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HomeMy WebLinkAbout1/22/2024 Item 4a, Rourke Wilbanks, Megan Subject:RE: Records Request UPDATE -- PRR21285 Rourke - Rourke Records From: Whipple, Anthony <awhipple@slocity.org> Sent: Monday, January 22, 2024 11:34 AM To: Agenda Correspondence Routing <AgendaCorrR@slocity.org> Subject: FW: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Hi, more Tree committee correspondence below. Please let me know if you have any questions Thank you, Anthony Whipple City Arborist/Urban Forest Services Supervisor Public Works Urban Forest Services 25 Prado Road, San Luis Obispo, CA 93401-7314 E awhipple@slocity.org T 805.781.7021 C 805.431.0398 slocity.org Stay connected with the City by signing up for e-notifications From: John Rourke <rourkefam@gmail.com> Sent: Monday, January 22, 2024 11:10 AM To: White, Kelly <kwhite@slocity.org> Cc: Kersten, Markie <mkersten@slocity.org>; Whipple, Anthony <awhipple@slocity.org>; Symens, Sadie <ssymens@slocity.org>; Fogg, Andrew K. <afogg@coxcastle.com>; Dietrick, Christine <cdietric@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Anthony, please forward this exchange of emails to the tree committee. I will bring copies just in case. I will email you additional information to give them in the coming hours. Thanks John On Mon, Jan 22, 2024 at 11:06 AM John Rourke <rourkefam@gmail.com> wrote: Thank you for your reply, it is unfortunate the city will not provide answers to my questions, I believe it will be compelled to in the future. I will be at the hearing and I will provide as much info as I can in advance although the city's non disclosure severely limits my abilities. John 1 On Mon, Jan 22, 2024 at 10:32 AM White, Kelly <kwhite@slocity.org> wrote: Mr. Rourke, Your reply is to the email containing Markie’s answers. The only other things I do not see in this thread are her last message from Wednesday: From: Kersten, Markie mkersten@slocity.org Sent: Wednesday, January 17, 2024 3:11 PM To: John Rourke rourkefam@gmail.com Cc: Fogg, Andrew K. afogg@coxcastle.com; Dietrick, Christine cdietric@slocity.org; White, Kelly kwhite@slocity.org Subject: RE: Records Request UPDATE -- PRR21285 Rourke - Rourke Records John, The agenda report for this item has been posted to the City’s website and contains the analysis and information Anthony relied upon to determine a violation has occurred: https://pub- slocity.escribemeetings.com/Meeting.aspx?Id=0e7c80d6-e49c-42f0-9095- 4df6e6680d19&lang=English&Agenda=Agenda&Item=11&Tab=attachments Best, Markie And Anthony’s reply to your question about the measuring tool: From: Whipple, Anthony Sent: Thursday, January 18, 2024 7:27 AM To: John Rourke <rourkefam@gmail.com> Subject: RE: Preparing for appeal Hi John, I measured the trees using a diameter tape. All three trees had a diameter of ten inches at breast height (DBH). 2 You can also watch a video on how to measure trees here. Please let me know if you have any questions Thank you, Anthony Whipple City Arborist/Urban Forest Services Supervisor The City has supplied its record for today’s hearing before the Tree Committee, has no further information to add, and intends to proceed as scheduled. You are welcome to make any arguments and present any evidence you like. Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: John Rourke <rourkefam@gmail.com> Sent: Monday, January 22, 2024 9:51 AM To: Kersten, Markie <mkersten@slocity.org>; Whipple, Anthony <awhipple@slocity.org>; Symens, Sadie <ssymens@slocity.org> Cc: Fogg, Andrew K. <afogg@coxcastle.com>; Dietrick, Christine <cdietric@slocity.org>; White, Kelly <kwhite@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records I have not received answers to the following questions. I would appreciate answers as they are what I will base my appeal on. In addition to the questions below I would also like to know the following. What was the diameter of each tree that I am being fined for? In an email last week Anthony said they were each 10". This is incorrect. What tool (specific name, it looked like a bike chain) was used to determine the diameter? What was the percentage of canopy removed for each tree that the city determined had been over trimmed? 3 Code says 1/3 (33%) can be trimmed, how did the city determine the percentage of canopy removed? How did the city determine these fines? please provide the document that provides the fees and how they are applied. Why did the fines drop from 16k to 8k? I was never given an explanation but it suggests that this process has errors Please confirm that the city cannot enforce illegal trimming of a tree that is under the diameter that keeps it from being removed without a permit. Please confirm that local arborists have been informed that the city no longer accepts a measuring tape held across the trunk 4.5 feet off the ground as an acceptable method to measure diameter. I have been told that this is still the method used to determine if a tree can be cut down. I believe the city is in violation of my due process rights. the five elements of due process are,  Equality. The system must not discriminate procedurally between parties. If one party is entitled to counsel, then all are entitled. If notice is provided one, it must be provided for all. The essential requirement for Equality is that the system provide a “level playing field" for the disputants. Discrimination in appearance or fact is an anathema to the Equality required to satisfy due process.   I believe the city is being overly assertive of its laws against me because I am a developer. The only other instanceI have found of the city acting so harshly was another developer. I believe the city is more forgiving of other citizens.  Economy. The cost of access to the system must not be a barrier to its use or operate to the disadvantage of one or the other parties. This 4 means that grievance and arbitration proceedings should not be made a Board profit center and, in fact, may have to become subsidized to assure open access.  There is not sufficient warning that the city's interpretation of its tree laws can, without warning, result in fines in the 10s of thousands of dollars. All other infractions in the city have warnings, why is this an exception?  Expedition. As “justice delayed is frequently justice denied,” there is an affirmative obligation on the part of the system to expedite ethics and arbitration proceedings. This does not foreclose orderly procedure with adequate time to ensure notice, time to prepare, opportunity to identify and gather witnesses, and otherwise develop facts and arguments. It does, however, foreclose dilatory tactics, unreasonable extension of time, and protraction of hearings.  I requested information back when the fines were established. I was told it would take 4 months to receive the information. It took over 2 years to receive the information I requested to start my defense for my Appeal. Since receiving that initial information I have requested follow up information and am being denied information I need for my appeal. Please give me the info I'm requesting.   