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HomeMy WebLinkAbout12/13/2021 Item 1, Ferris 10-13-2018 Ltr October 31, 2018 Michael Codron Community Development Director 919 Palm Street San Luis Obispo, CA 93401 Dear Michael Codron, Due to over two decades of past dealings with you, I know you to be an honest and sincere man. I, therefore, must assume the factual errors in your letter are from your staff and you are unaware of them or you do not fully appreciate the magnitude of the harm the positions you are taking will cause to my family, my business, and the community. Without agreement on some of the most basic facts, it is hard to reach the best conclusion. I am disappointed with the short shrift given to the rights of my family but understand that on some issues where you stand can depend on where you sit. I hope I can offer convincing and clarifying information so we can reach a mutually agreeable solution. Because each paragraph of your letter is very important and must be addressed, I have numbered each paragraph of your letter and will refer to each paragraph number when responding to each paragraph of your letter. PARAGRAPHS 1, 2, 3, &4: First, the issue of the retaining wall: Obviously, we were in error. We thought that as it was all below grade, it was okay to do. It is not a construction with a footing, mortar, and rebar and because it was just a stacking of retaining wall blocks, and temporary, we thought was okay, sorry. Our wall was only envisioned as semi-temporary until the ditch was rerouted according to the Avila Ranch plans and then we would have no ditch or minimal drainage in a pipe through our property. Our current plan is to cover the ditch after putting in whatever size pipe or concrete box culvert is still needed. We figured this would happen as part of our first attempt to build on the site. Since you now tell us the ditch is not going to be rerouted, it will require a "regular-sized pipe" but, otherwise, our plans still are in effect. To comply with your concerns, we have removed all blocks over 48" tall from both sides of the ditch. This should resolve this issue. This way, we are not in need of a permit as the walls are not over 4' tall. V:\Fire\Letters\Michael Codron part 2 Oct18.docx We have also made sure no vehicle or pedestrian traffic will be within 48" of the top of the 48" tall blocks so there should be no surcharge issue. We trust that until the other details of the ditch are resolved, this issue can be moot. PARAGRAPH 5: In your 5th paragraph, it is noted that our ditch was not considered anything but a ditch until at least 1994. It was a ditch since 1910 when Union Oil constructed it along with all the other berms, earthworks, and roads within the Tank Farm facility- So, without significant legal due process regarding property rights, it is still legally a ditch today in spite of the renaming action. As shown in the 1937 aerial photo (see Attachment 3), the ditch was in place and was also completely within the industrial facility it drained. Please explain in detail how an 85-year-old ditch became a blue line waterway with no change in the drainage, the ditch, or its use? We would appreciate copies of the studies and maps this change is based on. Please also cite the legal authority used for the renaming action. Since the change from an industrial ditch within an industrial complex to a blue line creek is legally huge and significant, it is time for the City to show us the research, field studies, evaluations, reasoning, legal process, and authority behind such a huge and financially significant change. According to the Army Corps of Engineers, "Manmade watercourses cannot be blue line streams." According to the national wetland survey, the entire Tank Farm area is acknowledged and recognized as manmade— (Has an X at the end of its designation). To us, it appears that a planner sitting at his desk schemed to convert an existing ditch to a creek, with the stroke of a pen, having zero concerns or regard to the property rights and existing uses and plans of the affected property owners and little or no knowledge of the actual use and history. By showing us how such a big decision was reached without ever contacting and negotiating with the affected property owners, and what facts, research, and the authority used to justify the City's actions are based on, will help us be better able to understand and respect the City's positions and how they affect our property and property rights. You are probably correct in your disagreement (regarding our ditch assertions) onlv if you mean we failed to mention the oil separator pond that required the use of the water detention system during heavy rains. It is more than a "1,800-foot ditch" — It also had an industrial oil separation facility 2/3 the way down the ditch that was on our property. The concept that the oil company-built ditch is a blue line creek, and yet has an industrial oil separation facility 2/3 the way down the ditch, is not reasonable. The entire ditch was originally all contained within the Union Oil industrial facility and did not function as drainage for any other land. Your claim of a "blue line creek" is more than a stretch. V:\Fire\Letters\Michael Codron part 2 Oct18.docx The statement that the ditch (you refer to it as a creek) is not manmade is absurd, non-factual, and totally without merit. It was built in 1910 and modified in 1927. It it totally manmade, completely a ditch, and it drains no natural runoff