Resolution Number 06-07-03-0717
A RESOLUTION
CAPISTRANO,
(BELLADONNA
CONDITION OF
RESOLUTION NO. 06-07-03-07
OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CALIFORNIA,
ESTATES)
APPROVAL
AMENDING RESOLUTION 05-12-20-02
RELATING TO MEET AND CONFER
WHEREAS, the City Council adopted Resolution No. 05-12-20-02 conditionally
approving a tentative subdivision map for 31 lots on December 20, 2005; and
WHEREAS, the City Council on December 20, 2005 added a condition to the map
approval providing that "...the developer and neighbors adjacent to the southwesterly
access road meet and confer regarding resolving road maintenance obligations as
between the developer and neighbors for future road maintenance of the southwesterly
road access; that this meet and confer process be facilitated by city staff with staff to report
back to the City Council within 60 days regarding the results of the meet and confer
process;" and
WHEREAS, a meet and confer session was held on February 8, 2006 between the
developer of Belladonna Estates, city staff, an adjoining property owner, and a facilitator
regarding alternate solutions to mutual sharing of access road maintenance obligations on
February 8, 2006 as indicated in the July 3, 2006 staff report (attached and made a part
hereof); and
WHEREAS, the City Council extended an additional period of 120 days for possible
future meetings between the parties and a facilitator as indicated in the staff report; and
WHEREAS, it is reported by staff that no agreements have resulted from this
discussion process as of July 3, 2006, and
WHEREAS, the subdivider and an adjoining neighbor have jointly requested in
letters dated July 3, 2006, attached, an additional period of time to continue the meet and
confer process as outlined in the tentative map condition,
NOW, THEREFORE, the City Council hereby grants an additional period of time to
September 19, 2006 to continue the meet and confer process described above.
PASSED, APPROVED, AND ADOPTED this 3rd day of July 2006.
(zy"e-1
DAVID WSWEFOLINNAYOR
Page 1 of 2
11M*1Y04Q4I:1
ATTEST:
R. MONAHAN, CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify
that the foregoing Resolution No. 06-07-03-07 was duly adopted by the City Council of the City of San Juan
Capistrano at a Regular meeting thereof, held the 3rd day of July 2006, by the following vote:
AYES:
COUNCIL MEMBERS: Hart, Bathgate, Allevato, and
NOES:
COUNCIL MEMBER: None
ABSENT:
COUNCILMEMBER: None
A/// IN:
C/OUNCIL E R: Soto
/
Mayor Swerdlin
Page 2 of 2 07-03-2006
7/3/2006
Gla
IAGENDA REPORT
TO: Dave Adams, City Manager
FROM: John R. Shaw, City Attorney
Nasser Abbaszadeh, Engineering and Building Director
SUBJECT: Bella Donna Estates Subdivision Tentative Map 16146/Meet
And Confer Condition Regarding Long Term Maintenance
of Access Road
BACKGROUND:
On December 20, 2005, the City Council adopted Resolution 5-12-20-02 approving a
tentative subdivision map for 31 lots. During the course of the public hearing, one or
more neighbors expressed concerns regarding the need for a permanent solution to future
maintenance obligations for the southwesterly access road abutting the project area. The
' City Council added a condition to deal with that issue. It provided:
"...that the developer and neighbors adjacent to the southwesterly
access road meet and confer regarding resolving road maintenance
obligations as between the developer and neighbors for future
road maintenance of the southwesterly road access; that this
meet and confer process be facilitated by city staff with
staff to report back to the City Council within 60 days regarding
the results of the meet and confer process." (page 3 of resolution)
L
Pursuant to the City Council's above stated action and direction, city staff arranged for a
meeting with the developer representatives and an affected neighbor, Mr. Art Birtcher,
regarding the possible use of a mediator/facilitator to discuss a permanent solution to the
mutual sharing of access road maintenance obligations. The meeting was held with a
facilitator, a Mr. Bradley Walker, on February 8, 2006. During the meeting, the concept
of potentially forming a nonprofit road maintenance association and the sharing of costs
of the mediator between the property owners were discussed. A general understanding
resulted from the meeting that subdivider and Mr. Birtcher were prepared to continue the
discussion/facilitation process with Mr. Bradley Walker. (See attached letter from Mr.
Walker)
Exhibit A
City staff then awaited the outcome of any further mediation discussions. Based upon the
above circumstances, the City Council on February 21, 2006 allocated another 120 days
for this process to continue.
Since then, City Staff has not received any information from the parties that there has
been any further conclusions or resolutions reached concerning an alternate permanent
solution to access road maintenance as a result of this private mediation process.
