. And that's what I'm about to explain with the Sage Council, if the city goes forward and approves this project, you may be opening yourselves up for further litigation. MAYOR ALEXANDER: We're opening ourselves up for legal litigation no matter which way we MR. MARKMAN: on that. MS. KLIPPSTEIN: You don't need a second opinion What I'm putting up here is Page 18 from the conservation guidelines from the Natural Community's Conservation Plan Program. As I 115 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 was saying, although the city has not enrolled in the NCCP, the city is party to the Multiple Species Habitat Conservation Plan MOU. The area is mapped by the state as high quality in the NCCP, this up here in subregion 13.0 in San Bernardino all the way across the foothills, basically. Here is the 10 Freeway up here, so probably north of Baseline. This mapping was also included for the MSHCP of the delineation of the plan area. So although the city did not enroll in the NCCP program, the county did recognize this area as being a high quality significance in the planning process for the MSHCP and the MOU. MR. MARKMAN: Is this a logical break point? MAYOR ALEXANDER: We have to give the lady a break. MS. KLIPPSTEIN: question. MAYOR ALEXANDER: you to stop? MS. KLIPPSTEIN: at this point. (Recess.) MAYOR ALEXANDER: I don't understand the Is this a natural break for If you want to, I can pause We'll go ahead and continue. 116 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 It's 20 minutes after 11:00. And another hour we'll give our court reporter another break. MR. MARKMAN: 40-minute break. MS. KLIPPSTEIN: I think we're down to the Going back to the map from the conservation guidelines, from 13.0, it's also important for the City Council to recognize why there's a point 0. You might notice in other areas there is a point 1, or point 2, or point 4, Orange County. The decimal point designates whether that area should be planned as a whole or as separately. For example, in Orange County where they're doing their planning process, they had central and coastal, they had a matrix, they had a subregional area. For San Bernardino, the scientists that were hired by the state, identified that this whole area needs to be planned for conservation as one whole. That's why you see the point zero. So, of course, that's what leads us to also see that when the county and the city entered into MSHCPMOUs, that the state and federal agencies' also let the county and the city know that this whole area needed to be looked at as one, join. and all the cities Now, of course, this was contracted after 117 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the planning -- after the Lauren project. And, again, the Sage Council would believe that this is new evidence. And that also the MOU, the MSHCPMOU, would supersede the Lauren project. And I'll explain why: When the state and federal agencies map remaining habitat areas in San Bernardino cities and counties and other Southern California jurisdictions, they mapped all remaining habitat, whether previously approved developments occurred within the area or not. The state and federal agencies also identified that there should be no more than a five-percent loss of habitat. In the interim both plans were being developed. The Sage Council has been opposed to the NCCP program and, overall, how the official services implemented habitat conservation plans in Section 10. We would like the city to recognize, also, why we're opposed to it. This is -- part of the reason is when we went into this whole regional mapping of Southern California, that there was no research and studies into what were the habitat areas that were already approved for development. If the state and the federal agencies had done that, they would have found that it added up to a 118 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 whole lot more than five-percent interim. However, we believe that this was part of the scheme of the NCCP program. Because if they eliminated all the approved developed areas, there is no way the NCCP program would have been adopted as a special rule. The gnatcatcher would not have been threatened. It would have been listed as endangered and it would have been a moratorium also; something that hasn't been brought up or really looked at, but it's something that we're aware of and we think you should look at. The county is the lead agency, lead local agency, in the MSHCPMOU, and they passed a resolution November 1st, 1994. Although the cities didn't sign on to the MOU until later, we believe that if you were to add up all of the habitat losses that have occurred since November 1st, 1994, or even since 1996, that alone would add up to more than a five-percent take within this subregion, Area 13. We've also found we are the only conservation organization in Southern California that has been keeping a database on all the interim take in all five counties. We keep track of how much habitat has been taken, also, how many gnatcatchers have been taken. In the Special 40 Rule for California 119 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gnatcatcher, where the federal government adopted the state program, they also said that there could only be a five-percent loss of the remaining habitat areas that were mapped, and it also said that no more than five percent of the remaining population of the California gnatcatcher could be taken. The evidence that we have -- and that evidence that comes from Fish and Wildlife Services through the FEMA Information Act shows that over 800 California gnatcatchers have been taken. So right now we, in the organization, have been assessing how to go in and stop and call for a moratorium. I think just recognizing that there was this failure to map all of the development areas that had already been approved, would certainly show the courts that there's more than a five-percent take, and the gnatcatcher should be listed as endangered. And the NCCP program should be stopped. Now, the implications of doing something like that, however, if the Sage Council did that -- and you might be familiar that we did litigate on the No Surprise Policy on Endangered Species Act -- but if we did sue on the 40 Rule, or even on the MSHCPMOU, the type of reaction that would go, not only from this county and the state, but into the halls of congress, 120 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 would be used as evidence of why the bill should not go forward, and why the NCCP program should not be used to inflict the Federal Endangered Species Act. If we do that that would certainly bring light to the City of Rancho Cucamonga why the city would support the Lauren project and ignore the MOU that it has gone into. It would also, I think, really shoot the private property rights movement in the foot and the state and county movement that we want local control and voluntary programs. It would shoot it in the foot because it would show that when it got down to the local cities and the local counties, that they weren't willing to abide by the agreement that they entered into. I think that's something to consider. I think even the project proponent's attorneys should consider that since they represent a lot of development in Southern California, that this would definitely be used as ammunition in congress. I want to bring to your attention the MOU, 3.7, Conservation Strategies. I'll read this: "The plan shall maximize the use of appropriate publicly owned land, conspire with legally mandated conservation measures, and provide incentive for conservation of private land." Those type of incentives are land 121 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 acquisition, transfers, land swap, mitigation bank, et cetera. The City has an opportunity, because it is party to this agreement, to go into negotiations with Lauren and say, "Look, we would like to do this." Either acquire it, either do a land swap, some other city property somewhere where it's appropriate, where it's not coastal sage scrub, where it won't upset the species of concern, or to give tax incentives. I'm not real big on litigation because there's still a loss, and I really don't find that conservation if you're chipping away piece by piece. It's the Sage Council's position and other grass roots conservation groups that such a reform is inadequate and that revolution is needed. The revolution that we seek in conservation does not provide incentives, or what is referred to as carrots instead of the regulatory stip. We believe that when industry sharks go entirely for the take, it is absurd to think that throwing some carrots is going to stop them from eating the entire body. Again, what's happening here tonight is proof of that. The Lauren project and the city's behavior so far confirms our point that voluntary programs and the new regulation will be taken 122 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 advantage of and abused. Public trust, health and safety, and general welfare are also concerns of the Sage Council. And support resides in Rancho Cucamonga, San Bernardino County, in the State of California. The City is a public trust agency. The natural resources on the project site are city, state, and federal agencies in public trust. This is where the arguments usually arise between private land and the holders. The Sage Council uses the term landholder, rather than owner, because the land is not owned, but the holder of the deed and title have privileges and entitlement. The city, in public trust, makes the decision on the level of entitlement. Presently, the project has been tentatively approved. However, the final project design and vesting is not. The City has the obligation to protect the public trust, health, safety, and general welfare. Lauren project and the design is not in compliance. And it is an obnoxious abuse of the land that clearly threatens the health and safety and general welfare of the local community. And in closing, the Sage Council encourages the city to do the right thing, uphold the 123 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 public trust. We encourage you to uphold the public trust doctrines, public resources code and federal regulations. We encourage you to deny the project design, recognizing changed circumstances, and to take corrective action on the Negative Declaration that was misrepresented. Thank you. MS. OSHIR0: My name is Lisa Oshiro, O-s-h-i-r-o. I'm an attorney with California Indian Legal Services. We're located at 120 West Grand Avenue, Suite 204 in Escondido, California 92025. We represent Chief Yianna Vira Rocha {phonetic), the hereditary chief of the Shoshone Gabriellino Nation. Vira Rocha is unable to be here this evening. And I'm sure her doctors would also have advised her to go home and get some rest at this point. She has not been able to attend past hearings, but Leeona Klippstein has graciously offered testimony concerning the concerns of Vira Rocha and the Shoshone Gabriellino Nation and the Native American communities. Cucamonga is derived from Cucamongnow, a name of the ancestral village and homeland and sacred land of the Shoshone Gabriellino Nation. 124 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Chief Yianna has opposed development projects that destroy these ancestral and sacred land and their various resources. As Leeona Klippstein has mentioned, the white sage is of spiritual, ceremonial, and medicinal significance to the Shoshone Gabriellino Nation. There are also evidences of archeological sites that have been found. There's an Army Corps of Engineers Environmental Impact Statement from 1973 that discloses archaeological sites when they were residing in the Deer Creek Debris Basin. And when they discovered -- five years after that final environmental impact statement -- when they discovered additional cultural resources on that property, they then submitted an updated EIR in 1978, where they addressed these significant adverse impacts to cultural resources in the area that needed to be mitigated. There's also an environmental impact report from 1994 that was written for the Oak Summit project that is in neighboring lands within the boundaries of the County of San Bernardino that also disclosed cultural resources. And those two environmental impact reports place cultural resources to the northwest of 125 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 this current Lauren Development site and to the east. And is there is oral history to support that all of these parcels are part of the historic village of Cucamongnow. Chief Yianna joins in the request that a full environmental impact report be submitted for this matter, because there is a risk of substantial and significant adverse impacts on cultural resources, if not mitigated. In addition, Chief Yianna and the Shoshone Gabriellino Nation would like to know what assurances you have, and what assurances the developer has provided, that it is prepared to comply with federal law under the Native American Grave Protection and Repatriation Act, should they encounter during the grading process cultural resources and human remains. We would like to know what assurances you have; that they will be prepared to comply with federal law. We ask that your planning department and the developer open up a dialogue with Chief Yianna Vera Rocha and the Shoshone Gabriellino Nation and local Native American community's to address their concerns and also to address what will be done when the cultural resources, the ancestral remains of the Shoshone Gabriellino Nation are uncovered, are 126 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 disturbed. We ask that you show reverence for these ancestral remains and these important and vital resources to the Shoshone Gabriellino Nation. Thank you. MAYOR ALEXANDER: Is there any mapping of any burial grounds that have substantially shown that there is sacred ground? MS. OSHIRO: Any mapping of the area is very general because there cannot be public disclosure of the specific sites for fear of some past activities of, I guess, grave robbing and pot hunters. But there are general mappings and general information available at various archeological repositories, one being U.C. Riverside. That information can be readily summoned up. MAYOR ALEXANDER: Thank you. MS. HAWN: My name is Rosanne Hawn. I live at 5087 Granada Court. And I just don't like the houses. MAYOR ALEXANDER: Well, that's pretty honest. MS. FAWN: November 12th of 1990, I wrote you a letter and I gave it to you. There was a letter that was written to you, and it said that the homeowners association supported this project. And the letter was not included in any of your things. 