from any surrounding areas because Union Oil put up berms to keep all natural drainage from the hills behind the site, out of the site, and out of our ditch. If the City or other parties changed or modified this without our knowledge, they may well have significantly affected both our land and water rights. The manmade ditch appears in any and all aerial photos after 1910 and none before. Historical maps before 1910 do NOT show a creek or other waterway in the area of the Tank Farm. Therefore, we are 100% certain and the facts 100% indicate that the ditch is manmade. The ditch originally drained ONLY the Union Oil Tank Farm industrial facility. The ditch was completely within the original Union Oil facility when built. The ditch, after leaving the original Union Oil property, joins with three pipes which drain the detention ponds that drain the Suburban Road business. After 200' or so, the slightly enlarged agricultural ditch joins another ditch that drains into another ditch and, finally, into Davenport Creek (an actual blue line creek). In regards to your claim that our 1,800' industrial ditch is a blue line waterway: We have included Federal Government printouts showing our ditch is not considered a blue line waterway. Please show us Federal maps showing a blue line waterway receiving the outflow of our ditch and/or that our ditch is a blue line waterway. I have included a copy of the 7.5 Minute series map containing our property and it shows no blue line creek (see Attachments 2a and 2b). I submitted written comments during the hearings (2005 and 2007) (see Attachments 6a-d) on the open space explaining that a manmade ditch is not a creek and further explaining how the water detention system works. I pointed out that renaming the ditch and then attempting to take a 50' swath of property from our use is an illegal taking and we must be involved. Alan Settle (Mayor at the time) told staff to address our concerns. My letter, testimony, and Mayor Settle's comments were ignored! You state "the City" disagrees with the facts about our ditch. This is strange and puzzling since our facts are the actual facts on the ground and the statement that our ditch is a "blue line creek" appears to have been entirely made up. A planner, sitting at his desk, without the needed field work, consideration of existing uses, respect for Federal guidelines, and the Constitutional property rights issues both State and Federal that are involved cannotjust"make u�" that our ditch is now a creek! PARAGRAPH 6: Creek or ditch— It is a ditch! In reading City Ordinance No. 1302 (1996 Series), we find: "EXHIBIT A—Creek Setback Provisions Added to Zoning Regulations" "Chapter 17.04, Definitions" — V:\Fire\Letters\Michael Codron part 2 Oct18.docx "17.04.093 Creek" — Creek is defined as NOT being a drainage ditch, culvert, or storm drain. It states if located outside the urban reserve line (in 1996) and not listed on the USGS 7.5 Minute series quadrangle maps, it is also not a creek. Our ditch is NOT shown on the USGS 7.5 Minute series quadrangle map (see Attachments 2a &2b)! City written copy in the Airport Area Specific Plan plainly states "Tank Farm Creek" is a collection of drainages (ditches) that for CONVENIENCE was named Tank Farm Creek and the name was applied to our manmade ditch (see Attachment 5). The Army Corps of Engineers states manmade waterways cannot be considered blue line streams. "17.04.342 Riparian vegetation" —Our ditch has no riparian vegetation, only grass and weeds; Again, not meeting an important criterion to be considered a creek. "17.04.440 Top of bank" — Refers to "top of bank"which is used in connection with "naturally eroded ground slope." Our manmade ditch has steep sides not formed naturally for almost its entire length —Again, not indicative of a "creek." All the literature you provided regarding creek setbacks do not apply to our ditch because it is not now nor has it ever been a creek— It is a drainage ditch and part of an industrial site water diversion/detention system. "Chapter 17.16, Property Development Standards" — "17.16.025 Creek setbacks" — A) The purpose for creek setbacks are specified, listed 1-5: 1. Protect scenic resources, water quality, and natural creekside habitat, including opportunities for wildlife habitation, rest, and movement. - We are a manufacturing zoned lot— There is no natural creekside habitat. IYs all manmade— There are no opportunities for wildlife habitation, rest, or movement. This does not apply to our commercial lot. 2. Further the restoration of damaged or degraded habitat, especially where a continuous riparian habitat corridor can be established. - This does not apply to our commercial lot— No chance for a riparian channel without destroying the manufacturing use that the property is zoned for. The original ditch is in excellent condition as it was since 1927. 3. Allow for natural changes that may occur within the creek corridor. - Our ditch needs to be buried in a pipe and, therefore, no natural change will occur. Even if not buried, the detailed City requirements do not allow for natural changes. V:\Fire\Letters\Michael Codron part 2 Oct18.docx 4. Help avoid damage to development from erosion and flooding. -As long as the large Chevron water detention system is not destroyed by the City's "taking"of our property, our ditch being in a pipe contributes to this goa/. 