OCR City "Facts", RMF rebuttal/input Interpolation RMF's in red, linked files in blue
Page 2
1 EXHIBITS
2
All exhibits were received by stipulation both sides.
3 Agency Exhibits
4 C-1. Notice of Hearing;
5 C-2. Email correspondence, Fenner to the Agency;
6 C-3. Parcel information report;
7 C-4. Contact report;
C-5. Permit;
8
C-6. Contact report;
9
C-7/10. Photo exhibits;
10
C-11. Civil Penalty Notice and Order;
11 C-12. Proof of Service;
12 C-13. File memorandum, Chris Brennan;
13 C-14. Parcel information report;
14 C-15/26. Photographs;
Pg. 2, line 14: Exhibits C 16 and C 17, as gone over in the first hearing are not our property, but the upslope (eastward) adjacent property of the neighbor (8696 Menkar). Pages Linked here
15 C-27. Grant Deed;
16 C-28. Building inspection record;
C-29. Combination Inspection record;
17
C-30. Field Inspection record;
18
C-31. County Assessor Residential Building record;
19 C-32. Heating/AC Ventilation Refrigeration permit application;
20 C-33. San Diego circuit card;
21 C-34. Meter installation record;
22 C-35. General data;
23 C-36. Public record information;
24 C-37. Proof of Service; C-38. Notice of Hearing;
25
9R Mcnlr.r An~r7 - 7
Page 4
1 8586 Menkar Road, San Diego, CA, hereafter referred to as "the property",
on
2 December 12, 2007. This inspection occurred while she, Mike Richmond and
3 Chris Brennen were conducting an inspection of a neighboring property. The
inspection revealed a steep hillside, and at the bottom of the property's
4
hillside was a large accumulation of vegetation debris. The property as
5
shown in photo exhibit C-22 contained a greenhouse and sunroom at the back of
6
the structure facing a back yard and hillside. There was a wood stairway
7 leading down the canyon to a ravine at the bottom of the canyon.
8 2. Inspector Diamond observed that native vegetation had been removed.
Pg. 4, line 8: No live native plants have been removed… the
entire hillside was unconsolidated backfill… your recorded stmt. Pg. 6, line 20
is in error. Bernie Alvarado stated that 20,000 cubic yards, not feet were
poured into the canyon when the pads were made for his house (two doors east),
the next door prop. (8596) and 8586. The City’s storm drain has washed away
hundreds, if not thousands of yards of this mass over the years. There was
little to no “native vegetation” on this hillside ever. Please call Bernie
Alvarado (c: 619 549 4972), or replay the recording of his testimony re the
units here. This is a 27 time’s difference in volume… All three of the
backyards, including the two slopes are unconsolidated fill.
Ice plant was never planted… it exists behind every house w/in eye on the
canyon… I did plant fruit trees, long-abandoned, in an effort to slow hillside
erosion. This after having Carla Cope from the City of San Diego out and having
her okay. Pix of the our prop.
8586 and the neighbor (8596 to the east) slopes
9 Ice plant and fruit trees planted on the slope.
10 3. Inspector Diamond indicated that the Agency issue a Civil Penalty
11 Notice and Order was issued and mailed on June 5, 2008, listing violations
12 relating to the un-permitted development of a hillside, which contained
environmentally sensitive land and vegetation. The Civil Penalty Notice gave
13
the property owners two (2) options. First, restoration of the property to
14
its pre-development condition with a grading permit. Second, obtaining a
15 site development permit to develop the property.
Pg. 4, lines 14-16: There is no possibility of restoring the property to pre-development condition… 20k cubic yards of soil overlay was placed over what was originally there… The developer (from the early 70’s) has passed on.
16 Mike Richmond and related agency exhibits
17 4. Inspector Richmond conducted the inspection as noted by Inspector
18 Diamond and a subsequent inspection in 2008. He observed a large quantity
19 of brush at the foot of the hillside. He opined that the property's slope
20 was in violation of the San Diego Municipal Code due to the removal of
environmental sensitive biological resources from the hillside.
Pg. 4, lines 19-21: The slope of the hillsides is as it was when we purchased the property, and no “environmentally sensitive biological resources” have been removed by us from this hillside.
21
5. Mr. Richmond fully further indicated that there appeared to be an
22
irrigation system that provided irrigation to the fruit trees and ice plant
23
on the hillside.
