Item 10 - Consideration of Request to Hold Rehearing on Final Map Approval for TTM21-003 McKee Orchard Sub; PMC 2.21.040Discussion:
Background
On July 19, 2022, at a publicly noticed hearing, the City Council approved (1) Tentative Tract Map 21 -
003 and (2) Development Review 21-002, which collectively subdivide and allow the development of
20 single family homes on 4.77 acres, generally referred to the McKee Orchard Subdivision (the
"Project"). The Project is a density bonus project, whereby providing one affordable unit restricted to
a very low income level, was automatically granted 20% density bonus and other protections under
state law, including unlimited waivers from development standards that would otherwise physically
preclude development of the Project. (See, Cal. Gov. Code§ 65915; Bankers Hi/1150 v. City of San Diego
(2022) 74 Cal. App. 5th 755, 774.) The July 19, 2022 approvals followed a predevelopment conference
held at the City Council's April 6, 2021 public meeting, and a neighborhood meeting on February 22,
2022, held at City Hall.
Along with the two above-described entitlements, as part of the same July 19, 2022 action, the City
Council also approved a mitigated negative declaration ("MND") prepared to analyze and mitigate the
environmental impacts of the Project pursuant to the California Environmental Quality Act ("CEQA").
The MND included several technical studies, including but not limited to a biological resources report,
cultural and historical resources reports, a traffic operations assessment and sight distance study,
Phase II environmental assessments, a geotechnical investigation, and a drainage report. The MND
was circulated for public comment from May 26, 2022 to June 15, 2022. A number of comments were
received, and responses were provide as part of the final MND presented to the City Council on July 19,
2022.
As part of the CEQA process and prior to the July 19, 2022 approval, the City conducted the required
consultation process with the relevant tribes, sending letters to 16 tribes. (See, page 42 of Item 4 at
the July 19, 2022 City Council agenda.) The Barona Band of Mission Indians and La Pasta Band of
Mission Indians responded, and requested a Native American Monitor/Consultant be present during
earth moving activities. (Id.) Since the approval of the Project and subsequent issuance of a grading
permit, these Tribes have had monitors on the Project site every day that such activities have occurred.
There is no appeal process available for any aspect of the City Council's approval of the Project, as is
true for any City Council decision. (PMC § 2.21.010.) With respect to the July 19, 2022 approval of
Tentative Tract Map 21-002 specifically, that approval was final on July 29, 2022. (PMC § 16.10.060.)
NO lawsuit challenging any of the City Council's July 19, 2022 approvals was filed, and the statutes of
limitations applicable for such a challenge (ranging from 30 to 90 days) are now long expired.
On May 16, 2023, the City Council approved the Final Map for the Project, which is an implementing
action that allows the final subdivision map proposed by the already approved Tentative Tract Map
21-003 to be recorded. Preparation and approval of a final map for recording is largely an engineering
task (see, PMC § 16.12.020), and City Council approval is required if it is determined that "the final map
conforms to all of the applicable provisions of the Subdivision Map Act and the requirements of all
City ordinances applicable at the time the tentative subdivision or parcel map was approved or
conditionally approved, any subsequent conditions added, and any rulings made thereunder." (PMC
§ 16.12.030; see also, Cal. Gov. Code § 66458(a).) In other words, final maps must be approved if they
substantially conform with the tentative map, and the applicant has complied with all the conditions
of approval imposed thereon. In some cities, final maps are approved at the staff level. (Cal. Gov.
Code§ 66458(d).)
2 of 28 June 13, 2023, Item #10
Request for Rehearing
The Request seeks a rehearing of the City Council’s above-described May 16, 2023 approval of the
Final Map. This report does not summarize or analyze all portions of the Request, which is
submitted to the City Council for its consideration. However, a number of important procedural
considerations are highlighted below.
First, it is important to note that none of the July 19, 2022 City Council approvals can be legally subject
to rehearing at this time, and doing so would violate both the PMC and state law. However, the
Request appears to be based on allegations regarding July 19, 2022 approvals, at least in part. For
example, the first paragraph of the Request indicates that it is based on alleged “inaccurate and
inappropriate” findings in the City’s July 19, 2022 resolution approving Tentative Tract Map 21-002.
Additionally, under the heading “Reasons for Appeal/Rehearing of the Mckee Orchard Subdivision
TTM 21-003 Approval,” the Requestors cite to Chapter 17.52 of the PMC, which governs the
Development Review process; the Project’s Development Review was also approved on July 19, 2022.
Finally, the Request contains allegations regarding Councilmembers that were on the City Council on
July 19, 2022, but were no longer on the Council on May 16, 2023, when it took the action that is subject
to this Request .
Additionally, it is important to be clear despite numerous mentions of an appeal throughout the
Request, there is no appeal process for City Council decisions, nor could there be, as explained in the
summary portion of this report, and the PMC itself. An appeal of a decision back to the same decision-
maker is not an appeal at all, but instead a rehearing (which are only available if there is new and
different evidence not previously available to the City Council). Just as the United States Supreme
Court is the final decisionmaker whose rulings cannot be further appealed, so is the City Council with
respect to City decisions. A writ of mandate or other legal action filed with the Superior Court is the
only next step.
Setting all of the foregoing issues aside, and even assuming that every word of the Request could be
properly considered by the City Council, the Request still does not appear to contain any “new or
different evidence not available” at the May 16, 2023 hearing, as is required in order to hold a
rehearing. (PMC § 2.21.010.) The phrase “new and different” never appears in the Request, and
instead, the statements made therein all appear to relate to matters occurring and known prior to
May 16, 2023. The only attachments or “evidence” provided with the Request are (1) emails and
documents from fall 2022 regarding Councilmember Grosch’s residence, and (2) a 2021 Cultural
Resources Technical report that is already in the record and included in the Project’s MND when it was
approved on July 19, 2022.
The only reference in the Request to “new information” is in connection with vague allegations of an
“action” and “undisclosed agreements” occurring before “the close of sale on the purchase of the
home and lot by Cornerstone.” (Request, p. 6.) It is not clear from the Request what exactly the
Requestors are referring to, how it is relevant to the Final Map approval, or why (or whether) this
information was not available on May 16, 2023. Further, no actual evidence supporting these
statements has been provided.