Accordingly, staff recommends that the above stated condition at page 3 of the resolution
be terminated. Construction and maintenance of the access road is otherwise addressed
in the conditions of approval in Resolution 5-12-20-12.
Adopt the attached resolution terminating the access road meet and confer condition at
page 3 of Resolution 5-12-20-12.
Res ectfully Submitted, Respectfully Submitted,
J R. Shaw, Nasser Abbaszadch
ty Attorney Engineering and Building Director
Attachments: Resolution
February 13, 2006 Letter
June 16, 2006 Letter
' A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING
RESOLUTION 05-12-20-02 (BELLADONNA ESTATES)
RELATING TO MEET AND CONFER CONDITION OF
APPROVAL
Whereas, the City Council adopted Resolution 05-12-20-02 conditionally
approving a tentative subdivision map for 31 lots on December 20, 2005, and
Whereas, the City Council on December 20, 2005 added a condition to the map
approval providing that "...the developer and neighbors adjacent to the southwesterly
access road meet and confer regarding resolving road maintenance obligations as
between the developer and neighbors for future road maintenance of the southwesterly
road access; that this meet and confer process be facilitated by city staff with staff to
report back to the City Council within 60 days regarding the results of the meet and
confer process", and
Whereas, a meet and confer session was held on February 8, 2006 between the
developer of Belladonna Estates, city staff, an adjoining property owner, and a facilitator
regarding alternate solutions to mutual sharing of access road maintenance obligations on
February 8, 2006 as indicated in the staff July 3, 2006 staff report, and
' Whereas, the City Council extended an additional period of 120 days for possible
future meetings between the parties and a facilitator as indicated in the staff report, and
Whereas, it is reported by staff that no agreements have resulted from this
discussion process,
NOW, THEREFORE, the City Council hereby determines that the meet and
confer condition stated above is hereby deleted and removed from the tentative map
conditions of approval for this subdivision project.
ATTACHMENT
Cane, Walker & Harkins LLP
Bradley D. Walker
David E. Cane
James C. Harkins, rV
17821 East Seventeenth Street
Suite 140
Tustin, CA 92780
Telephone ,(714) 573.8990
Facsimile (714) 573-8999
February 13, 2006
Joseph Ferrentino, Esq.
Newmeyer & Dillion LLP
895 Dove Street, Fifth Floor
Newport Beach, CA 92660-2999
Edmond M. Connor, Esq.
Connor & Fletcher LLP
2600 Michelson Drive, Suite 1450
Irvine, CA 92612
bwalkeralink]ine. com
dcane@linkline.com ,
jharkms@hnldme.com —
File 30493.001
F��ctPOF/V�cO
U19RUFF , Jr 2006
Sp�oliNa S&qR
T
Re: February 8, 2006 Meeting- Road Maintenance Association
Dear Messrs. Ferrentino and Connor:
Thank you for the opportunity to meet with your respective clients on February 8, 2006,
concerning the potential creation of a nonprofit road maintenance association for the purpose of
maintaining the private road adjoining their respective properties in San Juan Capistrano.
It is my understanding that one or both of you will be preparing a Memorandum or
"Minutes"of our meeting, detailing the issues discussed and the tentative agreements reached. At
such time as all contingencies are resolved, I believe it would be beneficial to conduct a second
meeting specifically for the purpose of identifying the duties and responsibilities of the proposed
association.
In the interim, I enclose our proposed hourly Fee Agreement in this matter. It is my
understanding that your respective clients have agreed to share our fees incurred in this matter on
a joint basis.
Should you have any questions concerning the foregoing, please do not hesitate to contact
me.
Very truly yours,
CANE, HARKINS LLP
Bradley .Walker
BDW:rjh
Enclosures
cc: John Shaw, Esq. (w/o enclosure)
ATTACHMENT
NOD
NEWMEYER & DILLION LLP
•iT.a..I. A7 LAW
CHARLES S. KROLIKOWSKI File No.:
1422.100
July 3, 2006
VIA E-MAIL AND FACSIlIIILE
Members of the City Council
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Re: Tentative Tract 16146 - Belladonna Estates
Dear Mayor and Other Members of the City Council:
This office represents the Scalzo Family Trust ("Scalzo'), the owner of property located
at 32281 Del Obispo Street in the City of San Juan Capistrano ("Subject Property"). This letter
is submitted to be included as part of the record for the July 3, 2006 City Council meeting
concerning the proposed resolution to delete the meet and confer condition and thereby amend
' Resolution 05-12-20-02.
The road located along the southwesterly portion of the Subject Property is a public road.
This has been confirmed by the City Attorney and various other City staff members on multiple
occasions. On April 25, 2005, my office submitted a detailed letter and numerous documents to
the City Council demonstrating that the above road is a "public" right-of-way that was accepted
as such by the City in 1964. We incorporate the contents of that letter by reference herein.