Evidence. The system must be designed and function to elicit evidence, not assumptions; proof, not presumptions. While strict rules of evidence in the judicial sense do not apply, there must be control of what is admitted as relevant and judgment as to what is mere speculation and hearsay designed to prejudice rather than inform.  I've asked for evidence several times. What was the diameter of the trees? What was the percentage of canopy removal? The city's decision to fine me was based on Assumptions and Presumptions.  Equity. The system must produce decisions that reflect a sense and substance of “rightness” and “reasonableness.” In matters involving unethical conduct, the punishment should fit the offense. The 5 judgment should reflect consideration of extenuating circumstances and a balancing of competing values and objectives. Moreover, the predictability, consistency, and uniformity of the system’s performance is an important measure of Equity. I don't think the decision to fine me was made in rightness and reasonableness. As stated above the punishment should fit the offense. It is obvious that the city did not take into account the extenuating circumstances (the interpretation difference between previous and current city arborist, I was following the methods taught to me by the previous arborist). The way the city is interpreting its codes is not predictable, consistent or uniform in this case and makes me worry about future altercations. I request answers to my questions, justification of not providing me with due process and a rescheduling of my hearing to February so that I can read your answers, and provide the tree committee with my statement prior to the hearing. Because of your refusal to answer, my ability to provide the committee with information in advance has been compromised. Thanks John On Wed, Jan 17, 2024 at 4:05 PM John Rourke <rourkefam@gmail.com> wrote: I've added to the requested information below 1. I did not receive an explanation of why the fine went from 16k to 8k. Please provide one, I need it to present at my hearing. 6 2. I request an explanation on how the city determines a 30% reduction of canopy and how it did so in this case. I have asked this in the past but have never been given a response. As we have previously discussed, the purpose of an appeal hearing is for the City to explain the basis for determining a violation occurred based on the evidence in the record, and for you to present your case as to why you believe a violation has not occurred. City staff will be prepared to explain the requested information at the hearing. I need this explanation prior to the hearing for my appeal. I disagree that the purpose of the appeal hearing is for the city to explain the basis, it should explain prior to the hearing so that I can base my appeal on it. I can't present my case prior to the city providing me with the information. What you suggest leaves me purposefully unprepared. I request again you provide this information. 3. I request an explanation of how Anthony determined the diameter of the trees in question. I remember Anthony using a tool that went around the tree but this suggests circumference measurement rather than diameter. 2 of the 3 trees in question were under the 10" diameter threshold to allow removal. It doesn't make sense to fine for trimming trees that are allowed to be removed. See above response. I need this explanation prior to the hearing for my appeal. I disagree that the purpose of the appeal hearing is for the city to explain the basis, it should explain prior to the hearing so that I can base my appeal on it. I can't present my case prior to the city providing me with the information. What you suggest leaves me purposefully unprepared. I request again you provide this information. 4.I request the complete email conversations of Anthony, Greg Cruse and Matt Horn regarding this event. I will email copies of what I received through the info request, there seems to be gaps. I requested these email threads from you several months ago so that we could verify we did not inadvertently withhold non-privileged documents. I am still waiting for copies of these threads. I will send the emails I would like expanded after this email. 5.I ask that you postpone the tree committee hearing until I have received the info from these requests and am done creating my defense based on the info given to me. We are planning to produce the requested records by the end of this week. That will provide you with sufficient time to prepare for your appeal hearing presently scheduled for January 22, 2024. That does not provide me sufficient time and you have not provided me all the info I have asked for. 6. (NEW) Please provide an explanation of how the fines were calculated, please provide the document that provides the fees and how they are applied. 7. (NEW) please confirm that local arborists have been informed that the city no longer accepts a measuring tape held across the trunk 4.5 feet off the ground as an acceptable method to measure diameter. I have been told that this is still the method used to determine if a tree can be cut down. 7 8. (NEW) please confirm that the city cannot enforce illegal trimming of a tree that is under the diameter that keeps it from being removed without a permit. On Wed, Jan 17, 2024 at 2:49 PM John Rourke <rourkefam@gmail.com> wrote: Hi Markie, 1. I did not receive an explanation of why the fine went from 16k to 8k. Please provide one, I need it to present at my hearing. 2. I request an explanation on how the city determines a 30% reduction of canopy and how it did so in this case. I have asked this in the past but have never been given a response. As we have previously discussed, the purpose of an appeal hearing is for the City to explain the basis for determining a violation occurred based on the evidence in the record, and for you to present your case as to why you believe a violation has not occurred. City staff will be prepared to explain the requested information at the hearing. I need this explanation prior to the hearing for my appeal. I disagree that the purpose of the appeal hearing is for the city to explain the basis, it should explain prior to the hearing so that I can base my appeal on it. I can't present my case prior to the city providing me with the information. What you suggest leaves me purposefully unprepared. I request again you provide this information. 3. I request an explanation of how Anthony determined the diameter of the trees in question. I remember Anthony using a tool that went around the tree but this suggests circumference measurement rather than diameter. 