HomeMy WebLinkAboutAgenda Report - April 4, 2018 C-13 PHTM
CITY OF LODI
COUNCIL COMMUNICATION
AGENDA ITEM
C-13
AGENDA TITLE: Set Public Hearing for May 2, 2018, to Consider Appeal of Erik and Staci Jones
Regarding Public Works Department's Denial of Encroachment Permit for
3031 Celebration Drive, Lodi
MEETING DATE: April 4, 2018
PREPARED BY: City Clerk
RECOMMENDED ACTION Set public hearing for May 2, 2018, to consider appeal of Erik and
Staci Jones regarding the Public Works Department's denial of an
encroachment permit for 3031 Celebration Drive, Lodi.
BACKGROUND INFORMATION: Pursuant to Lodi Municipal Code 12.04.100, Erik and Staci Jones
are appealing the Public Works Department's October 26, 2017
denial of an encroachment permit application for approval of
modifications to the driveway of their residence located at 3031 Celebration Drive. The City Council may
now set the matter for a public hearing to consider the appeal. It is recommended that the matter be
heard at the City Council meeting of May 2, 2018. A copy of the appeal is attached for informational
purposes. A more detailed packet of information, including the relevant documentation from Public
Works, will be provided in the May 2, 2018 agenda packet.
FISCAL IMPACT: Not applicable.
FUNDING AVAILABLE: Not applicable.
J= j er M. Fetiolo
City Clerk
Attachments
APPROVED:
, City Manager
HUGHEY
LAW GROUP
Via Email and U.S. Postal
Lodi City Council
c/o Lodi City Clerk's Office
P.O. Box 3006
Lodi, CA 95241-1910
Cityclerk@lodi.gov
520 9th Street, Suite 230, Sacramento, CA95814
0: 916.758.2100 1 F: 916.758.2200
www.hugheylawgroup.com
March 20, 2018
Re: Appeal of Encroachment Permit Denial
3031 Celebration Drive, Lodi, California
To the Honorable Alan Nakanishi, Joanne Mounce, Mark Chandler, Robert Johnson and Doug
Kuehne:
We represent City of Lodi citizens Erik and Staci Jones, who reside at 3031 Celebration
Drive, and we write to appeal from Lodi Public Works Department's October 26, 2017 denial of
the Joneses' October 10, 2017 encroachment permit application for approval of minor
modifications to their driveway. Though the requested modifications are minor, the driveway or
curb cut defects for which the Joneses' seek modification have and continue causing significant
risks of harm or injury to individuals and vehicles, as well as causing reduced property value.
As outlined below, the Joneses have been, and continue to be, substantially damaged by
the defective condition of their driveway and the Public Works Department's refusal to grant a
rather minor, yet quite meaningful, encroachment permit to remedy the defective condition.
Lodi Municipal Code section 12.04.060 deems it unlawful for a person to make any of the
required alterations without first obtaining a permit, therefore the application process is the only
means by which the Joneses may obtain the desired and much needed relief Further, granting a
permit in this instance will not in any way cause a detriment to the public interest, safety, health
and welfare or be injurious to other property. In fact, granting the permit will provide the
opposite effect, as it will alleviate an already dangerous and harmful condition for which the City
of Lodi is responsible.
A. Pertinent Factual and Procedural Background
The Joneses purchased their home from Frontier Land Companies ("FCB") on October
25, 2015, and they explicitly made clear their desire, intent and expectation to purchase a home
with a three -car garage and use it as such — for three vehicles, and FCB directed them to the 3031
Celebration property floorplan, referenced in initial transaction documents as "Structural
Selection, Plan 302" and featuring a "Standard 3 Car Garage." The Joneses specifically chose
the model containing the third garage bay over other options, such as receiving an additional den
Kevin Hughey
khughey@hugheylawgroup.com
with added amenities, due to their future need to accommodate vehicles for their growing
children. The Joneses purchased the home under the reasonable and good -faith belief that FCB
would construct and deliver a fully functioning driveway that would provide safe, clear
accessible to all three garage bays included in the improvement plans.
It was not until the Joneses finalized the purchase and moved in to the home on May 28,
2016 that they discovered that the garage was impossible to safely access from the street, and
that the driveway and curb cuts did not align with the garage layout. In order to utilize one of the
garage bays for its intended use — vehicle parking, the Joneses are required to maneuver as
follows:
1. Drive and stop their vehicle at an angle partially perpendicular to their home front
on Celebration Drive;
2. Reverse the vehicle away from the home to create an angle directly perpendicular
to their home, which requires that they reverse into the middle of the public street (blocking all
forms of traffic on the public street);
3. Reposition the vehicle forward to face the home directly perpendicularly and
create a straight line to the third garage bay;
4. Literally drive up onto and over the public curb;
5. Drive the vehicle forward over the public sidewalk and across what were
supposed to be their front planter areas, which they already were forced to remove; and
6. Proceed forward until the vehicle is fully housed in the garage.
On a daily basis, the Joneses must repeat the same order of maneuvers each and every time they
seek to utilize the third bay of their garage. To simply utilize their third garage bay, therefore,
the Joneses must create unreasonable and dangerous health and welfare conditions for
themselves, all adult and child vehicular, bicycle, skateboard and skate, scooter, pedestrian, etc.,
users of both the public street and sidewalk. In addition, the Joneses are risking or already
causing harm to the vehicles which they must drive up and down curbs during ingress and
egress.
Of course, the Joneses reasonably and in good faith believed that should FCB fail to
deliver, originally or by modification, safe, clear access from the Lodi city street to their three
garage bays, Lodi would require FCB to correct any such defect. The Joneses also reasonably
and in good faith believed that, once the defect was discovered, Lodi would issue permitting
necessary to correct FCB's defective design and construction. Thus far, Lodi has failed on
multiple occasions to correct the defect and has left the Joneses with unsafe ingress and egress to
their garage bays, which includes having to literally block the sidewalk and street and create
unreasonable and unforeseen dangers to drivers, cyclists, pedestrians, etc.
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On multiple occasions, the Joneses complained to FCB about FCB, who apparently with
Lodi's knowledge and consent, sold the Joneses a home with a three -car garage but no driveway
actually allowing the Joneses to safely, reasonably and adequately use the three -car garage.
FCB, however, has and continues blaming entirely the City of Lodi. For instance, in early
November 2016, FCB informed the Joneses it was aware of the defective conditions of the
Joneses' property, as well as the same or similar defective conditions of other homes in FCB's
Rose Gate subdivision and that it was attempting to work with Lodi Public Works to obtain a
variance to cure the defects. On November 15, 2016, FCB represented to the Joneses that their
property is plotted in a "conventional manner" and that Public Works did not see "special
circumstances" warranting a driveway or curb cut modification. Much to the Joneses surprise
and disappointment, FCB concluded the discussion by telling the Joneses it "never hurts" for Mr.
and Mrs. Jones to seek a variance on their own. In sum, in November 2016, FCB admitted and
acknowledged the defects of the Joneses' property, admitted and acknowledged that it should
and would take the responsibility of correcting the defects by obtaining appropriate city permits,
failed to obtain appropriate permits, and then instructed the Joneses to attempt to cure the defects
on their own.
On February 21, 2017, FCB representative Geoff Armstrong represented to the Joneses
that the driveways for "five or six" homes were deliberately moved (i.e., corrected from original
defective design and placement) because of irregularities with the lots in relation to the curb cuts
and indicated that Public Works "may sign off' on an encroachment permit to cure the Joneses'
property defect.
On April 3, 2017, FCB expressed to the Joneses that it was "incomprehensible that the
city would allow a foreseeable problem to be constructed" (i.e., the defective driveway and curb
cut conditions) yet offered no indication how or why Lodi permitted the construction with
obvious, material defects. Much to the Joneses' surprise, especially following the April 3
representations from FCB, on April 4, 2017, a Lodi Senior Engineer informed the Joneses that
their former encroachment permit application was denied.