Environmental Review:
A decision on whether or not to hold a rehearing on this matter is “project” subject to California
Environmental Quality Act (CEQA).
3 of 28 June 13, 2023, Item #10
May 30, 2023
City Council
City of Poway
13325 Civic Center Drive
Poway, CA 92064
RECEIVED
MAY--3 0 2023
CITY OF POWAY CITY CLERK'S OFFICE
RE: Approval of Final Map for Tentative Tract Map 21-003 (McKee Orchard Subdivision);
Cornerstone Communities, Applicant (APN: 314-192-02-00)
Dear City Council,
In accordance with section 2.20 and 2.21 of the Poway Municipal Code ("PMC"), we, the
undersigned, write to request a rehearing and appeal the approval of the Final Map for Tentative Tract
Map (TTM) 21-003 (McKee Orchard Subdivision); Cornerstone Communities, Applicant (APN: 314-192-
02-00), which relates to subdividing one vacant parcel (APN: 314-192-02-00) zoned as RS-4 that is
approximately 4. 77-acres in size to twenty separate single-family residential lots. As described below,
the findings and determination in the resolution approving the TTM are both inaccurate and
inappropriate for a multitude of reasons including that (i) they were reached without sufficient notice
to, and input from the community which the McKee Orchard Subdivision will impact; (ii) they were
reached after misapplication of the PMC with respect to development review procedures; (iii) they are
inconsistent with applicable Poway zoning ordinances and definitions; and (iv) they are inconsistent
with the inevitable aesthetic, economic, safety and traffic impacts that the McKee Orchard Subdivision
will have on the neighborhood, its surrounding property owners and Poway residents as a whole.
Accordingly, the undersigned request that the approval be revoked until and unless the issues
outlined below a re resolved to the satisfaction of Poway residents. Pursuant to PMC, any appeal of the
final decision of any City officer, board, committee, commission, department director or department
subordinate that is made pursuant to any provision of PMC Title 16 or 17 shall be heard by the City
Council. This issue clearly falls under PMC Title 16: Tentative Map Processing (16.10). In accordance
with PMC section 2.20.020.6, the Appellants are appealing the approval of Final Map for TTM 21-003
McKee Orchard Subdivision for the reasons set forth below:
Applicable PMC Sections
The following is a brief summary of the known PMC sections that are relevant and applicable to the
current issue.1
•Chapter 2.20, et seq. ("Administrative Appeals")
•Chapter 2.21, et seq. ("Rehearing")
•Chapter 16.10, et seq. ("Tentative Map Processing")
•Chapter 17.04, et seq. ("Definitions")
•Chapter 17.52, et seq. ("Development Review Procedure")
•Ordinance List and Disposition Table
There may be additional relevant PMC sections, and the undersigned reserve their rights to cite to, and rely upon, additional
relevant sections in the future.
5 of 28 June 13, 2023, Item #10ATTACHMENT A
Relevant Background
The Subject Property
•A total of 35 cultural resources have been recorded within a 1-mile radius with one resource, CA
SDl-4606, covering the entire subject property. CA-SDl-4606 is also recorded as SDM-W-213 and
has been previously recommended eligible for listing in both the California Register of Historical
Resources (CRHR) and National Register of Historic Places (NRHP) under Criterion 4/D,
respectively (Developer survey 2021). The city never took action.
•Has endured at least 50 years of land protection based on findings. This started, at the latest,
with Margaret McKee's reports in 1971. The city provided staff support to developers months
and years before ownership, while ignoring decades of historical significance.
The Sale of the Subject Property and Details Regarding the Proposed Subdivision
•Property sale/transfer of ownership was recorded 4/27/2022. The City took actions before the
developer took ownership.
•April 6, 2021 a Pre-Development Meeting. Over a full year before ownership.
•February 2, 2022 Neighborhood meeting with Developer.
•April 19, 2022 Barona/ Las Pasta tribe waived rights to land and archeological review: only opted
for on-site monitoring of developer Cornerstone. This is based on a city letter sent before
ownership transfer. Tribal decisions were based on letters with the land not owned by
developers. The city continued to use this decision and information as a basis for the lowest level
of Tribal involvement.
•November 2022, First date of ground moving/disturbing
•November 9, 2022, Ed Parada meeting with Barona. Ed Parada as a site representative has been
inconsistently on site even while work occurred.
•April 21, 2023, bones found on site. Just one of many such occurrences up to and including today
May 30, 2023 and likely future occurrences.
•May 2, 2023, City Council meeting: Reduced time for Public speaking-total meeting time was
under 1 hour with reduced speaking time stifling public participation. The law is to ensure
meeting function is not prevented, and most meetings run well over 1 hour. This was an abuse of
power at the cost of community input, all to save 20 minutes.
•May 10, 2023, City Safety Meeting and Council Member Leonard event report# E8525076. Yet
even with his reported actions against the community and several people involved with Holly
Oak, and his pending resignation, he deliberately applied his bias in voting and not recusing. The
City waited until after he resigned before addressing that this was a valid concern, and this delay
in action allowed a prejudiced vote.
The Approval of TTM 21-003
•The original approval with John Mullin has many potential conflicts with his painting business and
opportunities for work. The abuse of the 12 month "delay" to votes has been subverted by his
vacating office. This means that his business interests may have lead to a lucrative decision that
coincided with his choice to vacate office.
•Mayor Vaus has received donation to both his campaign for Supervisor and his alleged
"nonprofit" Carols by Candlelight from Barona
•Dave Grosch has been under investigation for voter fraud related to his residency since late 2022.
•Secretary of State investigation case number 6666
•City Attorney Afan Fenstermacher and City Manager Chris Hazeltine didn't investigate even when
warned by residents.
6 of 28 June 13, 2023, Item #10
•Dave Grosch received mail at multiple addresses during Sep-Dec 2022, several would be alternate
to his government ID and whatever state that is from.
