HomeMy WebLinkAbout08-06-1991 City Council Minutes MINUTES
SARATOGA CITY COUNCIL
TIME: Tuesday, August 6, 1991 - 7:30 p.m.
PLACE: Large Room, Senior Center, 19655 Allendale Ave.
TYPE: ~Adjourned Regular Meeting
1. Roll call
Councilmembers present: Anderson, Clevenger, Monia, Stutzman, Mayor
Kohler.
Committee present: Caldwell, Harris, Kalb, Schwartz; Committee absent:
Smith
Staff present: City Manager Peacock, City Attorney Meyers (for
Riback), City Engineer Perlin, Chief Building Inspector Oncay, Planning
Director Emslie
The meeting was called to order at 7:34 p.m.
2. Report of city Clerk on Posting of Agenda
Pursuant to Government Code 54954.2, the agenda for this meeting was
properly posted on August 2. The notice of adjournment from the July
17 Council meeting was properly posted on July 18.
3. Joint Meeting with Citizens Investigative Task Force for Tract
7770
Mayor Kohler introduced those present from the Council and Committee.
(Clerk's Note: At the Council's request, a verbatim transcript of the
meeting follows.)
Kohler: I would like to start off with some ground rules. We have an
agenda which is very wide open. Actually it's three parts this
meeting. First we will review the general report, and then I think an
important part of it too is that we discuss and take any actions on the
recommendations in the report, which are very important, and the third
part is the closed session. . We have the City Attorney here to, we
don't want to go into any personnel matters that would have legal
aspects. I asked the City Attorney to just let us know and as many
questions go through him if we come into that area that we shouldn't
discuss it here, just interrupt and we will take it up in the closed
hearing. So, I think that I'd like to start off with talking about
really the...to have explained by the Chair of the Committee, Jeff
Kalb, the methodology and...of the Committee in conducting the
investigation and how the Committee really evaluated all the testimony.
Monia: There was something that came up yesterday evening, which I am
not sure the Council was prepared to discuss or not, but I think that
the general public's understanding is that we received yesterday
evening a large packet from the City Staff, which basically is a
rebuttal, by and large, to the Committee's report and I am not sure
that the Council is prepared to discuss this this evening, but I do
have just a couple of questions about that, because some of the cross
examination or cross questioning is probably going to come from this
document, and I would just like to know where we stand on the thing.
Whether or not this is in fact the staff response. Is this a staff
response, or Mr. Oncay's personal response?
Oncay: This is my comments and observations of the Task Force Report,
as I indicated...
Monia: For the benefit of those of you who (inaudible) if anybody
wants to see those (inaudible) I'm sorry. Start again.
Oncay: As I indicated, the comments are not necessarily the response
of all the City staff, but it has been reviewed by the City Manager,
the City Engineer and the Planning Director.
Monia: Are they in concurrence with this stuff?
City Council Minutes 2 August 6, 1991
Oncay: I have not received any comments from them concerning any
editorials, although I have some of myself--of my own.
Monia: Mr. Peacock, have you reviewed the document, or are you in
concurrence with the document?
Peacock: I reviewed the document, yes.
Monia: Are you in concurrence with this finding?
Peacock: As far as I can tell they appear to be accurate to me.
Monia: I Understand that we are going to probably receive additional
comments from staff as it states here. What time frame would we expect
to have them?
Peacock: I think that is at the discretion of the City Council.
Monia: Under whose direction did you decide to write this report?
You took it upon yourself, Mr. Peacock, or a group, how did the report
come to the City Council (inaudible)?
Peacock: Well the City Council did in fact say that the people who
wanted to comment on the report should have the opportunity to do that
and Mr. Oncay has taken that opportunity.
Monia: Mr. Perlin did you read the report?
Perlin: I haven't read it.
Monia: Were you involved in writing it?
Perlin: No, I wasn't.
Monia: Mr. Emslie, did you read this report?
Emslie: I read it this afternoon.
Monia: So you were involved in writing it?
Emslie: No.
Monia: Can you explain to us the previous comment that it says here
that they had reviewed this document?
Oncay: I provided the City Manager and the City Engineer and the
Planning Director with copies of this document approximately a week
ago, and asked them to review the document and if they had any comments
concerning the document to provide me with those comments.
Monia: So the statement that they reviewed it doesn't mean that they
had taken part in writing it, just that they were given a copy?
Oncay: No.
Monia: No concurrence on the part of the Planning Director and City
Engineer?
Oncay: No, I never state that the City Manager or anybody else concurs
with my statements, I only indicate that they reviewed it.
Monia: Thank you. Are we going to...I guess one of the questions is
are we going to get to get into this document at all tonight?
Kohler: I would be happy if we could get the original documents, but
we have (inaudible).
Monia: Right.
Kohler: If we have additional time, or if it comes up during the
discussions, we can address it. And in that respect I would like to
have everybody who has a question, or a comment, refer to the page
City Councll Minutes 3 August 6, 1991
because it will be very difficult for the public and for ourselves if
we have all your remarks being recorded, so please tell what page and
what subject you are asking the question on, so that we can refer to
our documents, and the referral to this document of the City which has
not been seen by the people of the public, (inaudible) a minimum and
we would have to clean it up if it is going to be mentioned, so I want
to mainly concentrate on the recorded comments, and possibly also on
the other report on the Quarry Creek if that comes up, and let's start
off now with the Chair, Mr. Kalb.
Kalb: Thank you Mr. Mayor. First let me comment that I had spoken to
Mr. Allan Chadwick during the last week relative to a letter he sent
to a whole bunch of us, with no-one specifically designated as to the
one to respond. I have generated a memo, or a letter, to Mr. Chadwick.
He isn't going to be here tonight, he indicated to me on Sunday when
I spoke to him that he wouldn't be able to be here, but I did address
a letter to him and I have copies for the Council and Planning members,
etc., it is not a momentous document, so we can hand them out at your
leisure if you will. Getting down to the basics, hey, I can't say
anything in less than two pages. I think you have noticed that
already. Relative to the process, the way the Committee got started
off was that initially we received the package of materials that were
copied from various City records, as well as lists of people who were
involved in the process. We were given the names of the developers,
the City Council people involved, various commission members and so
on. As well as the list to the extent that the City knew of people who
had expressed opinions and issues on the matter. At the time we went
down the list and Mr. Perlin indicated to us that there were some
people, specifically the developers, who had declined to be
interviewed, but that Carolyn Cocciardi had said she might. I
eventually tried to contact Ms. Cocciardi and on the advice of counsel
she declined, because of the involvement in the law suit, but
additionally we wrote a letter to all the residents in the surrounding
area, and Mr. Perlin helped us to identify on the map all the people
who might have been within eye or ear shot of the hillsides, and we
sent those letters out and also published a letter in the Saratoga
News. I am afraid to say that there was very little response to that
letter, but effectively that was our attempt to gather information from
people, and given that list of people we then began taking testimony
from witnesses, starting with the City Manager and the City Attorney.
The general process that we agreed on was to try to build a time line
of events, to try to structure the information, and you see the results
of that in the report. Basically we used the events themselves to try
to hang other information together to provide a structure in which to
organize it. Our initial intent was to spend a lot of time focussing
on the inter-action between the citizens and the City, trying to
understand why the grading wasn't stopped sooner, why there hadn't been
more monitoring and so on. But actually in the very first night of
interviews a strange thing happened that began to shape the process.
First of all at the end of his interview, Hal Toppel came up to me and
said something to the effect that it would be unfortunate for the
City's litigation if we found that the final map had been illegally
issued. Councilman Monia was present at the time and I later brought
that to the attention of the committee. The question that obviously
immediately came to my mind was what was it that I wasn't supposed to
find. What had happened, I sort of thought maybe it was possibly the
extensions or from what I have been able to tell that may have been a
red herring. But needless to say from that point on in time some
members of the committee started trying to focus on what was happening
relative to the final map. What was it we were not supposed to see,
hear, find, or whatever, why was this advice proffered? The other
thing we began to ask questions is how the contractor would go about
moving 15,000, or whatever it was, cubic yards of earth without a plan.
There are enough of us who were there who are engineers to know that
these people like to get paid for their work, they probably estimate
jobs of that nature and that we figured somewhere along the line there
had to have been an organized plan for doing something and that had
never been offered to us at the time, and in fact there was no
indication of the answer, at least not that we recognized, although we
did see one reference later on, until 12/6/90, which was about two to
three months into the investigation after we had interviewed many
people, when we interviewed Mr. Neil Rauschhuber who had been the
inspector on the job. Unfortunately he was one of the later people
City Council Minutes 4 August 6, 1991
that we interviewed, and he indicated to us at that time that, in fact,
there were plans available and at that point we started all over again
in some respects, because things began to unravel and we began to put
various pieces together and in essence the process of interviewing
turned into a more of an investigation and we began taking in and
reexamining the documents we had read, visiting people, visiting down
at the Court House and various other places trying to gain additional
information about hard records. Now we never got, as I said, a lot of
people volunteering information and in fact we didn't get a lot of
verbal testimony that was really precise enough to use, with the
exception of people like Pat Kraus, who kept a record of their
activities and Gene Zambetti, who also had some hard copy relative to
his visits. In fact I did a rough estimate prior to the meeting of the'
material in the time line and about 8% of it was based on verbal
testimony, the other 92% of it should be supportable with written
documents, of one sort or another.
Monia: Are you talking about your report?
Kalb: In our report, yes. The key is as I said was the information
based in the time line, of that about 92% was generated based on
written documents and this is just in terms of volume and I can't
assign significance or weight to it. And about 8% based on the verbal
testimony. The primary document, which provided the time line and the
basis for it, was actually the contractor's log. There were some
pieces of that were missing, and in fact we expect that there was
probably a contractor's log for the work done in building the water
road, the work out onto the Williamson Act, but Mr. Perlin was unable
to get the contractors to provide us with a copy of that. They
wouldn't return his calls as I recall, so we never did get that kind
of information. The other thing that you probably notice is that we
used a lot of direct quotes from documents. Wherever the text is in
small type, those are direct quotes from documents that were taken.
The general rule we used for including verbal evidence is that we
needed to be able to substantiate it from at least two testifiers and
that it made sense with the other data that we had in written form.
There were various pieces of information that we had which we did not
include because we could not confirm that there were multiple pieces
of reference. If we couldn't nail the data, and I remember two places
where this was the case in the report where we needed something for
continuity, we said so in the report that this was our best estimation
of what happened. I think that is without exception. In some respects
we operated like a City Council. You have the right to swear in
witnesses as you take testimony but you almost never do it. You accept
the word of the people as being candid and filter out and make
judgements on the data. In essence we did the same thing 'with one
other step. We took notes, each of us individually, we typed up those
notes, we compared those notes so that in general we had some agreement
on what people had said. And then we used that as a basis so we had
a common base of information within the Committee for makin~ later
determinations. During the later phases of the work, as I said, there
was a lot of digging by individual members of the Committee, Meg
Caldwell, Peter Smith, going to the court house, real estate board for
records. One of the problems that we did have that there was a fair
amount of documentation missing. Part of Neil Rauschhuber's notes, and
relatively incidental to it, Bob Shook's personnel folder because we
were trying to establish some dates and nobody was able to come up with
his folder. We wanted to know when, where, you know he went on
vacation, because he had one in the fall, there were a few things like
that we were trying to establish. The file of the department of real
estate which would have helped us to confirm some of the stuff, the
white papers, they think the report was sent off somewhere to San
Francisco or Sacramento, they weren't sure where it was. As I
mentioned, the contractors log who worked on the Williamson Act land,
the water plans which are relevant that are mentioned in the document.
And then there was a box of documents that ultimately reached Mr.
Riback's office which we felt should have been given to us as part of
our earlier request for documents. It just sort of showed up right at
the end and there was some very interesting stuff in there it appears
but we never got to look at it in detail. This gave us some problems
obviously in identifying what was approved, not approved, no records
and what deviations might have been approved in the process. So the
general take we took was if we didn't have a written document
City Council Minutes 5 August 6, 1991
supporting something that appeared to be unapproved we called it
unapproved. Now there may be some cases where that is in error. Where
in fact there was a verbal approval or something of that nature that
was given to the contractor without any records that we just listed
as unapproved. In fact, that is some of the comments that I made to
Mr. C~adwick in a letter that I sent to him. There was other
information and leads provided to us by people who we thought would
have been credible witnesses but also who refused to let us use any
of the direct information. This involves potential activities that we
could not confirm, therefore which I won't bother to discuss here, but
I think it's the kind of things that could require and really ought to
be looked into further in other sessions outside a public forum. I'd
be glad to comment on what those things are.
Monia: Are you prepared to do that this evening?
Kalb: If you wish. So in general, then, with that information in
front of us we started writing down a scenario. We agreed on the
outline. We started filling in the data and again, organized around
the timeline and then ultimately found three areas that we thought
deserved specific comment. One was the building of the water road or
the problem of getting water to the site, the second being approval of
the final map, and the third being just the overall organization and
inspection process and the state of--statement in the City itself. So
those three sections were written up separately. If there are other
questions about the process I would be happy to entertain them, but I
think that's about as good an overview as I can give you.
Kohler: Before we go into questions I would like to introduce Don
Macrae. He came in late; he is a member of the committee, and Meg
Caldwell was the Planning Commission staff member, and then Larry
Perlin was also the staff member who provided all the information. Are
there any questions from Council or maybe from the public for Mr.
Kalb's process?
Anderson: I want to make a comment because in looking through the
interviews in particular I found it somewhat confusing because of the
format of the interviews, which involved your asking questions and then
whoever was being interviewed answering the question. When you wrote
up the interview, when it's missing the questions, it is sometimes
difficult to figure out why this response is in there. And some of
them seemed to be somewhat out of context. Some of them are very hard
to understand. I know in looking at my own interview there are a
couple of things that I looked at and went "?" I know I said that, but
without knowing what the question was the public is going to wonder in
the world is there for. So I think that that was a problem in trying
to understand what went on based on these interviews.
Kalb: I concede that, but unfortunately, by the time we realized that
that was going to be information that would be needed in a few cases
to back up the line of reasoning, we hadn't had all that recorded. We
were advised up front not to tape recordings, to tape the sessions.
Anderson: Why was that? I was going to ask you that because...
Kalb: The feeling that I think was expressed at the time by Mr. Toppel
was that this was not a court taking testimony, you know, in the legal
sense. It-did not have the force of law that you would expect from a
City Council meeting or the like, and that therefore we shouldn't use
a court stenographer or things of that nature. Because we discussed
it at the very first meeting. Later I concede I wish I had it.
Anderson: Yes, I wish you did too because there are disputes that
would probably be answered by having the tape.