127 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 SO we are rescinding that, because at the time we didn't realize the removal -- we didn't know the significance of the removal of the levee or any of that. So we have rescinded that. We have that letter up there. I might add that the letter was signed by someone -- my name was signed to it, but it is not my signature. And you don't have that letter. You do have the letter that I have just rescinded any support. However, what it said was that we had gotten together and we had concerns about front facing garages. Because up in our neighborhood, we have them tucked in back so you don't see them from the street. We have long driveways. You never see them. We wanted it to be 25 percent. The developers said 40. And we compromised on 33 percent front-facing garages, because we want the garage element out of the front of the house. We think they're ugly. This project has almost every garage facing the street. And I don't care if the garage is 100 feet back; a front-facing garage is a front-facing garage. And you see those doors. There is one plan up there that has nothing but garages in front; one going this way and two are going this way, or visa-versa. All it is is front. You don't see a 128 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 beautiful front door or entry or any of that. They tried to show you what it would look like going one way up the street, but then when you get to the top and come do~n, all you see are garages. Another point I wanted to make in those plans up there, there are a lot of optional features. If you look in the fine print, you'll see that the porte-chere is an optional feature. If you take that away -- and I think Mr. Angel showed what the houses looked like -- it would look like a square box. But in some of them, the fireplaces are optional features, the walls and planters are optional features. I know from the design review and from the Planning Commission that the portal, the walk-under, is an optional feature. They are showing you these plans, and you and they're optional think that's what you're getting, features. Another thing, the square footage -- and I'm not going to belabor it. The square footage of these houses is 3,127 square feet to 4,370 square feet. And I don't know what the mix is. He gave you the chart. You can figure out what the average is. He talked about expandable square footage. He doesn't talk about the expandable square 129 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 footage of the existing homes in Haven View Estates. We all have cathedral ceilings. Maybe there would be some homes in our area that are 10,000 square feet. Don't be deceived by the square footage. Those are optional items. If the buyer chooses not to have optional items put in there -- and a porte-chere, according to Mr. Allday, is $15,000. I don't know how many of those houses are going to have porte-cheres. Another point I would like to make is that if at the end of all this, you can only talk about design issues, then I am requesting as a resident, right now, that you reagendize all of the other issues that you have heard to a future meeting so they can be discussed, and so that you can vote on them. Because I think there's a lot of really important ones, and that would be a way that you could certainly discuss this. I think that's it, except one of you made a comment -- you know -- that whichever way it goes, you get the lawsuit. And I just want to say do you want to be in a lawsuit with the residents or with an out-of-town developer? Thank you. MS. SAMPSON: Good evening, Councilmembers. My name is Maureen Sampson. I reside in Rancho 130 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 Cucamonga, 1919 Boulder Canyon Road, Deer Creek. We are business owners in Rancho Cucamonga. We took our building to Planning. It took us over a year. We are building a home at 4965 Palato. We have an architect, and it took us a year to design a house with him. One of the things I asked for in our split-level upper bedroom was part of the floor to come out downstairs. He said that's not allowable. Another thing I wanted was a detached garage, and we had a porte-chere up front. We have had to go through the same design reviews that we feel you're not enforcing at this time. Because as Rosanne had pointed out, much of that is optional features. When this whole process came to life for my husband and I, we had bought our land. We were not made aware of a fault line. We were made aware of the fault line up at sky line, and we elected not to buy property up there because there was a fault line. We bought where we did now thinking that it was a safer project. When we first began hearing about all of this, we were looking at the design review. And being a contractor, it wouldn't be our hearts' desire to have anybody building our home. That's our income. And we looked at the design review, and we thought, 131 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 excuse me, but it doesn't seem like they are having to meet the same standards that we had to meet. That was irritating. But when I heard about the levee being is But those are my concerns, 132 removed, that was it. We moved here in 1966 and we landed in Upland. Through all of the flooding, through the wine barrels coming down on Foothill Boulevard, Red Hill being closed off to its residents, and my sitting home between Euclid and San Antonio, I heard on one of these severe rainstorms that the San Antonio Dam may not hold. We should look at the record and find out when that was made public. That was scary. And so when I think that this dam may not hold and the levee not being there, that's frightening to me. The other thing I would like to say after the Northridge earthquake, all of our freeway overpasses have been made sound. I would think that if we know for a fact that there's a fault line under that dam, then it would be wisdom in having a levee to stop any damage to the homes. If this is only for design review, then I would like to know who do we take our concerns to regarding health and safety? If it isn't the city, it lawyers? I don't know. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and I would like you to consider them. Thank you. MAYOR ALEXANDER: Any questions for Maureen? Who took the next number? MR. ORBONELLO: My name is Lee Orbonello (phonetic). I'll try to make it brief. I have just a few points to make. We're looking at the design review as one of the issues. You look at the various designs that you see there, they all pretty much look alike. If you go through Haven View Estates all the houses look different. It's a custom home community. I think that's inconsistent with what we already have there. The other point I'd like to make is all the changed circumstances that have come to life here. I live right in the flow of the water, here. If that levee doesn't hold, I'm very, very concerned for my family and also for the city. In light of the changed circumstances, if you approve this project and there's some damage, the city could really be sued by any number of homeowners. And at the last Planning Commission meeting, it was brought up that this kind of thing happened before. I think that it was mentioned at the Pales Verdes Estates. They approved development 133 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 there. And when they had all kinds of problems, the city was darn near bankrupted. I think you need to be very, very careful. You need to take a good look at these changed circumstances. Who's going to win? Who's going to lose? Well, the residents are going to be there. Yeah, we're going to sue if the project wins. We're going to get our money back. But it's a very distasteful process. You're going to have attorneys with their law firms that are going to be defending the city. Again, who's going to win? Who's going to lose? You're going to have a developer that will make some money real quick. They'll sell those houses. If there's some damage, they change their name. They're a different corporation. Who's going to fix them? You have seen it before in the city. I think you need to take these points under consideration. You need to look at it as a resident, as if you lived up there. Thank you. MR. ALLDAY: John Allday, Lauren Development. I sit here listening to all the frightful and totally false allegations being made by some very eloquent spokespeople, and, frankly, I sit over there 134 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 being depressed, getting depressed. And I frankly start feeling overmatched. Only when I catch myself and I force myself back into where I think I am, and that is talking about design review, do I regain my confidence that the tact that Lauren Development has taken, the tact of the high road, is still the best course to take in the City of Rancho Cucamonga. If the process of design review was as broad as the opponents have implied, and if presenting to your Council blatantly untruthful statements was proper, and if all the prior approvals, the prior developing, the prior tract map, the prior letters from associations that endorsed the project are to just be ignored as a part of this design review process, then we were in the wrong ballpark. We relied -- since April, when we submitted this project, since last August when we first started this process, and the neighbors when we actually submitted the plans, we relied on your highly professional staff, and we relied on the unanimous approval of the Design Review Committee and the unanimous approval of the Planning Commission to limit the scope of design review to what the city's codes and ordinances say they should be. 135 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 We didn't come here tonight with the intention of reiterating the reams of letters and testimony that have gone through this process since April and have gone through all these Planning Commission hearings. If we had made a mistake in not going over all this again and again, and having all of the information and all the exhibits that we showed the Planning Commission, then we were mistaken. We hope that your council will adhere to the codes and ordinances of the city and judge this project on its own merits as your staff and as your city attorney has advised you, and not be swayed by these eloquent people who talked about everything that has to do with nothing associated with design review. Unfortunately, for legal purposes we have to submit various materials for the record, because we know, as Ms. McKieth has threatened, that there will be additional lawsuits pending. To get this additional information on the record, we have to submit the materials and we have to have our attorney follow me up here. If would you please allow me to have that done, to have him respond to some of the allegations that were made, even though they have nothing to do with design review, he will come up here. 136 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 The one document that I am going to distribute to you is a list of facts pertaining to the levee. Ms. McKieth stated that the levee is -- MR. MARKMAN: Excuse me for one second. What is being passed out? MR. ALLDAY: I am submitting a levee fact sheet. MR. MARKMAN: something. MS. McKIETH: Okay. I saw Jack handed It's actually in the materials that we passed out to the other council people, the response to their fact sheet. I would also like to make -- MR. MARKMAN: What concerns me is a speaker is handing out a document. Counsel, Ms. McKieth, walks up to Jack Lam and starts distributing a document. There is no way I could identify it for the record. Could you please send her documents back. And I'm sure the Mayor will allow her the opportunity to be distributed when these people are through. MS. McKIETH: Could I just give him a copy of the document that we already handed out to the other council, please? MR. MARKMAN: Let's back up and do this: We 137 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 all want a correct record, regardless of what else everybody else wants. And I suggest the city clerk has the complete and official records. So if anybody wants to submit something, it should go to the city clerk. If copies are distributed, they should be distributed at the same time. It's up to Debbie, the city clerk, to make sure that each member of the council has copies of the full record, or access to the full record. I mean that's all we can do. I just want to make sure that there aren't distributions going on and nothing on the record to reflect that distribution. That's really not going to help us unravel. So when you hand out something, sir, I'll identify this one. I don't want to formalize this proceeding. I have a document entitled Levee Fact Sheet. That is 7 pages. And I take it the developer is submitting this, and the city clerk has an original for the record. He has handed this out to the council. As you go through that, if you have more handouts, would you identify them as you distribute them. And Malissa McKieth can do the same thing. MR. ALLDAY: Thank you. I apologize for not 138 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 being more clear. I'm handing out the Levee Fact Sheet, dated August 13th of 1997. Ms. McKieth testified that for 90 percent -- for most of the people the primary concern is the levee. For most of the people here, the issue is the levee, is what she said. For that reason I'm submitting this. We have evaluated the importance of the levee, the significance of the levee, how it has functioned and not functioned over the years, and what its purpose today is. I will not go into it line-by-line, section-by-section. I believe staff has received this and reviewed it. I would like to point out in closing, before our attorney gets up here, that we have responded in the prior testimony at the Planning Commission to the statements made by Mr. Sheahan, the geotechnical consultant hired by CURE. And we responded to them before. And there is nothing he has said tonight that is any different than what he said before. The Planning Commission does not buy his performance, and I hope you will not either. The statements he made are just totally -- he knows the 139 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 location of the fault is not under the debris basin. That is not a fact. The trapezoidal channel that we're proposing is not a replacement of the levee. Showing a picture of little man compared to a channel, compared to a levee, that's totally erroneous. He knows that. The levee was there for a purpose. That purpose is no longer necessary. The trapezoidal channel is only protecting the site from a very small area, up above it 125 acres, compared to over 2,000 acres that the levee ineffectively protected before. The Deer Creek Channel, the Deer Creek Basin, are effective means of controlling flood controls, and the levee is not being replaced by our $300,000 trapezoidal channel. Other than that I would entertain questions, if you have any. I sincerely believe that you will, in making your final determination, hope that you will limit that determination to what the city's codes and ordinances say they should be limited to, and that is, in fact, pertaining to design review. If you have any questions, I'd be glad to answer them. MAYOR ALEXANDER: Questions? Thank you, John. 140 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 MR. ALLDAY: Thank you. MAYOR ALEXANDER: For the record, good morning. It's after twelve o'clock. MR. HARTZELL: Good morning, Mr. Mayor. My name is Andrew Hartzell. I'm with the law firm of Hewitt & McGuire, Irvine, California. We are counsel