Item 9 - Minutes of the Meeting May 27, 1986CITY OF POW, CALIFORNIA
MINUTES OF TM CITY COUNCIL REGULAR MEET=
MAY 27, 1986
The May 27, 1986, regular meeting of the City Council of the City of Poway
was called to order at 7:00 p.m. by Mayor` Kruse at the City Council Chambers,
13325 Civic Center Drive, Poway, California. _
=MING RSL CAIS,
Bob EMery, Linda Oravec, Mary Shepardson, Carl Kruse
ABSCOUNCILMEMBERS ENTAT ROLL CALL
Bruce Tarzy
STS MEMBERS Phi
James Bowersox
Marjorie Wahlsten
Steve Eckis
John Fitch
Patrick Foley
Lee I,wis
Bill Toon
Reba Tow
Jim Decker
Brad Kutzner
Alan Schuler
Jo Seibert
PLEDGE OF Aist1EGIANCE
City Manager
City Clerk
City Attorney
Assistant City Manager
Assistant to the City Manager
Director of Community Services
Director of Safety Services
Director of Planning Services
Sheriff °s Captain
Senior Civil Engineer
Senior Civil Engineer
Deputy City Clerk
Deputy Mayor Shepardson led the Pledge of Allegiance.
PUBLIC ORAL Ca4L1NIC.ATIONS
Mayor Kruse explained the procedure for Public Oral Communications. There was
no one present wishing to speak.
ITEMS 7-12
CONSEl1fi2 CALENDAR
Motion by CouncilinemberEmery, seconded by Councilmember Oravec, to adopt the
Consent Calendar as follows:
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Page 2 - CITY OF Paw - May 27, 1986
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7. Ratification of Warrant Register: May 15, 1986
8 Approval of City Investment Report: April 30, 1986
9. Appropriation of -$317.89 to the Department of Safety Services' Paramedic
Donation Account (1-503-414) to purchase two Life Pack 5 Case Protectors.
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10. Adaption of the following resolutions regarding ballot propositions on the-
June
heJune 3, 1986 ballot:
A. Resolution No. 86-054 entitled, "A Resolution of the City Council of
the City of Poway, California, Supporting Proposition 46 Restoring
General Obligation Bond Authority to the Voters;"
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B. Resolution No. 86-055 entitled, "A Resolution of the City Council of
the City of Poway, California, Supporting Proposition 49 Nonpartisan
Elections,"
C. Resolution. No. 86-056 entitled, "A Resolution of the City Council of
the City of Poway, California, Endorsing Proposition 51 the Fair
Responsibility Act of 1986."
11. Adoption of Resolution No. P-86-34 entitled, "A Resolution of the City
Council of the City of Poway, California, Approving Minor Develoament Review
86-39, Assessor's Paracel Number 323-092-51 (Portion)," for 13775 Paseo
Bonito, Lot No. 19 of Las Lamas Estates, Faith mohling applicant.
12. Adoption of Resolution No. P-86-35 entitled, "A Resolution of the City
Council of the City of Poway, California, Approving Minor Development Review
86-40, _Assessor's Parcel Number 323-092-51 (Portion)," for 13728 Paseo
Bonito, Lot No. 13 of Las Lcmas Estates, R. B. Mohling, applicant.
_motion carried 4-0 with Councilmember Tarzy absent.
ITEi�+I 4
TENTATIVE . T f Q P 83-02 TIME EXTENSION
APPLICANT RICHARD 19-MLER
Mayor Kruse oganed the public hearing.
Staff report by City Manager Bowersox. T-% stated this is the second request
for a time Extension on this 166 lot division of 175 acres located approximately
1,000 feet east of the easterly terminus of Garden Road. Under the terms of the
lawsuit settlement agreement regarding this property, three time extensions must
be granted by Council. Recammendation is to approve a one-year time extension
with conditions.
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Page 3 CITY OF POWAY - May 27, 1984
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Speaking against staff recommendation:
Penne L. Zawacki, 14950 Garden Road. She expressed concern regarding the
proposed building because the: property is located in the floodplain.