2 of the 3 trees in question were under the 10" diameter threshold to allow removal. It doesn't make sense to fine for trimming trees that are allowed to be removed. See above response. I need this explanation prior to the hearing for my appeal. I disagree that the purpose of the appeal hearing is for the city to explain the basis, it should explain prior to the hearing so that I can base my appeal on it. I can't present my case prior to the city providing me with the information. What you suggest leaves me purposefully unprepared. I request again you provide this information. 4.I request the complete email conversations of Anthony, Greg Cruse and Matt Horn regarding this event. I will email copies of what I received through the info request, there seems to be gaps. I requested these email threads from you several months ago so that we could verify we did not inadvertently withhold non-privileged documents. I am still waiting for copies of these threads. I will send the emails I would like expanded after this email. 8 5.I ask that you postpone the tree committee hearing until I have received the info from these requests and am done creating my defense based on the info given to me. We are planning to produce the requested records by the end of this week. That will provide you with sufficient time to prepare for your appeal hearing presently scheduled for January 22, 2024. That does not provide me sufficient time and you have not provided me all the info I have asked for. John On Tue, Jan 9, 2024 at 10:47 AM Kersten, Markie <mkersten@slocity.org> wrote: John, Please see my answers to your requests in red below. Markie Markie Kersten pronouns she/her/hers Assistant City Attorney City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E mkersten@slocity.org T 805.781.7141 slocity.org Stay connected with the City by signing up for e-notifications The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney- client privilege and/or represents confidential attorney work product. Recipients should not file 9 copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you. From: John Rourke <rourkefam@gmail.com> Sent: Tuesday, January 9, 2024 8:25 AM To: Kersten, Markie <mkersten@slocity.org> Cc: Fogg, Andrew K. <afogg@coxcastle.com>; Dietrick, Christine <cdietric@slocity.org>; White, Kelly <kwhite@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Sorry, forgot to request an explanation why the fine went from 16k to 8k. I think this will help establish that there was confusion of the circumstances and the enforcement of the code. Please see below responses. Thanks Johb On Mon, Jan 8, 2024, 7:41 AM John Rourke <rourkefam@gmail.com> wrote: Sorry, Holidays really put me behind, just playing catch up. I need to add to the information request. After speaking with Andrew I will need to request the instances where a tree complaint was made but did not result in fines as well. we can keep it to one year before and one year after instead of the previously requested 2 years before and after. We feel that this will more accurately show my belief that there is prejudice in the issuance of fines. This request is already captured in the one we are working on. We are searching for similar complaints related to trees (with keywords suggested by you and Andrew) and any related enforcement action; for some complaints, there will be no resulting enforcement, but the complaint will still be produced. To clarify, last time we spoke, you agreed to narrow your request to 1 year prior to the alleged violation and one year after the alleged violation (in total, August 2020-August 2022). Are you now requesting to expand the previously agreed upon time frame? I request an official letter stating that some documents were withheld and the reason why. I will provide this to the tree committee with my explanation. You are free to provide the Tree Committee with the emails we have sent you explaining that certain documents were withheld as attorney-client privileged communications. 10 I request that the Tree committee be provided the withheld documents so they can decide if they contain evidence of prejudice and if not an official letter stating why. We will not provide the Tree committee with attorney-client privileged documents as that could be construed as a waiver of privilege. You are free to use this response as my official response stating why our office cannot accommodate this request. I request an explanation on how the city determines a 30% reduction of canopy and how it did so in this case. I have asked this in the past but have never been given a response. As we have previously discussed, the purpose of an appeal hearing is for the City to explain the basis for determining a violation occurred based on the evidence in the record, and for you to present your case as to why you believe a violation has not occurred. City staff will be prepared to explain the requested information at the hearing. I request an explanation of how Anthony determined the diameter of the trees in question. I remember Anthony using a tool that went around the tree but this suggests circumference measurement rather than diameter. 2 of the 3 trees in question were under the 10" diameter threshold to allow removal. It doesn't make sense to fine for trimming trees that are allowed to be removed. See above response. I request the complete email conversations of Anthony, Greg Cruse and Matt Horn regarding this event. I will email copies of what I received through the info request, there seems to be gaps. I requested these email threads from you several months ago so that we could verify we did not inadvertently withhold non-privileged documents. I am still waiting for copies of these threads. I ask that you postpone the tree committee hearing until I have received the info from these requests and am done creating my defense based on the info given to me. We are planning to produce the requested records by the end of this week. That will provide you with sufficient time to prepare for your appeal hearing presently scheduled for January 22, 2024. Thanks John 11 I req On Wed, Dec 13, 2023 at 6:32 PM John Rourke <rourkefam@gmail.com> wrote: Thank you, I want resolution too but I need to be able to present the facts to the Tree Committee. I'll email you tomorrow with the emails I'm hoping to get more of and a few questions. Thanks again John On Wed, Dec 13, 2023, 6:05 PM Kersten, Markie <mkersten@slocity.org> wrote: Yes, we will provide records subject to disclosure under the PRA of similar complaints related to trees (improper pruning, damage, removal) and related enforcement records from August 2020-August 2022. As we discussed, if after you review those records you feel additional documents are needed that are rationally related to your appeal, we will consider further staying the appeal. At this time, we are prepared to meet our deadlines to keep it on calendar for January 22. Respectfully, the City has now stayed your appeal for two years. While we acknowledge that our staff plays