for the Lauren Development, the project's proponent. I must say that I wasn't actually expecting to talk with you on a Thursday. Well, it's almost difficult to know exactly where to begin. I can see that Ms. McKieth -- they really put on a show here tonight. It seems to now be falling, I guess, upon us to attempt to provide as much clarification for the record as we can do, as one person can do, in the face of a number of people here tonight. I really think that what we got here tonight in front of us is a simple matter, in that the CURE group has been attempting to make out that this process, these issues, to be things that they are not. It has taken on the air -- last couple of weeks, as I have watched this process -- more characterized, with all due respect, as more of a circus than anything that I've seen before in my years of practice. I think I've learned from this process 141 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 that there had been an adage that attorneys at least used to always use: If you have the law on your side, but you don't have defense, you argue the law. If you have the facts on your side, you don't have the law, you argue the facts. And what I have learned in this process in watching the opposition group is if you don't have the law on your side, you don't have the facts on your side, apparently, what you do is you throw up a bunch of scrap metal in the air and see if it will stick. I think I need to bring some order and some sense into this. I will do my humble best to try to do that. I certainly would be happy to entertain any questions at any time. I do apologize for being the last person. I know everyone would like to get home quickly. We will try to facilitate that as best as possible. But we do need to put into the record various pieces of information and make sure that all the councilmembers have had the opportunity to be aware of pertinent facts. So that's basically what my testimony is going to do. There have been some declarations submitted tonight by the CURE group. I must tell you, I have never seen the declarations before. I tried to 142 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of you. see what I could on the screen. Ms. McKieth has not provided our firm or my client with a copy of these before. It is a little bit difficult to say much in the way -- with respect to those particular declarations. I will try to do as best I can regarding that. I do think that -- what I do know and what I have learned through this process in the last three months is when we were made aware of allegations by the Spirit of the Sage Council or the CURE group, when we go to track it down to try to verify whether it was factually correct or not, I always find out that it's not a factual threat. One of my jobs is trying to trace alleged new information and determine its actual nature, whether it really exists, in fact, or not. I'll try to speak to some of those issues tonight to try to clarify things. I do apologize. I'm not as eloquent or flashy as Ms. McKieth, and I'm very tired. I apologize for that. This is not going to be a real smooth presentation. I will try to get through it quickly. There is a design review issue in front And I do believe that that is where the 143 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 council needs to focus. I believe those issues have been flushed out very well in the record before you, before the Planning Commission. And I don't intend to get really into any of those. What I understand CURE to be alleging and Spirit of the Sage is that there is substantial new information of a nature which was not known in 1990 when this Negative Declaration was prepared, and which could not have been known in 1990. That is the CEQA standard they're trying to articulate. So in order to provide you with that information, having done the investigation on each of these points to the best that we can, I have not found that there is substantially new information of a nature which was not known or could not have been known in 1990 when this project was approved. One of the subjects of supposed substantial new information -- and you'll see in a letter that Ms. McKieth provided -- or I should say the CURE group provided -- was an allegation in one of the letters submitted by the CURE organization to the city, that the designation of the area which includes the 23 acre Lauren Development site, the designation of it is S-1 community, G-1 community, that this had occurred very recently. You'll see that term used in 144 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 the correspondence from Ms. McKieth. That was news to me, doing a lot of environmental work that I do. And I went back. And, in fact, someone was able to get the Department of Fish and Game to mention something along the same line of their June 23rd letter to the city that they believe that there was a new designation with regard to the alluvial scrub, a designation very sensitive by the state. And when I asked the Department of Fish and Game, well when was this designation made, because surely they knew in 1990 that there was alluvial scrub out on this site. When was this designation made? And we will be submitting tonight a memo from Mr. Leon Davis of the Department of Fish and Game, noting that the department has found that they designated this area as the sensitive alluvial scrub, S-i, G-1 back in 1985. So the designation was made five years prior to the approval of this project as a designation itself. Now, the fact that it was a sensitive community, to the extent that it's considered sensitive today, was also known back in 1990 to the extent that this would be considered sensitive. But I think it's also worth bearing in 145 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 mind that the nature of the habitat that seems to be an issue is the alluvial fan scrub. It's supposed to be a dynamic community, exposed to flood events of a periodic nature, which will run down through that particular area and take out the sage scrub and replace it, then move to an intermediate stage. With the construction of the Deer Creek Channel Debris Basin, the area, including Lauren Development property, was cut off in natural hydrologic flows. So what will happen there and what we have now -- we have scrub which is not the alluvial sage scrub. This will only become more mature. There is a letter already in the record from the biologist that did the gnatcatching survey. In that letter to the developer and a letter to the department, he also notes that the vegetation on the site and adjacent areas appear to be in a mature state, a mature state of development. The alluvial sage scrub on site is in the intermediate stage. This is due to the fairly recent construction in the Deer Creek retention basin and flood control channel, which had removed the area of its natural hydrologic region. The bottom line is in 1990 this was known, or certainly could have been known, or should have been known, that there was alluvial scrub on the 146 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 site. Nothing has changed dramatically to suggest that it was not a mature alluvial scrub community at the time. It was designated this special designation back in 1985, well-known. It's not a significantly new piece of information. Regarding the MOU that was entered into on the valley-wide center and the Valley-Wide Multiple Species Conservation Program, we had responded to that in some length to the Planning Commission in an earlier June letter, where we included a copy of the actual MOU. And we explained why there are various provisions in the M0U which specifically provide that the city is in no way obligated to go back and relook at environmental issues, biological issues associated with this, or any other approved project, approved prior to the signing of this MOU. I draw your attention to Attachment F in our letter to the Planning Commission of June 27th, 1997. We quote the various relevant provisions of that MOU, noting how it is not designed, the purpose of the M0U is not to have cities go back and look at previously approved projects. That is to be used -- they are allowing the city an option to do planning for new development, sit down with wildlife agencies that the city would 147 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 like to elect, that the developer would like to elect, talk about a new project and 9et any early concerns the agency might have about the project. That is a process that is not applicable to this. Very specifically in three or four sections about the employee hired by an employer -- this MOU simply does not compel the city in any way. It was specifically designed not to require the city to 9o back and read any of those issues. The city may and the county may over time put together a multiple species conservation plan. No such plan exists now. There is no plan to -- from CEQA's perspective -- to take our project and look at this plan. There's no plan there to make that comparison. There's no project concept of a multispecies plan. It really doesn't exist. COUNCILMEMBER CURATAL0: Could you speak just a little louder. MR. HARTZELL: I'm sorry. I would refer you also to the Chaparral Greens Case (phonetic) that came out in the last year and a half on this issue. I would also make mention, briefly, with regard to the description of the MOU in the Department of Fish and Game letter of June 23rd. When I received a copy of that, I was rather amazed of 148 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 the characterization that it could attempt to make. I assume it was made that somehow the department believed that the MOU required the city to 9o back and revisit this project. I have spoken with the chief counsel for the Department of Fish and Game about that statement. There's a letter I'm submitting tonight -- I believe it's already in your record. I want to make sure I have raised some questions about this letter including that issue, because I believe this was to the extent it was interpreted as the department's statement that the MOU required the city to go back and revisit this project. That was incorrect. And we are working to get an actual retraction of that. I believe that counsel for the Department of Fish and Game concurs with that. We still will provide it, because we will continue to work on that clarification. With regard to the issue that has been raised in the past about the California gnatcatcher, we'll be providing documents here in general and pertinent information about that gnatcatcher, which is, again, a nonissue. It is true that the gnatcatcher was listed as a threatened species by the United States 149 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 Fish and Wildlife Services since 1990, of this approval. new information? since the date What could possibly be significant The argument, I suppose, they're trying to make is, well, there are a series of gnatcatchers running around the site. trigger it? Could that The fact is there is no evidence of any gnatcatchers out on the site. Lauren Development has stated to the Planning Commission in the past, and continues to state, that if there were any requirement to get any permit from the Fish and Wildlife Service, they would be happy to do so. What Lauren did do early on is have a gnatcatchers' survey done to make sure that there were no gnatcatchers out on the site. They have a report. That report said that there were four visits. There were no gnatcatchers found. We have been talking with the United States Fish and Wildlife Service trying to clarify some issues raised by CURE as to whether -- what basis they might think that gnatcatchers could even be by the project site that could create an issue. I'll be submitting in the packet tonight several items that relate to that. Let me reiterate, briefly, a letter in 150 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 here. It's rather pertinent. We have been unable to find any evidence of a substantial nature that there are even gnatcatchers in the general vicinity that could even start to create an issue for us. Again, really an issue separate and apart from the city. However, in talking with the service, asking about their earlier June letter, this letter is -- I'm reading from a letter I submitted to Fish and Wildlife Service after a telephone call. My question to the biologist was what would give the service reason to believe that there could be gnatcatchers in the general area of the site? In this letter I note that, "You have informed me that you had the opportunity to discuss the facts surrounding this issue with your biologist and have learned the following: The service statement is based on a single oral report related to the service, a telephone conversation from an unknown individual." The service has no written record of this observation or report. Data on this alleged observation does not exist in service files. The service does not note the identity of the individual who reportedly saw one, or possibly two, gnatcatchers in San Bernardino County. 151 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 The service does not know if this individual was a biologist or what his or her qualifications are, as the service does not know the identity of this individual who made the alleged sighting. Number 5, this information, which the service received via telephone may not have been from the actual observer. It may have been from the individual once or twice removed from the alleged observation. Number 6, the quote, unquote, observation of one gnatcatcher or two was allegedly in or adjacent to the north Etiwanda preserved property, an area of approximately 760 acres, continued potentially suitable habitat for the species. Number 7, you're uncertain as to whether this observation was made in 1997 and '96, but believe the observation was likely made this year. To summarize, the service cannot provide you with any documentation to enable the validity or understand the exact nature regarding the quote, unquote, observation, which warrants the basis of the serious allegation. We have been asking for the service to provide any additional clarification. The County of 152 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 San Bernardino, supposedly, might have additional information of gnatcatcher sightings. Today, what I have been supplied as historical sightings of one bird or two over posted time has been very sparse. But what data we could obtain from anybody -- and I assume the service would want to get us all the data as rapidly as possible to help us with a truly significant issue -- the data that we have, we asked our biologist, Mr. Steve Nelson, the planning consultant's researcher, to simply tell us what the distance is from our site to this historical site, which goes back in some cases several years. The observation points are 10 miles, 9 miles, 2.4 miles, 11.25 miles from the site. So I don't believe that there is credible evidence at all before you that there are any issues related to the gnatcatcher on the site. With respect to the issue regarding the earthquake information, as I understand from CURE's July 9th letter -- and there was a letter submitted on Loeb & Loeb letterhead, I believe on behalf of CURE by Ms. McKieth. She notes on page 5 that at the time the Deer Creek basin and spillway channel were designed in 1978, the Army Corps of Engineers, relying on then 153 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 existing information, based its design specifications on 4.0, 5.0 magnitude earthquake. Since 1980 the Cucamonga fault has numerous published studies placed on the probability of the earthquake at a 7.5 magnitude. And then she has a footnote. She notes that also the spillway cannot withstand such an earthquake. So we wanted to take a look and try to track down this alleged new information. The first two pieces of information will be referred to later in an Army Corps letter. That's also being submitted tonight for you. The final piece of information came from Mr. Dolan. We wanted to try to find out what this report, this document or this reference was. Lauren Development contacted Mr. Dolan -- I will submit this correspondence into the record tonight -- and wanted to know if there was some sort of new information that would suggest that now we could be subject to more than a 7.5 magnified earthquake. Mr. Dolan wrote back, "Sorry it took so long getting back to you. This letter is in response to your request for a copy of the proposal I submitted to San Bernardino County to construct pivotal earthquake excavations of the Cucamonga fault." 