Kalb: Sure. It would have been much easier, believe me, because a lot
of us spent a lot of time writing, reviewing, editing, going back over
those notes, trying to compare each other's notes and make sure they
were as accurate as possible. (Inaudible)
Anderson: Then the other thing I wanted to talk about was--you talked
about the contractor'S logs being possibly missing, and then you got
this box of stuff toward the end. Now I know we took depositions very
City Council Minutes 6 August 6, 1991
early on, and I was under the impression at that time that we had
access during the depositions, to these contractor's logs. Do you know
whether they turned up?
Kalb: We have a contractor's log for the main project itself. But the
interesting thing was that there was only one reference to the work on
the Williamson Act property. And you have to take this in context, and
the documents are in here, although they are difficult...because they
have been through multiple copies now. But here's a group that is
writing down all kinds of things--exactly what equipment they have, how
many hours were spent, what they were doing, what size tractor, etc.
Suddenly we come to a part of the project, and there's for...you
know...where we're going to move, you know, tens of thousands of cubic
yards of dirt, install drain pipes, do soils testing, all kinds of
things--and there's one reference to it in this document. Later on we
began to realize, based on some of the comments of the contractors
themselves, that they had been--at-least according to their testimony-
-requested to quote on doing this work. Which is all fine and proper.
But then we began to think well, gee, if they ever did do any of this
under contract, they would have probably started a different job log.
That's when we asked Mr. Perlin to see if he could procure that
additional information, and as I said, they were not particularly
receptive about returning calls once they found out what the subject
was. Did you have anything further on that?
Perlin: You stated it accurately. They were not receptive to my
telephone calls.
Anderson: And these were not logs that we picked up during the
deposition?
Kalb: No. It was not part of the record. In fact, there are many
documents in here that were not part of the deposition record that we
dug up either at the courthouse or the real estate girl, things of that
nature. It would have helped further if we in fact had been able to
finally get hold of the records at the real estate--is it the State
real estate? Yes. But we just weren't able to get that. Each of the
members of the committee got excited about different things. As you
might imagine that'was one that Peter Smith in particular got since he
does work in this area, but he couldn't get his hands on those records.
Schwartz: The carton of information that showed up--I think we were
seven months into our deliberations--we had already written a draft of
the report--we were probably on the second, third, fourth draft--and
at that point all we were looking...and this is the subject of a
separate letter that was sent to the Council--while we were looking for
the record of the payments made pursuant to the Quarry Creek settlement
in '86, which we never did find, we got a box of records from Mike
Riback's office, and those turned out not to contain anything having
to do with Quarry Creek payments, but they did contain hundreds of
pages of documents that were public domain and directly on point for
our investigation into Tract 7770 that had never been made available
to us. They included, for example, depositions from the principals in
Westfall Engineering. We interviewed them with no access to their
depositions. They were public; we just were in the dark. There were
other documents.
Anderson: (Inaudible)
Schwartz: We were in the final throes of arguing about conclusions and
language and (inaudible) the unanimous agreement of the committee. We
were frustrated--and infuriated would not be a bad term--to be
blindsided after seven or eight months of work to come across hundreds
of pages of relevant documents in the City's possession.
Kalb: So we did unanimously agree that we weren't going to just go
back and open this thing back up one more time.
(Inaudible)
Monia: What kind of documents did you typically ask (inaudible)?
Kalb: We asked for logs, work inspection logs, internally. We asked
City Council Minutes 7 August 6, 1991
for the documents of correspondence between the City and developers.
Just anything, actually, that would shed light on matter and try to
provide us with as .accurate information as possible. As I said, in
some cases we could see that there were things that happened on the
lots that it's possible that they were approved on site by the
inspector or by somebody else. There are no records of any of this,
and so in our report we therefore refer to them as "unapproved". We
ran the Spellchecker and the Word Searcher looking for the word
"illegal," so we made sure that that wasn't in there, but we--you know-
-zeroed in on using that word because that is probably as accurate a
statement as we could make. We couldn't find formal approval.
Anderson: Non-approved.
Kalb: Non-approved?
Kohler: Let's go on, and I propose that we identify the areas of main
concern and address those first. And I'm sure that each and everybody
of us here will have some of those areas to be addressed. We already
heard three from the committee. It's first of all the water road, then
the final map--the conditional final map is an area of concern--and the
inspection process itself. So I have those three listed and I would
like to go deeper into those questions. Mr. Monia?
Monia: Yes. In reading the report I think basically what the
understanding is--to understand what has taken place in this whole
story--is you have to go'back basically to the approval of the
subdivision map. And I would like for the benefit of everyone present
tonight to have some of the committee members explain to us what was
wrong with the approval process (inaudible) that was stated in your
report and perhaps explain the findings and the concerns about how this
was done.
Kalb: Let me give it a shot and ask other members of the committee
to...
Kohler: Is this the final map?
Kalb: Yes, the final map, basically, yes.
Clevenger: That's one of the three issues.
Kalb: That's one of the three major issues, so let me just address
that one. First of all, let me attack the issue of final map approval
being a ministerial act because that comes up constantly, and this was
one that we've had to wrestle with in the course of writing our report.
The basic assumption, as we understand it, is that the controlling
document in the approval of a subdivision is essentially the tentative
map, and that with the tentative map having been approved and verified,
then the builders, developers then have to go through the process of
finalizing the plans, firming up the water, posting bonds, doing all
the kinds of things that assure that the project can be built
appropriately. Because this is basically a technical kind of thing,
the State Map Act conforms the City Engineer with the responsibility
of signing these documents. He's the right person. He verifies that
in fact there is substantial or essential conformance between the final
map and the tentative map, and therefore, once he signs it off,
effectively the City Council is a rubber stamp. It is a ministerial
act. The problem we ran into is, what if the City Engineer hadn't
approved the final map. Or what if the tentative map requirements were
being waived. It would then no longer conform to the tentative map,
and findings couldn't be made. When Councilman Stutzman tried to get
into this subject on October 19, 1988, he was blasted in what I hope
is one of the sorrier exchanges in terms of some of the vituperation
that went down. But in fact on August 7, 1986, prior to the settlement
agreement even, Mr. Toppel had wrote to Mr. Tobin, who was Cocciardi's
attorney, and said that they needed to get the case back assigned to
Judge Williams from Judge Ingram, who had taken over the case in mid-
stream, or they would be unlikely to get a determination that the final
map was in conformance with the tentative map. So then we are starting
from the very beginning some questions. The initial reading, when I
went through the work on October 5, is--I read the settlement
agreement. And it sounded to me like the developer had agreed that he
City Council Minutes 8 August 6, 1991
was getting a tentative final map extension, but that before the final
map was to be actually issued, and the responsibility was to be
delegated to the City Clerk, that he would have to provide water, or
they would have to provide water, for both the upper and lower section.
Then, as I said, the City Clerk would register the final map and in
effectsthe tentative final map approval would have been an extension
of the tentative map. And that's OK. That's in our City codes--we can
do that, although it may not be in conformance with the State Map Act
as referenced by the law--by the codes that we have there.
Clevenger: OK. So what we did was we gave the conditional final map
based on the tentative map. Right?
Kalb: Yes. And if in fact the conditions were there that you had to
provide water for the entire tract. As I read through it I said, gee,
everything seems to be in order here except, this thing got registered.
It got registered nine days later.- Or recorded nine days later--long
before water had been and secondary access road had ever been approved
or provided.
Clevenger: But wait a minute. Before you go on with that. Isn't that
something that the City had allowed? Conditional final map? So that
what happened was according to the City procedures.
Kalb: Let me continue.
Clevenger: OK.
Kalb: That sounded to me like it was exactly according to the City
procedures. Now let me try to fill in the pieces why it wasn't. At
least why we don't think it was.
Anderson: Or shouldn't have been.
Kalb: Or shouldn't have been. First of all, if it was a conditional
final map, and there were conditions that had to be met prior to the
registration of the final map, then how did it get registered nine days
later, long before the water had been approved? That was the first
question that went through our mind. Everything seemed to me to be OK.
But then Meg pointed out that I was reading it casually. If you read
it real closely, what the wording actually said was that the
development could proceed on essentially a lot-by-lot basis as soon as
water was provided for that lot. So under that interpretation, Mr.
Chadwick could get the water for the lower section, as he did,
(inaudible) along with a couple of Mr. Cocciardi's lots. They could
begin to sell them, develop those lots, they could go forward with
getting the white paper, etc. All the things can proceed along. The
problem I had with that is that now you in fact have modified the
conditions of the tentative map. You now split the criteria. You no
longer have a conditional final map that's in concurrence with the
tentative map. You have a fundamentally different animal. You could
have .gone back to square one, split it into two subdivisions, and
approved them one at a time. In fact you'll note there was a little
discussion in the report about the word--what was the word--"all" or
"any" "lots". "Lots" was the word. And it was the plural versus
singular. That the interpretation of the sentence made it a real
difference as to whether--as to how you would read it. Clearly the
operative interpretation has been to allow Mr. Chadwick to move forward
with that development. Lots have been sold. Things did proceed.
Water has been supplied. And in fact, that part of it is working out
relatively OK. There are a couple of other pieces. First of all,
that wasn't what the City Council approved in its resolution. Mr.
Toppel, Mr. Peacock, the documents themselves, all said that it is a
conditional final map. The City's code is very specific that the City
can issue a conditional final map and wait until the conditions are
completed. You did it on Bohlman Road. Successfully, apparently.
However, the Code also says you can split and you can modify the
conditions. That part again I think is in conflict with the State Map
Act at this point in time, but I'll leave that to the attorneys. That
was pointed out by the attorney that reviewed the document. We didn't
know that at the time. But we then went and started looking further.
And we found that the City Engineer actually hadn't signed the final
map at the time you approved it. He didn't sign it until seven days
City Council Minutes 9 August 6, 1991
later, on October 12. In fact, the drawings, the subdivision drawings
for constructing the subdivision, hadn't been approved, which the City
Council, or the City's ordinances'say has to be done. There is a list
of thing in the City ordinances that has to be completed before a final
map is approved. Those drawings weren't signed until April 20 of the
following year. In fact, when I spoke to Mr. Chadwick on the phone,
I got a little piece of information since I hadn't talked to him
earlier--was that when they started getting ready to go build this (and
I guess they had a meeting where he himself was involved--I don~t know
if Mr. Cocciardi was involved, but clearly the engineers, the
contractors were) they all of a sudden realized they didn't have signed
documents, which they thought they had. They then subsequently called
up, as I understand it, Mr. Toppel and perhaps got in touch with Mr.
Peacock--I don~t know the exact sequence of events--it~s really not
material--to get to Mr. Shook to sign them. Apparently as best we can
tell the issue had to do with the development of the entryway there in
the walls and how many trees were to be cut down and whether there was
a better way of doing it and so on. Ultimately it was decided to
proceed ahead just the way it was, and Mr. Shook signed the documents,
as I said, on April 20. So a simple way of thinking of this is...
Monia: (Inaudible)
Kalb: Yes. Sure.
Monia: So the City Engineer hasn't signed off on the conditional final
map.
Kalb: Not on October 5. When the City Council approved it. That~s
what I meant by what does it mean--is it really a ministerial act if
he hasn't signed it?
Monia: Did you ever find out why he didn't sign it before it got to
the Council?
Kalb: We did not ask that question directly to Mr. Shook. (Inaudible)
By that time we hadn't realized what had happened. We did subsequently
talk with the Associate Engineer, Arjan--I can't say his last name, and
he indicated that Mr. Shook had in fact problems with the amount of
trees and with the structure at the entrance which ultimately was the
thing that had to be worked out. There may have been other issues of
which we were not--you know--aware or ever found out the information.
The key facts we knew was there was at least concern about the
entryway.
Monia: The Council took action on the fifth, approved it, Mr. Shook
then signed off on the conditional final map...
Kalb: Or he signed the final map, yes, he signed the conditional final
map which was really a final map.
Monia: And then what did he sign in April?
Kalb: He signed the subdivision development plans, which were also
supposed to be signed prior to the approval of the final map.
Kohler: So how much time did we 'take?
Kalb: October 5 to April 6--that~s six months.
Clevenger: Well arenlt we talking about two different things when we
talk about the final map and the subdivision development? Wouldn't
that be two...
Kalb: The subdivision map is one of those things required by the
City's ordinances to be signed and approved before subdivision
development drawings, before the final map is approved--at least by the
City's ordinances.
Clevenger: But maybe that was one of the conditions--that woul'd be the
condition of the final map. I'm not sure how...
Kalb: Not that we~ve been able to find. It wasn't on the final map.
City Council Minutes 10 August 6, 1991
Monia: What conditions were on the map. I mean, I know the answer...
Kalb: One of the interesting conditions that was on the final map
which you'll find in the report was that all the latest, or all the
Code prior to Measure A, 1981, was what was to be applicable, not the
Code--the other parts of the Code as far as development, which had been
part of the settlement agreement in 1986. As you recall, part of the
agreement was that the developers in all those settlements agreed to
recognize essentially the developmental portions of Measure A in return
for getting the same number of lots that they were originally entitled
to. There is a caption on the final map that basically excludes this
subdivision from that provision, even though it was part of the
original settlement agreement.
Kohler: Excuse me. The settlement agreement only addresses density?
Kalb: The settlement agreement addressed many things. It was a very
complicated settlement agreement because it also involved issues
associated with the--Chiquita--Quarry Creek, landslide, Borrow Hill,
and various other things. So it's much more complicated ....
Schwartz: (Inaudible) In the 1986 settlement agreement--there is
actually a settlement agreement and the stipulations that are two
documents. In those two documents it says that the development of this
land will proceed except where specifically excepted--except where, for
instance, on density with the exception of things that were part of the
settlement itself, that other than that the post-Measure A development
standards will apply. That the map that was signed by the City and
then recorded contained a caption saying that the development would
proceed according to the 1980 development standards--the pre-Measure
A Standards, so it was in conflict with something the City had
negotiated, and depending upon which (inaudible) prevailed, the City
may or may not have--presumably by some error--lost some advantage that
had been negotiated in those settlements. There is also the question
of whether or not those conditions actually made it to the documents
that were signed. Well, because the actual conditions--the conditional
final map was supposed to contain certain conditions that had to be
fulfilled before recording. That's clear in the transmittal to the
City Council from staff. It's Clear throughout the documentation. But
when the conditional--what's called the conditional final map--is
prepared and signed, there are no conditions on it. (Inaudible) And
that's recorded. And had the conditions been on there it could not
have been recorded, but because a conditional final map is prepared
with no conditions, which is a contradiction in terms, then it's taken
down and recorded~following...
