Item 4.2 - ADDITIONAL MATERIAL posted 8-14-17OF P) r
CITY OF P O WAY
MEMORANDUM T1 C'
C'
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
(858) 668-4658 / imartin(a)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:
Wendy Kaserman Morgan Foley Tina M. White
Assistant City Manager City Attorney City Manager
1 of 4 August 15, 2017, Item # 4.2
FSG J
FisOe, SPIEGLEP, GINBBURG & JAGouxzsa, APC
Mayor Steve Vans
Members of the City Council
City of Poway
13325 Civic Center Drive
Poway, CA 92064
Phillip L. Ginsburg
Charles E. Jagolinzer
Andrea Contreras Rosati
Mark A. Spiegler
Joseph J. Fisch (HET.)
August 11, 2017
Of Coun.el
Richard Glasnert
•Certified Specialist
E.tate Planning, Tru.t
& Probate Law, The State
Bar of Clift rni.
Re: Conditional Use Permit No. 90-13M(5) / August 15, 2017 Agenda Item
Dear Mayor and City Council:
The purpose of this letter is for Maderas Golf Course ("Maderas") to respond to David Barkin's
correspondence dated July 21, 2017, and August 7, 2017. We want to make clear first and foremost
that Maderas will continue to fulfill its responsibility to provide water to its neighbors when water
usage impacts the neighbors' water supply. As long as Wells 4 and 5 are closed, however, there
is no evidence that Maderas's water use affects the Lower Sycamore Creek neighborhood.
Maderas disagrees overall with Mr. Barkin's letters because they are not substantiated by scientific
evidence. Furthermore, Maderas objects to the assumption that Mr. Barkin need only ask for
reimbursement without any thought for whether his use is reasonable. More specifically, Maderas
states as follows:
1. There is no nexus between Maderas's water use and the Barkin family's low water
sil 1 -
As Maderas discussed in our letter dated May 26, 2017, and as Mr. Barkin has admitted in
his letter dated July 21, 2017, only Wells 4 and 5 have a hydrological connection to the
Lower Sycamore Creek neighborhood. Because Wells 4 and 5 have been capped since
2015, there is no nexus between the Barkin family's recent lack of water and Maderas's
groundwater use that is, Maderas's groundwater use did not cause the problem the
Barkin family is experiencing. To enforce a condition without an underlying nexus
would be an unconstitutional taking. See generally, Nollan v. California Coastal Comm'n
(1987) 483 U.S. 825 [97 L.Ed.2d 677, 107 S. Ct. 3141].
Mr. Barkin references Lynch v. California Coastal Comm'n (2017) DJDAR 6685. This
case is distinguishable. In Lynch, residents who received a permit to build a seawall filed
a lawsuit challenging objectionable conditions of the permit, but built the seawall while the
lawsuit ensued. The Court ruled that the residents received the benefit of their permit and
therefore could not challenge the conditions to which they objected.
530 B Street, Suite Boo, San Diego, CA 9210111 1: 61g. 2 34 1551 1 Fa.: 619 234 1568 1 ww-fsgjlaw mm
2 of 4 ATTACHMENT A August 15, 2017, Item # 4.2
Mayor Steve Vaus
Members of the City Council
August 11, 2017
Re; Conditional Use Permit No. 90-13M(5) / August 15, 2017 Agenda Item Page 2 of 3
Here, Maderas is not challenging the permit. Maderas is challenging the City Council's
potential new decision requiring Maderas to pay money for an impact that was not created
by the golf course operation. Furthermore, and unlike Lynch, it cannot be argued that
Maderas has received the benefit of its permit when Maderas has shut down Wells 4 and
5. Plus, Maderas is still willing to continue to provide water to any of the Lower Sycamore
Creek properties if it uses wells in the Eastern zone.
2. Maderas's Conditional Use Permit Does Not Allow Mr, Barkin to Choose the Method of
Water Delivery.
Mr. Barkin's letter dated July 21, 2017, states that Issue #1 is for the Council to confirm
Maderas's obligation to reimburse him for truck deliveries and for his new well. The text
from Conditional Use Permit No. 90-13(M)(5)("CUP"), condition M, which gave rise to
this hearing, reads as follows;
"In the event groundwater supplies become inadequate to meet the domestic
and non-domestic water needs of the residents and properties in [the Lower
Sycamore Creek neighborhood], 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 alternatives for
supplying such water service shall include deepening wells, trucking and
storing water on site(s), or extending a temporary aboveground [sic] water
line from the Highland Ranch area or closest point. The applicant may
select the alternative and shall be responsible for all costs associated with
implementing continued and uninterrupted water service. In the event of a
dispute between any resident and the applicant over the adequacy of the
water supply or the adequacy of the remedy implemented by the applicant,
the City Council shall determine which of the above stated alternatives is
to be implemented...." (Emphasis added).
As is stated above, the CUP assigns Maderas the ability to select the water service
alternative. In the event of a disagreement, a resident may request the City Council to
resolve the disagreement. Here, Mr. Barkin drilled a well without consulting anyone,
usurping the City Council's jurisdiction. Without waiving Maderas's above position
regarding the illegitimacy of applying the condition, Maderas should not have to reimburse
Mr. Barkin for a choice he made without City Council approval.
3 of 4 August 15, 2017, Item # 4.2
Mayor Steve Vaus
Members of the City Council
August 11, 2017
Re: Conditional Use Permit No. 90-13M(5) / August 15, 2017 Agenda Item Page 3 of 3
3. Mr. Barkin has provided no evidence to support that his water use is reasonable.
Since the CUP was passed, the Barkin family built a second residence on their property.
Last spring, Mr. Barkin started ordering "double fills" to receive a lower "per fill" price,
which should have reduced his need to re -fill, but he still required monthly fills. One
month, he required a third fill because he wanted to top off the water in his pool. There
must be a reasonableness requirement to the amount of water Mr. Barkin can use and the
amount of money he can demand from Maderas. Even if the Council could enforce the
CUP condition requiring Maderas to supply water to the Barkin family, that requirement
cannot be limitless.
Maderas has sought to be a good neighbor, and we would be the first to take action if our
water use impacted one of the residents in our neighborhood. For as long as Wells 4 and
5 are capped, however, the golf course's water use will have no effect on the Lower
Sycamore Creek residents' water supply. _
There is no other explanation for Mr. Barkin's lack of water but the existence of a
dysfunction unique to his old well. Even when Mr. Barkin's well ran dry, there was water
in the Lower Sycamore Creek Test Well. Until now, Mr. Barkin had the shallowest well,
and he is the only neighbor to experience a water supply problem. Maderas's letter dated
May 26, 2017, noted that Maderas paid more than $60,000.00 to deepen the wells or drill
new ones for the Lower Sycamore Creek residents. Mr. Barkin was one of those residents.
fie chose a shallower well while his neighbors chose deeper ones. It is obvious now, with
his deeper well, that this has been the driving problem all along—not Maderas's use.
In order to avoid issues like this in the future, Maderas respectfully requests that the CUP be
amended, as suggested in the Staff report, to require Maderas to supply water to Lower Sycamore
Creek residents only if Maderas resumes the use of wells in the Easter zone.
We look forward to finding a workable solution on August 15.
An ea Contreras Rosati for
FISOH, , SPIEGLER, GINSBURG
& JAGOLINZER, APC
MASAI
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4 of 4 August 15, 2017, Item # 4.2