Throughout spring 2017, the Joneses continued in earnest trying to work with FCB and
the City of Lodi to pursue any possible remedies for the property defects. The Joneses also had
numerous discussions with several other Rose Gate purchasers and residents, conducted their
own due diligence, and learned the following: (1) FCB friends and associates who purchased
Rose Gate homes were permitted, with Lodi's knowledge and consent, and provided custom and
corrected driveways and curb cuts; (2) with Lodi's knowledge and consent, FCB constructed
several Rose Gate properties with defective driveway or curb cut conditions; (3) FCB claims to
have obtained from Lodi a small, limited number of driveway or curb cut correction permits (and
we have yet to locate written support for the claim); (4) all of the alleged correction or variance
permits issued by Lodi have somehow already been allocated to certain Rose Gate property
owners; and (5) without support or authority, Lodi claims, regardless of particular circumstances
or property conditions, not to mention Lodi's inherent authority as a municipality, Lodi had only
a limited number of encroachment permits it could issue for the Rose Gate development.
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Lodi, through application of its permit evaluation and issuance policies and practices, has
and continues treating Rose Gate residents disparately and depriving them of due process and
equal protection of the laws. The Joneses are aware of and have communicated with several
formerly prospective and current Rose Gate property owners who either feel misled about
driveway and curb cut issues by FCB when purchasing their homes or who, after learning of the
defects, declined to move forward with purchasing in Rose Gate. Addresses of homes with
misaligned driveways or curb cuts for certain of those formerly prospective or current owners
include, but are not limited to, the following:
1. 3031 Celebration Drive (the Joneses');
2. 3045 Celebration Drive;
3. 3039 Celebration Drive;
4. 3041 Lombard Street;
5. 3049 Lombard Street;
6. 55 Nobel Avenue; and
7. 90 Nobel Avenue.
Addresses of Rose Gate homes the Joneses are aware formerly had misaligned driveways
or curb cuts but for whom Lodi issued encroachment permits for corrective activity include, but
are not limited to, the following:
1. 202 Jubilee Lane;
2. 2776 Ambrosia Lane;
3. 3035 Belmont Drive;
4. 198 Cottage Lane; and
5. 58 Nobel Avenue.
In August 2017, we spoke by telephone and exchanged email with Lodi City Manager
Steve Schwabauer. We explained to Mr. Schwabauer the nature and degree of FCB's defective
design and construction, the significant impact on the Joneses from FCB's defective work and
Lodi's failure to issue an encroachment permit, and our thoughts and hopes for very simple
corrective measure by Lodi — an encroachment permit.
After our initial communications with Mr. Schwabauer, he represented to us that, to his
credit, he personally took the matter out into the field and conducted a thorough investigation,
which, according to his August 30, 2017 email correspondence with us, attached hereto as
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Exhibit A, included the following analyses personally conducted by him and conclusions of
facts and law personally ascertained by him:
1. Purported personal review, evaluation and legal analyses, presumably stemming
from his 10 years as Lodi City Attorney, of portions of the Joneses' purchase and sale agreement
package with FCB, which apparently he obtained from FCB, which has absolutely nothing to do
with Lodi's encroachment permit denial and, therefore, prohibition on the Joneses' efforts to
cure FCB's defective design and construction.
2. Based on his purported review of unknown purchase and sale agreement materials
he obtained from FCB, Mr. Schwabauer reached the legal conclusion, without speaking further
with us or ever with the Joneses, that the Joneses allegedly executed some kind of waiver,
acknowledgement or consent to the defective driveways and curb cuts -- because FCB said so,
notwithstanding that we already explicitly communicated to him by telephone the Joneses had
done no such thing, which, even if true, also has nothing to do with Lodi's encroachment
permit denial.
3. Mr. Schwabauer's purported findings, in his words, that "I also confirmed that
models were constructed and available for view with the two car width approach prior to your
client's [sic] purchase" -- notwithstanding that we already explicitly communicated to him by
telephone the Joneses had not been made aware of FCB's defective design and construction
until after they moved into the home, and which has nothing to do with Lodi's encroachment
permit denial.
4. His own personal parking experiment, purportedly at a Rose Gate home with
three garage bays and similarly defective driveway and curb cuts, after which he rendered his
expert opinion that the Joneses are either dishonest or totally incompetent drivers because, in his
words, "I did my own site tour and was able to park a Chevy Tahoe in one of the third stall units
with a two car width approach. I will admit that I had to take my time but I did not have to make
any three point turns or leave the concrete driveway to either enter or exit the single stall[,]"
which has nothing to do with Lodi's encroachment permit denial.
5. His opinions regarding new construction survey and market data, traffic pattern
analyses, and parking data, as follows:
The three car garage scenario with a twenty foot approach is quite
common in both Rosegate and many of our newer but established
neighborhoods (Sun west Meadows is a good example). Adding a
three car approach may make garage access easier but also
significantly reduces street parking in neighborhoods with
relatively tight streetscapes. This is a function of the cost conscious
drive toward smaller lot subdivisions common through many of the
current designs on the market.
And none of the vague, unidentified purported market information or traffic and parking data
has anything to do with Lodi's encroachment permit denial.
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6. Mr. Schwabauer's personal review and evaluation of specific historical permit
issuance in Rose Gate, as well as apparently his firsthand knowledge, from site inspections and
investigations, and legal conclusions that he is absolutely certain, beyond any doubt whatsoever,
that Lodi did not issue any encroachment permits for driveway or curb cut corrections to any
"standard rectangle" lot or to FCB owner, representative, employee, contractor or friend,
obtained any encroachment permit from Lodi for correction of misaligned driveway or curb cuts,
and, in his words:
While I do acknowledge that the City provided a limited number of
encroachment permits at the beginning of construction to be used
by the developer on odd shaped lots to install a wider approach
than standard, I have toured the subdivision and believe those
exceptions were applied only to odd shaped lots. Your client's lot
is a standard rectangle so no unusual approach angles exist there. I
also toured the frontage of the property owned by the developer's
employee and confirmed that it has a standard twenty foot
approach for a two car garage. No special dispensation was granted
that individual.
7. He offers his opinions on concrete construction and engineering matters as
follows: "Adding new curb cuts at this date will decrease the life expectancy of the curb, gutter,
sidewalk and street improvements. The improvements were installed monolithically. Cutting into
them now increases the risk of water intrusion and mismatched soil compaction." Of note,
however, Mr. Schwabauer neglects to explain how, on the one hand, modification to curbs and
sidewalks will have a severely deleterious or completely destructive effect on those curbs and
sidewalks, but, on the other hand, he believes the very same deleterious or destructive effect does
not exist or is a non -issue where Lodi purportedly issued encroachment permits for "odd shaped
lots." How is that curb or sidewalk curative modifications are impossible or unacceptable in
front of standard rectangle lots, but entirely possible and acceptable in front of odd -shaped
lots?
Rightfully so, the Joneses were surprised and extremely disappointed with Mr.
Schwabauer's response to their legitimate, troubling and costly problem, especially given the
issues are not of their making Mr. Schwabauer did not address the issues of (1) FCB's defective
design and construction, (2) Lodi's advance approval of FCB's defective and design and
construction, or Lodi's subsequent ratification and agreement with FCB, (3) Lodi's failure to
develop, approve or implement a remotely acceptable or workable solution for Rose Gate
residents affected by FCB's defective work and Lodi's approval of it, (4) Lodi's apparent
arbitrary and capricious or disparate treatment of Rose Gate residents seeking encroachment
permits to remedy grossly misaligned driveways or curb cuts, or (5) any other factors or
scenarios under which FCB, Lodi, or both, take any meaningful responsibility for the
unreasonable, troubling and costly situation facing the Joneses and other Rose Gate residents
saddled with misaligned driveways and curb cuts that result in garage bays they cannot use
safely or as intended. Instead, Mr. Schwabauer went to great lengths to shield FCB from its
mistakes, avoid relevant discussion of Lodi Municipal Code provisions and application of those
provisions to the instant matter, and exhaust every opportunity to point the finger and blame the
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Joneses for FCB's poor work and Lodi's approval of same. Mr. Schwabauer's entire position is
one of deflection and avoidance.