154 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 I am at a bit of a loss as to who is distributing this proposal, since the county turned down my request. Or at least I never heard back from Ms. Vivian Knoell (phonetic) with the county property, whom I submitted the proposal to two years ago. She had promised to send the proposal to the San Bernardino Board of County Supervisors, but I never heard back whether it was done or not. If you don't mind my asking who forwarded the proposal, I guess, to you? "To clarify one point, the major focus of the proposal, as with much of our work in the greater metropolitan area, was to determine whether or not the Cucamonga fault rates itself through moderate and large earthquakes, magnitudes of 6.5 to 7, or whether it ruptures together with other faults in much larger magnitudes, 7.5 earthquakes," closed pren. "I must emphasize that this was the question we were trying to address, and the idea of the occurrence of a magnitude of a 7.5 earthquake was a hypothesis not a conclusion." The next paragraph: "The best available reference for the Cucamonga fault is an article by Doug Morston and John Matei," that's M-a-t-e-i "in a U.S. geological survey. It was 1339 published in 155 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 1987. Most major universities, geology libraries, UCLA, will have a copy of this. I hope this article helps you," et cetera. the record. We'll be submitting this into We go back and we look to see what is supposedly new information of the 7.5 magnitude. We find no evidence of new information. We find references that are of the current state-of-the-art, documents done in 1987, three years prior to the approval of the project. Again, information known or should have been known to the city in 1990 when the project was approved in 1990. So we chase it down. We find that there's nothing there. We will go on. There has been a discussion that this project, now, if it is approved, would lead to the possibility of severe flooding downstream. That is, if it were true, it could understandably be a concern. I don't blame them at all for being concerned. If somebody told me that they would be subject to flooding when they approved this project,' I would be concerned. But the question is whether it's just conjecture or hypothesis on the basis here. The levee that exists now -- let's back up. The apples to oranges comparison that's been made 156 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 before by the Dames and Moore folks I think is important to be very clear on. The trapezoidal structure that is to be part of the project is not replacing -- is not meant to replace in full the existing urban levee built pre 1938. In pre 1938 the urban levee that exists today was replaced by the construction of the basin and the channel, the debris basin and Deer Creek channel constructed in 1983. That construction and the existence of that debris basin channel is what makes that levee obsolete. Moreover, the levee has a 200-foot hole breached in the middle. It's not going to hold back water. There's a hole in there, that apparently, as I understand, homeowners or somebody in the neighborhood requested be put in in the 1990s so they could have secondary access out at the site. So a levee with a 200-foot gap in it isn't really going to do much with respect to flood protection from the hydrologic standpoint. But, again, this hypothesis that CURE is talking about is that somehow there is no debris basin or it's wiped out or its structional integrity is damaged, and for some reason their logic would also mean that this magnitude would damage the pre 1938 dirt levee there. 157 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 And I have seen nothing to indicate that the pre 1938 dirt levee would do any better in any of these major issues that they allege could happen, more so than Deer Creek basin and channel. Having said that, there is testimony -- we have reports, engineers looking at the structural integrity. The RMA has submitted a report. I believe Lauren submitted it to you previously from RMA. Geotechnical Consultants submitted a letter dated August 14th, 1997. I understand that the city staff has been able to look at that report as well. They believe that the issues raised by CURE are not issues of fact that create danger to the community. MAYOR ALEXANDER: summarize? MR. HARTZELL: a minimum as I can. How much longer before you I'll try to keep it to as much I would try to wrap this up in ten minutes, if I may. I apologize. I will try to continue to be as quick as I can, here. With regard to the issue of the Regional Water Quality Control Board, there is a letter, I understand, that was written today by the Regional Board to the city. Again, I was shocked and disappointed and I found it indicative to listen to 158 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 the characterization of that letter by CURE, because I have a copy of the letter. I did have a chance to talk to the assistant of the executive office. I wasn't able to be at the meeting on Monday or Tuesday of this week. I'm not sure when that occurred between Ms. McKieth and the Regional Board. They were getting information that was one-sided, but, apparently, prevailed upon the board's letter. I believe Ms. McKieth says that the Regional Board has written and has concluded that we have substantial issues here with regards to water quality or water recharge. The letter makes no such conclusion. The board, when I talked to Mr. Curt (phonetic), told me -- the assistant executive officer specifically told me that they had reached no conclusion. In fact, they had been told, apparently, that CURE had come in this week and said they thought there could be some sort of issue with respect to recharge and other issues, but they hadn't seen any conclusive evidence by CURE yet that there were any issues on recharge and the water quality basin. They are certainly not in any position to made a judgement on that issue. They would be more 159 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 than willing to reserve that judgment. If some issue were to be brought forward, they might have an opinion about it. If the city wanted to ask questions of them, they are more than happy to respond. I was shocked sitting here in the audience and listening to the characterization of this letter, because it is not what it purports to be according to CURE. I ask that you please look at that letter and judge for yourself. With respect to the issues of traffic noise, I guess the simplest way to look at it is that in 1990 when this project was approved, I believe that it was understood that there would be -- there were, in fact, existing homes that would continue to be an existing development in the Haven View Estates community. There would be people living in those homes. Those people would have families. There would be an additional increase of people, some additional cars, some additional noise from lawnmowers going back and forth. And those were able to be considered in 1990. There's no substantial information of changed circumstances with regard to impacts on traffic noise, air quality, that are raised now, post 1990, on this project. The CURE group has made a reference to 160 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 the Department of Fish and Game letter of June 23rd. We find it interesting that the department has written a letter. They're characterized as quoting their position. To date the department has not retracted that. As of tonight I have not seen a retraction letter. I'll be handing out to you copies of the correspondence that we sent out August 12th to the chief legal counsel of the Department of Fish and Game asking, among other things, clarification for retraction, if retraction is appropriate of the June 23rd letter. We are continuing to discuss that matter with the department. Given that -- that department letter purports to say that they think that we already know by virtue of the fact that the alluvial sage scrub designation was done in 1985. The Department confirmed that in their letter they would suggest otherwise. We know that the department has made mistakes in that letter. I believe they have made a variety of mistakes in this letter. Why we don't have a full retraction, yet -- legal counsel has told me, for what this is worth to you, over the last few days that he does not believe that it would be appropriate to characterize the department's position that 161 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 entering into the MOU on the multispecies plan in any way creates a substantial need. This is information requiring the CEQA process. I guess that CURE also stated that Department of Fish and Game is not going to withdraw the letter. The Department has not told me that. That would be a surprise to me since this afternoon the chief legal counsel told me that that was still under discussion. We will continue to pursue that to get retractions on it and get correct information and positions. Very quickly on the related issue of a new letter submitted by Department of Fish and Game on August 5 regarding the potential need for a stream bed alteration agreement. A letter was obtained November 18, 1996, from the Department of Fish and Game verifying that there was no need for an agreement. That letter was written after the department personnel had a chance to come out and walk the site and examine the site. I know that CURE has alleged that the developers are now trying to prevent the department from looking at areas or trying to purposely mislead them. I find those outrageous allegations. But you can judge for yourself. 162 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 We did receive a letter on August 5th saying -- from the department saying that they thought they were going to reverse their position. We wrote back that we think they cannot. Legally there is no basis to do that. I have never seen anything like that be done in ten years or so. I believe that not only legally can they not do it, but I believe the facts of changed circumstances don't warrant that. That's not the kind of changed circumstances that's relevant to your analysis tonight. But I'm just pointing out to you, once again, that we have been notified of a letter disagreeing with the hearing. We are in discussions with them. We hope to resolve that. I'm sure we will. As far as we're concerned the November 18th letter stands. One last thing on the 1603 letter. Ms. McKieth noted -- she stated on the record that Department of Fish and Game is now going to rescind their August 5th letter on this issue. I believe that is not true. I talked with legal counsel tonight from the Department of Fish and Game. They have not made any firm decision on any information provided to them on that issue. There's been mention of an L.A. 163 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 Department of Water and Power issue. I'm not going to get into that in any substantive way. We had received a letter from them. Apparently, CURE contacted them and alleged that our project was violating CEQA and, therefore, the DWP should rethink their understanding of the development. We got the letter without having a chance to talk with DWP about that. We might write that letter. We'll resolve that. It's not related to issues before you tonight. With respect to the cultural resource issues raised tonight by the representative for the Native Americans, there is new information tonight in the sense I have not heard about that before. But I did not hear anything tonight that would assure me that we have substantial new information; that is there is some sort of cultural resource on the site. Unfortunately -- and I appreciate you bearing with me now -- I think I have walked through and tried to hit on the issues that have been put before you as potentially raising substantial new information, which might arguably allow you to come in and reopen this process. I believe that a fair review of the record will show that there is no substantial evidence on any of the points raised by any of the folks proposing this project. 