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HomeMy WebLinkAbout1/15/2004 - STAFF REPORTS . ALESHIRE Si WYIVDER, LLP ATTORNEYS AT LAW www,awatt a rneys.cnm MEMORANDUM TO: HONORABLE MAYOR; MEMBERS OF THE CITY COUNCIL COPY: DAVID H. READY, CITY MANAGER DAVE BARAKIAN, CITY ENGINEER FROM: DAVID J. ALESHIRE, CITY ATTORNEY DATE: JANUARY 15,2004 FILE: 1003-001 RE: COMPLAINT BY MICHAEL MORET RE GRADING ACTIVITY BY G&M CONSTRUCTION IN PALM CANYON WASH A. INTRODUCTION. This memorandum concerns complaints made by Dr. Michael Moret about grading activity by G&M Construction ("G&M") in August and November of 2003, Although Dr. Moret is also concerned over earlier grading, these earlier complaints are not well documented. Accordingly this memorandum will focus on the more recent activity. Although this office had heard tangentially about this issue, and briefly reviewed one letter in early November, our first involvement occurred on Friday, December 12, when we were given some materials by staff and asked to prepare a letter to Mr. George Marantz, of G&M, informing him that he was in violation of various ordinances and that he should cease and desist. Although we sent the letter, our cursory review indicated that other problems may exist, and we advised G&M that we were investigating other issues. We subsequently informed the Council and public at the Council meeting on December 17, 2003 that we were looking further into the matter. We have attempted to conduct a thorough review of this matter. However, none of our interviews were conducted under oath. We have talked to Dr. Moret, City staff, iversr e County o0 on ro s a my ores of Engineers staff, property owners, certain consultants, developers who obtained fill from G&M, and the District Attorney's office. We have not talked to Mr. Marantz,who should be represented by legal counsel in discussing any of these matters. We believe any criminal filings should in the first instance be referred to the District Attorney's office. We have referred certain of the violations of law which we believe have occurred to the responsible agencies, including the Army Corps of Engineers ("Corps") and the Riverside County Flood Control District ("RCFC"), who can in turn work with the District Attorney. Certain other matters we have referred directly to the District Attorney. Our detailed recommendations are discussed below. 1003/001/28891.05 d Honorable Mayor Members of the City Council January 15, 2004 Page 2 In sum, we find that G&M, over a period of months, removed a significant amount of fill material from the Palm Canyon Wash in its reach between the crossings of Araby Drive and the Palm Canyon Bridge. It appears that this fill may have been used by G&M for financial gain in construction projects for which it was under contract. G&M had no legal authority to conduct these operations and violated numerous laws. G&M was dece tive to various persons, including the City, a out its authority to con uct t ese operations. Dr. Moret made a number of complaints to City officials in an effort to have this activity halted. Although the City did not ignore the complaints, its follow- was not thorough enough to discover t e vio atrons. n oret eventua y talked directly to RCFC and the Corps. On Friday November 7, , Mr. Ed Lotz, an engineer with RCFC, at Dr. Moret's request, visited the site and observed the true nature of G&M's operations. On Monday,November 10, a number of events occurred which, collectively, caused the City Engineer to issue a stop work order. These events included Dr. Moret's letter to the City documenting his .concerns, Dr. Moret's telephone conversation with City staff, a conversation between City staff and Mr. Lotz, and the City's receipt of various documents from RCFC. This information finally revealed to the City that G&M was working on private property, which was within the City's jurisdiction, not RCFC's jurisdiction. The City immediately issued the stop work notice to G&M, advising G&M that approvals and permits were required for the work being performed. In discussing with the City officials directly involved, Building Inspector ("Ford"), the Associate City Engineer ("Fuller") and the City Engineer ("Barakian"), the reasons for their actions, none of them were ever contacted by then Mayor Will Kliendienst or Planning Commissioner Diane Marantz concerning this matter. To their knowledge, n,o political influence was exerted in this matter. Nonetheless, staff does concede that they were affected by- a�st attitu es concerning grading in the flood control chamiels which have-been son3ewh aissez faire, m that the channels are under the control of the RCFC and not the responsibility of the rty. In t rs case, ue to unique clrcums ances at t ere was no flood control easement, that assumption turned out to be erroneous. This memorandum is organized in the following manner: • Summary of Conclusions • Statement of Facts • Statement of Allegations • Corrective Action to be Undertaken • Violations Referred to Other Agencies • Reference to the District Attorney for Criminal Investigation • Issues Subject to City Jurisdiction 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 3 • Violations of the Grading Ordinance • Failure to have a Dust Control Plan • Violation of NPDES Requirements • Conduct of Operations in the Flood Plain • Operation of Trucks on Streets • Damage to Streets • Hours to Conduct Construction Operations • The Nature of the Staff Response and Reasons for it • Conclusion B. SUMMARY OF CONCLUSIONS. 1. G&M's operations were without proper authority from the City, Corps, Fish & Game or the property owner. Moreover, there is no record of G&M even submitting a proper application to any of these agencies for the necessary permits. 2. `G&M probably used the fill in its grading activities for various construction projects for G&M's financial gain. At this point, we do not know the exact gain received by G&M,but it is discoverable and likely to be significant. 3. G&M misrepresented its authority to conduct these operations. 4. Although City staff did not carefully investigate Dr. Moret's initial complaints in August, they acted promptly in November when the critical information was presented. No evidence has been discovered that City staff failed to respond as the result of political influence or financial consideration. 