•Public records show that Dave Grosch's wife received a California Ballot despite his
acknowledgement that she fully moved to Bend OR. In addition she submitted this ballot. Due to
the length of time between the move and the election this means that the Grosch's didn't
properly inform all agencies of their living status. This implicates Dave Grosch in aiding or
performing ballot fraud.
•Dave Grosch gave ample indication to his plans on leaving the state, even going so far as to run
and sit as president on his new community HOA for over 1.5 years before selling his house.
•New laws prohibit or define conflicts of interest more broadly at a lower dollar threshold.
Current councilmember Brian Pepin maintains a campaign for 2024 central committee, which has
received donations over this threshold from relevant, affected, and contacted tribes related to
th is project.
Reasons for Appeal/Rehearing of the Mckee Orchard Subdivision TTM 21-003 Approval
PMC 17 .52.010 requires that the City maintain a development review procedure in order to,
among other things, (i) "maintain the public health, safety and general welfare, and property
throughout the City,"; (ii) "reasonably ensure that new developments, including residential ... do not
have an adverse aesthetic, health, safety or architecturally related impact upon existing adjoining
properties, or the City in general;" and (iii) "ensure that the proposed development complies with all of
the provisions of the zoning ordinance and the general plan."
The approval of the Final Map for McKee Orchard Subdivision fails to comply with the
provisions of section 17.52.010, as it fails to detail the scope of the review conducted by the City
Planning Department, disclose the documents or materials reviewed, or cite the people consulted in
the process. Moreover, it does not provide any reasoning or justification whatsoever for its findings,
instead choosing to list them in conclusory fashion. And while it is not surprising that a process that was
conducted predominantly behind closed doors would not include these items -much less note if there
were any opposing views or contrary opinions -this manner of proceeding does not meet the policies
and legal requirements outlined in the PMC. In order to fulfill its obligations to Poway's residents, the
City must not only provide justification for the findings upon which it relied and disclose contrary views
on the project, it must also make available to the public the materials on which it relied.
Archeological Significant Finds
Speaking with Tribal leaders out at the construction site gave further cause for concern. We
spoke with Ed Parada on one of those occasions who confirmed there were artifact findings as well as
bones. He indicated that they felt this particular area was consistent with a former tribe and burial
ground for the native indigenous people. He promised to keep us updated and then went silent.
There Has Been Inadequate Notice To, and Input From, Residents of Holly Oak and Kent way Regarding
the Proposed McKee Affordable Housing project
As outlined above, only a select few individuals, including wealthy donors, various City political
figures, and a small number of people from the City (including a revolving list of individuals at the
Planning Department and Engineering Department) have been involved in the process of evaluating and
approving the proposed TTM. Left in the dark have been those that would have the most important
input of all: the residents Holly Oak that will have to live and raise their families in a community
7 of 28 June 13, 2023, Item #10
impacted by the proposed subdivision. Certainly, the City is not required to provide notice to, and seek
input from, the community every time a property in a residential zone changes ownership, or every
time an owner seeks to build on, or modify, a residential property. In this instance, however, as
described further below, the proposed subdivision is far from a typical small project.
February 9, 2022, the City of Poway mailed "Notice of Neighborhood Meeting" to residents
within 500 feet on Holly Oak Way and Twin Gables Court. Cornerstone representatives were in
attendance and described the development (verbally and written) with access from Twin Peaks Rd.
Proper Notification per PMC
When projects like this are proposed, it is incumbent upon elected officials and administrators
to seek and consider input from the community. Doing so not only allows all opinions to be heard, but
helps all parties avoid the costly approval, regulatory, demolition, and construction processes in the
event that it is determined that the proposed project is not permitted or welcome in the community.
Here, far from providing sufficient notice to the appropriate constituencies, the group advocating the
proposed subdivision has essentially operated under the radar. Had the project proponents given
proper notice and/or sought feedback, they would have learned that many residents opposed.
Appellants call your attention to PMC section 16.10.020, which states that "the City shall give notice of
the hearing by mail or delivery to all persons, including businesses, corporations or other public or
private entities, shown on the last equalized assessment roll as owning real property within 500 feet of
the property which is the subject of the proposed subdivision or parcel map.
Notification in accordance with PMC section 16.10.020 was not provided. In addition, no notice
of public hearing for the May 16, 2023, meeting was published in the local paper or posted, in which the
final TTM was approved via consent calendar. This approval did cover alterations to the original map
due to errors with the previous approval and incorrect assumptions of easements. Errors in the original
map are reason enough to bring this back for discussion, but instead Council item was included on the
consent calendar with an inaccurate description indicating that the changes were minor. Moreover, the
original hearing notice from the city was posted in 2021, over 1 year before ownership of the subject
property was transferred to the new owner, recorded with the county on April 27, 2022. The city was
working with a developer for use of private land to which neither party had any ownership stake.
Item 4 was added to the May 16, 2023, city council meeting with notification to only resident,
Jim and Kay Kent. No other notifications were sent either within or outside the 500 minimum feet. Both
item 4 and item 5, were approved at the city council meeting despite concerns made from residents
regarding the failed process, denial of a traffic study, denial of an appeal process and despite the many
inappropriate actions noted herein.
Failure to do a Traffic Study
The McKee Orchard/Cornerstone development has had a multitude of omissions, failures, and
has raised many layers of legal concerns as to the process since inception. Initially, the Cornerstone
developers met onsite with the residents on Holly Oak and Twin Gables and proceeded to assure us
that the proposed development would be accessed from Twin Peaks. We felt some relief in knowing
that the access from Twin Peaks would be a safer traffic option. As time passed, no notification was
provided of any other agreements between the city and Cornerstone to allow us the opportunity to
take necessary action.
Throughout the subsequent months we began noticing issues including, but not limited to, only
a 500 foot notification by letter from the city. We also learned that the developer's initial proposal was
no longer acceptable to the city and therefore the development was turned around with access
8 of 28 June 13, 2023, Item #10
provided by Holly Oak. This was a big shock to every neighbor within the 500 feet notification, and
beyond to those who had learned of this proposed development. As a united group, we requested a
traffic study. This request was denied. We sent a multitude of requests by email, letter, phone calls, etc.
to the city officials. Collectively, we felt that we either did not receive a response or if there was a
random response that there was zero support/justification to the response. Eventually we learned of
the city council's passing of the development with entry from Holly Oak. During that meeting, on July
19, 2022, we were neither notified of any kind of appeal process, nor did we find any information on
the city's website to speak to an appeal process. We asked for an appeal despite these omissions,
however, our requests were denied.
