The Real Betty Rexford

“under public records”

continued Expert witness Patti Brindle

“Basile Property – 11550 Creek Road page 5
Introduction – In the Second Amended Petition and Complaint for Federal Court Case No1. 07 CV 1793 DMS JMA, Allen Basile alleges that the grading plan required pursuant to the MDRA for Parcel 4 of his subdivision and the requirement to place a fence at the edge of the driveway presented a real safety issue. He alleges that he was prvented by the City from processing amendments to the conditions of approval for his TPM and MDRA to address these safety issues. He alleges that he submitted a revision to the MDRA sometime in 2006 and again in April 2007 and that the City refused to process,review and act upon the requested amendment. He also alleges that the City acted inappropriately in the issuance of a Stop Work Notice dated August 31,2003.

 The records indicate that Allen Basile did not submit a formal request to amend the conditions of approval for their TPM and MDRA as allowed under the Poway Municipal Code to address their safety concerns about the grading plan and fence requirements. The record also indicates that the August 31, 2003 Stop Work Notice was properly issued for failure to comply with the City’s grading ordinance.

 Permit History – Allen Basile submitted Tentative Parcel Map (TPM) 01-05 on behalf of Dynasty Development to subdivide his property into four separate lots on October 23, 2001. At the public hearing on September 17, 2002 Allen Basile spoke in opposition to the conditions of approval with regard to the development of Parcel 4 as recommended by City Staff (Attachment 25). The City Council approved the Tentative Parcel Map as recommended by Staff and the conditions as contained in Resolution No. P-02-54 (Attachment 26). The conditions of approval included parameters for development of Parcel 4 related to the house design, the driveway grade, the requirement for a fence adjacent to the driveway, compliance with the City’s Hillside Development Strategies and that the developer record a deed restriction on Parcel 4 identifying these limitations. On August 28, 2004 Allen Basile signed a covenant for Parcel 4 that identified the conditions of approval as stated in Resolution P-02-54 (Attachment 27). On September 17, 2002 Allen Basile signed an Agreement to Incorporate Mitigation Measures Into Project Plans for TPM 01-05 (Attachment 28). The mitigations he agreed to are included in Resolution P-02-54 (Attachment 26) and required, among other things, a 6 foot high fence adjacent to the driveway, that the access driveway for Parcel 4 be modified to lower the surface elevation to be consistent with the adjacent existing grade, and that the development comply with the City’s hillside guidelines and development
Basile/Cannon Report Page 6
standards. On September 23, 2002 Allen Basile signed a document that he read and understood the conditions for TPM 01-05 (Attachment 29). On October 24, 2002 Allen Basile submitted Minor Development Review Application 02-100 for Parcel 4. On October 23, 2003 an MDRA approval letter was issued containing the conditions of approval for the development of Parcel 4 (Attachment 30).
Grading Ordinance Violation – On August 31, 2003 Allen Basile was issued a Stop Work Notice by the engineering inspector for the City for a violation of the City’s grading work for the brush clearing he was doing on Parcel 4 (Attachment 31). Mr. Basile responded to the Notice in a letter dated September 2, 2003 to Carol Rosas indicating that he had been given the okay to do the work by a City Engineering Inspector (Attachment 32). He indicated the purpose of the clearing was for fire protection. He also indicated that all future communication from him would be in writing. Ms. Rosas responded in a letter dated September 5, 2003 that she had advised him that he needed to get an Administrative Clearing Permit if he wanted to do the work in advance of getting his grading permit (Attachment 33). PMC Section 16.42.010.K exempts brush clearance for fire protection purposes only when mandated by the City Fire Department (Attachment 34). Mr. Basile did not have authorization from the Fire Department. Mr. Basile did not get the required permit from the City for the brush clearing so the Stop Work Notice was property issued.

Grading Plan Check – In June 2004 a grading plan for Parcel 4 was submitted. It included a 6 foot high retaining wall along the driveway that had not been shown on the MDRA or TPM approvals. The developer had discussed the inclusion of a 6 foot tall retaining wall adjacent to the driveway for Parcel 4 with staff in September 2003 prior to submittal of the grading plan. At that meeting Staff advised him that he would need to either process an amendment to his development approvals. He did not follow through on that direction and instead put it on his grading plan (Attachment 35). A revised grading plan that eliminated the retaining wall was submitted by the developer on July 16, 2004. City comments on July 22, 2004 were provided indicating noncompliance with. the conditions of the MORA with regard to the fence adjacent to the driveway, a 6 inch curb along the driveway edge, the required setback for the house and protection of the existing drainage swale (Attachment 36). The same comments on noncompliance were provided on four subsequent grading plan checks between July 27, 2004 and May 11, 2005 (Attachment 37). Rather than fail to comply with the conditions of approval in the grading plan submittal, the proper procedure to modify them would be to process an amendment to the TPM and MDRA.

Request to Amend Conditions of Approval – On October 15, 2007 Allen Basile submitted a letter to the City asking for changes to the driveway grade and fence location (Attachment 38). On November 28, 2007 the City responded with what information would be needed to process the change (Attachment 39).

 In January 2008 City Staff met with Allen Basile to go over in detail his request and what Staff could recommend to the City Council for approval. On March 14.2008 and March Basile/Cannon Report
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17, 2008 the City provided comments on the proposed changes to the grading plan (Attachment 40). On March 21, 2008 Allen Basile submitted an application to modify his conditions of approval for the MDRA and TPM to modify the driveway grade and clarify the requirement for a fence adjacent to his driveway. On April 17, 2008 the City provided a letter to Mr. Basile of the remaining items .he needed to address prior to scheduling the item for City Council public hearing (Attachment 41). On July 1,2008 the City Council approved a modification to the MORA and TPM (Attachment 42).

Conclusion-Allen Basile did not submit an application to amend his MORA in 2006 and 2007 as he alleged. The record indicates Allen Basile did not agree with the conditions that had been placed on his permits. However, the City is within its authority to place conditions on Tentative Maps and Minor Development Review Applications as deemed appropriate by the approving authority, which in this case was the City Council for the tentative parcel map and the Director of Development Services for the Minor Development Review approval. In addition, the approved grading plan that Allen Basile did not agree with met City engineering standards. The records show that when
Allen Basile requested an amendment to his conditions of approval on October 15,2007, the City responded on November 28, 2007 as to what would be required. The City subsequently met with Allen Basile in January 2008 to further discuss his proposed changes. On March 21, 2Q08 he submitted his application to revise the conditions of approval and the request was approved by the City Council on July 1, 2008. Allen Basile’s failure to follow City processes was the cause of the delay in his obtaining occupancy of his house. The record also shows that the Stop Work Notice for violation of the City’s Grading Ordinance issued on August 31, 2003 was justified. “