5. G&M over-excavated the Wash. Moreover, piles of sand now exist which may impede the flow of water, and should be remediated. RCFC is willing to undertake this work when the City obtains the property owner's approval, and provided funding is obtained. 6. The City Engineer has concluded that there is insufficient evidence to show that G &M's activities damage Araby Drive.^ 7. This office and the District Attorney's office should continue to investigate the facts at issue. 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 4 C. STATEMENT OF FACTS. The City Engineer has prepared a detailed statement dated December 12, 2003 of the facts pertaining to this matter. This memorandum is attached as Exhibit A. While not wishing to restate the matters contained in that memorandum, the following summarizes the information we have received from various sources. The Palm Canyon Wash ("Wash") flows over Araby Drive and continues north, passing under the Highway 111 Bridge ('Bridge"). The Wash is protected by a levee on the west where Dr. MoreVs house is located. The east bank of the levee is a dirt bank with a roadway, several hundred feet back, and several houses. One of the eastern houses is owned by Mrs. Adele Norton, but her lot is surrounded by one which was owned by Mr. Ron Burkle, and has recently been sold to Mr. Michael Kilroy (the "Kilroy Parcel') (APN 510-160-014)). The Kilroy Parcel extends into the Wash. In fact, in this reach of the Wash (from the crossing at Araby to the4 Bridge), RCFC only has an easement over a sliver of the Wash along the west bank encompassing the RCFC improved levee. Over two-thirds of the Wash is owned by Mr. Kilroy. The City did not realize this initially. Generally, RCFC has jurisdiction over flood control washes and channels, but only through recorded easements or grant deeds. City jurisdiction is limited to adjacent private property. Other entities with jurisdiction include the Corps and the California Department of Fish & Game ("Fish & Game"). In order to work in waters of the United States, permits are required from the Corps and a stream alteration permit is needed from Fish & Game. In this case, Dan Swenson, a Project Manager for the Southern California Division of the Corps, has advised that G&M should have obtained both a 404 and a 401 permit from the Corps. A 404 permit, which is issued pursuant to Section 404—oTthe Federal Clean Water Act, is required whenever anyone proposes putting fill into waters of the United States. This includes anything from constructing a building to simple grading. Whenever a 404 permit is required, a 401 pen-nit is also necessary. A 401 permit, which is issued pursuant to Section 401 of the Federal Clean Water Act, relates to water quality issues, such as sedimentation and pollutants. The RCFC looks for ways to clean out washes and channels under its control to remove sand and debris for flood control purposes, especially prior to the winter season. Generally RCFC performs the work with its own forces. Occasionally, RCFC will contract with contractors to have material removed. Sometimes this work is paid for by the RCFC. At other times, contractors needing fill will agree to remove the sand and debris without public expense. Mr. Marantz, of G&M, contacted Ed Lotz, an Associate Civil Engineer for RCFC, in July about removing material in the Wash including some debris piles located at the edge of the Wash within the RCFC easement area. We talked to Mr. Lotz and Dusty Williams, the General Manager and Chief Engineer. Normal protocol to do work in the RCFC easement area is to issue an encroachment permit, whereas if the work is on private property, the party would be referred 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 5 to the City. There was some discussion about future work to clean out the channel and the debris piles. Mr. Marantz claims that he received oral approval to work in the wash. Mr. Lutz asserts that he advised Mr. Marantz that any work in the Wash would require a permit from the Corps and a streambed alteration agreement with Fish & Game and told him to seek these approvals. On July 30, 2003, Mr. Lotz faxed Mr. Marantz a sample letter to use when getting the Corps' authorization and stated, "Please write a letter to the Corps of Engineers explaining your work in the Pahn Canyon Channel and requesting authorization for it." Mr. Swenson, of the Corps, states that this authorization was, in fact, never requested by G&M. On August 1, 2003, Dr. Moret talked to Mr. Fuller, an Associate City Engineer, telling Mr. Fuller that a contractor was working in the Wash and removing fill materials with large tractor trailers through Araby Drive. Mr. Fuller contacted RCFC's Mr. Lotz. There was evidently some miscommunication in their conversation. In addition, Mr. Fuller did not realize that a portion of the channel was on private property and this was not clarified in the conversation. Apparently, Mr. Fuller and Mr. Lotz were not very specific about the extent of the operation requested by G&M or what RCFC had approved, if anything. Moreover, they did not discuss whether G&M needed a permit from the Corps or a streambed alteration agreement. Thereafter, Mr. Fuller advised Dr. Moret that the G&M operation "was authorized" by RCFC. Although there are some conflicts between the parties on this point, this statement was misleading in that the extent of the operations being conducted by G & M were not authorized by RCFC (and could not have been authorized as they were on private property). Dr. Moret additionally claims that Mr. Fuller told him that the RCFC had a written multi-year agreement with G&M. Mr. Fuller says that while he may have said "multi-year," he was explaining that RCFC often enters into such multi-year agreements for the routine clearing of washes and channels, not that the G&M arrangement was such. Nevertheless, the G&M operation soon ceased, perhaps because the grading project that G&M was using the fill for had been completed. Dr. Moret alleges that G&M sold the soil as fill at four construction projects within the City: (1) the Palm Springs Modern Homes ("PS Modern") condominium project on Baristo, (2) the PS Modern "Villas" on Tahquitz, (3) Pintura and (4) the Friend Development 104-unit a d' ) We have confirmed that the first three projects received a combined total of 627 cubic aids of imported fill.' The Friend Development, however, exhorted 5,182 cubic yar s of fill. Moreover, although PS Modern has confirmed that G&M was the grading contractor for the Villas, PS Modern believes that several sources were used to obtain fill for the project. We have requested copies of documentation regarding the fill obtained at both the Villas and the tondo's from PS Modern. We have now been informed by P.S. Modern that this 1 The tondo's on Baristo required 14,010 CY,the Villas required 17,317 CY and Pintura required 17,300 CY. 