Improper and Inadequate Enforcement of the City Mitigation Plan
Additional concerns came to light when we identified to the city that there was wildlife in the
area and nests in trees during designated nesting months. The developers demonstrated very
concerning bullying and harassing tactics toward residents in bulldozing trees while hawks flew over the
downed trees, looking for their nests. Cornerstone approached residents on their own property and
were very unprofessional with their words, body language, and video recordings. There were minor
children in the direct vicinity when this occurred. Cornerstone also removed a resident's private
property tree without a permit filed with the city or permission to do so. The city representative was
physically on site when this occurred and took no action.
This is a partial list of the various errors, omissions and issues covered by law which the city did
not take proper actions under. It is not all inclusive nor limited to these.
•Missing 500 ft notification
•No traffic study
•Archeological Significant Finds
•No due process to an appeal process (7 /19/22)
•Nesting birds during tree removal.
Additional Grounds To Revoke and/or Modify the Final Map for TIM 21-003
Approval of the Final Map for TTM 21-003 McKee Orchard Subdivision was contingent upon the
approval of item 4 on the consent calendar at the May 16, 2023, council meeting. Item 4 was "The
Acceptance of Real Property at the Northern Terminus of Holly Oak". This is yet another problem that
speaks to the overall problematic nature in how the city has handled this project. The acceptance of
property is based on an old offer that the city rejected. The city incorrectly uses State of California
Government Code (Subdivision Map Act) Section 66477.2(a) to declare that the city may rescind its
rejected offer and now accept it. The problem with this is that Section 66477.1 specifically reads "At the
time the legislative body or the official designated pursuant to Section 66458 approves a final map, the
legislative body or the designated official shall also accept, accept subject to improvement, or reject any
offer of dedication.". Poway approved the final map and rejected the offer on Jan 29 2002. The city
now improperly asserts section 66477.2(a) is valid to reclaim this land for newTTM and subdivision.
Unfortunately this is based on the assertion that the easement was rejected pursuant to Section
771.010 of the Code of Civil Procedure, which is rejection by omission of acceptance. This is not true,
the council accepted a final map without the call out for the easement/dedication, and because this was
a consent calendar item, which was not pulled or altered, fully accepted the staff recommendation as
written. This includes "4. Reject, on behalf of the city, the dedication for street right-of-way purposes
9 of 28 June 13, 2023, Item #10
over a portion of Lot 9." Due to the direct rejection, and that 771.010 (a) is untrue based on the Final
TIM approval not showing the dedication, section 771.010 is void as all conditions are not met.
Moreover the city's claim to State of California Government Code (Subdivision Map Act) Section
66477 .2(a) is contingent upon Section 771.010 of the Code of Civil Procedure as outlined in Section
66477.2(a). This reads:
"If a proposal is heretofore or hereafter made to dedicate real property for public improvement,
there is a conclusive presumption that the proposed dedication was not accepted if all of the following
conditions are satisfied:"
Code of Civil Procedure Section 771.0lO{c) reads: "The rea I property was not used for the
purpose for which the dedication was proposed within 25 years after the map was filed." This property
was clearly subdivided and developed in accordance with the map approval. As such the conditions set
forth in Section 771.010 have not been met. As a result State of California Government Code
(Subdivision Map Act) Section 66477.2(a) is not applicable, as the rejection was directly from city action
and not a result of Code of Civil Procedure Section 771.010 "conclusive presumption".
Additionally, we have since discovered new information that proves that the city council began
taking action in connection with Cornerstone development, without public disclosure, before the close
of sale on the purchase of the home and lot by Cornerstone. This new information directly relates to the
undisclosed agreements that were made in advance of the ownership of the land. It directly contradicts
statements made by the mayor and council at recorded council meeting. In addition, the federally
required process for the tribal land was not adhered to by the city council and the Barona tribe made a
substantial campaign contribution to the city council elections. For these reasons and more we are
entitled to the outlined appeal process that was omitted initially and is again requested at this time.
The Appellants' Interest in the Appeal/Rehearing
The Appellants are residents of the Holly Oak subdivision who are both homeowners and have
families with numerous school-aged (and pre-school-aged) children. As such, the Appellants are
concerned that any uses of property in their neighborhood that do not conform to local rules and zoning
requirements, such as the use of a terminated easement, could fundamentally change the nature of
their homes and their lives in Poway.
Summary and Conclusion
As detailed above, the subdivision is not in compliance with applicable Poway laws, regulations
and ordinances. Accordingly, the Appellants and other concerned residents with whom have spoken out
request that grading and work on the site be halted, and that the approval granted of Final Map for TIM
21-003, the McKee Orchard Subdivision, be revoked, until and unless the issues outlined above are
resolved to the satisfaction of the broader community.
Note: Two attachments
Attachment A -Final McKee Orchard Archaeology Findings
Attachment B -
Sincerely,
10 of 28 June 13, 2023, Item #10
12 of 28 June 13, 2023, Item #10
ZIP Code 92064
Registered On 09/29/2022
Registered You have requested to be a
Permanent Mail Ballot Voter
You are currently registered NO
PARTY PREFERENCE
Cemters
There are no longer assigned locations. You can vote at any vote center in the
county. A complete list of vote centers can be found here.
Election Title
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NOVEMBER 8, 2022, STATEWIDE
GENER AL ELECTION on
11/08/2022
(Our records indicate that a ballot
was mailed to you for the upcoming
election. Please note that date
issued may not be the date the
ballot was mailed, your ballot may
be mailed up to three days after the
........... _...., ■ ................ ....,. .............. ~ .,_.