City Manager Bowersox stated same of the property is within the-
floodplain,
hefloodplain, but the 1666 units will be constructed outside the 100 year
floodplain.
motion by Councilmember Emery, seconded by Councilmanber Sheoardson, to close
the public hearing and adopt Resolution No. P=86-36 entitled, "A Resolution of
the City Council of the City of Poway, California, Approving Tentative Tract ,Map
83-02TE, Assessor's Parcel Numbers 323-071-07, 08, 09, and 323-080-01.11 Motion
carried 4-0 with Councilmember Tarzy absent.
ITEM
TENTATIVE PARCEL MAP 86-02
APPLICAW DONALD PARCH
Mayor Kruse opened the public hearing and announced he will abstain from
discussion or voting on this item because: of a potential conflict of interest
,-. between his employer and the applicant. He turned the gavel over to Deputy
Mayor Shepardson.
Staff report by City Manager Bowersox. He stated the request is for a two lot
division of four acres, located approximately, 120 feet north of Gavin Vista Road
in High valley. Recanmendation is for approval with conditions.
In response to Council question regarding emergency access to the property, City
Manager Bowersox stated emergency vehicles will take access in the same area as
theequestrian/pedestrian trail, which at the present time is a dirt road.
Speaking in favor of staff recommendation:
Don _Ayles, representing EItB Engineering, 13260 Poway Road. He requested
deferment of the standard fees until building permits are issued. Council
agreed to the deferment.
Motion by Councilmember Emery, seconded by Councilmember Oravec, to close the
public hearing, issue a Negative Declaration, and adopt Resolution No. P --X36-37
entitled, "A Resolution of the City Council of the City of Poway, California,
Approving Tentative Parcel Map 86-02, Assessor's Parcel Number 278-181-25,"
adding the requirement that emergency access be provided in the area of the
trail, and deferring the payment of fees until building permits are issued.
_Motion carried 3-0 with mayor Kruse abstaining and Councilmember Tarzy absent.
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ITEM 6
CONDITIONAL "USE .PERMIT 86-03
APPLICANT COTIJAS TACO SHOP
Mayor Kruse opened the public hearing.
Staff report by City Manager Bvwersox. He stated the request is to permit the
use of the existing drive-through lane for the taco shop located at 13095 Paaaay
Road. This request was before `Council as a Pre -Development Conference: on
January 9, 1986, and Council advised the applicant that a conditional, use permit
application would be required since the drive through lane has not be in use for
six months. Recommendation is for approval with conditions.
Speaking in favor of staff recommendation:
Maria Rodriquez, translator, spoke on behalf of Antonio Gonzalez, 12061
Franklin Avenue, San Diego, CA., owner of the business.
John Saathoff,'6322 Mission Gorge Road, San Diego, representing Mrs. Helen
Bugg, owner of the property.
Motion by Councilmember Emery, seconded by Ccuncilmember Shepardson, to close
the public hearing and adopt Resolution No. P-86-38 entitled, "A. Resolution of �-
the City Council of the City of Poway, California, Approving Conditional Use
Permit 86-03, -Assessor's Parcel Number 317-472-15.11 4�
Following discussion regarding the excessive number of driveway cuts on Poway
Road in this vicinity, Council directed staff to work with the adjacent, property
owner to close the unused driveway to the east of this site.
Councilmember Emery amended his motion, to include the direction. to staff
regarding closing the driveway. Councilmember Shepardson seconded the amended
motion. Motion carried 4-0 with Councilmember Tarzy absent.
CITY A'T'TORNEY ITEMS
14. City Attorney E,ckis stated he received a letter from Attorney Jeffrey N.
Garland, on behalf of Mr. Earl Clampett and other property owners in the
area of the proposed Gateway/Stonegarden develoanent.. Mr. Garland indicates`
it is the intention of the property owners to ounce litigation if the:
matter of the extension of CUP 83-04R is not resolved to their satisfaction.
In light of these facts, Mr. Eckis requested ,a dosed session pursuant to
Government Code section 54956.9 (b), significant exposure to litigation.
Motion by Councihrnmber Shepardson, seconded by Councilmember Oravec, to
find that based on the advice of counsel, a significant exposure to litiga-
tion exists in the matter of Conditional Use Permit 83-04R. Motion
carried 4-0 with Councilmember Tarzy absent.