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 6 information will only be provided through subpoena. In addition, George Baker, who is involved with the Pintura project, is vehemently asserting that Pintura was graded in November of 2002 by a company called SW Dirt. Preparatory to re-commencing its grading activities in November, on October 28, 2003, G&M sent a letter to Mrs. Norton, a copy of which is attached as Exhibit B. In fact, Mrs. Norton was the wrong property owner to send the letter to as it is the Kilroy Parcel which extends into the Wash. The letter falsely represents, "G&M construction, with permission of Riverside County Flood Control and the Army Corps of Engineers, will be widening and deepening the channel from Araby Road northeast to the Palm Canyon Bridge . . . .At no time will the deepening or widening operations be carried beyond the limits of the easement granted to Riverside County Flood Control." (Emphasis added.) G&M also stated that its work would be "well within the easement [the RCFC easement] as surveyed by Sanborn A/E." 2 We have discussed this matter with Mr. John Sanborn. He states that G&M contracted with him in August to cross section the Wash and define the limits of excavation (to RCFC design parameters for the bottom of the Wash). He says that they did stake out the boundary of the Wash along the east bank and that he was unaware that RCFC did not have an easement across the whole Wash. Mr. Sanborn was not under contract with G&M to supervise the work undertaken by G&M. Mr. Sanborn has recently inspected the site and concluded that G&M excavated deeper than he had specified. After sending the letter to Mrs. Norton, G&M recommenced its grading operations in the Wash. Once Dr. Moret observed Mr. Marantz in the Wash, Dr. Moret went to the job site to speak with Mr. Marantz. Mr. Marantz told Dr. Moret that G&M was performing maintenance work pursuant to a contract with RCFC. On November 6s', Dr. Moret reported to Mr. Lotz, of RCFC, that a significant number of trucks were hauling soil away from the wash. Mr. Lotz confirmed that, although RCFC had spoken with G&M about cleaning out the Wash during the summer, there was no approval for any current activity. Mr. Lotz volunteered to visit the Wash the following day to observe what was occurring. On Friday, November 7`n, Mr. Lotz met Dr. Moret at the Wash. After observing G&M's activity, Mr. Lotz offered that the (1) G&M operations appeared excessive; (2) the majority of the work was on private property, (3) the volume of truck traffic probably required a permit from the City, and (4) he would discuss the situation with the City's Engineering Department. Because RCFC did not have to issue a permit for the work being conducted on private property, Mr. Lotz did not know if G&M had the clearances necessary to perform the work from the City, Corps and/or Fish& Game. We have other specific examples of such misrepresentations, including to the City. 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 7 That same day, Friday November 7 h, Mr. Lotz left a voice mail message for Mr. Fuller, who was out of the office. On Monday November 10, 2003, matters came to a head. Mr. Fuller returned his messages from both Mr. Lotz and Dr. Moret and the City received Dr. Moret's letter of November 10 which related the course of events up to that time. Once Mr. Fuller discovered that RCFC had never had a contract with G&M and realized that a portion of the G&M work was occurring on private property, he requested and received copies of all documentation between IC-4 RCFC and G&M. The City then began to verify where the G&M operations were in relation to the RCFC easement. The City also discussed with Mr. Lotz whether ordering G&M off the job would create a hazard due to the large sand piles which G&M had created in the Wash. Based on all of the new information received, the City Engineer and Assistant City Manager concluded that the G&M operations were not authorized and that stopping the work would not threaten life and safety. According, they immediately proceeded to stop the operations. By mid-afternoon on November 10, 2003, the City had issued a stop notice which f caused G&M to cease its operations. 4 On November 12 and 25, 2003, Dr. Moret wrote additional letters to the Mayor raising various issues concerning these events. On December 3, 2003, City staff met with Steve Thomas, Chief of Operations and Maintenance for RCFC, at the Wash. Options to rectify conditions were examined including (1) G&M performing corrective work, (2)the City's hiring a contractor to do the work, and (3) RCFC performing the work at its expense. Thereafter, the. City sought permission of Mr. Kilroy, the property owner, to have the corrective work performed. On December 12, 2003, the City Engineer prepared his memo recounting the events since August and requested that the City Attorney formally advise G&M that it had acted without authorization and should cease and desist. Our office sent the letter the same day and is attached as Exhibit C. Mr. Swenson, of the Corps, confirms that G&M never even applied to the Corps for a permit or to Fish & Game for a streambed alteration agreement for work to be performed in 2003, even though the work performed would require such authorizations. On January 15, we met with Mr. Marantz and his legal counsel. He stated that he believed that the work was under the jurisdiction of RCFC. He talked to Mr. Lotz in August and received oral approval to do the work to "clean out" the channel and make it safe for the winter season. The operation in August took