Item 3 - Pacific Bell's Proposed Fiber Optic Telephone Network Upgrade REPORT SUMMARY
FROM: James L. Bowersox, City Ma~ (~ ~ ))
BY: John O. F~tch, Assistant C~ty Manage~ ~ ~ ~ ~s' ~
Robert L. Thomas, Director of Community Servic~
Patrick R. Foley, Principal Management Analyst~
DATE: May 18, 1995
S~JECT: Pacific Bell's Proposed Fiber Optic Telephone Network Upgrade
ABSTRACT
Pacific Bell plans to invest $16 billion to replace its existing telep one network with
fiber optics. The cities of San Diego, Del Mar, and Poway are among t e 24 statewide
test sit s for this project. Prior to of this new networ in the City's
rights-o -wa', a "Compromise Agreement and Mutual Release", or some ot er form of
agreemen ac eptable to the parties, needs to be negotiated between the City of Poway
and Paci ic ell. The will contain 1 issues that must be
addressed pr or to health and safet' issues that must be addressed during
construction, compensation for inspection, permit , and other City services necessary
for the network upgrade, compensation for use of he public rights-of-way, and other
City issues related to t e network upgrade. Staf is recommending that the City
Council authorize the Ci y Manager to negotiate a contract with William Marticorena of
the law firm Rutan & Tuc er, to assist the staff in developing and negotiating a
~ment wit Pacific Bell.
ENVIRONMENTAL REVIEW
Some form of CEQA review will be necessary prior to Pacific Bell's construction of
their fiber optic telephone network upgrade.
FISCAL ACT
The star will present the City Council with a request for an appropriation of funds
for lega services when a contract has been negotiated with William Marticorena of
Rutan & ucker.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE
Additional notification sent to Sharon Terrell, Pacific Bell; William M
Rutan & Tucker; cities of Del Mar and Chula Vista.
RECOMMENDATION
t is recommended that the City Council authorize the City Manager to negotiate a
contract with William Marticorena of Rutan & Tucker to assist the staff in developing
and negotiating a "C Agreement and Mutual Release", or some other form of
agreement acceptable to the parties, with Pacific Bell for the installation of fiber
¢ tic facilities within Poway's public rights-of-way.
ACTION
I of 8 ~A¥ 1 8 1995 ITEM
CITY OF POWAY
TO: Honorable Mayor and Members of the City Council
FROM: James L. Bowersox, City Man~a~
INITIATED BY: John D. Fitch, City Manaqer~I-\ _~ ~
Robert L. Thomas, Director of Comm~nit~Services~__~
Patrick R. Foley, Principal Management Analyst/~
DATE: May 18, 1995
SUBJECT: Pacific Bell's Proposed Fiber Optic Telephone Network
Upgrade
BACKGROUND
In the past s veral months, there have been numerous newspaper and magazine
articles writ en about the coming revolution in tel tions. The term
tel refers to over a distance and includes
computers, te ephones, video ent t, faxes, and radios. Traditionally,
cable systems used coaxial cable to del ver te evision p ogramming signals and
copper wires were used for telephone an compu r Today fiber
ptic ca le is being laid in significan quant ies in p ace of copper wiring
y telep one companies, cable companies, and o ers, inc uding utilities.
iber op ics are thin filaments of glass througl which 1 ght beams are
~ over long distances and which can carry large amounts of data,
high qua ity video and sound. It is an and way of
transpor ing enormous amounts of information very quickly.
As telephone and cable companies use fiber optic wiring in place of copper
wiring, many new services will be possible. As a result of the availability
of fiber optics, the traditional wired forms of tion are being
supplemented by wireless systems such as cellular, and satellite.
Due to these new technologies, telephone and cable companies as we
presently know them are evolving. In October of last year, SPRINT, one of the
nation's largest long distance carriers, and three cable companies, including
Cox Cable, formed a partnership to offer local phone service to cable
within two years. Last month, Pacific Bell announced it had
purchased Cross Country Wireless Inc. If regulators approve this purchase,
Pacific Bell will be able to use Cross Country's wireless technology to
deliver video services over the airwaves in San Diego by the end of next year.
ACTION:
2 of 8 I~IA¥ ~ o )~B5 mll:i'.m
Agenda Report
May 18, lgg5
Page 2
The emerging new technologies are blurring the traditional distinctions
between telephone, computer, and cable. Many business ls believe
the country is in the early stages of a technology revolution while others
believe we are on the verge of the evolution of a new utility.
n either case, the City of P wa is about to be engulfed by these new
echnologies through Pacific el's $16 billion fiber optic system. The ew
iber optic system will be ab e o carry video, and data as wel as
elephone Pacific el has already begun this upgrade in the C ty
of San Diego. The cities of an Diego, Poway, and Del Mar are among the irst
24 statewide test sites for t is project.
FINDINGS
While the potential for these new services is exci ing, the implementation
raises important social, and se vice pol cy questions. For example,
PacBell is only one of many vendors to at mpt to ake advantage f the new
market lace. At res nt, there are more an two undred licens telephone
compan es in Cali orn a, including compet ive acc ss providers APS). As
ore f ber optic ase competitors enter e marke , like Cox Ca e's Teleport
see tached art cle , each one will nee to use he public rig -of-way for
he ysical instatla ion. Poway may be aced wit repeated excavations into
he feets to instal the fiber strands. If this occu s, it could pose
eal and safety problems, such as air and nois pollu io Additionally, it
coul result in other al impacts, inc uding ra ~ic disruption and
reduced pavem nt life. Further n order for Pac ell an o her
tel ions service provi er to run serv ces in o omes, these
companies w 1 have to install u il ty boxes abo e gr und in utility asements
on the fron awns of Poway resi en s. Besides he v sual impact, ut lity
boxes have ecome targets for vanda ism, graffit , an are hazardous o
children, ultiple vendors may result in multip e ut lity boxes in t.e fKont
yards of Poway h
Another im ortant issue is the capability of the City staff to manage multiple
constructi n sites unless PacBell's upgrade project is adequat ly scheduled
and well panned in advance. PacBell's up ade in Poway will e a massive
project, he trenching needed to install eir fiber optic ne work will
require the use of City for util y locates, inspect on and project
management f The City may need a itional o accommodate
PacBell's multiple trenching sites.