13 of 28 June 13, 2023, Item #10
Street Address 1443 6 M APLEW OOD ST . ���
ZIP Code 9 2 Q 64 ,j\\-CJr'().) /<-
Registered On 11/2 1/2 020
Registered Yo u have req uested to be a
Permanent M ail Ballot Voter
Yo u are currently reg istered NO
PA RTY PREFERENCE
Vote Centers . :· · · · · · ·· ·
, ' • ,, , / ' I
There are no longer assigned locations. You can vote at any vote center in the
county. A complete list of vote centers can be found here.
Election Title
Mail Ballot
Voting
NOV EMBER 8, 2022, STATEWIDE
GENERAL ELEC TION on
11/08/2022
(Our records ind icate that a ballot
was mailed to you for the upcomin�
election. Please note that date
issued may not be the date the
ballot was mailed. vo ur ballot mav 14 of 28 June 13, 2023, Item #10
te: Septemt)er 21 2022 at 7:0.3:30 PM PDT
: Chris Hazeltine <CHa;::eJ ne@Rc·:Ja,•.org>, "Fenstermacher . .A.Ian · <AFe'1�te''l1ac.'1er@.ruta1.co'll>
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--�: :he answers below.
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Sep 21 . 2022, at 4:2.3 PM,
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Greeungs, Mr Grosch
'm prepanng a story' on evidence tha: suggests ,•ou no lo.1ger are a Powa:,1 resident and thus mel(Qlble r.o £erve on :he Cit,· COltncil.
According to the attached clocumen:s ','Olt solcl your home at 14436 Maplewood Street to Anihony Rol)tnbson m Augus:, and Rol)inson has reg,ste·ed to vo:e from tl1at \1aplewood addre�
So a few ques:,ons:
1 . 'Nhere clo you live no,;t? How long have 'lOll lived there .
:e at 1 3526 Tobiasson Rd. In Poway Vi/e sold our l1ou::e in Augtist. with an agreement WHh 111e Rol)tnsons to live there till Sept 1 5111 I movecl to Tobiasrnn on t11e 15�
2. Where are '.,'OU registered to vote .
registered :o vote al • 3526 Tobia::son Rd 111 Poway.
3.I've heard you told last nighi's meeti1g tl1at you are in Be1d. Oregon. Is t111s true? Have �•ou fcrrriall>' movecl there·.
w to Bend :.iils momng and w,11 be rewrn•ng 10 Poway on Sunday. ,.C.,nd no, 1 1,a,,e nm formal!,· move� to Bend .
. Ii ,•ou no lo,1ger live in Poway, what sta1u:e a1·0·.·1s you to remain on t11e council .
Th,...11""\I," .;,.,.,,, "'...,., ,.....,._.,...�;;...,,J ,r,...,.,-1""",..._..,, ' r 15 of 28June 13, 2023, Item #10
Archaeology• Hislory • Elhnography • Ard1ileclural History
August 20, 2021
Trish Edmonton Project Coordinator Cornerstone Communities 4365 Executive Drive, Suite 600 San Diego, California 92121
FINAL Cultural Resources Technical Report for the McKee Orchard Affordable Housing Project, City of Poway, San Diego County, California
Dear Ms. Edmonton,
111is letter report provides the results of a cultural resources study conducted as part of Cornerstone
Communities' application for the proposed McKee Orchard Affordable Housing Project (Proj ect) in the City of Poway (City), San Diego County, California (Figure 1). Specifically, this study supports the requirement for an archaeological reconnaissance and a subsequent archaeological survey for areas that will
be subject to grading and construction activities, as identified in the Poway General Plan. The parcel (APN 314-192-02-00) is currently an open lot adjacent to and north of Rattlesnake Creek at the base of Kent's Hill. 111e Project would develop the lot as a single cul-de-sac street with 20 Single Family Residences . ASM Affiliates, Inc. (ASM) was contracted to review the existing literature, conduct a reconnaissance survey, and, if needed, an intensive pedestrian survey to determine if significant historical resources as
defined by the California Environmental Quality Act (CEQA) exist within the proposed Project that could be adversely impacted by the proposed development. This study ascertained that the Project is within the
previously recorded boundary of the prehistoric Village of Paguai (CA-SDI-4606) and archaeological resources were identified on the surface of the Project area as a result of the current survey. Preparation and implementation of an archaeological testing program is recommended.
This letter report is divided into the following sections: Introduction, Records Search Analysis, Survey Results, Impacts Assessment, and Recommended Mitigation. A copy of the Records Search Summary provided by the California Historical Resources Inventory System (CHRIS) South Coastal Infonnation Center (SCIC) and associated tables and figures are included as Confidential Attachment A, Key Personnel Resumes are included in Attachment B, and a Department of Parks and Recreation (DPR) Update for CASDI-4606 is provided in Attachment C.
INTRODUCTION
ASM prepared this report to detem1ine the cultural significance of the parcel located at 13667 Twin Peaks Road, Poway, California. TI1e parcel (APN 314-192-02-00) is located southeast of the intersection between Midland Road and Twin Peaks Road. The now open lot was once fanned by the Kent Family from the late 1880s until 1958 when it was purchased by Margaret McKee, an amateur archaeologist, who left the plot undeveloped except for a road (Runyan Lane) along the west side that led to a home in the southwest comer. The SCIC records search showed the parcel is within the boundaries of an existing archaeological resource,
CA-SDI-4604, which was originally documented in 1921 by Malcolm Rogers. It was an active Kumeyaay Village when the Spanish arrived and is listed as a Rancheria of the San Diego Mission as Paquai (Poway) (Engelhardt 1920:350). ASM's initial reconnaissance of the parcel revealed artifacts on the ground surface so an intensive pedestrian survey was conducted with 5-meter-wide transect spacing to record the scattered surface artifacts and see if any exposed intact features could be identified. A separate historic built
enviromnent analysis is being conducted by ASM and will be submitted under separate cover.
