The URL can be used to link to this page

Home My WebLink About01-05-2016 Public Comment, Barasch;I '1i .I City Attomey's Office 990 Palm Street, San Luis Obispo, CA 93401 -3249 805.781.7140 slocity.org December 22, 2015 ' Barasch Family Revocable Trust, udt. COUNCIL MEETING: 0 do 5 �zq % b ITEM NO.: -_a FiEIEIVC-� ,jAN 19 2096 m4VT� �A SLfl 1697 Sydney Street 3ti San Luis Obispo, CA 93401,,,, e Dear Mr. Barasch: This letter responds to yours dated October 23, 2015, purporting to provide the City with "Legal Noticing" regarding creek maintenance issues on several of your properties. The City disagrees with your conclusions that maintenance of your private property is the City's responsibility; rather the City's Municipal Code Section 12.08.170 expressly provides that such maintenance is the responsibility of the property owner, except where the City determines an immediate danger exists and cannot obtain property owner maintenance compliance in the necessary time frame. The City maintains creek corridors within properties it owns, and, at the City's option, staff may also undertake creek maintenance within areas where we have open space, drainage, or flood control easements that give staff a right of access. The City does not enter upon private property to undertake creek maintenance due to trespass and other legal and resource concerns. The City endeavors to implement maintenance measures that are consistent with the Council- adopted Waterways Management Plan (2003) and its Drainage Design Manual that has also been reviewed and endorsed by the Army Carps of Engineers (see: http:llwww.sloci .org!Home/ShowDocument ?id= -4400 }. As it relates to the properties referenced in your letter, City Biologist Otte conducted a land use search for any easements pertinent to the properties, and then personally inspected all of the properties named in your letter to the extent feasible from public view. The City does not have an affirmative maintenance obligation at any of these sites. It is noteworthy, however, that the City does own property (the Rosa Butron Adobe) contiguous and upstream of the Barasch's Dana Street property that backs up to Stenner Creek. In an abundance of caution, the City's Tree Crew removed a large pine tree from that property with a significant lean over the creek, and City Biologist Otte performed some basic vegetation maintenance comprised primarily of removal of non - native castor bean plants. The creek area of the City's property was stable and free of obstructions. As noted, maintenance of your creek property is your responsibility and your assertion that the City maintains liability for your failure to properlymaintain the area or damages resulting therefrom is misplaced. J. Christine Dietrick City Attorney City`of San Luis Obispo January 5, 2016 City Attorney's Office Ms. J. Christine Dietrick, City Attorney 990 Palm Street San Luis Obispo, CA. 93401 -3249 (Hand Delivered) The Gordon Law Firm Professional Service Since 1974 Kirby K. Gordon Attorney at Law #061313 760 Mattie Road, Suite Al Pismo Beach, CA 93449 (800) 394 -2610 (805) 773 -2610 Fax: (805) 773-6050 gordonandgordon@charter.net RE: Barasch Family Revocable Trust, udt. — City -wide Creek Maintenance for downstream and upstream property owners Dear Ms. Dietrick: The Barasch Family Revocable Trust has requested that I respond to your letter of December 22, 2015, regarding creek maintenance issues. In preparation for this correspondence I have reviewed the Council - adopted "Waterways Management Plan (2003)" referenced in your letter. I have also reviewed several treatises and the leading Court cases including "A Comparative Look at Public Liability for Flood Hazard Mitigation" by Dr. Jon A. Kusler, Esq. prepared for the Association of State Flood Plan Managers Foundation (2009), 5 Miller & Starr, Cal. Real Estate (2nd ed. 1989) Section 14:24, Locklin v City of Lafayette (1994) 7 Cal. 4`h 327 and Keys v. Romley (1966) 64 Cal. 2d 396. Where the City owns the adjoining upstream property as is the case with 460 -462 Dana Street, the City is not simply acting in its governmental capacity, but also in a proprietary one. In this situation sovereign immunity does not apply and the adjacent landowner may sue the City just City of San Luis Obispo - Attorney's Office -Creek Maintenance Page 1 AA like a private landowner for nuisance, trespass and violations of water rights. There are numerous instances throughout the City where the City owns land adjacent to a creek or "blue line" stream and therefore owes a duty to the adjoining landowner. The standard for finding liability is going to be whether the conduct of the City was "unreasonable ". A wide range of factors are relevant to the reasonableness of government conduct. A few of these factors as indicated in the case law are as follows: 1. Whether staff has knowledge of potential flood problems. 2. The foreseeability of floods and resulting damage. 3. The degree of risk involved. 4. Applicable regulations. 