Monia: There was a development restriction agreement.
Kalb: Yes, there was a development restriction agreement and that did
get recorded in another book and it is referenced on the document.
What is interesting was even though these requirements, and given the
fact that no water at that time had yet been provided or assured,
either for the lower half or for the upper half, our question was how
did the white paper, the real estate white paper, get issued. I have
already indicated that you couldn't get to the documents to actually
see what they had or what they recorded. But Peter Smith (inaudible)
a substantial amount of inquiry into this and found out that the way
the County operated in that regard, was as long as they saw that the
lots were in the City limits, near water, etc. they just sort of
presumed--that's what they said--that if the City signed it off and
passed it in that everything was properly arranged. Interestingly
enough, that initial white paper was issued in March prior to,
actually, even the subdivision drawings being finally signed off. That
was' initially issued only for the lower lots, which one would expect,
since water had not yet been at all provided for the upper lots. That
same white paper was modified on October 3 of 1989, not long before the
whole problem was discovered, but actually after work had been started,
to include the upper lots as well. And when we asked and indicated
that there was still no approved plans for providing water, the woman
at the real estate board there was quite disturbed--in fact asked us
to write a letter requesting an investigation, which we've never done-
-we didn't want to necessarily go outside that although there was--
you know, outside our original sphere of information. I did get a
City Council Minutes 11 August 6, 1991
couple of pieces of (inaudible) talking to Mr. Chadwick the other night
on the phone. And he indicated that it was his understanding at the
time that Mr. Cocciardi had received a number of letters of support
saying that water would in fact become--be coming available. He wasn't
sure exactly who those letters of support were. He assumed that one
was fr6m San Jose Water saying that they would ultimately (inaudible)
the water, perhaps one from Mr. Garrod saying that he was willing to
connect up, etc., and he thought that perhaps there was some reference
to the City as well, but we have not been able to ascertain that, and
I think it might be worthwhile if the City can get a hold of those
documents at some point in time and see exactly what was on file on
October 3 to cause that white paper to be modified.
Monia: In the minutes of the discussion of October 5, the presentation
of the document for signing the conditional final map, the question
came up about the ability of the developer to continue--or to sell
these lots. And I thought that was addressed by the Attorney.
Kalb: Actually on October 5 there was apparently little or no
discussion of any sort. This was passed as part of the Consent
Calendar, which as I understand bt is the normal process for approving
the final map. At the subsequent meeting Council Stutzman apparently
had (who I guess was pretty new on the Council at the time) had had
some discussions with people, and some concerns had been raised as to
the approval, and he raised the issue as to whether you could
reconsider it. Then there was this long discussion, and quite heated
action relative to whether you could or couldn't, but as a result of
that Mr. Toppel came back to the City Council with a report on November
2 in which he outlined and specifically said that this was a
conditional final map and that the City had, you know, negotiated this
agreement with the developer that would provide some level of
protection and control over the matter, specifically as it related to
the selling of the lots. Now, it was never discussed at that time that
the map had already been recorded. It was sort of a meaningless
discussion. I'm sorry to bring it to you this way, but it was sort of
a meaningless discussion because even when we first brought it up on
October 19 the map had already been recorded in the County, and later
discussion was not much help, I'm afraid.
Schwartz: There were representations made to the public--because there
questions, not only from--we had some transcripts of two of the City
Council meetings. Transcripts were asked for those portions, so we
had not only Dr. Stutzman's interchange with staff and with other
members of the Council, we also had some of the interchange between
members of the public asking about this and staff and members of the
Council. And at the subsequent meeting, when there was a report, there
was a representation made by the City Attorney to the Council and
public that it was not to be of concern because it could not--the
property could not be sold or transferred until the conditions were
met. Sold, transferred or dumped. But that turned not to be true.
Clevenger: I need to ask the attorney. We had received a copy from
Mr. Scheidig on his comments. And he does comment rather extensively
on the final map discussion in his--it's page 12 under "Privileged and
Confidential," and he comments extensively on this page, and I am
wondering if it is appropriate to mention any of those comments at this
meeting, or if this is still a privileged document. I'm look at page
12 where he--Youngblood vs. the County of San Diego.
Meyers: Councilmember, if the City is in receipt of a confidential
document, and there are still reasons to retain that confidentiality,
release of any portion of that document waives any confidentiality as
to the remainder of the document.
Clevenger: So don't use this.
Meyers: At the present time I would not recommend discussing it,
however I think that we should at some point in time discuss...
Teerlink: What is the date of the document, if I may interrupt? I
didn't quite catch who wrote it and what it was.
Kohler: I think this is a confidential document...
City Council Minutes 12 August 6, 1991
Teerlink: I'd like to know the date...
Kohler: Is there anything about it...
Meyers[ I think at some point in time we need to discuss with the
Council the release of this document.
(Inaudible)
Kohler: We have to address the attorney, and he says it has to stay
confidential.
Teerlink: It may be confidential, but I am entitled to know, I
believe, Mr. Meyers,' at least the date of the document so I can make
reference, and if necessary the court will make final determination as
to whether it's privileged or not.-
Meyers: I have no problem with indicating the date of the document.
The document was dated May 29, 1991, it was addressed to the
investigative committee, and it is signed by Mr. Kenneth Scheidig.
Teerlink: Mr. who?
Meyers: Ken Scheidig. S-C-H-E-I-D-I-G.
Kohler: Thank you. I have also a question for Mr. Peacock about City
ordinances requirements about the water. Now actual requirements for
the water (inaudible) the legal settlement, doesn't it have to be PUC
approved--licensed-- before final map? Is that not the general rule?
Peacock: I don't know whether it has to be PUC approved because there
are a number of private water companies that are mutual water
companies, if you will, that are not regulated by the Public Utilities
Commission because they set their own rates and they don't make general
service. So'I really can't respond to that particular issue.
Monia: I have a question. There was a question that came up and
unfortunately the committee didn't have an opportunity to ask the
persons who volunteered about it, but I see Mr. Shook is out in the
audience. I guess the question I have, if you are willing to answer
it, Mr. Shook, is, number one, why wasn't the map signed prior to the
City Council approval as typically would be the procedure--what was
your thinking about it, or maybe you never got around to it--I don't
know. And the second question is did you sign the map freely on your
own, meaning that you were satisfied with what was before you?
Shook: Well, with regard to the first question, typically we did not
sign the map until after the Council had approved it. We could have
signed it (inaudible) report which in essence said, Council, it's ready
for your approval and they approved it. Generally speaking, the map
was signed within a day or two after the report or shortly thereafter,
generally speaking. What was the second question?
Monia: (Inaudible) You didn't have any problem with signing the map
even though there'was not a commitment for water?
Shook: There was discussion with the City Attorney relative to that
matter and having to do with the settlement of the lawsuit and so
forth.
Monia: OK. If you don't mind-I'll follow up on it. Would it be the
normal course for you as the City Engineer to sign the map if you
didn't have water? The assurance of water? (Inaudible) Were you
instructed to sign that map because of the agreement--because of the
settlement agreement?
Shook: I wasn't instructed to sign it. I was--after discussion with
the City Attorney of the settlement, and there was another document
that spoke specifically to the water, I've forgotten now what that was.
But after that discussion of those several documents I did agree to
sign it.
City Council Minutes 13 August 6, 1991
Monia: Have you ever heard--or have you ever signed a map be[ore that
didn't have a guarantee of water for the subdivision.
Shook: No, I haven't, but there isn't any other location in the City
where there isntt generally speaking, San Jose Water Company water.
Monia: Do you know of any other subdivision ever, in your experience
of 35 years~ experience where thatts been done within the norm. Norm
or even an ab-norm?
Shook: You're speaking relative to...
Monia: To approving a final map without a guarantee of water?
Shook: As I indicated, I...
Anderson: This is a conditional final map. Does that make a
difference?
Shook: Quite frankly, I have forgotten the specifics. The committee~s
a lot more into this than I am, but as I say the map was signed after
discussions with the City Attorney relative to all the documentation,
the negotiated settlement and so forth, to which I was not a party, and
was not--you know--I was dependent on the City Attorney for
interpretation of what the value of those documents in the settlements
are relative to that map.
Kohler: I have a follow-up question on that for the committee. Was
in the settlement the water (inaudible)
Kalb: In the development--in the settlement agreement, the original
1986 settlement agreement, the intent was and in fact it specifically
said the developer would meet all the other conditions, or would meet
all the conditions of the tentative map. There was a problem that
happened along the way, which was that the settlement agreement was
signed in September of 1986. Some of you may remember through your
pocketbooks that there was a tax reform act signed in October of 1986
which specifically made interest on certain bonds for public
improvements--I believe it was no longer tax deductible or only limited
tax deductibility, something of that nature. And as a result of that,
within a month of having signed this agreement which seemed as though
(inaudible) proceed forward with development, apparently the cost of
building the water system to the upper part of the development suddenly
became--went out of reach. I don't know all the details about it.
This was brought to our attention by a number of people that it became
extremely expensive for San Jose Water to now pump the water up the
hill. And so people started looking for other ways of getting it,
perhaps sharing the cost of other means and so on. So the net of that
was that we now had an agreement to proceed forward, but there had been
another force, if you will, injected into (inaudible) that made it
difficult for the City and the developer to deliver on what was a very
key provision in the settlement agreement. And that is that the
settlement agreement was not to be dismissed as a legal suit until the
City had approved the final map. And this was for both Mt. Eden
Estates and for Tract 7770.
Anderson: The lawsuits.
Kalb: Yes. The lawsuits, I~m sorry, the lawsuits were not to be
dismissed. Which means that in all this intervening time this suit has
been aimed over the City~s head. And I can see, or at least I can
impute, people trying to find ways to solve this problem, to get water
to the tract, to be able now to dismiss this lawsuit. In fact, I
assume--and we don't know--this is one of the other pieces of data that
we never did really follow up on--we assume that the lawsuit was
subsequently dismissed, because on October 5, 1988, the--it was signed,
and the following October 5--final map was signed on October 5, 1988,
and we would assume that one year later, as stipulated in the
agreement, that the lawsuit would have been dismissed. But we really
didn't bother to check into that.
Clevenger: I have a question. Is your complaint with the way the City
proceeded along with the lawsuit and with the procedures involved? Is
City Council Minutes 14 August 6, 1991
that the--I'm not sure what the essence of your complaint is.
Kalb: Our complaint here is that the City proceeded forwarded on
approving the final map where there was no guarantee of water to
fulfill the conditions of the tentative map. Because either the City
approv~d a conditional final map which should have been held until such
time as the water was provided, Or it approved an amendment to the
tentative map, which was not the resolution that was ever passed. It's
really complicated.
Clevenger: Because I was on the Council at the time, and I cannot
remember those sequence of events, actually. I can remember parts of
it, but not enough to put it together, so--and I'm sure the audience'
is having as much trouble following this sequence of events. And I
think if you can get to the crux of what you are saying and that is,
at least from what I have been able to gather, that the City did not
have good procedures for tracking-this or--I'd like (inaudible)
Kalb: Yes. I'm saying that the procedure that the City applied--any
way I try to draw out the decision tree--that the City violated its own
ordinances, in some cases violated the State Map Act, and possibly this
other legal judgment that was referenced earlier relative to the San
Diego lawsuit. Because I can't find a path through the maze
(inaudible) that did not cross the boundary of improper according to
the City's ordinances.
Schwartz: I'd like to add to that. There were, in addition to clear-
cut procedural problems, the City ordinance calls for the mapto be
signed by the Engineer, and the subdivision plans to be approved before
the Council signs them--they weren't--in addition to the conditional
final map having somehow omitted to list the conditions...
Clevenger: OK. I think I've got the gist of it.
Schwartz: But in addition to the procedural questions, there's a
context that this happened in that's getting lost because of the
technical 'discussion. And the context is that this was a very
controversial development, starting in 1980, and there were neighbors
from this area who would appear every time this came up, at least every
time that it was noticed. They would appear and ask questions and
complain. They would complain that the subdivision shouldn't be built
because of tree removal. They would complain about the entryway.
Neighbors would complain that they did not understand the extensions
and that the extensions of the Map Act seemed to be--seemed to them to
be--in violation of the State law about maps. In looking through the
documents, in listening to neighbors who testified, all of this was
done in a way where no one in the public who was concerned from that
area understood what was going on. Dr. Stutzman suffered rather badly
when he tried to bring the issue up and was treated rather poorly, and
it's in the transcript. People who--one citizen regularly asked about
extensions--got a letter which did nothing except insult her, but did
nothing to explain in fact why the extensions were being granted. And
there was an underlying assumption that the City had no choice. At
least it seemed to our committee that there was a rush to do anything
to make the development happen in order to get out from under a lawsuit
when there may have been other alternatives. So there are procedural
issues, but there are some other issues having to do with what the City
was really doing in all of this.
Anderson: Now I would like to comment on the meeting of October 19,
which is about a third of the way back in your (inaudible) document.
And that is that procedurally speaking, as you mentioned, Mr. Kalb, by
the time we got to that meeting it was too late to do anything about
it. Now Dr. Stutzman admitted that he had a hard time that night.
However, from the standpoint of my running the meeting strictly, the
way that you deal with these approvals is that once these approvals are
passed, you really can't reconsider an approval at the next meeting.
And as you pointed out, the party in question had already acted on that
approval, and that is basically the reason why you can't rescind your
approval. You can rescind a disapproval.
Kalb: No, I understand that.
City Council Minutes 15 August 6, 1991
Anderson: And I want to make that clear, because there was criticism
of my role in this particular meeting and discussion, and all I see and
hear is that I'm trying to point out that you can't do a
reconsideration.
Kalb: 'I think we acknowledge that...
Monia: That's not correct. Our ordinance allows you to reconsider any
decision.
Anderson: No. At the same meeting.
Monia: I'm not prepared to discuss that, but in the front--in the
package that was prepared for commissioners by Mr. Riback, there is
part of the City ordinance. Maybe we can dig that out later on. And
in that, because I was there at that meeting, was the first time that
I ever saw it brought to my- attention, where in fact, City
Councilmembers and Planning Commission members can move at any time to
reconsider any decision. They have a time limit, and I can't remember
what that is.
Anderson: Same meeting. For a disapproval.
Meyers: (Inaudible) The section out of the Municipal Code, page 12 of
(inaudible) it states that a motion to reconsider the passage of an
ordinance or the granting by the City Council of an application...
Anderson: We can't understand you. Too low and too fast.
Meyers: ...permit, license, right, privilege, approval or contract
shall be made only during the meeting or at a recessed or adjourned
session thereof at which the action was taken. Otherwise such motion
(inaudible)
Anderson: That's correct.
