HomeMy WebLinkAbout09-17-1991 (2) City Council Minutes MINUTES
SARATOGA CITY COUNCIL
TIME: Tuesday, September 17, 1991 7:30 p.m.
PLACE: Multi-Purpose Room, Community Center, 19655 Allendale
Ave.
TYPE: Adjourned Regular Meeting/Joint Meeting with Tract 7770
Citizens Investigative Committee
1. Roll Call
Councilmembers Anderson, Clevenger, Monia, Stutzman and Mayor
Kohler were present. Committee members present were Macrae, Kalb,
Caldwell (Ex Officio). Staff members present were City Manager
Peacock, City Attorney Meyers, City Engineer Perlin, Senior
Building Inspector Oncay, and Planning Director Emslie.
2. Report of City Clerk on Posting of Agenda
The City Clerk reported that pursuant to Government Code 54954.2,
the agenda for this meeting was properly posted on September 13.
The notice of adjournment from the September 10 Council meeting was
properly posted on September 11.
3. Discussion of items of Mutual Interest - Staff Responses to
Recommendations by Task Force (continued from 9/~)
(Clerk's note: At the Council's request, a verbatim transcript
follows.)
Kohler: O.K. Now we come to the meat of the issue. The
discussion of items of mutual interest and staff responses to the
recommendations. I'd like to continue where we left off the last
time, and there were a number of unanswered questions about the
report.
Monia: (inaudible) ... if the Council members would bear with me
a little. I have about five or six items I wanted to discuss with
Mr. Oncay. I have spent a length of time reading this report and
I have some questions and clarifications, so perhaps we can
accomplish (inaudible). Mr. Oncay, you don't have the staff's, I
mean the (inaudible).
Peacock: Mr. Mayor, if I could just for the record note that Mrs.
Anderson has just arrived.
Anderson: Mrs. Anderson has been to every room in this building.
Mrs. Anderson's taken a tour of this building. I talked to Jean
and she told me what time, but I forgot to ask her which room, so
I covered the waterfront. Is this supposed to be going around to
everybody, or going this way?
Monia: Anyway, what I was going to do so that everyone could
follow along if you could. You'have the document. I was going to
refer back to the documents between the subcommittee's work and Mr.
Oncay's report, so if you have the document ...
Monia: (inaudible) ... I wonder if you'd be kind enough, at one
point of time or another (inaudible) ... I see you have your orange
book with you. Mr. Oncay can consult with that.
Anderson: Yeah, I've got it. Anyway, how many books am I supposed
to have?
Monia: Well, you should have the subcommittee's book, the blue
book, the response, the staff's response ...
Anderson: Oh, the staff's response, I don't have that. Somebody's
got to give it to me.
City Council_ Minutes 2 September 17, 1991
Monia: O.K., well Mr. Oncay has that.. Then the orange book;
that's basically all the documentation. I wanted to first go to
the eharting committee report on page 30, Mr. Oncay.
Anderson: Page which?
Monia: Page 30.
Anderson: How do you find page 30.
Monia: It's in the blue book, in the blue book. I'm sorry ...
(several voices discussing blue book)
Anderson: You've got the wrong blue book. If you and I, if we sat
next to each other we'd be perfect, Marty.
Clevenger: Pardon?
Anderson: I said if we sat next to each other we'd have all of the
books, including the attorney's response.
Kohler: The blue book is in front of the white book.
Monia: Anyway, yes. It has to do with the comments concerningthe
date of 11/6, it's the second 11/6 one where it starts off with the
Chief Building Inspector at the site, late afternoon, the response
to Mayor Kohler's phone call to the City Manager to solve some of
the problems, possibly (inaudible). ... note, there is mixed
(inaudible) on this point, this is our assessment of what happened.
Then you had a response to that. This is where it gets very
confusing about whether or not some things happened on the 6th or
the 7th, and I thought perhaps Mr. Oncay we could at least go to
page 9 of your report, paragraph 5. It specifically says it's
11/6/89. This statement is incorrect. I'll refer to it. This
statement is incorrect. My second interview on this statement
indicated that I had visited the site with the Public Works
Inspector on 11/7, not 11/6. The conversation I had with the
Public Works Inspector occurred when I visited the site with the
City Manager and Planning Director. Is that confirmed, is that
11/7 and not 11/67
Oncay: Correct.
Monia: O.K. So the correct date is 11/7.
Anderson: Alright. What happened on 11/7 that wasn't on 11/67
Monia: Well, there's just some confusion as to whether it happened
on 11/7 or 11/6.
Anderson: It being what. Which, what happened?
Monia: Oh, I'm sorry. He says here in the statement as indicated.
Anderson: Which are we looking at -- the response book or the
Cocciardi report?
Monia: The response book.
Anderson: The response book says what?
Clevenger: It Says he didn't go on the 6th. Remember, I called
on the afternoon of the 6th. I think you.might have had a meeting
that afternoon and talked about it, I'm not sure. But nobody went
out to the site until the next day when it was red-tagged, right?
Monia: That's correct.
Clevenger: So I think that's ...
City Council Minutes 3 September 17, 1991
Anderson: That is correct?
Monia: Yeah, because in his testimony when you go back and see
that there's, sometimes it refers to the 6th and sometimes it
refers to the 7th. I just wanted for a point of clarity -- are we
talking about the 6th or the 7th?
Anderson: You know, frankly I'm questioning whether everybody's
memory is perfect when we're talking about such a long time ago.
Because I, the reason I'm bringing it up is because I missed
talking to Chuck Grens, because he talked to my answering machine.
When I came back at something like 5:00 in the afternoon and I
heard him on the machine, I don'ot recall if he was home or not, I
immediately called Marty to find out what was going on. It was a
few minutes after 5:00, so I couldn't get City Hall.
Monia: Excuse me, Mrs. Anderson.
Anderson: My impression ...
Monia: Wait, I'm asking Mr. Oncay what his recollection is, not
what your recollection is. I'm sorry. I'm asking does he recall
whether it was the 7th or the 6th. I'm not asking whether you
recall whether it was the 7th or the 6th.
Anderson: All I'm suggesting is that people's memories may not be
perfect, which is not to suggest that these people are lying or
anything ...
Kohler: He's not suggesting that.
Monia: I'm not suggesting that, I'm just trying to clear the
record ...
Kohler: Alright, let's find out what's going on.
Anderson: But Marty knew a lot about it, believe me, she knew a
lot about it. I called her, so.
Kohler: Mrs. Anderson, I think that you're out of order. Mr.
Monia has the floor and there is a question for Mr. Oncay.
Monia: I just want to clarify that the best recollection is the
7th and not the 6th. It's the day which the stop work order was
released, was the day we were referring to here.
Oncay: That's correct. I'd like to add that there's editorial in
that comment in my report, that should be 1989, not 1991.
Monia: Right. Thank you, that was one of my other points. I
wanted to make sure that there was an edit problem. Well no, I
.just wanted to get to ... O.K. Now if we go to page 13 of your
report, paragraph (inaudible), and it's the one that starts, it's
the sentence that starts out, proceed to, it's just past halfway
through, it says in my second testimony, are you there?
Oncay: Yes.
Monia: In my second testimony you questioned me about what
transpired on 11/7/89 at the illegal grading site. I was asked,
did you ask the Public Works Inspector how it happened. My
response was no. However, I did question the Public Works
Inspector at a later time to obtain his version of what happened.
Since I'm not sure exactly how the question was asked at the time,
whether or not it was a question that said did you ask him
specifically on November 7 or was it a general question (inaudible)
did you ever ask him, we didn't write down what all the questions
were. If you could just take a moment and explain to us exactly
what happened from the time we first knew about or sensed there was
City Council Minutes 4 September 17, 1991
a problem up there until the time'you got there, what you saw, what
your conversations were with Neal. You can start with this: was
ther~ a meeting the night before, the evening before, the afternoon
before, about some problems ...
Oncay: Not to my recollection, no.
Monia: O.K. So on November 7th was the first time that something
sort of rang of bell that you should go up there. You had a
meeting on the morning of the 7th?
Oncay: Correct.
Monia: And who was in the meeting?
Oncay: The City Manager, the Planning Director, myself. I know
that those three individuals were-there.
Monia: And the discussion of the meeting was ...
Oncay: Well, we discussed that a report had been, that there had
been a report concerning illegal grading activity and that
Councilman Clevenger had contacted the City Manager about that.
The City Manager had wanted to know what the criteria was for the
subdivision development in terms of what was allowed, grading
activity, what were the specific conditions of approval from the
Planning Commission, etc.
Monia: But no one had gone up to the site before that?
Oncay: Not to my knowledge.
Monia: When you went up to the site, tell everyone who went up,
about what time it was, what you saw.
Oncay: Well, my best recollection is. that the City Manager, the
Planning Director and myself went to the site. The Public Works
Inspector I believe was at the site at the time. We viewed the
grading activity in the lower and upper portion of the subdivision,
and there was a conversation that took place between myself and the
Public Works Inspector concerning illegal grading activity. That's
where I had mistakenly indicated before that, I thought that that
conversation had taken place the day before but the report came in
late that afternoon and it was impossible ...
Monia: So it wasn't really on the 6th, it was the 7th.
Oncay: Correct.
Monia: At that time, did Neal have a set of plans? There's a lot
of inference that there was a set of plans there and that when you
questioned him about what was going on here, he had some set of
plans that I could (inaudible) what's wrong with this and that,
just the plans. Is that the day that he presented that he had a
set of plans?
Oncay: Correct.
Monia: Did you recognize those plans as something that looked
similar? I know your testimony (inaudible) say well, it doesn't
look the same, but there are really two sets of plans and I'm
trying to get through that issue. One is a group of four sets of
plans and I guess maybe some typing which if you look at it,
doesn't have anything to do with grading. Then there's the other
larger set of plans, which we call, it's called the Westfall plans,
which had about 11 (inaudible). Do you remember this set of plans
we showed you when you said what's wrong with the grading. Do the
plans match?
Oncay: The plans that Neal presented to me were four pages of
City Council Minutes 5 September 17, 1991
grading plans that Neal had, the Public Works Inspector had in his
truck. They were grading plans, and they were four pages.
Monia: Is it that time that you noticed that it didn't have a
stamp?
Oncay: That's correct. I had never seen the plans before. That's
the first time I had seen them.
Monia: So it's clear that it was on the 7th. Neal had the set of
plans, he had them in his truck or when you approached him and
talked to him, did he take them out of his truck or did he already
have them out in his hand?
Oncay: He produced them from his truck.
Monia: I wanted to clear that issue up because we always keep
going back to exactly what did Neal have. Alright, and afterwards
you took a set of plans from, you testified that you took a set of
plans from Neal.
Oncay: Correct.
Monia: Do you recall whether or not, when you looked at those
plans, when you went to Neal and you said, what, what did you say
to Neal about the set of plans (inaudible)
Oncay: My recollection is that I asked Neal to provide me with
those plans that he had in his vehicle.
Monia: O.K. Were those the same ... when he gave you those plans,
were those the same plans as he had?
Oncay: Yes, they were the same four page set of plans.
Monia: O.K. Those were the ones that you said you folded up.
Oncay: Yeah, I believe that.they, these represented the four page
plans that he presented to me that day.
Monia: O.K. I'm glad to clear that one up. Now if I can go on
to another matter of inconsistency. I was just trying to resolve
this one. Thank you for that. Can we read page 3 of your report,
number 3, where it says here, the plans are mentioned in City
Manager's letter to the Council dated 11/15/1989, page 2, paragraph
(inaudible), then stop (inaudible). I thinksyou have Mr. Peacock's
letter in your, as your evidence.
Oncay: Correct.
Monia: It's number 2. If you turn the page we have numbered as
2. Where in that letter from Mr. Peacock does it say that the
plans, the second set of plans I assume because that's what he
mentions, that in fact Council Was advised he had in possession,
the sentence I am talking about.
Clevenger: What was it ...
Monia: Oh, what it says here is, let's read it, it says, the plans
are mentioned, the plans, o.k., are mentioned. It's referring to
there was a set of plans. Are mentioned in the City Manager's
letter to the Council dated 11/15. And then I say, look at the
letter of November 15.
Clevenger: Oh yeah, it says right here in that first paragraph?
Monia: Right. It says the plans for the access road and water
lines had been submitted in June of 1988. But never approved by
the City Engineer since the final map was not conditionally
approved by the City Council until July of 1989. O.K.? Now,
City Council Minutes 6 Septe~Lber 17, 1991
there's an error there becausethe conditional final map was signed
in 1988, October of 1988. But then it goes on to say ...
Clevenger: Is that right?
Oncay: October 5, 1988, that's cc~ect. That's when it was
approved. It was filed on October 12, excuse me, October 14.
Monia: What it goes on to say is that the City Engineer had
previously returned the plans for correction, but they never, but
they appeared to never have been resubmitted by Westfall Engineers.
I guess my question is, where in Mr. Peacock's letter does it
inform us that we received that second set of plans, because we
hadn't?
Kohler: Could it be part of the letter, because I see this is page
number 2. Is there a page number 1, and a page number 37
Monia: Yeah, there is. You can read the whole letter. It's
devoid of that subject matter. You have the whole letter. Because
you refer to it as proof that the Council was advised about this
other set of plans.
Oncay: I think my reference was that the Council was informed that
there was a set of plans, although the letter obviously is not
specific to the issue that these set of plans may have been in the
possession of someone other than the Public Works Inspector. It
was divulged at that meeting that there was this additional set of
plans.
Monia: Now the letter says this. The letter says the City
Engineer had previously returned the plans for correction. I think
we all agree there's all kinds of transmittal slips about that.
But they appeared to never have been resubmitted by Westfall
Engineering. That's my point, is that they were resubmitted. They
were resubmitted in June of 1989. Those are the very plans that
in fact Neal had with him. I'm trying to find out what evidence
out of this letter goes to the way-that we never did, that we never
did receive the plans.
Oncay: I wasn't referencing that issue when I referenced that
paragraph. I have no specific knowledge of when the plans were
submitted or resubmitted.
Monia: June 11, of 1988, or 1989, excuse me, by transmittal slip'
and by, although he couldn't pinpoint the right date and time we
talked to him ...
Anderson: Who couldn't?
Monia: Arjan. Arjan clearly recalls receiving those plans, and
then after asking Westfall Engineering to see if they could find
the transmittal slip, because the transmittal slip of the City
could not be located, it came Up with the Westfall Engineering-
produced document showing that it had been submitted to the City.
Anderson: So, wait a minute. So what you're saying is that the
second set of plans had been submitted and had been approved by the
city?