Pg. 4, lines 22, 23: The drip irrigation placed only serviced the fruit trees, never the iceplant, and was discontinued in 2008.
24
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PRF Mankar Rnar - a
Page 5
1 Steve Lindsay and related Agency Exhibits
2 6. Mr. Lindsay is a civil engineer for the Agency. At Respondent's
3 request, he inspected the property and noted a storm drain pipe that emptied
4 storm water onto the property's hillside. He opined that the storm
water flow from the outlet pipe may have contributed to erosion on the hill,
5
but no more than normal run off.
Pg. 5, lines 4-6: The storm drain has “contributed” much more than normal run off to the loss of this unnatural hillside. I will be placing a link to video shot of runoff directed by this drain during heavy rain… Fact: the hillside is eroded some fourteen feet from the far N.E. corner from the original property marker… ALL of this has been eaten away from erosion from the storm drains run-off from the bottom. Views of City storm drain, erosion canal from on 8596 property
Mr. Lindsay further opined that. the storm
6
drain was unrelated to the violations alleged in the Civil Penalty Notice.
Pg. 5, line 6: The storm drain definitely IS related to the
violations alleged. It is the principal reason the hillside is currently and
continues to be rapidly eroded, and steep! It is THE reason I had the City out
three times in 2002, and have done what I can to arrest the further erosion,
outright falling of the hillside.
Had Mr. Tom Marshall, the hearing officer for these proceedings had come, at
BobF’s request (Said he’d need both parties consent…he did not as Ms. Negrete
said the City Code Enforcement Agency would not allow it… (!?)) he would have
seen this for himself. Views of City
storm drain, erosion canal from on 8596 property, and Storm drain egress video
linked here:
http://www.youtube.com/watch?v=83fHwKWYKD8)
7 Chris Brennen and related Agency exhibits
8 7. Mr. Brennen is a staff biologist for the Agency. He inspected the
9 property pursuant to the unscheduled inspection with Inspectors Diamond and
10 Richmond. His inspection revealed a large pile of biological material at the
11 foot of the property's hillside. The biological material contained natural
12 vegetation believed to have been removed from the hillside. The vegetation
came within the definition of sensitive biological resources as defined in
13
the Municipal Code. Mr. Brennen prepared a detailed report dated February
14
14, 2008, which provided an analysis of the hill and vegetation, and
15 recommendations to bring the property into code compliance (Exhibit C-13).
Pg. 5, lines 11-14: The mass of biological material in the gulley is from the 2002 placement of the felled Eucalyptus tree, the stump of which is included in the photos in our A-6 and A-7 photographs. The naturally occurring material is from “wash down” from the City’s storm drain principally. Photos of this sort of accumulation beyond our property… gathered by erosion, are also featured in the above CD photos. Pix of Eucalyptus stump, biomass used to make weir dam, fill in gulley
16 8. Mr. Brennen noted that that the hillside contained a 25% or greater
17 grade and was 50 feet or more in vertical elevation. The City's survey map
18 (Exhibit C-14) further indicates that the hillside slope is greater than 25%.
19 9. Development at the property occurred within 100 feet of
20 biologically sensitive resources. In Mr. Brennan's opinion, a site
development permit is required for the development on the property.
21
Pg. 5, lines 19-21: The development of the property? This was all done prior to our acquisition, w/ the exception of the patio enclosure; which was done by a licensed contractor, our exhibit A-8… IF this sort of work is not allowed, why did the contractor do it? Skyline Sunroom (Stmt. re Permits, Drawing/Bid, Billing stmt.)
10. The property's hillside appeared to have been stripped of natural
22
vegetation and replaced with ice plant and fruit trees. The ice plant is
23
prohibited by code or regulations. Some of the natural vegetation identified
24 by Mr. Brennen included white lilac and coastal and scrub oak.
Pg. 5, lines 22-24: The hillside was not “stripped of natural vegetation”. The appearance is due to nature of the fill/disturbed grade by the original contractor/grader in the early 1970's and the insidious competitive nature of the iceplant, which I’ve already stated I’ve never planted.
The large
25 compost pile presented a fire hazard to the property.
Pg. 5, lines 24, 25: The compost pile is an ongoing project built only by myself, and is not, nor has ever been a potential fire hazard.
