The Real Betty Rexford

“under public records”
Rachel & Nathan Cannon

“Prepared By: Patti Brindle, AICP City Planner City of Poway
Date: March 6,2009
“Purpose I have been requested to render testimony concerning thedevelopment of 11545 Creek Road and whether or not the developers, Nathan and Rachel Cannon, followed City procedures in the development of that property with a single family house and detached metal workshop. In addition, I have been requested to render testimony concerning the subdivision of 11550 Creek Road and subsequent construction of a single family home on Parcel 4 of that subdivision and whether or not the developers, Peter Allen Basile and Dawn Basile, followed City procedures in the development of that property. In connection with the preparation of this report, I have reviewed the Poway Municipal Code, the Poway General Plan and the depositions of Peter Allen Basile, Dawn Basile,Rachel Cannon, Nathan Cannon, Maurice Macare, Niall Fritz, Javid Siminou, Danis Bechter, Don Sharp, David Rizzuto, Ken Quon, Carol Rosas, and Peggy Chapin. I have also reviewed the MDRA, TPM, Grading Permit, and Engineering Inspection files at the Department of Development Services. I have also reviewed the Second Amended Petition and Complaint for Federal Court Case No.: 07 CV 1793 DMS JMA. The information used in formulating this opinion is referenced within this report and attached at the end of this report.

Qualifications I have approximately 26 years of work experience in city planning. I have served as the City Planner for the City of Poway since November 30, 1999. As City Planner I supervise all aspects of the Planning, Code Compliance and Building sections within the Development Services Department for the City of Poway. Prior to working for the City of Poway, I worked as Assistant Planner, Associate Planner, Principal Planner and City Planner for the City of Santee from May 1984 to October 1999. I have a BA in Environmental Studies from the University of California at Santa Barbara and I completed two years of coursework towards a Master’s Degree in Landscape Architecture with an emphasis in environmental planning at the University of California at Berkeley. In the past four years I have not testified as an expert witness

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at trial or by deposition. I received no special compensation for this report other than my regular salary paid by the City of Poway.

City Application Procedure Pre-Application Review – The City of Poway has a Pre-Application procedure that allows an applicant to submit conceptual plans for review of any development proposal.There is no fee for this service. The purpose of the Pre-Application process is to identify major issues with regard to the development of the property. This can assist a developer in identifying potential development issues early on in the process.

Minor Development Review Application (MDRA) – In order to construct a new single family residence the City requires the applicant obtain approval of a Minor Development Review Application (MDRA) prior to obtaining a building permit. The submittal requirements for a staff approved MDRA are contained in Attachment 1.

 Chapter 17.52 of the Poway Municipal Code (PMC) contains the requirements for processing a Minor Development Review Application (Attachment 2). PMC Section 17.52.050 gives the Director of Development Services the authority to approve, deny, or modify minor development review projects for custom single family homes. PMC Section 17.52.090 specifies that minor development reviews may be approved or modified subject to conditions of approval as the Director deems to be reasonable and necessary, or advisable under the circumstances, to ensure that the objectives of the zoning ordinance, general plan and City Council policies are achieved.

 Tentative Parcel Map – In order to subdivide property, approval of a subdivision map is required. Chapter 16.06 of the Poway Municipal Code sets forth the responsibility and authority of the City Attorney, the City Council, the City Clerk, the Director of Development Services and the City Engineer in the processing of requests to subdivide properties (Attachment 3). The City Council has the authority to approve, conditionally approve or deny tentative parcels maps. The Director of Development Services is responsible for the acceptance and filing of tentative maps, the review of all tentative maps for general layout and aesthetics, the investigation of proposed maps for conformity to the general plan and its elements, specific plans, the Poway Municipal Code, and State and Federal laws and making a recommendation for approval,conditional approval, or denial of tentative maps to the City Council. The Director is also responsible for the review of these maps pursuant to the California Environmental Quality

Act.Appeal – PMC Chapter 2.20 contains provisions whereby a property owner may appeal the final decision of the Director to the City Council if they disagree with any of the conditions of approval (Attachment 4). The appeal must be filed within ten calendar days of the approval.

Basile/Cannon Report Page 3   Opinion
Cannon Property -11545 Creek Road

 Introduction – In the Second Amended Petition and Complaint for Federal Court Case Nol. 07 CV 1793 DMS JMA, Rachel and Nathan Cannon allege that the City withheld the occupancy of their house based on misapplication of a condition of approval regarding the type of exterior materials of the metal workshop. The City contended the MDRA condition of approval required the roof material and exterior walls to be tile and stucco. The Cannons allege the draft condition was amended by the City and that the final version of the condition only required the metal workshop to be painted to match the house and that a decorative wall and landscaping would serve as an appropriate screen. The Cannons allege that the City changed its position with regard to the exterior materials based on complaints from nearby property owners Bothwell, Aviano, and Rexford that were received in communication dated December 2005. The Cannons allege they were not made aware of this opposition until April 2006, well after the July 2004 approval of the MDRA.