Monia: No, just they were ...
Anderson: So they were still unapproved plans?
Monia: That's correct. They were unapproved plans. But what the
Council was told that there was no evidence that the second set of
plans had ever been submitted. This is now, this is 8 days after
the 7th, when we should have realized, this is my opinion, when we
would have just said, what are these plans, where did they come
from, the 7th or 8th or 9th, we would have found out very easily,
City Council Minutes 7 September 17, 1991
maybe we already did find out, that Westfall had in fact submitted
a second set of plans.
Anderson: If they submitted this second set of plans, who would
they have gone to?
Monia: Engineering.
Anderson: Engineering?
Monia: Correct, Arjan ...
Anderson: Well, wait a minute. And we didn't really have a City
Engineer then, right? Is that right?
Monia: That does not ...
Anderson: I know it doesn't, but I'm trying to figure out who was
responsible for engineering then. Was Mr. Shook working part time
then?
Oncay: Yes, he was.
Anderson: Definitely part time. O.K. So, these plans came in but
its possible that nobody knew about them, right, since Mr. Shook
was working part time. Is that possible?
Oncay: I did know about them. Because he'had them (inaudible).
Anderson: O.K., so, but we don't know who else knew about them.
Oncay: No, the only other thing we know about at this point in
time is that the Inspector had one of the, had a copy. We don't
know if it is one of those copies.
Anderson: He had some copy of the first or the second submittal?
Oncay: No, it was the second submittal.
Anderson: Unsigned?
Oncay: Unsigned. Yes, unsigned.
Anderson: Mysteriously appearing on his desk?
Monia: Yes, and mysteriously appearing offsite.
(several voices at once)
Anderson: (inaudible) of his truck. That wasn't a mystery. It
was how it got on his desk was the mystery.
Monia: The contractors have the same ... same contractors. O.K.
Anderson:- But they were not approved?
Clevenger: No one has an approved set.
Anderson: That I think is very critical, that these plans were not
approved.
Monia: That's correct. It is also very critical.
Anderson: I mean, if I just got a building permit from the City
the most important thing on it is the stamp.
Monia: That's correct. There's no question about that. I guess
we're going to a different point. I'm going to a different point.
I'm trying to find out from Mr. Oncay, he uses the letter -- I'm
not using the letter -- he uses the letter that says the proof that
City Council Minutes 8 September 17, 1991
the Council was told about the set of plans is in Mr. Peacock's
letter. My question is I don't find it, and I'm just looking for
the paragraph or the sentence or the reference that says the City
Council was advised that there was an illegal set of plans or an
unapproved set of plans up there either with Mr. Rauschhuber or the
fact that we had received these plans but we did nothing with them.
I mean, there's no reference that we ever got .them. Matter of
fact, it goes to the other side. The other side is it infers we
never received the second set of plans. The letter specifically
says it appears to never have been resubmitted by Westfall
Engineering. My point is is that on that issue if we did receive
the set of plans, we have transmittal slips that the City received
them. O.K., and if somebody probably would have said, back in
1989, hey, there was a second set of plans submitted and we were
using. them, we meaning the Inspector up there, it probably would
have shed a hell of a lot of different light. So I don't see where
that paragraph, and I guess I will go on to the next item unless
Mr. Oncay can get me something out of that paragraph that says
Council was told that there was a second set of plans. I don't see
it. It was told just the reverse.
Kohler: Mr. Oncay, any comment on that?
Oncay: Well, my reference to that letter was not concerning the
second set of plans, only that concerning the issue that the
Council was made aware of the fact, although not specifically in
the letter, but was made aware of the fact that there was a set of
plans that the Public Works Inspector had, first or second set
(inaudible) ...
Monia: It doesn't say that. It doesn't say that the Public Works
Inspector had a set of plans. That's the point. It doesn't say
anything about a Public Works Inspector having a set of plans up
there.
Anderson: Do you know where this is in the original Cocciardi
report in this letter?
Monia: Yes, it's in the documentary evidence. Maybe one of the
folks there can find it. Here's the letter, I'm sorry, it's back
here.
(male): Toward the back of the report.
Monia: It's toward the back of the report. I don't know how
(inaudible).
Kohler: It's in the index.
Monia: Yes, look in the index in the front and it will tell you
basically where it's at. The whole letter is not of concern to us.
Alright, if I can go on with the next one so that ...
Kohler: O.K., we can go on.
Monia: I want to talk a little bit about, Mr. Oncay if you could
now turn to the committee's report, blue book, on page 35, and it's
the paragraph that you had then responded to on page 11, paragraph
c, so it would be your response on paragraph C. I'll read the
charting committee's paragraph.
Anderson: Are we going on to the next point?
Monia: Yeah, I'm satisfied that there isn't anything in the City
Manager's letter that told the Council absent of other testimony.
What is not mentioned in the letter is that the developer also
received additional compensation in the form of the approval to cut
down "Borrow Hill" by 70 feet to provide fill for Quarry Creek and
in the process gave permission to apply for the development of up
to three additional lots due to the reduced slopes on Borrow Hill.
City Council Minutes ~ 9 September 17, 1991
Anderson: What page are we on?
Monia: I'm sorry, we're on page 35 of the citizen's report. No
permits were ever issued for this work. Then Mr. Oncay's response
to that particular paragraph is found on page 11, paragraph C, and
I'll read that and then I'll just ask for a clarification if I
might. This paragraph that we're talking about is page 35, first
full paragraph, is the paragraph that's read. This paragraph
assumes that the City Attorney had knowledge which he may have not
possessed. I find no evidence in the documentation to support this
assumption. O.K. Can you just clarify what's meant by that.
Oncay: Well, this paragraph -that I'm referencing follows a
statement by the City Attorney, and although I obviously was not
privy to all of the story, all of the evidence and documentation
that was prepared by the committee, you know I unfortunately had
just a very short period of time. I know the committee spent a
long and very arduous project here, and spent a number of months
to prepare the document. I only had a week or two to prepare the
document and was not privy to Of lot of their backup information.
Monia: You had the orange book, though?
Oncay: Correct. And I may have missed something that was in that
document, but I guess what I'm saying here is I couldn't find
anything in the documentation that supported what appears to be a
statement that the City Attorney had knowledge of that.
Monia: Well let's, that the City Attorney had knowledge of which
piece? Of the Borrow Hill thing?
Oncay: Well, we'll see what this, of the Borrow Hill, correct.
Monia: The statement says that this paragraph assumes that the
City Attorney had knowledge which it may have not possessed. I
find no evidence of the documentation. I'd like to go to a piece
of documentation that was turned in by the committee so that I can
get this organized. This happens to be the settlement agreement
between the City and Mr. Cocciardi. Turning to item 7 in that
agreement ...
Clevenger: What page now?.
Monia: It's page 6 of the settlement agreement and, let's see, let
me get the right ..o it's a stipulation for settlement between
Anthony Cocciardi, Mary Cocciardi, Allen Chadwick, Carol Cocciardi,
Harbor Builders, etc. If I keep reading it we'll be here until
midnight.
Anderson: This is the Quarry Creek Road?
Monia: Yeah, this is the (inaudible -- several voices)
Anderson: August 77 August 25?
Monia: (inaudible) ... find out. September 3, I have a signature
here of September 3, 1986. O.K.?
Anderson: Right. I'm l~oking right at it.
Monia: Alright. Number 7. City acknowledges that the Cocciardi
intends to subdivide the parcel of land from which the fill
material will be taken for use of the repair project.
Clevenger: Where are you finding this on page 77
Monia: No, not on page 7. It's page 6 but item 7. Condition 7.
Clevenger: O.K. Where you thought it would be.
City Council Minutes 10 September 17, 1991
Monia: With respect to any application for tentative map approval
cove~ing the Borrow Hill site, City agrees as follows: a) the
average slope of the Borrow Hill site will be calculated on the
basis of contour line that is established after being graded and
earth removal for the repair project has been completed. And it
goes on to further define how that's going to be done. Now, your
point is that there is no evidence and why would the committee make
an assumption that the City Attorney knew about this. Why wouldn't
they make that assumption? He wrote this document.
Clevenger: Can I interject something here? I think everybody's
missing the point here, because he, the City Attorney did note,. he
had to know about this because-he wrote the agreement, but the
agreement does not give him up to 3 lots more, because there were
31 acres there. Based on our, the way we still calculate our slope
density formula that I got, I hope this is right, that he's
entitled to 3 lots there in 31 acres. Is that right, Steve?
Emslie: Based on the report the lot is graded ...
Monia: That isn't what ...
Clevenger: But now, but that is real, important--no, it's three
lots no matter what. If you have 31 acres, I thought the way our
slope density formula is calculated you get, there's a 10 acre
minimum. You can configure those lots anyway you want to, but you
get 3 lots.
Kohler: Not necessarily, if you take out that land that's unstable
Anderson: It's a slope density formula.
Clevenger: Well, can I ask Steve because I'd gotten this, I
thought, pretty straight.
Emslie: Well, there's a lot of factors that go into that. As I
mentioned, the committee people had not been able to see what the
pre-grading conditions on that property were. (inaudible) can say
how many lots they were entitled to before the Borrow Hill was cut
down.
Clevenger: Well, let's say I have 31 acres now in the hills, and
I want to get as many lots as I can and it's steep. If I have 31
acres, can I get 3 lots out of that now?
Emslie: If low, steep slopes (inaudible) 50%, the slope density
yields a 10 acre lot.
Monia: Minimum lot or maximum lot?
Emslie: Minimum lot.
Clevenger: So I can get 3 lots out of that, right?
Emslie: There's other, as Willem mentioned, there's factors on
the, the unstable area has to be deducted from that that's not used
to calculate ...
Clevenger: But that's not slope, right?
Emslie: No, it's part of (inaudible) the slope formula, they take
that out (inaudible), there's an external factor. But assuming
there is nothing wrong geologically with it, and it is as steep as
possible, it could be as 10 acres.
Clevenger: So I'd still get the 3 lots out of it. To me, that's
City Council Minutes 11 September 17, 1991
Monia: That's not my issue. My issue is, I'm trying to find out
from Mr. Oncay why he would write a statement like that concerning
the fact that there's no documentation and that one would have to
assume that the attorney could understand this issue. You say, you
know, that there's, I don't have any evidence the City Attorney
would know something like that. My point is that now given the
fact that it was Mr. Toppel that wrote the agreement and now given
the document, do you still think that's a correct statement?
Oncay: No, that would be incorrect. If that documentation was
provided by the private committee, it was overlooked by me.
Anderson: Steve, I have a question about this Borrow Hill issue.
Is the Borrow Hill site 31 acres?
Emslie: Well, it originally was 52 and it was severed off.
Anderson: Right, that's what I thought. It was severed from the
balance of (inaudible) that property. So how big is the Borrow
Hill site?
Emslie: 21 acres. That's the ...
Clevenger: How many acres?
Emslie: 21 acres.
Clevenger: It's 21 acres. Yeah, it's not31 acres.
Kohler: 21 I think.
Emslie: Yeah, it started out to be 52 and was split into 2. One
going to the Sung subdivision ...
Kohler: Right, it's 38 that's still in place.
(several voices)
Clevenger: It's not, so there now there are 4 lots on 20 acres?
21 acres?
Kohler: Finally got it cleared up. (several voices)
Monia: Finally we got it cleared up. Alright, let's go on to, I
want to make a point about some illegal grading. In the committee
report on page 26, blue book page 26, dated 6/23 ...
Clevenger: Wait a minute, where are we now?
Monia: Committee report, blue book, page 26, date June 23. The
committee made this comment. There was clearing and removal of
brush offsite for Cocciardi on the upper site. The work was done
by a D8 bulldozer. Then in bold type it's written that this is
unapproved work. Turn to Mr. Oncay's response to that report from
the committee, you'll find that on page 9, paragraph D. Response
from staff is there is no evidence to support the statement that
this work was unapproved. Subdivision improvement work had been
acknowledged by the City Attorney. How does the committee know
that this was not work that fell under the definition. I am
assuming that this goes to a position saying that there's no
evidence presented that the fact that offsite work, and I guess
offsite means it's unapproved work. If it's offsite it's not on
the site which has a (inaudible). Because it's a term that used
by staff in some correspondence to me that it's offsite meaning
that it's not (inaudible)
Oncay: Well, the way I read that was offsite meaning that could
be in the right of way area.
Monia: Well, I know that. But I mean they're saying that there
City Council Minutes 12 September 17, 1991
was illegal grading done offsite. Your point is that there is no
evidence to support that statement, and I'd like to turn to the
contractor's log which is dated 6/23/89, which is in the orange
book, way towards the back ...
Anderson: Which is in ... it can't be too far, this is
chronological, right? I mean that's supposed to be the one
advantage here to figure it out chronologically since it's hard
finding the numbers.
'Monia: Karen, go towards--there's contractor's logs, it's the last
blue book evidence that was submitted by the committee, or one of
the last ...
Kalb: The very last thing, all the way to the back.
Clevenger: Keep going.
Anderson: What? All the way to the back? You mean it's not
chronological?
Kalb: Well, it is in itself chronological, so that you couldn't
make it chronological unless you inserted one page, you know, out
of the report, so ...
Anderson: It's in the contractor's log then?
Monia: The contractor's log is chronological, so you have to get
to the contractor's section, and then you go through (inaudible)
6.3 which is in chronological form.
Clevenger: .(inaudible) This looks like Neal's. Stevens Creek
Quarry?
Monia: Yes, it's Stevens Creek Quarry. They were the contractor
doing the grading. You'll see a notation on there, on the left
hand, it says foreman's comments. Clearing of brush offsite for
Cocciardi on top of hill, 8 hours.
Anderson: But why is that necessarily illegal? I thought clearing
of brush was not illegal.
Monia: Their definition of .offsite was not which they were
originally contracted for. The testimony given by the contractor
was that ...
(inaudible voice)
Monia: No, it's 6/23.
Anderson: No, I found it. Next time you ever do a report like
this I want a page number on every single page. Next time you ever
do a report like this ...
Kalb: You know how old I'm going to be by that time?
Anderson: Really old.
Monia: And I can't count past 10.
(several voices)
Monia: Anyway, there's a contractor's log that based on the
discussion with the contractor, his point was offsite as it wasn't
part of the original quotation and that they would charge extra
money for that, which meant that it was not within the plans.
Anderson: Well wait a minute. I have a question before you go on
with this assumption. The English usage in the sentence, it's
clear to brushing off site.
City Council Minutes 13 September 17, 1991
Monia: Right.
Anderson: I mean it's not unclear to me that it's necessarily
clear to brushing offsite as opposed to possibly clear to brushing
off site.