5. Enable implementation of adopted City plans. -Applies to our property by increasing the utility of the lot, increasing density, and a manufacturing zone use. Putting the ditch into a pipe is consistent with the Airport Area Specific Plan—Not putting it in a pipe is not. Our property does not fit well with the goals of open space setbacks as it is zoned manufacturing and we should be able to develop and cover almost 100% of our lot as a City density and best use goal. The City's proposed actions do not support the vitality of existing business resources. The City's proposed actions will hurt our efforts to create jobs and affordable housing. The City's proposed actions will make impossible our long-term plans to develop the property. From the 5/1/2007 Council Agenda Report, Airport Area Annexation — • When annexed, a stated goal: "Land Use Element Goal 12: Emphasize more productive use of existing commercial buildings and land areas already committed to urban development." • The City's attempt to take a 50' strip through the middle of our manufacturing-zoned property does the opposite of this stated goal. • The City's actions seem the opposite of encouraging higher densities and compact development as stated in the airport development plan. • Property owner outreach is specifically mentioned as a necessity in the annexation, yet, we were never contacted and our written and verbal concerns were ignored and not addressed even though we submitted both written and verbal timely objections to the annexation plan when it was presented. The City's goals in property which is manufacturing zoned, are increased density and utilization of the property. Our position supports existing City policy! PARAGRAPH 7: The statement that you are unclear as to whether it was a ditch or creek at the time of annexation reveals a mindset which seems to think what a ditch is called on a planner's paperwork changes the physical, legal, and real-time reality of the ditch. No one seems to argue it was not a ditch prior to the 1990's, so unless you can show/prove what changed physically about the ditch to make it into a blue line creek, it is still legally a ditch today. Even though the City has re-labeled it incorrectly as a creek, it is still a ditch legally. V:\Fire\Letters\Michael Codron part 2 Oct18.docx In June of 2000, we did a lot line adjustment with Unocal wherein the convoluted property line caused by Unocal's original industrial oil separation facility was straightened and made regular with the surrounding property lines. When the industrial Unocal oil separation facility land became part of our lot, it returned to its original and correct industrial zoned designation (County) (manufacturing zoned in the City) just like the rest of our lot. The adjusted land now included in our lot was an industrial oil separation facility—The "meadow" portion of our lot is the "forebay" needed for the water staging area that was used from when the separator pond was in standby active service. As the land was industrial in its original use, the lot line adjustment merely restored the correct land use designation and made the lot line regular. It also made the lot more compliant with the airport area goals of increased density and higher level uses. The original boundaries and designations followed the property lines and were not based on a careful and methodical ground survey. When we adjusted the lot line, we adjusted away any potentially incorrect wetland designations within our lot. In no way did the movement of our property line affect the adjoining huge, open space/wetland area that Chevron owns. The original land use designations were done from "10,000 feet" and not by looking at the actual land and land use. The land use designations were based on the property lines, not by evaluating the actual conditions. Since our entire lot is of one zoning (manufacturing) and all the property added by the lot line adjustment was part of the industrial oil separation facility (industrial), we do not feel there was/is any wetland on our property to fill in. We left the meadow area undisturbed for future water detention when we developed the property, and only straightened out and defined its edges so as to better use the land adjoining the meadow. Looking at the 1996 and 2014 aerial photos show the meadow area substantially the same except for the edges being better defined. We have been improving our property on weekends since buying it in 1997. We have never done any formal grading as it is generally understood. In your 1996 aerial photo, you can still see the separator pond that was part of the Union Oil industrial facility (the year before we bought the property) and the meadow acting as its forebay. You can also see the overflow channel working as it had recently finished draining what it could back from the water detention area on the Chevron property and the Avila Ranch property line into the ditch. When the contractor, for whom we got the County stockpile permit, finished the job replacing San Luis Obispo City's water pipes, he filled in the separator pond with the old fill removed when he upgraded the City's new pipes. We felt Unocal sold us the separator pond property because they did not want the responsibility for the dangerous separator pond. When it rains, the banks are so steep that you can't climb out and it presented an attractive nuisance at best and a deadly hazard if partially full of water. Once we had the property, we had the City's contractor remove/cure this hazard after he finished replacing the City's water pipes. Since we knew that an industrialized