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COUNCILMEMBER ITEMS
15. A. Councilmember Rnery stated that the narked -up driveway at the
entrance to the Fieldstone Project, The Pond, has not been replaced.
He, also asked when the required landscaping along Panerado Road will be
installed by the developer. Director of Canmunity Services Lewin 1
stated it will be installed next week.
Be Councilmeber BWty asked about the concrete poured at the intersection
of Twin Peaks and Midland Road. City Manager Bowersox stated it is
still curing.
C Council member IIrery stated the equestrian/pedestrian trail on the east
side of Culebra Hills subdivision needs to be cleared.
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D. Councilmember Emery asked if groups using the ball field at hake Poway
will be allowed to use the new concession stand to sell knacks, since
the new concession contract includes the use of that facility.
Director of carmunity Services Lewis stated the new contract has no
provisionfor permitting others to use the facility, however, the con-
cessionai re has agreed to allow non-profit: groups to sell snacks frau
the facility on a case by case basis.
-E.Councilmermber Ewry commented on Palanar/Panerado Hospital District °s
refusal to pay their share of the Life Flight program. He asked if y
their refusal. to participate will result in a reduced level of service
for our citizens. City Manager Bowersox stated it will not affect the
service in the field.
lie A. Councilmember Shepardson asked about the political signs that have been
posted in the public right of way. Director of Planning Services TOUIV
stated the candidates have been notified of Poway Is sign regulations
and our code enforcement off icer will be actively -enforcing them.
Be Councilmember Shepardson asked that broken concrete in the creek at
Poway Road near the Quik Check gasoline station be cleaned out.
RECESS AND CLOSED SESSION
City Attorney Eckis stated for the record that he indicated by telephone to
Attorney Garland and Mr. Mounts that action may be taken following closed
session and invited them to attend the meeting.
Mayor cruse recessed the meeting at 7:30 P.M. and called for a closed session as
requested by City Attorney Eckis regarding CUP 83-04R.
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Mayor cruse- ca -Li -ea the meeting aacx into open session at i yrs Yap. All
Councilmembers were present. He stated that he would like to have the City
attorney sumnerize the information that Council received in closed session.
CITY AMRNEY EMS: For the record, I am filing the closed session memorandum,
which I neglected to do before we went into closed session. It is acceptable
under the law to file it at this point. It is being filed. with the City Clerk.
At Council's request at last week's meeting, I have reviewed the I status of
Conditional Use Permit 83-04R. I have researched the applicable law. I have,
discussed that conditional use permit, and its status with the Planning Director,
and the Assistant Planning Director. I have had a telephonic conversation with,
Mr. Clampett. I have had a conversation with Mr. Garland, who has written me
his letter dated May 23, 1986. I will provide a copy to the Clerk so that it
may became a part of this mord, and I have shared that letter, with. you. I
have*also-spoken with Mr. Mounts, who telephoned me today and discussed with me
the extent to which he asserts that his company relied on the action of the-
staff.
hestaff.
These are: the facts as I understand them based upon all of my discussions with ,
all of the people I have just referred to. In January of 1984, the Council
approved Conditional Use 'Permit 83-04. Subsequent to that date, the: developer
obtained a grading permit andpermits to install. public improvements, and bet- r.
ween. that date and this date has essentially completed the grading :and the.
public improvements rewired of this project.This grading has been performed .'.
and improvements installed at substantial expense, which has been estimated for 4
me and provided in memorandum form to me by the staffs In many respects, that
grading and the public improvements are site specific In that regard, I've had
a. lengthy discussion with the Assistant Planning Director in particular, who has
discussed with me the -nature of this grading, the manner in which it is coot
dnated to the project that was approved for the conditional use permit and
coordinated with the plans which have been submitted. Essentially, it is graded
in a fashion which is inconsistent with the residential use which is permitted
as a matter of right within this zone.
In March of 1985, the applicant filed his application for a -revised conditional
use hermit for this project, which was designated by the staff as Conditional
Use Permit 83-04R. on April 16, 1985, the City Council, after public hearing,
granted Conditional Use Permit 83-04R, enumerating certain conditions in the
Resolution of Approval, and of course, subject to all of the provisions of the
Poway Municipal Code including Section 17.48.080, which is the section which, in
part, deals with when a conditional use permit lapses.
