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
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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.
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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
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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
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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,
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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
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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.
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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
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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.)
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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?
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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Estates today.
there then.
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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
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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
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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
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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
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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?
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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
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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
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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.
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It's taped. So it's not --
I'm sure it's very good
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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.
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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."
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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
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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
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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,
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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
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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
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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.
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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
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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
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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
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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,
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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,
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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,
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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."
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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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.
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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
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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 --
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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?
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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?
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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?
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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
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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
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Yes. Do you understand the
I think I understand
MAYOR ALEXANDER: All right.
Please indicate your vote.
CITY CLERK ADAMS: Unanimously five, zero.
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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
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Witness signature
Date