It is in Poway's best interest to preplan for the installation of PacBell's
fiber optic network. There i only a finite amount of room available beneath
the city streets. Other util ties, such as gas, water, sewer, storm drain,
and cable, are already locate in that space. When a line needs re air or
replacement, usually another ine is laid parallel to the existing ne.
Arrangements need to be made o avoid the City of Poway or other ut lity
companies from being crowded out of the space and unable to repair heir
lines.
As technology continues to evolve, access onto the tel Lions network
will become both a social and economic issue. At present, the deployment of
tel Lion networks is being determined on a piecemeal basis which may
result in some segment of the public, such as residents, b or
g 1 institutions, being excluded. These networks and their new
3 of 8 I~AY 1 8 1995 ITEM 3
Agenda Report
May 18, 1995
Page 3
technologies are of limited use if they are not connected together to create a
c mprehensive system. Acc rding to Dave Dorman, President of Pacific Bell,
"y the year 2000, any bus ness that can't reach out over a computer network
w ll struggle to b compet tive - probably in vain. The same goes for
s udents, city hal s, hosp tals, volunteer organizations, and even members of
Con ress." In dd tion these networks will be of limited use if institutions
or eople canno a ford to pay to use them. For example, an improved gll
dis atch does not serve the city if the city cannot pay the cost of
lea ing the ban width to use the operation. The cost of these new and
enhanced services is particular concern to Poway and other cities Cities
are already financial y strapped due to California's ongoin economc slump
and the ef orts by the state to balance its budg t by re ucing or
eliminating revenues o local g The City needs o negot ate an
agreement with PacBel to ensure that the City receives pub ic serv ce
tel benefits.
On August 23, 1994, the City Council adopted the League of California Cities
Tel policy to ensure that the new technologies serves the
public. The tel tions policy included the following issues:
Access
Some tel providers may propose to bring high speed, bra band
services to select portions of the City of Poway, (i.e. only resident a
areas, only a limited business area). No industry standards exist ye or
or "int roperability", (i.e. there is no guarant e tha hese
individual networks wi 1 be able to with each other . Further,
there is no guarante hat these services will be affordable, his could
result in a system o nformation haves and have nots. To comp y with the
city's tel ions policy, PacBell's network upgrade should provide
access to tel services for all Poway residents as well as
access to 1, education, and government facilities.
Autho
Installation of PacBell's fiber optic-based network will require d gging in
city streets, which will reduce the life of the street, create tal
impacts, and result in other h zards. Further, the subsurface of he street
is a limited re ource. There s only a finite amount of space ava lable. In
order for PacBe 1 to co?!y wi h the City's tel tions pol cy, the
staff will deve op p hat will ensure that he new fiber network
lin s or condui s will not fil up th entire availa le space, and create
bot lenecks or, worse, prevent the Ci y from using i s own rights-of-way to
ins all other utilities, including wa er, sewer, gas, and electric. The City
of oway has local authority over mat ers of local impact. The City will
exercise that to ensure tha PacBell's network upgrade complie with
City standards for work n the public rights-of-way; the Ci y
will review and approve the method of installation of the fiber network n the
public rights-of-way and PacBell will be required to reimburse the City or
services required for the network upgrade.
4 of 8 )lAY 1 8 1995 ITEM
Agenda Report
May 18, 1995
Page 4
City streets and rights-of-way are ublic Streets are primarily
designed for travel, not profit-mak ng opportunities for private b
Every time a street is cut to insta 1 or repair a facility, the life of the
street is reduced. The use of publ c rights-of-way by utilities
expenses to the City of Poway for s feet maintenance and early replacement.
Private comp hies and utilities usi g the streets for p ofit-making ventures
reimbu se ci ies for this wear and ear. For ex mple, oway receives fees
from i s gar age, gas, electric, an cable provi ers. he City operates its
own wa er an sewer system, so the ee question oes no arise. Telephone is
the on y uti ity which has been exempted from th s req
With the increase in competition, Poway could be faced wit' multiple
tel providers using the public resource for ree if this
exemption or is expanded. This results in the C ty and private
companies subsidizing the telephone company. In effect, i is granting a
private company use of a public resource without compensat on.
here is another reason for this concern. Presently, cable operators pay
ranchise fees, and telephone co panies do not. As they begin to merge
echnolo i ally, the reason for istinguishing between them on a regulatory
asis ma isappear as well. Th s could result in cab e o erators no longer
eing re u red to pay franchise ees. In com liance w th he City's
el tions policy, Poway should be re mbursed or he short- and long-
erm negat ve impacts of installing fiber opt c and ot er el
wire in the public rights-of-way. The form o this reimbursement will be
negotiated with Pacific Bell.
Allocation for Bandwidth on PacBell's Broadband Network
his is a valuable resource whic the City of Poway will be able to use to
evelop a range of tel based applications for providing services
o the community and for interna use. The City of Poway, in compliance with
ts tel Lions policy, w ll negotiate with PacBell for an allocation
of bandwidth on its broadband ne work.
bltc Uses
One of the downside risks to PacBell's new fiber optic network is the
potent!al for many uses on it, including wireless, cellular, and personnel
tions Wit' so many uses, Poway may be crowded off of the
spectrum. The ability of pol ce and emergency services to broadcast may
deteriorate. To avoid this, oway will negotiate with PacBell for an adequate
allocation of spectrum capaci y.
Cities ~
The cities of Santa Clara County have formed a joint tel Lions group
(JTG) and are currently negotiating the terms and conditions of a mutually
acceptable agreement with Pacific Bell. Many of the issues mentioned in this
5 of 8 [~AY 181995 II'~.M 3
Agenda Report
May 18, 1995
Page 5
report are similar to the issues of concen to the cities in Santa Clara
County. Because of the c mplexity and po ential legal ramifications of these
issues, staff is recommen ing that the Ci y Council authoriz the City Manager
to negotiate a c ntract w th William M of the law irm of Rutan &
Tucker. Mr. Mar icorena s working with a num er of cities n Orange County,
which are or wil be negotiating agreements wi h noncable te lion
provider includ ng Pacific Bell. The contrac with Mr. Mar icorena will
provide he staf with the assistan e to draft and negotiate a
"C Agreement and Mutual Re ease", or some other form of agreement
acceptab e to the parties, with Pac fic Bell for the installation of fiber
optic facilities within Poway's pub ic rights-of-way.
