Item 4.2 - ADDITIONAL MATERIAL posted 8-9-17,G��Y � r 'oY•�y
CITY OF POWAY
MEMORANDUM
ADDITIONAL MATERIAL
(Agenda Related Writings/Documents provided to City Council or Staff after distribution
of the Agenda Packet for the August 15, 2017 City Council Meeting)
DATE: August 15, 2017
TO: Honorable Mayor and Members of the City Council
FROM: Robert Manis, Director of Development Services
CONTACT: Jason Martin, Senior Planner 0�
(858) 668-4658 / Imartin poway.org
SUBJECT: Maderas Dispute Resolution
After the preparation of the agenda report on this matter, the attached correspondence
was submitted.
Attachments:
A. Correspondence
Reviewed/Approved By: Reviewed By: Approved By:
�S�i11ce.
Wendy Kaserman Morgan Foley Tina M. White
Assistant City Manager City Attorney City Manager
1 of 5 August 15, 2017, Item # 4.2
f17_\T11P &AU k4l[V
18355 SYCAMORE CREEK RD.
ESCONDIDO, CALIF. 92025
AUGUST 7,2017
Dear Mayor and City Council Members:
Several weeks ago I wrote you about our need to drill a deeper well and Maderas
Golf Course's obligation under CUP 90-13M(2)and (5), to reimburse the Barkin's
for water deliveries and the cost of the deepened well. This matter will be
addressed at the city council meeting Tuesday night August 15, 2017
This correspondence shall serve as a supplemental letter purposed to address
Maderas's attempt to legally justify not paying their obligation under the CUP,
and challenge the terms contain within the CUP to guarantee the residents
sufficient water supply. Maderas desires to overlook the language which was
intentionally inserted in the CUP to protect the residents of Lower Sycamore
Creek Area.
While I believe this issue is a battle for another day, and it very well may be, I feel
compelled to dispute their position since they brought it before the council via
their letter to Bob Manis.
The letter Maderas wrote to Bob Manis at the City indicated they believe they
should not have any further obligation to provide water to the Lower Sycamore
Creek residents (hereinafter referred to as "LSC"), and thus do not have to
reimburse the Barkins for water truck deliveries nor reimburse the Barkins for
drilling a necessary deeper well, despite the obligations laid out under the CUP
page 9, paragraph "N". Maderas attempts to support its position by citing 2
cases. The "Nolan case" (Nollan v. California Coastal Commission, 483 US 825
(1987), and the "Ehrlich case" (Ehrlich v. City of Culver City, 12 Cal 4th 854 (1996).
2 of 5 ATTACHMENT A August 15, 2017, Item # 4.2
Maderas argues that there is no "nexus" between the Maderas use of
groundwater and the insufficient water supply for the Barkins. (Nollan case). As
such, Maderas continues to suggest that the City cannot impose any fees or other
mitigation costs on Maderas (Ehrlich case).
The brief response to Maderas's position is that both cases are inapplicable and
do not relate or pertain to the matter and issues at hand.
In the Nollan case, the court outlined the need for a "heighten scrutiny" of a
"close nexus" in cases where the government conditions a grant of land -use
permit(s) conditioned on the property owner's agreement to dedicate a portion
of his land for public use. The Ehrlich case applied this "heighten scrutiny" in a
case involving the imposition of fees on a private landowner in exchange for a
permit. However, if the government is not conditioning a land -use permit in
exchange for the landowner giving land or paying fees to the public, or for the
public benefit, then neither the Nollan case or the Ehrlich case applies.
In our matter, because the conditional use permit applicable to Maderas does not
require Maderas to dedicate any portion of its property to the public or pay any
money to the public, in exchange for the permit, the "nexus" requirement does
not apply.
However, a recent case that hits on all point and does apply to our matter is the
"Lynch case", more affectingly referred to as the "seawall case" (Lynch v.
California Coastal Commission, 2017 DJDAR 6685. This is a case which occurred in
Encinitas, right in our back yard of North County, just last month.
In the Lynch case, owners of two (2) costal bluff properties wanted to build a
concrete seawall, reconstruct a stairway to the beach below them, and build their
project. The Coastal Commission approved the permit subject to three (3)
conditions. They were: (1) prohibited reconstruction of the stairway; (2) the
permit would expire in 20 years; (3) owners need to reapply for a new permit in
20 years.
3 of 5 August 15, 2017, Item # 4.2
The property owners objected to the conditions and filed a lawsuit. During the
legal proceedings, the property owners complied with all of the other conditions
and got the permit and built the seawall.
The property owners continued to litigate their objections but the Supreme Court
abruptly and adamantly denied their challenge. The Supreme Court held that by
accepting the benefits of the permit and building the seawall, the owners
effectively forfeited the right to maintain their objections. The court relied on
that long standing equitable maxim that "he who takes the benefit must bear the
burden". Thus the court concluded that the owners obtained all the benefits of
their permit when they built the seawall and cannot now be heard to complain of
its burdens.
This is exactly the situation we have now. Maderas obtained its permit to build its
clubhouse for the golf course, and the grant to use wells 4 and 5, which had been
proven to directly impact the LSC residents. They accepted the terms of the
conditions of the CUP, including, but not limited to paragraph N on page 9, which
states in part: "The applicant shall guarantee water service to the lower Sycamore
Creek area and its residents. In the event groundwater supplies become
inadequate to meet the domestic and non-domestic water needs of the residents
and properties in that area, the applicant shall supply water to meet those needs
in such quantities and for such periods as necessary to meet those needs at the
applicant's sole cost and expense."
The language is clear and specific. Mayor Cafagna and all of the city council
approved CUP 90-13M(2). Their stated intent and desire was to protect the
safety, health and welfare of the residents of LSC area. In order to accomplish
their goal, they intentionally rejected any time limits on the conditions in order to
allow the provisions in paragraph N on page 9 to survive indefinitely.
Based on the above, Maderas's legal position to avoid its obligations under CUP
90-13M(2)and (5) is without merit and their attempt to challenge the terms under
the CUP is simply not available to them under the Lynch case, (supra). Maderas is
subject to all of the terms of CUP 90-13M(2) and (5) and must abide by said
terms.
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Thank you for taking the time to read this correspondence, and I look forward to
coming before you and addressing these and other issues at the council meeting
Tuesday night August 15, 2017.
Sincerely,
David Barkin
5 of 5 August 15, 2017, Item # 4.2