5. The amount of discretion involved. Therefore, The Barasch Family Revocable Trust was acting in an entirely appropriate and prudent manner by putting the City on notice of the City's lack of city -wide creek and drainage way maintenance in its letter to you of October 23, 2015. With the anticipated very strong El Nino event the Trust deemed it important to address items 1 -3 listed above. The test will be whether the City acted reasonably under the circumstances. With respect to surface water runoff onto adjacent property, the rule in California is that stated in Keys v Romlev, Supra (64 Cal. 2d 396, 409). "No party, whether an upper or a lower landowner, may act arbitrarily and unreasonably in his relations with other landowners and still be immunized from all liability." We acknowledge that sometime after the letter from the Trust that the City did some remedial work as you pointed out in your letter. However, the enclosed pictures demonstrate that after cutting down some foliage the workers merely left the debris on -site. (Please see attached). If there are damages it will obviously be up to the Court to apply the "reasonableness" standard in City of San Luis Obispo - Attorney's Office -Creek Maintenance Page 2 this situation. The Supreme Court in Locklin v City of Lafayette supra (7 Cal. 4 "' 352 -353) citing Keys stated: "It is ... incumbent upon every person to take reasonable care in using his property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. It is equally the duty of any person threatened with injury to his property by the flow of surface waters to take reasonable precautions to avoid or reduce any actual or potential injury." When the City accepted the Grant Deed to the Dana Street property on July 26, 1989, by Document No. 50159 it accepted the maintenance responsibilities as evidenced in the grant and the corresponding Certificate of Acceptance and Resolution No. 6512. (These documents have been attached for your easy reference. According to the Record of Survey the City owns to the Center Line of Stenner Creek (copy also attached for reference). There is no question that the City is responsible for all of the maintenance related to the property. Recent case law rulings seem to reinforce the concept of "proportionality" for both upstream and downstream property owners in terms of liability for not properly maintaining individual properties adjacent to existing potential flood hazard and/or flood drainage ways. Furthermore it is not practical nor feasible for individual private property owners to obtain the necessary statutory permits & approvals in the proper order to allow private property owners to maintain and/or clean -up shared waterways or flood channels given the harsh monetary fines that could be assessed for failure to obtain ALL the required discretionary permits in the proper order. In fact obtaining the required discretionary permits in the proper order creates an undue hardship placed upon individual private property owners when the City of SLO is in fact the superior agency that must also approve and oversee the entire application process. This is especially true where the City owns the adjacent upstream property and requires individual City of San Luis Obispo - Attorney's Office -Creek Maintenance Page 3 property owners to indemnify and hold the City harmless when any access is required across the City's property for maintenance purposes, OR does any work on regional or local regulated flood control channels where the City retains the "Emergency Powers" to complete emergency stream clearing or flood abatement activities under the "adopted" Flood Management & Maintenance Plan previously certified by federal, state & regional regulatory agencies including San Luis Obispo County & LAFCO, etc. Therefore your assertion in the final paragraph of your letter is incorrect and the Trust's notification to the City back in October was not only a prudent business decision, but also a necessary precursor to a lawsuit if and when the need arises for such action in the fiiture. The City should re- evaluate its position and undertake immediate procedures to protect all adjacent landowners and City residents from the City's lack of maintenance. Sincerely yours, Kirby K. Gordon Attorney at Law KKG /jp Enclosures cc: Barasch Family Revocable Trust, udt City of San Luis Obispo - Attorney's Office -Creek Maintenance Page 4 Y V ry' • "d• I '�� T "" a d ~i� �.4 -- �_!^°'S '"'++'r— r��- ��►- �....� »' rte. � • �a .6 '► �. • a _ J - - - � b- 7� � 1 d � f Rc ,c AM T� J dam•. U i �e�.� ' ROAD • �_ _ PC �• L �+ } ' W f I. ` l• it 4, f , i f• �� F F� f ` � �• { - -s.._ � `arm ..f� � �- ,f f a ►¢1' s� s� �~ } .FdF .. CZ-g NOLLVWMHW ONIa33NION3 V193M HUG odslQo $lel ueS to AM3 amBlq lenuew uSina eBeuleip u odslao sm1 Ues jo A110 Y V ry' • "d• I '�� T "" a d ~i� �.4 -- �_!^°'S '"'++'r— r��- ��►- �....� »' rte. � • �a .6 '► �. • a _ J - - - � b- 7� � 1 d � f Rc ,c AM T� J dam•. U i �e�.