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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. 4 of 5 August 15, 2017, Item # 4.2 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