AcRc Mankar Pnarl - C,
Page 6
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11. Mr. Brennen opined that the property owners could bring the property into
code compliance in two ways. First, obtain a ministerial grading permit to
restore the property to its original condition before development. Second,
obtain a site development permit for the development of the property and
hillside.
Pg. 6, lines 2-5: We don’t have the $5k for the beginning of some ministerial permit… but, as has been stated, there is NO original condition, unless the overburden/fill is completely removed from the hillsides; nor does it make any sense to “obtain a dev. Permit… as it is not our intention to dev. This hillside. Indeed, we have offered to give/grant this portion of our prop. To the City, State… as it is of no use to us.
12. On cross-examination, Mr. Brennen admitted that he could not prove I
that the homeowners planted the ice plant.
Pg. 6, lines 6, 7: No one has planted iceplant on any of the surrounding slopes as far as I’m aware. Carpobrotus edulis is so invasive in our clime that it readily takes over, out-competes most anything in a disturbed slope area.
Testimony of Inspector Melody Negrete and related Agency exhibits
13. Coordinator Negrete testified that the Agency is seeking civil
penalties of $500/day from the compliance date of August 29, 2008 through and
including the date of the hearing, or 458 days. The total civil penalties sought
are $229,000.00. The Agency is requesting that all but $30,000.00 be stayed
pending Respondents' timely compliance with the terms and conditions of the
administrative order. Ms. Negrete further testified that the Agency has incurred
the sum of $3,420.23 in administrative costs. The costs are set
forth in the Administrative Cost Accounting, Exhibit C-54. These costs were
related to the enforcement action and were derived from time records of the
Agency employees involved in the enforcement action.
Pg. 6, lines 6-13: The demand of $500 dollars per day, some $229k is ludicrous; unreasonable confiscation of private property, and a challenge to our Constitutional rights. Further request for our covering the Agency’s employees cost for harassing us is an affront as well.
Testimony of Mr. and Mrs. Alvarado
14. Mr. and Mrs. Alvarado are neighboring homeowners. They have lived at their
property since 1987. Mr. Alvarado spoke with an individual
identified as the developer of the property. The developer indicated that the
property and neighboring properties were uilt in 1970. He further indicated that
approximately 20 000 cubic feet-(of fill dirt was pushed from the properties
into the canyon to add to the hillside. Mr. and Mrs. Alvarado also testified
that they recall ice plant on the hillsides since moving to their property in
1987.
Pg. 6, lines 20, 21: Relate to our
neighbor’s to the east two doors over, Bernie and Evar Alvarado. He stated that
20,000 cubic YARDS (emphasis mine) not cubic feet, as stated,
were dumped over the canyon hillside to make up his flat backyard, the next door
neighbor’s slope and ours originally. The neighbor to the west (8576) has lived
here since the properties were sold, and can also testify re the history of the
fill, erosion of the hillside.
Rspr, MPnkar pc_ (1 - F
Page 7
1 Testimony of Robert and Diana Fenner and their
exhibits
2 15. Mr. and Mrs. Fenner purchased the property in August, 2001. At
3 the time of purchase, the hillside contained most of the ice plant that is
4 currently at issue. Since 2001, the ice plant has grown. Mr. and Mrs. Fenner
believe that the ice plant is essential for the maintenance of the
5
hillside and for fire prevention.
Yes... we had the fire dept. out to give us advice after having our Homeowner's insurance policy cancelled: Notice of Cancellation of Homeowners Insurance due to brush, 2001
They also indicate that the greenhouse was
6
present when they purchased the property.
Pg. 7, lines 5, 6: The greenhouse was NOT present when we bought the house. I purchased this stand-alone product from Costco, and grow vegetables in it. It has been at the property since 2005.
7 16. Mr. and Mrs. Fenner admit to adding the room at the back of the
8 property. They hired Skyline Sunrooms, Inc., a licensed contractor, to
9 install the addition. They believed that the contractor had obtained the
10 proper permits at the time of the construction.
Pg. 7, lines 9, 10: Not a belief, but a condition of Skyline’s contract that they will provide “all necessary permits”, as shown in our exhibit A-4. Skyline Sunroom (Stmt. re Permits, Drawing/Bid, Billing stmt.)
11 17. Mr. Fenner admits to removing vegetation and creating the debris
12 collection at the base of the slope.
Pg. 7, lines 10, 11: A clarification; the vegetation below in my mulch pile is not from the hillside, but from yard scraps from my upper garden activity.