� ' ROAD • �_ _ PC �• L �+ } ' W f I. ` l• it 4, f , i f• �� F F� f ` � �• { - -s.._ � `arm ..f� � �- ,f f a ►¢1' s� s� �~ } .FdF .. MtJE2 = M 04 yj 27' E g6.c7' i OR@ FOUNO MONUMEI 7" 49c1.7-0A'/, ReEgReNcec. `'� �'{ /� ► `°�-- DJ 13x44 02. Goo c•� 2 -1 4 %254.7 woute r� ChOET /A-,DoeE f � CITY OF S.L.Q. O ��S 15 OF ss t rR x54 CC 154 9O8 '.s4M1 oR + I + WAS TA1C81J T. S TWI OQIJ OF 6 ST l!TWE i e1s IdONUMCIJTo Wa thl PER oeeotM / Ixza 11J rt S ° tiQti Old F90 PK. "IL . ctrl IIJ COkr_ PER 1J 53' 04:5 ?O 25 25 IJ 53' CY1 ev 00 �Nh SCALE I'+2d � to 1. '�i °. �C I —' Ito .4 0, rD. CITY, , P' )R'S STATEMENT COUNTY SURVEYOR'S RECORDER'S STATEMENT :CTLY REPRESENTS A SURVEY STATEMENT FILED TWJs ift DAY of logo . UNDER MY DIRECTION IN AT iQ J_ M. IN BOOK %- AT AGE �� OF KITH THE REQUIREMEM OF' THIS MAP WAS WMN E)AMINED IN ACCOROANCE RECORDS O SURVEYS AT THE REWEST QE ' S ACT AT TH REQU ST WITH SE 8768 OF TH D 9lJRVEYOR'S MICHAEL B. STANTON. i� - _II�pf7 upmo� ACT THIS -� DAY OF WEN 18GK1. DOCUMEW NUMBflRLT4t6+S i° ' I;�c� EN FEE 14 "{oiL�f]Iid! PITON. LS, 67D7 COU�URVkYOR C.E tL31>i7 r COUNTY EVER DEPLRY�i~ '4 ^;` ; AUG r 4 j60 At we � ly �1 a � i Oar . L W Cpl. In s. r . :• I N, ► �� ; %Ar ^- 4 "f i r 4 j60 At we � ly �1 a � i Oar . L W Cpl. In s. r . :• I N, ► �� ; %Ar J. r r F � � - _.• r 4 j60 At we � ly �1 a � i Oar . L W Cpl. In s. r . :• I N, +- M � i . - 1Y �� J • 11x1 • ,�, a �� • • ir jk t 10 _s 4L wa • • „ it^ vx a ws .�•i OW • r +l s � 4 y 4 f 1 1 � �y A r- a 61-, i N � fM7 •'�� a r ,) r d ip�:_ 7 �4y1 r ; ' .� �! tai 4i * �# ��• � ;�F � �, :yr 1y s IL ) �r -A M 1v IL t /� 4, 5v 1 1p lb s' r jr IL d ti .t a �•J r~ a � Ak Air " E ABM" f t� 'i F� i. i r CIO 1 riAr y t T f w 4 lw r, 1 y Al oplo 1 1 x S M � f �� rte' ��• . � � f..- Barasch Family Revocable Trust, udt. 1697 Sydney Street San Luis Obispo, CA 93401 (805) 544 -2600 October 23, 2015 Christine Dietrick, City Attorney City of San Luis Obispo City Attorney's Office 990 Palm Street — Room 10 San Luis Obispo, CA 93401 RE: Legal Noticing for Possible Future Water Damage /Intrusion Claims for Privately - Owned. Properties Owned by the Barasch Family Rev. Trust, udt. Dear Ms. Dietrick, This letter will serve notice that the Barasch Family Rev. Trust, udt., the legal owners of 460 and 462 Dana Street, 850 and 814 Meinecke Avenue, 1130 A, B, & C Leff Street, 284 La Canada Dr., 520 Grand Avenue, 1833 Loomis Street, and 2525 Augusta Street (among others) have repeatedly observed that the public waterways /creeks, and public, . I drainage and flood basins `(as,well as the adjacent embankments) adjacent to the aforementioned properties have NOT been adequately maintained for a period of at least the past 12 plus years. As a result of the City of San Luis Obispo's lack of adequate city -wide creek and drainageway easement maintenance, and as a result of at least four (4) prior public presentations to the local city council including the most recent public presentation by Steve Barasch on Tuesday, October 20, 2015 at a publically- noticed evenin f city council meeting has resulted in the need to place the city council and management staff OM`N6tice ", Therefore, The Barasch Family Rev. Trust, udt. and Stephen B. Barasch & Janine N. Barasch are formally placing the City of San Luis Obispo, (The "City ") "On Notice " for possible future negligence for the prolonged failure to adequately address public safety and future property - related damages that may well occur to the privately owned properties listed above as well as other privately -owned properties throughout the "City" as a result of several recent "El Nino" storm warnings. (See attached October 16, 2015 LA Times article.) Please also note that this "Notice" is being sent to preserve the Barasch Family Rev. Trust and Stephen & Janine Barasch's legal status in the event a court of law may determine that the "City" violated its fiduciary duty to ensure public safety and the personal effects of its citizens after being alerted on numerous occasions about the distinct possibility of flood - related damage that may.not be fully addressed by private property owners' flood hazard insurance carriers. In the event the actions or lack of actions by the City may be determined to rise to the status of "General Negligence" or "Gross Negligence" on the part of the city council and the senior management staff responsible for creek and flood channel management and maintenance. The Barasch Family Rev. Trust, udt. may be forced to initiate legal action(s), seeking reasonable compensation for future water related damages. Please contact Steve Barasch directly at his office at: (805) 544 -2600 should you or other members of your staff have any questions regarding this formal written "Notice ". Respectfully yours, Stephen 13. Barasch & J nine N. Barasch on behalf of The Barasch Family Rev. Trust, udt. cc Katie Lichtig, City Manager Derek Johnson, Assistant City Manager Daryl Grisby, Public Works Director Barbara Lynch, City Engineer Freddie Ott, City Biologist San Luis Obispo City Council Members Enc LA Times article & photographs