Monia: So if you go into an adjourned session.
Anderson: If it's at the same meeting.
Meyers: If at a City Council meeting you adjourn to another meeting,
that's considered an adjourned regular or an adjourned special meeting,
in which case a motion for reconsideration would be appropriate.
Monia: The question whether or not that was an adjourned meeting.
Anderson: So in this particular case, we adjourned. It was over on
October 5, and the party acted on it, which a party would do. It would
be natural. And when you come to the next meeting it's too late to
take it back. It's as if someone half-built their house on your
approval and then you said I'm sorry, you can't build your house.
Kalb: Yes, Mrs. Anderson. We really understood that. Our report does
not, you know, criticize the City or anybody for that kind of thing.
My reference to the difficult time were the phrases by some of the
people that are in the record here.
Anderson: And I do agree that it was an unfortunate situation that it
wasn't brought up at that earlier meeting, and the situation the City
Council has as a body that is dependent very much on its attorney for
advice. And the only thing you can really do when you find you are
being given bad advice is to get a new attorney. That's my case.
Schwartz: The committee's focus throughout, where we could, was to try
to see whether we learned from this. And I think you can see that in
the recommendations. We were hoping to bring something out of this
rather than simply fingerpointing. One of the things that I suggest
ought to come out of this is that items like this, where you have a
controversial development, a long history of disagreement, neighborhood
concerns, has no business on a consent agenda. And where there are
repeated requests for explanations that there should be enough of a
hearing that neighbors and people in the affected area are as well
satisfied as possible. If it can't be done because it is closed
City Council Minutes 16 August 6, 1991
session litigation information, then some lines can and should be drawn
saying that we can tell you this much and beyond we are unable to
present, much as Mr. Meyersdid a moment ago with a document that can't
be released or won't be released right now. But there was no such
clarity. An item that should have been discussed in detail, not only
with the Council but with the public, was put on the consent agenda,
and that's why Dr. Stutzman was unable until it was passed to recognize
that it was something (inaudible) to the Council that needed to come
up. There are lessons there.
Anderson: I think there should be lessons about the Consent Calendar,
too. One of the things that was pointed out here was that on this
particular item it wasn't noticed because it was on the Consent
Calendar.
Clevenger: Are these just some observations and findings that you've
made. I have them, but I don't recall specifically if that is one of
the recommendations that you made.
Kalb: No, I don't think we did make that specific recommendation...
Kohler: OK. (inaudible)
Kalb: I think that's the essence. Let me just make one final comment.
If this seems confusing to people, believe me, it was. It took us
weeks (inaudible) to figure out to try to understand the logic and the
flow through this process and what the conclusions were we finally
(inaudible) you can't get there from here.
Monia: So you're uncomfortable because you don't see an agreement
process by which--justify the action that was taken.
Kalb: That's correct.
Monia: That's a follow up (inaudible)
Kohler: i have an observation, you know, what can we learn from it.
What I find out here--correct me if I'm wrong, but--in many cases
either staff or the attorney or people gave the reason (inaudible) the
settlement, especially Mr. Shook mentioned a moment ago, the settlement
was the reason why the water was...
Kalb: We heard a lot of that.
Anderson: We sure did. I heard a lot of that as a Councilmember.
Kohler: OK. Let's move on.
Anderson: I think it's important also to note--I believe we have
changed those procedures on final map. I don't believe we do these...
Clevenger: I don't think we allow conditional final maps any more, do
we, Mr. Peacock?
Peacock: The City Attorney has prepared a draft ordinance which would
remove conditional final map from the municipal code, and I know I have
reviewed it and Mr. Perlin, I believe, has reviewed it. We had some
other things that we thought might be nice to strike at the same time
that we also think would help. And I would imagine that, when Mike
gets back from vacation, that he will have that redrafted and probably
on the Council's agenda either on the fourth of September or the
eighteenth of September. This does not require hearing before the
Planning Commission because it deals with the Subdivision Ordinance,
not with the Zoning Ordinance.
Kohler: Thank you again. The next item of concern was...
Garrod: I would just like to explain, maybe, the problem they had with
the water situation so it's clear. Because it was done, and everybody
was informed, and I get a little bit upset when people say they weren't
informed, and they can't (inaudible). The water situation--we had an
assessment district designed. The assessment district fell apart after
the 1986 tax increase because what happened was that the water company
then had to charge everybody twice the amount of the district because
City Council Minutes 17 August 6, 1991
they had to pay capital gains taxes on any improvements for the
district.
Peacock: The federal law changed, and it said if you have what was
known as a contribution in aid of construction, that is, if you are a
utility company and your capital plant is increased by a private
individual building onto your system as a part of a development, then
that was considered to be revenue to that utility company and fully
taxable under both federal and State tax laws. And so San Jose Water
immediately informed everyone that the price went up ~7%. That later
got backed way down in subsequent rounds, but...
Garrod: What happened then was, we went ahead, and we formed a mutual
water company. We secured a letter from San Jose Water Company that
they would provide the mutual with water. We secured an agreement with
the San Jose Water Company as to what area we would serve and what area
they would serve. They would serve part of Mt. Eden Estates, we would
serve the high lots. So we went 'ahead and secured the permits. And
this may be where it all fell apart. See, all the permits were secured
in Santa Clara County because the initial construction of the water
system was all in Santa Clara County; it was not in Saratoga. We
provided your engineering department with a map of the service area.
We provided the City with a map of the construction plans and the
design plans and all the engineering on it. It was all provided, so
we had a water company, we had assurance of water, and we started
construction. Construction on the pipeline was completed in June of
1989, and a big tank, which was the final one, got screwed up in County
planning as part of the (inaudible), which was not illegal, and we
didn't get it quite completed until after the earthquake. (Inaudible)
So that was designed to serve all this land that was too high to be
served by San Jose Water.
Monia: Just a question, Vince. We've all been around the conditional
final map. Did your district or San Jose Water, to your knowledge,
supply the. City with the guarantee that they could deliver water to
those lots, and was it accepted by the City? Was that plan accepted
by the City?
Garrod: That's my understanding.
Monia: That's your understanding, but do you have documentation that
says the City has approved your plan for delivering water? Because the
issue here is whether or not the City is an agreement that water can
be delivered, not whether--I know you're offering it, and I know you
want to develop it, and one of these days I'm sure it will happen.
Garrod: That court decision didn't have anything--didn't have any
reason one way or the other. We said water was available. That's all
the State of California. The State code says if water is available in
sufficient quantity adjacent to a building or a development, that
development must hook onto that water system. That's in the State
Building Code.
Monia: Yes, but I mean--you got any kind of approval process from the
City at that time? I don't know about now, (inaudible) but at that
time was it an accepted water system for delivery to those lots?
Garrod: We never asked the City to accept the water system.
Monia: Well, see, the point is what actions the City took because they
need to verify...
Garrod: We went to the City. We went to the engineers. We were out
there.
Monia: I don't want to debate. I'm just trying to clarify that the
City needs to have assurances. OK, the City has to say we are assured
that the water is either in or we have a letter or a bond or something
that says water will be delivered from your company (inaudible).
That's the ministerial thing that the City needs to satisfy the
tentative map. That the water can be delivered.
Louise Cooper: I want to mention something else. It doesn't really
City Council Minutes lS August 6, 1991
really have too much to do with thfS. We have no plans for developing.
We just wanted water for water.
Kalb: That's fine. We were just never able to find any assurances to
this, the upper portion of the tract, that water was to be provided.
That w~s not in any of the City records that we were able to obtain.
So it may have been done, but...
Kohler: The next area of concern was the water road. Is there any
further input on that?
Kalb: Oh, yes. It ought to be clear from the discussions we've had
so far that something on the order of a road across the Williamson Act
land had to be built in order to bring water across. That, I think we
made that point in the document. Part of the problem that we saw that
came about was that there were no--those plans were not approved by the
City. This was obviously the thing that--one of the major issues that
got the whole litigation mill ginned'up again here in 1990--was in fact
that Mr. Cocciardi had, we suspect, contracted with the contractors who
started building the road across there. We, to the best of our
knowledge, the road could be seen to be going according to a set of
plans. As I said, people don't move 15,000 cubic yards of earth on a
whim. There is a purpose behind it. Now at first we didn't know that.
As I said, right up front my reaction was where are these plans, where
is the quote, where is the contract for doing this work? We went down
through the process for about two and a half to three months, asking
that question to ourselves, looking for leads. Now as it turned out
there was one we missed, which was a reference by Mr. Oncay which we
just didn't pick up when he came in for his first visit for the City.
Other than that, we could tell no references to any plan, etc. until
we finally got to December 6. At our meeting there we interviewed Mr.
Neil Rauschhuber, who was the building inspector, and we said, Neil,
why didn't you stop this work? And he basically said to us, it matched
the plans. And we said, what plans? And he said, well, I had a set
of plans in my truck. And in fact, you know, he did not--we tried to
get him to say no, he didn't use those plans, they weren't effective,
etc. We probed him very, very closely on this issue. But it was his
intention that he had those plans and that he had made reference to
them at the development site. And we also found later, by (inaudible)
that these plans were discussed by him with Mr. Oncay at the site on
the morning of November 7. And both Mr. Oncay and Neil indicated to
us that Neil made the--that Joe said to Neil, look what they're doing,
and Neil came back and said, but it matches the plans. Now, we
subsequently talked to the contractors, and they said they were
building according to those plans and gave us the impression that they
had quoted according to them. We had Mr. Shook's testimony that in
fact people were doing soils testing on that land. There are some
~pipes embedded in there for drainage, so that it was being built
according to plan, etc. But all along there had been no reference to
these plans. In point of fact, we have the young man in the building
department who was quite upset when he found that his copies of the
plans and the transmittal slips were not there. Arjan--is he?--prides
himself on keeping very, you know, good records. The point is, we were
eventually able to track back that the set of plans had been
resubmitted to the City in June of 1989. These apparently were the
plans that had the most recent modifications, and as best we can tell,
are the ones on which construction was initiated.
Monia: Just for the purpose (inaudible) can we call these the second
set of plans? Because there was a similar set...
Kalb: In June of 1988 there was a...it was marked up by Mr. Shook,
sent back in June of 1988. There was a second submission of plans in
June of 1989. Now, both sets of plans were no longer in the City's
possession when we went checking for them. Nobody except for this
reference that we didn't pick up that brought these plans to our
attention, that they existed. Furthermore, when the judge, and I
believe the judge did in fact issue an order to produce documents
relative to the case, it is not any of the documents that were
produced, which...
Anderson: By either side.
City Council Minutes 19 August 6, 1991
Kalb: By either side. Which we found to be interesting. Most
curious. But the documents...
Shook: Yes, Mr. Mayor. I just want to clarify something because what
Jeff was saying relative to my testimony at the committee. I want to
clarif~ that I never indicated that the construction was in conformance
with these plans.
Kalb: No, no, no. He indicated that there was testing on the site.
You did not indicate that. I did not mean to imply that.
Clevenger: It did sort of sound like...
Kalb: I'm sorry. As best we can tell in talking with Mr. Perlin,
talking with the people who said they were building to these plans, we
can assess that they in fact were the plans that were being used to
build it. I did not mean to imply that Mr. Shook had made any study
of it. In fact I'm not sure that he did do that, but...yes.
Clevenger: When we went up, as I recall, and I could be wrong about
this, wasn't that water road something like 150 feet wide?
Monia: You mean long.
Clevenger: Wide.
Kalb: It's pretty wide, yes.
Clevenger: OK. So, here's what I'm having trouble with. Here's a
road that's 150 feet wide. I mean, that's wider than 85.
Kalb: Right.
Clevenger: Which I'm very familiar with. All right.' That's wider
than 85. Now, I'm not an inspector or a designer or anything, but if
I see something wider than 85 up there, I've got to think there's
something wrong.
Kalb: Yes, we asked that question. We asked the question. One of the
problems on the whole site was that the original drawings for the
topology up there were flown. In other words, they were derived from
aerial photographs. And the builders, the contractors, told us that
when they--the minute they got up there and started, you know, looking
into digging this thing, that they realized that there was an awful lot
more dirt up here than those drawings indicated. So they had a whole
bunch of extra dirt, and what they indicated to us was--out it went.
Clevenger: But that couldn't have been according to any plans. I
mean, no first set, no second set, no approved set would have had a
150-foot wide road up there. So I don't see how you can say they
match. (Inaudible) Neil said these match.
Anderson: The reason he didn't cite them before was that they matched.
Clevenger: Was because they matched. But I know there's not a 150-
foot wide road up there. Now something's fishy there.
Schwartz: When--the plans do not call for a 150-foot wide road, but
when the fill was put in first there were--we had lots of testimony
that there are cases where there is large variations-~variation that
surprised the committee.
Clevenger: I believe it was like a 16-foot road, right? Sixteen feet
wide? Is that right?
Unidentified: Eighteen feet.
Clevenger: Eighteen. Now, wide variation, Jeff, that's like eighteen
to thirty, not eighteen to 150.
Teerlink: Could I ask a question. (Inaudible) With all due respect,
Marty. I was just there, and we've been there many times over thirty
years. I've lived in that area and I've hunted in that area and I was
City Council Minutes 20 August 6, 1991
up there even with Faber Johnston not too long ago I've been there with
Vince Garrod not too long ago, and believe me, I don't know what part
of the Cocciardi property or the Williamson Act property you were on,
but I never saw a 150-foot wide road on that Williamson Act, except for
that flat spot where they graded it out and laid out a large--took off
the wh~le top of the hill so they could fill Quarry Road. Now maybe
I'm wrong'on that, but I've been there (inaudible) the last two weeks,
and I swear to God--Vince, is there a 150-foot wide road on anything
that we went on that used to be a jeep trail?
(Inaudible)
Monia: Let's not deviate from the real point. The point is, Neil felt
they matched. Neil said they matched. The committee didn't say they
matched. The committee just reported what the inspector said. Let's
not lose that. In the committee's looking at it, the best the
committee--to my recollection anyway, was--that it looks similar. The
word similar was more correct than a match. I don't think the
committee ever dreamed that they matched, but they said there are
similarities, and considering the fact that construction was stopped
before it was completed, how would you ever know if it matched because
it wasn't completed. But more importantly, the testimony directly from
Stevens Creek Construction was, these are the plans by which we were
grading to. Now maybe Stevens Creek Construction is not a very good
construction company. I have no way of judging that. Maybe they can't
read plans and they decided to do something up to the plans. But
nonetheless, their testimony is clear. We used those plans in our work
up there. And so we can argue about how wide the roads are and how
much dirt was filled, but I mean the principals who were involved gave
that clear testimony about it.