 Permit History – The Cannons were represented by realtor Mary Ann Altaffer in the purchase of the subject property in 2003 as indicated in the deposition of Rachel Cannon dated November 10, 2008. The property purchased by the Cannons had development constraints as evidenced by documentation collected by their realtor Mary Ann Altaffer (Attachments 5-11). The constraints included the location of illegal fill material on the property and the potential for flooding of the property from Beeler Creek due to past illegal grading on the subject site. There was also correspondence to Ms.Altaffer with regard to the exterior treatment that would be required by the City if a metal building were constructed on the site (Attachment 12).

During construction of the house, the Cannons objected to the several conditions pertaining to floodplain mapping, grading and exterior materials of the metal workshop that had been placed on the MDRA approval letter dated July 29, 2004: Conditions 0.1 through O. 7, EA, E.6, and E. 13 (Attachment 13). As described below the City was willing to work through the issues with the Cannons and was able to resolve them.

 FEMA Requirements – The Cannons were made aware of the issue with FEMA prior to issuance of the MDRA approval letter (Attachments 14 and 15). After issuance of the MDRA approval the Cannons objected to the condition of approval requiring the issue with FEMA resolved prior to issuance of a building permit. The City worked with the Cannons by allowing them to proceed with the construction while concurrently processing the map amendment with the Federal Emergency Management Agency (FEMA) in the remapping of the floodway/floodplain on their property (Attachments16and 17). The remapping was necessary because the floodplain limits submitted by the Cannon’s engineer did not match the FEMA maps the City had on file. The limits of the floodplain had changed as a result of the illegal grading that had occurred on the site in or around 1993. The Cannons were not delayed by the requirement to obtain FEMA approval.

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Color and Materials of Metal Workshop – With regard to the color and materials for the metal workshop, the Cannons disagreed with the City’s application of the condition E.13 of the Approval letter for the MORA (Attachment 13). It was the City’s intent that the exterior materials and colors of the metal workshop match the house, which consisted of stucco walls and tile roof as documented in the file with correspondence to the Cannon’s realtor dated July 11, 2003 (Attachment 12). The Cannon’s architect stated in his deposition on February 3, 2009 that he and the Cannons were aware of the July 11, 2003 letter before the Cannons purchased the property (Attachment 18). In addition, he indicates that he was aware of the letter when he prepared the architectural drawings for the Cannons. The plans submitted with the MDRA included a decorative screen wall in front of the metal building to screen it from view from Creek Road.

 A chronology prepared by Peggy Chapin, the project planner, indicates that on March 17,2004 Project Planner Chapin talked to Rachel Cannon and advised her that the City would be requiring an exterior to the garage that would be similar to the exterior of the residence per the letter that had been sent to Mary Ann Altaffer (Attachment 19). The Cannons did not agree with her. The chronology indicates several meetings and discussions with the Cannons between December 2005 and October 2006 attempting to resolve the misunderstanding of the colors and materials for the metal workshop.The chronology also indicates that it was the Cannons understanding that instead of building a stucco wall to screen the metal workshop, they would stucco the exterior of the metal workshop and paint the roof to match the main residence. This is further supported by the letter dated May 12, 2006 from the City to the Cannons that references the agreement with regard to stuccoing the exterior of the metal workshop(Attachment 20). The remedy to the disagreement with regard to the condition would have been to request a formal modification of the MDRA pursuant to PMC Chapter 17.52 which the Cannons did not do.

After several meetings and correspondence between the Cannons and the City, the Director of Development Services Niall Fritz sent a letter dated October 11, 2006 to the Cannons in response to their letter to him dated Septebmer 25, 2006 with the information he would require in order to process a modification to the condition of approval regarding the metal workshop (Attachments 21 and 22). In response to Rachel Cannon’s request to meet with the City in to resolve the matter, City Staff met in November 2007 (Attachment 23). The City subsequently agreed in December 2008 to allow the Cannons to construct a fence to screen the metal workshop. In addition, the City allowed the Cannons to move into their house in December 2007 while completing the fence and other outstanding construction related items (Attachment 24).

 Conclusion – The record indicates that the City and the Cannons disagreed on the type of roof material to be used on the metal workshop. The Cannons were in agreement with regard to stuccoing the exterior walls. Staff worked with the Cannons toward resolving the type of roofing material by researching roof materials lighter in weight that would simulate tile. The Cannons remedy to this disagreement over the condition of approval was to submit an application for modification to the MDRA as provided for in PMC Chapter 17.52. The Director of Development Services provided this avenue for

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the Cannons as outlined in the letter contained in Attachment 21. The Cannons did not pursue a modification to the condition of approval which delayed occupancy of their house. Resolution of the color and materials for the metal workshop was not forthcoming and the Cannons and the City entered into mediation in September 2007. As a result of the mediation, the Cannons were allowed to leave the metal workshop with its original- metal finish and color and they constructed a wooden fence along the Creek Road frontage to screen the metal workshop from public view.”