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land on which a portion of the site is located and she collected surface artifacts intennittently over time, establishing the elongated oval shape of the documented site boundary that includes the area south of Twin Peaks Road that corresponds with the current Project. McKee provided a background on the previous disturbances to the site including agricultural activity conducted since the 1880s, channel alternation and realignment of Rattlesnake Creek with erosional control check-dams installed, and pothunting activities. The portions of the site that appeared relatively untouched at the time included a low bench at the north end of the site and a portion of the site south of Rattlesnake Creek where a spring used to be present. The entire site was walked in 5-foot transects and all surface artifacts observed at the time were bagged and collected. These artifacts were added to other unprovenienced ones collected earlier by McKee as well as collections made by the Kent Family who owned the property from the late 1880s to 1952. McKee also excavated a 5-x-5-foot test pit in the north portion of the site on the low bench due to pending development threateningthe archaeological deposit there.
Brunzel!, 2015, SD -01618 BCR Consulting LLC (BCR Consulting) conducted a cultural assessment for the Crown CastleNerizon San Diego Fiber PUC Project looking at 29 discrete locations for proposed underground trenches. BCR Consulting did not identify any resources in their project area (which bisected the northernmost portion of the parcel where the current walking path is located). Archaeological monitoring for the project was recommended (as the project crossed a known cultural resource) but the results of a monitoring effort could not be located.
Previously Recorded Cultural Resources
A total of 35 cultural resources have been recorded within a 1-mile radius with one resource, CA-SDl-4606, covering the entire proposed Project APE. CA-SDI-4606 is also recorded as SDM-W-213 and has been previously recommended eligible for listing in both the California Register of Historical Resources (CRHR) and National Register of Historic Places (NRHP) under Criterion 4/D, respectively.
P-37-004606 / CA-SDl-4606As previously mentioned, the Village of Paguai (Poway) was listed as a Rancheria of San Diego Mission (Englehardt 1920:350) and Rancho Paguay [sic] was granted to Rosario Aguilar by Governor Juan B. Alvarado in 1840. The prehistoric component of the Village of Paguai is considered to span multiple cultural eras from San Dieguito to the Late Prehistoric period and multiple surveys, testing, and data recovery programs have been conducted at the site starting as early as 1921. These studies are almost exclusively focused on the portions of the site that are recorded north of Twin Peaks Road and are associated with development and utility projects in that area. Previous studi es have shown the Village of Paguai as the epicenter of a widespread complex that included several satellite resource collection locations, as well as spiritual areas and processing areas. Results of research at Paguai and its presumed satellite sites suggest the village was primarily occupied during the Spring-Summer period. What follows is a smnmary of these previous studies which have informed the current Project analysis.
Original archaeological recording Malcolm Rogers (1921) originally recorded "Powa" or "Po's House" [sic] as SDM-W-2 13 in 1921 and documented five circular house pits ranging from 10 to 12 feet in dian1eter. Excavation in all five house pits showed evidence of burning. One of the house pits still contained four burnt roof posts (made of cottonwood) set in a square configuration in the floor with some of the chamise thatching still present. Bedrock milling was observed in the granite outcrops on the hill behind tl1e site (presmnably the low bench features at the north end of the bom1dary that McKee later docmnented). Rogers' analysis showed a San Dieguito II component at the north end of the site that had washed down into the margin of the later periods. Also of note was the collection of four Trachycardium sp. shell fragments, a type that was often used to cover mortuary urns. No maps of Rogers' excavations could be referenced but he focused on the lowland area immediately north of Rattlesnake Creek, possibly overlapping with the current Project APE. 4 nlX~ ,cA"' '1.."Y' \ 20 of 28 June 13, 2023, Item #10
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Mc Kee Documentation Margaret McKee ( 1971) purchased a portion of the land within the site boundary ( that overlaps with the current Project) and inherited unprovenienced artifacts collected by the previous landowner (John Kent). McKee ma.de intermittent collection of surface artifacts she encountered from then until 1969 when she performed a more academic analysis of the site. 111is forn1al recording established a large site boundary for the resource that went from south of Rattlesnake Creek, west to Midland Road, east to Budwin Lane, and north to where Budwin Lane turns and mus roughly east to west. The 1969 survey and testing work was later submitted to San Diego State University in 1971 as part of an archaeological program.
The entire site was walked in 5-foot transects and all surface artifacts observed were bagged and collected. McKee recorded four bedrock milling concentrations, the closest to the current Project being the fourth in the southernmost portion of the site and south of Rattlesnake Creek at the base of a large rockfall from nearby Kent Hill. A 5-x-5-foot test pit was excavated in the north portion of the site on the low bench and showed nearly homogenous midden soils except for a layer of coarse alluvium soil suggesting either an erosion event from upslope during development of the habitation soils or a sloughing of the site that buried midden soils beneath contemporary midden soils upslope.
McKee's surface collection and test pit recovery showed artifact ratios dominated by lithic materials, followed by potsherds, bone, and shell. Lithic material was presmned to be mostly local with some chalcedony, obsidian, and agate [sic] which likely came from eastern San Diego or Imperial County. Lithics accounted for more than 1,900 of the recovered artifacts and lithic tools included hammer stones, choppers, scrapers, burins, spokeshaves, knives, and projectile points. Scrapers (planes and flaked) were the predominant lithic tool type with nine varieties of projectile point and six varieties of knife forms described. Potsherds were identified as mostly brown ware with olla and bowl shapes discerned from rim sherds. Ground stone was limited, which McKee attributed to previous plowing by the Kent family that turned these items up after which they were removed as part of a de-rocking effort.
Marine fauna.I remains collected, as classified by McKee, include local Pacific coast shellfish and fish with one Olive/la sp. bead present. The rest of the fauna! remains were terrestrial species that appeared to be food bone or resultant from natural deposition, with one bone awl observed.
St. Gabriel 's Church Excavations at St. Gabriel's Church by Stan Berryman (1975) included numerous artifacts and bedrock milling stations. Based on the results, Berryman suggested that the central village area lay further south and that the area tested was associated with the Late Prehistoric era of the site complex. As part of a volunteer effort for St. Gabriel's Church, Brad Boulais (2006) surveyed and recorded two bedrock milling stations in the northeast portion of the site and prepared an updated DPR form that was submitted to the SCIC.