It is not the City of Poway's intent to create a conf 1
with Pacific Bell. As mentioned previously, PacBell's proposed fiber optic
system has many potential benefits for the community in the area of
tel The City does, however, have an obligation to ensure that
the of the are protected as the information highway is
developed.
ENVIRONMENTAL REVIEW
Some form of CEQA review will be necessary prior to Pacific Bell's of their fiber optic telephone network upgrade.
FISCAL IMPACT
The staff will present the City Council with a request for an appropriation of
funds for legal services when a contract has been negotiated with William
Marticorena of Rutan & Tucker.
ADDITIONAL PUBLIC NOTIFICATIO) tESPONDENCE
Additional notification sent to Sharon Terrell, Pacific Bell; William
M Rutan & Tucker; and the cities of Del Mar and Chula Vista.
RECOMMENDATION
It is recommended that the City Council authorize the City Manager to
a contract with William Marticorena of Rutan & Tucker to assist the
st~ff in developing and negotiating a "Compromise Agreement and Mutual
Release", or some other form of agreement acceptable to the parties, with
Pacific Bell for the installation of fiber optic facilities within Poway's
public rights-of-way.
JLB:JDF:RLT:PRF
Attachment:
Cox Cable Teleport Article
6 of 8 I/~AY 1 8 1995 Il'EM -~ "
SAN DIEGO UNION- JULY 7, 1994
Teleport spreads
~ of communicaUon
fiber-o' tic links
county "
across
".,-,-~- provider, ~'t a t~ephoae
s~w~ ~y ~ ~ ~o~I s~ ~Fe
For ~ ~,,~ ~ S~mrei
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~t~d,
of S~ Die~. ~stomers' offices and ~ong-
Tele~ ~t~ M~t ~mm~ ~ ~
s ~e ~gi~ ne~a~ i~udes
Calon
~ers~ 15, ~ ~ ~
cos ~ ~e' By s~s~.
Decem er, ~he Ioc~ ne~o~ ~e ~m~- ~ ask~
T~ re~lato~ approve 1o~1
York-~ t~ ~ ~e ~ce~e , a,world~de net-
conneccini ~stomers to lon~- hone i~ '
distance ~e~ such as AT&T, ~r~9~c ~ p~d~ ~ ~ve m~ by by- Cellular. the NaQonal Disp
· ~, comp~ ~ ~ Tel~ ~e ~ is us~g ~o Tele
Dimension cable syslems and c~mn. UCSD Me
laA¥ 1 8 1995 ~T~-M
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@ of 8 }~IAY 1 8 1995 ITEM
PACIFIC~:IBELL ~
As We enter ~ .ury, F i
vision for California that is built around easy connectivity, univer~ t a
genuine spirit of collaboration.
It is our goal ~vanced c for resident~ of
California that sets the world standar< ,work that will help sustain
growth and improve the quality of l'.ffe~, y enabling rea~ ?
reliable voice, video and<~ ' ~] ' ~ J directly to all
California homes.
California First
Last year, Pacific Bell began upgrading the existing copper wire phone system to a
high speed network of fib. er.optics and coaxial cables, which in addition to telephone
service, will all ~ two-way video*. Over ~ ~ years,
Pacicfic Bell will invest $16 billion in this network, that will bring
their cable provider*, and help meet the
rapidly growin.g information demands of Californians. Best of all--no basic
telepl~ II be needed to build the network. We will do it att.
C putting California F' at we plan on sp?edy
]aout saerifiein safety or quality--u timately ;
Calif the new sy ? about 2,0 homes per day. Our objective
~ L on homes by the ev of 1996, half the state by the
year 2000, and every Pacific Be 1 customer by the year 2010.
New Network Benefits
In addition to providing higher quality telepE for residents throughout
Calif ' leo capabilities* of ~' r will also:
· ~Ie ~ t create jobs, particularly in the
g -technology industries
· ale direct delivery of city ~ residents
· le work-at-home and other transpc tuce traffic
congestion and improve air qu .ality
· Spur development of ' education, healthcare and g that
will improve the quality of life for ail
Pacific Bell's C Cities
Pacific Bell :1 to working with all.Calif ' :e the
advanced ~ a mutually beneficial reality for all, in every
community the earliest possible date.
PACiFiC~IIBELL,
II
· IN' Plan - November 11, 1993
Announced a multi-billion dollar plan to upgrade ,~structure and
be~n building an integrated "~ ' ion and
providing i vid AT&T was
named ~ ?plier for thc project.
· Video Dialtone applical' FCC - December 1~93
Filed four video dialtone "214" appE t~ the Federal
Comrmmication$ Cc to build a network allowing multiple video
Ol a of our four initial deployment areas. The filings cover
about 1.3 million 1~ S.F. Bay Are~ Los Angeles, Orange County
and San Diego. We asked the FCC to take into consideration that
entrenched cable provid ~g to deploy net~.orks that will provide
two-way voice and d 1 as cabl
· LA Times joint venture - January 12, 1994
Announced with Los Angeles Times a joint venture that will offer electronic
shopping' ' business listings, classified an.d, display advertising,
and editorial, ' ~ and [ ' ' -- an electronic
marketplace that will save buyers and sell y and energy.
While shopping ' tl be o ,~red first in Southern
California, the j ' [1 seek partnem-nps with other information
provid throughout Call: mia. The initial
mid-1995 will o. ffer teleph ~opp ng assistants who wil.l help
callers find i: :1 products, they need. Eventually, th ' [1
be available via personal digital phones and'
· Vid' L-- January 24, 1994
Announced with Hewlett-Packard Company between Pacific
Telesis Video $ ~ H-P to work tog.ether io build
video system that will ~1 other programs "on
demand" by early 1996. H-P will provide large vid built around a
"video transfer engine" that is flexible, reliable and more efficient than
competitive systems.