In addition to being a public road, in 2000 Scalzo and the City entered into a License
Agreement for the future use, maintenance and operations of the road. A copy of the License
Agreement is attached hereto and is incorporated herein by reference. The intent of the License
Agreement was to require Scalzo to make certain improvements to the road and form an
association for the future maintenance and operation of the road to be utilized "for access
purposes" in conjunction with the future development of the Subject Property and surrounding
properties.
Despite the express terms of the License Agreement, and as a condition of approval of
Tentative Tract Map 16146, the City has placed a condition that the fixture subdivision located on
the Subject Property will not be able to use the public road. Hence, it appears that the City wants
Scalzo to shoulder the responsibilities of the future maintenance and operations of the public
mad even though his subdivision will not have the right to use the road. This is completely
inconsistent with the License Agreement, and is currently being challenged in court.
595 DO V R STREET
th FLOO
100 WIL8HI0.E BLV..
S..T. 1350
'
- NEWPORT BEACH CA 92880
SANTA MONICA CA 00401
T 949 854 7000
T alo ego 6755
F 949 854 7099
r am ago 6759
Exhibit B
City Council
July 3, 2006
Page 2
Moreover, City staff initially required that the proposed subdivision have access from the
public road for fire safety reasons -- due to the length of the cul de sac of the primary access road
from Del Obispo Street. This initial requirement was deleted however, when staff determined
that fire -safety was no longer an important consideration for its future residents. In this regard,
Scalzo has, and hereby again puts the City on notice that any liabilities resulting from the City's
reversal on the future use of the public road, and the inherent fire -safety risks associated
therewith, will be home by the City.
Finally, Scalzo has been in recent discussions with the neighbors (the Birtchers)
concerning the long-term maintenance and operations of the public road and will continue to
endeavor to. reach a solution that is acceptable to everyone. As a result, Scalzo requests an
additional 90 -day extension to meet and confer with the Birtchers (and other neighbors)
concerning the above issues.
If you should have any questions concerning the above, please do not hesitate to contact
me.
Very
ytruly yours,
U \
Charles S. Krohkowski
CSIK:aghm
encl..
cc: Rick Scalzo
Marc Goldstein, Esq.
John Shaw, Esq.
Dave Adams, City Manager
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07/07/06 MON 15:24 FAX 949 622 2626 CB&G 0002
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July 3, 2006
John R. Shaw, Esq. VLA TEL.EFACSiIMS AND
City Attorney FeMAIL
City of San Juan Capistrano
32400 Pasco Adelanto
San Juan Capistrano, CA 92675
Re: Belladonna Estates Subdivision Approval:
Southwesterly Access Road Maintenance Condition
Dear Mr. Shaw:
Your letter to Art Birtcher of June 16, 2006, apparently arrived when he was out of the
country and, when he finally received the letter and tried to contact me last week, I was
out of the state attending depositions in Chicago.
After several tmsucoeasfltl attempts to reach each other at the end of last week, Marc
Goldstein ad I finally linked up this morning by phone. We have acknowledged to each
other, and hereby confirm to you, that our respective clients, the Birtehers and the Scalzo
Family Trust, remain committed to working together to reach an amicable resolution of
the (1) maintenance issues for the access road and (2) the various other issues that were
discussed at the initial mediation session held on February g, 2006.
At this point, the Birtchers feel that, based on Rick Scalzo's willingness to continue
negotiating a possible road association agreement and his stated desire to reach closure on
all of the other outstanding issues relating to drainage, landscaping, etc., it would be
productive for the City to further extend the "meet -and -confer" condition that was
imposed on the tract map last December. Mr. Goldstein has indicated that both he and
W. Scalzo see the wisdom of working together with the other property owners in the
neighborhood to resolve the pending issues. As I understand it, therefore, the Scalzo
Family Trust would not oppose a further extension of the condition to afford the parties
more time to try to reach an agreement.
Please advise the City Council at tonight's meeting that the parties would appreciate
additional time to explore a mutually -acceptable resolution of the issues that were put on
the table at the February a mediation session. Specifically, I would request that another
Exhibit C
JUL 03 2006 2:39PM MFRC GOLDSTEIN
07/03/08 VON 15:24 FAX 848 822 2828 CB&G
John R. Shaw, Esq,
July 3, 2006
Pap 2
9o -day exterwon of the "meet -and -confer cor
with adequate time to negotiate and document
ACKNOWLEDGED AND AGREED
Marc Goldstein, Esq.
Attorney for Scalzo Family Trust
949 673-7444 P.3
Q003
be granted to provide the parties
htion of the remaining issues.
iww
M. Connor