164 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 I will simply note for the record that we're adding some additional items. I understand that Ms. Hawn wants to retract the November 1990 letter. I don't know a lot about that, but we're submitting the letter tonight for the record. We'll be submitting -- I don't know, since we've never been shown the CURE information provided to you tonight. I have no idea what may be alleged in there for the first time tonight. If, for instance, they are going to now allege something about electromagnetic forces, we are providing the most recent article in the New England Journal of Medicine noting the concern that electromagnetic forces was largely overstated in the past. And I believe you have had a chance to look at that for other reasons. Let me quickly summarize and let you get on with what you need to do. We will provide to the clerk all of this information referenced tonight for the record. I just want to -- unfortunately, I need to point out just a few very quick things here. There is a letter of clarification from United States Fish and Wildlife Services dated July 9th, referring to an earlier letter of June 10th regarding some of their issues relating to the 165 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 property. We're still in discussions with the Fish and Wildlife Services, asking for a full retraction of that letter. But they have clarified some salient points in there as well. They had put in their letter of June 10th that approval of the project would be a violation of the Endangered Species Act. When I pointed out to them that that was an amazing allegation, there is no basis for that, they did change their sentence to say "approval could." As an attorney, that's a substantial change. But we're looking for a full retraction of this. We'll be discussing that with them. Again, it does not really concern you tonight. Finally, I need to point your attention to one last item in this packet. It is a letter from the design branch of the Army Corps of Engineers. It's dated August 11th, 1997. It's written by the chief of the engineering division. And this pertains to some of the earthquake and flood issues raised by the groups tonight. Since it is an important issue and it is an important letter, I don't know if you have been able to take as much time as you normally would have on that. 166 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reference to a telephone call -- this is referenced to Mr. Joe O'Neil, city engineer, dated August 11th, referenced a telephone call from Dan James to Bob Hall on my staff August 5th, requesting information on the Deer Creek basin. Specifically, he had questions about the size and design of the basin. In the conversation with Mr. James and prior conversations Mr. Hall had with the developer, John Allday, and private citizen named Malissa McKieth, the question arose regarding size and design of the basin. The issue concerns whether he considered seismic conditions originally when we designed the basin in the early 1980s and whether recent information on faults and potential seismicity in this area would cause a problem for the embankment. Mr. Hall's initial response in each case was that the debris basins are now subjected to the same criteria as reservoirs because they don't permanently store water. The probability of a basin full of water in a major earthquake is very remote. He also pointed out that this type of embankment has historically performed very well during earthquakes. Mr. James asked if the Corps could provide some specific information on the original seismic considerations for the embankment. 167 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 The chief of the soil's design section provided the following information originally presented in the Corps' report, quote, "Deer Creek hillside debris basin embankment and foundation seismic evaluation, supplement to feature design memorandum Number 6, dated June 1979 and revised in October of 1980." Number 1 -- and there's just two here -- "the debris basin was statistically evaluated for two seismic events, a magnitude of 8 on the San Andreas fault, a magnitude of 6.4 on the Cucamonga fault. The analysis indicated the embankment performed adequately under earthquake conditions, maintaining its integrity and function at the debris basin." Number 2, "The joint probability of a 100-year flood return in either earthquake is very rare. Approximately 3.4 and 2.8 chances in 100,000, respectively. Based on a review of this information, 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. Sincerely, Robert Coplin," (phonetic), chief engineer division. A major frustration of the developer in this whole process has been that we come to millions 168 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 of planning commissions and the city councils, and for the first time hear of new information, new declarations that are supposedly something that presents information and allegedly are factually correct. What is very frustrating for us is when, for instance, CURE has three months to provide information on earthquake or flood issues, and then they wait until tonight to provide declarations never shared with the developers of the project, myself. the proponent, It puts us at a bit of a disadvantage to be able to point-by-point walk through and note the problems with such testimony. I think that it is relevant that the pattern by CURE has been on each case work by ambush, never providing us with a copy on these pieces of information in advance. I believe that the only reason for conclusion for this behavior is that CURE is afraid of allowing these mere allegations to never be examined or scrutinized for the truthfulness. So I believe that is very relevant, the way they provide information with regard to the veracity of information provided. She's asked for a continuance -- MS. McKIETH: We -- 169 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 MR. MARKMAN: Excuse me. This court reporter needs one person at a time. I don't know why you're standing there unless you need to stretch. It's probably a good idea. MS. McKIETH: I'm stretching, but I hope I will get a two-minute response to all these comments. MR. MARKMAN: That's up to the Mayor. It would be more polite to sit while counsel talks. I didn't see anyone stretching while you were talking. MR. HARTZELL: I do believe that this type of information at the last second is indicative of problems with veracity of these submissions. We're concerned about that. I try to listen to pertinent points raised by the appellant from Dames and Moore. I want to very briefly touch on a few items there. He has mentioned -- he said something to the effect that removal of the levee would be a reduction in safety. He did not compare the removal of the levee to the creation of the retention basin and channel in 1983. He appeared to be comparing that to the levee versus the trapezoidal channel. And as I said before, the debris basin and channel in Deer Creek were meant to replace the levee. He did not quantify any of these reductions in safety. He doesn't account or consider 170 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 the flood protection being addressed by the Lauren project, the trapezoidal basin. He has been talking about the 1987 data on landslides. That would be information that was known in 1990. He has presented a lot of conjecture. Hypothetically it affects a Y or a Z to occur, or X, Y, or Z combination something could happen. Anyone could go up and raise a lot of hypotheticals. But I haven't seen substantial data that supports the likelihood of any of these events. Moving on to one final point he raised on the water recharge and perhaps water quality, any reduction in recharge hasn't been established at all, to my knowledge. Any reduction would logically have basically occurred through the establishment of the Deer Creek basin and channel in 1983. That is what changed our project condition substantially over a large part of the flood plan. The remaining area that could collect water above the levee is something along the order of 125 acres as opposed to 2,000 acres, plus that was there prior to the 1983 retention basin. So I would rather question whether the development of 23 acres in this 125 acre area could have any substantial impact at all on water recharge or water quality. 171 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 To fully summarize, very briefly, there have been some letters submitted by agencies. I believe that probably, generally, it is easy to get letters from agencies with incorrect information in them when any one side is talking to those agencies on having a chance to make their case. We have found that a number of these letters that have been referred to are misstatements and factual errors. We have pointed a number of those out. We will continue on our own for our own reasons to retain retractions on those misstatements. The CURE group wants the record closed now. I know that they had asked for a continuance. That's what we were operating under when it came up tonight. I assume that your council is a very curious council. And given that, the CURE group agreed to extend -- that it would probably be able to extend the hearing. I think I was surprised as any of you up there that tonight she came in at the eleventh hour and said, you know, I want to close it tonight. I think there's a reason why they would like to close it tonight. And probably that's what's going to happen. The reason is evident which is allowing them to put in, perhaps, new information that 172 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 we have never been able to take a look at, respond to, close the record up and get that in. I suppose that's going to happen. And we'll deal with that. But I do think that type of tactic should be considered. And the one thing we have seen or we have come to understand in this process is that CURE's overall intention appears to be the preventing of the recordation of the final map of this project. We don't want to see that happen or prevented. We think it would probably be in everyone's best interest to close this up tonight. If you have to make a decision on this matter by tonight, we really would ask you not to allow her to continue to drag this on in what we understand has been communicated to by Mr. Cristiano, the owner, as an attempt to simply prevent final recordation. I thank you very much for indulging me on this Thursday morning. I apologize for making your evening more annoying than otherwise might be. I am providing this information, and I think we have articulated some points in this. Thank you very much. entertain any questions. MAYOR ALEXANDER: MS. McKIETH: Questions? I would be happy to Thank you, sir. We call that a long and personal 173 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 attack, short on evidence. I want to make something clear. It's very important. What I say and what Mr. Hartzell says is not evidence. Evidence is the declaration and the statements of technical consultants. What he says or thinks about Dames and Moore is irrelevant. What I say and think the Department of Fish and Game may or may not do is not evidence. The correspondence you have from the agencies on June 23rd and August 5th is evidence until and unless they're rescinded. That letter has been there since June 23rd. It's no surprise to them. I must be the most adept, cunning, person in the world to have managed to get letters out of FEMA and the Regional Water Quality Board, the Department of Fish and Game, and the U.S. Fish and Wildlife Service, and get declarations out of Jim Dolan's boss, the person who supposedly wrote that letter while he sat in Turkey, because I spoke to him in Turkey, another lack of evidence. But you have the declaration in front of you from the director of the Southern California Earthquake Center, which discusses with Jim Dolan since 1996 that he concludes that without your doing a 174 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 full environmental impact report, building those homes and not taking into consideration the earthquake change is dangerous. In the Army Corps of Engineers' letter of August, which I have never seen because I have never gotten a piece of information out of the Hartzell firm either. I love it that they think that we're just throwing things up in front of them at the last minute. All of these issues were raised in the Planning Commission briefs and evidence. None of this is new. If they wanted to get experts in here to testify, they could have done it. I talked to Councilman Gutierrez and I talked to Councilman Williams last week. I said if the continuance could not be granted, I would not want a continuance. Please, make that clear. I did not come in here this evening to lead anybody astray. I think that's a cheap shot under the circumstances, given that the city had certainly led us to believe that this was going to be set in September. So look at the evidence. All of this demonstrates the need for an environmental impact report, what an EIR would have done. What they were obligated to do, not CURE, was to go out and get the information on the earthquakes, to do the biological 175 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 studies. All these studies that they never did -- they didn't spend five cents on doing the work that we have been forced to come in and put into the record. And that is not what the law requires. If we had a full EIR process, there would be a meaningful public dialogue. Their consultants would come in. There would be a circulation of their comments. We would have had time to respond and vice versa. Instead, we have this last minute exchange. It's exactly what is wrong and what is going on here, that we have to come up with evidence at the last minute. It is not easy evidence to come up with. I do think we need to close the record. You give me another month to cause more agencies to come out, I will get the Army Corps of Engineers to rescind that letter. They did not base that letter on a 7.0 or greater earthquake. the original design memoranda, It's a 6.4. I have got the actual original, sitting in my living room. I know what they say. Nothing of what Mr. Hartzell or the developer -- they have not come up with an iota of evidence about overtopping of the debris basin. Nothing of what the Army Corps has said about the 176 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 safety of the debris basin spoke to the issues of a landslide and the overtopping. In terms of recharge in the Army Corps' own environmental impact report from 1980, they designated this area a recharge mitigation area, to make up for the fact that they were building the basin and reducing the amount of water that would be recharged. They're not even complying with their own mitigation measures which, in itself, was a changed circumstance. I know these are a lot of technical legal issues, but all that they do is underscore the fact that we have put on enough substantial evidence of changed circumstances, that you got to step back and let the process work the way the process is meant to from a policy consideration. It allows you to take the time to really do the analysis, to make sure that if there are significant environmental impacts, they are mitigated. And as everybody who testified on our side -- poor Lauren. They're all by themselves. They don't have anybody here to testify this evening. That is just bunk. It's insulting, considering the fact most of us did not know about this until May 23rd. work excruciatingly hard. We had to 177 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 All we did was level the playing field. When people know they're losing, they start whinning about what the other attorneys did. I think that's a lot of what's going on here this evening. Look at the evidence. Look at the declarations. All of that information was put before the Planning Commission. I firmly believe the Planning Commission was reluctant to change their position because they were the very people who voted on that Negative Declaration in 1990. And that's a hard position for people to be in. I urge you to close the record. Again, I think there is value to take the matter under submission. But in doing so, I would like to not have it be that I have to go out and get more information to you. We will just be doing that forevermore. Thank you. MS. KLIPPSTEIN: Leeona Klippstein, Spirit of the Sage Council. In regards to this Dolan issue and the earthquake fault, we do have information that we haven't shared with Malissa, or the city, the project's proponent. As a matter of fact, when Dolan first proposed to do this trenching and the study, he 178 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proposed to do that in the north Etiwanda reserve, which, of course, the Sage Council and the Shoshone Gabriellino objected to. One, was because it was an area that had been acquired for conservation, and we didn't want big holes of sage scrub blown away from the study. The other one is the cultural committee going into the earthquake fault. What we found out later, to our dismay, even though we wrote letters of objection to the county, was that they did approve Dolan to do the study to the east of the north Etiwanda reserve. So I do know, as a matter of fact, that there was a follow-up Dolan study that was done. It wasn't just a proposal. And also while he was doing the work, the Daily Bulletin did a story about it and, I believe, took a picture of him standing in the trench. So that should be in public records somewhere that that study has occurred. The other point I want to make that the word average was used for rainfall, rather than a worse case scenario. MR. BROWN: During Ms. McKieth's -- MR. MARKMAN: Why don't you identify yourself. 