· Education First - Februa .fy 14, 1994
Announced a $100 mill' ' California public schools and
public libraries to start them rolling on · ?erhighway.
The initiative gives schools and libraries a baseline technology capability for
telecomputing (high speed d: ) and ' ~ ' learning (video
conferencing.)
· Groundbreaking- May 19, 1994
Launched construction of Pacific Bell's advanced fiber optic and coaxial
cabl r in the S~. Bay Area, Los Angeles,
Orange County and San Diego. work will not begi.n on the video-
rdated, p~.nion of Federal C ions
Cc ~proves the company's video ~pllcations.
· Anchor Pacific Corp. - July 28, 1994
Announced contracts with the fa'st of many g ~ected to
supply vid tvanced network, Anchor
Pacific Corp. and ' Standard Television Corp., both companies
owned by Ron Dorchester.
· Bell Atlantic, NYNEX, Pacific Telesis Agreement - Oct. 31, 1994
Bell Atlantic, NYNEX and Pacific Telesis Group announced the f ~
two new companies to deliver the next generation of. nationally branded
1~ ~inment, information and interact'. Two companies
)lished: a m .e~i/a company to develop a portfolio of branded
g ' ~g and t a technology and integration company
which will provide the systems needed to drive the delivery of this
programming over the telephone companies' new video dial tone (VDT)
networks.
The partners also formed a strategic relationship with Creative Artists
Agency, Inc. (CAA) to consult with the media company.
· First Amendment Relief-- December 30, 1994,
The Ninth Circuit Court ruled in favor of Pacific Bell's First Amendment suit
to enf ' ~,h. ts. to provide broadcast video pmgranuning
its telepl~ The Court ruled in favor of by US
West, and issued a separate order to the Northern Calif : Court -
San Jose (where we had filed our own First Amendment suit) to role in favor
of our suiL
· ~andmark Agreement With San Diego - January.18, 1995
e City of San Diego passed f ~ ~
aeifie Bell. T~ : was forged from a mutual belief th
~ th ~, will benefit f ~ capable of providing
voice, video and d The city will receive 5% of the
resulting from vid ' ~ over Pacific Bell's network, there
compensating the city f 1' a from cab- systems
currently paying the city franchise fees. While Pacific Bell is not leg
obligated to pay franchise fees, it has nevertheless expressed
keeping the city whole financially. The ordinance also calls for the city not to
regulate Pacific Bell under local cabl ' ' franchise ordinances.
!
Version ded by the JPA Ad Hoe Committee on May 8, 1995
PRIVATE PROPERTY RIGHTS PROTECTION POLICY
The San Dlegulto River Valley Regional Open Spate
Park Joint P.wers Authority, a government agency without land use authority, respects
private propert~ rights and has pledged not to infringe upon those rights to Implement its
goals and objectives. To ensure that private property rights are respected, the ./PA has
adopted the following specific guidelines for private property rights protection:
: The JPA has never condemned property. The d-PA will never
=l nor participate in a hostile condemnation. By law, when it acquires property the
JPA must compensate property ow~ers for the fair market value of their property. It is the desire
o£ the JPA to retain 'friendly' conderm~tion £or tax pm'poses, an important benefit to properly'
owners desiring to sell their prope~.
The 5PA may not acquire property without the approval of the
member agency within whose jurisdiction the property lies (page 4 of Joint Powers
Agreement). When property is offered for sale to the YPA, that approval can be made by the
City Manager or Ad ' ' if that jurisdiction delegates that authority to its City Manager or
Ad By law, the JPA must pay full fair market value as determined by a certified
apl: ~uired by state law, unless the property the land at a below marl~et
price for tax purposes.
: The JPA is not an agency with land use authority and cannot
regulate or impose restrictions on private property owners in the focused planning area of
the San Dieguito River Park. The focused planrfing area for the San Dieguito River Park is a
regional park planning boundary.. Both private and public land is included within the focused
pi Some of the private land may be acquired for the park in the future from willing
prol: if the land is needed for park purposes.
: The ~PA has adopted design and develop =lards which apply
ONLY to park-initiated projects on public land (page 100 of Concept Plan). The JFA
cannot adopt design and development standards which are binding on private propert'}.' owners.
The adopted Concept Plan includes in an appendix a compilation of possible guidelines
developed by other agencies which are not part of the Plan. These types of guid ' t only
be adopted and implemented by the member agencies which have land use authority. The
County of San Diego has not adopted design standards for the t area v. ithin the
FPA.
The JPA has the right only of advisory review and comment on private
development proposals. The JPA cannot limit private property owners rights. Thc JP:\ is
authorized to review and comment on private development proposals submitted to its member
agencies which arc within or haxc an itnl,aCt oo thc San Dicguito River Park tPg 4 or' Joint
arie ofto , Deputy Ci~YoClerk I
~AY161995 ITEM 13
Powcr~ Agreement). Such review and comment is advisory in nature only, similar to any
phmning group or private individual.~ exercising tYec speech. Decisions regarding land usc,
including xoning, discretiunury .',nd ministerial permits and other regulations are made by the
JPA's member agencies, which have complete land use authority. The JPA will review and
comment only on discretionary projects such as subdivision or use permits. Thc JPA will not
review and ' ' projects, remodels, single family home building pen'nits, or
other uses permitted by right such as agricultural uses.