oil/water separation facility cannot be a wetland, the City's contractor filled the pond with the dirt removed from the City water pipe installation. This made the land usable and permanently removed the serious hazard. V:\Fire\Letters\Michael Codron part 2 Oct18.docx PARAGRAPH 8: Speaking of when our property was annexed: We based our long-term plans on putting the ditch into a box culvert or pipe. When we were annexed, we were in the process of jumping through hoops to achieve a permit to put the ditch in a pipe or box culvert. We had no indication that we would not be able to put the ditch into a pipe. When we bought the property, it came with a ep rmit to put the ditch into a pipe and build industrial condos on the property. The expectation that we could actually use the property and build on it was a key factor in our purchase. We looked into the laws governing the property (County) and saw we could bury the ditch and have a usable lot. We made our long-term plans and have been dutifully trying to implement them to this day. You are now stating that the City has a "right" to a 50'-wide easement diagonally through our property and through our neighbor's property. This would reduce the usability and value of our property by over 50% and would not allow for the plans we have been working towards for over 20 years. At some point, you seem to be stating that someone TOOK half of our property's value without telling us. We had no chance to effectively protest or assert our rights and have them respected or actually considered. We knew that all or almost all of the existing commercial property owners on Suburban Road and Horizon Lane did not want annexation and that as part of the airport commercial area we were safe from any legitimate annexation effort by the City for the foreseeable future. When the City decided to annex all the Prado Road/Tank Farm Road land for the residential housing projects that were in planning, a clever planner schemed a method to effectively eliminate our property rights concerning annexation by grouping us with totally dissimilar, future housing land with enough annexation vote power to pre-determine the outcome of the annexation regardless of our votes and desire on the subject. The reason I mention this is that if the City had not cheated by splintering us off from the other commercial properties and disenfranchising our rights we would by now have had a County permit and the ditch would be underground, out of sight to the betterment of all. Without the unfair annexation, our plans would be realized and this could not be an issue. Was the Suburban Road/Horizon Lane portion of the last annexation done fully legally? Was it fair to property owners? Was the clever disenfranchising a violation of any of our civil and legal rights? We can't be sure without efforts that I hope we both do not want to spend the time to arrive at. We can be sure if we were not annexed we would not be having any issues or discussions. PARAGRAPH 9: When we bought the property, it came with an approved County permit to put the ditch into a pipe and build industrial condos on the property. Only our naivety and lack of funds to immediately develop the property allowed the permit to lapse...Otherwise, there would not be an issue —ditch would be in pipe! V:\Fire\Letters\Michael Codron part 2 Oct18.docx When the City annexed the land, we had an active open permit with the County to put a pipe in our ditch and bury it. City staff should have known of our intentions since at least 2005 and 2007 when we testified before Council and wrote letters explaining the actual situation and our plans. I notice in your letter that County staff was not very responsive on the information regarding our previously open permit. It was not the stockpile permit that was earlier granted and used by the contractor doing the City's water pipe installation. The stockpile permit had nothing to do with our application to put the ditch into a pipe or square culvert box and the stockpile permit did not mention the ditch one way or the other as the ditch was not involved. I am enclosing a receipt printout (Attachment 1) that shows the amount of the partial refund County Planning staff gave us when they returned the permit to us and said the City now has jurisdiction. They returned 80% of our original fees and kept 20% for the work they had done on our application. The reference number on the receipt should allow you to get further details if needed. The County staff stalled our permit application over 11 months and charged us 20% for the work they did processing our application. We were told, at the time, that County Planning was in touch with City planning and County was stalling our permit to see what happened with the annexation. When they stopped processing our application, we had just done a biological survey of the "meadow" portion to ensure no fairy shrimp were present. I would provide you with the complete file but because of our 2015 fire, we have not been able to find it and it likely has been destroyed. I appreciate the "City" admitting the City planners have called our ditch a creek only since 2006 and the first time it was potentially referred to as a "creek" was in 1994 City open space element, which did not yet apply to County land at all. I request you provide to us the 1994 studies and research used to justify the planning scheme to change our property rights and land usage along a 100-year-old ditch. To take our land and the use