about a week as did the operation in November. He was stopped from finishing although he was practically done. He would not have left the piles had he been allowed to complete. He had had Mr. Sanborn survey the area of work and was not told he was on private property. He had tried to keep Mrs. Norton aware of the work even though he thought he was within the RCFC easement. He did not realize that it was the Kilroy Parcel that came into the Wash. If his employees over excavated the wash, it was a mistake he could easily 1003/001/28991.05 Honorable Mayor Members of the City Council January 15, 2004 Page 8 correct. Finally, Mr. Marantz claims many others have done work in the wash and none have been pressured as he has. D. STATEMENT OF ALLEGATIONS. Collectively, Dr. Moret's correspondence alleges the following complaints concerning G&M's operations within the Palm Canyon Wash between August I and November 10, 2003: (--- 1. That G&M's operations were without authority from the Corps; I 2. That G&M's operations were without or exceeded any authority given by I�! RCFC; I! 3. That G&M's operations were carried out largely on private property without the permission of the owner(Kilroy); 4. That G&M took fill from the private property and used it in various construction projects for financial gain; �I 5. That G&M had no approvals from City for any of the operations conducted on private property; h 6. That G&M knowingly misrepresented its authority to conduct these operations, both orally and in writing, and failed to remedy its lack of authority even after i numerous neighborhood complaints about his operations; 7. That G&M's trucking activity was not permitted on Araby Drive; 8. That G&M's trucking activity caused damage to Araby Drive; n 9. The City staff were slow to respond to citizen complaints; and 10. t City staff did d not responddye political poli cal influence exerted by Mayor Kliendienst or other such dd While our review validates most of Dr. Moret's complaints, our information does not validate complaints 7, 8, and 10. In the following discussion we would like to outline our analysis of these complaints and the action we would recommend as a consequence. 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 9 E. CORRECTIVE ACTION TO BE UNDERTAKEN. City and RCFC staff is apparently in agreement that the current condition of the Wash may impede the flow of water, but does not present an immediate danger to life and safety. Nevertheless, they agree corrective action should be taken expeditiously. G&M could be ordered to take the corrective action of removing the sand or simply re- grading it. However, there seems to be agreement that given the indifference displayed by G&M to both the law, and to the neighborhood,this should not be permitted. Subject to Board approval, RCFC has expressed a willingness to undertake the removal of the material provided permission of Mr. Kilroy can be obtained, a location for deposit can be arranged by City, and the City can provide funding. The City has several different deposit sites and the property owner may have one. The anticipated cost is approximately $15,000, The City has asked for, and expects to receive, approval from Mr. Kilroy. This office has been instructed to find a mechanism to recover the anticipated $15,000 expense from G&M. The current best estimate is that this work can be done in five working days, but that the RCFC and/or City will first need to obtain approvals from the Corps, and perhaps a streambed alteration agreement with Fish & Game. Mr. Swenson, of the Corps, could not provide a firm response regarding the need to obtain Corps' permits to fix the damage caused by G&M, stating that the Corps' decision will depend upon the type of work necessary to restore the Wash. F. VIOLATIONS REFERRED TO OTHER AGENCIES. The Complaints that G&M's operations were without the authority of the Corps and RCFC are well founded. The Palm Canyon Wash is clearly a waterway of the United States, and pursuant to the Federal Clean Water Act, certain operations work in the Wash requires notification and/or permitting from the Corps. In addition, a streambed alteration agreement should have been obtained from Fish & Game. G&M was advised by Ed Lotz of the need for such authorizations, and, in fact, pursuant to the July 30, 2003 fax from Mr. Lotz, it is clear that G&M was advised in writing of the need for such permits. Moreover, G&M is an experienced contractor in the desert area and has previously worked within such washes and channels. G&M cannot claim to be unaware of these requirements. The authority of RCFC is complicated by the fact that the RCFC easement covers less than a third of the area where the work was done, some work not authorized by RCFC certainly occurred within their jurisdiction. Further, because it appears that RCFC and the City intend to remediate the site, Mr. Swenson does not believe that the Corps will take any enforcement action against G&M. This is because the Corps' enforcement authority is discretionary, and depends upon the 1003/001/2889105 Honorable Mayor Members of the City Council January 15, 2004 Page 10 environmental damage created and the work load of the project managers. Thus, in this situation if the environmental damage is repaired, the Corps would probably decline to prosecute G&M. Although the RCFC, Corps and Fish & Game are aware of the circumstances which have occurred and we have been told by the Corps that they will probably not take enforcement action, we believe that we should forward this report to them so that they may take whatever action is appropriate within their authority. G. REFERENCE TO THE DISTRICT ATTORNEY FOR CRIMINAL INVESTIGATION. Our office has contacted the Riverside County District Attorney's Office's Special Prosecution Section. Deputy District Attorney Stephanie Weissman has been assigned to the matter. Penal Code Section 487(a) defines grand theft as the taking of money, labor or real or personal property with a value exceeding $400. A calculation can be made of the material removed by surveying the current condition of the Wash. We have obtained the estimate that some 48,000 cubic yards of material was imported to various construction projects. We have requested information on what G&M was paid for this,but it was certainly more than $400. We have advised Deputy District Attorney Weissman of our investigation. Ms. Weissman has requested a report from the California Department of Fish and Game and the Colorado River Regional Water Quality Control Board as to the damage done to the Wash from the G&M operations. Fish & Game Warden Matt Shanaly has been assigned to investigate this matter. H. ISSUES SUBJECT TO CITY JURISDICTION. 