(several voices)
Anderson: It doesn't say clear brush offsite. I went through this
thing about 30 odd men and women one time, I remember that in my
English class, and it was very odd.
Kalb: There is one point.you should make. Have you ever seen a
D8 dozer? This is not a broom, this is a ...
Anderson: No, I know it's a caterpillar. It says here.
Monia: It isn't a little cat.
Kalb: This is a big machine.
Anderson: That's not what my point is. My point is I don't know
that it is necessarily clear that it's offsite or it's brushing off
as a total word the site, whatever the site is.
Monia: Karen, come on. Let's, why don't we get to something
that's perhaps that's in better English, because Mr. Peacock put
it in much better terms. Why don't we get to Mr. Peacock's letter
of November 15. He uses the correct terminology.
Clevenger: Where is that?
Monia: This is Mr. Peacock's letter dated November 15.
Clevenger: That's his letter to the City Council, right? Wait a
minute.
Monia: You can find that ...
Clevenger: What page of that letter?
Monia: You can find that under 2 ...
Clevenger: Page 27
Monia: No, in the staff's response, it's document no. 2. If you
go down to item 3 on that page, this is what Mr. Peacock wrote that
was going on there. Illegal grading activity outside the
subdivision on both property owned by the developers and property
owned by others. So, there was some clear ...
Anderson: Yeah, but that doesn't mean it was done at that early
a date. "
Monia: That's not the point, Karen. My point is that I'm asking
the question. Mr. Oncay said there is no evidence to say that, and
that the committee didn't have the evidence to make that kind of
statement. I'm only pointing out two pieces of evidence. O.K.
I can go to further. I'm saying that there's two pieces of
evidence that are really quite clear that there was some kind of
illegal grading going on there.
Anderson: Clear as to brushing off site.
Monia: Mr. Oncay took the position that there's no evidence that
there was unapproved work, and I'm just saying here's two pieces
of date. One, the contractor's log that says they were brushing
off the site, and you can argue about whether or not it was the
best grammar in the world, or you can go and say, here's a letter
City. Council Minutes 14 September 17, 1991
that Mr. Peacock wrote that says there is illegal grading. So, we
have two pieces of evidence, and I guess my point is why would we
make-a statement that there's no evidence when in fact there is
some inference by the report given by Mr. Peacock that illegal
grading took place.
Anderson: Yeah, but Mr. Peacock doesn't say on what date. That
was after they went up and inspected in November. Mr. Peacock
doesn't indicate in here that this looks like it was done in June
vs. having been done more recently. In fact, as we explore this
even further, I don't know whether in this report on page 26, July
4, the implication is that this "damage" that you're discussing
here is supposed to be the damage that Marty and I saw, but I'm
going to tell you that that p~rticular statement of July 4 is
completely inaccurate. Marty and I were not asked to come up and
look at damage. We were asked to look at tagged trees that were
due to be removed. What's that got to do with ...
Kalb: Our only point in making that was that you probably wouldn't
have noticed it.
Anderson: But we weren't asked to come and look at it. So why
would you even say that?
Kalb: (inaudible) so you doubly wouldn't have noticed it. Since
you weren't looking for it and (inaudible)
Anderson: No, no. We were, you said here, a group of citizens,
plus Councilmen, walked the upper site because they were concerned
with the amount of damage being done. Now if that were the case,
she and I would have been told, come up and look at the'damage.
We were not told that. We were told, come up and look at the
tagged trees.
Kalb: Yeah, you got the word. Damage to be done.
Anderson: To be done. I really would like that to be corrected,
becaus~ I was blistered in the campaign on someone who kept saying
that we saw damage and condoned it. We never saw damage, we were
never asked to look at damage. We were asked to look at trees that
were tagged for removal, and we were not happy ...
Kalb: We went on to point out that you probably would not
(inaudible)
Anderson: No, that's not good enough, that's not good enough
kiddo. No one said to us come up and look at damage.
Monia: I don't understand something here.
Anderson: What?
Monia: Why are you making such a strong point about it not being
good enough?
Clevenger: Because she got ...
Anderson: I want it to be correct. I feel just like anyone else
responding to this report; I want accuracy in this report, and this
is one of the areas where it is not accurate. If you're going to
submit something to the grand jury, by golly, I definitely want it
to be accurate.
Kohler: (inaudible) correct on this one.
Clevenger: I know we didn't go on July 4.
Anderson: Well, we might have. I mean, I don't remember, we might
have. We went on a weekend or a holiday or something. I had
Jessica at home with me, Jessica was babysat by the people at the
City Council Minutes 15 September 17, 1991
bottom of the hill while we went up the hill to look at the tagged
trees.
Kohler: That's why we look at this report as well as looking at
Mr. Oncay's report.and staff report. That's what we're here for.
To find discrepancies and if we find discrepancies, well we correct
them.
Anderson: How about, I've already brought this up before and it
still is not corrected?
Kohler: Well, (inaudible -- several voices)
Perlin: Can I just offer a cerrection? The contractor's log
doesn't refer to a D8 dozer, it refers to a D6. There's a
substantial difference between a D8 and a D6.
(Several voices - inaudible)
Clevenger: How do we know this is going to be corrected? Because
we're going to put it (inaudible) or something?
Monia: I'd like to get back to the issue.
Anderson: I think this record then should be submitted to the
grand jury along with ...
Monia: Which record?
Anderson: This record, right now, this one right this minute.
Monia: Well we're, I would hope we are going to submit them all.
Anderson: Fine.
Monia: I think that's the proper course of action.
Kalb: The point I was trying to get back to, the 6.3. It goes to
a larger issue about when unimproved work began. It wasn't whether
or not you established that it started on 6/23, because I don't
think anyone will ever be able to know exactly the day and the hour
which some unimproved work commenced. But it certainly was months
before what originally was toldto the general public. The general
public in the early part of it. That's what I was trying to
establish. There was some unapproved work done, we know that there
was because even our staff had gone up and said, yes, they used
illegal, it was unimproved.
Anderson: Yes, but I had thought brush removal was not necessarily
Monia: It depends on where it is.
Anderson: So what, that means~ I don't think brush removal is
supposed to be part of what you need a permit for necessarily, is
it?
Monia: Well, you can make your own decision. I was just trying
Anderson: I mean, how can you say this is illegal activity if
brush removal is supposed to be up to half of your work?
Monia: (inaudible) it's unapproved. If it's offsite it's
unapproved.
Anderson: But maybe it doesn't need an approval. Your assumption
is that it needs an approval. If it's brush removal, Mr. Perlin?
Perlin: I'm discussing that with Steve right now. Because I think
City Council Minutes 16 September 17,. 1991
in terms ... I don't know if it's illegal or not. I think in terms
of weed abatement that we do out in the hills, we remove weeds or
remove brush, I don't think people come in and get permits, but ...
Emslie: I don't know the specifics. It's in the Building
section, whether there is a certain limit on the amount of
vegetation removed without having a permit.
Anderson: Well, clearly you can't take a tree down, but I thought
brush, poison oak, this ... this contractor's log does not specify
what type brush was removed.
Emslie: Joe would probably know what the surface vegetation is.
There's a limit (inaudible) require a grading permit. What you
can't do is you have to get a permit and tell the City how much you
(inaudible) There are orchard control permits ...
Anderson: If it's grading ...
Monia: Did it permit the removed brush?
Emslie: A certain amount of it, yeah.
Oncay: That's correct.
Caldwell: Is it in the building code? I have it here.
Monia~ How much is a certain amount? Could you remove a ... small
amount with the D6 that you don't need a permit?
Oncay: It would depend on the amount of brush and the type of
vegetation removed. ~
Anderson: I mean, I don't want to go from "unapproved" to illegal
without making sure we're correct about this. I don't think it's
correct to have a presumptive word.
(several voices - inaudible)
Anderson: Well, I know, but for the public, they'll look at that
unapproved and it sounds like something was wrong. Maybe it didn't
need an approval. I think that's important.
Kalb: Well, I guess that's possible. When somebody goes after
something with a D6 or a D8 dozer, and I'm sorry if we got the
number wrong, you know, this isn't out there with a rake and hoe.
Anderson: No, I understand that. But what I'm talking is
hillside, and a lot of hillside properties have brush removal for
fire that's done by some kind of equipment ...
Kalb: I understand that.
Anderson: Because their acreage is so large, not because they
couldn't do it with a rake but because it's just not practical.
Either way its ... pardon?
Caldwell: Probably a discer0
Anderson: Yeah, a discer or whatever.
Kohler: So do we (inaudible) ...
Monia: No, I'm really just trying to find out whether this
evidence which (inaudible) is right about whether or not there is
no evidence or if there is reasonable evidence. (inaudible)
controversial evidence. He makes a statement that there is no
evidence and that's the point I was trying to get to without going
into all the rest of the hyperbole, there is some evidence.
City Council Minutes 17 September 17, 1991
Caldwell: What I think the Council should understand is I think
the basis for that statement on the 6/23/89 notation was the
contractor's log, so if you feel that the evidence is there, it's
there. If you feel that the evidence is not in the contractor's
log, it's not. O.K.?
Anderson: I personally feel that we shouldn't make too many
assumptions even necessarily from the contractor's log, because
it's not a very complete log, and we do quite frankly have the
problem of the use of the English terminology. So I think it's the
kind of thing you might want to put into a statement that maybe the
grand jury should be asking further questions of this contractor,
as in what do you mean by that, where specifically did you remove
brush and what kind of brush di~ you specifically remove?
Kalb: I think that that probably ends of being the whole scheme
of their investigation. We tried to put together a timeline that
showed the general activity level, when there was activity on the
top, what kinds of activity that was on the top, and we
specifically avoided using the word "illegal" because we could not
one way or the other ascertain whether it was illegal. What was
really important to me in looking at it had nothing to do with
whether it was scraping brush or doing whatever. We've been told
by most people that there wasn't any activity up there until July
or August. As farlas we can see from the contractor's log, there's
work up there scraping on paths, cutting in into the embankments,.
things that happened much earlier than that. Fundamentally, we
started off with a different timeline fromlwhat we ended up with.
We put that stuff in there to establish a general timeline, not to
try to make the point that every single word and every single
inference was something we wanted to take to court and argue the
legalese over. If it's wrong, if it's not exactly accurate, it's
not exactly accurate. But I think it serves the purpose and showed
what was happening on the ill and when. And that's all the intent
there was.
Monia: Thank you. If I can go on with the last item on this
issue. It has to do with getting back to the approved and
unapproved plans and advising people about them. On page 17,
paragraph i, of the staff report. This whole series of questions
or paragraph I'm going to read goes to, I guess the position Mr.
Oncay that you take in this is that, and it says it right here ...
you told me that there were unapproved plans, inferring meaning
that we had a set of unapproved plans, the City, unstamped plans,
but if the committee wasn't smart enough or couldn't figure it Out,
why you're not responsible for that. I guess in paragraph i that's
basically what it says. The committee was not sufficiently
knowledgeable to understand my reference to the unapproved,
unstamped plans. It does not negate the fact that they were told.
In that paragraph, as I read it, says, I told them that there
unapproved, unstamped plans, and they couldn't pick it up so I'm
not responsible for that.
Then we go to page 13 of the Staff's response, paragraph m, the
last two .sentences I guess it is that starts in with my second
testimony, just about two thirds of the way down. In my second
testimony the committee pressed me about what transpired on 11/7/89
at the illegal grading site. I was asked, did you ask the Public
Works Inspector how it happened. My response was no, I read this
paragraph remember? However, I didn't understand the question.
I did question the Public Works Inspector at a later time to obtain
his version of what happened.
Then we go further to page 7, there's another reference that's on
paragraph, the second paragraph inaudible). Alright, it's in the
middle, where it says why did the Public Works Inspector take
unapproved plans with no note attached by the Assistant City
Engineer without the City Engineer's signature and assume them to
be approved? O.K., 'so there's is another reference that he had
them there. Then the last one is on page 2 in the last line of
Cit~ Council Minutes 18 Septen~ber 17, 1991
your report, I had actually forgotten about the plan, and I will
quote here, this is your report, "I had actually forgotten about
the plans until I mentioned them to the committee on 11/1/90."
Clevenger: Is this the first testimony or the second?
Anderson: It's his first.
Monia: The first. "Every effort was made to retain all
information concerning Tract 7~70, etc." O.K., now I'd like to go
to your testimony that you refer to that you had indicated in your
testimony~that ...
Clevenger: I can't find that.
Monia: I can't find anyplace where the committee was told that
Neal had a set of unapproved plans. Matter of fact, it says
specifically, or what the testimony reads is, "Inspectors don't
carry plans in their vehicles" is what's quoted verbatim.
Specifically in the first testimony, they carried plans to the
field which would put the committee sort of in a neutral position
saying well, if they don't carry plans why would we ever ask them
if they had plans. Note that this is the comment that the
committee did not understand because we had yet to talk to Neal.
O.K.? Then, the only other place that I find the testimony ...
Clevenger: What was the page of this testimony?
Monia: I'm sorry, page 7. Page 7 of the testimony, June 16 ...
Clevenger: But which paragraph now?
Monia: Last paragraph. There's a reference that says, inspectors
don't, that was a volunteer thing. My recollection of that was
what happened or how was it on the course, and the committee was
put on a path was that one of the things that inspectors don't do
is that they don't carry plans out in the field when we knew he had
a set of plans. Why would we specifically tell the committee that
inspectors do not carry plans in the field when we knew that he had
carried those plans to the field?
Oncay: Building inspectors don't carry plans in the field.
Monia: It doesn't say that. It says inspector. See inspector?
He's an inspector.
Oncay: My reference concerning the fact that inspectors do not
carry p~ans to the field reference building inspectors, not Public
Works Inspectors.
Monia: No, but you were using this document. You're saying well
you know, if you go back, I said that. I told the committee. O.K.
In their notes it refers to the committee in fact knew that I told
them. But I don't find anything in this testimony that says
committee was ever advised that Neal had taken a set of plans to
the field. It certainly says contractor has a set of unapproved
plans, but it never says that Neal had a set of plans. So I'm
trying to figure out what it is in your statements where you used
to support your argument that says well I told them, and if they
weren't smart enough to know about it, well it's not my fault. But
I don't find anyplace that they were ever told. They were told
other things about the plans, but they were never told those two
facts, and I was wondering what you were getting to.
Oncay: In looking for my statement in my testimony, the committee
acknowledges that I make reference to the fact that the contractor
had illegal plans in his possession. The reference that I am
making here is that the committee was made aware of the fact that
there were illegal plans on the site. I am not making reference
to the fact that I acknowledged or made reference to the fact that
City Council Minutes 19 September 17, 1991
Neal had unapproved plans.