Schwartz: If the question we're getting to--Marty's question, I think,
is--why didn't Neil know what was going on. That gets to a whole
separate area of the adequacy of the inspection procedures on all the
work--on the Williamson Act and on the subdivision (inaudible). We're
on really a different question, and that question is how did we find
out there were plans? Well, Jeff found it out, mainly by (inaudible)
it was one of those things...
Clevenger: He could have found it out from Joe at the first meeting,
too, if he had been onto it.
Schwartz: But let me point out again, no one on the committee--four
senior staff members testified to the committee without anybody
explaining or stating in any other way--there was one passing reference
from Joe--that no one understood to me that there were unapproved plans
out there or that they had been taken from--the day of the stop work
order they had been taken from the inspector. What was critical for
us was, the inspector says I inspected to these plans, and the people
doing the work said I did the work to these plans. That told us, and
we had other people say, yeah, these are similar, given that the topo
map that was flown was not good, that there was a lot of extra
unanticipated dirt that had to be stuck somewhere. This isn't so far
off. Our conclusion was, Jeff's--first, the plans exist; we found
them--verified that. Second, they were used up there. Third, there
is no question they were unapproved. So the City was--there were plans
being used that were unapproved. The committee went months. Well the
committee went,-not months,~ but the committee went a long time down
blind alleys. Nobody told us that.
Oncay: Could I say something? In my first testimony to the committee,
I clearly indicated that there were unstamped plans that the contractor
was using. The committee's'inability to understand my reference to
unstamped--which are unapproved--plans does not negate the fact that
the committee was advised of the plans. There were never approved
plans by the City for the Williamson Act property. If the City does
not approve construction activity, any plans used in construction with
that activity are unapproved plans. The issue was not the fact that
a contractor may be using unapproved plans with unapproved construction
because any plans used in conjunction with unapproved construction are
unapproved plans, so it's irrelevant and it's redundant. And the issue
is the fact that illegal activity is taking place. If you use that
premise then you have to mention also that there was an illegal
City Council Minutes 21 August 6, 1991
contractor. Because the City didn't approve the contractor. There was
illegal soils used, because the City did not use--approve the soil.
There was illegal soils engineering and drainage used, because the City
did not approve that. The issue is illegal grading, not the issue that
there was illegal plans. The committee has clearly indicated in their
reporth that I advised them that. there were unapproved plans on that
site.
Monia: That's not what it says.
Oncay: The committee's report says that I made a subtle reference to
the unapproved plans. It specifically states that.
Monia: OK. What it doesn't say is that--and in their ignorance the
committee didn't ask the question--was that we actually--I mean,
anybody can draw up a set of plans and start doing some work.
Oncay: Exactly.
Monia: What wasn't said was that these plans had been submitted to the
City and that the City had not taken any action on these plans and that
we in fact had possession of those plans. That's what was missing from
the testimony--specifically,. to make reference that someone is using
some unapproved plans--I don't know how anybody would follow up to say
that, well, I think a reasonable mind would say, hey, you're moving so
much dirt somebody has a set of plans. The issue really was the
knowledge in our possession that we had those unapproved plans and that
our inspector was using those unapproved plans. That was the critical
element missing, whether voluntarily or not, but that was obviously
what was being searched by this committee, and to reference that
someone else is using unapproved plans absent of all the rest of the
information is misleading, Joe. There's no way that a committee of
this kind of nature could ever put together, ever, that somebody has
unapproved plans and that somebody else had them in their possession.
But the fact is, we knew that, and you knew that. (Inaudible) took
those plans away, and that's the issue.
Oncay: And I mentioned that to the committee.
Monia: No. You never mentioned that. (Inaudible)
Clevenger: Let's give Joe a chance to answer.
Kohler: Joe, do you feel that you have to (inaudible)
Oncay: I questioned Neil as to the existence of these plans on the
site. Neil indicated to me, and the committee has indicated and
reiterated a number of times, that Neil said that the plans matched.
What's wrong, the plans match. The plans do not match as you've
indicated. So drastically so, that even an inexperienced inspector
from another state with only two years' experience could easily
determine that these plans and the existing road do not match. The
conditions that exist out there go from Mr. Garrod's property to the
back of Tract 7770 in a straight line, almost a straight line. The
plans prepared by Westfall Engineering, which are the unapproved plans
which you are referencing, are a set of plans that snake around the
Garrod--the Williamson Act property, and snake around, and they have
been provided a copy of that in reference to the Williamson Act
property, and the Westfall property has been provided. The difference
is so drastic that there is no way that those plans could have been
used to construct that water road. It is impossible. It is referenced
by Westfall Engineering in your own documentation that you cannot build
that road from that set of plans. The road is approximately in its
existing condition in one location, 150 feet wide, and it goes directly
from the Garrod property to the back of Tract 7770. The road that
Westfall Engineering has prepared is approximately 18 feet wide and has
a snaking configuration from the Garrod property to the back of the
Williamson Act property. I submit to you and to the Council that it
was impossible, and I reiterate, impossible, to use the Westfall plans
to construct that road. Now, if I may continue. I questioned Mr.--
the public works inspector--as to his possession of these plans.
Firstly, the public works inspector had possession of these plans in
direct conflict of policies and procedures of the Engineering
City Council Minutes 22 August 6, 1991
Department. Plans are provided to the public works inspector by the
associate engineer, who obtains those plans from the City Engineer.
The associate engineer then.tags those plans and leaves a note with
them--and those plans, by the way, are signed, and as you know the
public works inspector indicated that at no other time in the eighteen
months~he had been with the City of Saratoga, had he ever been working
with from, or had in his possession, a set of plans which were not
signed by the City Engineer. The associate engineer provides the
public works inspector with a copy of those plans. And then he is--
with a note attached which indicates that the project is OK to go
forward. At no time does the associate engineer provide the public
works inspector with a set of plans which are unstamped and a note that
says it is perfectly OK to go ahead with the project. So the public
works inspector had these plans in his possession in direct violation
of policies and procedures established by the City engineering
department. I questioned the public works inspector as to the use of
these plans. In my testimony to the committee I was asked about
questioning the public works inspector at the site on the day of the
discovery of the plans--of the discovery of the illegal grading. At
that time as the committee has indicated in my testimony, I did not ask
the public works inspector what happened. But I subsequently later on
did, and the Planning Director also asked the public works inspector
what occurred. The public works inspector indicated to me that the
last time he was on that site, that everything was OK, and that he had
no knowledge of the fact that there was any grading activity taking
place on the Williamson Act property, nor that he had ever-inspected
that property. Therefore, the fact that the public works inspector had
plans in his possession was a non-issue in my opinion except for the
fact that he had not followed procedure and policy by placing those
plans in his vehicle. Again, I have to say that the committee was not
knowledgeable enough, as you stated in your documentation, to
understand my reference to the unapproved plans. Again, unapproved
projects and plans used in conjunction with unapproved projects are
unapproved. This is very understandable and clear, not only to the
City Manager, myself, the City Attorney, and the City Engineer, but
also to Mr. Cocciardi, Mr. Chadwick, and then Mr. Garrod. People
knowledgeable in development know if they have a set of approved plans
in their hands or if they do not.
Kohler: Thank you.
Kalb: If I may. Relative to the question of whether the plans match,
the committee here went on the basis of basically three pieces, the
inspector's comments, the construction company's comments, and our
notes from Westfall indicated that the fill on the Williamson Act
properties was not done exactly to the drawings. This could have been
because there was excess dirt from the cutting. It would have been
difficult to get it without the correct staking. So when they talked
to us they were not nearly so convinced in their minds that people had
not built to the plans, but that given all the factors associated with
it--the lack of staking on a regular basis, the excess dirt, etc., that
these guys were just building it erroneously to some extent. I think
we're maybe getting also past the point, which is there is no question
the work was done. In my mind, given the three references, there was
no question that the plans were used, effectively or ineffectively, and
maybe the City's inspector did or did not use the plans. We don't know
that we could--in fact we did not establish that. In fact I think we
said in the report that we were backing off of that point, even though
we tried. What's really also key, though, is where did they go?
Kohler: And where did you get them from?
Kalb: And why does the City no longer have them in their possession?
0ncay: Could I...
Kalb: Why were they never reproduced under show documents in the
court? You know, they were supposedly put in the file by Mr. Oncay,
and I...
Oncay: Could I answer the question? First of all, "supposedly" is an
indication that there may be some misconduct here, and I think that
is an inappropriate reference.
City Council Minutes 23 August 6, 1991
Kalb: It wasn't intended that way.
Oncay: The plans were in fact put in the file. The plans that the
public works inspector had in his possession were four pages. The
plans ~roduced and provided by Westfall Engineering are eleven or
twelve pages.
Kalb: Yes, including the pipes.
Oncay: Now this is significant. Because the plans that the public
works inspector had in his possession were not adequate to construct
a road or inspect a road by. Four pages of these plans are not
adequate to inspect a road, nor are four pages adequate to construct
a road, because they didn't have the cross sections, the elevations,
etc. When the new City Engineer took over the Tract 7770 project, at
a point in time he purged the file, and at that point in time he
discarded the four pages of the plans.
Monia: Who did that?
Oncay: The new City Engineer.
Monia: Larry Perlin did that?
Inaudible voice: You said he purged the files.
Perlin: The file was not purged till - I don't say the file was ever
purged, the file was not the same as when Joe had it, let me put it
that way, there were things in that file that I thought belonged in
the Tract File and I took them out of Joe's file and put them in the
Tract File. There were duplicates of things in there that were in the
Tract File that I took out of that file - this was after the file had
been in the possession of the City Attorney and eventually came back
and that didn't happen until probably late 1990.
Monia: Larry, Larry excuse me for a minute. My recollection is you
are the one that ran down the plans submitted by Westfall--the second
set--and you made contact with Jitka?
Perlin: That's right.
Monia: Those plans that we are talking about--do you have any
recollection of ever seeing those in Mr. Oncay's file when you were
putting files back. Did you ever see those plans?
Perlin: No, no.
Monia: Was the first time you ever saw those plans the second set
of plans from Westfall Engineering was when you obtained them from
Westfall Engineers?
Perlin: Right. The set of plans that I have is the one that I have in
my office now with the twelve to fourteen sheets on it. I had never
seen those before. What I had seen before, but not in Joe's file were
the set of plans that had three or four sheets, those were the plans
with the three or four sheets, when we had that Saturday meeting at the
site, when we were walking the road to discuss whether or not the
access road, the emergency access road, should be built. I had that
set of plans with me in my possession and there were actually, I think,
two sets of those plans in the Engineering Department, but those were
not the set of plans that we had from Westfall and when Neil testified
he described the set of plans that had cross-sections and were twelve
or thirteen sheets, I was the one that got the most excited about that,
because I was confused about what set of plans he was really talking
about and I remember I was the one who was asking him quite pointedly,
"Neil let's back up here and I want to clear something up, what plans
are you talking about", because I had never seen those plans.
Monia: One other question about whether or not these plans that we
have, the second set of plans from Westfall. What is your opinion
about the similarity of those plans and what was down there?
City Council Minutes 24 August 6, 1991
Perlin: That is tough to say. I think there are some similarities,
but when I made, but when I said there were similarities it was based
on a photograph that was taken from above and I compared the
photograph, it had no scale to it, it was just a photograph that was
taken from above, I don't know who took the photograph. But the
photograph if you look at some of what is on the plan, there are some
similarities in terms of shape, in terms of you know features that are
out there. But the, what is out there now is a half completed project,
or maybe a third completed project, it is difficult to say where they
were ultimately going with what they were doing out there, so it is
impossible to say, I think, whether or not those would ultimately
match the set of plans that I now have in my office, the second set
of plans from Westfall.
Monia: As a professional engineer, the only professional engineer on
the staff qualified to make that opinion. Can you absolutely say that
it is impossible for those grading that has taken place up there not
to match those plans, or in any way similar to those plans. That it
is impossible to. get to where we are using those plans?
Perlin: I wouldn't say it is impossible, well it wouldn't be
impossible to get to what's on those plans from where we are at today,
but its impossible you know, I can't say that they were building to
those set of plans to where we are today.
Monia: You were there the day that the Stevens Creek Quarry gave a
testimony.
Perlin: Yes
Monia: Are you clear in your mind that they were using those plans.
Perlin: Well they said they were using that set of plans and they
described the same set of plans that Neil did, so.
Schwartz: I don't want to lose where we are going with this, there are
two items, the single items that the Committee are most exercised about
was of a number of things that we had difficulty finding, or weren't
sure about, or couldn't figure out, or missed, nothing exercised us
more than not knowing in the initial interviews about the unproved
plans that the inspector said he used, that~s what he told us, and the
contractor said they built to. The engineering team said they were
consistent with what they saw although there were differences and Larry
in a couple of different discussions said this testimony came out as
he was staffing our committee, repeated essentially what he said here.
He was not of the opinion Joe expressed that it is absolutely
impossible and no-one could conclude it. That is the opinion of one.
The committee has heard that from no-one else. Our conclusion was that
this was most significant and we should have heard it. The reason that
we believe this,. I think part of one of the most serious sticking
points in this report, is that if staff talked, if senior staff talked
with the Public Works Inspector and he told them what he told us, which
was "Yes I inspected to these," or what he said he said on the site,
which is, "What~s the problem--they match". Then the City has some
responsibility for what was going on, if we have an inspector going
along with unproved, illegal activity, going along with it if he thinks
its OK. So he~s up there on the'Site and perhaps concurring with the
activity, which is a very different situation from a situation .where
the City goes up and goes,"Oh my God, what~s happened up here, look at
the devastation." So those two scenarios are dramatically different
in consequence, and although I am not about to try a legal opinion I
suspect, perhaps, an exposure--financial liability of the City, and
perhaps some of the other parties involved. So it is an absolutely
crucial point, that if anybody had know there were plans up there that
the inspector said, "Look they match, or what's the problem, or I have
these." And not thought that was significant in terms of the City~s
role, was and remains beyond the members of this committee.
Oncay: Can I reflect on that.
Schwartz: Yes.
Oncay: The public works inspector indicated to me that he had not
City Council Minutes 25 August 6, 1991
inspected the Williamson Act Property and that he had the plans in his
vehicle, but he had not used them and that when he said that plans in
the construction matched, I said, "No they don't". I know that
Mr. Perlin has indicated that there is a similarity between these two
projects. I have provided the Council with, if you look at #21 in
exhibits, of what I have provided you, you will see an overlay of the
road and I apologize for citizens not having this. I have provided you
with an overlay of an aerial photograph of the Williamson Act property
and the road as drawn by Westfall Engineering. The light area that you
see on the aerial photograph is area which has been graded.