By email dated August 30, 2017, we followed up with Mr. Schwabauer, thanked him for
his work on this matter, and posed several necessary follow-up questions to his many opinions
and conclusions, many of which were quite curious or otherwise obviously fall outside his
expertise.
Sadly, by email dated August 31, 2017, Mr. Schwabauer suddenly -- and incorrectly --
felt he was under "threat of litigation," being subjected to a "series of interrogatories," refused to
speak with us further and directed us to the Lodi City Attorney.
A true and correct copy of the entire email thread between our firm and Mr.
Schwabauer's office is attached hereto as Exhibit B.
Prior to our communications with Mr. Schwabauer, we had been working quite
cooperatively and effectively with the Lodi City Clerk in submitting and receiving timely and
thorough responses to California Public Records Act requests. Following our communications
with Mr. Schwabauer, however, we were informed that any and all remaining Public Records
Act requests and responses must go through and be handled by the Lodi City Attorney's Office.
We sent a follow-up Public Records Act request to Lodi on October 17, 2017, and by
statute response was due by October 27. John Fukasawa from the City Attorney's Office
contacted us to request an extension of time to respond, and of course we were happy to grant the
extension. On November 9, we received what purported to be a response to our October 17
request, but upon review discovered the response was incomplete in some areas and totally
lacking in others, especially as relating to information and materials about encroachment permits
issued to Rose Gate residents for purposes of curing misaligned driveways and curb -cuts. We
followed up with Mr. Fukasawa about the non-compliant and incomplete response, offered to
assist Lodi by further narrowing the scope of our already narrowly tailored request, and asked for
complete response the second time around. On December 5, Mr. Fukasawa asked for still more
time to respond, and we again obliged. Mr. Fukasawa assured us the Lodi City Attorney's
Office was working with Public Works and other departments and that he would respond to us
with further responses. Having not heard back from Mr. Fukasawa for months, our office sent a
follow-up communication. Mr. Fukasawa responded on March 13, 2018, again with a partial
answer to the already extremely narrowly tailored inquiry, failing to answer one of only two
requests and directing our office to visit the Lodi City website for more information.
Lodi's failure to provide us with statutory compliant and complete Public Records Act
responses is particularly problematic because Lodi has actual knowledge that the information and
materials requested under the October 17 request are necessary or appropriate for the Joneses in
pursuing their appeal of the October 26 permit denial, as well as other administrative or court
remedies.
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B. Appeal of Permit Denial and Grounds for City Council Issuance
Lodi Public Works Department denied the Joneses' encroachment permit application on
October 26, 2017. Lodi Municipal Code section 12.04.100 provides that "[a]ny person
aggrieved by the refusal of a permit required by this article may appeal to the city council."
Upon appeal, Municipal Code section 12.04.100 provides that if the City Council finds the
following to be true, then a permit shall be granted:
1. "The applicant will be substantially damaged by the refusal to grant the
permit as requested;
2. No other reasonable method of obtaining the desired result is available
except as proposed by the applicant; and
3. The granting of the permit will not be materially detrimental to the public
interest, safety, health and welfare or injurious to other property."
1. The Joneses Have and Will Continue to Be Substantially Damaged by Lodi's
Refusal to Issue Permit
In order to access one of the garage bays for its intended use, the Joneses are required to
drive and first stop one of their vehicles on the public street in front of the home, reverse the
vehicle away from the home and then, while completely blocking the public street, reposition the
vehicle to face the home and create a straight angle to the third garage bay. They then must drive
up and over the public curb and sidewalk into the bay, essentially doing a three-point turn in the
middle of and blocking the public street in a residential neighborhood.
This elaborate requirement, necessary just for the Joneses to use their driveway, creates
unreasonable and dangerous health and welfare conditions for themselves, all vehicular, bicycle
and pedestrian users of that public street, as well as bicycle, pedestrian and other forms of users
of the public sidewalk in front of their home.
As an additional consequence, the Joneses have suffered and continue to suffer ongoing
harm to their vehicles and loss of home value, and continue to expose their neighbors and other
pedestrians to danger and increase their own potential liability for that danger.
a. Safety of the Joneses and Neighbors
The Rose Gate community is active, comprised of working, middle and upper -middle
class families who, like the Joneses, have small or school -aged children. Homeowners frequent
the streets during morning and evening work commutes. Parents walk, run, bike, skate, scoot,
etc., with their kids during evenings and weekends. Of note, the Joneses' home is situated just
two blocks from Rose Gate Park, in the heart of the Rose Gate community, where families walk,
jog, bike, etc., to play outdoors.
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As described above, simply utilizing their third garage bay for the purpose it was
obviously intended requires the Joneses to create significant pedestrian and vehicle traffic
dangers to themselves and others in the community on sidewalks and streets for which Lodi is
responsible. Due entirely to FCB's defective construction and Lodi's refusal to issue permitting
necessary to remedy FCB's defective work and, consequential, inherently dangerous conditions,
in order for the Joneses to park their vehicle in the third garage bay, they must maneuver as
follows:
i. Drive and stop their vehicle at an angle partially perpendicular to
their home in front of Celebration Drive;
ii. Reverse the vehicle away from the home to create an angle directly
perpendicular to their home, which requires that they reverse into the middle of the public street
(blocking all forms of traffic on the public street);
iii. Reposition the vehicle forward to face the home directly
perpendicularly and create a straight line to the third garage bay;
iv. Literally drive up onto and over the public curb;
v. Drive the vehicle forward over the public sidewalk and across what
were supposed to be their front planter areas, which they already were forced to remove; and
vi. Proceed forward until the vehicle is fully housed in the garage.
Getting their vehicle out of the third bay can create even greater dangers. The Joneses
are required to reverse out of the garage and over their property, continue in reverse over the
public sidewalk, over and down the curb, and into Celebration Drive before being able to change
direction and move forward on Celebration Drive.
It is indisputable that the maneuvering required by the Joneses to simply use their third
garage bay is dangerous to themselves and others, and equally indisputable that the direct causes
are FCB's defective construction and Lodi's refusal to issue permitting necessary to remedy
FCB's defective work and, consequential, inherently dangerous conditions.
The above-described daily vehicle maneuvering by the Joneses not only has and
continues creating substantial damage to the Joneses, it creates unreasonable, totally unnecessary
and avoidable substantial risk of extreme injury or damage to the Joneses or other community
residents. The City of Lodi had constructive or actual knowledge of the foreseeable, unnecessary
risk of harm since approving FCB's subdivision plans, and Lodi has and maintains actual
knowledge of unreasonable and avoidable daily substantial risk of harm since the Joneses moved
into the home and first brought the matter to the attention of both FCB and Lodi.
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b. Diminution or Loss of Home Value
Again, the Joneses specifically chose the three -car garage model at Rose Gate over the
option to have an additional office or bedroom. By effectively rendering the use of the third
garage bay unusable for its intended purpose or use, the Joneses are being denied the benefit of
their purchase, which can be valued at $35,044.35 when accounting for the loss of not just use of
200 square feet, but 200 square feet of space in the form of a highly desirable third garage bay.
c. Harm to the Vehicle
Each time the Joneses are required to park their vehicle in their driveway, it becomes
exposed to abnormal wear and tear that would not occur if the driveway were configured
correctly and afforded the Joneses proper shape and form of ingress and egress. The harm to the
Joneses' vehicle is ongoing. They were informed by their auto mechanic that use of their vehicle
in this manner is causing damage upwards of $7,500, depending on degree of harm to the front
end, ball joints, springs, contortion bars, etc. The vehicle damage will continue and worsen as a
direct result of the Joneses being required to continuously drive their vehicle up on over the curb
simply to gain proper access to their garage.
Due to the actual and potentially substantial costs incurred, including diminution in
property value and vehicle damage, which already totals in excess of $40,000, and the risks
involved of even greater loss or harm to the Joneses, especially in the event of an accident
stemming from continued use of a defective driveway, the Joneses are substantially damaged by
the decision to deny reasonable modifications to their driveway.