179 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BROWN: the city. Tom Brown associate planner for During Ms. McKieth's testimony, statements were made trying to obtain copies of documents in the file. I've prepared in chronology my contacts with her from May 27th to June 9th of this I would like the city to have it as part of the year. record. MR. MARKMAN: That's part of the record. That's a chronology of every contact and response Tom had with counsel for the CURE group. There's some -- MAYOR ALEXANDER: Is there any other new information or testimony on this item? How much time do you really want? UNIDENTIFIED SPEAKER: 30 seconds. I just want to be very clear. I know it's already been in the record. Several fact sheets that the developer did prepare to go into detail rebutting various allegations, explaining the true issues with respect to the levee, one set of sheets, landslide and earthquake fact sheet, and a prior knowledge fact sheet, and also traffic impacts and access fact sheet, I would just like to reiterate that that is in the record. And it has been available for the staff. MAYOR ALEXANDER: Thank you. 180 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 At this time the public hearing is closed. MR. MARKMAN: We have some staff responses; not a lot, not long. And I'm going to start out with the framework and response to one issue; then I'm going to let the technical people do whatever they have to do. Here I am, again, going to agree with, actually, both counsel. Number one, lawyers do not testify. What they say is argument. You have to look for substantial evidence in the record they refer to. So you have to look at the documents and the data and the technical reports and the opinions of technical people who are referred to when it comes to the technical issues. So we agree on that. We also agree -- I think all three of us -- everybody agrees on what the legal process before you is. There's two issues: Each one is supportable by substantial evidence. If you decide either issue, yes or no, your decision needs to be supported by substantial evidence, or when the lawsuit -- the inevitable lawsuit will be filed, you will not be able to validate your opinion in a court proceeding, which is my job. My job, I think, is a little bit misunderstood this evening by some people. It is not 181 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 to advocate a position. It's to put you in a position where you understand what you have to do to make a valid decision. So you have to look at the substantial evidence. Two issues, as I see it: One, is there something new or different, a changed circumstance, new information, which couldn't have been generated in 1990, all of which has been alleged and argued here tonight, and all of this evidence has been identified on both sides as to whether it's there or whether it's not there. Based on what you heard on the substantial evidence, both sides of that issue, do you feel that this ought to be sent out for CEQA review, based on something that has happened or discovered or couldn't have been known since 19907 Everyone agrees that's one issue. And the second issue, which is always there, ultimately, is there substantial evidence to support a design review approval or disapproval, based on the criteria on design review? So I really don't think the lawyers are in disagreement about the path you have to go down. They disagree about what the state of the record is. You have to have substantial evidence. There could be 182 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 very well, by the way, substantial evidence supporting either position on those issues. That's what you have to do. And I would urge the council, as always -- and I have heard everyone talking about second opinions. I don't think Ms. McKieth is here taking a position on behalf of her clients in order to generate litigation for which she would be paid or recovered fees from the city. I don't think the attorney for Lauren is here to get his client into that position. I'm certainly not here to try to advise you to take a path that's going to generate costs to the taxpayers or legal fees. And just in response to some of those allegations, I have to say look at what has happened since we've been here since 1985, and please try to identify for me any case that is challenged in approval or disapproval of the land-use entitlement issue before this Council. I can't remember one that was litigated. If there have been a few in the last 14 years, I don't recall whether the council has been reversed by the court on a land-use decision. It hasn't happened. So I don't want the council to approach this by way of being intimidated by the 183 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 fact there are -- I have never heard in one proceeding so many different forms of lawsuits or causes of action which could be applied to whatever you decide, as I've heard here tonight. If it's going to happen, it's going to happen. That's, unfortunately, part of the process. I don't know how you could make a decision to avoid that exposure. I'm not going to tell you to just make a decision guessing on which side won't sue you if you decide against them. I think that Council ought to make a decision based on your good faith and understanding of the state of the record of those issues. Is there substantial evidence to support it? What you think of those two issues. What I started out saying at the start of this hearing is that the staff and the Planning Commission had made a finding to the effect that there was substantial evidence supporting their determination that didn't require further CEQA review because of changed circumstances or new information. And, secondly, that it's conformed with design review standards. Obviously, you're not bound by what the Planning Commission decided. This is here de novo, as 184 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 we would like to say. I don't know if the staff's technical people have changed their minds based on what they have heard here tonight. And after I'm done in two more minutes, Brad and Joe O'Neil, the technical people, can comment on that. My only technical response, and this is a legal technical response, is I spent the afternoon with Brad and Rosanne Hawn and Bill Angel going over this general plan open space issue, and they can address it more thoroughly. The bottom line is this, in 1981 the City Council adopted the general plan with several maps, including a land use map, open space map, all kinds of general bubble-like designations that clearly were not intended to be specific, weren't even specific as to roads which may or may not exist. The zoning ordinance within the county zoning ordinance in 1983, this specific property, one of the larger areas, was zoned specifically by action of the City Council, not in response to an application for development approval. The area was specifically zoned for the intent of making the entire area conform to those general plan documents that Bill Angel showed you. That was a specific purpose of the process, and the ordinance was adopted, which zoned this specific 185 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 area. 24 or 23 acres we're talking about here tonight, is very low residential. The whole purpose of the legislative process back in '83 was to make the zoning conform to those general plan schematics that were shown to you tonight. You can look at it and say, well, in my view maybe they didn't match up. But, basically, there was a legislative act that set that issue to rest, as far as I'm concerned, in perpetuity. issue to me. Brad agrees with me. He brought this My view in giving you advice on the general plan issue is that their position, the position stated by Bill Angel, is not correct, and that this process does confirm to the general plan, has been consistently founded by the Planning Commission since 1990. say. That's all I would have to I would throw it to Brad and Joe O'Neil to see what their reaction is to what they heard tonight. MR. BULLER: I'll comment on the issue that Bill Angel indicated that there had been a previous action on the part of the city to redesignate a general plan designation to the flood control to some other plan designation. In those cases, in reviewing 186 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 the file, the implementation of the general plan back in 1983 where there was a zoning map was approved by this city. There are properties that were zoned flood control. When those properties became available to the market and available for purposes for private development, when those lands came in for development, they were required to change the zone in order to build flood control, open space, to some other designation. As a result we required that they process zoning. This has a very low zoning over it. It has no flood control over it. The issue of the Hillside Ordinance, the Planning Commission design review and staff have been dealing with this since its inception. This commission did look at the Hillside Ordinance very clearly. And it was presented with the same argument tonight that was presented to them. Staff and the commission have said this meets the requirement of the Hillside Ordinance. I would be glad to go over it, specifically, how and why. But, again, we stand here saying, yes, the commission concurred and took that into consideration. MAYOR ALEXANDER: Questions for Brad besides me? 187 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 There was one point brought up this evening that dealt with asking about optional features. Is it true that under what I perceived as looking at the design review appeal that, in fact, we could wind up with what could appear to be a box, if all of the optional features were not, in fact, requested? MR. BULLER: The issue of what was optional, what wasn't optional, was also considered by the Planning Commission and the design review. And they believe whether or not the optional element happened or not, they still found the project and its design consistent with the Hillside Ordinance and subject to their criteria that they applied to all projects. Even though they believe maybe some of these additions might be accented and a betterment to the buildings themselves, they understood they were optional and at the discretion of the homebuyer. MS. KLIPPSTEIN: I'm sorry. MAYOR ALEXANDER: No. Sorry. This hearing is closed. MS. KLIPPSTEIN: These two attorneys were consulting at my five-minute break. I overheard that -- you were discussing that the evidence of the depositions that were given, that they didn't see, you 188 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 were telling them what to say and what to do about that. And that's unethical for you, the city attorney, to be giving advice to the project proponent attorney on what to do. MAYOR ALEXANDER: Excuse me. This is definitely -- you're hurting your own cause. MS. KLIPPSTEIN: happening. MAYOR ALEXANDER: issue. You should know that that's Take it up with me, please, Joe, would you address the engineering MR. O'NEIL: Well, there are a lot of engineering issues. I won't go through the FEMA designation, because I think that the council is all pretty well-aware of how that happened and what the meaning of that designation is. Only to review quickly the core constructs of those facilities in 1983. In 1991 the city didn't receive a FEMA designation taking that property, subject property and existing tract, clearing the sage. My review of that documentation shows -- I can't find any indication of a reference to the levee. So I have to conclude the levee was not an integral part of that calculation. Therefore, the 189 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 levee really has no bearing on the FEMA designation. And I haven't seen any documentation to show that was the case. Referring to the levee, itself, no one really knows -- there is no documentation or indication -- we don't know how the levee was constructed. We have no idea the capacity of the levee, the strength of the levee. It appears to have no foundation. But, again, nobody knows. It appears to be made from material mounded up, but for what purpose it was not certain. We don't know if it was for flood protection. There wasn't anything there at the time. It might have been poor water percolation. We simply don't know. COUNCILMEMBER GUTIERREZ: It may have been some kind of an Indian -- MR. O'NEIL: I don't think it was that at all. In 1986 the county, who had been maintaining the levee, in essence abandoned it. It is on private property. As far as I'm aware, there is no public agency that maintains that levee. So there is no maintenance done on that levee by any public agency. It's not a public facility. It's not owned by a public agency. It sits on someone's private property. 190 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 Also, we have three drainage reports. COUNCILMEMBER GUTIERREZ: I want to ask something about the levee before you get into that. Are you saying, then, that there is no significance to the levee, if there is any type of water runoff or -- MR. O'NEIL: What I'm saying is there is no documentation or calculations anywhere that shows that levee provided any function. That levee was, in essence, replaced by the debris channel. That's why the county in 1986 walked away from it, and determined it private property along the easement. COUNCILMEMBER GUTIERREZ: So you're convinced that there would be no difference if it did have flooding, whether the levee was there or not, or whether it would be necessary, or it wouldn't matter? MR. O'NEIL: What I'm saying is I have no calculations. I don't know. There is no evidence. As far as FEMA is concerned, the levee does not exist. In their calculations, it does not exist. They're assuming that the event will be a channel debris based function, as it is supposed to. We also have three drainage reports that also show the levee to be removed, and that the drainage flow from the acres would be taken into 191 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 channels or reconstructed by developers in the area. Moving along, the information I thought was kind of interesting -- I do have a report prepared by RMA, and it was signed by a registered geologist and a registered professional engineer geotechnical. It is their professional opinion that the special mitigation measures to protect the structures within are directly to the south of this tract. The landslides, the mountains, are not needed; only the distance to the mountain that fronts the location of the property near the center of the Deer Canyon alluvial fan. In essence, what they're saying is they don't believe, and they are staking their professional reputation on the fact that a landslide is not your problem. MS. McKIETH: MR. MARKMAN: MR. O'NEIL: Can you identify that document? What are you reading from? It's from the RMA group. It's dated August 19, 1997. MS. McKIETH: It was not in the staff report, correct? It was not in public record before today? MR. O'NEIL: That's correct. Mr. Sheahan has presented no data, no engineering calculations to support his supposition. 