Wo lski Property Sue Ann Cupples ( 1978) conducted a pedestrian survey in 1978 for the Wolski property and documented two loci: SDM-W-2 13A and SDM-W-213B. As mapped, Cupples places the deposit associated with SDMW-2 13A at the apex of a small knoll, north of where McKee recorded the "low bench at north end of the site." Cupples noted that the deposit also appeared to be sloughing to the north and ea.st of the knoll. Bedrock outcrops with milling slicks and a basin were noted and artifacts included four hand stones/fragments, pieces of debita.ge, a hammer stone, and several shell fragments. Grading of the knoll had displaced the midden soils and several of the large granitic outcrops. SDM-W-213B was recorded a.cross the drainage to the west on a southeast-facing slope. TI1e entire deposit could not be accessed at the time because of property lines, but Cupples was able to docmnent a cultural deposit with midden soils, hand stones, pieces of debitage, and potsherds.
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Stan Berryman (1979) revisited the area surveyed by Cupples in 1979 and conducted testing at SDM-W-
213A and SDM-W-213B. Testing at both locations showed heavy disturbances from grading, road cuts, and erosion with little integrity remaining. SDM-W-213B appeared to be entirely a result of smearing from grading. All artifacts recovered from both areas showed a Late Archaic occupation, as noted by Ro gers in 1921 and McKee in 1971.
Tw o Parcel Development As part of development project involving two parcels in the northern extent of the site, Mary Lou Heuett (1980) with Archaeological Consulting & Technology Inc. conducted a Phase I test excavation of SDMW-213. Testing results suggested that the site contains both a Late Archaic and possible San Dieguito cultural horizon representing a resource processing area where vegetation and clay resources were milled for food and pottery productions; lithic tools were made, resharpened, and discarded; and animals and shellfish were processed, eaten, and deposite d. The two parcels referenced above are in the northern portion of the site as originally recorded by McKee (1971).
Mi dland Road Extension
Roth and Associates (1980) and Gallegos and Pigniolo (1989) surveyed a portion of CA-SDI-4606 for a
proposed Midland Road extension, revisiting areas documented by Cupples (1978) along the tributary to Rattlesnake Creek north of Twin Peaks Road. This included additional milling outcrops and an associated
artifact scatte r. A flaked tool (scraper) was coIIected during the GaIIegos and Pigniolo survey, with other material observed including ground stone fragments, more than 10 pots herds, and more than 100 pieces of debitage.
Del Poniente Sewer Alignment
As part of the Del Poniente Sewer Alignment, Ogden Environmental and Energy Services (Pigniolo 1992) evaluated a portion of CA-SDI-4606 north of Twin Peaks Road. Testing and evaluation occurred only within the project alignment and included 59 shovel test pits (STP) and two l-x-1-meter control units . Forty-four (44) of the STPs were positive and revealed an extensive and varied subsutface deposit within the tested site area. A total of 193 artifacts were recovered from the STPs and 352 artifacts were recovered
from Control Unit #1, as well as asphaltum, bone, charcoal, and shellfish fragments . Control Unit #2 included 46 artifacts and bits of charcoal. Analysis of the testing revealed the presence of an intact portion of the Village of Pagaui and possible early occupation of the site. Pigniolo recommended the site eligible
for CRHR listing and implementation of a data recovery program if the project was approved.
As a result of Pigniolo's recommendations for CR.HR eligibility and mitigation at CA-SDI-4606, Brian F. Smith and Associates (1995) created an Archaeological Treatment Plan (Plan) for the U.S. Army Co rps of Engineers to cover the portion of the site within the Del Poniente Sewer Project. Smith suggested the site may also be eligible for NRHP listing and the Plan was designed to avoid potential adverse effects that may be caused by the Project. A series of research questions and data requirements were developed for future implementation and mitigation of impacts . The Plan also described the capping design intended to protect the archaeological deposits of CA-SDI-4606 during constmction of the pipeline. The pipeline trench would then be excavated through the soil cap and into the ground below. A sampling of 30 test units spread throughout the site was proposed to gather data and address the proposed research topics .
SDG&E Substation
In 2015, Susan Hector with NWB Environmental provided a synthesis of work conducted up to 19 89 for SDG&E Poway Substation Rebuild Proj ect that crossed into the north end of the site. This brief synthesis also included a short analysis of the artifacts collected by Rogers that were held at the Museum of Man
(now Museum of Us). Between 2015 and 2017, NWB Environmental conducte d testing and monitoring for
the SDG&E Poway Substation Rebuild Proj ect at the eastern end of the recorded site boundary (Bosque 2019). No artifacts or cultural material were observed during any phase of the Project suggesting either the
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original Substation installment had removed it or that Budwin Lane was a good eastern boundary for the archaeological deposit.
ARCHAEOLOGCIAL SURVEY AND RESULTS
ASM Principal Investigator Brian Williams conducted an updated archaeological reconnaissance and
intensive pedestrian survey of th e property in accordance with both CEQA and City guidelines on July 29, 2021. During fieldwork, ground visibility throughout the APE was approximately 75 to 100 percent, with light ground cover.
One hundred and thirty-five (135) artifacts were recorded on the surface of the Proj ect APE. These include predominately brownware potsherds (n=59) and pieces of debitage (n=67) with two granitic hand stone [mano] fragments, two volcanic cores, one possible polishing stone, and four retouched flakes. The debitage materials consisted of nearly even amounts of volcanic (n=33) and quartz materials (n=32) with two pieces
of quartzite debitage also noted. These represent late-stage lithic tool production as most are interior or secondary flakes with several thi1ming flakes and pieces of shatter. The four retouched flakes were made on volcanic (n=3) and quartz (n=l) materials.
Artifacts were scattere d on the surface primarily along the eastern half of the Project APE decreasing in density moving towards Runyan Lane and the historic-era home in the southwest comer of the APE. Animal burrows were examined to see if midden soils or an intact subsurface deposit were present, but neither were observed in the tailings. However, several of the artifacts were observed in the animal burrow tailings
suggesting a possible buried component of the site . An updated DPR form for CA-SDI-4606 is include d in Attachment C.