2. Issuance of Encroachment Permit is Only Reasonable Method for Relief
The Joneses have made reasonable attempts to resolve this issue, first contacting FCB, to
ask that their driveway be modified slightly in order to provide safe and reasonable access and
use of their third garage bay. FCB refuses to take responsibility for its defective work, instead
blaming the City of Lodi.
The Joneses have made numerous informal and formal requests with various Lodi
departments. Municipal Code provisions 12.04.060 and 12.04.080 require an encroachment
permit or approvals to cure and correct the grossly misaligned driveway and curb cuts. Since
establishing of Rose Gate subdivision, Lodi has issued no fewer than five (5) approved
encroachment permits for driveway modifications (for properties located at 3035 Belmont Drive,
198 Cottage Lane, 202 Jubilee Lane, 3081 Lombard Street and 58 Nobel Avenue). Additionally,
attached hereto as Exhibit C are the copies of several other applications that have been filed and
either decided upon or awaiting decision.
Lodi acknowledges the reasonableness of issuing encroachment permits to cure FCB's
defective driveway design and construction work in Rose Gate. By their October 10, 2017
permit application, the Joneses simply ask of Lodi the very same remedy and authorization that
Lodi has already provided other Rose Gate residents to cure precisely the same driveway or curb
cut misalignments.
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3. Issuance of Permit Will Not Be Materially Detrimental to Public Interest,
Safety, Health, etc., but Failure to Issue Permit Will Be
The Joneses are unaware of any material detriment whatsoever to the public interest,
safety, health, etc., that would result from Lodi issuing an encroachment permit, which it has
already done on multiple occasions to other Rose Gate residents, to cure FCB's defective
driveway design and construction.
As described more fully above, however, there is and will continue material detriment to
health, safety and welfare of Rose Gate residents in the event Lodi refuses the Joneses'
encroachment permit application. The Rose Gate community is busy with commute traffic,
family pedestrian and other activities, park traffic, etc. Again, the maneuvering required by the
Joneses to simply use their third garage bay creates totally unnecessary and avoidable substantial
risk of extreme injury or damage to the Joneses and other community residents, and without an
encroachment permit from Lodi the risks and dangers will continue.
Moreover, the Joneses being required to drive up and over the curb and sidewalk on a
daily basis is and undoubtedly will continue damaging curb, thereby increasing the likelihood
and virtually ensuring expedited curb and sidewalk degradation and destruction.
Presently, the depth of the sidewalk attached to the Joneses driveway is 13/4 " thick.
However, the depth of the concrete of the sidewalk immediately to the side of the driveway, and
the portion on and over which the Joneses are forced to traverse daily, measures at a depth of
6'/2". The depth difference creates a space for the Joneses' vehicles to either slam down upon or
rub against the curb in a violent manner, not only causing damage to the vehicles but also
damage to the sidewalk and curb. With that constant rub, collision and pressure, the integrity of
the sidewalk and curb will be compromised at an accelerated rate and will hasten unsafe
pedestrian conditions, drainage and runoff issues, reduced parking availability, and unsafe traffic
conditions.
Lodi, and Rose Gate community, in particular, public interest, health, safety and welfare
weigh very heavily in favor of Lodi granting the Joneses' permit application.
C. Variance as Suitable Alternative for the Joneses
We believe the facts and circumstances of the Joneses' encroachment permit application
support very strongly the City Council granting this appeal and authorizing an encroachment
permit. In the event the City Council is inclined otherwise, the Joneses' situation is perfectly
suited for a one-time code variance.
Lodi Municipal Code section 17.40.050 allows for the grant of Variances and
Administrative Deviations "when, because of special circumstances applicable to the property,
including location, shape, size, surroundings, topography, or other conditions, the strict
application of [the] development code denies the property owner privileges enjoyed by other
property owners" or "creates an unnecessary, and non -self created, hardship or unreasonable
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regulation which makes it obviously impractical to require compliance with the development
standards." In addition, a variance must:
1. Be necessary for the preservation and enjoyment of substantial property rights
possessed by other property owners in the same vicinity and zoning district, and denied to the
subject property owner;
2. Be consistent with the actions, goals, objectives, and policies of the general plan
and any applicable specific plan;
3. Not allow a use or activity which is not otherwise expressly authorized by the
regulations governing the subject parcel and will not constitute a grant of special privileges
inconsistent with the limitations on other properties in the vicinity and in the same zoning
district; and
4. Not be materially detrimental to the public convenience, health, interest, safety, or
welfare or injurious to the property or improvements in such vicinity and land use district which
the property is located.
1. Variance is Reasonable and Appropriate
For all those reasons already outlined above, a variance allowing the Joneses to cure
FCB's defective work is entirely reasonable and appropriate. Not only would a variance have
virtually zero detrimental effect or impact on Lodi or the Rose Gate residents, granting a
variance would (a) move Lodi in line with more consistent and reasonable application of its code
provisions, (b) improve Rose Gate property values for current and prospective future purchasers,
and (c) greatly improve the Joneses' day-to-day quality of life.
2. Variance Will Increase Safety and Reduce Lodi Liability Exposure
As described above, simply utilizing their third garage bay for the purpose it was
obviously intended requires the Joneses to create significant pedestrian and vehicle traffic
dangers to themselves and others in the community on sidewalks and streets for which Lodi is
responsible. Due entirely to FCB's defective construction and Lodi's refusal to issue permitting
necessary to remedy FCB's defective work and, consequential, inherently dangerous conditions,
in order for the Joneses to park their vehicle in the third garage bay, they must maneuver as
follows:
a. Drive and stop their vehicle at an angle partially perpendicular to their
home in front of Celebration Drive;
b. Reverse the vehicle away from the home to create an angle directly
perpendicular to their home, which requires that they reverse into the middle of the public street
(blocking all forms of traffic on the public street);
12
c. Reposition the vehicle forward to face the home directly perpendicularly
and create a straight line to the third garage bay;
d. Literally drive up onto and over the public curb;
e. Drive the vehicle forward over the public sidewalk and across what were
supposed to be their front planter areas, which they already were forced to remove; and
f. Proceed forward until the vehicle is fully housed in the garage.
It is indisputable that the maneuvering required by the Joneses to simply use their third
garage bay is dangerous to themselves and others, and equally indisputable that the direct causes
are FCB's defective construction and Lodi's refusal to issue permitting necessary to remedy
FCB's defective work and, consequential, inherently dangerous conditions.
The above-described daily vehicle maneuvering by the Joneses not only has and
continues creating substantial damage to the Joneses, it creates unreasonable, totally unnecessary
and avoidable substantial risk of extreme injury or damage to the Joneses or other community
residents. The City of Lodi had constructive or actual knowledge of the foreseeable, unnecessary
risk of harm since approving FCB's subdivision plans, and Lodi has and maintains actual
knowledge of unreasonable and avoidable daily substantial risk of harm since the Joneses moved
into the home and first brought the matter to the attention of both FCB and Lodi.
"[A] public entity may be held liable for injury proximately caused by a dangerous
condition of its property if the risk of injury was reasonably foreseeable and the entity had
sufficient notice of the danger to take corrective measures." Cal. Gov't Code § 835. "[A] public
entity may be liable for a dangerous condition of public property even when the immediate cause
of a plaintiff's injury is a third party's negligent or illegal act (such as a motorist's negligent
driving), if some physical characteristic of the property exposes its users to increased danger
from third party negligence or criminality. Public entity liability lies under section 835 when
some feature of the property increased or intensified the danger to users from third party
conduct." Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457-58 (internal
citation omitted).
Public entity defendant does not have total immunity from liability under Government
Code section 835 for personal injury stemming from plan or design of construction of public
property or public improvements (like city streets and sidewalks). Public entity may have
immunity only as follows:
[W]here such plan or design has been approved in advance of the
construction or improvement by the legislative body of the public
entity or by some other body or employee exercising discretionary
authority to give such approval or where such plan or design is
prepared in conformity with standards previously so approved, if
the ... court determines that there is any substantial evidence upon
the basis of which (a) a reasonable public employee could have
13
adopted the plan or design or the standards therefor or (b) a
reasonable legislative body or other body or employee could have
approved the plan or design or the standards therefor.