He believes that he has constructed a
weir dam', which was built to stop erosion.
Pg. 7, lines 11-13: I did build a weir dam, pursuant with meeting with Carla Cope of the City of San Diego in early 2002… as mentioned before, the stump of the Eucalyptus, likely 60-70,000 pounds of its biomass was emplaced in the gulley carved by the City’s storm drain, to greatly slow the rate of erosion, which it has done the past eight years.
He indicates that the storm drain
13
at the property has caused considerable erosion. In his power point
14
presentation, Exhibit C-6 and 7, he presents a motion picture photograph of a
15
large quantity of water coming from the storm drain into the gully at the
16 bottom of the property.
Pg. 7, lines 14-16: Not “considerable by a HUGE volume of water issues from the 2’ diameter storm drain when it rains hard. Again, please look at the photos, video-clips provided in our evidence, or better, come out to the property whenever you’d like and see first hand. The evidence is overwhelming that the storm drain has washed away the hillside. The video can be viewed on Storm drain egress video linked here: http://www.youtube.com/watch?v=83fHwKWYKD8)
17 18. Mr. Fenner further admits to construction of the stairwell down
18 the hillside to the base of the property and the planting of fruit trees. He
19 indicates that he planted approximately 25 - 30 fruit trees.
20 19. While Respondents contend that the ice plant was in existence when
21 the purchased the property, they admit to the installation of an irrigation
system to assist the growth of the ice plant as well as the trees.
22
Pg. 7, lines 21, 22: Only the fruit trees were ever irrigated, never the ice-plant. The irrigation lines are still in place, as stated at the hearings, though the water itself has long since been turned off. The emitters to the trees only drip water to their bases. If one views the area, it is obvious that the iceplant is growing about the same over all the disturbed hillside areas sans irrigation. Pix of west-side neighbors' (8576, 8566...) hillside showing iceplant growth
23
24
1 A low dam built in a river to back up or divert, as for a mill; milldam
25
Webster's New Word Dictionary, College Edition
RFR; Mankar Rnar1 - 7
Page 8
1 20. Mr. and Mrs_ Fenner admit that they have not
obtained permits for
2 the removal of vegetation or the construction at the property or hillside.
3 They contend that the cost of the permits is beyond their means. They
4 further contend that they had no notice of any of the Agency or Municipal
restrictions on the property when they purchased the property.
Pg. 8: lines 1-2, 3-4: There is no need for permits for the work that was done on the hillsides on our property as far as I was aware. The Fire Dept. came by, encouraged me to place what little dead brush there was in the gulley, and said that allowing the iceplant to grow was a good idea. There was no notice by anyone other than the Agency in threatening us with the current case. We had our homeowner's ins. policy cancelled due to the brush... Had the City, Fire dept. out re, and they encouraged me to remove it! Notice of Cancellation of Homeowners Insurance due to brush, 2001
Without
5
notice, should they be held accountable for issues at the property or
6
restrictions in their use of the property? It should be noted that the
7 Fenner's title report (Exhibit A-2) indicates that the property is subject to
8 government laws and regulations.
Pg. 8, lines 8 and 9: That the Title to the property mentions complying with government law is superfluous and of pertinence here… All automotive drivers, citizens… are compelled to comply with gov’t law… Grant Deed
9 21. Respondents contend that they are unable to afford the City's fees
10 or expert fees or to bring the property into compliance. They admit to the
11 ownership of six (6) properties including the instant property. All five (5)
12 properties are encumbered but produce a positive cash flow.
Pg. 8, lines 10-12: A clarification. Income tax returns will show that our income properties are barely cash positive; that we both work more than full-time to make ends meet. W/o selling the property, we are unable to give/have stolen monies to/by anyone.
FINDINGS OF FACT
13
1. The property is located in the City of San Diego.
14
2. Property owners Robert and Diana Fenner purchased the property in
15
August, 2001. When Respondents purchased the property, a portion of the
16 vegetation from the hillside was previously removed and ice plant inserted in
17 its place.
Pg. 8, lines 16, 17: As stated at the hearing, no one removed any live plant material, or planted iceplant. Again, take a look at the photos we provided. The neighbor who shares the slope to the east has the same depauperate mix of non-native plant species, predominantly the iceplant and some purposely planted (but by neither of us) cactus, and agave/yucca… apparently to anchor the hillside, which it has done a remarkable job of on the apex of the hill, where the slope is steepest. Pix of 8586 to the left/west and 8596 right/east hillside/back property.