Monia: O.K., so that's quite
Anderson: Can I interrupt here for a second. On page 8, second
from the bottom paragraph, it says that Joe said later there were
plans that were drawn up by Vic but were not signed.
Monia: (inaudible) plans, that's all (inaudible)
Anderson: That's different?
Monia: That was a false sort of issue, the reason that I went
through all of the this, and I.thank the Council very much for
allowing me to have this time because there was a clear point made
last week, and I know at least that I walked away with that sense,
that there was an attempt to--in the staff's rebuttal--that Mr.
Rauschhuber is not a credible witness. I wanted at this point to
make this reference, because I could probably take the rest of this
week to go through almost every paragraph and show you other
discrepancies. I just pointed out the last 4 or 5, but we
(inaudible) point, there are some more major discrepancies in the
staff's response. I'm worried about that because I think, I should
say I wonder if there isn't some underlying motive to maybe not
liking Neal for what he has done or maybe some past problems that
Neal might have had that ...
Clevenger: Or maybe he wasn't using unapproved plans.
Monia: Well, maybe so. But do you have any animosity toward him?
I want to ask you a little bit about how you interface with Neal
because obviously it's Neal's statement and a lot of it is your
statement.
Oncay: Well, Neal and I, my interactions with Neal, I have regular
interactions with him on various different projects. As I
mentioned in my document, Neal came to me for advice and we worked
on a number of different projects together. I had absolutely no
animosities against Neal whatsoever.
Monia: Because your testimony in your book really goes to the
weight of (inaudible)
Oncay: To some degree it does. As my document indicates, I felt
that Neal does not follow the established procedures of the
Engineering Department in that he should not have had those
unstamped, unapproved plans in his possession.
Monia: You got along well working, you didn't have any friction
Oncay: Oh yes. No, no problems.
Monia: (iHaudible) If I may just let me look at that. You're
sure about that? Because there was a sense that I got from Neal
that there was some underlying friction and I wanted to be sure
about that.
Oncay: If there was underlying friction on Neal's part, I wasn't
aware of it.
Monia: O.K. Mr. Oncay, do you know of a company, do you have any
knowledge of a company called Sabre?
Oncay: Yes I do.
Monia: How would you know about Sabre?
Oncay: I'm involved with a company called Sabre.
City Council Minutes 20 September 17, 1991
Monia: In what capacity?
Oncay: I work for them doing engineering for them.
Monia: Are you an officer of the company?
Oncay: Yes I am.
Mon~a: Are you still employed?
Oncay: No I am not.
Monia: Did Neal ever do any work for Sabre?
Oncay: I believe he did before I worked for the company, yes.
Monia: But you weren't sure while you were employed there.
Oncay: No, I don't believe he did.
Monia: O.K. Was there some kind of major friction that took place
between Neal and Sabre, do you know?
Oncay: I understand that the president of the company had hired
Neal to do some work for him and that Neal had demanded some
payment for that work. Sabre subsequently paid him for that work.
Monia: How would the president of this company that you worked for
know Neal? How did they become acquaintances, do you know?
Oncay: I don't know.
Monia: Where are they located?
Oncay: They are located in San Jose.
Monia: So, they just happened to find Neal, who worked with the
City of Saratoga. So, do you know what happened as far as Neal
getting paid for his work?
Oncay: I only know that Neal was paid for his work.
Monia: Do you know that there was a big lawsuit over that?
Oncay: No I didn't.
Monia: Did you know that Neal had to sue the company and got a
judgment from them?
Oncay: No I didn't.
Anderson: Who worked for Sabre first?
Monia: I don't know. I don't'know that. I was just wondering
because it was a significant event, O.K., which Neal was not paid
several thousand dollars for work performed and that Mr. Oncay is
an officer of that company. I don't know what the timeframes were
on there. (inaudible) whether you were there or you were not
there, I don't know, I just know of the circumstances. In any
event, if we happen to have that, I Understand it's a relatively
small company -- how many employees, 2 or 37
Oncay: About 4.
Monia. 4. O.K., a relatively small company. There's usually a
lot of animosity when you go to court over something, and I don't
know what Mr. Oncay's role is but I know there was an interface
there. So there was a (inaudible) disagreement, and I just wanted
to find out from (inaudible) whether or not that might have had any
bearing on his opinion of Mr. Rauschhuber. His testimony is that
City Council Minutes 21 September 17, 1991
you were probably weren't employed there at the same period of
time, but I wanted to clear that up because I think that's
important issue. When you've got two people who don't agree on
this issue, they may not have agreed or disagreed on the other
issue involved.
Kohler: O.K., I have a question for Mr. Oncay and it came up in
the last meeting. .Mr. Oncay, unfortunately you were not here, and
it's regarding a document which is in the report from the committee
and it's also in you~ report. It's procedure. You talk about
procedures, and as I gather from this there were procedures. You
came up with a procedure copied from the reports, which was a
Public Works Inspector procedure for City improvements. I'd like
to know if this is a serious procedure, is this something that's
being used, did you have any knowledge about it, if that procedure
was around? Because what I'm aiming at here, I think that the
contents are very bad.
Oncay: I agree.
Kohler: You knew about this procedure?
Oncay: No, I did not.
Kohler: Where is the procedure that says how to work with
inspector, keep the natives happy, and things like that is part of
the procedure. And then it goes on, also says, I do not know what
to make of it, O.K. Sometimes you get a Icompany's, these funny
procedures, but they (inaudible). But here it is halfway serious
and halfway funny and I'm just wondering what kinds of documents
I go and (inaudible). What kinds of procedures you reference.
This upset me a little bit.
Oncay: When I read this procedure it upset me a little bit too.
It was not an official procedure within the Engineering Department,
it was something that Neal, the Public Works Inspector generated
on his own. The Engineering Department had established procedures
within the department. What I was more referencing was not the
procedure itself because obviously that is not the type of
procedure we would implement or condone, but more that the
committee's report referenced poor procedures and then it
referenced no procedures. When I read the report, I was a little
confused as to if the committee found no procedures or if they
found poor procedures.
Kalb: Mr. Oncay, you had indicated in your response, it says
however page 5 of the committee's report, paragraph 4, first
sentence mentions procedures, policies, and documentation for
public works projects were inadequate and that those public
policies and ordinances that were in place, see exhibit 24, the
committee provides a copy of the procedures for public works
inspectors for subdivisions, public works inspector procedures for
utility companies, and procedures for miscellaneous permits. The
way this was presented it's as though you were putting this forward
as evidence that there in fact were policies and procedures. I
didn't quite understand your reference here, because I think all
of us would agree that those procedures were a joke.~ Was it your
intent here to present this evidence that there procedures, or ...
I guess I don't understand the paragraph.
Oncay: Again, when I read the document I was, the committee's
report, I was a little confused as to was the committee referencing
the procedure they provided as their backup documentation as poor
procedures and inadequate policies, or were they saying that there
were no policies.
Kalb: It was clear that that was not one of your policies, right?
Oncay: I, maybe I misread the committee's report, but when I was
reading the report I became confused there and that's why I made
City Council Minutes 22 September 17, 1991
that reference.
Kalbf We put that in, it'was noted last week, we put that in as
more commentary on what we deemed to be the attitude towards some
of the people, because we found the references keeping the natives
happy and things like that, the kind of thing that (inaudible)
people to see, felt they were being treated like the natives, they
would get some pissed, if you'll excuse the expression.
Monia: It's on tape Jeff, don't worry about it.
Kalb: Yes, so your commentary, you thought we were.referring to
that as a policy?
Oncay: Yes, when I read the documents it seemed as though that was
being referred to as a bad procedure or policy. Later in the
document it talks about no procedures, and I just brought that up
as it might be editorial in terms of there were no policies or
there were bad policies.
Anderson: In fact in many instances we found no procedures, so for
many scenarios there were no procedures, good or bad, that we were
even able to locate.
Oncay: I see.
Anderson: So both statements are in fact true,'I think.
Clevenger: This was a procedure but it wasn't much of one.
Kohler: Yeah, I think it was ...
Kalb: We didn't consider it as a real procedure.
Anderson: We considered it a joke.
Kohler: Mr. Oncay, I have one question. Was this the first time
you saw this procedure, or had you seen it laying around the City?
Oncay: I had never seen that before.
Kohler: Any similar procedures floating around the City background
or ...
Oncay: Not that I know of.
Anderson: They've all been burned.
Kohler: This is one unique case? You've never seen this popped
up in the committees before?
Oncay: Correct.
Kohler: Are there any more questions?
Anderson: Yes.
Kohler: Yes, Mrs. Anderson.
Anderson: I would just like to make sure that it's clear that one
of the reasons that aspersions were cast on the testimony is
because I brought it up also. It wasn't just from Mr. Oncay. That
I had listened to the testimony of Neal after his testified when
I was there that same night, and he was referencing why he didn't
feel like he had to really attend to his business and do proper
inspections was because there was an atmosphere of corruption and
then he gave an example of that atmosphere of corruption. It
turned out to be something that had been settled in the City
Council meeting at a public hearing and hadn't been done under the
table or behind the door or whatever, which is what he was
City Council Minutes 23 September 17, 1991
suggesting was happening at City Hall, which is why he should take
a set of plans with no signature and run around with them is
because these things happen all the time. Unfortunately, the
example he gave of how these things happen all the time was one
where a complete hearing had gone forth and he had just simply been
told what he was supposed to do and he thought it was "mysterious."
It was probably just not explained to him personally. I felt like
he was doing his darndest to try to exonerate himself, and he was
even doing more than stretching in this effort to make himself look
like he was O.K. and doing a good job. So I would have to, you
know I hear testimony like that, it makes me question a lot of the
rest of the testimony because he clearly was the man on the jobsite
and would have a lot of reason for not wanting us to think that he
had been negligent.
Monia: Thank you. Any more, for instance?
Anderson: And I don't, when, is the night when we had an
opportunity to speak about parts of the report that affect us
personally in our testimony? Is tonight the night?
Kohler: Alright ...
Anderson: This is supposed to be sort of our final wrap up, is it
not?
Kohler: Yeah, we go, half of it we go to the recommendations.
Anderson: O.K. Well, I definitely want' that noted regarding the
timeline of July 4, 1989, and I think it would be appropriate if
Marty Clevenger were also on record with me because I think we
remember things the same way and I would like to have it clarified
that what in fact happened on July 4 is that we were asked to look
at trees that were tagged for removal. Soas you said, maybe it
should have said about to be done. And I think it's important that
the word damage not be used, that it be more specific, because we
were not asked to look at grading damage, we were asked to look at
tree removal for the future. -While you, if you want to say, well
some unapproved work had already been done, it may not have been
possible to recognize i~ that's fine. I don't know -- I don't want
to go into question whether unapproved work had been done or not.
It was certainly clear that we didn't see any and we didn't
recognize it. Then the last sentence, Councilmember Anderson
expressed concern to the City Manager about the extent of the
damage, about the extent of the future tree removal, I want that
sentence changed because that was what I brought up to the City
Manager, but I also brought it up in a public hearing, meeting
rather, subsequent to this visit. We together, Marty and I, both
asked the City Manager and the staff to attempt to reroute the road
or to reconfigure the road in some fashion because this, these
trees were supposed to be removed in order to put a road through.
We asked to see if that road could be reconfigured so that not as
many trees would have to be removed. And I think it's important
because since we're asking a grand jury to look into "coverups" and
the like, I don't want any implication in here that I knew about
or that Marty Clevenger knew about illegal damage, and either they
didn't report it or covered it up.
Clevenger: Right, I agree with that. That's, that's right.
Anderson: Can you speak louder into the mike here?
Clevenger: Well, we only looked at the trees that were marked with
red indicators and at the retaining, height of the retaining wall.
Anderson: Future ... I don't think they were in yet either.
Clevenger: No they weren't. But at the proposed height of the
retaining walls.
City Council Minutes 24 September 17, 1991
Anderson: Now, my testimony I think was in December and I can't
find the thing just yet.
Kalb: Mr. Mayor, can I (inaudible) a question with the Council?
How do you propose to memorialize the changes that you'd like to
see in the document if this document is going to be submitted to
the grand jury and if we have an addendum prepared that the comment
should be on the record, and presumably they should be concurred
by (inaudible) the Council making them. As you go through the
changes in documents, this is the one Councilmember Anderson
described to you, the Council should indicate its concurrence that
change be made so that the record reflects it and the committee
members . ..
Kohler: Right.
(male): ... staff can later go back and prepare an
addendum.
Caldwell: Excuse me, this is a report from a committee however,
so if these are the changes.to be made by the majority of the
Council, then in the addendum it should make that clear that there
is that concurrence or no vote or whatever taken from the
committee. If they'd like to committee to reconvene and discuss
these issues, I'm sure we can do that but I think we should be
careful about that.
Clevenger: I think we can certainly make our statements and have
that attached.
Monia: I was going to suggest that. I thought the easiest thing
to do is, so that we don't have to worry about somebody else
documenting it again, is perhaps if we have an issue to write a
letter saying, you know, clarify what you understood. And then
we'll just make it part of the documentation.
Anderson: Well, I'm going to go further with it. Maybe we should
have a verbatim of this added and a copy of the tape ...
Peacock: We will have a verbatim of this, ~e will have a verbatim
of the last one, we will have a verbatim of the first one, but I
think that anybody on the City Council can then go through those
entire sets of minutes and if there are specific things that you
wish to have noted in terms of correcting the record, then that can
be put into an addendum.
Anderson: O.K. On Marty Clevenger's testimony of November 8, the
very first line, it says, Marty and Karen visited the site, this
is her testimony, with a group of homeowners sometime in 1988 after
the trees were marked with red strings. I think we weren't too
clear on the date, but I don't think that's really important. It
says note that this differs from other testimony. Now, it, I think
it should be more specific as to what the difference is.
Kalb: It was the color that was different, it was just a note of
the color of the taggings because we had said in testimony that
there was both red tagging and white tagging of trees.
Anderson: Except it doesn't differ from all the testimony, because
the very first paragraph of my testimony says that the trees were
red-tagged.
Kalb: I understand. But it was different than other testimony.
It didn't say it was different than all the other testimony.
Anderson: The implication here is somehow it's the only one that's
different, which to me feels like Marty's not telling the truth.