Cal. Gov't Code § 830.6.
Here, in the event of major injury of the Joneses or other Rose Gate residents caused
from the Joneses being forced to make the three-point turn across Celebration Drive and the
sidewalk each and every time they use their garage third bay, it seems unlikely the courts would
find either of the following:
a. That FCB's construction defect or grossly misaligned driveways and curb
cuts were "approved in advance of the construction or improvement" by Lodi City Council or
other body; or
b. Substantial evidence that a "reasonable public employee could have
adopted the plan or design or the standards therefor" or "reasonable legislative body or other
body or employee could have approved the plan or design or the standards therefor."
Lodi would -- and rightfully so should -- have a difficult time proving with competent
evidence, much less substantial evidence, that any reasonable Lodi official or legislative body
did or could have adopted the Rose Gate construction plan involving a multitude of grossly
misaligned driveways or curb cuts that require residents, like the Joneses, to endanger
themselves and others by making three-point turns across Lodi city streets and sidewalks on a
daily basis each and every time they wish to use all or parts of their garages. Additionally, Lodi
necessarily would be required to prove the prior approval and reasonableness of its stated
position or policy of issuing only limited encroachment permits to Rose Gate residents
attempting to cure FCB's construction defects. We have obtained and evaluated substantial
documents and information from Lodi on planning, design, construction and development of the
Rose Gate community and we are unware of competent evidence, not to mention substantial
evidence, of any of the following:
a. A Lodi official or legislative body adopting a specific plan involving FCB
constructing multiple homes with multiple defects, including grossly misaligned driveways and
curb cuts;
b. A Lodi official or legislative body adopting a specific plan that includes
Lodi choosing to issue only limited encroachment permits to Rose Gate residents attempting to
cure FCB's construction defects and make their homes and city streets and sidewalks safer;
c. A Lodi official or legislative body adopting a plan involving FCB
planning, design, construction and development that necessarily would -- and did -- result in
Lodi public entity liability exposure; or
d. Any reasonable public entity official or legislative body would have
agreed or adopted the same design or construction plans.
14
And what of Mr. Schwabauer's opinion that "on balance the negative impacts to the
neighborhood [to simply issue a permit and allow proper driveway alignment] outweigh the
increased care required to park a larger utility vehicle in the third bay?" Is that going to be
Lodi's formal opinion or position if or when, God forbid, as a result of FCB's defective work
causing daily vehicle maneuvering by the Joneses, which creates totally unnecessary and
avoidable substantial risk, the Joneses or other community residents are injured?
D. Conclusion
For the many good reasons described above, the Joneses respectfully request that the City
Council grant this appeal under Municipal Code section 12.04.100 and issue an encroachment
permit adequate to allow correction of their misaligned driveway and curb cuts.
Should the City Council for some reason be disinclined to grant this appeal and issue a
permit, the Joneses respectfully request a one-time code variance under section 17.40.050
adequate to allow correction of their misaligned driveway and curb cuts.
We thank the City Council for its time and attention to this matter.
Sincerely,
HUGHEY LAW GROUP
1(evin
KEVIN HUGHEY
15
EXHIBIT "A"
9/7/2017 Hughey Law Group Mail - Encroachment Permit Issue with Rose Gate
GMI
Encroachment Permit Issue with Rose Gate
Tristan Hills <thills@hugheylawgroup.com>
Steve Schwabauer <sschwabauer@lodi.gov>
To: Tristan Hills <thills@hugheylawgroup.com>
Cc: Janice Magdich <jmagdich@lodi.gov>, Charles Swimley <Cswimley@lodi.gov>
Dear Mr. Hills:
Wed, Aug 30, 2017 at 11:44 AM
Thank you for the opportunity to look into your client's concerns regarding the three car garage bays in the Rosegate
Subdivision in the City of Lodi. The City prides itself on the housing stock constructed here and desires to be
responsive to the needs of our residents. Unfortunately I do not see a solution that the City can offer to your client in
this case. I do not come to that conclusion lightly and did spend a significant amount of time reviewing the project
before coming to that conclusion and would like to share with you my concerns about your proposed solution.
1) The three car garage scenario with a twenty foot approach is quite common in both Rosegate and many of
our newer but established neighborhoods (Sun west Meadows is a good example). Adding a three car approach may
make garage access easier but also significantly reduces street parking in neighborhoods with relatively tight
streetscapes. This is a function of the cost conscious drive toward smaller lot subdivisions common through many of
the current designs on the market.
2) Adding new curb cuts at this date will decrease the life expectancy of the curb, gutter, sidewalk and street
improvements. The improvements were installed monolithically. Cutting into them now increases the risk of water
intrusion and mismatched soil compaction.
3) I did my own site tour and was able to park a Chevy Tahoe in one of the third stall units with a two car width
approach. I will admit that I had to take my time but I did not have to make any three point turns or leave the
concrete driveway to either enter or exit the single stall.
4) I contacted the developer and asked whether the sales agreement included any disclosures regarding the
tight nature of the third bay. He provided a copy of a disclosure signed by your client acknowledging the matter and
waiving any claims regarding it. I also confirmed that models were constructed and available for view with the two
car width approach prior to your client's purchase.
5) While I do acknowledge that the City provided a limited number of encroachment permits at the beginning
of construction to be used by the developer on odd shaped lots to install a wider approach than standard, I have
toured the subdivision and believe those exceptions were applied only to odd shaped lots. Your client's lot is a
standard rectangle so no unusual approach angles exist there. I also toured the frontage of the property owned by
the developer's employee and confirmed that it has a standard twenty foot approach for a two car garage. No special
dispensation was granted that individual.
Although I do regret your client's disappointment with the final product, on balance the negative impacts to the
neighborhood outweigh the increased care required to park a larger utility vehicle in the third bay. This is especially
true in light of the disclosure and waiver signed by your client. Again, my regrets that I cannot find a solution to your
client's concerns. If anything above is in error I would be happy to discuss it further.
https://mail.google.com/mail/u/0/?ui=2&ik=ac2667bf33&jsver=EfWGX3tyASk.en.&view=pt&msg=15e347549a99709f&search=inbox&sim1=15e347549a99709f 1/3
9/7/2017 Hughey Law Group Mail - Encroachment Permit Issue with Rose Gate
Steve Schwabauer
Lodi City Manager
From: Tristan Hills [mailto:thills@hugheylawgroup.com]
Sent: Friday, August 25, 2017 1:58 PM
To: Steve Schwabauer
Subject: Re: Encroachment Permit Issue with Rose Gate
[Quoted text hidden]
[Quoted text hidden]
[Quoted text hidden]
[Quoted text hidden]
[Quoted text hidden]
Hughey Law Group
520 9th Street, Suite 102
Sacramento, CA 95814
0: 916.758.2100 ext. 107
F: 916.758.2200
thills@hugheylawgroup.com
www.hugheylawgroup.com
Please consider the environment before printing this email.
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged
information. It is solely for the use of the intended recipient. Unauthorized interception, review, use, or disclosure is prohibited
and may violate applicable laws including, but not limited to, the Electronic Communications Privacy Act. If you are not the
intended recipient, please immediately contact the sender and destroy all copies of the communication.
Tristan Hills
Due Diligence Director
https://mail.google.com/mail/u/0/?ui=2&ik=ac2667bf33&jsver=EfWGX3tyASk.en.&view=pt&msg=15e347549a99709f&search=inbox&sim1=15e347549a99709f 2/3
EXHIBIT "B"
Gmaii
Fwd: Encroachment Permit Issue with Rose Gate
Mary Lao <mlao@hugheylawgroup.com>
Kevin Hughey <khughey@hugheylawgroup.com> Thu, Aug 31, 2017 at 7:14 PM
To: Steve Schwabauer <sschwabauer@lodi.gov>
Cc: Janice Magdich <jmagdich@lodi.gov>, Charles Swimley <Cswimley@lodi.gov>, Tristan Hills
<thills@hugheylawgroup.com>, Mary Lao <mlao@hugheylawgroup.com>, Galen Gentry <ggentry@hugheylawgroup.com>
No interrogatories or threats, just requests for information supporting your many factual and legal conclusions you set
forth to blame the Jones' for FCB's wrongful acts and omissions. We'd hoped for unbiased, independent, and meaningful
evaluation from your office.