192 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 I cannot make a conclusion as to what he is suggesting. I don't know if his position is valid or not. ~S. McKIETH: Why was this staff report not in the staff report? MAYOR ALEXANDER: We have argued back and forth. We can take documents and argue them until the world is level. MS. McKIETH: There are a lot of things in the staff report that they are relying on to make recommendations to the City Council that's been in his possession since August 14th, and none of us had it. MAYOR ALEXANDER: Let me ask you one question: Were you aware that he might bring up that document? MS. McKIETH: I had no idea. It doesn't exist in your record. It's not in your staff report. MAYOR ALEXANDER: We have had argument from the development side, from your own side, about information not shared. I think it's a pretty common thread that runs through tonight's hearing. MR. MARKMAN: There should be some further questions on this. I agree with counsel. For example, who was that report prepared for? MR. O'NEIL: Mr. Tom Grahn. This report was prepared for 193 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 MR. MARKMAN: When did you get your hands on this thing? MR. O'NEIL: I don't recall when I got my hands on this. It's been very recently that I have seen this. MR. MARKMAN: Basically, Lauren put it in your possession? MR. O'NEIL: That's correct. The staff did not request it. MAYOR ALEXANDER: Mr. Markman, the only thing I was bringing up was the fact that both sides indicated this evening that they have not been sharing information. That's what I was indicating. MR. MARKMAN: Well, I was concerned that the city did a study and didn't put it in the staff report. But, basically, that's developer information that you reviewed, just as you've listened to and reviewed what the experts from Dames and Moore said this evening. MS. McKIETH: He's basing his opinion on a report that he's had in his possession for some period of time that he can't remember how long it is. And it's different when you're the city. You have a fiduciary responsibility to us. This has been going 194 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 on throughout the two-and-a-half-month period. never seen the traffic study; never seen the engineering reports. document. MAYOR ALEXANDER: Mr. O'Neil? finish, And now you have another We've Is there any questions of 195 think there was discussion as to the channel replacing the levee, and that is not the case. The channel was not built to replace the levee. The levee is replaced by the debris basin and the channel. And lastly, there was talk about declarations regarding seismic activity. There was declarations and a letter from FEMA, which I have not seen. Apparently the council has. I do not have the letter in my possession. Again, I have no information regarding those declarations. I have no engineering calculations to support those declarations. So I am completely in the dark as to the meaning or the significance of those documents, since I have not seen them or had a chance to look at them. That concludes my portion. MR. O'NEIL: If I could just continue on to I have one or two more points that I can make. We did talk about the channel. And 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 COUNCILMEMBER BIANE: Earlier when Bill Angel was speaking, he had mentioned that as far as the hillside plan requires that there are slopes graded to 30 percent, he showed one of the illustrations from our general plan. It kind of shows that you should maintain those slopes. And I looked up on top of these dykes. Looking up to the north, it looked to me like on these blue lines there is some sloping. Why is the developer able to level those and develop, I guess, is my question? MR. BULLER: When the matter was considered by the design review, the hillside slopes, the precise grading, and the contoured elevations of the project, itself, they looked at the original tract map approval, the conceptual grading plan back in 1990, which was found to be acceptable back then. And as far as they felt, because of the manmade levee, it was not a natural levee. The intent of the Hillside Ordinance was to protect what they considered to be natural, not made by man or created by man features, and try to protect those. COUNCILMEMBER BIANE: I can understand. This is not really a question of taking down the levee. If there wasn't even a levee there, there were several undulations, or whatever you want to call it, that run 196 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 through the property, from the blue line when they were active somewhere in the past, but nevertheless there is rolling hills through the property, it seems to me that's what the Hillside Ordinance was addressing. If you can elaborate further on that. MR. BULLER: I'll go back to the basis of the fact that in 1990 when the natural contours -- what was out there today was determined and reviewed. It was not a requirement on that. This current commission was simply acting on what was an approved conceptual grading plan consistent with that original approval, tentative map grade. MAYOR PRO-TEM WILLIAMS: Grading looks like -- with all these little cul-de-sacs -- I was up there, too. I have been up there over the years doing more girl scout activities than I care to tell you in that area. They are probably all resenting it still. But anyway, there's a lot of land change. It's not flat and simple. And I'm real curious. Are you going to grade it off, flatten it out? I understand modern compaction is supposed to be wonderful, but we've all seen the results of compaction that didn't go right. We're just going to level this off and say it's okay? 197 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 MR. BULLER: I will respond by the answer yes. The grading plan back in 1990, as well as the more refined one from this project application, was reviewed by the grading committee. So it did go through the technical reviews and was found to be acceptable. It will still have to comply with all the technical aspects of soil compaction. MAYOR PRO-TEM WILLIAMS: Of course. Nobody wants to sit in a house on badly compacted earth. But we all know that it's easy to not get compacted just right. MAYOR ALEXANDER: Any other questions? MR. MARKMAN: Mr. Mayor, there's a resolution. You know what it does. It makes a finding no further environmental impact studies are required. If you want to do anything different, you need to direct it to a different resolution that reaches a different result. I don't even know if you want to tackle that tonight. Resolution on Page 202 and 203 -- 204 does not apply. That is a resolution that is prepared showing the Planning Commission results. If you want to do something different, you need to do a motion. COUNCILMEMBER CURATALO: This is a second hearing that I have sat through. I attended the July 198 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 9th commission hearing. of testimony. I have read layers of documents. I visited the site on foot. I have inspected the site by helicopter. I have heard nothing, I have read nothing, and I have seen nothing that would compel me to overrule the commission. So therefore, I have to find in favor of the commission. COMMISSIONER BIANE: Compelling argument on both sides. As far as the EIR portion, I would have to say that the developer did a lot better job in defending their position. However, where I have a problem with the project is really upon design. I feel there should be twice as many floor plans. The add-ons should not be optional. They should be required. And as well as the garage placement, it really seems to me if you're driving up in that community, the intent of what everybody else has done is really to have them in the back or up to the side. These are the areas that I have major problems with with the project. And with that I'll listen to what the rest of my colleagues have to say. COMMISSIONER GUTIERREZ: It's been a long night. And the investment everyone has in this room, Since then I have heard a lot 199 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 most of the people in the room on this project, is enormous. It's a huge investment to those people that live there. To us, this is our city. We manage the city basically for the people. We all have to get up tomorrow, some of us early, or today, and work. So I appreciate the commitment from these people that are all very hardworking, including ourselves. But it's a really important issue. I don't care much for the gnatcatchers or Chief Benny Hanna, whatever his name is. I'm not into that. I would like to be -- I invested a lot of money with my family to go to Yosemite, just to drive to find some deer. And here they are up the street. But the issue comes down to what's compatible to these people. It's their neighborhood. They live right there. They are, to me, 65 percent of the argument. Number one, if it was a design issue only, I would say this is a bad plan. I think it's ugly. And it belongs maybe down where I live in the tracts. But it doesn't belong in the custom home community. So I would put 14 or 15 designs. I would make them all very distinct and different. If I had my way, I would leave the levee there with it, but that won't sell the homes to make any money. So I 200 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 understand your position there. But there is enough doubt, not by all these other arguments -- most of these arguments I doesn't necessarily agree with. There's a couple I do. I'm not convinced that removing that extra layer of protection is a good idea. It's doubtful enough to me to require more study on that. And I am definitely in favor of forcing -- or requiring, for our own good, an environmental impact report that's updated, that takes into account all these complex issues that we have not had time to understand and to fully digest. But we need to leave it up to the experts. It cannot hurt the city. I'm not talking about Lauren or anyone else, but the city, in general, in our best interest, which is safety and welfare of the people. That's our responsibility. It's not going to hurt them for us to require an environmental impact report. And that's my position. Again, on the design side, if you want to speak just to design, I think it needs to go back. · really do. Make those homes look just like the ones that are up there already. But I think there's a question about the safety. I read in the L.A. Times that there is an 201 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 E1 Nino possibility, more water this year than many, many years past. It would be a very eventful year, weatherwise, in the mountains and elsewhere. And I don't want to ever be blamed for contributing to a disaster. I don't want to be blamed for having any part that weakens our responsibility to maintain that safety. So for a city that talks about public safety and how much it's important to us, I'm surprised that we wouldn't take the time to require some further reviews there on the environmental issue or the impact report. environmental impact, look. So both on design and I think we need to take a second MAYOR PRO-TEM WILLIAMS: I'll try to be within my two minutes. On a personal basis to abuse a site like this, just grading it off, is sacrilegious. The design -- these look like Terra Vista or Victorian homes made bigger. You can take a brown wood shack and make it bigger, but it's still a brown wood shack. I think the design has a lot of potential to make it appropriate. I don't know why in the world -- just as a thought as I'm sitting here listening -- why in the world Lauren Development didn't decide to do a custom development. I don't 202 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 know. in. It's quite possible, and I think it would fit You should have a big book of designs. It's been in a lot of cities and it's still done in mass. They end up being custom homes. But the whole layout is -- they are Victorian, just like Rex said, down where we live. Something peaks my interest. And we're not supposed to pursue this thing. But the mention of a purchase offer, I think that really ought to be explored. I would urge people to think about that. If this were purchased for a consortium or as part of the homeowners association for their private open space, that would be one less part of our mountain. We who live down on the lowland have to look at it. It's already been done. It really bothers me that I look up there now and see the white veil. But there's no reason to make more. I guess I don't like the design. And I do think the EIR ought to be readdressed. In fact, not at this moment, but I will mention it here anyway, in the future I plan to certainly pursue looking at all the tract maps that we have that have been sitting on the shelf through all the extensions, because there have been things 203 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happening. And there has been a new way of looking at things with the earthquakes and different issues. I think everyone of them has an old EIR report. And I'm sorry if that cost somebody some money, but it's foolish to go forth with a seven-year old EIR. And I could not go along with the commission's recommendation. MAYOR ALEXANDER: I agree with part of what was said. I'll be as brief as I have asked everybody to be tonight. In looking at what exists and what is proposed, I do think that there is qualifications that could be looked at on the design, which I felt we were looking at this evening. I also feel as though there could be more models that are offered. But I think I find it very unique that we seem to send a mixed message to the Planning Commission of trying to be flexible and favorable as we can about seeing people through the system rather easily, and then at the same time we wind up saying let's delay that. Although, I may agree, also, under the EIR issue, we have to take full responsibility for not saying this years ago. We need to, however -- I do 204 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 agree that people up there have a substantial investment. They deserve to have a good product with them. I trust staff is concerned with the safety issues, as they should be, and I'm not accusing anybody, and I'm certainly not being oriented toward safety. But I must say, I think Paul's statement pretty well covers what I feel, too, just go back to the drawing board, to square one on this issue. MR. MARKMAN: We're trying to figure out -- there needs to be a motion to direct a preparation of the resolution. I can certainly count four votes for a change of design review approval. I count two that also would like to make a finding that further environmental work needs to be done. So if the staff took what we just heard as direction, we would bring back the resolution that denied the project, denied approval of the design review. And, I guess, there's three people that would support the Planning Commission's determination on CEQA. COMMISSIONER GUTIERREZ: I would like to make a motion that we deny the project on -- well, I'm not sure we could make a motion on both of those issues. But I would like to make a motion requiring further 205 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 CEQA review, if that could be done. MR. MARKMAN: You would direct us to prepare a resolution that requires -- that finds there's substantial evidence of changed circumstance or new facts, and, therefore, send it out for further environmental study? COMMISSIONER GUTIERREZ: MAYOR PRO-TEM WILLIAMS: readdress -- MR. MARKMAN: Yeah. Further meeting to The appropriate subsequent EIR or supplemental EIR or even a whole new EIR staff would determine. COMMISSIONER GUTIERREZ: I would like to take a vote on that. MR. MARKMAN: We're going to have to deal with that. What I've heard is three council people support it. It would be in a number of areas, unless the council wishes to give us more specific direction. We will have to call that on a resolution motion to do that. MAYOR ALEXANDER: What's your motion? COMMISSIONER GUTIERREZ: To require CEQA review, meaning an updated environmental impact report. MAYOR ALEXANDER: On all projects? 