Trails: Trail planning and impl' of park imp will be focused on
publicly owned land located west of Lake Sutherland. The Coast to Crest Trail will not be
implemented on privately owned land without the property owner's consent; however, if
the property ~ a d' permit (such as a major subdivision) to develop
his/her property, the County or City may ' Iht to require a trail as a condition of
approval. Trail alignments will be developed in cooperation with landowners and leaseholders
in order to minimize impacts to existing uses, such as farming, cattle ranching and private
residences (pg 37 of Concept Plar0. Wb. ert determining where a specific trail should be located,
consideration shall be given to surrounding uses, both existing and planned for the area, in an
adopted land use plan LOg 37 of Concept Plan). In order to minimize impacts to adjoining
properties and uses, trails shall be adequately separated from existing uses through setbacks,
significant elevational separation, and/or fencing LOg 37 of Concept Plan). Signage shall be
provided along the trail to ird .r' on the ~ail and respect adjoining private property
LOg 37 of Concept Plan). The .TPA will establish a volunteer patrol program supervised by a park
ranger to ensure that park regulations are observed Log 37 of Concept Plan). When a private
property ov~x~er seeks a discretionary permit to develop b. is or her property, the J?A will work
with member agency staff and the property owner to identify appropriate trail al' ~ to
support trail dedications ONLY when a land use agency under its ow~ policies would normally
require a trail dedication (such ~division) Log 37 of Concept Plan). Segments of the
Coast to Crest Trail may i~ :1 outside of the San Dieguito River Park focused planning
area because of topo.m'apb, icai or to avoid property owner conflicts. Due to
topographic, sensitive resource or other the bike path portion of the Coast to Crest
Trail may in some places have to be located along existing streets Log 36 of Concept Plan).
: The JPA strongly supports th ~ use of private property
for farming and ranching purposes. The adopted Concept Plan the
predominant use in the San Pasqual Valley and continued ranching in the Santa Ysabel Valley
(pages 63 and 73 of the Concept Plan). The JPA has not and will not interfere with a property
owner's rights or ability to farm. However. there is nothing in the Concept Plan or in the powers
of the JPA that would require a property owner to farm or ranch his properS.', if the underlying
zoning of thc land use agency permits other uses. The JPA will not put a trail across active
grazing land.
1 1
1 8 1995 ITEM34
gAY!61995 ITEM I ·
SUMMARY OF NOTICED MEETING WIT['[ PROPERTY OWNERS
(Held May 3, 1995)
BACKGROUND
At the JPA Board's request a noticed meeting for property owners was held on
Wednesday, May 3rd. Approximately 625 notices were mailed to property owners
within the focused planning area. The pu.,-pose of the meeting was to listen to the
property owners' concerns regarding the San Dieguito River Park and to discuss ways
in which these concerns have been or could be addressed. Approximately twenty
people at~ended. Those individuals who signed in are presented below.
Mr./Mrs. Harold Brothers Start Yalof
D.P. McWhirter ,,, Mr./Mrs. John Farkash
.,..Jack M. Gibson Byron White
H. Michael Collins Herb Turner
Mary-Ellen Gausewitz ,William Chilvers
,.. Arthur Schrnltz Mr./IV[rs. Ben Hillebrecht
John E. Gets Bruce L. Cavanaugh
- SUMMARY OF COMMENTS
The follow[ug is a summary of the major issues discussed at the meeting:
Some of those present understood that the J-PA does not have land use authority, and
that the Concept Plan did not include "design standards" which would be imposed on
them by the JPA. However, all were concerned that the member agencies would do
wb, atever the JPA asked them to do when a project is reviewed, and further that the
member agencies would adopt design slandards which would even apply to single
family building permits. There was also that the ,I'PA could dictate when
and if agricultural crops could be planted. It was stated that the IPA has no such
authority. The basis for this concern was unclear, although felt that the goal
to protect sensitive biological resources could be interpreted as opposing new
agricultural uses.
Having a list or' which specific types of projects the JPA can and cannot review and
comment on may help alleviate some concerns.
1995 ITEM
Summary - Page 2
The JPA is viewed as one additional layer of I~ on top of what most felt was
too much g (federal, state and local) already. It did not s~em to matter that
thc JPA does not issue g gulate uses. One individual made the general point
that planning should be more integrated than the piecemeal planning which usually
occurs. This would seem to argue in favor of an approach such as the .rPA, which was
created to avoid piecemeal park planning by the six member agencies.
Condemnation:
Several property owners said they want the J'PA to say it will not use its powers of
eminent domain. Some felt comfortable with simply elimir~ting the use of hostile
condemnation (they understand about "friendly" condemnation), while others wanted
to see things taken further. For example, the JPA should state that it will ge
any member agency to condemn land for the Park, and will not accept any land for the
Park that has been condemned by any agency.
FPA Boundary:
Those present did not talk about which FPA they preferred. There was
general discussion about what it means to be in the FPA, including some concerns
regarding on their property as a result of being in the FPA and the potential
for inverse condemnation. It was stated by staff that the Concept Plan does not impose
· ' on private property, and that the JPA has no land use authority.. Through
further discussion it appears again ~ ' wi~ other agencies could
choose to apply in order to implement the Concept Plan.
"Park" C
There was discussion that the term "park" as commonly understood (developed for
active, uses) may not be the appropriate terminology for what is the intent of the San
Dieguito River Park. which is a "greenbelt and open space park system". Some
property oxvners suggested SDRP change its name.
Privat~ ~ :
There was strong support for the idea of having a clearly defined explanation of how
thc San Dieguito River P~k has t~cn action to protect prix'ate property rights. They
wanted such a docunaent adopted as part of the Concept Plan. A draft private property
rights protection pkm was distributed to the property owners.
Mh¥ 1 8 1995 ITEM
MAY 3. 6 1995 Il EM
Summary. Page 3
Thc issue of liability wa.~ discussed at ~mc length. Although the landowners were
aware that the State's Recreational Trails Li,,bility Stam;e renders them immune from
legal liability in most cases, they expressed concern about the initial costs of defending
themselves ag ' injured on their property (specifically ~ho strayed
off an adjacent wail) to prove that they are immune. Dwight Worden who x~ present
at the meeting to address these types of questions said this legal defense could be
provided through liabiliv,.' insurance if the Board wishes to have such coverage in the
future as trails are developed.
Several people who o~x~ property ~thin the Rutherford Ranch asked to be omitted
from the FPA, because the), were not in the original FPA and not in the ~4ewshed.
They also raised concerns regarding continued access to their property..
Additional Points:
Several of the eastern property owners stated that they felt there should be no new
- paved trails east of Clevenger Canyon; there should be more property owner
reg on the CAC; and that there should be no trails by ti: ~land.
Near the end of the meeting, Jack Gibson distributed a list of concerns and issues for
the YPA to consider. This document, dated April 1995, is attached.
