Res 08-004
RESOLUTION NO. 08-004
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
ADOPTING FINDINGS IN SUPPORT OF ITS DECISION
TO DENY AN APPEAL CHALLENGING THE REQUIREMENT
TO OBTAIN A DEVELOPMENT PERMIT FOR CONSTRUCTION IN A
REGULATED FLOODPLAIN (12935 AND 12941 AVENIDA LA VALENCIA)
ASSESSOR'S PARCEL NUMBERS 275-530-17 AND 18
WHEREAS, Don and Lee Tartre are the current owners of the property
addressed as 12941 Avenida La Valencia, Poway, California; and
WHEREAS, Alex and Diane Armstrong are the current owners of the property
addressed as 12935 Avenida La Valencia, Poway, California (referred to collectively
with the Tartres as "Appellants"); and
WHEREAS, Poway Municipal Code ("PMC") section 16.86.010 requires a
development permit to be obtained before the commencement of any construction or
development in a special flood hazard area; and
WHEREAS, on July 16, 2007, the City Engineer sent a letter to the Appellants
informing them that two chain link fences recently constructed on their properties are
located in a regulated floodplain, and therefore, the Appellants must either remove
the fences or obtain apermit for them as required by PMC Section 16.86.010; and
WHEREAS, on December 18, 2007, Appellants filed a request with the City
Clerk to appeal the decision of the City Engineer that Appellants are required to
remove their fences, or apply for a development permit pursuant to PMC Section
16.86.010; and
WHEREAS, PMC Section 16.86 040 states that the City Council shall hear
and decide appeals when it is alleged that there has been an error in any
requirement, decision or determination of the Floodplain Administrator; and
WHEREAS, on January 15, 2008, the City Council of the City of Poway
conducted a hearing in accordance with PMC Section 16.86.040 to consider
Appellant's appeal of the requirement that they obtain a Floodplain Development
Permit for construction of fences in a floodplain; and
WHEREAS, evidence was submitted and considered, including, without
limitation:
1. City Council Agenda Report dated January 15, 2008
2. Site Map for 12941 and 12935 Avenida La Valencia
3. Correspondence, including Appellants' letters dated July 20, 2007;
September 18, 2007; October 1, 2007 and December 18, 2007; and City
Resolution No. 08-004
Page 2
letters dated July 16, 2007; September 11, 2007; September 25, 2007 and
November 7,2007
4. Site photographs
5. Oral testimony provided by the City Engineer, and Appellants
6. Additional written information and exhibits provided by the Appellants
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
Poway as follows:
Section 1: The foregoing recitals are true and correct, and the City Council so
finds and determines.
Section 2: Based on the evidence presented at the hearing conducted on
January 15, 2008, the City Council makes the following findings:
A The construction of two chain link fences by Appellants on or about July 2007
constitutes "Development" pursuant to PMC Section 16.82.100, because it is
a manmade change to improved or unimproved real estates, including, but
not limited to buildings or other structures.
B. The fences at issue are located across a creek/watercourse, and are within
the boundaries of an ar.ea of special flood hazard
C. The alignment of the creek and floodplain have changed since the creation of
the current Flood Insurance Rate Map for the area ("FIRM").
D. The City's Interim Director of Development Services, acting as the City's
Floodplain Administrator, is authorized by PMC Section 16.86.030(E) to make
interpretations regarding the boundaries of special flood hazard areas, when
necessary.
E. The City has authority pursuant to PMC Chapter 16.86 to regulate
development in floodplains, to protect the public health, safety and welfare.
F. The existence of other potential violations of the City's floodplain
management ordinances does not relieve the Appellants of the requirement to
obtain a development permit.
G. An engineering analysis is necessary to determine whether the fences at
issue pose a risk of adverse impacts, including flooding damage, on upstream
or downstream properties.
H. The requirement that Appellants obtain a Floodplain Development Permit,
and that they obtain an engineering analysis regarding the potential flood
hazard posed by the fences, is reasonable under the circumstances.
Resolution No. 08-004
Page 3
Section 3: Based on the foregoing findings the City Council of the City of Poway
hereby denies the appeal, and determines that Appellants are required to either
remove the fences, or obtain a Floodplain Development Permit for the recently
constructed fences located at 12935 and 12941 Avenida La Valencia, Poway,
California, pursuant to PMC Section 16.86.010.
Section 4: The parties are hereby informed that the time within which judicial
review of this decision must be sought is governed by Section 1094.6 of the Code of
Civil Procedure.
PASSED, ADOPTED, AND APPROVED by the City Council of the City of
Poway, State of California this 15th day of January 2008.
ATTEST:
~"~,~~
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, L. Diane Shea, City Clerk of the City of Poway, do hereby certify under
penalty of perjury that the foregoing Resolution No. 08- 004 was duly adopted by the
City Council at a meeting of said City Council held on the 15th day of January 2008,
and that it was so adopted by the following vote:
AYES: BOYACK, EMERY, HIGGINSON, REXFORD
NOES: NONE
ABSENT: CAFAGNA
DISQUALIFIED: NONE ~)~:~~y~-^-
City of Poway