1. Violations of the Grading Ordinance. The City has adopted the 1997 Uniform Building Code as the California Building Code in Section 8.04.015 of the Palm Springs Municipal Code ("PSMC"). Pursuant to UBC Section 3306.1, "no person shall do any grading without first having obtained a grading permit from the building official." UBC Section 3309.1 mirrors Section 3306.1, and adds the statement that separate permits are required for each site. Additionally, PSMC § 8.04.015(10) requires an approved grading plan, prepared by a civil engineer, for grading in excess of 2000 cubic yards. Pursuant to PSMC § 8.04.310, no person shall alter a premises in violation of the UBC or any potion of Chapter 8.04. The first instance of such violation is deemed an infraction. As set forth in PSMC § 1.01,155, the penalties for an infraction are $100 for the first offense, $200 for the second and $500 for the third (within a year). However, Section 8.04.320 provides 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 11 that continuing violations of the UBC or Chapter 8.04 for a second or subsequent day are a misdemeanor. Misdemeanors are punishable by a fine of$1,000 or six months in jail, or both (PSMC §§ 1.01.150 and 1.01,160). Although these violations occurred over an extended period of time, once G&M was officially advised of the violation, the activity stopped. Thus, it is not clear whether this can be successfully prosecuted as a misdemeanor. 2. Failure to have a Dust Control Plan. One of Dr. Moret's complaints involved was the volume of truck traffic created by G&M's removal of soil from the Wash,which raises the issue of dust control. Both the UBC and the PSMC require construction and building projects to have a dust control plan. PSMC § 8.04.015(11) requires "an effective means of dust control which shall include provisions for adequate watering during the grading process and provision for continuance of dust control after grading, until such time that . . . dust control measures are no longer necessary." In addition, as a part of the Coachella Valley PM10 Program, PSMC § 8.50.020 prohibits any grading operations unless a fugitive dust mitigation plan is first approved. G&M never sought the City's approval of a fugitive dust mitigation plan, since they never sought a grading permit in the first place. Further, there is no evidence that G&M undertook any type of dust control measures whatsoever. These offenses are punishable as an infraction. 3. Violation of NPDES Requirements. All grading permits require compliance with National Pollution Discharge ("NPDES") general requirements. The failure to comply with NPDES requirements is an infraction. NPDES permits are issued by either the U.S. Environmental Protection Agency or the Colorado River Regional Water Quality Control Board. PSMC § 8.70.110 requires one intending to do work that requires a grading permit to obtain a general NPDES permit prior to the issuance of a grading permit. Thus, G&M could be found guilty of an infraction for failing to obtain an NPDES permit. 4. Operation of Trucks on Streets. Dr. Moret has expressed concern over the number of truck trips made from the Wash by G&M and the fact that the trucks were not covered. The PSMC does not address either concern. California Vehicle Code §§ 35551 and 35551.5 calculate the allowable gross weight of a vehicle by the total gross weight in pounds imposed on the highway by any group of two or more consecutive axels. Generally, the gross weight imposed upon the highway by the wheels of any one axle of a vehicle cannot exceed 18,000 pounds. Moreover, "highway" is defined in Vehicle Code § 360 as "a place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street." Thus, it appears that trucks with less than 18,000 pounds per axle may be driven on any public roadway in the City 1003/001/29891.05 Honorable Mayor Members of the City Council January 15,2004 Page 12 without a permit. At this time, we have no information regarding the weight of the tucks used by G&M to remove soil from the Wash. With respect the requirement that the trucks be covered, Vehicle Code § 23114(a) prohibits any vehicle from being driven unless the vehicle is constructed, covered and loaded in a manner that prevents any of the vehicle's contents from sifting, leaking, blowing, spilling or otherwise escaping from the vehicle. Vehicle Code § 23114(d) defines "aggregate material" as rock fragments, sand, dirt, gravel and similar materials. Additionally, as of September 1, 1990, all vehicles transporting any aggregate material upon a highway must be covered, unless the load remains six inches from the upper edges of the sides, front and back of the vehicle's cargo container area and does not extend at its peak above any part of the upper edge. (Vehicle Code §§ 23114(e)(1) and (4); 85 Ops.Cal.Atty.Gen. 220 (2002).) Again, because the City has no direct evidence that any of the trucks used by G&M allowed soil to spill and/or were not properly covered, the City currently lacks the proof necessary to prosecute G&M for violating Vehicle Code § 23114. Although the PSMC does not currently limit the weight of vehicles crossing City streets or require that trucks transporting materials such as soil be covered, the City Council could, in the future, adopt an ordinance addressing these issues. 