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on June 13, 1985, on the basis of that approval, the developer submitted
I building plans which were subsequently returned: with corrections on several
occasions until on December 20, 1985, the Department of Planning Services indi-
cated to the applicant that the plans were satisfactory, and that building per-
mits would issue upon the request of the developer.
on January 8, the developer wrote to the City of Poway requesting an extension
of our plan check time for an additional 180 days. A copyof that letter has
been submitted to you and will be made a part of this record. The Department of
Planning Services did not formally respond to that request for approximately
three months, until its letter of April 14, 1986, which was about twodays
before this conditional use permit would expire, if it were to expire by reason
of failure to issue building permits within a one-year period. By letter of
that date, a copy of which.I have provided to you and which will become a part
of this record, the Department of Planning Services did grant the developer's
request for an extension of building permit application to June 13, 1986.
it appears; frau my discussions, both with our staff and with i+ir . Mounts, that in
fact, the developer relied upon both the three-month silence of your staff bet-
ween January and April. and also upon the staff's letter of April 14, 1986, in
not requesting the issuance of building permitsi. I would emphasize again that
the status of the plans is such that the developer could have pulled building
permits during that period of time, and insofar as we are concerned from a
planning and building standpoint could pull building permits at this time.
The .extension of time to pull building permits was granted pursuant to the
Uniform Building Code, Section 304C, and in my opinion, it was reasonable for
the staff and the developer to believe that one such extension to pull building
permits after the approval of plans by the staff was authorized by that UBC sec-
tion. The Pcway Municipal Code, with regard to the lapse of conditional use
permits provides that the conditional use permit shall lapse and become void
unless within a one-year period one of four different events occurs one of
those events is the issuance of building` permits, the actual. issuance. That, of
course, did not occur within the one year from the date of approval of the
revised conditional use permit on April 16, 1985. Subsection Four. of
17 48 080A, however, provides that the permit shall not lapse if prior to the
expiration of the one year, the use, which was the subject of the use permit has
commenced. This is so, even though a building permit may not have issued during
that one --year period. TAbether`or not the use which was the subject of this con-
ditional use permit was commenced within the one-year period, is uniquely a
question, of fact For this City Council. to resolve. That issue, in my judgement,
is not determined as a matter of law. In the present case, the building plans
have been approved, and the permit time has been extended by the staff.' The
nature of the grading and the public improvements were site specific and the
amount of money expended in reliance on the conditional use permit is substan-
tial. The grading permit and. the public improvement permits have been obtained
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M i o 1986 ITEM
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-.and all of that work has been done and the oTend tore of the money in conjunc-
tion therewith. When all those factors are taken together, this Council can in
its discretion determine that those actions constitute cneement of this use,
at least ccmiencement of the use subject to the issuance of buildingpermits
within the period of time for which the developer has been given an extension..
It appears to me that the delay on the part of the staff and the letter issued
by the staff granting the extension was relied upon by this developer, and in
all probability were this matter to be reviewed by a court, a court would find
that the City, would be precluded from preventing the developer 'frown pulling
building permits between now and . June 13th. I offer that to you as my legal
opinion as. to what a court would do if it reviewed this matter. Accordingly, it
is my recam iendation that you adopt a resolution which I have presented to you F`
which recites the facts that I: have just read into the record and which takes
action as follows: it would make three findings, first, that the conditional'
use permit dial not lapse, if any one of the four alternatives provided in the - F
code section that I have referred to occurred within a period of one year;
secondly, it would find that the use has commenced for the reasons that I cited
while reading the facts into the record,* subject to the issuance of a building
permit on: or before June 13; and thirdly, it would find that the delay on time
part. of staff in responding to the developer's; letter of January 8th, together l
with the issuance of the staff letter on April 14th, caused the developer to
delay pulling building permits, and the reliance of the developer in that regard
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was reasonable and the City would be precluded from denying the developer that
additional time to June 13 within which to pull building permits. It is my
recommendation to you that you adopt that resolution. I would: suggest that you
invite, Mr. Mayor, any comments that the developer or anyone, wishing to speak in,
opposition might have this evening. As I indicated before, I did advise both
Mr. Mounts and Mr. Garland that the Council might take action after coining out
of closedsession, and so they have notice: that they might have the opportunity
to be heard this evening.