Unidentified voice: Can you say that again.
Oncay: The light area on the aerial photograph which is not the
overlay is the area which has been graded. The little, the squiggly
line that you see that runs all along through there is the road as
apparently would be the set of plans the Public Works Inspector and the
Contractor was using. Now in the (inaudible) area of that white area
is approximately over two hundred feet wide, this includes fill area
not just the width of the road in the given area. On the overlay there
are small dotted lines adjacent to the road, which shows a fill area
which is approximately 80' wide. Now a fill area on that set of plans
80' wide, prepared by Westfall Engineering, and the fill area of over
200' wide, and you will have to excuse me not being a registered
engineer, as a lay person, to me is so drastically different,
drastically different 80' and 200'--to me, I would have to say that if
one of my inspectors went out and saw a building that was supposed to
be built 80' from the property line but was 200' from the property
line, I would hope would be able to tell the difference, drastic
difference. You can see that this area is drastically different that
the fill in this creek, in this gully area, in this run off area, is
drastically different than the area as depicted by Westfall
Engineering.
Monia: The issue is not whether Stevens Creek Quarry (inaudible) the
planning, that's not the issue and we should get off of that. If they
can't follow plans then they can't follow plans. If they make some
other decisions outside of those plans (inaudible) What we are really
trying to find out what is it that we should have done to what did we
do and I guess to clear the areas let's just get down to some basics.
On November 7th did Mr. Oncay in fact find Neil with a set of plans up
there on the site. The testimony is that he didn't and if you have a
rebuttal for that please answer. Further testimony was that those
plans were taken away from Neil and put into Mr. Oncay's file. If you
have any rebuttal for that I think it should be brought up at this
time. It's clear by previous testimony, I hope by (inaudible) Mr.
Oncay that that's basically the sequence of events. That in fact we
had in our possession, the inspector had in his possession I should
say, a set of plans, which he said he put in his truck, it's irrelevant
whether he put it in his truck or in his car and that he was using them
on site, and I think that's what really needs to be addressed, not
whether or not anybody built to those plans, but God only knows what
was in the mind of the tractor operators, or whether or not there was
some on-site verbal instructions given to the contractor. But wait a
minute. Is that not the fact and are we positive in our minds that
Neil had this set of plans.
Oncay: Well that part yes. That's a fact.
Monia: If we are positive in our minds that you saw them there on the
7th November.
Oncay: That's correct.
Monia: Did you take them away from there?
Oncay: That's correct.
Monia: OK. They were in your possession.
Oncay: That's correct.
Monia: At this point I think that's...
City Courtell Minutes 26 August 6, 1991
Kohler: I have a question that involves the rest of the story for
everybody...
(Inaudible): Let me try to explain the facts.
Kalb: Ultimately, after we realized the plans, that there were some
plans Larry went searching and we went back to Westfall and found in
fact they had resubmitted a complete set of plans in June of 1989 and
we were able to verify that in their records and that those appeared
to have been the plans that were used. Now...
Monia: How do we know for sure?
Kalb: Well we never saw them, obviously because that's one of the real
problems that we had, was because by the time we went looking for them
they were gone...
Monia: No, No how can you be sure that those were the plans that were
submitted?
Kalb: They were submitted, they were of record in the City and er,
you know.
(Inaudible): Westfall.
Kalb: Westfall had them, yes. They had extra copies.
Clevenger: They were unapproved. It's like building an addition on
your house. You can have a set of plans, it doesn't really matter if
you have a set of plans if they aren't approved.
Kalb: We agree we are not trying to excuse the fact that they were
used.
Clevenger: So the fact I, let me just boil this down to what I have
gotten so far is this was a big issue to the Committee because you
thought they were working from a set of plans up there that nobody told
you about and that was the issue. As far as the City people it seems
that the unapproved plans weren't an issue because they were unapproved
and so they didn't think you know, they didn't mention it or focus on
it, because they had not been approved. Is that the difference do you
think?
Kalb: No.
Clevenger: OK, well certainly you focussed on it because you thought
you should have been told about this set of plans that Neil said he was
using.
Schwartz: The question is, was the City out there and involved during
the grading of the Williamson Act land.
Clevenger: And we have new records that the City was up there?
Schwartz: No, we have the testimony of the inspector.
Clevenger: But aren't those the missing pages of his book?
Schwartz: Of his log? Yes, among others.
Clevenger: So we don't know if we had an inspector up there?
Schwartz: Correct.
(Inaudible)
Monia: Excuse me for a minute. Just to help focus on why it's an
issue, Marty, you look at Document 2, and Mr. Oncay (inaudible). Now
keep in mind that on the seventh of Novembe~ we know that another set
of plans were in the possession of the City? OK? And I want you to
turn to the first paragraph of the letter from Mr. Peacock...
city Council Minutes 27 August 6, 1991
Clevenger: To the council?
Monia: Right. This is on the fifteenth. This is eight days after we
know someone in the City has a second set of plans. Now read the last
line. Or read the whole paragraph.
Clevenger: Which paragraph?
Monia: The first paragraph. What it basically says is (inaudible)
I'll read that. Plans for the access road and water line had been
submitted in June of 1988 but never approved by the City Engineer.
That's the first set o~ plans.
Kohler: It's highlighted here.
Clevenger: Oh yes. OK.
Monia: Since the final map was not conditionally approved by the City
Council until July of 1989, and the qhestion of whether and when the
Garrod water system would be built because of changes in the 1986 Tax
Reform Act. The City Engineer had previously returned the plan for
corrections, but they appear to never have been resubmitted by Westfall
Engineering. It clearly says that what the Council was told eight days
after (inaudible) a second set of plans were in the possession of some
City member, that the second set of plans had never been submitted.
Clevenger: So there were no approved pl--it was not conditionally
approved.
Monia: No. You're missing the point. The Council was told that as
far as the staff was concerned no second set of plans had ever been
received. That's what that letter says. And in fact, a set of plans
had been received in June of '89 (inaudible). That's correct. And
they were on site.
Oncay: Councilman Monia, could I just address--I'm just wondering what
evidence the committee has that the plans that Neil had on site was the
second submittal.
Monia: Because he said that was the ones he had.
Meyers: He identified a set of plans. That is the only information...
Oncay: He also indicated to me that he never inspected the property.
Perlin: Wait a second. This is the one point that does bug me--is
that Neil gave--and I made this point back in one of earlier meetings-
-is that when Joe indicated he put the plans in his file he folded them
up and put them in the file. And I made the point that if this was
after we got the second set from Westfall, that if this was actually
the set of plans, there is no way that Joe could have folded these up
and put them in the file. They were too thick. It just wasn't
practical to do that. Now I think what I heard Joe say before was that
the plans that Neil gave him were this three- or four-sheet set of
plans. And I clearly remember that set floating around the
engineering office, and that was the set that I had up there on the
day. But Neil is saying he gave~-Neil in his testimony, I think his
second testimony, or whatever--he said he gave Joe that--after he saw
the plans that we got from Westfall, that yes, these were the set of
plans. He looked at them and he said yes, these were the set of plans
that I gave to Joe. But Joe said earlier that he had folded up the set
of plans and put them in,-and there were only three or four sheets.
They are talking about two different sets of plans. Somebody is not-
-the stories just don't jive. And that's what bugs me.
Monia: I agree. But let's go back to the first set of plans. Let's
see if we just put the scenario together and then see if we concur.
The first set of plans are submitted, Mr. Shook reviews those plans.
He marks them up and sends them back with the corrections because they
don't comply with whatever the City ordinances are (inaudible). They
are sent back and they are resubmitted in June of '89.
Perlin: I assume, yes. Presumably, that's what happened.
City Council Minutes 28 August 6, 1991
Monia: We have to make two assumptions about that. First of all,
Westfall said they did, and second of all, they had the transmittal
letter. OK? And Arjan has'testified that he had seen them. All of
those people who had been involved in that loop concerning that set of
plans had identified the plans that the committee is talking about--
the second set of plans--as those are the plans that (inaudible). Neil
said those are what I used. OK? Westfall said this is what we
submitted. The construction company said yes, those are the plans they
used. Not whether I had four pages or eleven pages. They had the
full document--you were there, but I mean--is that not true?
Meyers: Those were for piping, right? Most of the (inaudible) sheets?
Perlin: Well, no. They were cross sections.
Meyers: Were those the cross sections? (Inaudible)
Perlin: I forget--did Stevens~Creek ever actually see those? Because
I don't recall whether...
Monia: Yes. Because when there were other plans shown to Neil he
quickly said no, these aren't the plans. Those are the Binkley plans
or something like that. OK? He immediately said no, these are not the
plans. We are looking for something that's got eleven or fourteen
sheets of paper. OK. And that's what put the whole committee on--
where are these plans.
Perlin: Yes.
Monia: And then going to Westfall, and Westfall had them. Now, the
interesting--are we all in agreement with that?
Perlin: So far.
Monia: That at least everybody has recognized we are talking about the
same group of plans.
Anderson: Before you go on. We're talking about the second submittal-
-came in two forms, the short form and the long form?
Perlin: No. I don't know where the short form came from. But that
seems to be the set that Neil gave to Joe and Joe folded up and put in
the file.
Anderson: Could that have been the first set that...
Monia: We don't know, because nobody has recognized anything about a
set of plans. So nobody can say, these are the plans that I remember
folding up and putting away.
Oncay: Well, I said that I folded four sheets of plans and put them
in a file.
Anderson: Where are they?
Oncay: (Inaudible)
Monia: I agree, so what I'm saying is nobody is (inaudible) a set of
documents and saying yes, I remember these are the four sheets that I
folded. What we have is the (inaudible). We have testimony from
several sources that say those are the plans that I recognize. I mean,
they have been recognized by several sources. Now, upon the
disappearance of the plans--I'm not sure because we never have been
able to identify the exactly four sheets or five sheets--or even know
the exact number of them that were in Mr. Oncay's file. But the plans
that were taken away from Neil, the plans that Neil has said were
similar--similar meaning the full set of plans (inaudible)--have
disappeared from the City file.
Schwartz: As has the transmittal.
Monia: As did the transmittal from Westfall, and as did the backup set
City Council Minutes 29 August 6, 1991
of plans. There were two set of plans resubmitted to the City. Wetare
all in concurrence with that. That's what the transmittal says.
That's what Arjan said he received. When the committee goes back, and
one of the big questions that need to be answered is, you know--
someone tell us who is responsible for the possession (inaudible)
hangin~ under the desk. But we have two sets of plans missing and the
original set--the copy of the first set of plans that were marked up
by Mr. Shook and returned to Westfall for--to have them re-do it--the
City copy of those marked-up plans have also disappeared. So what we
have missing is every reference to those plans. Now is it any
different from that?
Perlin: No.
Monia: That's what we concluded.
Perlin: Right. Now since we've met--I have a theory about it--I'm not
going to say in public, but I have thought about it, and I have a
theory about what may have happened to those full sets of plans.
Anderson: Tell them, Larry.
Perlin: Well, no. I'm don't want to...
Oncay: I'm willing to tell you. Having real clear insight--and no
real activity on Tract 7770, the upper portion of 7770 until the
illegal grading took place. And the Planning Director and I were
extensively involved in a number of different times with the expansion
of the landslide repair on the lower portion of Tract 7770. And my
conversation with the public works inspector on site that day, my
belief is that the public works inspector was told to visit the site
on the morning of November 7 in response to a citizen's complaint.
When the public works inspector arrived on the site, he realized that
there was a tremendous amount of illegal activity taking place that in
my mind he should have seen. He then returned to City'Hall and
obtained the first set of plans for that parcel of land which resembled
some work taking place to cover his error. And then upon questioning
him about those plans and the fact that the plans--the portions of the
plans that he had--and the plans which were subsequently reviewed,
which were thirteen pages or so, the public works inspector became
confused as to what exactly he had done. Did I have--what plans did
I have ? What plans did I show Mr. Oncay? What plans did I
subsequently provide to the City staff? In my opinion, and as the
committee knows, the public works inspector appeared at his testimony
with a box full of documents. And in those documentation were City
documents, one of them being the original stop work-order. It is my
opinion that the public works inspector, in an attempt to cover his
error and to protect himself from any potential liability, removed
those plans and subsequently had conflicting testimony between me and
the information that he provided to the committee.
Kohler: I have a question for the City Attorney. Should we continue
this discussion to a private session?
Meyers: Probably, if this discussion goes much further, it would be
appropriate (inaudible) He is no longer employed by the City?
Oncay: He is not employed by the City.
Peacock: Hasn't been since January 15, 1990.
Meyers: (Inaudible) continuing the discussion, then.
(Inaudible)
Monia: Joe, is there any doubt in your mind that we knew on the
seventh of November that there was another set of plans?
oncay: No.
Monia: OK. Did you read Mr. Peacock's letter of November 157
Oncay: Yes.
City Council Minutes 30 August 6, 1991
Monia: When?
Oncay: Approximately the time it was submitted to the Council.
Monia:' (Inaudible) If you were to read a statement that said we
didn't get a second set of plans, and you knew we had a second set of
plans, why wouldn't you correct it? Why wouldn't you go to Harry and
say, Harry, what you wrote here isn't correct. There is a second set
of plans.
Oncay: I had no idea that the City Manager knew there was a second set
of plans. I would assume...
Monia: But that wasn't what my question was. Mr. Peacock can tell us
whether or not he knew at the time he wrote the letter. The point is,
if on the seventh you knew we had-a second of plans.
Oncay: I did not know we had a second set of plans.
Monia: You took them away from him.
Oncay: I did not know what version of plans I took from the public
works inspector, first or second set.
Kalb: (Inaudible) There is only one piece of data that might bear on
the previous discussion and theory that you put forward. According to
both Mr. Emslie and Mr. Rauschhuber when the attorneys were taking
testimony, again this is one of our two pieces of data corroborating
the same piece of information. Mr. Rauschhuber indicated to the
attorneys that there were these plans. Mr. Emslie indicated that he
was next to be prepared for his deposition after Neil, and that the
attorneys were still talking about the fact that there was this set of
plans because they asked him about it. So for Neil to have created the
issue and then subsequently brought it forward to the attention of the
attorneys, doesn't quite jibe I'm not saying he didn't, but it doesn't
quite fit together, and I don't know the answer.
(Inaudible - several people talking together).
Schwartz: Before we break I want to stress something for everybody.