5/5/95
~IAY 1 8 1995 ITEM ~ "~
1995 ITEM 13 .,t
!, " PRESENTED BY JACK GIBSON AT THE PROPERTY OWNERS
,
)' MEETING OF MAY 3, 1995
APRIL 1995 ''
· PRIVATE LANDS REMOVED FROM FPAYR. EDO FPA
· JPA MUST ADHERE TO AND RESPECT THE FIRST AND FIFTH
JPA TO STOP TRYING TO ADVERSELY AFFECT PROPERTY OWNERS WITHIN
THE FPA
~
NO LAND TALCING FOR ANY REASON WITHOUT THE PROPERTY OWNERS NON
COERCED CONSENT. PERIOD! PERIOD! PERIOD! TI-IIS IS WHAT Ms. JACOB
WANTED AND IT SHOULD BE FOLLOWED.
· PARK CONCEPT AND FINANCINO TO BE BROUOHT UP FOR GENERAL SAN
DIEGO COUNTY PUBLIC VOTE. PRESENTLY ~ IS NO SECURE DEDICATED
FUNDING TO MAINTAIN AND OPERATE THE "VISION". /PA
ACTIONS/PLANS/BUDGET/SPENDING MUST NOT DENIGRATE ANY OTHER
PARK OR SOCIAL SERVICE FLrNDING.
,/o NOTIFY ALL LANDO~RS WITHIN THE FPA, WHEN POTENTIAL PARK
POLICIES ARE GOING TO BE ENACTED OR ACTIONS SCHEDULED TO OCCUR
WHICH MAY HAVE ADVERSE AFFECTS.
HAVE A FIXED DEFINITION OF "MEMBEK AGENCY" I.E./PA MUST GET PRIOK
APPROVAL FROM IVIEiVtBER AGENCY INVOLVED I.E. BOARD OK COUNCILS
(NOT) DIRECT DEALINGS WITH CITY AND COUNTY STAFF PRIOK TO
APPROVAL BY BOARD OR COUNCILS
q'. · RESTRUCTURING OF CONDEMNATION CAPABILITIES AND ./PA INVOLVEMENT
WITH OTHER AGENCIES CONCERNING SUCH
· RESTRUCTURING OF THE/PA BOARD SUCH THAT THERE IS NO ETHICAL
PROBLEMS SUCH AS HAVING A COUNTY SUPERVISOR AS/PA BOARD
CHAIRXL~d~I
THE/PA CLAIMS BEINO SUPPORTIVE OF PRIVATE PROPERTY RIGHTS A.N'D
AG~CULTURE. TH.ESE WOR.DS HAVE NOT BEEN SUPPORTED BY ACTIONS.
· DENIALS BY JPA STAFF AND BOAKD OF PROBLEMS WITHOUT ALLOWING
REBUTTAL IN PUBLIC TESTIMONY MUST STOP.
· ENFORCE CONSISTENCY WITH THE CONCEPT PLAN AND fPA AGKEEMENT,
CLARIFY THE DEFINITION OF FOLLOW TO THE LETTER THE CONCEPT PLAN
bIAY ! 8 1995 ITEM 4
PAG~ 1
~AY161995 ~EM 13 .
WORDING: "To use public land only t'or the benefit of the public, and I' ' :
with the goals of'the Park"
PARK PROVIDE LIABILITY INDEMNIFICATION FOR NEARBY LANDOWNERS OF
SDRP TRAILS/FACILITIES ETC. PARK WOULD BE ANEWI./,~B/£/TYEXPOSURE
FOR PROPERTY OWNERS.
· NO TRAILS LMPLEMENTED OR HIKES SCHEDULED WHATSOEVER TI[ROUGH
PRIVATELY HELD OR LEASED CATTLE RANGE LANDS.
· NO DENYING BY WA RECOMMENDATION OR IV[EMBER AGENCY (REQUESTED
OR SUPPORTED BY SPA RECOMIv[ENDATION) ACCESS OF WATER SOURCES TO
CATTLE
· PA.IZ) LAW ENFORCEMENT AND PARK MAINTENANCE STAFF
PATROLLING/OPERATING AND MAINT~G PARK TRAII. S AND FACI'LITIES.
NO PAVED TRA~S OR CAMPGROUNDS ON A_NY PUBLIC LANDS EAST OF THE
SAN PASQUAL VALLEY LANDSCAPE UNIT. THERE ARE MANY
ENV~ONMENTAL CONCERNS CONNECTED WITH THIS ISSUE.
· SDRP PROPOSED DESIGN AND LANDSCAPE GUIDELINES SHOLrLD BE CHANGED
OR ELnVffNATED IN SEVERAL AREAS.
· J'PA TO STOP REINVENTING GEOGKAPHY. THE SANTA YSABEL CREEK AND
CORRESPONDING VALLEY IS NOT TI-IE SAN DIEGUITO RIVER OR VALLEY. YET
THE SANTA YSABEL CREEK AND VALLEY IS CONSTANTLY BEING POKTRAYED
BY ~PA STAFF DUKING PRESENTATIONS AND OTHER DOCUMENTATION AS
BEING THE SAN DIEGUITO.
j· REMOVAL OF DEPICTION OF PRIVATELY HELD PROPERTIES ON THE SDRP
BROCHURE BY REMOVING THE COLORED PORTIONS OF THE MAP.
PRESENTLY THESE PRIVATE LANDS ARE INFERRED AS BEING PART OF THE
PAGE 2
· 7 I~IAY 1 8 1995 ITEM
}Vs, y 1 6 1995 ITEM ],3 , ,,
Version ns approved by the CAC at their May 5, 1995 meeting.
+ * * * DRAFT FOR DISCUSSION PURPOSES * * *
PRIVATE PROPERTY RIGllTS PROTECTION
: The San Dieguito River Valley Regional Open Space Park
Joint Powers Authority has always respected private property rights and has
pledged not to infringe upon those rights to implement its goals and objectives. To
ensure that private property rights are respected, the JPA has adopted the following
specific guidelines for private property rights protection.