I think it's really important to avoid that kind of implication,
so I think it would be better if it had exactly what it is that you
truly mean specifically. And in my testimony, first of all, let
City Council Minutes 25 September 17, 1991
me see here, I think there has to be a recognition that first of
all you didn't take, you were basing it on notes that you took and
that~in addition the questions that were asked, because that was
the procedure as I recall, the committee was that you came in and
you were asked questions and you tried to elaborate on whatever it
was you thought the committee was looking for. But these questions
are not written down, and so sometimes the answers stated alone
without the question seem a little strange.
Kohler: Mrs. Anderson, would it be better if we came up with a
written statement ...
(inaudible -- several voices)
Anderson: Well, I didn't have all that many things. ExCept that
I, this is the second time at least that I have talked about this
July 4 issue and I wanted to make that one clear.
Kohler: Well, since now that's all going on record on the tape,
so if you want to do something additional, or ...
Anderson: No, no, that's ...
Kohler: Marty, is that O.K. with you in general? (inaudible) for
you to agree with it?
Clevenger: Yes I do.
Kohler: Anybody else?
Clevenger: So now I can ...
Monia: No I don't, that to me is not the issue of the whole
subject matter.
Kohler: Anybody from the committee or the public or (inaudible)
before we go on to the recommendations?
Kalb: I have just one comment. I recognize the sensitivity of the
people involved to the accuracy of individual statements and so on,
but there is one thing I would recommend to the committee. In the
process of generating this report, the committee came to the
conclusions that there were problems in the approval of the final
map. Our feeling was that there were possibly violations of the
State Map Act. There were documents that never got reproduced,
just disappeared. There were a whole list of major items. I can't
help but having the feeling that in some of things we're straining
at gnats and swallowing elephants in terms of the focus in the
detail we're dealing with. I don't know if the City Council
intends to address those issues or wait and hope that the grand
jury will go further with it. Probably the latter. But I sure
hope we don't get all hung up, you know out of hundreds of pages
of testimony and work and stuff, on the words of a couple of
sentences while these other things go just piddling along down the
street. With that said, I'll be quiet.
Monia: There is one, since we're just about ready to go on to the
recommendations because you've talked about inferences, Karen. I'd
like to have an explanation because there has been an allegation
made that I have accused the City Council of trying to cover up
this Cocciardi mess. And there was a press release issued by you
and Marty in, I guess, in concurrence with Stutz or (inaudible).
Stutz doesn't agree with this statement because I called him today
about this paragraph. He said no, I don't think that's a correct
statement. In your press release that you issued last week, I
quote "the Council majority takes exception to Mr. Monia's
accusation of a coverup when the Council voted unanimously to
forward the Tract 7770 investigative committee report to the grand
jury." I'd like to know when I ever accused the City Council of
a coverup. This is your press release, not mine, and it says that.
City Council Minutes 26 September 17, 1991
And for clearing up the issue I would like to know why some of the
Councilmembers would say such a thing.
Clevenger: I think we made a mistake because we were looking at
the paper,,and Mr. Schwartz does say that in here, in the paper,
and ...
Monia: Mr. Schwartz doesn't say that. You're saying I said that.
Clevenger: I know that...
Anderson: There was something about covering, when you, when
there was a description of your walking out of the meeting...
Clevenger: ...after to investigate (inaudible), that's a
different item but I think it is confusing, and I do believe an
apology, that was Mr. Schwartz that said that.
Monia: Well I know, but this is a press release that goes out
under the City of Saratoga ...
Clevenger: I thought it was under our name, not the City of
Saratoga.
Monia: Well we can debate that later, but I guess my point is
this. It is a serious accusation. It is one that I have never
made. We talked about getting the record straight, and I'd like
to know how and why something like this would even be concocted,
· especially when it had been reviewed by the City Attorney.
Clevenger: Well, we based it on the article which was in the
paper, so the City Attorney wouldn't have any knowledge of the
article that we were responding to. But I think that ...
Anderson: I think that's why I think we probably did screw up and
I apologize.
Clevenger: We made a mistake.
Anderson: It was definitely Mr. Schwartz, though.
Clevenger: Yeah, ...
Monia: It's not that I, I didn't mischaracterize it. You didn't
agree with that statement.
Stutzman: That's correct. I did not recall your having made that
comment. When I read the newspaper too, I so closely associate you
and Jeff Schwartz together that I guess that I assumed that he was
reflecting your sentiments on that as well. The two of you seem
to speak with one voice so frequently and sometimes, to my great
disconcern, that I guess I associate the two of you together.
Monia: Alright.
Stutzman: And I regret that the inference was there that I
condoned what you said, because in reality I didn't recall your
saying that specifically.
Monia: Well, since it was a ...
Stutzman: And I don't know what else it is you expect us to do
now.
Monia: Well, I would like for you to at least write to whoever you
sent the press release to and say that you've made an error. I
think that's reasonable. That's not unreasonable. I understand
it went to the press. It's a pretty strong allegation and I never
said that. But I guess the other point is that when I look at the
document that was sent out to the press, and since it was sent out
City Council Minutes 27 September 17, 1991
over the City of Saratoga fax and the very top of the page starts
off with the City of Saratoga, because of the way the fax machine
is p~inted, when the reporter read this to me he thought this was
an official document.
Clevenger: Well, he should have read it more carefully. It
plainly says that it's a ...
Monia: Well, I understand that.
Clevenger: ... it's a statement from two Councilmembers, and I
believe Councilmember doing City business is, should be able to use
the City fax machine. Is that what you're complaining about?
Monia: No, my complaint is ...
Clevenger: How much did that cost?
Monia: Wait a minute, it's not a question of that. What I'm
trying to get to the point in rather than what we normally do when
we make a press release which goes to Mr. Peacock or the Mayor or
when we have some kind of announcement or a strong letter we want
to write for a position that we take, we normally ask all the
Councilmembers to have some input. I think if we would have asked
all the Councilmembers, I would have brought that up and it
wouldn't have been incorrect.
Clevenger: I believe that is inappropriate~for this discussion and
it is not an agendized item.
Monia: No, I'm trying to clear this issue up, Marty, because ...
Clevenger: Well I believe we should clear this up under an
agendized item. This has nothing to do with the Cocciardi report.
Monia: Well, if this item was removed out there I probably
wouldn't have any quarrel with it.
(inaudible -- several voices)
Monia: I'll bring it back up when the City Attorney's report is
on tomorrow's agenda.
Kohler: Mrs. Clevenger, I agree with you. It's not agendized.
I have something to say about it too, but I will not do it now.
I personally didn't, I see a press release, I never knew about it.
It looks to be a letter from you ...
Clevenger: Well, I will point out Mr. Kohler that you and Mr.
Monia had both left the meeting when we talked about a press
release needed to be made. I think if you decide both of you to
leave the meeting ...
Kohler: The meeting was over when I left.
Clevenger: No it was not.
Kohler: The meeting was over with.
Stutzman: You stomped out and left us there with (inaudible --
several voices)
Monia: Was this an item that was discussed after we left?
Anderson: Actually, the press release wasn't. You and I talked
about the press release after ...
(inaudible -- several voices)
Anderson: This was a press release that Marty and I put out
City Council Minutes 28 September 17, 1991
together. It was not a-City press release. It didn't require
everybody. Everytime you talk to the Mercury, which you frequently
do apparently, you don't have to talk to us first obviously.
Monia: At least I tell them the truth.
Anderson: O.K. Right. Sometimes.
Monia: I'd just like to know one thing. And that is, was this
discussed at the meeting or was it, you know did you subsequently
decide to do this, I mean, why weren't we in the loop?
Clevenger: It was not discussed at the meeting, but if you want
to stay in the loop you need ~o stay until the end of all the
meetings because you don't know what happened after you left..
Monia: That's correct, I don't know. But I would like to know why
we weren't at least conferred with for a press release concerning
City business. I think it's good for us to do that. We wouldn't
have made this tragic error.
Kohler: We will have a 5 minute break and we will go to the
recommendations after. These minutes will be adopted and then ...
Clevenger: We've been working on that for quite a while.
Caldwell: Steve isn't here, but I know that that is something that
is supposed to be coming up to the Planning'Commission. We haven't
reviewed it yet, so it's work in progress really for the Planning
Commission. (inaudible) of work that you all are doing. So, I
can't speak to what it is, but I know that's something's coming.
Kohler: O.K. Yes Steve?
Emslie: What it is is the complete topographic map of the City
delineates bridge lines, personal bridge lines, breaks the City
down into four categories in terms of (inaudible) and the
surrounding region. What we're doing is computerizing that and
putting it on to the City's base (inaudible) has every lot in the
City shown on it. So we will be able to identify every piece of
property whether or not (inaudible) of significance.,
Kohler: O.K., so that's in progress. How much time do you think
Emslie: Well, we kind of run into a snag. We have the base map
of the City digitized, but it doesn't correspond to the topographic
maps. The more detailed maps we have are the (inaudible) maps, and
they're on a different scale. You can put them together, but there
will be a discrepancy, and if you multiply that over ... it's
important to have each lot very accurate so ...
Kohler: O.K. You will do it. Sounds very good to me. O.K.
Moving on to Item No. 2, any comment about that? Should we review
the City's hillside grading standards and approval procedures? I
have a question on this. It says here, current policy dictates
that landslides are not being repaired. Is that current policy?
Clevenger: They're taken out.
Emslie: That's one of the reasons they're taken out with a
(inaudible) instrument. The idea is that, when the specific plan
is called to be dedicated as open space and left to run their
course, ...
Kohler: Take for instance the Saviano property. There was a
landslide and there was going to be a big repair on it, so that's
not current policy?
Emslie: Well, the reason for that is that it's endangering an
City Council Minutes 29 September 17, 1991
offsite property. If it weren't fixed (inaudible) not a party to
the subdivision would suffer damages to that. That was one of the
issues in citing that, was whether or not that (inaudible)
Kohler: So it has, of course we have to repair. Still. O.K.
Emslie: Right. (inaudible) the property.
Kalb: Mr. Mayor, I don't know that we have as a committee the
information or the ability to judge from what we looked at how
today's current rating standards would have looked if applied to
the same area. In fact, we did not try to make comparison between
the two. I think the main point to note is that, and I think that
almost everyone who went up there and looked at it or stood at the
top and looked further out into some of the other subdivisions and
stuff that had been built out in the valley. Just about everybody
came to this conclusion of, gee look at all this stuff we're
cutting up in the process. Now, all the standards have been
changed since those tracts were approved. That's wonderful. I
don't know whether that really is the case or not.
Caldwell: There are proposals for change~
Kalb: Tomorrow ... O.K.
(inaudible -- several voices)
Kalb: Anyway, I would recommend that you~ take a (inaudible) on
those things so that you have an opportunity to improve on it.
Perlin: Can I make one point? Maybe Steve can correct me if I'm
wrong, but recommendations 1 and 2 kind of conflict with one
another. Because when you start moving off of the ridge lines or
the, I'll just use the term ridge lines to encompass all ridges,
whether or not they're major, minor, or not even defined, but when
you start running off of the tops of the hills and down onto the
sloped portions of the lots that are up in the hills, you are going
to increase the amount of grading that is going to have to take
place in order to develop these lots. You sort of have to make a
balance between the two. It's not possible to achieve both in
their entirety.
Caldwell: We addressed that actually, and the audience will see
tomorrow night and Steve can point that out, but we had a lot of
deliberations on that balance that has to be struck. Eventually
we've got a benchmark for the amount of grading that ideally you
don't want to surpass. Then there are that number of criteria that
the Planning Commission and the City Council can look to and
indicators that maybe additional grading is warranted in certain
cases to get homes off the ridge lines and off (inaudible) really
prominent sites.
Kohler: That is ... any more comments? O.K., we move to item 3.
Clevenger: Wait, I have one thing. On 1 and 2, instead of the
response, would it be better to say that this issue is currently
being addressed or should we keep what we have here.
Caldwell: Well I think that you know, whatever, the formal
response from staff, and well from me as a Planning Commissioner,
is that the design review ordinances coming before you does try to
address 1 and 2. It really does. So that should be part of the
response.
Clevenger: O.K. I think so too. So that we are in (inaudible)
progress.
Kohler: O.K. Anything else Mrs. Caldwell?
Caldwell: Well, on number 2, I think it is important also to say
City Council Minutes 30 September 17, 1991.
that we-started working on these changes very quickly after the
Cocciardi devastation was brought to our attention. This design
review ordinance is something that o..
Anderson: No, but number 2 is not design review. Number 2 says
a review of the City's hillside grading standards and approval
procedures.
Caldwell: Yeah, that's part of this. I'm just lumping this all
together as part of the whole ordinance. We include all ...
Anderson: Right, but those issues about hillside grading standards
and approval' procedures, we started working on that and the City
staff came back to us with, wha~ was it, something like 21 or 22
suggestions, within a month or so of the Cocciardi event. So I
think it's certainly fair to say that we've been not only working
on this recently, but we've been working on this for a period of
time and some of these changes have already taken place.
Kalb: Mr. Mayor ...
Kohler: Yes, Jeff.
Monia: My recollection of that issue ... there were some
suggestions and there were some good things that had been
implemented after the November 2 date, but specific to this, Karen,
I think what stimulated this was the joint session meeting. We had
a complaint in which we, one of the 'main topics for your
recollection was what to do with two stories. Then we gave him a
whole bunch. If you go back to an October meeting we have, I think
it was an October 19 meeting ...
Emslie: October 30.
Monia: October 30 meeting. At that particular meeting we
specifically gave the instructions last year to do these kinds of
things. And the design review ordinance, by and large what's in
front of us now, came out that it, we as the Council, Steven can
concur, gave a whole list of do these, don't do those, we'd like
a little here, give a little less there, but one of the things we
did say is that we really should start separating flatlands and
hillside standards. One of the problems that kept coming up in the
Cocciardi subcommittee was that it was difficult, and I think
(inaudible) made the point that really got us on target is one of
the problems we had in the City is we tried to apply flatland
standards to development of hillsides and it becomes very
difficult. You're going to keep running into controversy and
difficulties doing that. I know, I think that's where it came
from.
Anderson: O.K. Then on number 2 the word approval is not
referring to grading standards? Is it referring to any kind of
approvals, including design review approvals?
Monia: Where.are you? In the suggestion or the response.
Anderson: I'm on 2, on page 1. There should be a review of the
City's hillside grading standards and approval procedures. Now I
took that to mean approval procedures regarding hillside grading
standards. Am I not correct, or are you trying to say all that all
approvals?
Caldwell: One thing you should keep in mind though, Karen, is that
when we do review design review applications, we're often reviewing
significant gradings and (inaudible) ...
Anderson: Oh, this is true, this is true.