IMPACT ASSESSMENT
Following the City's Cultural Resources Guidelines, this records search and literature review was conducted as part of the identification efforts for the proposed Project. As part of this review, the following
archival sources were consulted: materials on file with the SCIC, the California Inventory of Historic Resources, the National Register Infonnation System, California Historical Landmarks, Historic GLO land patent records, the Handbook of No rth American Indians, historic aerial photographs and historical maps,
and County Assessor Records. The results of this research indicate that a significant amount of archaeological work has been conducted over the past 100 years at CA-SDI-4606, revealing prehistoric occupation of th e area going back to the Archaic Period and lasting through th e Spanish presence in th e valley. However, only limite d work has been done within the current Project APE. The APE has been systematically surveyed on only one other occasion, in 1969 by McKee who also perfonned collection of
the area where artifacts had been exposed at the surface. Agricultural practices in the late 1800s to 1950 have likely mixed up the uppermost strata of the site and pushed artifacts around on the surface. Since no previous subsurfac e exploration can be confirmed within the Proj ect APE, the presence of an intact subsurface deposit is currently unknown but is possible given the results of the current pedestrian survey that identified a light to moderate density artifact scatter as well as the previous excavations by Malcolm Rogers on the valley floor on the "north bank" of the creek.
RECOMMENDED MITIGATION MEASURE
The archival research and intensive pedestrian survey suggest a CRHR-eligible resource may be present with the Project APE. Systematic archaeological testing of the Project APE is recommended to assess whether an intact subsurface deposit is present and if th e portion of the resource within the Project APE contributes to the overall CRHR eligibility of CA-SDI-4606.
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If you have any questions or require clarification of any of the information in this letter report, please do not hesitate to contact me at (760) 804-5757 or at bwilliams@asmaffiliates.com.
Brian Williams, MMA, RP A Director ASM Affiliates
Attachment A: Confidential SCIC Records Search and Associated Figures and Tables Attachment B: Key Personnel Resumes Attachment C: DPR Update for CA-SDI-4606
Sincerely,
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References Cited
Berryman, Stanley R. 1975 Archaeological In vestigations of the Ne w Saint Gabriel Ch urch Site, Poway, California. 1979 Results of Preliminary Test of Rancho Del Poniente Archaeological Site.
Boulais, Brad
2006 DPR Update to CA-SDI-4606.
Bosque, Phillip A.
2019 DPR Update to CA-SDI-4606.
Brian F. Smith and Associates 1995 Archaeological Treatment Plan fo r a Portion of CA -SDI-4606: The Del Poniente Se wer Project, Poway, California.
Brunzell, David 2015 Cultural Resources Assessment of the Crown Castle/Verizon San Diego Fiber PUC Project, San Diego, California (BCR Co nsulting Project No . SYN1404).
Cupples, Sue Ann 1978 An Archaeological Survey of the Wo lski Property, Poway, California.
Englehardt, Zephyrin 1920 San Diego Mission. The James H. Barry Co ., San Francisco.
Gallegos, Dennis, and Andrew Pigniolo 1989 Cultural Resource Su rvey and Evaluation of the Mi dland Road and Sewer Extension Alternatives, Poway, California.
Hector, Susan 2015 Research on the Location of SDI-4606/SDM-W-213 fo r Poway Substation Rebuild, Poway, San Diego County, California (SDG&E eTS #29503).
Heuett, Mary Lou 1980 Archaeological Phase I Test Ex cavation at SDM-W-213, Village of Paguai, TPM-16305, LOG 79-1398.
McKee,Margaret 1971 Poway 1. Submitted to San Diego State University.
Pigniolo, Andrew 1992 Cultural Resource Testing and Evaluation of Portions of CA -SDl-4, 606 and CA -SDI] 1,144 fo r the Del Poniente Se wer Alignment, Poway, California.
Rogers, Malcom
1921 SDM-W-213 Record Fonn. On file at San Diego Museum of Us.
Roth, Linda
1986 Archaeological Survey fo r the Proposed Mi dland Road Ex tension, Poway, California.
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Chapter 2.21
REHEARING
Sections:
2.21.010 Scope.
2.21.020 Filing of request for rehearing.
2.21.030 Filing fee.
2.21.040 City response.
2.21.050 Notice of hearing.
2.21.060 Conduct of hearing.
2.21.010 Scope.
The City Council’s action to approve or deny is final. The City Council may rehear and reconsider its action if
there is new and different evidence not available at the previous hearing. (Ord. 492 § 2, 1998)
2.21.020 Filing of request for rehearing.
The applicant or any other interested person adversely affected by the action may file a written request for a
rehearing along with the new and different evidence with the City Council. Any such request must be filed in
writing within 10 calendar days after the action which is the subject of the request. (Ord. 492 § 2, 1998)
2.21.030 Filing fee.
The written request shall be accompanied by a fee to be set by resolution of the City Council. (Ord. 492 § 2,
1998)
2.21.040 City response.
Upon receipt of the request and filing fee, the City Clerk shall submit the matter to the City Council as soon as
possible, but in no case later than 30 days. At that meeting the City Council may, at its discretion, either take no
further action on the request or set the matter for another public hearing which shall be held within 30 days after
the Council accepted the request for a rehearing unless the applicant consents to a continuance. (Ord. 492 § 2,
1998)
2.21.050 Notice of hearing.
If the City Council accepts the request for a rehearing, notice shall be given not less than 10 days nor more than
30 days prior to the date of the hearing by publication in a newspaper of general circulation published in the City.
Notice shall also be mailed to all those who received notice of the original hearing. (Ord. 492 § 2, 1998)
The Poway Municipal Code is current through Ordinance 859, passed January 17, 2023.
Poway Municipal Code Chapter 2.21 REHEARING Page 1 of 2
27 of 28 June 13, 2023, Item #10ATTACHMENT B
2.21.060 Conduct of hearing.
The hearing shall be conducted in accordance with the applicable provisions of Chapter 2.18 PMC and
constitutional due process. The determination of the City Council at the rehearing shall constitute a final
decision. (Ord. 492 § 2, 1998)
The Poway Municipal Code is current through Ordinance 859, passed January 17, 2023.
Poway Municipal Code Chapter 2.21 REHEARING Page 2 of 2
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