The JPA has not and will not establish any regulations
which impose on private property owners in the focused planning area
for the San Dieguito River Park. The focused planning area for the San Dieguito River
Park is a regional park plarming boundary. Both private and public land is included
within the focused planning area. Some of the private land may be acquired for the park
in the future from willing property owners if the land is needed for park purposes. The
JPA has adopted design and development standards which apply ONLY to park-initiated
projects on public land (page 100 of Concept Plan). The JPA has not and will not adopt
design and developmem standards which are binding on private property owners. The
adopted Concept Plan includes guidelines in the appendix which are not part of the Plan
and could only be implememed by the land use agency (page 116 of Concept Plan).
In its advisor', review and comment on private development
proposals, the J'PA will not I ~t to have others limit, any private property
owners rights as guaranteed by the U.S, C and upheld by the Courts to
the use of private land whether for farming, ranching or development. The J'PA is
authorized to review and comment on private development proposals submitted to its
memk ~ich axe within or have an impact on the San Dieguito River Park (pg
4 of Joint Powers I. Such review and comment is advisor' in nature only,
similar to any planning group or private individuals exercising free speech. Decisions
regarding land use, including zoning, discretionary and ' ' " permits and other
regulations are made by the JPA's member agencies, which have complete land use
authority. The JPA will review and comment only on d' . projects such as
subdivision or use permits. The JPA will not review and comment on ministerial
projects, remodels, single family home building permits, or uses pertained by right such
as agricultural uses. The JPA has not and will not adopt design and development
standards which are binding on private property owners.
Trails: Trail planning will focus on publicly owned land located west of Lake
Suthcrland. The Coast to Crest Trail will not be implemented on privately owned
hind without the properS.' owner's consent unless the propers..' owner seeks n
d' . permit (such as a major subdivision) to develop his/her property (paRe
37 of Concept Plan). Trail al' Il bc developed in cooperation with landowners
sod Icasch~ddcrs in order ~o minimize impacts to cxistlng rises, stlch as lhrming, cattle
nmching -',nd priv-',u: re.~idcnces (pg 3'/of Concept Plan). When determining where a
spt:title tr.',il should bc located, consideration shall bc given to .,surrounding uses, both
existing .',nd plunnud Ibr th Joptcd land usc plan (pg 37 of Concept Plan). in
order to minimi~ impacts to adjoining properties and uses, trails shall be adequ, tely
separated from existing uses through setbacks, significant clcvational separation, and/or
funcing Cpg 3'7 of Concept Plan). Signage shall b~ provided along the trail to inform
users to stay on the trail and respect adjoining private property (pg 37 of Concept Plan).
The JPA will establish a volunteer patrol program supervised by a park ranger to ensure
that park are observed (pg 37 of Concept Plan). When a private property
owner seeks a discretionary permit to develop his or her property, the JPA will work with
member agency staff and the property owner to identify appropriate trail alig :I
to support trail dedications ONLY when a land use agency under its own policies would
normally require a trail dedication (such ~division) (pg 37 of Concept Plan).
Segments of the Coast to Crest Trail may have to extend outside of the San Dieguito
River Park focused planning area because of topographical or to avoid
property owner conflicts.
: The d-PA strongly supports the continued use of private
property for farming and ranching purposes. The adopted Concept Plan encourages
agriculture as the pred in the San Pasqual Valley and continued ranching in
the Santa Ysabel Valley (,pages 63 and 73 of the Concept Plan). The JPA has not and will
.. property owner's rights or ability to farm. However, there is nothing
in the Concept Plan or in the powers of the JPA that would require a property owner to
farm or ranch Ms property, if the underlying zoning of the land use agency permits other
Uses,
The J-PA may not acquire property without the approval of
the member agency within whose jurisdiction the propert?' lies (page 4 of Joint
P ~. For acquisition fi.om a willing seller, that approval can be made by
the Ciq' Manager. if that jurisdiction delegates that authority to its City Manager. By
laxv, the JPA must pay full fair market value as determined by a certified apl:
required by state lax,.', unless the property, owner offers the land at a below market price
for tax purposes.
The JPA has never condemned proper?. The J'PA will never
t nor be officially involved with - hostile condemnation. The JPA will not
utilize its ~wer of condemnation except with the consent of the property owner and in
accord with its adopted policy on eminent domain. By law. the JPA must compensate
property the f ' ue of their property.
MAY 1 8 1995 ITEM
u~,¥ 16 1995 ti'EM 17~
DRAFT
May 19, 1995
Honorable Chair and Board of Supervisors
County of San Diego
1600 Pacific Highway, Room 335
San Diego, CA 92101
Dear Chairworoan Jacob and Supervisors:
SUBJECT: The San Dieguito River Park and Your Action of April 4, 1995
This l ' ' .ponse to ~ [ April 4, 1995, requesting consideration
by the ]PA Board of certain issues. After giving careful consideration to your
concerns, and those of private property owners and roerobers of the public, the
]PA Board, on May 19, 1995, adopted a Private Property Rights Protection
Policy, a copy of which is attached to this letter, and revised the Focused Planning
Area of the San Dieguito River Park (see attached roap). The JPA Board's
responses to y i issues are listed below:
1. Remove the power of cond ~e San Dieguito JPA.
In response to your request, the ]PA Board has reviewed its position on eminent
domain and has clarified its position with respect to hostile cond the
Private Property Protection Policy. The ~A will only enter into "friendly"
condemnations with willing sellers who wish to use that process for the tax
benefits.
2. Provide a phasing plan to identiJ~.' the western portion of the park as a priorin,'
for acquisition.
The JPA has almost no fimds available currently for land acquisition, and them
are few potential sources of thture acquisition funds on the horizon. Language
has been added to the ]PA*s Private Property Rights Protection Policy to indicate
that the JPA will its acquisition priorities on lands west of Interstate
15. The JPA Board will continue to take advantage of acquisition opportunities
where possible in thc eastern ~u~as, specifically at Ruthertbrd Ranch and Boden
Can?n. and from ofl~cr willing sellers. It is thc ]PA's intention to
hind ' ' ' trail pkmning and impt o1' park improvcroents in thc
av,:a west of Lake Suthcrhmd.