Going forward, we're happy to work with Ms. Magdich.
Thanks, Steve.
On Thu, Aug 31, 2017 at 12:40 PM, Steve Schwabauer <sschwabauer@lodi.gov> wrote:
Mr. Hughey:
I can only interpret a lawyer's reference to further action, followed by a series of interrogatories to be a threat of
litigation. Accordingly, I must regretfully, but cordially decline to address your questions and ask that you refer all
further correspondence in this matter to Janice Magdich, legal counsel for the City. Ms. Magdich is copied above.
Steve Schwabauer
From: Kevin Hughey [mailto:khughey@hugheylawgroup.com]
Sent: Wednesday, August 30, 2017 5:44 PM
To: Steve Schwabauer
Cc: Janice Magdich; Charles Swimley; Tristan Hills; Mary Lao; Galen Gentry
Subject: Fwd: Encroachment Permit Issue with Rose Gate
Hello, Steve. Thanks very much for responding to our inquiries and concerns regarding FCB's construction defects, the
impact of same on our clients and others in the Rose Gate community, and the City of Lodi's position and opinion.
Tristan Hills is locked up in a conference this afternoon and your email was forwarded to me for quick response.
Now that we have official response from the City of Lodi, we anticipate taking further action. In the meantime, kindly
see our follow-up questions or concerns below in red. We appreciate very much your continued attention to this matter
and ask for prompt response to the follow-up questions and concerns below.
In addition to the below, kindly provide us the names of all FCB representatives with whom you spoke or corresponded
during your evaluation described below, as well as dates of meetings and conversations.
Again, can't thank you enough for your time and effort on this important matter. We look forward to working together
much more on this dispute and these issues. Thanks.
Forwarded message
From: Tristan Hills <thills@hugheylawgroup.com>
Date: Wed, Aug 30, 2017 at 12:49 PM
Subject: Fwd: Encroachment Permit Issue with Rose Gate
To: Kevin Hughey <khughey@hugheylawgroup.com>, Galen Gentry <ggentry@hugheylawgroup.com>, Mary Lao
<mlao@hugheylawgroup.com>
From: Steve Schwabauer <sschwabauer@lodi.gov>
Date: August 30, 2017 at 11:44:10 AM PDT
To: 'Tristan Hills' <thills@hugheylawgroup.com>
Cc: Janice Magdich <jmagdich@lodi.gov>, Charles Swimley <Cswimley@lodi.gov>
Subject: RE: Encroachment Permit Issue with Rose Gate
Dear Mr. Hills:
Thank you for the opportunity to look into your client's concerns regarding the three car garage bays
in the Rosegate Subdivision in the City of Lodi. The City prides itself on the housing stock constructed
here and desires to be responsive to the needs of our residents. Unfortunately I do not see a solution
that the City can offer to your client in this case. I do not come to that conclusion lightly and did
spend a significant amount of time reviewing the project before coming to that conclusion and would
like to share with you my concerns about your proposed solution.
1) The three car garage scenario with a twenty foot approach is quite common in both Rosegate
and many of our newer but established neighborhoods (Sun west Meadows is a good example).
Adding a three car approach may make garage access easier but also significantly reduces street
parking in neighborhoods with relatively tight streetscapes. This is a function of the cost conscious
drive toward smaller lot subdivisions common through many of the current designs on the
market.
Kindly advise the bases and expertise used to reach your determinations and opinions, including the
nexus between "cost conscious drive toward smaller lot subdivisions" and totally misaligned and
defective driveway and curb cuts. Smaller lots, if even relevant in this case, do not seem related or
relevant to misaligned and defective driveway curb cuts. Driveway and curbs are defective, period,
and the whether or not cured by FCB the lot size remains the same.
Also, kindly explain how misaligned and defective driveway curb cuts are related or relevant to
"current designs on the market."
Last, kindly explain how generalized planning or building in hypothetical or other projects is related or
relevant to our clients' misaligned and defective driveway curb cuts.
2) Adding new curb cuts at this date will decrease the life expectancy of the curb, gutter,
sidewalk and street improvements. The improvements were installed monolithically. Cutting into
them now increases the risk of water intrusion and mismatched soil compaction.
Kindly advise the bases and expertise used to reach your determinations and opinions, including
life expectancy analysis, water intrusion risk, etc., and any expert advice or opinion you obtained in
connection with same.
3) I did my own site tour and was able to park a Chevy Tahoe in one of the third stall units with
a two car width approach. I will admit that I had to take my time but I did not have to make any three
point turns or leave the concrete driveway to either enter or exit the single stall.
Kindly advise the bases and expertise used to reach your determinations and opinions, including the
dates of your tour and the specific properties you visited, the home in which you parked your vehicle,
and anyone who was present or witnessed.
4) I contacted the developer and asked whether the sales agreement included any disclosures
regarding the tight nature of the third bay. He provided a copy of a disclosure signed by your client
acknowledging the matter and waiving any claims regarding it. I also confirmed that models were
constructed and available for view with the two car width approach prior to your client's purchase.
Adequate or any disclosure is one of the factual issues in this dispute. FCB claiming waiver
or acknowledgment is a conclusory contention from only one party to the dispute, our clients contend
otherwise. Kindly advise the FCB individuals with whom you spoke regarding alleged disclosure.
Waiver or acknowledgement is a legal conclusion, even assuming some kind of disclosure, advancing
only FCB's version of events, which conveniently also better serves the City of Lodi. Kindly advise how
you reached the legal conclusion of waiver of acknowledgement, as well as the identify of counsel you
may have consulted as part of same.
Kindly explain how and to what degree you "also confirmed that models were constructed and
available for view with the two car width approach prior to your client's purchase," as well as how
that is relevant to our clients' specific and actual misaligned and defective driveway curb cuts
5) While I do acknowledge that the City provided a limited number of encroachment permits at
the beginning of construction to be used by the developer on odd shaped lots to install a wider
approach than standard, I have toured the subdivision and believe those exceptions were applied only
to odd shaped lots. Your client's lot is a standard rectangle so no unusual approach angles exist
there. I also toured the frontage of the property owned by the developer's employee and confirmed
that it has a standard twenty foot approach for a two car garage. No special dispensation was granted
that individual.
Kindly advise the bases and expertise used to reach your determinations and opinions, including the
dates of your tour and the specific properties you visited.
Although I do regret your client's disappointment with the final product, on balance the negative
impacts to the neighborhood outweigh the increased care required to park a larger utility vehicle in
the third bay. This is especially true in light of the disclosure and waiver signed by your client. Again,
my regrets that I cannot find a solution to your client's concerns. If anything above is in error I would
be happy to discuss it further.
First, "negative impacts to the neighborhood outweigh the increased care required to park a larger
utility vehicle in the third bay" doesn't appear relevant to FCB's contention that it provided some kind
of waiver and acknowledgement allegedly adopted by our clients. Kindly explain the nexus if we're
missing it.
Second, please explain how you reach your conclusion on the outcome of the balance you describe.
Steve Schwabauer
Lodi City Manager
From: Tristan Hills [mailto:thills@hugheylawgroup.com]
Sent: Friday, August 25, 2017 1:58 PM
To: Steve Schwabauer
Subject: Re: Encroachment Permit Issue with Rose Gate
Hi Steve,
I wanted to follow up with you regarding the FCB Rose Gate matter and see if you've had a chance to
speak to Public Works. If it is convenient for you, I can give you a call to discuss what you have
discovered and get your take on the situation.
Best,
On Thu, Aug 10, 2017 at 5:30 PM, Steve Schwabauer <sschwabauer@lodi.gov> wrote:
Thank you Mr. Hills. I will follow up with Public Works Staff. If you have not heard from me within ten
business days, please get back in touch with me.