Caldwell: And so, I think that my recollection of the meeting of
this is to encompass as well design review approvals. Obviously
City Council Minutes 31 September 17, 1991
that incorporates grading approvals.
Anderson: I just want to make the point that even the staff, I
don't see this in staff's response, but in fact the impetus for the
changes of grading standards and approval procedures for grading
specifically, I don't, it came before your time I'm afraid Mr.
Monia. It came early in 1990. It did not come as a result of our
combined meeting. That ~roundwork was laid and in fact was
followed by a meetingof our staff and developers who just had a
fit, because the new standards developed by staff were so
incredibly strict that some of them were difficult for them to live
with because of the kinds of things they have to do for their
lenders. At any rate, I just wanted to have it on record that the
City did begin work on those standards almost right away.
Macrae: Before you leave this, have you addressed the problem, you
might have a good plan and all good intentions and then something
goes wrong. What is the penalty? The thing that bothers our
committee is that the penalties set at an earlier time were not
commensurate with the value of properties today, and I'd be unhappy
if you didn't put something in there about penalties for those who
violate ...
Clevenger: I believe we're limited on what we can do. And every
agency that I serve now is frustrated by the fact that we are
limited by the state in what kind of penalties we can impose.
Macrae: I know I can recall a case,'I think over by the
Oddfellows, Mr. Emslie told us about it. The developer came in and
said, by goodness, somebody came in the other night and chainsawed
down a huge tree, what are we going to do about it. And I also
remember with some irritation, there was a big redwood tree in a
development in town.
Clevenger: Yes, we got paid for that.
Anderson: A lot. But that was because the redwood tree has a
value that's put upon it by these agricul ... these tree types.
Macrae: But what I'm saying is that sometimes the agencies have
not the machinery in place to take care of an aggressive builder
or developer who, and I can understand they want to go as far as
they can go, but it seems that in the public interest there ought
to be some limitation, some tool that can be used to say enough's
enough.
Anderson: Well, I think this is something where we should be an
advocacy group to the state to try to get these changes made,
because I know at the time of the Cocciardi incident I was visiting
in southern California and reading in the newspapers down there
that the same kinds of things were happening with the developers
in southern California because the fines were so low that they
could factor it into the cost of doing business. It was no cost
to them compared to the benefit,'and those jurisdiction were having
the same exact problem that we were having, and that is that we
were all restricted to fines that were way too low relative to the
value of what had been done.
Macrae: Besides the fine, we can also prohibit them from doing
work. All I'm saying is to review the policy maybe as far as ...
Anderson: Oh it did that, it did stop work.
Macrae: As you put it, it's nice to have a plan but that there's
no teeth in it. It's not worth it. That's the only part that ...
Anderson: Oh we agree with you. We were very frustrated.
Caldwell: It's not that (inaudible -- several voices). We're
serious about the implementation on this.
City'Council Minutes 32 September 17, 1991
Macrae: The two go hand in hand and I don't think ...
Monia: The problem that, on which we can pull their license, I
agree, I think we should have some kind of stronger plan than
fines. Otherwise, what you could end up with is exactly what you
had with the Tract 7770, and we didn't even have a licensed
builder, I mean a contractor, here. He didn't have a City permit.
Perlin: He didn't have a City business license.
Monia: Right, he didn't have a City business license. So what I'm
· saying is that even though you might pull the guy's business
license, I mean there are times where its irrelevant. We're going
to do it anyway, so again just because you have some of these
things Sometimes not in place, I mean either you get a permit or
you didn't get a permit. He participated in some meetings with
some of the officials and I guess they never checked, so some of
these things fall through the cracks.
Macrae: Well, that's true, but all I'm making the point, let's not
(inaudible -- several voices)
Monia: Sure, you're right.
Kohler: O.K., your point is well taken. Just the mere fact that
Karen brings out in southern California they have little penalty
and we have maybe a better penalty ...
Anderson: No, no, it's the same. Same situation, same control
(inaudible -- several voices)
Kohler: Why are you saying that they get away with little or no
penalty?
Anderson: Same as here. Our penalty is low too.
Monia: Well, I think Karen can straighten it out.
Peacock: I think the City Attorney can speak to this issue better
than I can, but it really boils down to the issue of who has the
authority to oppose a fine in the absence of, and something that's
punitive, and whether or not cities can get punitive damages and
they can do it outside of the court or process. I think that the
Councilmembers who were on the Council at the time recall that the
staff was looking feverishly through the California Environmental
Quality Act and the (inaudible) guidelines and everything else
trying to find penalties for violation of environmental documents.
They simply don't exist for this kind of·a situation. All of the
enforcement mechanisms and the penalties and everything else are
aimed at public agencies who do not require environmental
documents, not for someone who goes out and does something entirely
outside of the review process and therefore is outside of the law.
That to me is a real troubling aspect of this current state of the
state's legislation, but there it is.
Caldwell: I think we wrote a letter to the state, didn't we, at
the time.
Anderson: I think we wrote to everybody.
Peacock: But I think that until there is some, there are, to me
it's kind of strange because there are federal and state statutes
which have, as you know, all sorts of penalties attached to them
for hazardous ... But in many of the cases where you are getting
these big fines and everything, it's because the state law has
authorized that and there's a state agency that oversees that and
they go through some administrative process. I think they end up
in court regardless, and the award is either from the court or from
the jury. It isn't a matter that they slap somebody with a million
City Council Minutes 33 September 17, 1991
dollar fine, the City Council slaps somebody with a million dollar
fine and that's the end of it.
Monia: It's not even the end of it if you get a jury award.
(male): Let me just ask (inaudible) it is my
understanding that as a result of the lawsuits surrounding this
issue, you will have a very definitive response for the City
Council when it comes to your discretion in setting penalties,
obtaining (inaudible), prosecuting (inaudible) violations, we'll
be able to (inaudible) legislative decisions in the future
(inaudible). There are restrictions.
Kohler: Thank you. Let's move on. (inaudible)
Clevenger: On.number 3, there doesn't seem to be, we accept that
as a good suggestion. Go on to 4.
Monia: Yeah, I just want to make a point on number 3. I think
you're going to find most of that's in our (inaudible) on the City
agenda tomorrow night, so (audible) on that one quite well.
Caldwell: And the design review.
Monia: And the design review. Right. That's what we mentioned
before.
Kohler: O.K. Moving on to (inaudible) number 4. Let's quickly
read it before comment because ... city ordinances should be
modified to require full geologic review, including the foundation
of any corrective measures required before tentative map approval.
These ordinances should be uniformly enforced. So, (inaudible),
do we agree with the ...
Peacock: I think the Council has just recently discussed that at
the last study session and there are changes, administrative
changes, requiring fuller geotechnical review at the tentative map
stage and everything has to be comprehensive before the tentative
map gets heard before the Planning Commission.
Monia: I have a question about that. Larry, are you planning
to adopt this for the entire City, I mean this whole geologic study
applied to the whole, geotechnical study rather, applied to the
whole City.
Peacock: It's really going to be on a case-by-case basis based
upon a preliminary ... as to whether or not there appear to be ...
(inaudible -- several voices)
Perlin: You can, but I think it would be wise to have it apply to
all ...
Monia: That's what I mean, yeah. I just wasn't sure that's what
we're talking about.
Peacock: Well, the issue is really to the extent, what extent,
once you do a preliminary given the geotechnical mapping the City
has done, whether or not any particular site might be shown as a
candidate site in terms of problems in which case a much more
detailed geotechnical review would be required at the staff level
before it gets to tentative map.
Perlin: The map act grants local agencies the power to do this
very sort of thing, and it allows cities to get in depth in terms
of the amount of review that is required.
Kohler: O.K., thank you. Number 5. City should not allow
photograph (inaudible) unless subsequent field verification
(inaudible).
City Council Minutes 34 September 17, 1991
Peacock: We find a practical problem there, becausethe issue then
becomes one of how do you get high confirmation verification on the
ground on a site that's heavily vegetated. The surveyors won't
really go on the site if you do the field verification on the
ground unless the site's pretty much cleared.
(inaudible)
Kalb: Hasn't that been somewhat mitigated with recent technology
that people are using for surveying where they factor in the
position, altitude, and location down to within matters of inches.
Peacock: Well, the biggest problem that you face is the ...
Kalb: (inaudible) right on the ground.
Peacock: No, but the biggest problem that you have is when a site
is heavily covered with vegetation there may very well be changes
in topography which simply are not apparent by an aerial survey.
Kalb: No, that we understood.
Peacock: Because it's obscured. And I don't know whether or not
anyone's developed techniques using infrared or whatever that would
penetrate the ...
Anderson: Oh, my husband would love to sell you some techniques
that use infrared.
Kalb: Can't you just go on site with that? I mean and do onsite
survey with that?
Perlin: Yeah you can. I think, you know, I think the ...
Peacock: Well, all we're pointing out, all we're trying to point
out to the City Council is if that's what you're going to end up
doing there is a high probability that there's going to be a
significant request for brush clearance and so forth prior to
(inaudible) map approval in order to be able to accomplish this on
the ground verification. So that should be understood that they
to take place in some respect, and that that should be something
you understand is going to happen because otherwise you're not
going to be able to get your verification to the degree that you're
expecting to have the verification done. Because these guys just
won't go through, they won't go tromping through the poison ivy or
the poison oak and other stuff. They want the site cleared.
Caldwell: Our recommendation went not only to the topographic
issues and geologic issues, but also to the issue of identification
of trees. One of the problems that we (inaudible) from the maps
that were generated from this tract was that they didn't catch all
the trees, and there's a subsidiary issue of the extent of work and
(inaudible). But I think that for an arborist to enter a field and
to verify a number of trees or growths or areas of significant
vegetation will not require brush removal. There have been a lot
of instances where ...
Peacock: Yeah, but that's item 6, not item 5.
Caldwell: Yeah, but what I wanted to say is that that is part of
this comment though that was made by, and it is true that it is
item 6 but I think that the whole issue of the number of trees to
be removed on this tract did motivate us to make this comment
because many times the statement was made to us, well, you know,
we were relying on the (inaudible) of these maps for the number of
trees so we couldn't be accurate, so anyway that's ...
Monia: O.K. What we want to do with this, I guess, is that I
think you've got two issues. One is if you don't use the fly-
City Council Minutes 35 September 17, 1991
over, it's going to require a lot more I guess initial clearing of
scrub thereto get accuracy. If you do allow fly-over, we probably
get less disturbance but it not as accurate. I'm not sure which
is best.
Perlin: Again, I think it's part of the balance there. The aerial
survey is fairly accurate. With the technology that does exist
today these (inaudible) outfits can produce a very accurate, down
to probably 1/2 foot, topographic maps, where field verifications
required is where the ground coveris obscured. However, there are
outfits that specialize in producing these maps during times when
tree cover is at a minimum, and they will have this reference dated
that they will then sell to engineering firms and public agencies
and developers and the like. I think, you know, if it would depend
on where the development on the site is going to be proposed, we
would hope that in most instances ...
Peacock: Which speaks for item 6 in terms of identifying the area
that's supposed to be disturbed by the development, and ...
Perlin: We would hope that development would not occur in the
middle of a dense growth of trees so that you wouldn't have to wipe
out all the trees in order to build there. You hopefully wouldn't
need topo information in those areas. There's also a comment on
the surveyors and engineers to be as accurate as possible, because
if they're inaccurate when the contractor gets out there and starts
billing the owners for considerably more grading that's involved,
the owner is going to turn around and go after his engineers.
Monia: (inaudible) suggestion. I think one of the things ... you
know, we don't deal with the Council on a kind of, this is more of
a technical issue on what's the best process and it really isn't
a better process for the Planning Commission. I'm not trying to
defer this off, to make it one of the issues. What you should get
is a response from the Planning Commission. What do they think is
more helpful. What do they think is best. They're the ones that
by and large deal with probably 9 out of 10 of these issues. You
know what I mean? Does anybody agree with that or (inaudible) try
to make a decision on what's best tonight.
Kohler: It might be a combination of two other things or it may
be ... d
Monia: I know, that's what I'm saying. Since they're the body
that has to deal with that all the time and they have to study that
issue, maybe we can get some comments as to what they want.
Peacock: As a practical matter, there have been instances where
that is something the staff has required. The Planning Commission
is going to require verification if there seems to be some
controversy as to how accurate the thing really is. And our
response here was simply, was not to suggest that one way is better
than the other or anything else, but simply to let you know and
understand that the on-ground verification may require some
preapproval kind of brush removal and clearance which you all
understand is going to be ...
Monia: Is this an issue, should we maybe get ...
Kalb: Well, if I might make a suggestion. It may be difficult as
a suggestion to set up any specific rule for all situations. What
may be a better way of dealing with this is in terms of policy
statement or just an overall guidance to the Planning Commission
in terms of the, making sure and taking the appropriate actions,
to make sure that the topography and the trees, etc. I doubt if
you're going to be able to specify the right alternative for every
situation. There may be a way of expressing for future generations
the concern about getting those things accurate and making that
determination at the time. Employ all practical means or whatever
the right findings might be.
City Council Minutes 36 September 17, 1991
Clevenger: I think everybody is in agreement that we need to
tighten this up, and I think maybe we need to make a response that
indicates that feeling better.
Macrae: Yeah, I think that one of the things (inaudible)
discussion on the Lot 7770 is that the, there was an approval by
the Planning Commission of removal of a certain number of trees,
but when they went out to the site, the curvature and the slope was
such that more trees would be removed. That's where some of the
difficulties occurred. A large number of trees removed supposedly,
in good planning are not the plans of good construction and I think
this is really part of the issue. It should be clearly identified
however it's done.
Kohler: (inaudible) and we leave it up to the Planning Commission.
Monia: That makes for its suggestion, what we were meaning to do
is revisit this one and come up with a policy statement on how we
think we're going to handle the, with some flexibility to both
staff and the Planning Commission on what ...
Macrae: Yeah, if you let it ride now, we come to again the same
thing. We should have done something .o.
(male): Right.
Caldwell: My suggestion would be that Larry and'Steve can work on
some kind of policy statement that might be helpful. I don't know,
it sounds to me that it isn't, it can't be a "hard and fast rule"
that (inaudible) on a site by site basis to see what's appropriate
or it needs further definition. I think that with respect to the
trees, 6 does go to that a little more clearly~ You can be hard
and fast about tree identification. That's pretty straightforward.
But as to the topographic and geological issues, as a Planning
Commissioner I'm interested in what Larry and Steve have to say
about it.
Kohler: O.K. Why don't we refer it to the staff?
Peacock: O.K. Refer it to the staff.