In addition, the residence contained an un-permitted second
story
18 deck.
Pg. 8, line 18: The deck that was there when be bought the house appeared to have been “constructed to code”… I had no idea it had not been permitted. In looking over the purchase agreement, I don’t see such a statement. Appraisal and Escrow and doc.s showing pre-existing patio cover
19 3. The Respondents did remove some of the vegetation from the hillside
Pg. 8, line 19: I/we did not remove any live vegetation from the hillside; a minimum of dead brush, a large amount of felled Eucalyptus was placed on purpose in the huge erosion canal (not “the foot of the hillside”) caused by the City’s storm drain, and joined with ongoing “wash down” of generations of whatever grows in the gulley and beyond it into the canyon (see images…) has accumulated and been overgrown by the iceplant in time. Pix of Filled in gulley/wash out on 8586 prop. and ex.s of weir dams, Photos of washed down vegetation from storm drain, behind 8586 prop.
20 and placed the removed materials in a large pile at the foot of the hillside.
Respondents refer to this pile of organic material as a weir dam. The
21
purpose of the dam was to contain perceived erosion at the bottom of the
22
hill.
23
4. During the Respondents' ownership of the property, Respondents
24 constructed un-permitted stairs leading down from the top to the base of the
25 property's hillside.
8586 Menkar Road - 8
Page 9
1 5. During Respondents occupancy of the property,
Respondents
2 contracted with a licensed contractor for the construction of a sunroom at
3 the rear of the property's residence. The building contractor did not obtain
for the building of the structure, which was within 100 feet of
4
biologically sensitive plants on the hillside.
5
Pg. 9, line 3-5: I paid a licensed
6. In December 2007, Agency Inspectors and an Agency
Biologist
6
conducted an unscheduled inspection of the property. The inspection revealed
7 the apparent removal of environmentally sensitive plants and the collection
8 of plant materials at the base of the hillside. In addition, the inspectors
9 noted a stairway down the hill, and a sunroom and greenhouse, all of which
10 were not permitted.
11 7. The inspectors formed the opinion that the development on the
12 property required a site development permit, because the property contained a
steep hillside consisting of a greater than 25% grade or came within the
13
definition of environmentally sensitive lands due to the presence of certain
14
plant species, such as coastal live oak, scrub oak and white lilac. The
15
sunroom, greenhouse and stairs were not permitted and within 100 feet of
16 biologically sensitive resources on the hill.
17 8. The Agency issued Civil Penalty Notice and Order on June 5, 2008.
18 It gave the Respondents two options. First, restoration of the property to
19 its condition before the un-permitted development pursuant to a grading
20 permit. Second,-obtainment of a site development permit.
Pg. 9, lines 17-20: The options first presented and currently demanded are impertinent. I did not grade the property… hence it can’t be restored to some “pristine” or “pre-development condition”. I don’t intend to develop the property on the back, hence a “site development permit” is unnecessary as well.
The Civil Penalty
Notice and Order gave Respondents until August 29, 2008 to submit a grading
21
permit pursuant to the first option and until August 29, 2008 to submit an
22
application for a grading permit to restore the property to pre-development
23
condition. Pursuant to the Notices first option, Respondents had until
24 February 27, 2009 to obtain the grading permit. It gave Respondents until
25
8586 Menkar Road - 9
Page 10
June 27, 2008 to obtain. a site development permit pursuant
to the second
1
option.
2
9. Respondents did not obtain either a grading permit or a site
3 development permit within the time specified in the Civil Penalty Notice and
4 Order and as of the last hearing date.
5 10. The conditions set forth in the Civil Penalty Notice and Order
6 continue to exist as of the date of the last hearing.
7 11. The property is in violation of the Municipal Code as set forth in
the Civil Penalty Notice and Order, in that it contained a steep hillside
8
with a 25% or greater grade and evidenced of removal environmentally
9
sensitive vegetation from the hillside without a permit or survey as required
10
by San Diego Municipal Code Sections 126.0502 and 143.0112.
Pg. 10, lines 8-11: The hillsides are what they are, were when we bought the property. Nowhere in our ownership records (CCR's, Title Ins., Grant Deed) or prior notice is there mention of what this might constitute per municipal statutes, nor have I ever encountered any mention of what might not be removed, done with privately-owned residential real estate. Photos of washed down vegetation from storm drain, behind 8586 prop.