206 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 MR. MARKMAN: mentioned tonight. COMMISSIONER GUTIERREZ: MAYOR PRO-TEM WILLIAMS: motion. MAYOR ALEXANDER: seconded. On all the subject matter Yes, on this project. I'll second that Motion has been made and Any further discussion? Please indicate your vote. CITY CLERK ADAMS: Motion denied three, two, Alexander, Curatalo, Biane. MAYOR ALEXANDER: I think it would be appropriate to vote on this particular one as well, on this particular -- MR. MARKMAN: Well, this particular -- MAYOR ALEXANDER: Well, that motion right there, essentially, was dealing with the CEQA end of it. MAYOR PRO-TEM WILLIAMS: On the EIR on this project, we would like to have it revisited. My understanding of that motion and what I seconded to, the EIR on this project needs to be revisited, because what I was reading, some of the little check-off points were awfully vague. MR. MARKMAN: Understand that everybody agrees 207 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 that the status of state law is you have to make these determinations specific to the project. This one is changed circumstances or new data, which could have been generated at the original approval time. So I understood that motion to mean this project on all of the grounds stated. COUNCILMEMBER GUTIERREZ: That's what I meant. MAYOR ALEXANDER: What I'm looking at, though, is -- I guess I did have faith in the staff that they were doing the job with the tools they had to do it. If it means we are going to go back and revisit the whole budget -- COUNCILMEMBER GUTIERREZ: I think every seven years it's warranted. COUNCILMEMBER CURATALO: Paul made a suggestion that some of these options are made as a condition. Could we make a resolution on that, approving the commission's point with these conditions, making these options? MR. MARKMAN: No. I think you have to have the design, itself, in front of the people so they could comment. Your only option on design review is to direct us, as I understood the comments, direct us to prepare a resolution that denies -- reverses the Planning Commission on design review approval. 208 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 I was looking for guidance on the CEQA issue. I guess we got it. COUNCILMEMBER GUTIERREZ: Is it still three, two, then? MAYOR ALEXANDER: Before we get into the second vote, I'm not even saying that there may not be a need to show that guidelines need to be reviewed after five or seven or nine or three. I don't think we discussed that this evening. We took a lot of information this evening that was unsubstantiated. MR. MARKMAN: The general rule, Bill, is it doesn't matter if it's three, five, or seven. A lack in change in six months -- something might not change for six years, and they all have to stand on their own merits as they go through the process. So if somebody comes in and says there's an old crack. It's all approved. It's coming in for design on an ad hoc basis, you're going to face this decision every time, because the developer is going to claim CEQA is not required, and opponents may feel differently. I guess I can't give you any more guidance on that. This project is specific under state law. The developer has a right to press forward with this project. 209 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 MAYOR ALEXANDER: Does this body not have the right to be able to say -- formulate some form of the say, after three years, or can they state-of-the-art, not? MR. MARKMAN: I think you can give the staff direction to really microscopically review these issues. COMMISSIONER GUTIERREZ: Why shouldn't that start with this issue, this project? MR. MARKMAN: We're looking for a motion in reference to reversing the Planning Commission's design review approval, directing us to prepare a resolution. MAYOR ALEXANDER: I'll make the motion as stated by Mr. Markman that we do not agree with the Planning Commission on the issue of design review. COUNCILMEMBER CURATALO: Only. MAYOR ALEXANDER: Only. COUNCILMEMBER BIANE: I'll second it. MAYOR ALEXANDER: Do you understand the motion? MR. MARKMAN: Yes, I do. If this motion passes, we will come back with a resolution that finds there is no substantial evidence -- for further CEQA review, that denies design review on this project. So that you 210 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 understand, COUNCILMEMBER GUTIERREZ: CEQA? MR. MARKMAN: that's what we're going to bring back. Why should we mention The issue has been presented and appealed. And all counsel want disposition on the issue for whatever comes afterwards. And I think the appellants, Ms. McKieth, is entitled to that disposition that was issued. I'm sure the developer wants a disposition on that issue. COUNCILMEMBER GUTIERREZ: I can't support that motion with CEQA mentioned that way. MR. MARKMAN: This motion is only on design review denial. We have a motion on both ends of this equation. We'll take it as staff direction to bring back a resolution. Then you'll have a resolution in front of you. You can change -- nothing is final until we have a resolution of findings. MAYOR PRO-TEM WILLIAMS: Restate the motion. COUNCILMEMBER BIANE: I would like to add discussion. There is a problem with it. I would like to go back and -- I guess there's four of us that feel there is a problem with this design. I'd like to go back -- I would just like to state the designer -- MAYOR ALEXANDER: Do you want to modify it? COUNCILMEMBER BIANE: I would like to modify it 211 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that it only addresses design review. MR. MARKMAN: Well, here's the problem. have already voted on this issue. resolution disposing of that issue, You You have to have a too. It's part of the appeal. It's a ground for disposition of this whole process that's been raised by CURE. I think they're entitled to disposition on it and on both issues. I think the developer is as well. I don't know how we can let that hang out here. There should be motions COUNCILMEMBER BIANE: in front of that. MR. MARKMAN: We can do this: I suppose we can come up with two resolutions. I suppose we could come up with two resolutions that dispose of different parts of this appeal. That will be novel, but it certainly isn't impossible. If we do that we could have one lawsuit by one side in reference to one resolution, and the other side in reference to the other. MR. BULLER: If, in fact, the council does take action on the project, what would be helpful for both the commission and the staff is to mention what elements of the design that you would like them to look at, everything, from the grading of blue line 212 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 stream issues. MR. MARKMAN: I think we've got about four different points from the council discussion, that I can recall, that you and I can work out a resolution. Now he's going to have to do the same with respect to your position. MAYOR PRO-TEM WILLIAMS: It's his job description. MR. MARKMAN: We'll bring the resolution back to you. Let me tell you, here's what we're going to take as a staff direction. Right now, I think, we would bring back resolutions disposing of each issue, but separately, because there's different contingencies that feel differently on two issues. The way to get the best reflection of the council's decision on each issue is to bring a separate resolution on each issue, because one will have the certain vote, the other will have another vote. Somebody will have to compromise their feeling on one of those issues. We will bring back two resolutions; one which reverses the Planning Commission's design review approval and one which concurs with the Planning Commission's position that no further environmental review on this matter was required. We will bring 213 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 those back for the September 3rd meeting. MAYOR ALEXANDER: I suppose I'm just tired. action is being taken tonight? MR. MARKMAN: No. It's a staff direction. COUNCILMEMBER CURATALO: cover that? MR. MARKMAN: Not really. Didn't our first vote I think there's at No We had a 214 doesn't concur. MAYOR ALEXANDER: We have a motion. least one member of the council that can't be satisfied with the resolution. So I think maybe, for the first time I can remember, we'll come back with two resolutions. MAYOR PRO-TEM WILLIAMS: You said you needed something new in your life. MR. MARKMAN: Everything new is old. MAYOR PRO-TEM WILLIAMS: Maybe in that period of time someone will have a chance to read the material, all that new stuff, and maybe they'll learn something. COUNCILMEMBER CURATALO: The way we stand right now, we have a resolution, we have a second, and we're not going to vote on it? MR. MARKMAN: We have a staff direction that we'll bring back those two resolutions unless somebody 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 second. But the person that gave the second to the motion has second thoughts. COUNCILMEMBER BIANE: I'm having second thoughts, too, because what I don't want to do is to come back here and we go through this whole entire hearing again. MR. MARKMAN: There will not be a further hearing on this. COUNCILMEMBER GUTIERREZ: We do have a chance to go home, reread the material, and we do have a right, as Council, when we vote on this again, whatever decision we want. MR. MARKMAN: Absolutely. The decision can't be found until we present your resolution to act on the plan. COUNCILMEMBER BIANE: I can't remember very many actions that we have written. MR. MARKMAN: I will tell you this: That the public can comment at the start of the -- it won't be a public hearing. It will just be resolutions that are in the council business, because it reflects what you want them to do. But, yes, the public can come in at the start of the meeting and comment before you take the action. It won't be a public hearing. But you may to make 215 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 get a lot of comments again. Ms. McKieth swears that she's -- MAYOR PRO-TEM WILLIAMS: It still occurs to me that each one of us, by so accepting the votes of the city and saying we want to be on the City Council, each one of us has a responsibility. it. COUNCILMEMBER CURATALO: We have got a resolution. We have already done We have a second now. We should be allowed to vote on it. That's my position. MAYOR ALEXANDER: Well, in this particular case, we don't have a resolution yet. COUNCILMEMBER CURATALO: We have a motion. We have a second. Let's vote on it. MR. MARKMAN: We had one motion pass to agree with the Planning Commission on the CEQA plan. The second motion pending is to reverse the Planning Commission on the design review approval. And I'm telling you that if you adopt that second motion, after hearing all of this, we will bring back two separate resolutions; one that does one and one that does the other, because they don't both reflect the same constituency. MAYOR ALEXANDER: So you're not saying don't take a vote on it? 216 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 MR. MARKMAN: NO, I'm not. MAYOR ALEXANDER: Paul had second thoughts. COUNCILMEMBER BIANE: We're just voting on the design review issue. It should have been here tonight. It's pretty simple. It's a design review issue that is being -- that was actually your recommendation to focus -- what our focus of conversation should have been tonight. MAYOR PRO-TEM WILLIAMS: We have two issues before us, a pro and a con. the other. MR. MARKMAN: Usually we choose one or Well, actually no. When the Planning Commission acts, the staff automatically prepares -- if the staff is recommending concurrence with the Planning Commission, at least since 1985, they only present such a resolution. I have to tell you, you're going to do something different, you have to prepare for it. MAYOR PRO-TEM WILLIAMS: How many have we overturned? MR. MARKMAN: Quite a few. Do you want the staff to prepare -- MAYOR PRO-TEM WILLIAMS: excess work. COUNCILMEMBER BIANE: No. That's just We'll leave it at staff's 217 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 recommendation. MAYOR ALEXANDER: Do you want to vote on it? MR. MARKMAN: Does Council want to vote to give us direction to reverse the design review approval? COUNCILMEMBER BIANE: I'll second that motion. MAYOR ALEXANDER: That's fine. MAYOR PRO-TEM WILLIAMS: So we're voting to overturn the Planning Commission's recommendation? MR. MARKMAN: resolution. MAYOR ALEXANDER: motion? MAYOR PRO-TEM WILLIAMS: the motion. To direct us to prepare a II II Yes. Do you understand the I think I understand MAYOR ALEXANDER: All right. Please indicate your vote. CITY CLERK ADAMS: Unanimously five, zero. 218 REPORTER'S CERTIFICATE , ~ ~'~___L/'lZX~_r-_c~o a Shorthand I ,_-) v~_vl ~.~ , Reporter, do hereby certify that the foregoing proceeding was written by me in Stenotypy, and transcribed into typewriting and that the foregoing is a true and correct copy of my shorthand notes thereof. Dated' SEP O 5 1997 CHANGES/CORRECTIONS J Page/Line I From I To Witness signature Date