a role in the delay, the primary reason for the delay was due to your incredibly broad records request and your refusal to narrow the scope. We agreed to stay the appeal until we produced those documents, which we did several months ago now. We have further agreed to delay it to January 2024 to accommodate this new request. We need to reach resolution on this matter and move forward. Best, Markie From: John Rourke <rourkefam@gmail.com> Sent: Tuesday, December 12, 2023 4:06 PM To: Kersten, Markie <mkersten@slocity.org> Cc: Fogg, Andrew K. <afogg@coxcastle.com>; Dietrick, Christine <cdietric@slocity.org>; White, Kelly <kwhite@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records They will provide 1year prior to the fine and 1 year after? All instances that resulted in correction? What if I need more info on those instances? I would appreciate not scheduling the hearing until I'm satisfied with the 12 information provided and given the opportunity to petition for documents not provided to me. I feel like my right to information and appeal is being unjustly sped up in a way that effects my ability to defend myself. On Tue, Dec 12, 2023, 3:45 PM Kersten, Markie <mkersten@slocity.org> wrote: We are continuing to work on your records request and have been since we met. During our meeting you agreed to narrow your request to documents relevant to your appeal (with search terms suggested by you and your counsel), and our staff has indicated they will be able to produce those with sufficient time for you to review prior to the January 22 hearing. Thanks, Markie From: John Rourke <rourkefam@gmail.com> Sent: Tuesday, December 12, 2023 3:37 PM To: Kersten, Markie <mkersten@slocity.org> Cc: Fogg, Andrew K. <afogg@coxcastle.com>; Dietrick, Christine <cdietric@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records This message is from an External Source. Use caution when deciding to open attachments, click links, or respond. I haven't received anything about the offset program yet, can you please send that as well. Thanks John On Tue, Dec 12, 2023, 3:31 PM John Rourke <rourkefam@gmail.com> wrote: The pictures you sent are the two trees that were less than 10" diameter and allowed to been cut down. If they are allowed to be cut down why fine for trimming. If you are not willing to present it to Derek please continue my information request. I will send you the emails that I would like to see more of that you said you would accommodate. Please delay the tree committee appeal until I have reviewed the emails from you and the additional information requested. I feel that the information I requested is important for my appeal I disagree with your statement that it is not. Thanks John 13 On Tue, Dec 12, 2023, 3:19 PM Kersten, Markie <mkersten@slocity.org> wrote: John, I have reviewed the photo of the subject trees prior to the alleged violation as well as the photo of the trees post alleged violation, and it’s our position that there is no ambiguity as to whether you trimmed over one third of the canopy in violation of our regulations. See attached. While I acknowledge your argument that there is a dispute about how to measure the diameter of the tree, our office intends to support staff’s conclusion that the trees were of sufficient diameter to require a permit for removal. The arguments advanced below, particularly in light of the record, are unpersuasive and do not warrant bringing this to Derek for review. Further, absorbing the cost of your alleged violation does not constitute a settlement offer. A settlement offer would require some offer of payment of the pending penalties. I do not have the bandwidth to continue to debate this issue with you. Indeed, these are the precise issues that the Tree Committee is well suited to hear and decide upon. If after discussing with Andrew, you two can articulate how the attached raises doubt as to your alleged violation and there is a settlement offer of the pending penalties on the table, our office will consider presenting it to Derek. But the arguments and “offer” made to date do not warrant Derek’s review. Best, Markie Markie Kersten pronouns she/her/hers Assistant City Attorney City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E mkersten@slocity.org T 805.781.7141 slocity.org Stay connected with the City by signing up for e-notifications The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients 14 should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you. From: John Rourke <rourkefam@gmail.com> Sent: Sunday, December 10, 2023 7:02 AM To: Kersten, Markie <mkersten@slocity.org> Cc: Dietrick, Christine <cdietric@slocity.org>; Fogg, Andrew K. <afogg@coxcastle.com> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Hi Markie, I thought I did that in my last email. I believe I would be successful in my appeal because the perceived violation would not have been a violation to the previous city arborist and my actions were done in the way I had been instructed by the previous city arborist after multiple interactions with him over the years. The issue arises from a different interpretation of the tree ordinance by a new city arborist and an incorrect assumption that the work done was for development purposes and therefore must be punished to show zero tolerance. The fine was reduced from 16k to 8k after the city realized it cant impose the double fines because the tentative map was already approved and none of the tree work was done for development benefit. It has been two years since the perceived violation and the trees in question are doing well. It has cost me over $1000 at this point to deal with the repercussions of this perceived violation. My settlement offer is that I am willing to absorb the cost I've incurred dealing with the incorrect application of the tree ordinance and withdraw my requests for information which will save us both time. As I stated 2 of the 3 trees in question were of a diameter that allowed complete removal and the other was not trimmed over 1/3 at once but over years and I doubt it was trimmed over 1/3 during my ownership. Since the trimming of 1/3 the canopy is at the heart of the matter I would also appreciate the city providing me with the information on how it determined the 1/3. From what I can tell the city is making these accusations based on assumptions and doesn't have a way to accurately measure this. I don't know why you wouldn't present it to Derek, it represents an opportunity to save the city time and money and right a wrong based on a knee jerk reaction to a perceived violation without properly vetting the decision. 