Steve
From: Tristan Hills [mailto:thills@hugheylawgroup.com]
Sent: Wednesday, August 09, 2017 4:50 PM
To: Steve Schwabauer
Subject: Encroachment Permit Issue with Rose Gate
Mr. Schwabauer,
You spoke with Kevin Hughey and our office a couple weeks ago regarding an encroachment permit
issue with one of our clients and asked that we send a follow-up email for you to investigate.
To recap as briefly as possible, our client purchased a home in the Rose Gate development last year and
was told that her family would be receiving a fully functioning and accessible driveway to a three -car
garage. It was quickly discovered that, due to the sidewalk location and driveway configuration, it was
impossible to navigate any typical car into the third garage bay without driving over the sidewalk and
damaging the vehicle. We reviewed the property (3031 Celebration Drive) and it does appear that the
driveway has been constructed in a poor manner, restricting the usual/expected usage of a driveway.
Our client made multiple requests for FCB to modify the driveway and they indicated that she must go
through the city, but told her it wouldn't be a problem. Her encroachment permit was, as expected,
denied. Since, she became aware of 4-6 driveway modification permits having been approved for homes
in Rose Gate. Concerned, she contacted our office a few months ago.
Prior to contacting you, I have had conversations with Denise Wyman and Lyman Chang about the
encroachment process (the general "moratorium", 50% frontage requirements, etc.) and reviewed the
multiple encroachment permits that were submitted by FCB and approved.
Our client, through her own investigation has found multiple homes with the issue, and spoken to various
other buyers who are either upset or have refused to purchase homes in Rose Gate due to this specific
issue. The homes that we are aware of with this issue are located at:
• 3045 Celebration Drive
• 3039 Celebration Drive
• 3041 Lombard Street
• 3049 Lombard Street
• 55 Nobel Avenue
• 90 Nobel Avenue
Presently, the homes that have been modified that we are aware of are:
• 202 Jubilee Lane
• 2776 Ambrosia Lane
• 3035 Belmont Drive
Our hope is to figure out an administrative solution for making rather minor modifications to the driveway
and sidewalk so that our client and her family can enjoy the use of their home.
Feel free to call (916.758.2100 ext. 107) or email (thills@hugheylawgroup.com) if you need any additional
information to look into this matter. If you have any questions, I'd be more than happy to answer them.
Best,
Tristan Hills
Due Diligence Director
Hughey Law Group
520 9th Street, Suite 102
Sacramento, CA 95814
0: 916.758.2100 ext. 107
F: 916.758.2200
thills@hugheylawgroup.com
www.hugheylawgroup.com
Please consider the environment before printing this email.
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally
privileged information. It is solely for the use of the intended recipient. Unauthorized interception, review,
use, or disclosure is prohibited and may violate applicable laws including, but not limited to, the Electronic
Communications Privacy Act. If you are not the intended recipient, please immediately contact the sender
and destroy all copies of the communication.
Tristan Hills
Due Diligence Director
Hughey Law Group
520 9th Street, Suite 102
EXHIBIT "C"
City of Lodi
Public Works Department
Encroachment Permit
Application (Construction)
Permission is requested to encroach on the City of Lodi's Right of Way as follows: (Complete all
items. Use NA, if not applicable. Application is not complete until all required attachments are inckided.)
Permit Address or Street Name:i011 [ e- le hi CvN If -
Cross Street (Distance and direction from site)
1.
2.
3.
4.
z
CuesRi .oq
Applicant SkQC.+, .\rs�-Ys 3O S t]r
Name PAddress
^
Contractor y.% Ge1tkS
Name Address
209. 112 . 2.1l t
kdr CA
City State
Cify ` State)
20S• 3nL1. I Iz
J2 261. 7'17. (715`
Zip Phone No.
CA q'.522_
Zip
Le221
Office Phone No. Cellular Phone No. License No
5. Estimated Start Date Estimated Completion Date
6. Estimated Cost in City Right -of -Way (Excluding material costs) /I/
7. Work Description (Fully describe work within City's Right -of -Way, including any street or lane closures.
Attach separate sheet if necessary. Attach complete plans, specifications, calculations, maps, etc.,
where applicable.):
gerinrwa 1 .r( c" li,s. iL, r ` - i)Lctcj J 4 �,;� tt_iY t�
61_ o (Iv e G1 � � o CL c- 4 � . C C .v u t e y. t ( t \& Q *v 1 +' V �C7Cr
Ci' tri ICsL( e c( Y k1 , f n.f C i r�b . i„..1
Q to t -r r r c\
8. Additional Information ( t p heck one or more of the following):
❑ Sidewalk Replacement/ Installation: Length Lineal feet Sidewalk Width
❑ nveway Replacement/ Installation (Check one):
112
Residential Width 6 Lineal feet
0 Commercial Width Lineal feet
Gutter Type (Check one if applicable) �%
0 Square (15" gutter) Q Vertical (24" gutter) 'eX� 5� A G`
0 Rolled Bi DrivewayNQ,t,) 0 Other
❑ Utility Work
❑ Excavation
Max. Depth Length
Surface Type _ _ Diameter
❑ Other (Describe):
The undersigned agrees to indemnify and save the City of Lodi free and harmless from any liability in accordance with the provisions of
Lodi Municipal Code (LMC) Sec. 12.04.040. Permittee is specifically aware of LMC Sec. 12.04.290 thereof relating to the relocation or
removal of said encroachment if future construction requires such relocation. Permit void if work not started within 6 months of permit
date. The undersigned agrees and understands that a permit can be denied or a bond required for non-payment of prior or present
permit fees, that the work will be done in accordance with City of Lodi rules and regulations subject to inspection and approval. Permit
application fees are non-refundable. If the work for which this permit has been issued has not been completed within 6 months of permit
date, the City of Lodi shall have the right to complete the work, and to file a Cause of Action to recoup the City's expenses in completing
the work and for all other costs and fees in accordance with the provisions of the Lodi Municipal Code Section 12-04.120.
feet (Excluding curb)
❑ Directional Boring 0 Other
Avg. Depth Avg. Width
Conduit: Type
DATE3f3Jr#�
SIGNED
OFFICE USE ONLY PERMIT STATIIJ6:
PERMIT NO. ❑PENDING ❑FINAL
DATE & TIME RECEIVED ®DENIED/WITHDRAWN
FEE:
Minimum amount (Balance to be collected at permit issuance)
TOTAL FEE:
EncroachmentPermitApp.doc 3/12/2004
City of Lodi
Public Works Department
Encroachment Permit
Application (Construction)
Permission is requested to encroach on the City of Lodi's Right of Way as follows: (Complete all
items. Use NA, if not applicable. Application is not complete until all required attachments are included.)
1. Permit Address or Street Name 3031 Celebration Drive
2. Cross Street (Distance and direction from site)
3. Applicant Staci Jones 3031 Celebration Dr. Lodi CA 95242 209.747.6715
Name Address City State Zip Phone No.
4. Contractor Brian Gates PO Box 69 Burson CA 95225
Name Address City State Zip
209.772.2171 209.304.1212 776221
Office Phone No. Cellular Phone No. License No.
5. Estimated Start Date 11/1/17
Estimated Completion Date
11/8/17
6. Estimated Cost in City Right -of -Way (Excluding material costs) $1500
7. Work Description (Fully describe work within City's Right -of -Way, including any street or lane closures.
Attach separate sheet if necessary. Attach complete plans, specifications, calculations, maps, etc.,
where applicable.):
Remove and relocate driveway.