There is nothing we came across in eight months of looking at this that
in anyway, shape or form, suggested that the previous City employee had
taken records or taken stuff that were official to, that was official
City documentation in order to protect himself and that hypothesis
everybody is welcome to their opinion, saying that in public about a
former City employee, who is now employed by another city, if anybody
said that about an employee of this city now, 1) he would probably face
a law suit we may have anyway, 2) the staff would be up-in-arms, why
staff would do that to another city, if there is some suggestion that
that's an opinion of one believed former suggestion, to the suggestion
that somebody stole City stuff being on the record. There is
absolutely nothing, there is not a shred of evidence.
Oncay: Well you know that the Public Works Inspector removed the Stop
Work Order.
Schwartz: There is nothing that we came across to support that, there
is nothing we came across to support that. There is ngthing that
anybody in this room said that suggests that there is evidence except
hypothesis, it could have been anybody convenient if somebody was no
longer here, but its fairly outrageous to suggest, before we go to a
break, that somebody simply stole the stuff from the City to prevent
bad performance. OK.
Kohler: Thank you again, I just don't want to blow this up. Joe do
you want to (inaudible)?
Oncay: The only thing, you know, to reiterate the fact that the
committee is very much aware of the fact that the Public Works
Inspector removed official. City documentation when he removed the Stop
Work Order, which was City property.
City Council Minutes 31 August 6, 1991
Kalb: That is correct.
Kohler: Ok - ten minutes recess.
Kohler: Ok, I would like to finish tonight at quarter to eleven and
continhe the meeting. I would like to know up from any people who
would want to speak tonight, so that we can line up the people from the
public with their .. um .. My question is who wants to address the
Council and the Committee on the subject tonight. I would like to see
a show of hands. OK. One brave soul.
Ann Marie Burger: It's just a question, not a statement.
Kohler: OK, we will give you the opportunity, so let's continue. Would
you stand up at the front.
Ann Marie Burger: It's just a- question regarding the letter of
opinion from the attorney who reviewed the report of the investigating
team. I understand that that is currently a confidential document,
am.. the community would like to know, the Saratoga community would
like to know. We would like to have some explanation, a more
substantive explanation, as to why this document is confidential and
is there any plan in the future for this to be released to the public
the way all the other documents were - thank you.
Kalb: If I could address the first part of the issue. I can't address
the questions of the plans. You need to understand how the attorney
got involved in this. Basically in the course of writing the document
it became obvious that some of the conclusions of this committee were,
would have a reflection, potential reflection on various people, in and
out of the City and you know just associated with it. It was also a
concern that the committee is accurate and correct in our logic as we
might possibly be when the document (inaudible) someone who had had a
chance to review it and say and this makes sense or you are really
stepping over your bounds and making this assertion, etc. So what we
did was we submitted a document to, and a grant for the document, to
the attorney and the attorney came back and made extensive commentary
on the writing of the document on what he thought was sufficient
quality of information for instance, that it would stand up to
scrutiny, or in some cases, you know, admonished us for using words
like S-s-s-s! You know describing something that was alleged or where
it seemed like maybe we were flaming, you know the expression where it
seemed like maybe we might be getting off track or anything like that,
so he came back and he was sort of a sounding board for us. Now
obviously the document itself references all the things we said that
he perhaps said we probably shouldn't say, if that makes sense, and so
that if made public there are obviously references in there that the
attorney thought we perhaps didn't have the justification of making and
so it has perhaps aspersions on people, things and events, etc, that
are not justified. I can assure you, however, that there was no
information in there that the attorney said, "Why do you say this is
going to be a problem". In fact there were a few places he did say it
and we put it in the report anyway, which probably gets us in trouble
in the first place, but wherever it seemed like there was a thing that
would have stripped out meaning from it, what we did was try to work
around it so we didn't flame, as you will, and that's really what's in
there, so we wouldn't want to make too much of that document, because
it is essentially the same content. In some cases, however, where he
did say, "You don't have the evidence to prove," and we were really
convinced we went out and found it. We went out and got two or three
more things to substantiate our work.
Ann Marie Burger: So we would be correct to assume that document
remains in the hands of the City Council and that no-one else has it.
Monia: Yes, the original reason to run it by him was that we were
concerned that employees, one of the main reasons, that employees due
process and civil rights were not violated. OK. He came back and there
are some cases were he said, you know, don't do this or don't say that.
I would think that the issuance of that draft would say what was in the
committee's original draft, which the Council was telling us don't
release and I mean you shouldn't be saying this, and do you word it in
another way, then the employee or individual would have his due process
City Council Minutes 32 August 6, 1991
violated. Unfortunately it mentions what those might be. So it was
instructions to the committee about not violating those instructions,
right.
Ann Marie Burger: Is this privileged information between a client and
attorney?
Monia: Yes.
Ann Marie Burger: I appreciate that.
Monia: Thank you.
Kohler: OK, let continue then, OK.
Anderson: Taking back into the discussion about Neil's testimony and
whether Neil has plans or didn't have plans, or whether he was working
from these plans, or whatever, one of the concerns that I had, because
the night that I testified was also the night that Neil testified for
the first time and my testimony that was given under my allotted time
is in the record, but after Neil testified I had some comments I wanted
to make to the committee and those comments are not in the record and
I think that's unfortunate, because my view point after listening to
Neil testify was somewhat different than what I think, anyway that the
committee is assuming I feel, when I read the committee report that a
lot of the basis of their judgement was based on his testimony and that
they found him a credible witness. Now I found him, in one particular
instance that I really was very familiar with, because it had come
before the City Council, I found that his view point of what happened
was completely erroneous and from that point I didn't have any
confidence in what he was relating, because for example he said to the
committee there was this pervasive atmosphere in City Hall of
corruption and, therefore, a) I didn't have to do my job because the
City was corrupt, and I mean that was sort of his excuse for why he
didn't have to do his job and the other thing he said was that plans
all the time just sort of got changed mysteriously, and the implication
was that some dirty dealing were going on and the example he gave was
something where Steve Emslie had told him to do something and it was
just out of the blue as far as he was concerned, but I knew for a fact
that we had had a public hearing on it, and that the reason for the
change had been that we had made a decision and that decision had been
passed on down and there had been some change effected and that there
was nothing mysterious about it, there was no collusion with the
developer about it, he may not have been informed of all the details,
but for him to imply that this pervasive corruption was in City Hall
based on this particular incident was completely wrong and I just want
to make that clear and I think I, I don't know if you remember my
making that statement after his testimony, but it disturbed me a lot
to hear him say what he did, because I knew for a fact that what he was
using as an example was wrong.
Kalb: I think you expressed that concern at the time, and in fact
there were a number of us in the committee that, you know, went back
and forth as far as Neil's overall credibility, and I don't think we
even want to attempt, necessarily, to defend Neil's behavior, position,
etc. on all matters. As I said, the one thing we did do was, we found
an awful lot of his stuff to be accurate or supportable by other facts.
To the extent that we could utilize that and find other facts, we used
it. There are a lot of things that I think he said that. we didn't buy
into, and that, you know, we had to use what we could in piecing it
together. The fact is, he provided us with an awful lot of leads that
led to a lot of different problems in a lot of different areas. It was
effectively his testimony that first sort of opened this thing up when
we really got into gear of finding out all of the things that were
going on. So I would not want to try to contend that his testimony was
without error, etc., but where we could verify it, etc., we used it.
For instance, in this whole issue of whether he had the plans, we
wouldn't have used it if we hadn't had Mr. Oncay's verification that
he had them up there. Quite frankly...
Kohler: (Inaudible)
City council Minutes ~' 33 ~ August 6, 1991
Kalb: Quite frankly, we would have never put in the report that there
was mentioned to the attorneys at the time of deposition preparation
if we hadn't had an acknowledgment from Mr. Emslie that that discussion
seemed to be with the attorney's (inaudible) as a result of that. So
where we could, we verified andsput information behind it. We'd not
want tb claim that we've used everything he said. However, it should
be pointed out he's had the only written record of inspection in the
whole City that we were able to get our hands on. And asked for it and
asked for it and asked for it, and the only thing we had was the log.
Clevenger: And the critical dates were missing. I think that's what's
the most important.
Kohler: That's the next issue I'd like to bring up. That's the
record-keeping, and if you look on page 26 in the report (inaudible)
other issues that you bring up (inaudible) the record-keeping for me
personally has been a concern. It says that the time from the sixth
of July to the twentieth of August there were no records of activity
on behalf of the contractor. Now my question is, what record was
there. Did the City have any record?
Kalb: We didn't have any record. As I said, we used basically the
contractor's log as the time line from which to construct the data
around. And the thing that was missing during this period was that it
appears that the contractor was not doing any work at that time. But
yet without that there was no other record to associate anything else
with, either.
Kohler: The only real record in the City was Neal's.
Schwartz: Just for the--because I think a lot of people don't know
what we're referring to--Neil, during his employment (inaudible) seemed
like, kept a personal log. And they were his personal notes. There
were no City records of what was expected when, but Neil had this day
by day log...
Unidentified: Hour by hour.
Schwartz: Yes. It's very detailed, including who he went to lunch
with. It's a very--trust us, it's a very detailed log. It's
meticulous, however we did not get it for a crucial period. It wasn't
that certain days were missing, it's that there is a large period of
time of interest to our investigation that he didn't provide us with.
There was not an attempt to gather that before he left the City.
Kalb: He had his own log. The City had copies of his log which were-
-I guess--did become part of the official record of the trial. We used
that same log. What we found interesting and could never rationalize
was when we went through the testimony in the deposition there was a
discussion between the attorneys and the two parties about Neil's log.
And one of the attorneys, and I don't remember which, asked the other
side, is the log, is the file of Mr. Rauschhuber complete. And the
answer was yes. Well, when we went back and looked through it we
couldn't find pieces of it. And when we asked...
Unidentified: Who said yes?
Kalb: The attorneys, and I don't remember which one. It's in the
deposition report if you care to read through it.
Monia: This is one attorney asking the other.
Kalb: One attorney asking the other attorney, is Mr.--is Neil's log
complete. And they said yes, it was complete. Now either they made
an error in looking at it or weren't careful enough or something
happened to the rest of it. So when Neil came in the second time, he
brought with him his log, plus all his phone slips and all kinds of
other things. He is a saver, a packrat (inaudible) the best term, but
he was a saver of material.
Monia: He actually had a box full of phone messages.
Kalb: Yes, some of which are copied in here, but he had phone messages
City Council Minutes 34 August 6, 1991
as to when the people up on the hill had called him about issues and
in some cases it was clear he was called a couple of times to go up
there and inspect and still hadn't made it, so I mean--so there were
these kinds of records. But the thing that struck us was in fact some
of the incompleteness in this thing, especially when contrasted with
the re~ord of the depositions that said it was complete. And he could
not explain where--he said that there were pieces missing, but he could
not tell us where they went.
Anderson: Considering that they were in his possession.
Kalb: Well, he had--no they weren't always in his possession. That's
when he, you know, that was one of the things he alluded to, and we had
no way of reflecting on it. But he said he had put all this stuff in
the hands of the attorneys and then he had gotten them back after a
certain period of time, and that people had made copies of his records.
But frankly we were not able to find any records that were more
complete than the ones we got. I do want to make that point.
Kohler: (Inaudible) question for a start. Now Nell (inaudible), who
did Neil report to at that time? Was it Mr. Onc~y?
Oncay: Yes.
Kohler: Now I have a question for you, Joe. Did you require at least
(inaudible) report from Neil or some reporting and recording in City
Hall?
Oncay: The policies and procedures in the engineering department had
been established before I took over the day to day administrative
activity in the engineering department. I was not--my tasks were not
to develop policy or review existing policy in the engineering
department. So I did not modify any of the existing procedures and
policy in the engineering department. At that time there was no
requirement for the City public works inspector to keep a City log
of his activity.
Kohler: Are there any more questions?
Anderson: Yes. As long as we are on this page 26 on the timeline on
July 4 of '89, a group of citizens plus Councilmembers Anderson and
Clevenger walked the upper site because they were concerned with the
amount of damage being done. While some unapproved work had already
been done it may not have been possible to recognize without access to
drawings and plans. I don't believe that's accurate. What we went up
to look at were trees that had been tagged for removal. And so to
conclude that some unapproved work might have been done I think would
be inaccurate.
Kalb: No, that wasn't based on your comments. It's just that from
looking at the log of stuff that had been done, it was clear that some
trees had been removed. For instance, when the original work was done
up there the contractors pointed out to Neil at the pre-construction
meeting that the width of the path was bigger--would need to be bigger
than what was shown on the drawings because they weren't going to be
able to move their equipment and stuff through. According to the
contractors, and that confirmed by Neil's testimony also, he basically
told them to identify the trees that needed to be done and do what
needed--and do it. Now from our perspective, that approval of cutting
down additional oaks and stuff should have been popped up and approved.
And that's the kind of thing that we were referring to. You may have
looked at the stuff--trees may have already been cut down, dirt may
have already been...
Anderson: Au contraire.
Monia: That's what I'm saying. What happens is, there's a jump here.
If you read that one can make the jump (inaudible). That's what needs
to be cleared up. Is damage tree cutting, but in the next sentence it
says, while some unapproved work may have already been done
(inaudible) it makes a jump that they were up there on damage due to
grading, and I think--now you were up there for tree damage.
City Council Minutes 39 August 6, 1991
Anderson: No, no, no. It hadn't even happened yet.
Clevenger: We were up there to show where the road had been marked.
Anderson: How the trees had been marked.
Kalb: There is still some confusion in time because look at 6/19.
According to the contractor's log, five loads of logs had already been
removed from Old Oak Way before that.
Anderson: There was a roadway that we walked on, but the reason that
we were asked to come up and take a look was because there were a whole
slew of trees that had been tagged...
Kalb: Additional...I understand that. We made that clear, and that
wasn't--but our point was that in going through the log there were some
issues that had already been (inaudible) up there. That would--that
appeared to us to be outside what was approved, partially, possibly
because of--you know--the agreement, and the authorization by Neil on
site to move those things. But we looked down through there. But
trees and earth movement and clearing and grubbing, things like that
had already started before you got out there.
Anderson: But it was fairly narrow, and it was going to be widened,
as you mentioned.
Kalb: Yes.
Kohler: OK. Any more questions?
Kalb: There was an intended that--in writing it this way our intent
was--you probably wouldn't have seen that there was anything wrong up
there. That at least as far as what we can tell from the log, some
things already had begun to happen. That was the point we were trying
to make.
Kohler: Don't you have a question?
Clevenger: Karen, I was up there with you on that walk, and at that
time Chuck Grens pointed out a few things that looked like old
grading, grading that was done not recently, but grading that had been
done at some time. And we commented about, well that looks like a new
building pad. I don't know if you remember that. The grading was not
as severe as it ultimately became when we went on that walk. That was
a real shock to go from that walk we did to the next time...