15 Thanks John On Fri, Dec 8, 2023 at 10:09 AM Kersten, Markie <mkersten@slocity.org> wrote: Hi John, We would need you and Andrew to articulate why you believe you would be successful at the appeal hearing and a settlement offer for the civil penalties the City has imposed for your alleged violation. Christine and I would then review your offer and determine whether to present to Derek for consideration. Thank you, Markie From: John Rourke <rourkefam@gmail.com> Sent: Wednesday, December 6, 2023 6:13 AM To: Kersten, Markie <mkersten@slocity.org>; Dietrick, Christine <cdietric@slocity.org> Cc: Fogg, Andrew K. <afogg@coxcastle.com> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Thanks for your time yesterday, I suggest we pause the information request and see if we can come to an agreement based on our conversation yesterday. What do you need for Derek to consider this case? The facts are that the perceived violation was not a violation to the previous arborist and my actions were done in the way I had been instructed by the previous arborist after multiple interactions with him over the years. The perception that I did this to enhance my development opportunity is incorrect, the work I did was in an effort to preserve the trees as part of the landscape of the property and had no effect on its ability to be developed. It has been two years since the perceived violation and the trees in question are doing well. It has cost me over $1000 at this point to deal with the repercussions of this perceived violation. I am willing to absorb that and I ask that we work together to come up with a solution to the interpretation issue. Specifically adding a reference to time for the 1/3 canopy trimming rule and how to calculate it and a standard for measuring the diameter of trees (is a tape measure held at chest height still acceptable). As I stated yesterday 2 of the 3 trees in question were of a diameter that allowed complete removal and the 16 other was not trimmed over 1/3 at once but over years and I doubt it was trimmed over 1/3 during my ownership. Thanks John On Mon, Dec 4, 2023 at 11:49 AM John Rourke <rourkefam@gmail.com> wrote: In preparation for our meeting tomorrow I wanted to give the bullet points and a recap. Roughly 2 years ago a neighbor called the city on me for cutting trees, Anthony the new city arborist, came to inspect, All the tree work I did was work I have done in the past and had done with guidance of Ron, the previous city arborist, this is documented in previous complaints by neighbors that Ron and I worked through with no punishment or fines. Unfortunately Anthony had a different method of interpretation (different way of measuring diameter of trees, frequency that 30% of the canopy can be cut) based on his interpretation he felt I was in violation of the city's tree ordinance. His interpretation was incorrect because two of the trees were less than 10" diameter and therefore could be cut down completely if I chose to (based on the way of measurement taught to me by the previous city arborist) and all three of the trees in questions canopies were never cut more than 30% at one time, rather trimmed occasionally over the course of years. Despite our disagreement on Anthonys interpretation we worked together on a solution that was amicable, He asked that I hire an arborist to do a restoration plan to insure the trees survived, he proposed this as an alternative to possible replacement of trees and fines. I would have never agreed to do an arborist report without this compromise because I did not violate the tree ordinance, it was being misinterpreted in comparison to the city's previous interpretation. About a month after I turned in the arborist report I was sent a fine for roughly $16.000. Anthony informed me that the higher ups decided to fine me. I filed an appeal to the fine and a public information request so I can see how this happened. I was informed the information request would take 4 months, 2 years later I received the final batch of documents I requested. A significant amount was not given to me based on attorney client privilege which I would like to contest. Based on what I received I did an additional information request to help me with my appeal hearing. I ask that the city either have a reasonable conversation with me about their misinterpretation of the tree ordinance as it pertains to this incident or that the city wait till I have finished my information requests and contesting of the withheld documents to schedule my appeal hearing. The city should consider adding language to the tree ordinance that defines the acceptable method of measuring tree diameter. The city used to advise holding a tape measure to the tree at chest height, this method was used for years and was told to me by Ron Combs, the previous Arborist. The city should also consider adding language that defines the time period that must lapse prior to trimming your canopy again. Currently it says you can't trim more than 30% of the canopy but gives no time frame for additional trimming. Also how do you measure the 30% on a three dimensional object? 17 If time permits I would also like to talk to you about the Offset program, I am wondering how it's not a violation of Nexus Law. Thanks again, I always appreciate your time John On Tue, Nov 28, 2023 at 12:54 PM John Rourke <rourkefam@gmail.com> wrote: OK for me On Tue, Nov 28, 2023, 12:51 PM Kersten, Markie <mkersten@slocity.org> wrote: Hi John, I forgot that Christine is out tomorrow through the end of the week for a conference. How does next Tuesday at 1pm work? Thanks, Markie From: John Rourke <rourkefam@gmail.com> Sent: Tuesday, November 28, 2023 12:40 PM To: Kersten, Markie <mkersten@slocity.org> Cc: Fogg, Andrew K. <afogg@coxcastle.com>; White, Kelly <kwhite@slocity.org>; Whipple, Anthony <awhipple@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records 18 Sure how is wed? On Tue, Nov 28, 2023, 9:56 AM Kersten, Markie <mkersten@slocity.org> wrote: Hi John, I think it would be best for our office to jump on a call with you and Andrew to discuss these issues. Can you please provide your availability over the next week? Thanks, Markie From: John Rourke <rourkefam@gmail.com> Sent: Monday, November 27, 2023 2:31 PM To: Kersten, Markie <mkersten@slocity.org>; Fogg, Andrew K. <afogg@coxcastle.com> Cc: White, Kelly <kwhite@slocity.org>; Whipple, Anthony <awhipple@slocity.org>; Wilbanks, Megan <mwilbanks@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Hi Markie, All is well, and I had a great holiday, I hope yours was good as well. I would appreciate the City waiting until the information I requested be provided to me prior to scheduling the appeal hearing since I need the info for my appeal. The thousands of pages provided did not include the documents that you claim have attorney/client privilege. I believe that these documents will show that the city is acting with prejudice and in bad faith and I would like the city to allow me the opportunity to try to get them prior to forcing the tree committee to make a decision. The additional information will also help prove my case as it will provide a history of how the regulations were enforced in the past and how they are enforced now. I