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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