5. Damage to Streets. Although, in theory, a contractor who caused damage to City streets could be required to correct such damage, the PSMC does not currently provide such a mechanism and, at this time, there does not appear to be adequate proof of such street damage caused by G&M. Since many people use streets, it can be difficult to establish liability. Of course, a heavily weighted tractor trailer has been estimated to cause the damage of 10,000 automobiles. The issue of liability was addressed by the City Engineer in his December 12 report. "Engineering staff walked the length of the street both downstream and upstream of the channel crossing and could not find a discernable difference in the condition of the street between the areas the trucks were driving on and the area upstream where no trucks had driven. It is therefore staffs opinion it would be very difficult to assign G&M Constriction as the specific cause of cracks in Araby Drive, given that the area of the street where they were not working is in a similar condition." In any event, evidently Araby Drive has not been resealed since 1996. It is currently scheduled for resurfacing in the spring of 2005, which would alleviate the problem. It is anticipated that the resurfacing work would take two or three days. 10031001/28891,05 Honorable Mayor Members of the City Council January 15, 2004 Page 13 Dr. Moret also made the point (in his November 251h letter) that, in the past, work in this reach of the Wash was carried out with access through Rim Road. The City Engineer agrees that, in the future, Rim Road, which has less traffic, will be the preferred access route for work undertaken in this area of the Wash. There are several ways that the PSMC could be revised to require a contractor who damages a City street to pay to repair the street. First, the PSMC authorizes the City to designate "Truck Traffic Routes" for vehicles exceeding the gross weight of three tons. (PSMC § 12.56.010.) When such routes are established and designated with proper signage, the operator of any vehicle exceeding three tons must drive on such routes, and no other routes, except for ingress and egress by direct route to and from restricted streets. (PSMC § 12.56.020.) Unfortunately, the City has not yet designated any truck traffic routes. Hence, the City could adopt an ordinance establishing truck traffic routes and directly establishing a penalty related to street repair for violations of the ordinance. Second, PSMC § 12.56,040 authorizes the City to prohibit commercial vehicles from using certain streets, or portions thereof. To date, the City has only designated portions of Chino Canyon Road, Panorama Road, Cielo Drive, Vista Drive, Leonard Road and Tuscan Road. (PSMC § 12.56.042.) The City could add to the list of streets upon which commercial traffic is prohibited and establish a penalty related to street repair for violations of this ordinance. 6. Hours to Conduct Construction Operations—PSMC § 8.04.220. Another complaint in Dr. Moret's correspondence relates to the noise and disturbance created by the G&M operations, although Dr. Moret has not been specific about the hours of the day that this activity was occurring. The City prohibits construction activity during certain hours. The grading and truck loading activities of G&M are included within the restrictions of the ordinance. The hours where work is permitted are limited to between 7:00 a.m. and 7:00 p.m. Monday through Friday and between 8:00 a.m. and 5:00 p.m. on Saturday. The first violation of Section 8.04.220 is an infraction pursuant to Section 8.04.310. Subsequent violations may be charged as a misdemeanor pursuant to Section 8.04.320. At this time, we have no evidence of specific violations, but we think the neighborhood should be aware of these restrictions so that future violations can be reported. I. THE NATURE OF THE STAFF RESPONSE AND REASONS FOR IT. A significant portion of Dr. Moret's displeasure is directed towards the City's response to his complaints. Although this report could ignore what is clearly a sensitive issue for the City, some of the information we have obtained could perhaps bring closure to this issue. 1003/001/28891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 14 We were not privy to any of the conversations between staff and Dr. Moret and there may be a personal aspect to how the conversations were conducted which may explain some of what occurred. We cannot comment on this. However, clearly there were two fundamental problems. The first was the assumption that the Wash was within the jurisdiction of RCFC and that the City had no permitting authority. Therefore the City staff started with a limited sense of responsibility for what was occurring in the Wash. The second problem was the lack of clear communication between the City and RCFC about the RCFC's conversations with G&M, what was and was not authorized, who had jurisdiction, and the work G&M was then performing.. This problem probably resulted from the first problem. RCFC was not present at the job site to observe what G&M was doing. The City was not careful to explain what was actually occurring because the City assumed that it was not their responsibility. All that being said, the City must accept significant responsibility for this situation. The first documented complaints were on August 1 (although Dr. Moret says they were earlier), but the job was not shut down until November 10 (of course, the work was not continuous during that time). The City did not ask for actual documentation of the authority of G&M until November 10. Had this occurred as a part of the August conversations with RCFC, the November operations might never have occurred. Moreover, there was evidently no discussion about the lack of permits from the Corps. The City acted promptly when they finally understood the situation, but much damage had been done. Thus, we believe that some of Dr. Moret's frustration with the City's response is justified. We might add that the City prides itself on being the level of government closest to "the people." We should expect to be more responsive to our residents than governmental entities headquartered many miles away. Thus, we should be dissatisfied with ourselves when we are not able to ferret out legitimate complaints of our citizens due to unclear communications with other levels of government. We should expect to be held to a high standard when serving our citizens. However, Dr. Moret goes on to ascribe this response to various sinister causes including (a) the exertion of political influence on staff by the then Mayor Kliendienst, or by G&M itself based on the fact that Mr. Marantz's wife was and is a member of the Planning Commission, and (b) that some of the staff perhaps received something else beneficial which would sway their judgment. We have spoken to Messrs. Ready, Butzlaff, Barakian, Fuller and Ford. All deny (a)- ever having a conversation with the Mayor or Commissioner Marantz where any effort was made to influence their conduct in this matter, and (b) that they were ever offered anything of value by G&M or through any intermediary to influence their conduct in this matter. Thus, we have found no evidence to support Dr. Moret's charges in this regard. 