disagree with your statement that these will have no bearing on their decision and I believe I have a right to them and a right to use them to defend myself. My belief is that the Tree Regulations are being misinterpreted and misapplied in a punitive manner and the documentation I requested will help me prove that. In response to your response I believe Anthony was operating in good faith towards a solution based on the different interpretations of the prior arborist and himself. I worked with him towards a solution based on the mutual verbal agreement that fees would be avoided if we worked together towards 19 preserving the trees. I did as he requested and hired an arborist for a restoration plan rather than push my argument that none of the canopies were ever trimmed more than 30% at one time (the trimming took place over the course of a year) and the fact that 2 of the 3 trees were of a diameter that allowed them to be cut down completely. While Anthony uses a different tool to measure the diameter of the tree, the way I was taught to measure by Ron Combs is a measuring tape held to the trunk at chest height. 2 of the trees were under the 10" diameter which allowed them to be cut down completely. Your statement “in addition to civil penalties, the property owner will be required to obtain the services of an ISA certified arborist to determine the future viability of the tree and, if salvageable, create a maintenance plan to restore the tree.” proves my point. Why would he have me do the arborist report prior to the fines? He and I were in agreement that there was a grey area and a changing of the guard that made this not a cut and dry situation. I've included Andrew in this email, I will ask him to help me institute a proceeding to challenge the City’s application of an exemption to otherwise responsive records pursuant to Government Code Section 7923.000. My initiation of that process absolutely has bearing on my appeal to the Tree Committee as I believe the documents that you are withholding will show that the city is acting with prejudice and in bad faith. I would like to wait until the new information I requested is provided as I'm sure you will withhold information from those batches as well. I would like to challenge the exemption all at once rather than two separate instances. Thanks John On Mon, Nov 27, 2023 at 10:08 AM Kersten, Markie <mkersten@slocity.org> wrote: Hi John, I hope all is well and that you had a nice Thanksgiving holiday. I wanted to reach out to help clarify a few items: 1. Your appeal to the Tree Committee will be heard on January 22, 2024. The City will not accommodate your request to delay the hearing any further from this date. The City has supplied you with thousands of pages of documents related to your property and the specific alleged violation, which you have acknowledged you have had the chance to review. Staff will continue to work on your Public Records Act request related to other tree trimming violations in the City, but given the breadth of your request, there is no guarantee that all documents will be disclosed to you by the date of your appeal hearing. In any case, disclosure of these additional documents has no bearing on the Tree Committee’s decision whether you violated the Tree Regulations and whether the civil penalties assessed comply with our enforcement regulations. 20 2. In response to your statement below, that “I was told by Anthony that the mitigation would be a canopy restoration plan which I agreed to and paid for in good faith and then I was sent a fine. I would like to see the communication that happened for the city to decide to operate in bad faith,” I want to point out that Municipal Code Section 12.24.170(A)(5) provides that “in addition to civil penalties, the property owner will be required to obtain the services of an ISA certified arborist to determine the future viability of the tree and, if salvageable, create a maintenance plan to restore the tree.” Accordingly, whether or not Anthony informed you that a restoration plan would be sufficient, the Municipal Code requires imposition of both civil penalties and a restoration plan for trees damaged in violation of the Code. 3. Finally, as Kelly noted below, you are entitled to institute a proceeding to challenge the City’s application of an exemption to otherwise responsive records pursuant to Government Code Section 7923.000. Your initiation of that process also has no bearing on your appeal to the Tree Committee. Best, Markie Markie Kersten pronouns she/her/hers Assistant City Attorney City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E mkersten@slocity.org T 805.781.7141 slocity.org Stay connected with the City by signing up for e-notifications The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you. From: White, Kelly Sent: Thursday, November 9, 2023 9:55 AM To: John Rourke <rourkefam@gmail.com> Cc: Whipple, Anthony <awhipple@slocity.org>; CityClerk <CityClerk@slocity.org>; Dietrick, Christine 21 <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org> Subject: RE: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Mr. Rourke – I’m not sure why you believe a new request is needed but you may submit any requests for public records that you like. As I stated in my first email yesterday (marked as sent at 11:33am), we have not completed production and have around 84,000 items to review: If you have questions about this, you may call me. My direct line is (805)781-7060. Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: John Rourke <rourkefam@gmail.com> Sent: Thursday, November 9, 2023 8:53 AM To: White, Kelly <kwhite@slocity.org> Cc: Whipple, Anthony <awhipple@slocity.org>; CityClerk <CityClerk@slocity.org>; Dietrick, Christine <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Thank you I plan on filing a dispute to the application of the exemptions. As I did not receive any history of other tree violations I will submit a new records request for those. Please hold off on scheduling me for any hearing until we finalize. Thanks John On Wed, Nov 8, 2023 at 5:49 PM White, Kelly <kwhite@slocity.org> wrote: 22 Mr. Rourke, I’ve copied and broken up your recent message to answer your questions most easily. My answers are in blue: Can I know how many files are redacted? The redactions are visible in produced records, so I presume you mean the number of documents withheld. Gathering this number is not an obligation of the California Public Records Act (CPRA). Can I know who the redacted files are between? No since the redaction of that information indicates it is itself exempt from production. Applying the question to withheld files, the answer is also no since creation of a privilege log (which would include such information) is not an obligation of the CPRA. The extent of the obligation when redacting or withholding responsive records is to provide a list of reasons and the name and title of