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MAYOR KRUSE: Does Council have any questions of the City Attorney? OK, at this
point in time, I will invite any comments frau those in the audience to speak on
this matter. Please cane forward and state your name and address for the 3
record, please.
GORDw 1YJ€ m: Gordon Mounts, and my office is in Rancho Bernardo. My concern.
:here is obviously a lack of sync between staff and myself . I am not here to
cast any blame. It is just a lack of sync. My problem is very simple. The
reason why there: has been a delay, not in the rrmecTha ics as discussed this
evening. Because of the nature and size of the project. The fact that the pro-
ject is upscaled, it has required an enormous amount of work to bring about a
lender which we have now established, a major eastern, and that has now been
approved. My difficulty is as follows. By the 13th, is it going to be possible
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Page 9 - CITY OF POWAY - May 27, 1986 d "
for us to pull penmits to go through the process of pulling the permits . out
is somewhere in the neighborhood of $385,000. The $385,000 is conveyed. Will
the building department, and or the City, or City staff be able to respond that
quickly. In failing -that, can the project then be emasculated by the very
nature of the burdon placed on staff? I'm not suggesting staff would do this
for any reason other than the burdon. I'd like to have the designer of the
building and the one who is going to supervise the construction comment on one
or two things when I finish, which I'm about 'to do. I fail to see how-, unless
somebody can guide me- a little bit, we can do it all by the 13th. That. is
really the only issue that's moot. As your counsel has indicated, we have. an t
enormous amount of money and have so fabricated that land that I don't know what
on: earth the use could be the way it`s noww fabricated except for the retirement
facility. I'd like to ask Mr. Chase to step up if he would, and talk about.
three or four of the mechanics. Is that. agreeable?
COUNCIIMEMBER E{4ERY: I have a question of the City Attorney as to the rela-
tionship
elatonship of the discussion to the recommendation of the City Attorney, as to
what is being presented and the questions that are being asked. Are they celefl
vant to the resolution that was recam ended by the City Attorney, in the City
Attorney's opinion?
CITY ATrORNLY E MIS: tar. Mayor, I don't know what this speaker is going to
address. It may very well be that his comments will be pertinent to this issue.
It may be that they are not., and perhaps we need to listen for a minute or two f,
before we can make that decision.
JIM CHASE: Jim Chase, 11717 Bernardo Plaza Court, I'm the architect on the
project, and obviously, we did not expect to be in this situation. We learned
about this just a few days ago. I think the City Attorney pretty well outlined
the sequence of events that occurred that brought us to this point. As Mr. f
Mounts has pointed outs we have a very short time fuse in which to deal with it.
Back in April, when I contacted the planning staffs we knew that this condition
was in there. We knew that we had to deal with it. I. contacted the planning
staff and was told that there wasntt a problem, that we had developed our
building plans to a point and had hundreds of thousands of dollars worth of
building plans. We were: obviously, proceeding. As their letter pointed out, it
was a_lengthy process in which to develop the plans and to -take them through
plan checks. Not only the architectural plans, but the engineering plans, the
landscaping plans and all the other plans that. are related to this project. I
was told that since we had already done this and were obviously pursuing the: pro-
ject in good faith, we hadn'-t abandoned the project, we hadn't been derelict in
'Proceeding with it, that we didn't have a problem. We had fulfilled the intent fi
of the condition, and based upon that, they wrote us that letter that we had
until June 13th. It was also indicated to me that we wouldn't have any problem
QUN 10 1986 ME—M
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Page C OF POWAY May 27, 1986
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if we needed some more time. We could request an extension and that the j
planning department would write us another letter saying that 'we. had some more
time:. At this time, of course, Mr. Mounts is pursuing the financing, which is a
complicated process. He and -I are coordinating our efforts,. A11 of a suddea we
find out that there might be a specific, cut off date in teens of whether we are
pursuing this or not. we are standing here on May 27th to, determine whether or
not we can get permits pulled by June 13th. We haven't even had the time or the
cspportunity yet to contact staff to go through the engineering and everything
else to _make sure that all of the little things- that they need are in order,
that there ' s not going to be sow little glitch. . One of the things that canes
to mind right now is there's been a lot of staff work that we've done as. far as
getting the horse trail all put together, both the location of it and 'now, sub-
sequently, the easement to it. We anticipate that we might have a problem with
a thing like that, because some of the people that are on the trust deed that
need to sign off on it in order for us to record that document are going to be
difficult to find. There are a lot of names that have to be contacted. We are.