1003/001/29891.05 Honorable Mayor Members of the City Council January 15, 2004 Page 15 J. CONCLUSION. This report is more extensive than we originally anticipated. As we talked to different individuals, there were variations in how they related events. In addition, as we looked further into the matter, the scope expanded because (a) it was discovered that the work was largely on private property so the scope of the City's jurisdiction increased, (b) additional violations of law were discovered and (c) evidence was produced of G&M's intentional behavior, thus increasing the seriousness of the matter. We must offer several caveats. There are still some significant discrepancies in the details of the stories we have heard. We did not take statements under oath. We have tried to base our conclusions on the broad outlines of what we have heard and the documents we have, so that changes in details would not affect our conclusions. If Dr. Moret needs an explanation for what occurred here, we believe it suffices to say faulty assumptions, people too busy to ask important questions, and some defensive behavior are responsible. Such factors would adequately account for what occurred without the sinister connotations Dr. Moret has suggested. In saying this, we do not intend to be critical of Dr. Moret. He was right in his concern and in most of his facts. Without his strenuous efforts, G&M's violations of law might still be continuing. Exhibits: Exhibit A: December 12 Report by City Engineer Exhibit B: October 28 Letter from Mr. Marantz to Mrs. Norton Exhibit C: December 12 Letter from City Attorney 1003/001/28891,05 MEMORANDUM DATE: FRIDAY,DECENIEER 12, 2003 TO: David H. Ready. City Manager FROM: David J. Barakian, Director of Public Works/City Engineer Troy Butzlaff, Assistant City Manager SUBJECT: Palm Canyon Wash In the City of Palm Springs, all mapped flood control channels are owned either in fee or by easement and maintained by the Riverside County Flood Control and Water Conservation District. Therefore, when Engineering Staffwas first advised on August 1"of this year that someone was working within the Palm Canyon Wash south of the East Palm Canyon Drive Bridge, we advised the person to contact the Riverside County Flood Control and Water Conservation District (RCFC). Staff followed-up that same day with Mr. Ed Lotz of RCFC and learned that he was aware that G&M Construction was removing dirt within the wash and gave every indication that this operation was under the direction of and approved by RCFC. When a second complaint was received from the same property owner, Dr. Michael Moret, on November 7, we again inquired with RCFC and learned that Ed Lotz had, had a field meeting with G&M Construction and the concerned property owner and given direction to G&M Construction concerning excavation, and removal of certain dirt piles within the wash. Engineering Staff immediately phoned Ed Lotz to determine the specifics of the continuing grading operations and requested copies of all documents between RCFC and the Contractor. We were also informed at that time that only a portion of the work G&M Construction was doing was within the RCFC Easement, with the remainder, although still within the wash, being on a private parcel of land. Mr. Lotz provided copies of correspondence from July 2003 between RCFC and G&M Construction. The correspondence included what appeared to be an authorization letter, but upon detailed review, was actually an example of an authorization letter. Mr. Lutz responded that what he was doing was requesting George Marantz to apply for a permit both with RCFC and with the Army Corps of Engineers for the work. Mr. Lotz explained to us that removal of dirt from the channel was something that the District had a desire of doing in the interest of protection of the surrounding properties. Indeed this was an opportunity to dispose of unneeded soil deposits within the wash. Although, during the previous several years the District had, without success, attempted to contract for a removal of deposited dirt within the channel and only succeeded in getting a small amount removed, in a limited operation by a contractor working for the District. EXHIBIT A - PAGE 1 OF PALM 9 tic U N M �ApoR/.1E0\ k cq(/FO RN\P Palm Canyon Wash December 12, 2003 Page 2 of 3 The documents also included a copy of a letter from G&M Construction to an adjacent property owner requesting permission to work on the property to remove dirt and indicating that G&M Construction had the permission from the Army Corps of Engineers and Riverside County Flood Control District for work'within the channel. Staff immediately verified a significant portion of the work was indeed on private property, held discussions with Mr. Lotz to determine if stopping the work immediately would provide any imminent danger to any surrounding properties, and when informed that it would not,required that G&M Construction cease and desist until proper permissions and permits could be applied for and obtained. Staff arranged for a meeting with RCFC Deputy Director of Operations on December 3, at the site. The meeting was also attended by neighboring property owners, as well as a staff writer from the Desert Sun. The purpose of the meeting was to obtain advice from RCFC as to the specifics in correcting the channel grading such that it is left in a safe manner with respect to future flood flows. Staff was concerned because the Contractor had left two extremely large piles of dirt within the channel and wanted to be sure that further restorative efforts would not only make the surrounding area safe should a storm occur, but also that restoration of the channel would not cause harm to the channel area. Mr. Lotz explained his opinion regarding restorative efforts to remove the large dirt piles and configure the channel