11 12. The Agency has incurred the sum of $3,420.23 in administrative
12 costs. These costs were related to the enforcement action and are fair and
13 reasonable.
14 13. All notices were properly given.
15 DISCUSSION OF THE ISSUES
16 The property contains a steep hillside as described in San Diego Municipal
Code Section 126.0502, pursuant to the testimony and photographs of
17
Inspectors Diamond, Richmond and Brennen. The hillside is on a lot greater
18
than 15,000 square feet and contains sensitive biological resources.
Pg. 10, line 19: The hillside does NOT contain sensitive biological resources. It is, was, and will be a mass of unconsolidated scrape/fill from the early 1970’s when the three lots were filled in, w/ only Bernie and Evar’s being level. 8596 and 8586 will continue to erode, the more so w/ any removal of extant iceplant, and planted cactus and agave/yucca. Pix of 8586 to the left/west and 8596 right/east hillside/back property. and Ex.s of invasive iceplant wherever orig. grade/slopes are disturbed
19
The Agency has the burden of proving the violation by proof of
20 preponderance of the evidence. Is it more likely than not that the property
21 owners removed sensitive biological resources from the property and caused
22 un-permitted development on property described in San Diego Municipal Code
23 Section 126.0502?
24 The Agency has met its burden through the testimony of the inspectors
and the photographs and reports. Biologist Chris Brennen prepared a detailed
25
report regarding the condition of the property. Reference is made to Exhibit
RSRA Mankar Pr =r - 1 n
Page 11
C-13. The report describes the endangered plants located on
the property and
1
the apparent destruction of certain vegetation as evidence by the collection
2
of vegetation at the base of the property.
3 Respondents apparently did not plant the ice plant, which Mr. Brennen
4 indicated was prohibited by code or regulation. However, they did water and
5 encourage the ice plant's growth.
Pg 11, line 4: Again, I have never watered the iceplant… who would? It has been encouraged however w/ the increased retention of water via the weir dam placed.
Respondents admit to the removal to some
6 of the vegetation and the construction of the stairs and sunroom structures
7 without permits. Pursuant to San Diego Municipal Code Section 126.0502 and
8 143.0112, the development was improper without the proper permits and was
prohibited. Pursuant to Municipal Code Section 129.0602(b), a grading permit
9
is required for the restoration of the premises as a result of the
10
unauthorized grading activity.
Pg. 11, lines 10, 11: Nothing has been graded by me on the hillside. The exhibits showing such grading are on our neighbor’s slope… what little “walkway” there is, is due to simple walking erosion on the unconsolidated fill which makes up the hillside. It is indeed very easily eroded. Ex.s of easy erosion of unconsolidated backfill on 8586 property
11 The Civil Penalty Notice and Order gave a compliance date of August 29,
12 2008. The Hearing Officer believes a reduction in the fine is appropriate
13 because of the property owners purchased a property that was in violation of
14 the Municipal Code at the time of the purchase. That is, the previous owners
15 apparently removed native vegetation and replaced it with ice plant.
Pg. 11, lines 13-17: I don’t think the previous owners planted the iceplant… This invasive species does just take over most any disturbed hillside. See the photos I’ve provided for examples… Folks before us did put up the patio cover, and it is substantial. They told me they had intended to place a Jacuzzi spa on top of it, thus had it doubly supported for the load. We did hire a licensed contractor for the sunroom, being assured that they had put up thousands of such units. They never mentioned any laws pertaining to hillsides. Ex.s of invasive iceplant wherever orig. grade/slopes are disturbed
They
16 also constructed the un-permitted second story deck. The property owners
also constructed the sunroom in good faith, in that they hired a licensed
17
contractor to perform the construction. The daily fine will be reduced to
18
$100/day.
19
Pg. 11, lines 18, 19: IF, as stated, these alleged infractions aren’t our responsibility… why are we being challenged to pay any such “daily fine?” What?
Pursuant to San Diego Municipal Code Section 12.0907(d),
the
20 administrative costs will be confirmed.
Pg. 11, line 20: By the same token, what is rationale behind charging us for the Agency’s “administrative costs?” I/we didn’t ask them for assistance, their effort. Their actions are unwarranted and as has been made clear, unwanted.
