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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