to cant'the designed flood flows it was previously designed to carry. Staff informed all that the choices available were to 1) Instruct G&M Construction to rectify the situation they caused; 2) To hire an outside contractor, at cost to the City; or 3) To request RCFC to utilize their crews for the work. At the time of the meeting, the residents also expressed opinion to staff,,that the work of the Contractor severely damaged the asphalt pavement surface of Araby Drive. ArabyDrive is a two lane roadway carrying residential traffic and has moderate cracking throughout the reach. It was last sealed in 1996 and is scheduled to be slurry sealed again in 2004. Engineering Staff walked the length of the street both downstream and upstream of the channel crossing and could not find discernable difference in the condition of the street between the areas the trucks were driving on and the area upstream where no trucks had driven. It is therefore staff opinion it would be very difficult to assign G&M Construction as the specific cause of cracks in Araby Drive, given that the area of the street where they were not working is in a similar condition. Since that meeting, staff has written a letter to the new property owner, requesting permission to enter upon the property to remove the soil piles. The property changed hands in November 2003 and is now owned by Mr. Michael Kilroy. Staff has further corresponded with RCFC and requested the removal of the remaining dirt within the channel be performed by RCFC crews. Staff spoke with Dusty Williams, General Manager/Chief Engineer of RCFC and although a formal response has not yet been received, indications are that RCFC o do this work themselves. Staff is awaiting a formal response from RCFC. yoe pP m`S" u F' Cq<IFORN\p' T?YATRT'r ■ TTw!'_V 7 Palm Canyon Wash December 12, 2003 Page 3 of 3 Under the City of Palm Springs Municipal Code, grading without a permit on private property is an infraction, punishable under the first offense by a fine not exceeding$100. Staff has asked the City Attorney to assess this fine to the Contractor. There was no notification of with City Staff, nor permit for this work was ever applied for. When staff was finally made aware that work was being performed without the permission of RCFC, the work was immediately ordered to cease, investigations begun, and processes followed toward a successful cleaning up and restoration of the channel site. /clr EXHIBIT A - PAGE 3 OF PALM S A U � N � x C'9(I pp RN�P FROM FAX No. :3220539 Nov. 10 2003 02:50PM P2 G & M CONSTRUCTION 0 Subsidiary of Happy Traveler 211 West Mesquite Avenue Ved.ID#95-2417032 Palm Springs, California 92264 Ue.BA-272619 (766) 322-6918 Fax(760)778,008 General Engineering • Grading • Pipeline a hazardous Waste • Asbestos Demolition October 28,2003 Adele Norton Regarding: South Palm Canyon Widening and Deepening Dear Mrs. Norton: O & M Construction, with permission of Riverside County Flood Control and the Army Corps. Of Engineers, will be 'widening and deepening the channel from Araby Road northeast to the Palm Canyon Bridge. Although some of this property is held by you, it does have a County Flood Control Fasement crossing the channel in question. The widening and deepening will be well within the easement as surveyed by Sanborn A/E and discussed with you Monday, October 27,2003, If,at any time,you feel that the grading operation and sand removal is injurious to your property or wishes, the project will be terminated immediately. At no time will the deepening or widening operations be carried beyond the limits of the easement granted to Riverside County Flood Control. With the concurrence of the Agua Caliente Rand of Cahuilla Indians, Riverside County Flood Control, Army Corps. Of Engineers, it is possible that boulders may be placed on the easement boundary to protect your property, at no cost to you or your prospective heirs. An insurance policy will be delivered within 5 days to indemnify you for any action performed by Cr&M Construction during the widening and deepening of the East Palm Canyon Channel. Tha&y u, ge & C ruction 1 IYXHIBIT B ?ALM City of Palm Springs City Attorney 3200 Tahqu¢z Canyon Way• Palm Spriugs,Catlfocnia 92262 rq41 Fo TEL:(760)323-8211 •TDD(760)864-9527 December 12, 2003 Mr. George Marantz G & M Construction 211 W. Mesquite Palm Springs, CA 92264 RE: Work on private property in Palm Canyon Flood Control Channel without permits; Violation of P.S.M.C. Sec. 8.04.310 Dear Mr. Marantz: The City of Palm Springs has received a number of complaints concerning your operations over the last several months within the Palm Canyon Flood Control Channel ("Channel"). As you know, the Riverside County Flood Control District("District") has jurisdiction over the Channel and may authorize removal of material from the Channel. Although some of your work in the Channel may have been authorized by the District, the City has become aware that you have performed work on a parcel privately owned by Mr. Kilroy (APN 510-160-014). There is no grading plan on file for this parcel, nor has the City issued any permits to you for this work. Grading on private property without a permit constitutes a violation of Palm Springs Municipal Code Section 8.04.310, a violation of which, in the first instance, is punishable as an infraction. Since you do not have a permit, you will be issued a citation for this violation, with any subsequent violations in a twelve (12) month period, punishable as a misdemeanor. You are also ordered to cease all operations within the Channel until you obtain appropriate permits or are otherwise instructed by the District or City. Furthermore, you are instructed, within ten (10) days of the date of this letter, to meet with the City Engineer concerning any required corrective action and to pay all fines and penalties. Finally, please be advised that the City is investigating whether other laws and regulations of the City have been violated. You will be advise of these findings and any additional actions that may be taken. The City expects your immediate and full cooperation. SincerelyVeshirde LQ David J City Attorney DJF:jt -EXHIBIT C - cc:David Ready Troy Butzlaff Dave Barakian Don Duckworth City Council Post Office Box 2743 • Palm Springs, California 92263-2743