Respondents did not seriously
21 challenge the amount or reasonableness of the costs, except that they believe
22 that any penalties or costs were inappropriate.
!?
23 DECISION
24 Respondents Robert and Diana Fenner are ordered to jointly and
25 severally pay civil penalties in the sum of $45,800.00. They are
8586 Menkar Road - 11
Page 12
additionally ordered to pay administrative costs in the sum
of $3,420.23.
1
Total civil penalties and costs are $49,220.23.
2
Of the $45,800 in civil penalties, all but $10,000.00 of the penalties
3 are stayed pending Respondents' timely compliance with the terms and
4 conditions of tllis administrative order. Total non-stayed civil penalties
5 land costs of $13,420.23 are due and payable on or before March 1, 2011.
6 Respondents shall bring the property into code compliance pursuant to
7 one of the two following options:
Respondents shall immediately provide erosion control measures,
8
utilizing Best Management Practices (BMPs), to control drainage from the
9
property to avoid erosion, scour, and resulting siltation as recommended by a
10
qualified professional.
Pg. 12, line 8-10: Erosion control? The erosion of the hillside is not due to any effort or oversight on our part. Indeed, the work done has greatly slowed erosion. THE damage, continuing to the hillside is from the City’s storm drain egress; taking away the base of the hill, encouraging more to fall. The neighbor two doors over, the Alvarados, with the flat- soil-filled backyard have had the soil retreat 14 feet from their N.W. corner. See the photos, video, come and look yourself. I AM a qualified professional, a landscape contractor... that has assessed this. Photo of 8596 and Bernies pole, 14 foot of land lost by erosion from original
11 Option 1
12 On or before June 30, 2010, Respondents shall submit a completed
13 application for grading permit for restoration/re-vegetation of the site to
14 Neighborhood Code Compliance Division (NCCD) for review and approval.
Pg. 12, line 13, 14: More money to the NCCD? For applying for “grading permit”… We don’t want to grade. And restoration, re-vegetation? Again, there is no natural vegetation that can/will outcompete the Carpobrotus on this scrape-filled unconsolidated soil slope… that’s why it’s not there, has never been there.
Plans
15 shall be prepared by a qualified professional and shall include removal of
16 all non-native vegetation on the rear portion of the property containing
steep slopes and shall be re-vegetated to its pre-existing native condition.
Pg. 12, line 15: The fruit trees that were planted are dead, dying from lack of water. I would leave their roots to do what little they can to anchor the hillside. Pg. 12, line 16: There was no native vegetation, ergo, it can’t be replaced, restored to “pre-existing native condition”…
17
The two accessory structures located in the side yard shall be removed. The
18
attached sunroom and upper wooden deck shall be removed and appropriate
19 demolition and building permits obtained to restore the structure to its pre-
20 existing condition. Within ten (10) calendar days of NCCD's review and
21 approval, Respondents shall submit applications to the Development Services
22 Department (DSD) and have them deemed complete to obtain a grading permit for
23 restoration/re-vegetation of the site, and demolition and building permits
24 for restoration of the structure to its pre-existing condition.
On or before July 31, 2010, Respondents shall obtain a grading permit
25
for restoration/re-vegetation of the site, and demolition and building
Pg… the rest of the orders are not worth commenting re. This is a sham to steal money, get us/others to comply w/ a lesser set of demands. See:
8586 Menkar Road - 12.
Page 13:
permits to restore the structure from DSD, and commence all
work required by
1
the permits.
2
On or before October 31, 2010, Respondents shall have all final
3 inspection approvals.
4 OR
5 Option 2
Pg. 13: Option 2… line 6-8: More demands for permits: Site Development Grading… which I’ve already covered…? And building plans… Di is going to ask Leslie Diamond re what these entail, their supposed total costs…
6 On or before July 31, 2010, Respondents shall submit a
Site Development
7 Permit/grading plan and building plans to NCCD to maintain improvements.
8 Improvements include the sun room, upper wooden deck and two accessory
structures.
Pg 13, line 8: As stated in the hearings, shown in photos, there is presently only the plastic greenhouse in the back, the other cover was removed. Photo of extant plastic greenhouse
Development must include restoration of the rear
portion of the
9
property to pre-existing native condition.
Pg. 13, line 9, 10:… there is no restoration to pre-existing condition… The present condition IS the pre-existing condition. I cannot, will not remove thousands of yards of fill to reveal our part of the hillside… the two neighbors over and a part of the further eastward now-exposed slope will fall away if this was done.