Anderson: It was a very--fairly narrow dirt road about one car width.
Clevenger: Chuck was very aware of what was done.
Anderson: We were just at the end of what...
Clevenger: Old Oak Way.
Kalb: Yes. You were at the front end and remember also that work
started on the back side and moved forward.
Anderson: -Yes. Right.
Teerlink: Just a clarification. I think that Mr. Garrod or Mr.
Cocciardi--that I certainly can verify that there is some doubt about
it. There was an old jeep trail there about the width, as Karen
indicated, about the width of one car lane, which had been used by just
about everybody who has ever been up in that country and had been there
for years. (Inaudible) and that same type of road circled around
(inaudible) abutted by the Garrods where the Garrod fence is that lets
you go fromCocciardi's Williamson Act property over to Garrod's
Williamson Act property (inaudible). That's been a jeep road--has
been there since time immemorial. Now if that's what you're referring
to (inaudible).
Monia: I think that most Councilmembers could probably (inaudible).
City Councll Minutes 36 August 6, 1991
Anderson: (Inaudible) like grading. It looked like an old road.
Clevenger: Older grading at that time (inaudible).
(Severgl inaudible voices)
Monia: 6/15. Right. 6/15/89 on the work logs that were charged as
clearing and grubbing began in earnest on the upper portion.
(Several inaudible voices)
Kalb: That was our point. We didn't think you saw it.
Anderson: We weren't even asked to see it. We were asked to look at
trees marked...
Clevenger: And the other thing that we were asked about was the height
of the retaining wall. I noted in here that I did talk to the City
Manager about the road and the retaining wall.
Anderson: That's right.
Clevenger: Because those were the two things that. they had wanted us
to see--was look at all these trees that are marked, and also they are
not allowed to have high retaining walls. And it turns out that those
retaining walls were allowed under the 1980 rules rather than the
present ones.
Kalb: Yes. That was apparently one of the issues that also as I think
I indicated delays on the originalapproval of the--it was still being
argued a couple of months later.
Clevenger: But I mean it says here, Councilmember Anderson expressed
concern. I also had some concerns there.
Kalb: OK. Great.
Kohler: All right. Any more questions?
Clevenger: Constantly worried.
Teerlink: You mean any further comment? I think I mentioned,
honorable Mayor, I'm Heber Teerlink and a longtime resident of Saratoga
and have known the Cocciardis and Garrods all of about thirty-one
years. I can see that the Council, and especially the committee here,
has their hands full even without hearing from anybody else. I think
you've got your hands full and as I understand it, Mr. Mayor, honorable
Mayor, you're going to have a public hearing on. the matter, probably
at which time you will have resolved some of these problems between the
committee and the Council which I don't think we, the public, need to
interfere with. At this stage you've got a lot to discuss. I'm sure
that we will have an opportunity to present some of--a few of our
thoughts on the thing and what has brought this thing to where we have
it, and I'd be satisfied in just letting you continue on with your
discussion because I see you've got a lot to discuss. But I would
suggest one suggestion. I believe that one of the--and I want to
commend the committee. Believe me, as a trial lawyer for thirty-five
years, to start from zero and have to dig through--they did one hell
of an investigative job as far as I'm concerned. And as far as Mr.
Cocciardi. I don't think--I think the problem is they didn't get the
opportunity to go back and clear up (inaudible). If one would step
back in time, just one step backwards, you, Mr. Mayor, i'm sure you
know about it--you go back to the beginning of the trouble with Quarry
Road. If you start there, you start to find out what happened and how
the deals were made that occurred at Quarry Road. Quarry Road was
estimated to cost by the City--and they submitted the bid in which they
needed $985,000 or everybody was suing everybody, namely the City, on
both sides of that road. And there was some mention that Mr. Cocciardi
was the gentleman who developed Vaquero Court. Such is not the case.
But in any event Old Oak Way on one side and Vaquero Court on the other
side was going into the creek. 'The City was up for all kinds of
lawsuits. The City was in deep trouble with all those people. Because
they were roads dedicated and accepted by the City. But the only way
City Council Minutes ~7 August 6, 1991
out of that way was through a private easement, which was Tony
Cocciardi's easement that was given to him prior to when his family
lived there. Tony~s been living there on that ranch since 1941. So
if you go back to that and find out and track that in, you'll find out
how that ties in integrally and why so many things were done on the
Coccia~di subdivision and on those upper lots and the other lots to
compensate for the mistakes that were made on Quarry Road which later
on has cost Mr. Cocciardi not the agreed price, $485,000. $3.5 million
the City extracted from the Cocciardi subdivision. Now that~s a lot
different, and somebody's got to pay for that. And I think that if
they go back and analyze and add that to it and have our City Manager
here--who I am sure is familiar with it--as I am because I talked a
million times with Hal Toppel, so I know what was going on. I think
it may be enlightening to you. Just a suggestion to you. As far as
we're concerned, the other suggestion is that we have no objection
whatsoever--Mr. Cocciardi or any of the Cocciardi family--to a Grand
Jury investigation. We welcome one. And as one of the Council, one
of the special committee says, it certainly won't prove anything, and
I agree with that statement, but we have no objections to Mr. Cocciardi
being placed under oath or anyone else connected with this project.
And wetll stipulate as far as we're concerned that anyone that they
want to put under oath by order of the court, if we can get it--that
they need a lawsuit to do it, I~ll file a lawsuit--then we can have
some more depositions. That~s what (inaudible) to do. And then you
can have it all in a row, Mr. Committeemen, Mr. Chairman--just file
another lawsuit, start taking depos again, and we can- take them of
everybody here, and then the question of attorney-client privilege,
that issue will be submitted to the court, and we~d be delighted to
have that all out in the open, too. So we want to say we're here to
cooperate, but by the same token it's not a one-sided picture which has
been painted in the press, where this is a great ogre, and everybody
else is clean, clean-handed. That kind of story isn't here. This is
Saratoga~s own personal Watergate, and it~s from the inside out, not
from the outside in.
Kohler: Thank you for that statement. I want just to say one thing
on this Quarry Creek. There is an additional letter. I don~t know if
thereds a copy of that, but this is public--a public document, and
that~s also part of this. It~s going to be discussed in a Council
meeting tomorrow night if we donwt get tonight to it. But that will
address the Quarry Creek defense. That goes, like you say, that goes
back to 1980, 81, 82. Thank you, Any more questions?
Monia: I have a question. Do we just have some time then or do you
want to--is this the appropriate time then if you want to go into
executive session? Mr. Kalb said he had one item he wanted to spend
some...
Kohler: I~d like to do the (inaudible)
Monia: I tell you what--but I'd rather not open up a whole new series
of (inaudible) things, but I would like perhaps (inaudible). One of
the things that I~m concerned about in this report which I~d like to
have the committee members think about (inaudible) a presentation the
next time we get together is words like "hostile," "non-cooperative
attitudes," etc. are mentioned in the report. I think it~s important
for us to understand why we wrote'those kinds of things. I mean, what
was behind the committee's written report to us saying there's some
hostility, whether it is perceived or fact, this non-cooperative
attitude from staff when dealing with citizens, perceived or fact, in
the general kind of (inaudible). There is a whole section about that.
And I think that~s important because we as public servants need to
understand, perhaps, what the perception is or what we can do. The
other thing--another key element, I think, on this unapproved work when
I read the report, because I know being involved with (inaudible) it's
difficult to get it all together--I'd like to know what kind of degree
of confidence (inaudible) work was done as the committee described it.
And then the last thing, and we just touched on it, because you had
sent this letter--I~m sure we'll have some discussion about it, Mr.
Teerlink, rest assured that they already were on the Borrow Hill/Quarry
Creek thing. Unfortunately, my recollection was that it came up very
late that they saw the link, and you have described that. And
hopefully, I'd like--the one thing that I--actually, I want to have
City Council Minutes 38 August 6, 1991
staff do that, but since you offered some things that perhaps you can
help out, I'd like to get the staff on that particular one. I'd like
to find out how we managed. thetrust--that account. I mean, there are
some indications from your letter that there is no paper trail or no
records of (inaudible} $400,000 or $300,000, and I'd like to do that.
I'd like to have that sent, by the way, through the attorney, because
it might have some effect on our lawsuit proceedings. And I think that
would be appropriate to answer through...
Anderson: Vic, if you're talking about a cash payment from Cocciardi,
why don't you ask him here?
Monia: No, the trust. The City collected 21,000 and some dollars
from fifteen residents. There is a part in the committee's letter, or
some members of the committee wrote the letter, saying there is no
paper trail about the disbursement of a large sum of money...
Anderson: (Inaudible) but I thought there was also a question about
some sum of money that had come from Cocciardi into this trust fund.
Monia: No. What we wanted--what I'd like to have happen if we
can...(inaudible) now wait a minute, let me finish. I'd like to know
what the trust was, how it was set up, and didn't we in fact, in our
disbursements, follow the agreement that was signed. Because that's
a critical element about this disbursement fund. I'm really concerned
about an allegation of some impropriety in the disbursement of funds.
That's my point. Now Mr. Cocciardi, or Mr. Cocciardi's attorney, Mr.
Teerlink, threw out some other things that he has records that they
spent $3 million, and if you want to volunteer that, I'd be happy...
Teerlink: (Inaudible) would you please file a lawsuit and get it all
under oath and all (inaudible).
Kohler: Thank you. Mr. Monia, you have brought up (inaudible)
questions here, and especially the last question, we will get an answer
on that. Now do you want an answer on...
Monia: I just want to be prepared, that's all, for the next meeting.
Kalb: I've got two of them that you'd like.
Monia: You need two, and I'd like to have staff... (inaudible).
Clevenger: You know, I looked at this report, and I do want to thank
the committee for the work that's gone into it. I especially thought
that it was well organized as far as following the different issues,
so that it wasn't difficult to read. The only thing that made it
difficult was the attorney's letter, which did not correspond with the
same pages, and that made it a little difficult. But I thought that
it was well organized. But I believe that we have looked in--I think
the committee has done an excellent job of pointing out the City things
that we need to do in order to make sure that this situation does not
occur again and that our procedures are tightened so that we don't have
a problem like this. And I think that conditional final map is
something that's an important step, and the City Manager has told us
that we will be getting that soon. But I'm a little bit concerned now
when I hear that we want to talk about the trust account. I'm
wondering if that report can't be made available to the Council from
the staff on the status of the trust report.
Monia: I'm sorry. I asked to go to the Council first (inaudible).
Clevenger: OK. So that we'll get that. But I really think that the
committee has done an excellent job. We should thank them for this,
accept the report, and ask the staff to respond to the suggestions that
have been made so that we can start to tie this up. It seems to me
that we've rehashed it tonight. I'm not sure that we need another
meeting on this.
Kohler: Well, I think there are these questions to be answered.
Monia: There is a point, though. Marty (inaudible) I'd like to move-
-I think that she brought up the point--we need to accept the report,
city Council Minutes 39 .~ August 6, 1991
and we need to accept the appendices as official documents of the City.
I donft think we ever formally did that, and we probably need to do
that. So I~m going to move that we approve, that we accept the
Saratoga Citizens Committee--the Committee on Tract 7770 and appendices
that were submitted on, or dated, June 19, 1991.
Clevenger: And ask the staff to respond to the recommendations.
Monia: Yes. Well, you can follow up on that.
Clevenger: I think that should be part of the motion so that the...
Monia: (Inaudible) If. I get a second, I~ll...
Teerlink: Do I understand that this is the end now, that you're going
to accept...
Monia: No, no, no, no. There is a formality to accept the report.
Teerlink: Oh, I see.
Monia: Just a formality saying that we have accepted it.
Kohler: OK. So we want to add to that that we accept the
recommendations, and for me that~s important...
Monia: Not to accept the recommendations. (Inaudible)
Clevenger: Some of these recommendations have already been
implemented.
Monia: I will accept that as a modification to my original motion if
I can get a second.
Clevenger: Second.
Kohler:'OK. So there is a vote here to accept the report and to ask
the staff to give a report and respond to all those recommendations
(inaudible).
Peacock: Mr. Mayor, just because Mike is on vacation there are some
of the recommendations which I think do need to be reviewed by the City
Attorney in terms of how much legal leeway the City has to deal with
some of these things. So--and he won't be back until, I think, the
twentieth of August, so we can do a lot of the groundwork, but I think
that he would have to review ~hat, so I would think that maybe the
second meeting in September--the eighteenth of September--we'll have
it back to you.
Kohler: OK. Any further discussion?
Stutzman: Mr. Mayor, when do we take up the possibility of referring
this on to...
Kohler: The Grand Jury?
Stutzman: Yes, the Grand Jury.
Kohler: I think that~s one of the reasons why we still have to
continue this meeting to a certain date, and do you suggest this date
as a continuation of this meeting, or are you talking about a Council
meeting?
Peacock: I was simply referring to the staff report on the
recommendations to come to the Council on the eighteenth of September,
which is your second regular meeting.
Monia: (Inaudible) Can we agree to continue this to a special meeting
on the first Tuesday of September?
(Inaudible)
Peacock: The second Tuesday is your normal...
city Council Minutes 40 August 6, 1991
Clevenger: I prefer that one.
Monia: 0K. The second Tuesday. I thought...
Peacock: I don't know whether you have something scheduled, I don't
know whether you have something scheduled or not, but I can double
check that.
Monia: Can we tentatively set that date?
Kohler: We have a motion on the floor and a second. Can I call for
the question?
Monia: September the tenth.
Kohler: All in favor? Opposed?
Clevenger: And I have a question about referring this to the Grand
Jury. I understand that the Grand Jury does not generally accept cases
that are already involved in litigation, as this one is. The City and
Mr. Cocciardi are involved in a criminal (inaudible) of a lawsuit.
And I would like the attorney to find out whether that is an option.
Because I have a question about whether that would be a possibility.
Meyers: We would be happy to provide the Council (inaudible).
Monia: We're going to go into...
Teerlink: Could I have one more question? As long as you're having
him check--well anyway, in checking out the trust fund, ask also while
you are checking out where the funds are given the City--about the
bridge on Quarry Road. I gave 400,000 bucks five years ago, and it's
still the same damn bridge. All they did was widen it. I'd like to
know--the City's had that money all this time. Why not tell me where
they--where they've hidden that?
Monia: Mr. Teerlink, you as well as anybody should know the limits and
the grounds of we can and cannot do in light of the situation
(inaudible).
Teerlink: Tell me why they (inaudible).
4. Closed session on personnel matters
The meeting was adjourned to closed session at 10:45 p.m.
5. Adjournment at 11:10 p.m.
Respectfully submitted,
Harry R. Peacock
City Clerk