Clevenger: O.K. so that's 5 we're going to refer to the staff?
Peacock: For a policy which would guide the staff on applying on-
ground verification of topographic information.
Kohler: O.K. item number 6 is marking of, identification of the
trees. Any comments about that?
Clevenger: I thought that this was one of the things we addressed
a few months after the problem and tha~ now people have to build
things around trees to save them. Isn't that true?
Caldwell: That was one of the items that was discussed during that
workshop, the development workshop. And I remember the tree issue
was a hotly debated one because I was part of that debate. It's
also one we're now working on, I think in conjunction with the new
ordinance that will be coming to you probably within the year, and
it's something that Steve and I and (inaudible) and some others are
working on right now to really tighten it up a little bit more than
what we currently have in terms of tree identification and
protection and the development process. So ...
Clevenger: Couldn't we just add something to the end that says
that the staff and Commissioners are working on a process to
tighten up this tree business?
Caldwell: A lot of that we've just been doing within the last 6
months. We've been doing as a Commission or we have been
City Council Minutes 37 September 17, 1991
incorporating a lot of the ideas we have been generating in the
course of developing this ordinance into our tentative map
positions, things of that nature, so we've been trying to make
changes as we go on with the decisions that were made. But I think
that the ordinance will really be a nice product~
Clevenger: So in your opinion if we put in the staff response plus
what's going on with the Planning Commission, will that address
item 67 O.K.
Monia: I just have one more thing to say. We've just talked about
this punitive remedy. I really don't know what our options are,
but one of the difficult things for us to do is going to be to try
to protect every tree in this tgwn. There aren't enough spies in
the sky sort of thimg. I don't.know what we can do, but if perhaps
Council can come back and give us some really good suggestions on
how we can stop that, because in the last year we've had a couple
cases where trees have come down and we don't have any (inaudible -
- several voices) In San Marcos, we've had some people trimming
other peopte's trees. It goes on and on. So we really need to try
to do something. I don't know what the bite is, whether its
dollars and cents or whether or not we just have a process that
gets people tied up in so much legal ...
Kohler: Mr. Monia, I say that the current assessment, the current
policy does not require identification of trees outside the area
of work. I think it should also apply to that (inaudible). Take
for instance Mr. Cocciardi's development. There was the Williamson
Act land. If we would have had all those trees catalogued and
marked, (inaudible) and numbered then maybe that wouldn't have
happened. So I think on adjacent lots it wouldn't hurt to mark
those trees too. That's my opinion.
Monia: I don't think we have any legal way to do that.
(inaudible -- several voices)
Monia: You're developing your property it's--well I mean as a
policy. (inaudible) policy that should try to do that. It would
be awful hard for staff and whoever else is going out there to mark
the trees and walking up my property. I might not like you putting
your red and white ribbons around my trees.
Kohler: In many cases you don't even know the property borders,
yOU know. As a matter of fact, the trees, you know, where do we
start or stop.
Monia: (inaudible) where the dogs bite and the guns go off I
guess.
Perlin: I guess there's two things I can suggest. One is
something that we're arguing now is requiring the limits of the
grading to be clearly marked in the field prior to the, at the time
that we can start, the inspector, the engineering inspector goes
out to meet with the contractor and soil engineer to review the job
before they get started. The other thing we could probably
consider would be some sort of bonding mechanism where we require
based on a number of trees that are catalogued on a property
require the developer or builder to post a bond with the City to
ensure preservation of those trees and if there is damage at the
end of the job, the arborist can go out and value what that damage
is, and we can draw down off the bond.
Caldwell: I'm glad you mentioned that because that's part of our
draft ordinance.
Clevenger: Well it sounds to me like this is being taken ...
Caldwell: Can we do'that right no~?
City Council Minutes 38 September 17, 1991
Perlin: I know other cities do that, so I'm sure, you know I don't
see any ...
Peacock: Once again, that's just an administrative policy that if
the Planning Commission were to require that as a condition of the
subdivision or design review or whatever, it clearly is
implementable. Just as requiring them to make improvements to
streets or storm drains or whatever.
Caldwell: Well, can we talk about that just a little bit? Is
there direction from the Council that they'd like to see us move
in that direction on a policy level (inaudible) in view of the tree
ordinance? That would be in direct ...
Kohler: O.K. item number 7.
Clevenger: It sounds like this has been taken care of.
Monia: It's being worked on.
Kohler: Item number 8, City's (inaudible) by significant amount
of bonding in situations,where substantial environmental damage can
be envisioned.
Clevenger: Isn't this what's on the agenda tomorrow night?
Perlin: Not really.
Peacock: I guess the problem that we all had in trying to deal
with this thing is to say that we can envision substantial
environmental damage, because that's not the issue. The issue is,
if somebody has an EIR it says what mitigation measures they're
supposed to be doing to prevent environmental damage. And so the
idea that there is environmental damage that's going to be created
that's unmitigated, how do you bond for that? So I wasn't, none
of us were really clear what the committee was attempting to
communicate here because we weren't sure, there is the mechanism
of the mitigation monitoring agreement that says, O.K., these are
all the conditions you have to follow in developing the property
because they were developed as conditions of the EIR, as mitigation
measures. And we can say alright, all that work is valued at X
number of dollars and we require you to bond for that but I don't
know how, this is like an insurance policy rather than anything
else. It's like an errors and omissions policy or something like
that. Mike is looking into whether or not we can require those
things of contractors just as we require them of contractors who
work for the City on City jobs. Now I think our conclusion is that
we can do that.
Kalb: That may be a more effective way of dealing with that. I
think I can express clearly what the committee had in mind, which
was making darn sure we had enough money available and enough
recourse to be able to fix the problems if they do occur. And then
(inaudible). And maybe the second method is a better one.
Kohler: O.K., I think that with reference to item number 9, City
should require any insurance company providing bonding meet some
minimum general acceptance and investigate (inaudible)
Peacock: We do now have the latest U.S. Treasury list of approved
companies for bonding in the United States and every state in which
they are licensed to be bonded. Mike has a copy and Larry has a
copy. So, unless they are qualified by the Treasury Department we
will not allow them to be used. Unless they are, well right now
the ordinance says that they have to be in business in the state
of California, which the Treasury Department report indicates which
states they're licensed to do business in.
Monia: So this one's being implemented?
City Council Minutes 39 September 17, 1991
Peacock: Yes.
Kalb~ And you're going to adopt some basis level, some minimum
level of creditworthiness or something like that?
Peacock: Well, the opinion here is that if the United States
Treasury Department has listed this as a company that is approved
by the federal government for that purpose, I don't know what else
we can do ...
Kalb: Do they rate them? Or they don't ...
Monia: It's sort of like bondsmen, AAA bonds, AA bonds.
Peacock: Insurance companies are rated based upon the amount of
assets and reserves and insurance in force and those kinds of
things. Depending upon what their assets are they can have the
best insurance of 1, 2, 3, 4, up to 12, 12 being the highest, if
I remember my best insurance (inaudible) correctly. Most of the
companies listed here are major insurance companies in this
country. Aetna Casualty, so forth and so on. They write all sorts
of ...
Monia: Can we have, can I have staff get back and perhaps give
us a little more detailed understanding of that. Maybe the Council
can then say well, maybe we want only to deal with 6 through 12,
or 5 through 12, not all look that qualified. I think that's
reasonable even when we invest money. There (inaudible). You know
we invest in certain institutions that have higher ratings than
others, and it's for the benefit and protection of ...
Peacock: Well we limit our investments to institutions that have
shown profitability for at least the last three years. If they
have shown any loss at all ...
Monia: Now all of the institutions by government standards are
approved to operate.
Peacock: Ha, ha.
Monia: Ha, ha, right. That's the problem. O.K., maybe we can
come back with that and maybe the Council can set up a firm policy.
We don't have to limit it too much because there's probably a large
selection of companies that sell ...
Kohler: O.K. Item number 10. This is something similar we are
going to talk about (inaudible). However, this is more serious as
far as all the improvements being completed or public works and
infrastructure improvements. And I think it's a good idea.
Perlin: I think we need to discuss this tomorrow night. I don't
think we've got to get into it too much tonight.
Perlin: Well, I believe we've'Come up with an ordinance that the
development community as far as we (inaudible) our meetings with
them has found to be acceptable and a method of reducing it, so
they don't have a real problem with that.
Kohler: O.K. We'd like. a specific timeline criteria (inaudible)
extension applications (inaudible -- several voices)
Caldwell: Oh, can I provide a little verification here? Our
comment at the end, "In such situations the City might wish to
consider providing some adjustment to fees." I believe that that
adjustment we're referring to would be downward adjustment in a
situation where tentative map extension was denied for certain
reasons like the City ordinances and policies have changed, we
can't, in terms of the subdivision, the terms of the current
policy, the denial for that and other reasons, then it might make
sense to give the applicant a break on the application fee for a
City Council Minutes 40 September 17, 1991
new tentative map. I think that is what the suggestion meant
anyways.
Monia: And that's to entice them to come back in with a new
application.
Caldwell: Right. As if $300.00 is going to make a big difference
to a developer who's dealing in millions.
Perlin: One other point I would make on that, though. Most of
the, if the tentative map lapses, most of the fees are refunded
with the exception of the application fees. If a new map
applicationis then submitted, I'm sure they want to adjust fees
downward when we're trying to recover our costs for processing the
new application. You have to process it just as though it were
a new application, whether we've seen it before or not. I think
we want to make sure we at least recover our costs.
Kalb: We weren't suggesting you go below the costs.
Peacock: Yeah, this is based upon costs and I think Larry's point
is well taken. Certainly if you were to examine this from a
standpoint of reason for denial of an extension typically the
reason for denial or extension is because there have been
substantive changes in the City's ordinances. This guy's going to
have to come back in and start all over, and he can't just resubmit
the same map. He's going to have to redo a different map. We're
going to have to route it to Health, to Fire, to County, to
Sanitation, to whomever, we have to go through the whole process
at the staff level of reevaluating this new tentative map and our
standards maybe have changed in things like street widths, pavement
structure sections, all sorts of things, easements, dedications,
and so forth. So I don't see where there's going to be any "cost
savings" from the staff work standpoint that would indicate that
we ought to be giving somebody a cost break on this kind of thing.
Monia: I don't think this is an issue of costs. When you're
dealing with millions of dollars worth of development, $300.00 one
way or the other isn't ... and when you reduce it to the $200.00,
so then ...
Peacock: Well, this is an application. As we cited here the
application fee for an extension is $334.00. The application fee
for a new tentative map is substantially higher than that but it
also depends on the number of lots, because it's a per lot type of
thing. Frankly, it's set by the Map Act. We don't have a lot of
choice in terms of jacking it up or reducing it.
Kohler: O.K. I think we can move on. Thank you. Number 12 is
taken care of (inaudible). Number 13, completeness letter. Any
comments on that one? Not issue a completeness letter.
Caldwell: 'I have a comment on that one. Given what staff has
said, and it's true there are specific requirements in the
ordinance. There are requirements that must be contained in the
tentative map application. What I see as a Planning Commissioner,
there are instances where a completeness, "completeness letter"
will go out but it will also say you should also submit to us the
following information which in fact are items that should have been
submitted as part of the application so, part of the point here is
that let's get it complete before we send a completeness letter.
Anderson: Say it's complete.
Caldwell: And before the timeclock starts running on the City and
the public. It's a public issue too, because you want to give the
public the benefit of all the information as early as possible in
the process.
Peacock: So you are suggesting that there be no conditional
City Council Minutes 41 September 17, 1991
completeness letters?
Cald~ell: Right, that's really the big issue.
Peacock: I didn't know that the staff was doing that. It
certainly would not be something I would do though.
Caldwell: I've seen it, with the Perry and Jones development it
happened. I brought it to the staff's attention. It wasn't
significant enough to move any further than that. But I thought
it was an important issue, and I think that as a Planning
Commissioner there are times when we are looking at a tentative
map, and all the trees aren't designated, and you say, well
goddammit, where are all, why aren't all the trees designated?
Here it is before us, we're taking this very seriously at a public
hearing level, and why isn't all the information in front of us.
So it goes to those issues existing wells, there are a lot of times
we talk about are all the wells designated or not, and that's item
o of the subdivision tentative map application requirement
provision. So, it's sort of a matter of being real serious about.
Kohler: O.K., thank you for that explanation. Do we agree with
the comments?
Monia: I have a question for staff, for Steve. I assume we have
a checkoff list, and maybe we're off a couple of those items and
I guess there are a few things (inaudible) a checkoff list almost
address all of those, especially if they come up as an unusual one
they are added to the list. Eventually, you would think it would
be all-encompassing.
Emslie: Well, yes, definitely there's some in issue. (inaudible)
the checkoff list something is real obvious. Like (inaudible)
Monia: Well, that's one you could put in a, applicable or not.
Emslie: Right, well that's ...
Monia: But in the other case, what I think she was saying was that
we write a letter saying it's complete, but now we need all this
other information. I think that's the issue.
Emslie: Under the permit streamlining act, the City is obligated
to respond to an application whether it is complete or not within
30 days. When we give our potential instructions to the applicant,
o.k., you have to do these things in order to make your application
complete, that's really the context of how we respond to
applicants.
Caldwell: In this one instance though, it was a completeness
letter. So I mean it happens and I don't think it should.
Emslie: I don't (inaudible) disputing that. That's the normal
course of ... '
Monia: I would think we would want to have a policy direction to
staff that should be (inaudible)
Peacock: It's like a plan check. I mean, I look at this thing as
the same thing. The guy submits his application, it goes through
plan check if you will. There's a correction thing that comes out
and says o.k., you haven't included this, this and this. The guy
goes away and he does those things, he resubmits it, and then you
say o.k., it's complete. And we're going to issue a permit now.
I don't see this as being any different. It shouldn't be any
different, there's no need for it to be any different.
Monia: Well, since the ...
Peacock: And I think the staff should be resisting pressure from
City Council Minutes 42 September 17, 1991
applicants, but this is a continuing problem in any city I've ever
worked in, whether I was a City Manager or whether I was just
another staff guy, that there's a constant problem of the quality
of submittals that are made by certain applicants. It's a
continuing, it's a battle with them to get them to comply with the
law. And you just simply have to be hard-nosed about it, and I
would hope that the City Council and the Planning Commission will
understand that if we're hard-nosed about it, you're going to hear
complaints about it.
Caldwell: Tha~'s O.K.
(inaudible -- several voices)
Emslie: And, just in closing, once you get the information from
them, it is submitted, it really has to go to the review, you
should have that application complete, you have the information on
it to verify it. Many, many times we get the information from
people and it's incorrect. That really requires us'to complete the
application and then go through an arduous review and the ...