concerned about the time span that we hare_ now that all of a sudden is
confronting us. That's the issue, and of course getting the lender to fund
money and everything else in that short amount of time is going to be a another
problem. Just to summarize, these are the kinds of things we are all of a sud-
den facing right now. We would like. to say we are going to have no problem F.. -
pulling permits by June 13th.'
- MAYOR KRUSE: Question of staff. Was there a request by the developer to extend
beyond June 13th? j
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CITY ATTORNEY EMS: Mr. Mayor, the letter of January 8, 1986, is attached to
the material that I provided to you and will become a part of the record. It
was a request for an extension of 180days to permit the owner that _additional
time to fulfill the permits. That was on January 8th. That was granted to June
13th. Now, whether that was a request to extend 180 days beyond the date that
it would (end of tape
J324 CHASE: ...departments were taking longer than that, and they contacted us
and said we need an extension. That was the extension of the actual _suhnittal
of the building permits themselves. The request I'm talking about was a phone
call that I made: on April 7th to the planning staff that related to April 16th, .A
the one year. As you letter from the City said, "as discussed, the resolution
does state project approval will become null and void if building permits are
not issued. This is when I talked to the planning staff and said, "What do we
do about this? Do we request an extension, what do we do?" And they said the
extension is good if you are not able to receive building permits by then, and
if you have not filed an additional extension. we expected to be standing here
filing and addition extension request because of the things that we are facing
` right now and not be in an issue here as to whether or not we are pursuing this
diligently.
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CITY ATToRNE°Y'k7GKIS: It is my opinion, -Mr. Mayor, that the extension that has
been granted is the extension that can be granted.
- s? v a resolution which has been pro
-
MAYOR KRUSE. Council, any comment We have
posed to us by the City Attorney. It is Resolution NO. 06-057.
COUNCIrER SHEpARDSON:: I move that we adopt Resolution No. 86-057, as recam
mended by the City Attorney.
COUNCILMEMBE ORAVEC: Second.
MAYOR.]KRUSE Mr. Murray,
CITY ATTORNEY EMUS: The motion is deemed withdrawn for the purpose of
listening ` to this'speaker.
FRANK MURRAY: Frank Murray, 12712 -Coachman. Court. I don't think the issue
here tonight is whether we life- Stonegarden or don't like Stonegarden. That's
been decided. We accept. The issue tonight is, is the City going to enforce its
cwn municipal code. We've heard the developer plead diligence, which I
question -because'he was contacted by the building department on the 21st of
December saying "Came get. your Plans:." Then he requested an extension for
another 180 days. He pleads ignorance of the municpal code. Now it:seems to me
i that if an out of town developer is going to come into our city, he should abide
by our rules.. He is relying on the CUP. I look at the municpal code that says
that CUP is now void. Because as Mr. Garland's letter stated, the application
by Sharon Crockett is a nullity. She had no authority whatsoever to issue that
extension. Naw, the mayor, z believe, was quoted in last Saturday's Bernardo
r News, scmething to the effect, "We will not insure the economic viability of a
developer's project." This developer stood here a year ago April and said that
he had a new partner who said his 120 unit retirement facility under 84-04R was
not econan'cally viable, and by a 3-2 vote of this Council he was granted 144
units 'bbw we are going to allow hist an extension because of his negligence,
for whatever .reason, in not requesting a continuation or extension in accordance
with our awn municipal. code. Now are we going to enforce. it, or aren't we?
That's my question. Oh, could ,I say one more thing? If we are considering a
resolution here tonight, or if you are, I would like -to point out for the record
that it was not on this agenda. There arras no public notice given to anyone
that it would be taken up tonight.
COUNCIIMIBER SHEPARDSON I would make the motion again.
' COUNCI ER ORAVEC: Second.
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