10
Within ten (10) calendar days of NCCD review and approval, Respondents
11 shall submit application to the DSD and have the application deemed complete.
12 Any correction or additional information requested by DSD must be submitted
13 within fifteen (15) days from the date the request is made.
14 If a Site Development Permit is granted, a ministerial grading permit
15 and building permit must be applied for and obtained within thirty (30) days
16 of the granting of the Site Development Permit.
Pg. 13, lines 14-16: Am given to understand that applying for this “ministerial grading permit…” is some $5k paid to the same folks that brought this trouble… When we investigated doing this work when first charged with these demands, the folks involved told us the minimum costs of compliance would be 60-80k, on up... And that we shouldn't even start if we didn't have the money to finish. I/we don’t have this money, will have to sell another property in time…
Construction granted by the ministerial permits must be
completed and
17
all final inspections" approved obtained within six (6) months of the issuance
18
of the permits.
19
If the Site Development permit is denied or abandoned, then a
20 ministerial grading permit for restoration of the site must and building
21 permit for removal of the un-permitted structures must be submitted to DSD
22 and the application deemed complete within thirty (30) days of the denial or
23 abandonment of the permit.
24 All development permitted by the ministerial permits must be completed
25 and all final inspections and approvals granted within (6) six months of the
issuance of the permit.
R',RF, Mankar Pnari - 11
Again, and at last, there is nothing in the property’s CCRs, our Grant Deed, nor the Title Insurance re permitted, restricted use of 8586; other than reserving oil, mineral, water rights, and the set-back for the storm drain under the east side of the property. There was no notice ever from the City re use/non-use of this property; indeed, Carla Cope of the City was called out to the site in 2002 re my concerns re the storm drain washing the hillside away and encouraged me to build the weir dam/fill with the felled Eucalyptus on the back fenced area, and “said, go ahead, it’s your property”, to my enquiries re planting the fruit trees, adding the drip irrigation to them. Further, we’ve had the fire dept. out thrice re the dead brush that was removed to the gulley and they too, encouraged this activity.
The record (CAB, CSLB) will show that Bob Fenner was
a licensed Ca. Landscape Contractor (C 27). He has never planted iceplant, nor
purposely destroyed public or private property.
IF indeed there is a concern that such
private property, its owners might “harm” “environmentally sensitive land”, why
are they not duly notified, why is there no addendum to Grant Deeds re such?
There has existed for decades tools that could easily identify all such
properties, the
Where does that leave me/us as private citizens? I ask that
you abandon this harassment, challenge to our civil rights. We have not
knowingly committed any crime, nor do we have funds to pay lawyers that are on
first name bases with the NCCD (neighborhood code compliance dept.) to
represent/fight for our interests. What would you do in such a case?
Bob Fenner
This is a partial accounting for a challenge involving a property I supposedly own (no, in the U.S., the gov't owns all) and the City of San Diego; in which they, having gone broke financially and morally, have begun stealing citizen's net worths.
Index:
City of San Diego demand doc.s
Cover Letter, City of San Diego NCCD "Invoice", "Findings of Fact and Decision"
Interpolated (OCRd) City Findings/Fact/Dec. and RMF rebuttal (with links to pertinent documents, photographs, video)
Supporting Photographs, Documents and Graphics
Appraisal and Escrow and doc.s showing pre-existing patio cover
Pix of 8586 to the left/west and 8596 right/east hillside/back property. and Ex.s of invasive iceplant wherever orig. grade/slopes are disturbed
Pix of Eucalyptus stump, biomass used to make weir dam, fill in gulley
Pix of Filled in gulley/wash out on 8586 prop. and ex.s of weir dams
Pix of west-side neighbors' (8576, 8566...) hillside showing iceplant growth
Ex.s of easy erosion of unconsolidated backfill on 8586 property
Photo of 8596 and Bernies pole, 14 foot of land lost by erosion from original
Carla Cope meeting note and bus. card from 2/11/02
Notice of Cancellation of Homeowners Insurance due to brush, 2001
Views of City storm drain, erosion canal from on 8596 property
Storm drain egress video linked here: http://www.youtube.com/watch?v=83fHwKWYKD8)
Skyline Sunroom (Stmt. re Permits, Drawing/Bid, Billing stmt.)