Clevenger: That's important, I think.
Kohler: O.K. Item number 14. Section of neighborhood meetings
or provide notices when large construction projects are to begin.
I think we agree on that. Alright, no comment on that. We'll move
on to number 15.
Clevenger: This has already been implemented.
Kohler: Number 16, any question on 157 Then we'll to 16.
Clevenger: And this has already been implemented. City thinks,
staff thinks ...
Kohler: No comments?
Monia: Do we have a procedure, an actual procedure for the
inspectors. Are we satisfied with that?
Perlin: We have procedures but I will not tell you that they are
down on paper in black and white.
Monia: I think it would be good to do that. I think that as a
follow up that, you know, staff could go back and say ...
Perlin: I agree with you wholeheartedly, and if I can find the
time someday to do this I'd love to do it.
Monia: Well, only because what happens otherwise too, it's very
difficult to try to get all that information all the time to
somebody. You know, especially when you get new people coming in.
You're busy or the staff member's busy, you get somebody, takes
things for granted because you know them, everybody else knows
them, but the new person on the block doesn't and you just,
(inaudible), you didn't take time to write it down so at some point
in time you say ...
Perlin: Well I am trying,
Peacock: I think this is an evolution of the organization. Just
like anything else. You can ask yourself why didn't the City have
written procedures for this stuff in 1957, a year after it was
incorporated. Well, it didn't. How come it didn't have them in
1960 or 1970 or 1980 or 19857
Monia: Right, well, maybe on of the things ... right.
Peacock: We know that it's necessary and it's really a matter of
being able to expend the staff resources to do it.
City Council Minutes 43 September 17, 1991
Monia: Maybe that's what you need to come back with. I would feel
better if staff would say, yes, we want to do it, yes, we think
it's necessary, and let's put it into our program in the next 6
months, or you know, go through that staff utilization timeframe
when we put in the schedule and actually allocate some time.
Perlin: I do want to do it, but, I can tell you right now I do
want to do it.
Kohler: Just tell us how many man hours it will cost and ...
Perlin: One extra staff person and I'll be able to do it in the
next 6 months.
(inaudible -- several months)
Macrae: I think it's worth the time and (inaudible) to (inaudible)
this business that should have been done but wasn't. I think that
was one of the serious matters that I certainly was concerned with.
Procedures weren't written down. Or people thought the information
was carried on. (inaudible) I told them and they knew. The
people say no we didn't know.
Monia: O.K., can we at least agree to this then. Over the next
say 4 or 5 weeks you can at least come back and give us an estimate
of how much it will cost to develop these procedures so the Council
can then make a decision -- here's the funds, let's go do it, let's
do it within this time frame, and get it done. Otherwise, it's
going to be 1997 and we're going to say ...
Peacock: I think Larry's right though. And this is something
that's almost best done by hiring an outside person who's familiar
with engineering standards and public works stuff to write the
specific kind of thing ...
Monia: I'd like to be able for the Council to at least review that
and make a decision and say, here's the funds, yes we agree, this
is what you're going to do, this is the timeframe, and put it in
the works.
Perlin: That's not quite what I had in mind but ...
Peacock: I understand that. I understand. But I think a lot of
it is having someone who can spend the time to go in and talk to
Larry, talk to the inspectors, and say O.K., how are you guys
handling all of this stuff, and then he writes it all down and then
Larry and the inspectors say yes, that's how we want to proceed,
and then it's presented to the Council.
Perlin: And there's also, you know, other cities and other
organizations that have the standards and procedures that we can
draw from. We don't have to ...
Monia: O.K. So we will bring this back in 4 weeks or so as far
as howlong it will take and how much it will cost.
Kohler: 17, policy of specific procedure for (inaudible)
modifications and variations for approved plans as outlined
(inaudible) on the job. Would that be included in 167
Kalb: Well, the thinking of the committee in this case was I don't
know when this policy 16 (inaudible) was put into place, but the
thing was that from some of the things we saw happening on the
Tract 7770, that it wasn't working or at least the trigger point
of what was considered material or significant was set high. So
maybe the recommendation here to get some definition of what those
terms should mean is an appropriate one that may be a way of
dealing with it, but our feeling was that if it was in effect it
didn't work. So we are going to adjust it one way or the other.
City Council Minutes 44 September 17, 1991
Perlin: This is something I think the Planning Commission could
really spend some time discussing and giving direction,
particularly to my inspectors. I know that half the time my
inspectors come in from the field and will discuss a situation with
me and are unsure whether they need to go back and talk to one of
the planners or not. I think the position we take now is that if
in doubt, let's at least run it by a planner and see what they say.
But, it would be more helpful, and it sort of follows, remember,
that the previous one to have a procedure so the inspector knows
what he's doing, right.
Peacock: Well, that's what we're suggesting that they provide us
with an operational definition of such terms as material change,
(inaudible), adverse impact on surrounding areas, ...
Perlin: If it's possible to quantify those definitions that would
be great, but I think in some instances, in all instances it's not
going to be possible to quantify, but if you could qualify what's
the intent really so that the inspector has an idea.
Monia: Is that feasible by the Planning Commission?
Caldwell: Quite a challenge.
Peacock: Well the Planning Commission made a good start in the
policy they adopted in February 1988 which grew out of things that
happened back in 1986, frankly, with somebody's house on Springer
or some other street. And the issue there was how much latitude
does the staff have in approving a change that's in the field in
terms of the height of the building or a setback or the grading or
whatever, .... , and I think the issue here then is that when you're
dealing with something that's more of a subdivision level or a land
development level, I think operationally that we don't have the
same kind of definition of staff latitude of what constitutes
something. We have to say time out, this has to go back to the
Planning Commission because it's a material change to the condition
or it's a material change to the approved plan or whatever. I
think that's where we'd really appreciate some guidance.
(inaudible -- several voices)
Monia: Then there's a whole list of things that really are not
that material. But certainly the amount you can grade, the
building pad height, you know we've heard lots of crazy things
about getting as is, writeoffs on 7 and 5 feet heights higher than
what ...
Perlin: Trees, stockpiling comes to mind, (inaudible -- several
voices)
Clevenger: I think this is important and should be followed up.
I think everyone agrees to that.
Peacock: So it's O.K. as recommended. That is, we'll get the
Planning Commission to try and address this. I'm sure the staff
will be giving you assistance and our view point and what we think
is ascertainable.
Kohler: O.K., now we, looks we have come (inaudible) 18 regarding
a specific ordinance identifying procedures and time constraints
(inaudible) for wet weather grading (inaudible). This ordinance
should be placed in present policy,' and then the answer (inaudible)
Perlin: My recommendation on this one is that I think these kinds
of concern can be anticipated during the times of a tentative map
review and at that time I think that conditions can be placed on
a final map that says, when certain types of construction
activities could take place.
City Council Minutes 45 September 17, 1991
Kalb: Wouldn't you generally have a standard set of provisions
that you would apply to this situation? That"s sort of what we
were'looking for was (inaudible) the 90% level you would always say
the same thing.
Peacock: I think that the techniques that are required to be used
and how they are applied are pretty easy for Larry to look at and
say they are satisfactory or they are not satisfactory. The key
here is determining what jobs they might be so critical that you
want to tell people, look you have to stop by the 30th of September
or the 15th of October or whatever, and you've got to start doing
these kinds of things, if you're going to start working you're not
going to be done in that period of time. Then that goes to the
whole issue of when they get started, how big it is, how much work
~hat they're doing, what kind of, in the pre-construction
conferences with the staff what kind of timeline is laid out for
us, and they convince us that they're able to do the work~ and
we're satisfied that they are not being overly optimistic about
being able to complete the grading operation, and what it is that
they're going to be doing. And I think Larry's right, by the time
you get to the hearing on the tentative map, the scope of the
project is pretty well defined. You pretty much know because they
have to have grading plans and other things in terms-of how much
earth they're going to be moving, how many streets they're going
to be building, and all this other stuff. So I think that would
be the right place to sort of try and put a red flag in that says,
O.K., you're doing these kinds of operations, if you don't get
started until such and such a time, you're going to have to do
this, that and the other thing.
(inaudible)
Monia: Let's say the shutoff date is November 15, and then they're
not (inaudible)
Perlin: Well this idea I think would go back to the notion of
bonding. Not simply having a bond but actually having a liquid
security. That the City require certain cash ...
Monia: Do we have that now?
Peacock: Yes, we require a certain amount of the bonds to be
deposited in cash and it'sat my discretion as to how much, based
upon Larry's recommendation, how much is cash and how much can be
secured in other ways. So many times we will have a fairly large
amount, as Larry has suggested and we have discussed on other
occasions. That ought to vary with the size of the project as well
in terms of percentage. Usually we will have to take at least 10%
but on some smaller jobs where it looks like there could be more
significant problems, we really probably ought to be asking for a
larger amount of money. If you've got a million dollar job and you
ask for 10% in cash, you've got $100,000. If you've got a $100,000
job and you ask for 10% cash you only have $10,000. It may very
well be that $20,000 is much more realistic in terms of trying to
fix what they may have done wrong.
Monia: So we should expand this a little bit. Define the bond or
cash better or ...
Peacock: Well, the ordinance which you are going to be reviewing
tomorrow night, we put some of those things in there. We've
changed it, we've said it can be a combination depending upon the
recommendation of the City Engineer and determination by the City
Manager as to what ought to be cash and what can be securities.
Once again the factor of what these guys come up with in terms of
whether (inaudible) will guide Larry in terms of how much money he
thinks they ought to be putting up in cash.
Monia: So let's say it's at the tentative map stage. O.K., it's
in front of the Planning Commission. You were talking about that -
City Council Minutes 46 September 17, .1991
- it's one of the mechanisms to at least trigger a requirement to
establish. And then from that staff would, let's say the Planning
Commission decides, this place we have to make sure we have
protection (inaudible) and that's one of the arrangements and
conditions put on the tentative. Staff would then look at that and
say O.K., fine, the commission made that decision, here's what it's
going to cost you.
Perlin: Here's what it's going to cost you. We can require the
applicants, and we do, to prepare erosion control winterization
stabilization plans as a separate plan. (inaudible) it may never
get implemented, depending on the timing of the development, but
if it needs to be implemented there's a cost that can be estimated
to implement that part of the plan and we can then require them to
bond for that cost entirely in cash. I don't see any reason why
we couldn't.
Monia: So rather than doing this by. ordinance you think just a
policy clarification or policy statement is better?
Peacock: Yeah, Mike and I talked about this at some length, and
it's his view that an ordinance would simply be too restrictive in
terms of trying to define under which conditions you do a
particular kind of thing. It's much better to be handled as a
condition of a tentative map or the discretion of the City Engineer
in dealing with this kind of ...
Monia: What we need to do in our procedures and policies, etc. to
make sure that that's part of the documentation.
Peacock: Once again I would refer back to this business of the
procedures to be put down in writing in terms of how you deal with
these things. A standardization of conditions which Steve and _
Larry were working on as time permits and trying to involve the
standardization of conditions, it would say O.K., you not only have
to submit a grading plan you have to submit a winterization plan
as well, and Larry's already requiring that.
Monia: It's part of the tentative map process. As the
geotechnical ...
Perlin: Yes. There might even be some overall policy or goal that
could be incorporated in one of the general plan elements that
would sort of get to this issue of keeping sites that are under
development normal ...
(inaudible -- several voices)
(male): Probably in the conservation element of the
general plan it simply says that (inaudible -- several voices)
Monia: Does that sound reasonable? We can move on a little bit,
but at least staff has got some assignment (inaudible) the rest of
you would like to do, but if a Winterization policy or element is
what we want to ...
Kohler: That's fine with me, (inaudible)
Kalb: That seems reasonable.
Kohler: Now we have one more thing. Now we have, O.K., there's
still quite a few pages to go. What about if we just do the next
one, this (inaudible), and then put the rest over to the next
meeting, is that Friday?
Peacock: Tomorrow night.
Kohler: Tomorrow night, we have a long ... tomorrow night too.
So it might be the next Council meeting after tomorrow night. So
number 19 is the last one we talk about and it's a lengthy one.
City Council Minutes 47 September 17, 1991
It has to do with what can we do, can we cancel in the case of a
violation, can we cancel the permit for development, so ...
Clevenger: Well, I think we should ask our attorney what we can
and cannot do here, so that we'only talk about what we can do.
Kalb: The middle of the page in the response, it says it may be
possible to cause the revocation of the tentative map, that
paragraph right there? That's not what we had in mind in making
the recommendations actually.
Peacock: Well this was written by Mike.
(inaudible -- several voices)
(male): Mike wrote this in response to
recommendations (inaudible) response, and I believe he was
recommending that further research be done by the City (inaudible)
to flush out all the possible (inaudible) City Council may have to
Peacock: So the Council has, the idea here would be for the City
Attorney to continuing following up on his suggested research.
Monia: I thought that his suggestion that starts that in order to
provide ...
(inaudible -- several voices)
Caldwell: And there's more suggestion on page 7, starts with if
the City Council (inaudible) that's another excellent suggestion
with respect to how something that came up earlier tonight, what
your flexibility is there.
Kalb: I think this would also cover item 20 too.
Anderson: Right.
(male): Yes.
Clevenger: O.K., so then we would start with 217
Kohler: Number 21 (inaudible -- several voices)
Peacock: City Attorney to follow up.
Clevenger: Before we adjourn, Mr. Mayor, I would like, now that
I've been kind of sitting here looking at my testimony, I would
like to make one correction that I would like on the record. And
that is that I stated that until Peterson's connection was
established, her impression was that the Council was just as
outraged as the citizens. I think the implication is there that
somehow Mr. Peterson was not outraged after he was, he felt he
should step down. I would like to emphasize that all of the
Council were just as outraged as the citizens about this
destruction and that Mr. Peterson was a member of that Council, and
that once he determined that he should not be voting on this
because his bank had made a loan to one of the buyers of the
property up there, it did not alter his feelings about the
destruction. I remember when I went to the committee that I was
simply pointing out that everyone on the Council was outraged about
that. That was the thrust of my remark, rather than everyone was
outraged until a certain point.
Kalb: We never could figure out what, in reference to that, in our
notes, we never could figure out exactly what was meant by that but
didn't bother to follow up on that.
Clevenger: Thank you.
City Council Minutes 48 September 17, 1991
Kohler:. O.K., we'll adjourn now..
4. 'Adjournment
The meeting was adjourned at 10:30 p.m.
Respectfully submitted,
Harry R. Peacock
City Clerk