the staff member who reviewed the records to make that determination. Can I know how many are for attorney-client privilege and how many are due to the other exemptions. No, for the same reason described above, that no privilege log need be created for CPRA requests. Can we have an independent council determine if they meet the privilege and exemptions? The Government Code (the enforcement section begins at section 7923.00) describes the process to dispute the application of an exemption to otherwise responsive records. I didn't see any other instances of tree trimming violations in the records provided. I don't think that was covered under my original request. I only saw information pertaining to my incident. I would like to see the other instances in the city over the last 4 years to not only compare the severity of the punishment for mine but the ways it has been handled by the two different arborists. I think that this would be a new information request, let me know if I'm mistaken. The records produced as Batch 6 were the first responsive to your broader, original request (records not related to your property). Compared to the original phrasing, part 2 of your request yesterday has added an additional 11 months to the start date for records that mention “tree” complaints or cases, but otherwise these were already requested. The letter you were sent in 2022, asking for the search to be narrowed, was meant to focus the search and City staff’s time on expediting the production of records relevant to your appeal. With your direction yesterday, staff can work on the 84,000 items (emails and attachments) that were sent to the relevant Urban Forestry and other staff members I described and contained 23 “tree” so we are most likely to find any complaints and their resolution that were conveyed via email. Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: John Rourke <rourkefam@gmail.com> Sent: Wednesday, November 8, 2023 12:25 PM To: White, Kelly <kwhite@slocity.org> Cc: Whipple, Anthony <awhipple@slocity.org>; CityClerk <CityClerk@slocity.org>; Dietrick, Christine <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Thanks Can I know how many files are redacted? Can I know who the redacted files are between? Can I know how many are for attorney-client privilege and how many are due to the other exemptions. Can we have an independent council determine if they meet the privilege and exemptions? I didn't see any other instances of tree trimming violations in the records provided. I don't think that was covered under my original request. I only saw information pertaining to my incident. I would like to see the other instances in the city over the last 4 years to not only compare the severity of the punishment for mine but the ways it has been handled by the two different arborists. I think that this would be a new information request, let me know if I'm mistaken. Thanks John 24 On Wed, Nov 8, 2023 at 11:33 AM White, Kelly <kwhite@slocity.org> wrote: Mr. Rourke – We have received your request and will collect the responsive records for: 1. All communications regarding trees at 163 Serrano Heights Dr, San Luis Obispo, CA 93405 from, received or between Matt Horn, Greg Cruce, Anthony Whipple, between August 2021 and December 2021. a. Initial collection and review of records responsive to this part of your request was completed last night and has left about 150 items to review today. I will state that the “gaps” you perceived in the records already produced will most likely not be filled as there are many records that will again be redacted or withheld due to attorney-client privilege and other exemptions to the California Public Records Act. You were previously informed of these exemptions and they still apply. 2. All communications and copies regarding all cases of tree complaints from Dec of 2019 to October of 2023 including their resolution. a. The email portion of this will be accomplished by searching for messages containing “tree” that were sent to any member of the Urban Forestry unit or any staff that supported or supervised them during the timeframe you specified. Prior to removal of duplicates, there are about 84,000 items to review (messages and attachments). I will ask Anthony and the Public Works team to look for any existing data to export or documents to collect that contain reporting of complaints about trees and the City’s response/resolution. Besides expanding the start date for the records, these are not actually new requests. Staff will focus on these specific topics and produce the non-exempt responsive records as they are ready. Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 25 From: John Rourke <rourkefam@gmail.com> Sent: Tuesday, November 7, 2023 3:12 PM To: White, Kelly <kwhite@slocity.org> Cc: Whipple, Anthony <awhipple@slocity.org>; CityClerk <CityClerk@slocity.org>; Dietrick, Christine <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Hi All, I was able to get through all the batches and have these additional Information requests. I seem to only have gotten parts of emails regarding this matter from August of 2021 to Dec of 2021 between Matt Horn, Greg Cruce, Anthony Whipple, can you tell me if some emails were withheld? If so, Why? Can I get redacted copies? In early conversations and emails I was told by Anthony that the mitigation would be a canopy restoration plan which I agreed to and paid for in good faith and then I was sent a fine. I would like to see the communication that happened for the city to decide to operate in bad faith. I request all communication records regarding trees at 163 Serrano Heights Dr, San Luis Obispo, CA 93405 from, received or between Matt Horn, Greg Cruce, Anthony Whipple. I had worked with Ron Combs in the past on what can and cannot be done and his approach and what he enforced was very different from Anthonys. I feel like the city's decision to fine me did not take into account the different ways the two arborists applied and enforced the code. I would like to establish that there is a difference in the enforcement between the two and potentially establish that there is a bias towards developers. I request all communications and copies regarding all cases of tree complaints from Dec of 2019 to October of 2023 including their resolution. Thanks John 26 On Mon, Nov 6, 2023 at 3:34 PM White, Kelly <kwhite@slocity.org> wrote: Understood -- We’ll be expecting your new request for public records by tomorrow, end of day. Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: John Rourke <rourkefam@gmail.com> Sent: Monday, November 6, 2023 3:22 PM To: Whipple, Anthony <awhipple@slocity.org> Cc: CityClerk <CityClerk@slocity.org>; Dietrick, Christine <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org>; White, Kelly <kwhite@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Sorry got pulled in too many directions today. I'm taking tomorrow off to finish I'll have it to you by end of day On Mon, Nov 6, 2023, 9:27 AM John Rourke <rourkefam@gmail.com> wrote: Sorry, I thought you were on the other communications, I will finish reviewing the information I received last week and give you my new information request today. We will need to delay the scheduling of the Tree Committee hearing until I receive the information from the new request and have time to review. Thanks John 27 On Mon, Nov 6, 2023, 9:14 AM Whipple, Anthony <awhipple@slocity.org> wrote: Hi John, I haven’t heard back after your review of the batches. We have you scheduled for th December 4 Tree Committee, please confirm your availability for this date. Please let me know if you have any questions Thank you, Anthony Whipple City Arborist/Urban Forest Services Supervisor Public Works Urban Forest Services 25 Prado Road, San Luis Obispo, CA 93401-7314 E awhipple@slocity.org T 805.781.7021 C 805.431.0398 slocity.org Stay connected with the City by signing up for e-notifications From: White, Kelly <kwhite@slocity.org> Sent: Wednesday, November 1, 2023 11:55 AM To: John Rourke <rourkefam@gmail.com> Cc: CityClerk <CityClerk@slocity.org>; Whipple, Anthony <awhipple@slocity.org>; Dietrick, Christine <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org> Subject: RE: Records Request UPDATE -- PRR21285 Rourke - Rourke Records All the batches are posted here: https://opengov.slocity.org/WebLink/Browse.aspx?id=151998&dbid=0&repo=CityClerk 28 Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: John Rourke <rourkefam@gmail.com> Sent: Wednesday, November 1, 2023 11:10 AM To: White, Kelly <kwhite@slocity.org> Cc: CityClerk <CityClerk@slocity.org>; Whipple, Anthony <awhipple@slocity.org>; Dietrick, Christine <cdietric@slocity.org>; Horn, Matt <mhorn@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records I'll finish reviewing the batches just sent and provide my additional information request hopefully by friday. can you please send me a new link to the previous batches as well. my old link isn't working anymore. Thanks John On Wed, Nov 1, 2023 at 10:32 AM White, Kelly <kwhite@slocity.org> wrote: Mr. Rourke, If you have a new request for public records, please specify what you are looking for. It is my understanding that your appeal will be added to the December 4, 2023, Tree Committee meeting. Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: John Rourke <rourkefam@gmail.com> Sent: Tuesday, October 31, 2023 3:12 PM To: White, Kelly <kwhite@slocity.org> 29 Cc: CityClerk <CityClerk@slocity.org>; Whipple, Anthony <awhipple@slocity.org> Subject: Re: Records Request UPDATE -- PRR21285 Rourke - Rourke Records Thank you Kelly, I appreciate it. I will have another information request based on the previous batches and what I will likely find in these batches. As I have patiently waited for this information I ask that we delay the hearing until I am able to review this info and the info from the info request I will submit after reviewing the new info. Thanks John On Tue, Oct 31, 2023, 2:47 PM White, Kelly <kwhite@slocity.org> wrote: Mr. Rourke, Following the production of Batch 4 in June there was some staff turnover in the City Attorney’s Office and Batches 5 & 6 were delayed. Our apologies for this but both new batches are ready now. These batches were reviewed by me, Kelly White, Legal Analyst.  Batch 5 is the last of the non-exempt records responsive to your request and also refined by staff as being relevant to your appeal. These are messages containing your last name along with the phrases "281 Broad", "500 Westmont", "Serrano", "subdivision", "map" or "tree".  Batch 6 has also been posted, which is the first of the non-exempt records responsive to your broad, original request for every email that contained "Rourke", "broad", "Westmont", "Serrano", "Subdivision", "tract map", or "tree." Staff will continue to review the remaining 24,000 potentially responsive records, producing batches on a rolling basis. As the records in Batch 5 are the last ones relevant to your appeal, the pause you requested on the scheduling of your appeal hearing (see attached email) is now complete. Anthony and the Public Works team will contact you (if they haven’t already) to notice the hearing before the Tree Committee. Please let me know if you have any questions. 30 Kelly White Senior Legal Analyst City Attorney's Office E kwhite@slocity.org T 805.781.7060 From: Christian, Kevin <kchristi@slocity.org> Sent: Friday, June 30, 2023 12:56 PM To: rourkefam@gmail.com Cc: CityClerk <CityClerk@slocity.org>; City_Attorney <City_Attorney@slocity.org> Subject: Records Request UPDATE 06302023:PRR21285 Rourke - Rourke Records John Rourke, The City of San Luis Obispo (“City”) received your request pursuant to the California Public Records Act delivered via email on November 19, 2021. Additional documents responsive to your request are now available. Please see the below listed and linked records. Note that they are at the same location as the previously supplied records for your request. 11-19-2021 PRR21285 Rourke - Rourke Records (slocity.org) Please see the folder labeled “BATCH 4” for the below listed records:  Document labelled “Responsive Batch 4,” containing 219 pages.  Folder labelled, “attachments,” containing 10 documents. Please note that records were redacted and withheld due to attorney-client privilege, exempt from disclosure pursuant to California Government Code §7927.705, CA Evidence Code §1040. Architectural works as defined by 17 U.S. Code Section 101, are exempt from disclosure pursuant to California Government Code §7927.705, this division does not require the disclosure of records exempt or prohibited pursuant to federal or state law. Redactions of personal email addresses, account numbers and phone numbers were also made pursuant to Government Code §7922.000, as the public interest in nondisclosure clearly outweighs the public interest in disclosure. This request was reviewed by Assistant City Attorney Markie Kersten and Paralegal Olga Martinez. 31 Additionally, staff is in the process of reviewing additional emails for responsiveness and any needed redactions. We will be supplying responsive files from this search to you on a rolling basis until complete. Kevin Christian Deputy City Clerk City Administration City Clerk's Office 990 Palm Street, San Luis Obispo, CA 93401-3218 E kchristi@slocity.org T 805.781.7104 slocity.org Stay connected with the City by signing up for e-notifications ---------- Forwarded message ---------- From: "Whipple, Anthony" <awhipple@slocity.org> To: John Rourke <rourkefam@gmail.com> Cc: "City Attorney's Office" <City_Attorney_Office@slocitycloud.onmicrosoft.com> Bcc: Date: Wed, 15 Dec 2021 14:41:07 +0000 Subject: RE: Records Request Update: PRR21285 Rourke - Rourke Records Hi John, I will CC this correspondence to our Attorney’s Office as they will know more about the timeline for your Public Records Request. 32