of our property by having a planner merely re-label our ditch as a "creek" as a part of a general planning scheme without field work, criteria, or standards being observed is not a legal way to gain control over a major portion of someone's property. PARAGRAPH 10: Regarding your observations on our metal ocean containers: The upper levels of the two-high, five-wide container pile is part of our ongoing (year three) experiment into the feasibility of linking interiors as part of a future building concept. We are testing how the breaches perform in weather and if it seems to actually be worth the trouble. To see the actual practicality and usefulness requires at least a low level of usage, which is what our slow-selling backstock inventory provides. We also get the much added bonus of safety by not having to open the doors on the upper level — (This is both hard and dangerous.) The container stack is both temporary and an experiment. If the breaches between these boxes become the ultimate issue, we could close them back up. This would be at the expense of both safety and our experiment V:\Fire\Letters\Michael Codron part 2 Oct18.docx in practical utility, but we do still have the steel pieces that were removed. The containers will not remain in this location when we build. Your staff member saw us with extension cords doing work on our property because we have no power except when we run the generator. It is a Harbor Freight 5,500 watt unit that we have in a trailer. We have LED string lighting in the three containers where we open/inspect/replace parts/repackage our line of Leslie Dame music storage furniture. We process freight returns on IKEA-style put-together music-related storage racks and cabinets. To process these, we usually run the $99.00 small generator from Harbor Freight. We use extension cords to connect the three boxes to the generator when we are there. We put generator and cords away when we leave. We are at the yard processing boxes six to eight hours a week. We also have standard fluorescent lighting in our"shop" container that can operate when the bigger generator is on and plugged into it. PARAGRAPH 11: Thank you for your comment on "due process." I apologize for not being clearer in my request for clarification. The due process I am referring to is the Federal and State laws in regards to taking of property or the use of property. Whether done through condemnation, right of way, or eminent domain, there are steps to take which guarantee that the property owner's rights are respected and the agency doing the taking has properly honored the process. I do not see, in the case of our ditch, that this has happened. Once a "planner" renamed the ditch, all the process has been about is our compliance to creek criteria rather than to ditch criteria. I am looking for the necessary studies, meetings, legal notices to affected owners only, time to object, and objections actually evaluated and considered within appropriate legal norms. This did not happen at all with our ditch and property! PARAGRAPH 12: In conclusion, there are two remaining things to think about and consider in regard to our property. 1. Water detention system: As you now know, our property is the keystone of the original Union Oil water detention/overflow system put in to support the oil separator pond that was formerly on our property. On the maps you provide, the detention area is shown as a waterbody/wetland area. This is only possible as long as our property continues in its role as the restriction that enables the overflow/detention system to function. Destroy the current configuration of our property and allow free and unrestricted drainage through our property as you are demanding, and you lose the detention system as it currently functions. Have you done studies on this? If so, we would appreciate seeing them. V:\Fire\Letters\Michael Codron part 2 Oct18.docx 2. Our ditch has been in a pipe since at least 1927 when the oil separation facility was built after the great fire. It is not a question of if our ditch can be put into a pipe or box culvert. It has been in a pipe since 1927 and we should only be discussing how long the pipe can be. A natural stream is never in a pipe or culvert except at a road crossing. This is yet more proof our ditch is manmade and an industrial drainage ditch, not a blue line waterway. In reviewing what City planners have done with the Tank Farm area, it seems they have treated the area in general as their own blank canvas to create creeks and channels where there are none to transform drainages (ditches) into blue line streams as if by magic. Disconnected big puddles became "tributaries" and new channels are created by caveat. With all the flexibility the City has given itself with the Tank Farm area, there should be room to let us develop our manufacturing zoned lot to its full potential. We ask that you affirm our right to put the ditch in a pipe or box culvert so we can proceed with our plans to put up a warehouse, storage facility, and actual low-cost housing on top of it all if we can get permission. Without resolving the ditch issue first, it is not possible to develop the property. We look forward to reaching an understanding where we can develop and use our property in the way we have been planning since 1997. Sincerely, Richard W. Ferris Richard W. and Sharliss S. Ferris Trust Encl: Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 Attachment 6 V:\Fire\Letters\Michael Codron part 2 Oct18.docx