Item 3 - MDR 04-90 ADDITIONAL MATERIAL
Limited DistributioQ: -January 18, 20\>5
PETERSON & PRICE
A PROFESSIONAL CORPORATION
)WARDF. WHlTTLER
.ARSHAL A. SCARR
MATTHEW A. PETERSON
LARRY N. MURNANE
CHRISTOPHER J. CONNOLLY
VICTORIA E. ADAMS
ERIC J. PROSSER
EWlSE H. FEINSTEIN
LAWYERS
Union Bank of California Building
530 "B" Street, Suite 1700
San Diego, California 92101-4454
Telephone (619) 234-0361
Fu (619) 234-4786
www.petersonpric:e.com
Of COlJI<SEL
PAUL A. PETERSON
FileNo.
January 18, 2005
HAND DELIVERED
DATE 11/1105-
'"'-4, . 4639-003
Hon. Mayor Cafagna and
Members of Poway City Council
City of Poway
P. O. Box 789
Poway, CA 92074-0789
AUn: City Clerk
RECEIVED
JAN 1 8 2005
CITY OF POWAY
CITY MANAGERS OFFICE
Via fax: (858) 668-1207
and HAND DELIVERY
Re: Item NO.3 on the Council's AQenda of Tuesdav. Januarv 18. 2005
Minor Development Review 04-90
Property Owners on Eucalyptus Heights Road and 14800 block of Mina De
Oro / John Fitch, Applicants
A request for City Council approval of the installation of a vehicle access
gate across Mina De Oro just north of the Poway Grade intersection within
the Rural Residential A Zone
APN: 321-111-11 and 16
Dear Mayor Cafagna and Members of the City Council:
Our firm represents the interest of the Mina De Oro property owner/Applicants. Therefore,
we respectfully request your approval of the vehicle access gate across Mina De Oro.
ADDroval Should Not Be Conditioned on Litiaation
Mina De Oro is a Drivate drive that serves only the applicants' few homes. Mina De Oro
is not a DubUc street and, therefore, is not even subiect to the Council's Policv relating to Gating
of Streets. In fact, aates alreadv exist that would block access to Mina De Oro from the
northwest, includino chain-locked Qates on the Dropertv of the on Iv oPDonent of this aDDlication.
Menachem Shoval. (See attached photographs.) ,
It should also be noted that the Applicant has not prohibited Mr. Shoval from using the
private driveway to access his property, even though Mr. Shoval alreadv has other leaal and
imDroved access to his proDertv. In fact, the Applicant affected most by Mr. Shoval's use of Mina
10f8
January 18, 2005 Item #2
Hon. Mayor Cafagna and
Members of Poway City Council
January 18, 2005
Page 2
De Oro, Denny Keena, recorded a Notice of Consent on ADril 9. 2004.'whichsDecificallv 6ives
Mr. Shoval Dermission to use the drivewav. Nevertheless, if Mr. Shoval still contends that he has
some other legal right to use this private driveway, the following more practical options are
available to him:
1. Mr. Shoval can bring a quiet title action against any property owners who deny or
dispute his access rights; and
2. The property owners can provide Mr. Shoval with a key or combination to the gate,
in the event his access is ever precluded, and a court then determines that he is
entitled to use Mina De Oro.
It simply makes no sense to require several property owners to file a lawsuit against Mr.
Shoval, or other unknown persons, to quiet title to a driveway which they are undisputedly entitled
to use. The burden of Droof is on the Dartv claiminQ an easement bv Drescription or otherwise.
(Cal. Code of Civ. Proc. Sec. 321; Case v. Uridge (1960) 180 Gal. App. 2d 1, 5.) If the person
has such an easement, then he is entitled to an access key or code for the gate; but he is'not
entitled to preclude the gate. (See, McCoy v. Matich (1954) 128 Cal. App. 2d 50.) However, at
the present time, Mr. Shoval has recorded permission to use the private driveway, and he has
failed to establish any other legal right with respect to it. Therefore, the City should not condition
approval of the gate on a costly lawsuit against Mr. Shoval.
In short, the City of Poway should not involve itself in private civil disputes. If Mr. Shoval
has a legal right on which others are infringing, it is up to him to enforce that right through the
courts. By approving the gate, the City is not allowing or prohibiting Mr. Shoval's use of
Mina De Oro. Whether the other property owners continue to permit Mr. Shoval to access his
property over their private driveway is beyond the City's control or concern.
Conclusion
The Mina De Oro property owners respectfully request they the City Council approve the
Minor Development Review 04-90 for installation of a vehicle access gate across Mina De Oro,
without the condition of a Quiet title action.
Sincerely yours,
Peterson & Price 1
A professio~a r. ' rporation
/c;,(f/Ufj ~ ~
~~v~.-~~rna e
cc: Tamara Smith, Esq.
James L. Bowersox, City Manager
Niall Fritz, Director of Development Services
John D. Fitch
G:\WP\463~~fd}rres\Poway City Councilltr 01-18-05.doc
January 18, 2005 Item # 3
o
C-
O
QJ
o
ro
c
~
en
en
2
u
ro
QJ
~
ro
CJ)
_en
ro
>
o
.c
(/)
"
A
,
-"
u
..Q
e e
'ro0
.c
u'
'UL
e ro
ro e
2~
ro",
0>",
"'0
=-t;
g!ro
o
.c
C/)
~
-0
o C
~ <lJ
O.c
<lJt
00
c
(O~
.s 0
20>
C <lJ
0>.
cnL:
Q) Q)
_ .c
(0-
05
~
.
o
~
o
Q)
o
(1)
c
~
-
(1)
Q)
Cii
<.9
o
L
o
<l>
o
ro
c
~
~
o
-0
c
<l>
E
L
o
Z
o
~
o
CD
-0
CO
c
2
~
o
-0
C
Q)
.r::
t
o
Z
- -
--
'r- eo.
""
"-
Oo (:
c,
'"
- .
",
=> co
- (,)" w
-. "0 ;:
~
~ck~ig~a..9.n~.~E!~ting tO~9Q!:> ',=:.:.~':>:..:_ :: ==~ . ::..:"": >_
i.i;;;;';;;ri;;;;'~~
From:
To:
Date:
Subject:
<Amslawoffice@aol,com>
<mcafagna@ci.poway,ca.us>
Tue, Jan 18,2005 1:40 PM
Meeling tonight
Dear Mayor Cafagna. My name is Alex Schack. I am a Poway resident for the
past 15 years, an attomey, and just finished a two year term as President of
the Poway Youth Soccer League. I am writing at the request of Manny Shoval,
but speak for myself and not as an attorney or for PYSL. It is my understanding
that there is a hearing tonight regarding whether to place an access gate on
Mena Del Oro ( I'm not sure of the spelling). I do not know if I will be
able to attend the meeting so I ask that you please consider the following. Mr.
Shoval at one lime provided me with documents which appear to show the road
as a dedicated public road. It is also my understanding that people within the
community often use the road to access Mr. Shoval's property (over 100
acres) and just walk around and enjoy this part of Poway. I myself, along with my
son, have done so. It is a beautiful piece of land and provides enjoyment as
well as hiking pleasures to many people in the community, I respectfully
request that access to this land not be restricted by a gate, as it would
benefit only a few (I think 8 homeowners) at the expense of the rest of the Poway
community. Thank you for taking the lime to read this, Respectfully, Alex
Schack
1 of 1
January 18, 2005 Item #...1