8. Additional Information (Check one or more of the following):
❑ Sidewalk Replacement/ Installation: Length
• Driveway Replacement/ Installation (Check one):
Residential Width 15 Lineal feet
❑ Commercial Width Lineal feet
Gutter Type (Check one if applicable):
❑ Square (15" gutter) RI Vertical (24" gutter)
Lineal feet Sidewalk Width feet (Excluding curb)
❑ Rolled ❑ Driveway ❑ Other
❑ Utility Work
❑ Excavation ❑ Directional Boring ❑ Other
Max. Depth Avg. Depth Avg. Width Length
Surface Type Conduit: Type Diameter
❑ Other (Describe):
The undersigned agrees to indemnify and save the City of Lodi free and harmless from any liability in accordance with the provisions of
Lodi Municipal Code (LMC) Sec. 12.04.040. Permittee is specifically aware of LMC Sec. 12.04.290 thereof relating to the relocation or
removal of said encroachment if future construction requires such relocation. Permit void if work not started within 6 months of permit
date. The undersigned agrees and understands that a permit can be denied or a bond required for non-payment of prior or present
permit fees, that the work will be done in accordance with City of Lodi rules and regulations subject to inspection and approval. Permit
application fees are non-refundable. If the work for which this permit has been issued has not been completed within 6 months of permit
date, the City of Lodi shall have the right to complete the work, and to file a Cause of Action to recoup the City's expenses in completing
the work and for all other costs and fees in accordance with the provisions of the Lodi Municipal Code Section 12.04.120.
DATE 1 0/1 0/17 SIGNED
OFFICE USE ONLY PERMIT STATUS:
PERMIT NO. ['PENDING ['FINAL
DATE & TIME RECEIVED ❑DENIED/VVITHDRAWN
FEE:
Minimum amount (Balance to be collected at permit issuance)
TOTAL FEE:
EncroachmentPermitApp.doc
3/12/2004
CITY COUNCIL
ALAN NAKANISHI, Mayor
JOANNE MOUNCE,
Mayor Pro Tempore
MARK CHANDLER
BOB JOHNSON
DOUG KUEHNE
CITY OF LODI
Kevin Hughey
Hughey Law Group
520 9th Street, Suite 230
Sacramento, CA 95814
CITY HALL, 221 WEST PINE STREET
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6702 / FAX (209) 333-6807
www.lodi.gov citvclerk(clodi.gov
March 26, 2018
RE: APPEAL OF ENCROACHMENT PERMIT DENIAL
Regarding 3031 Celebration Drive, Lodi, CA
STEPHEN SCHWABAUER
City Manager
JENNIFER M. FERRAIOLO
City Clerk
JANICE D. MAGDICH
City Attorney
Please note that your correspondence received on March 21, 2018, regarding the
above -referenced subject matter, was filed in accordance with Lodi Municipal
Code Section 12.04.100. In addition, a copy of the submitted documentation was
provided to the City Council and the following departments for information,
referral, and/or or response: 1) City Manager, 2) City Attorney, 3) Public Works
Department, and 4) Community Development Department.
You will be notified in writing of the date this matter will be considered by the City
Council.
In the interim, please feel free to give me a call at (209) 333-6702 should you
have any questions and/or concerns regarding the above.
cc w/enclosure.
Sincerely,
City Council
City Manager
City Attorney
Public Works Department
Community Development Department
aiiolo, MMC
Please immediately confirm receipt
of this fax by calling 333-6702
CITY OF LODI
P. O. BOX 3006
LODI, CALIFORNIA 95241-1910
ADVERTISING INSTRUCTIONS
SUBJECT: PUBLIC HEARING TO CONSIDER APPEAL OF ERIK AND STACI JONES
REGARDING PUBLIC WORKS DEPARTMENT'S DENIAL OF
ENCROACHMENT PERMIT FOR 3031 CELEBRATION DRIVE, LODI
PUBLISH DATE: SATURDAY, APRIL 7, 2018
LEGAL AD
TEAR SHEETS WANTED: One 41) please
SEND AFFIDAVIT AND BILL TO:
LNS ACCT. #0510052
DATED: THURSDAY, APRIL 5, 2018
JENNIFER M. FERRAIOLO, CITY CLERK
City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
ORDERED BY: JENNIFER M. FERRAIOLO
CITY CLERK
MELA M. RRIS
EPUTY CI CLERK
ELIZABETH BURGOS
ADMINISTRATIVE CLERK
Verify Appearance of this Legal in the Newspaper — Copy to File
LNS
Emailed to the Sentinel at cfassified1@lodinews.com at (time) on (date) (pages)
Phoned to confirm receipt of all pages at (time) EB PMF (initials)
forms\advins.doc
DECLARATION OF POSTING
NOTICE OF PUBLIC HEARING TO CONSIDER APPEAL OF
ERIK AND STACI JONES REGARDING PUBLIC WORKS DEPARTMENT'S
DENIAL OF ENCROACHMENT PERMIT FOR 3031 CELEBRATION DRIVE, LODI
On Thursday, April 5, 2018, in the City of Lodi, San Joaquin County, California, a copy
of a Notice of Public Hearing to consider appeal of Erik and Staci Jones regarding
Public Works Department's denial of encroachment permit for 3031 Celebration Drive,
Lodi (attached hereto, marked Exhibit "A") was posted at the following locations:
Lodi City Clerk's Office
Lodi City Hall Lobby
Lodi Carnegie Forum
WorkNet Office
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 5, 2018, at Lodi, California.
i' MELA F
EPUTY C
r\?re-AA.a..t
RIS
CLERK
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK
ELIZABETH BURGOS
ADMINISTRATIVE CLERK
N:\Administration\CLERK\Public Hearings\AFFADAVITS\DECPOST1.DOC
DECLARATION OF MAILING
NOTICE OF PUBLIC HEARING TO CONSIDER APPEAL OF
ERIK AND STACI JONES REGARDING PUBLIC WORKS DEPARTMENT'S
DENIAL OF ENCROACHMENT PERMIT FOR 3031 CELEBRATION DRIVE
On April 5, 2018, in the City of Lodi, San Joaquin County, California, I deposited in the United
States mail, envelopes with first-class postage prepaid thereon, containing a Notice of Public
Hearing to consider appeal of Erik and Staci Jones regarding Public Works Department's denial
of encroachment permit for 3031 Celebration Drive, attached hereto Marked Exhibit A. The
mailing list for said matter is attached hereto, marked Exhibit B.
There is a regular daily communication by mail between the City of Lodi, California, and the
places to which said envelopes were addressed.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 5, 2018, at Lodi, California.
MELA F IS
DEPUTY CI CLERK
Forms/decmail.doc
ORDERED BY:
JENNIFER M. FERRAIOLO
CITY CLERK, CITY OF LODI
ELIZABETH BURGOS
ADMINISTRATIVE CLERK
CITY OF LODI
Carnegie Forum
305 West Pine Street, Lodi
NOTICE OF PUBLIC HEARING
Date: May 2, 2018
Time: 7:00 p.m.
J
For information regarding this notice please contact:
Jennifer M. Ferraiolo
City Clerk
Telephone: (209) 333-6702
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that on Wednesday, May 2, 2018, at the hour of
7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will
conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider
the following item:
a) Appeal of Erik and Staci Jones regarding Public Works
Department's denial of encroachment permit for
3031 Celebration Drive, Lodi.
Information regarding this item may be obtained in the Public Works Department,
221 West Pine Street, Lodi, (209) 333-6706. All interested persons are invited to
present their views and comments on this matter. Written statements may be filed with
the City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior
to the hearing scheduled herein, and oral statements may be made at said hearing.
If you challenge the subject matter in court, you may be limited to raising only those
issues you or someone else raised at the public hearing described in this notice or in
written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to
the close of the public hearing.
By Order of the Lodi City Council:
hnifer M. F rraiolo
ity Clerk
Dated: April 4, 2018
Approved as to form:
.fanrde D. Magdich
City Attorney
AVISO: Para obtener ayuda interpretativa con esta noticia, por favor Ilame a la oficina de la
Secretaria Municipal, a las (209) 333-6702.
CLERK\PUBHEAR\NOTICES\NOT_Appeal doc 3/29/18
MAILING LIST
Notice of Public Hearing to Consider Appeal of
Erik and Staci Jones Regarding Public Works Department's
Denial of Encroachment Permit for 3031 Celebration Drive, Lodi
Name
Address
Kevin Hughey
Hughey Law Group
EXHIBIT B
520 9th Street, Suite 230
Sacramento, CA 95814
Erik and Staci Jones
3031 Celebration Drive
Lodi, CA 95242