MAY 1 8 1995 n'EM
I AY 1 6 1995 ITEM 13
Ih.mi t f
May 19, 1995
I'ase 2
- 3. I, brmt&tte rural wddellnes la clar~y the relathmshlp between the park and the private
The Private Property Rights Protection Policy lays out all of the ways in which the JPA will
suppo~ and protect private property righu. ~is policy applies to all private pro,ny o~ers,
not just those in the rural ~e~.
4. Insure that the JPA will not have the ability to inter, re with farming activities and the
utilization of local streams for irrigation.
The JPA h~ repeatedly sE ; suppoa f t f~ing ~d ~ehing
the river valley. ~e Pfivme Prope~ ~gh~ Protection Policy ~ido<es ~m in reg~d to
f~ing ~d r~ching on private prope~, In ~e S~ P~q~l Valley, moa of ~e f~ing
activities t~e place on Ci~ of S~ Diego prope~, ~d ~e regulated by ~e Ci~. ~ Mditio~
regional, state ~d federM agencies ~ve regulations eonce~g potenti~ imp~ to wat~ ~d
water quali~, ~d these re~latio~ c~ ~pact f~ing activities. ~e ~A's role is Mviso~
only.
5. Revae the Focused Planning Area by deleting the privately owned proper~ be~een the
Sutherland Resemoir and Ruthe~ord Ranch while providing a tholed foot corridor along the
San Die,ilo R linage.
~e ~A retained prep~e a computerized viewshed ~ysis of ~e S~ Die,to
~ver V~ley. The compute~ed ~ewshed ~ysis w~ ufil~ed to develop a reused Foc~ed
Pl~ing ~ea. At its meetMg of May 19, 1995, ~e ~A Bo~d Mopted a ~sed FPA wMch
eliminates ~ose ~e~ wMch ~e ou~ide of ~e ~ewshed. In additio~ ~e ~A Bo~d mated a
Special Study ~ea M ~e S~m Ysabel ~ea be~een L~e SuPerior ~d R~efford ~ch.
P~k piing ~11
FPA, or a private prope~ o~er submits a discrefio~ development pe~t ~quest (such ~ a
major subdivision, specific pl~ or gene~ pl~ ~endmenO to ~e Co~. ~e ~A c~ot
acquire prope~ or e~ements or pl= ~ls or o~er p~k improvemen~ in ~e Sp<i~ Study
~ea until = FPA is established.
6. Meet with residents and propers.' owners of the rural areas to obtain their input and to
address d by the prol: . the Board of Supervisors hearing and provide
guidelines for insuring their participation in the fitture.
Those persons who spoke in opposition to the San Dieguito River Park at the 4/4/05 Board of
Supc~'isors meeting were personally contacted and informed of thc JPA's April 21st and May
loth meeting on th .t invited to express ~ ' he JPA Board. All private
property owners within thc FPA I to a special a JPA staffon May 3rd to
discuss their concerns, and to help formulate spccilic proposals to an~cliomtc those concerns.
Board of Supervisorn
May lO, 1995
Page 3
!
Citizens lbr Private Property Rights gave a I~ to the JPA at thc SPA's May 19th
meeting.
In addition, input from rural property oumcrs was considered at great length by the JPA Board
during thc concept plan adoption hearings. Public meetings were held on October 15, 1993 and
December 3, 1993. Property owners throughout the FPA were notified of thc January 21, 1993
hearing, thc February 4, 1994 workshop, and thc February 18, 1994 hearing. In addition, ali
private property ~in the FPA were invited to attend an informal discussion with staff
on January 19, 1994 to ask q :1 provide input in regard to the concept plan. Numerous
members of the public, both those in favor and those opposed to the plan, wrote and spoke to the
Board during the time period when the Concept Plan was under consideration..4. ~' the
hearings, numerous changes were made to the Concept Plan to public concerns,
and two property owners from ~ idea to the Citizens Advisory Committee.
7. Provide a more detailed map showing the FPA ~ public and ~ ~ip.
A map showing the areas within the existing and revised FPA which axe publicly owned is
enclosed with this letter.
Additional Issues of Concern to the JPA
Th :Iditional issues proposed at your April 4, 1995 meeting which are &concern
to the J-PA. A the County, along with the Cities of Del Mar, Escondido, Poway,
San Diego and ~olana Beach, authorized the J-PA in 1989 to acquire land, plan, improve, operate,
manage and maintain land within the San Dieguito River Park Focused Planning Area as a
greenway and open space park system. It was to discharge this duty that the JPA worked with
County staff and the staffof i:s other member ag ~uire land and begin imp]
of~ ' ' ~ in the Joint Powers Agreement. The JPA t that lands purchased
in the San Dieguito River Valley with San Dieguito Prop. 70 funds would be transferred to the
JPA to be owned and administered in accordance with the Joint Powers Agreement. It was
understood that funds expended by the YPA to help acquire those properties would be reimbursed
as provided for in the bond act. Additionally, in order to carry out its responsibilities as set forth
in the Joint Powers Agreement, the JPA depends upon its member agencies for annual financial
support. The County's share &the JPA's budget, approximately $64,000 annually, is 26% of the
meml: That share was determined in 1989 based on a f ¢osed
of total population and acreage within the FPA.
The JPA Board is confident that it has satisfactorily addressed your concerns by adopting a
Private Property Rights Protection Policy, and by revising its Focused Planning Area. The
adopted Concept Plan and thc Private Property Rights Protection Policy, provides clear direction
for thc impl park goals and objectives which will benefit the residents of San Diego
County now :md in thc future. Thc JP:\ Board requests that thc County continue to support the
vision of the San Diegaito River Park by transferring title to those properties purchased with
- .', AY181995 4 .tt
AYZ61995 13 ,
Board of Supervisors
May 19, 1995
Page 4
Proposition 70 funds earmarked for San Dieguito River Vallgy ~o the JPA (as formally requested
in the JPA's letter of January 31, 1994), reimbursing the JPA for its direct expenses in helping to
acquire properties in the river valley with those funds (also requested in the January 31, 1994
letter), and ~ute ~' funding support for the JPA along with the other
member agencies.
Sincerely,
Diane B. Coombs
Executive Dh'ector
~IAY 1 8 1995 ITEM
· ~ 3 I~A¥ 1 6 199s iTEM